Prosecutor v. Kamuhanda, Case No. ICTR-95-54A, Judgment and Sentence (Jan. 22, 2004).
OR: ENG
TRIAL CHAMBER II
Before:
Judge William H. Sekule, Presiding
Judge Winston C. Matanzima Maqutu
Judge Arlette Ramaroson
Registrar: Adama Dieng
Date: 22 January 2004
The PROSECUTOR
v.
Jean de Dieu KAMUHANDA
Case No. ICTR-95-54A-T
Table of Contents
PART I - Introduction 4
A. The Tribunal and its Jurisdiction 4
B. Procedural Background 5
C. Evidentiary Matters 9
D. Witness Protection Issues 13
PART II – The Defence Case 14
A. Introduction 14
B. Vagueness of the Indictment 14
C. In and out of Court Identification of the Accused by the Prosecution.
17
D. The Defence Contention that the Citizens of Gikomero Were Surprised by
the Attacks and That the Assailants Came from Rubungo. 18
E. Defence Contention that Prosecution Witnesses Bore False Testimony against
the Accused and That the Charges against the Accused are Fabrication 19
F. The Alleged Influence of the Accused. 20
G. The Personality of the Accused was Incompatible with the Description of
the Person Presented by the Prosecutor. 20
H. Prosecution Allegation That the Accused Was an Advisor to the President.
21
I. Defence Contention that the Accused Became a Member of the Interim Government
under Duress 21
J. Alibi 22
K. Impossibility of Travel from Kigali to Gikomero in April 1994 43
L. Expert Witness 53
PART III - The Prosecution Case 54
A. Introduction 54
B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case) 54
C. Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in
1994) 55
D. Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda
in 1994) 55
E. Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic
Attacks in Rwanda) 56
F. Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict
in Rwanda) 57
G. Ministerial Position of the Accused and his Responsibility as Minister
of the Interim Government 57
H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons) 58
I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka
Massacres) 69
J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local
Authorities) 157
K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes
Committed by the Perpetrators or to Punish Them) 158
PART IV – Legal Findings 160
A. Admitted Facts 160
B. Cumulative Convictions 160
C. Criminal Responsibility 162
D. Genocide and Related Crimes 170
E. Crimes against Humanity 180
F. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II 196
PART V - Verdict 206
PART VI - Sentence 207
A. General Sentencing Practice 207
B. Mitigating Factors 208
C. Aggravating Factors 209
D. Sentencing Ranges 210
E. Credit for Time Served 210
Annexes
PART I - INTRODUCTION
A. The Tribunal and its Jurisdiction
1. This Judgment in the case of The Prosecutor v. Jean de Dieu Kamuhanda
is rendered by Trial Chamber II (“Trial Chamber” or “Chamber”) of the International
Criminal Tribunal for Rwanda (“Tribunal”), composed of Judge William H. Sekule,
presiding, Judge Winston C. Matanzima Maqutu, and Judge Arlette Ramaroson.
2. The Tribunal was established by the United Nations Security Council after
the Council considered official United Nations reports indicating that genocide
and widespread, systematic, and flagrant violations of international humanitarian
law had been committed in Rwanda. The Security Council determined that this
situation constituted a threat to international peace and security; determined
to put an end to such crimes and to bring to justice the persons responsible
for them; and expressed the conviction that the prosecution of such persons
would contribute to the process of national reconciliation and to the restoration
and maintenance of peace. Consequently, on 8 November 1994, the Security
Council, acting under Chapter VII of the United Nations Charter, adopted
Resolution 955 establishing the Tribunal.
3. The Tribunal is governed by the Statute, annexed to Resolution 955 (“Statute”),
and by its Rules of Procedure and Evidence (“Rules”).
4. Pursuant to the Statute, the Tribunal has the authority to prosecute persons
responsible for serious violations of international humanitarian law committed
in the territory of Rwanda and Rwandan citizens responsible for such violations
committed in the territory of neighbouring states. Under Article 1 of the
Statute, the Tribunal’s temporal jurisdiction is limited to acts committed
between 1 January 1994 and 31 December 1994. Articles 2, 3, and 4 of the
Statute provide the Tribunal with subject-matter jurisdiction over genocide,
crimes against humanity, and war crimes arising from serious violations of
Article 3 Common to the Geneva Conventions (“Common Article 3”) and Additional
Protocol II thereto. The provisions of Articles 2, 3, and 4 are set out below
in Part IV.
The Accused
5. The Indictment alleges that Jean de Dieu Kamuhanda (the “Accused”) was
born on 3 March 1953 in Gikomero commune, Kigali-Rural préfecture,
in Rwanda.
6. The Defence admitted the following facts:
Jean de Dieu Kamuhanda was born on 3 March 1953 in Gikomero commune, Kigali-Rural
préfecture, Rwanda.
In late May 1994, Jean de Dieu Kamuhanda held the office of Minister of Higher
Education and Scientific Research in the Interim Government, replacing Dr.
Daniel Nbangura.
Jean de Dieu Kamuhanda held the office until mid-July 1994.
In his capacity as Minister of Higher Education, Jean de Dieu Kamuhanda was
responsible for the articulation and the implementation of the government
policy concerning post-secondary school education and scientific research
in Rwanda for the Interim Government.
B. Procedural Background
1. Pre-Trial Phase
7. On 1 October 1999, Judge N. Pillay reviewed and confirmed an Indictment
dated 27 September 1999 against Jean de Dieu Kamuhanda and Augustin Ngirabatware
and issued an Order for Non-Disclosure of the Indictment. On the same date
the Tribunal issued a Request for Arrest and Transfer as well as a Warrant
of Arrest and Order for Transfer and Detention of the Accused pursuant to
the Prosecutor’s request.
8. The Accused was arrested on 26 November 1999 in France and was transferred
from France to the seat of the Tribunal in Arusha on 7 March 2000.
9. At his Initial Appearance, on 10 March 2000, the Chamber found that the
Accused was unprepared to enter a plea, considering an issue he raised about
a manner in which the Indictment had been redacted. Consequently, the Tribunal
granted his request for another copy of the Indictment redacted differently.
Accordingly, the Accused’s initial appearance was re-scheduled to 24 March
2000, before Judge Y. Ostrovsky, at which time the Accused pleaded not guilty
to all nine counts alleged in the Indictment.
10. On 7 November 2000, Trial Chamber II, composed of Judge L. Kama, presiding,
Judge W. H. Sekule and Judge M. Güney, granted the Defence’s motion
for severance and separate trial and ordered the Prosecutor to file a separate
Indictment pertaining exclusively to Jean De Dieu Kamuhanda, bearing the
Case Number 99-54A. The separate Indictment was filed on 15 November 2000.
The Trial Chamber, did not consider this separate Indictment to be an amendment
of the original Indictment; therefore no new initial appearance of the Accused
was required.
11. On 28 December 2000, the Defence notified the Prosecution of its intention
to provide alibi evidence with respect to allegations against the Accused.
Pursuant to Rule 67(A)(ii)(a), the Defence filed notice of alibi on 31 August
2001. On 8 April 2002 the Trial Chamber granted a Defence Motion to Correct
a Material Error in the Notice of Alibi.
2. The Indictment of 15 November 2000
12. There are nine counts in the Indictment, charging Jean De Dieu Kamuhanda
with genocide, crimes against humanity, and serious violations of Article
3 Common to the Geneva Conventions and Additional Protocol II. The Indictment
alleges that these crimes were committed between 1 January and 31 December
1994 in Rwanda where the Tutsi, the Hutu and the Twa were identified as racial
or ethnic groups. The Indictment asserts that during this period, widespread
or systematic attacks were directed against the civilian population on political,
ethnic or racial grounds, and that a state of non-international armed conflict
existed in Rwanda.
13. The Indictment alleges that before the events of 1994, the Accused was
the Director of Higher Education and Scientific Research, and then Counsellor
to President Sindikubwabo until late May 1994.
14. The Indictment alleges that in late May 1994, the Accused held the office
of Minister of Higher Education and Scientific Research in the Interim Government.
The Indictment further asserts that in his capacity as Minister, the Accused
attended Cabinet meetings and participated in formulating the policies adopted
by the Interim Government, and that he neither publicly disavowed these policies
nor did he resign. The Indictment also asserts that in his capacity as Minister,
the Accused exercised authority and control over all the institutions and
staff members under his ministry and that he failed in his duty to ensure
the security of Rwandan citizens.
15. The Indictment alleges that from late 1990 until July 1994, the Accused
conspired with others to work out a plan with the intent to exterminate the
civilian Tutsi population and to eliminate members of the opposition, by,
amongst others things, recourse to hatred and ethnic violence, the training
of and the distribution of weapons to militiamen as well as the preparation
of lists of people to be eliminated. The Indictment further alleges that
in executing this plan, the Accused and others, organized, ordered and participated
in the massacres perpetrated against the Tutsi population and moderate Hutu.
16. The Indictment alleges that from 7 April 1994, massacres of the Tutsi
population and murders of numerous political opponents were perpetrated throughout
the territory of Rwanda and that these crimes were carried out by militiamen,
military personnel, and gendarmes on the orders and directives or with the
knowledge of authorities, including the Accused.
17. The Indictment alleges that the Accused and others knew or had reason
to know that their subordinates had committed or were preparing to commit
crimes, and failed to prevent those crimes from being committed or to punish
the perpetrators thereof.
18. The Indictment alleges that the Accused was an influential member of
the MRND in Kigali-Rural. It is also stated that the Accused supervised killings
during the month of April 1994 in the area of Gikomero commune, Kigali-Rural
préfecture, where he had family ties. The Indictment further asserts
that the Accused personally led attacks of soldiers and Interahamwe against
Tutsi refugees in Kigali-Rural préfecture, notably on or about 12
April 1994, at the Parish Church and adjoining school in Gikomero, where
several thousand persons were killed. During the attack on the school in
Gikomero the militia also selected women from among the refugees, carried
them away and raped them before killing them.
19. The Indictment alleges that on several occasions the Accused personally
distributed firearms, grenades, and machetes to civilian militia in Kigali-Rural
for the purpose of “killing all the Tutsi and fighting the [RPF]”.
20. For his alleged involvement in the acts described in the Indictment,
the Accused is charged with conspiracy to commit genocide (Count 1); genocide
(Count 2) or, alternatively, complicity in genocide (Count 3); murder as
a crime against humanity (Count 4), extermination as a crime against humanity
(Count 5), rape as a crime against humanity (Count 6), and other inhumane
acts of crime against humanity (Count 7). The Accused is also charged with
the war crimes of serious violations of Common Article 3 and Additional Protocol
II: for outrages upon personal dignity (Count 8) and killing and causing
violence (Count 9). For all the Counts, the Accused is charged cumulatively
with all forms of personal responsibility pursuant to Article 6(1) and with
superior responsibility pursuant to Article 6(3) of the Statute.
21. On 20 August 2002, following the end of the case for the Prosecution,
the Trial Chamber partly granted a Defence motion, under Rule 98, for partial
acquittal, and entered a Judgment of Acquittal in respect of Count 1 of the
Indictment: conspiracy to commit genocide. The Chamber denied the Motion
to enter a Judgment of Acquittal with respect to Count 6: crimes against
humanity—rape.
3. Trial Phase
22. The Trial Chamber ordered protective measures for both Defence and Prosecution
Witnesses. These included the use of pseudonyms, the non-disclosure of the
identity of Witnesses, and the disclosure to the opposing party of identifying
information before 21 days of a Witness' testimony at trial. Following a
Defence Motion, the Trial Chamber requested the cooperation of certain States
and the United Nations High Commissioner for Refugees in order to facilitate
the execution and enforcement of the Chamber's order for protective measures
for Defence Witnesses.
23. On 22 March 2001, a Pre-Trial Conference was held, and the trial was
scheduled to start on 17 April 2001. The Prosecution filed its Pre-Trial
Brief on 30 March 2001.
24. On 17 April 2001, the trial began before Trial Chamber II, then composed
of Judge L. Kama, presiding, Judge W. H. Sekule and Judge M. Güney.
The Prosecution presented its opening statement, and the first Prosecution
Witness was heard. On 18 April 2001, the trial was suspended until 3 September
2001.
25. On 3 September 2001, following the death of Judge Kama and the assignment
of Judge M. Güney to the Appeals Chamber, the President’s Order pursuant
to Rule 15bis(C) dated 20 August 2001 was read out in court, inviting the
Trial Chamber to make a determination as to the rehearing or the continuation
of this part-heard case. The Defence requested a trial de novo, pursuant
to Rule15(E), and the Prosecution did not object. The Trial Chamber, composed
of Judge W. H. Sekule, presiding, Judge W. C. M. Maqutu and Judge Ramaroson,
granted the Defence request, and the trial re-started with a hearing of the
Parties’ opening statements and the testimonies of three Prosecution Witnesses.
This trial session was adjourned on 25 September 2001, ending the first session
of the Prosecution case. The Prosecution case was heard during two further
trial sessions, from 28 January 2002 until 19 February 2002, and from 6 May
2002 until 14 May 2002. The Prosecution closed its case after having called
28 Witnesses and introduced 53 exhibits.
26. A Pre-Defence Conference and a Status-Conference were held on 15 May
2002. The Defence filed its Pre-trial brief on 25 July 2002.
27. The Defence case was heard during three sessions: from 19 August 2002
until 12 September 2002, from 13 January 2003 until 30 April 2003 and from
5 May 2003 until 15 May 2003. A total of 36 Witnesses were called by the
Defence, including the Accused, who testified first, and 88 exhibits were
introduced. On 15 May 2003 the Trial Chamber adjourned the proceedings.
28. On 13 May 2003, the Trial Chamber denied a Motion for Leave to Call Rebuttal
Evidence filed by the Prosecution on 14 April 2003, pursuant to Rule 85(A)(ii)
of the Rules. On 15 May 2003, the Chamber issued a Scheduling Order for the
filing of the Closing Briefs and the Closing Arguments of the Parties.
29. On 22 May 2003, the Chamber granted a Defence motion and admitted into
evidence two written statement of a deceased Witness.
30. The Prosecution and the Defence submitted their Closing Briefs on 2 July
2003 and 13 August 2003, respectively. Closing Statements were heard on 27
and 28 August 2003, and thereafter Judge W. H. Sekule, the Presiding Judge,
declared the trial hearing closed, pursuant to Rule 87(A).
C. Evidentiary Matters
31. The Chamber will, in this Part of the Judgment, address general evidentiary
matters of concern that arose during the course of the trial, Witness protection
issues, and some general principles of evidence evaluation, including the
impact of trauma on the testimony of Witnesses, false testimony, the use
of prior Witness statements, and problems of interpretation from Kinyarwanda
into French and English.
32. The Chamber has considered the charges against Jean de Dieu Kamuhanda
on the basis of testimonies and exhibits introduced by the Parties to prove
or disprove allegations made in the Indictment.
1. General Principles of the Assessment of Evidence
33. The Chamber notes that, under Rule 89(A) of the Rules, it is not bound
by any national rules of evidence. The Chamber in this case has therefore
applied, in accordance with Rule 89(B), the rules of evidence, which in its
view, best favour a fair determination of the matters before it and which
are consonant with the spirit of the Statute and the general principles of
law, where such have not been expressly provided for in the Tribunal’s Rules
of Procedure and Evidence.
2. Credibility
34. The Chamber notes that many of the Witnesses who have testified before
it have seen and experienced atrocities. They, their relatives, or their
friends have, in many instances, been the victims of such atrocities. The
Chamber notes that recounting and revisiting such painful experiences may
affect the Witness’s ability to recount the relevant events fully or precisely
in a judicial context. The Chamber also notes that some of the Witnesses
who testified before it may have suffered, and may continue to suffer stress-related
disorders.
35. The Chamber recognises, in addition, the time that had elapsed between
the time of the events in question and the testimonies of the Witnesses.
36. In assessing the credibility of the Witnesses, the Chamber is mindful
of the considerations which motivated the following judicial pronouncements.
We begin with the observations of the Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia (“ICTY”) in the Kupreskic case
saying:
[…] It is certainly within the discretion of the Trial Chamber to evaluate
any inconsistencies, to consider whether the evidence taken as a whole is
reliable and credible and to accept or reject the “fundamental features”
of the evidence. The presence of inconsistencies in the evidence does not,
per se, require a reasonable Trial Chamber to reject it as being unreliable.
Similarly, factors such as the passage of time between the events and the
testimony of the Witness, the possible influence of third persons, discrepancies,
or the existence of stressful conditions at the time the events took place
do not automatically exclude the Trial Chamber from relying on the evidence.
However, the Trial Chamber should consider such factors as it assesses and
weighs the evidence.
37. In that pronouncement, the ICTY Appeals Chamber was reiterating its opinion
in its earlier judgment in the Delalic Case. There, it had said as follows:
As is clear from the above discussion, the other matters raised by Delic
as undermining the credibility of the Witnesses are not, in the view of the
Appeals Chamber, of such a character as would require a reasonable Trial
Chamber to reject their evidence. The Appeals Chamber is satisfied that on
the evidence before the Trial Chamber it was open to accept what it described
as the “fundamental features” of the testimony.
[…]
Delic also refers to certain inconsistencies in the victim’s testimony, which
he states illustrate that it was unreliable. The Appeals Chamber notes that
as an introduction to its consideration of the factual and legal findings,
the Trial Chamber specifically discussed the nature of the evidence before
it. It found that often the testimony of Witnesses who appear before it,
consists of a “recounting of horrific acts” and that often “recollection
and articulation of such traumatic events is likely to invoke strong psychological
and emotional reactions […]. This may impair the ability of such Witnesses
to express themselves clearly or present a full account of their experiences
in a judicial context”. In addition, it recognised the time which had lapsed
since the events in question took place and the “difficulties in recollecting
precise details several years after the fact, and the near impossibility
of being able to recount them in exactly the same detail and manner on every
occasion […].” The Trial Chamber further noted that inconsistency is a relevant
factor “in judging weight but need not be, of [itself], a basis to find the
whole of a Witness’ testimony unreliable”.
Accordingly, it acknowledged, as it was entitled to do, that the fact that
a Witness may forget or mix up small details is often as a result of trauma
suffered and does not necessarily impugn his or her evidence given in relation
to the central facts relating to the crime. With regard to these counts,
the Trial Chamber, after seeing the victim, hearing her testimony (and that
of the other Witnesses) and observing her under cross-examination chose to
accept her testimony as reliable. Clearly it did so bearing in mind its overall
evaluation of the nature of the testimony being heard. Although the Trial
Chamber made no reference in its findings to the alleged inconsistencies
in the victim’s testimony, which had been pointed out by Delic, it may nevertheless
be assumed that it regarded them as immaterial to determining the primary
question of Delic’s perpetration of the rapes. The Appeals Chamber can see
no reason to find that in doing so it erred.
The Trial Chamber is not obliged in its Judgment to recount and justify its
findings in relation to every submission made during trial. It was within
its discretion to evaluate the inconsistencies highlighted and to consider
whether the Witness, when the testimony is taken as a whole, was reliable
and whether the evidence was credible. Small inconsistencies cannot suffice
to render the whole testimony unreliable. Delic has failed to show that the
Trial Chamber erred in disregarding the alleged inconsistencies in its overall
evaluation of the evidence as being compelling and credible, and in accepting
the totality of the evidence as being sufficient to enter a finding of guilt
beyond a reasonable doubt on these grounds.
3. Corroboration
38. As a general principle, the Trial Chamber has weighed all the evidence
presented in this case and, accordingly, has attached—or declined to attach—probative
value to the testimony of each Witness and exhibit, according to its relevance
and credibility. The Trial Chamber recalls that it is not bound by any national
rules of evidence and, has been guided by the foregoing principles recalled
above , with a view to a fair determination of the issues before it. In particular,
the Trial Chamber notes the finding in the Tadic Appeals Judgment that corroboration
of evidence is not a customary rule of international law and as such should
not be ordinarily required by the International Tribunal.
39. The Chamber notes further the decision in the Aleksovski Appeal Judgment
that whether a Trial Chamber will rely on single Witness testimony as proof
of a material fact, will depend on various factors that have to be assessed
in the circumstances of each case. It may be that a Trial Chamber would require
the testimony of a Witness to be corroborated, but according to the established
practice of this Tribunal and the ICTY, that is clearly not a requirement.
40. In the Musema case, the Trial Chamber affirmed that it may rule on the
basis of a single testimony, if in its opinion the testimony is relevant
and credible. It further stated that:
(...) it is proper to infer that the ability of the Chamber to rule on the
basis of testimonies and other evidence is not bound by any rule of corroboration,
but rather on the Chamber's own assessment of the probative value of the
evidence before it.
The Chamber may freely assess the relevance and credibility of all evidence
presented to it. The Chamber notes that this freedom to assess evidence extends
even to those testimonies which are corroborated: the corroboration of testimonies,
even by many Witnesses, does not establish absolutely the credibility of
those testimonies.
41. The Appeals Chamber in the Musema case held that these statements correctly
reflect the position of the law regarding the trial Chamber's discretion
in assessing testimonies and evidence before it.
4. Hearsay Evidence
42. The Chamber observes that Rule 89(c) of the Rules provides that “a Chamber
may admit any relevant evidence which it deems to have probative value”.
The Chamber notes that this Rule makes provision for the admission of hearsay
evidence even when it cannot be examined at its source and when it is not
corroborated by direct evidence. The Chamber, however, notes that though
evidence may be admissible, the Chamber has discretion to determine the weight
afforded to this evidence. The Chamber makes its decision as to the weight
to be given to testimony based on tests of “relevance, probative value and
reliability.” Accordingly, the Chamber notes that evidence, which appears
to be “second-hand”, is not, in and of itself, inadmissible; rather it is
assessed, like all other evidence, on the basis of its credibility and its
relevance.
D. Witness Protection Issues
43. In analysing evidence received during closed sessions, the Chamber has
been mindful of the need to avoid unveiling identifying particulars of protected
Witnesses so as to prevent disclosure of their identities to the press or
the public. At the same time, the Chamber wishes to provide in the judgment
significant detail to assist in an understanding of its reasoning. In view
of these concerns, when referring to evidence received in closed sessions
in this Judgment, the Chamber has used language designed not to reveal protected
information yet specific enough to convey its reasoning.
PART II – THE DEFENCE CASE
A. Introduction
44. In an effort to challenge the case for the Prosecution, the Defence raised
several issues as described below.
45. The evidence of the Defence will be considered together with the Prosecution
evidence. The Chamber has, for each Prosecution allegation, considered in
full the evidence presented by both parties and has weighed such evidence
appropriately.
B. Vagueness of the Indictment
1. Allegations
46. The Defence requested the Chamber to rule the allegations concerning
the events at the Catholic Parish of Gishaka as vague; and, consequently,
to exclude or disregard the evidence presented in support of that aspect
of the Prosecution case.
47. The Defence submitted that only paragraphs 6.44, 6.45 and 6.46 of the
Indictment refer to the Accused’s alleged involvement in acts allegedly committed
in the commune of Gikomero.
48. The Defence submitted that in the above paragraphs of the Indictment,
the Prosecution vaguely refers to weapons that the Accused allegedly distributed
in his commune of Gikomero and to massacres which he allegedly led. Nowhere
in the Indictment did the Prosecution provide the particulars of the circumstances
in which these crimes were allegedly committed.
49. The Defence submitted that although it is alleged at paragraph 6.45
of the Indictment that the Accused personally led the attacks in the préfecture
of Kigali-Rural, this is insufficient to give the Accused notice of the allegations
relating specifically to the massacres at the Catholic Parish of Gishaka.
The Indictment said nothing about the massacres in the Catholic Parish of
Gishaka. Accordingly, the Defence argued that the Accused has not been properly
informed as to the nature and the reasons underlying the accusations brought
against him in that regard.
50. The Defence thus submitted that the Indictment, the pre-trial brief and
the evidence disclosed pursuant to Rule 66 do not refer to the massacres
in the Parish of Gishaka. It argued that it was only at the time of the Motion
to amend the Prosecution list of Witnesses that the Accused understood that
the Prosecution was also imputing to him responsibility for the massacres
at the Parish of Gishaka.
51. The Defence relied on the jurisprudence of this Tribunal as well as on
ICTY jurisprudence.
52. In response to this issue, the Prosecution, during its oral closing statement,
recalled that the Defence, raised a few preliminary matters on the vagueness
of the indictment to the effect that the crimes the Accused was alleged to
have committed in Gishaka were not properly before this court. In response,
the Prosecution argued that the indictment was not vague. The Prosecution
stated that the testimony of the crimes committed were properly before this
court and they were validly pleaded and led in evidence. The Prosecution
informed the Court that these were matters the Court was entitled to take
cognisance of and that the Court could find the defendant guilty on this
basis.
2. Discussion
53. The relevant paragraphs of the Indictment are paragraphs 6.44, 6.45
and 6.46
54. In the Prosecution Pre-Trial brief, Gishaka is mentioned once in the
Annex summarizing the statement of Prosecution Witness GAB.
55. The Prosecution Pre-Trial brief also mentioned Gicaca in the Annex summarizing
the statement of Prosecution Witness GEU.
56. In its opening statements (17 April 2001 and 3 September 2001) the Prosecution
did mention that a massacre took place at the Catholic Church in Gishaka
close to Gikomero, on the same day [12 April 1994] and that one Witness,
GET, whose statement had been available for a long time, would give evidence
about the mass graves that were found at Gishaka and the approximate dates
of the massacres.
57. Relating to this issue, the Chamber recalls its Decision dated 6 February
2002. The Chamber, in that decision, disposed of a Prosecution Motion to
amend its list of Witnesses in order to add three Witnesses who would testify
on the Catholic Parish of Gishaka. In the Decision, the Chamber considered
the Defence argument that allegations with regard to the Parish were vague
because they were neither mentioned in the Indictment against the Accused,
nor in the Pre-trial Brief. On this issue, the Chamber ruled thus:
“The Chamber is of the opinion that, although events at Gishaka Parish were
not directly referred to in the Indictment against the Accused, the said
Indictment states that the Accused is alleged to have “[s]upervised the killings
in the area [Kigali-Rural]” during the month of April 1994. The Chamber notes
that Gishaka Parish is in a Commune located in the Préfecture of Kigali-Rural
and that similar mention of the activities of the Accused can be found in
the Prosecutor’s Pre-Trial Brief. Additionally, the Prosecutor points out
that her opening statement sets out allegations with respect to the involvement
of the Accused in events that occurred in Gishaka Parish. It is also noted
that the Prosecutor filed exhibits identifying locations at the Gishaka Catholic
Parish.”
58. The Chamber further considered that it was necessary to give the Defence
sufficient time to prepare for the cross-examination of the said three Witnesses.
Hence, the Chamber directed that they be heard at a subsequent trial session.
3. Findings
59. The Chamber notes that it is alleged at para. 6.44 of the Indictment
that the Accused had family ties to Gikomero commune, Kigali-Rural préfecture,
and that during April 1994 he supervised the killings in the area. At paragraph
6.45 of the Indictment, it is alleged more specifically that the Accused
was responsible for the massacres at Gikomero Parish in Gikomero commune,
Kigali-Rural Préfecture. The Chamber finds that the precision made
in paragraph 6.45 of the Indictment does not preclude evidence tending to
substantiate the allegation made at paragraph 6.44 of the Indictment that
the Accused had supervised the killings in the area of Kigali-Rural préfecture
in April 1994. Thus, the Chamber finds that the Indictment is not vague and
that it sufficiently gave the Defence notice of the allegations relating
to Kigali-Rural Préfecture within which the Catholic Parish of Gishaka
is located.
60. Moreover, the Chamber recalls its Decision of 6 February 2002 mentioned
above whereby the Defence was given time to prepare its cross-examination
of the additional Witnesses who were to testify on the Catholic Parish of
Gishaka. In the circumstances, the Chamber finds that no prejudice would
have resulted to the Defence.
C. In and out of Court Identification of the Accused by the Prosecution.
1. Allegations
61. The Defence points out that the Prosecution had its Witnesses identify
the Accused by two methods: in and out of court. For the out of court identification
the Defence recalled that the Prosecution presented a picture to the Witnesses
from which they were supposed to identify the Accused. The Defence argued
that contrary to the established methods set up by the Tribunal for the identification
of Witnesses, the Prosecution used methods that ought to be entirely unacceptable
to this Tribunal. The Defence stated that the methods used by the Prosecution
significantly departed from customary methods of identification. The Defence
reminded the Court that in the picture that was used by the Prosecution in
the identification process, the Accused was the only man with a group of
females and also that the Accused had a red mark on his shirt which was meant
to make the identification even easier. The Defence recalled also that the
second picture used for identification was just an enlargement of the earlier
one, which then amounted to the fact that only one picture was indeed used
for the process of out-of-court identification by the Witnesses.
62. Secondly, as regards the in-court identification, the Defence recalled
that the Prosecutor asked several Witnesses to point out the Accused in the
Courtroom where the Accused was flanked on both sides by two uniformed guards,
while the rest of the people at the Defence side of the Courtroom were women.
This, in the opinion of the Defence, made the identification of the Accused
all the more improper.
2. Discussion and Conclusion
63. The Chamber notes that in Court the Witnesses were not asked to look
at a specific part of the Courtroom to identify the Accused. The Chamber
is mindful of the fact that the Witnesses were asked to look in the Courtroom
as a whole and see if they could identify the Accused. The Chamber notes
further that the process of the identification of the Accused in the Courtroom
does not stand in isolation: it is rather part of a process, the culmination
of which is the identification of the Accused in the Courtroom.
64. The Chamber has also noted the Defence submission on the issue of the
identification through the use of photographs.
65. All these issues have been considered in the assessment of the evidence
in the case. The Chamber has assessed the credibility of each Witness, bearing
in mind all the factors argued in favour and against each Witness.
D. The Defence Contention that the Citizens of Gikomero Were Surprised by
the Attacks and That the Assailants Came from Rubungo.
1. Allegations
66. The Defence, in their case, sought to show that the killers at Gikomero
on 12 April 1994, came from Rubungo and were not Interahamwe from the Gikomero
commune. The Defence recalled the evidence of its Witnesses that the assailants
came from Rubungo. The Defence stated further that assailants from Rubungo
forced residents of Rubungo village to flee to the Gikomero Parish where
they killed them. The Defence asserted that this supported their theory that
the Accused was not in any way connected to the massacre at Gikomero Parish.
The Defence recalled further that one Bucundura, a pastor from Rubungo, was
the first person to be killed when the Interahamwe arrived. The Defence stated
that this fact established their theory that the killers were from Rubungo
and not Gikomero as had been stated by the Prosecution Witnesses.
2. Discussion and Conclusion
67. The Chamber finds that there is no conclusive evidence that the attackers
came from Rubungo. The Chamber also notes the evidence of Witness GEC that
local Hutus joined those who had arrived in vehicles. The Chamber has considered
all the evidence tendered and finds that as far as the criminal responsibility
of the Accused is concerned the issue raised by the Defence is not material.
E. Defence Contention that Prosecution Witnesses Bore False Testimony against
the Accused and That the Charges against the Accused are Fabrication
1. Allegations
68. The Defence asserted that Prosecution Witnesses bore false testimony
against the Accused. The Defence Witnesses stated that any Witness who stated
that the Accused was in the Parish of Gikomero or Gishaka was lying.
69. The Defence noted that one of the characteristics of the post-genocide
period is the multiplication of false accusations, which are sparked by a
wish to settle accounts. The Defence presented a Witness who testified that
he was asked to falsely testify against the Accused.
70. The Defence attacked the credibility of most Prosecution Witnesses. The
Defence submitted that most of the Witnesses who claimed that they saw the
Accused at the Parishes of Gikomero and Gishaka did not know the Accused.
The Defence further submitted that some of these Witnesses could not identify
the Accused, even in the Courtroom. It was the theory of the Defence that
these Witnesses were just out to discredit the Accused, an innocent man,
and cause mischief.
2. Conclusion
71. The Chamber has noted this criticism levelled against Prosecution Witnesses. The Chamber does not, however, accept this sort of broad challenge, especially as it is not substantiated by the evidence. The Chamber has assessed the credibility of each Witness on the basis of the specific factors relating to each Witness’s testimony.
F. The Alleged Influence of the Accused.
1. Allegations
72. The Defence recalled the testimony of certain Prosecution Witnesses to
the effect that the Accused was such an influential person that he could
have supervised and directed the massacres committed in the commune of Gikomero
in April 1994. The Defence further recalled that the Prosecution argued that
the Accused’s influence was in the nature of holding a command position as
a hierarchical superior. The Defence maintains that the Prosecutor improperly
applied the command doctrine of liability of the hierarchical superior. The
Defence, on its part, maintains that the Accused was not an influential person
at the national, communal or local level.
2. Conclusion
73. A general review of the evidence shows that the Accused held a prominent
position in the country and this gave him certain influence in the Gikomero
community. However, the Chamber analysed the evidence adduced in the case
with the aim of determining any act or conduct of the Accused material to
his criminal responsibility. The Chamber did not merely come to conclusions
from a general assessment of his social, economic, or political status.
G. The Personality of the Accused was Incompatible with the Description of
the Person Presented by the Prosecutor.
1. Allegations
74. The Defence recalled the testimony of the Prosecution Witnesses who described
the Accused. The Defence asserted that the character of the person that was
described and presented by the Prosecution is entirely different from the
character and the person of the Accused. The Defence recalled the testimony
of the Prosecution that the Accused is a frenzied extremist and a notorious
anti-Tutsi who entered Government in order to exterminate all Tutsi. The
Defence stated that the Prosecution was unable to produce any document, speech,
or policy paper to that effect. The Defence maintained that the Accused was
not an extremist, as the Prosecution would have liked to prove but rather
a calm and loving family man.
2. Conclusion
75. As stated before under Sub-section F of this Part, on influence of the
Accused, the Chamber has assessed the totality of the evidence of the Witnesses
in relation to all the acts and conduct of the Accused, as part of the
process of assessing the Prosecution case.
H. Prosecution Allegation That the Accused Was an Advisor to the President.
1. Allegations
76. The Defence recalled the allegation of the Prosecution that the Accused
was an advisor to the President. The Defence asserted that the Accused was
never an advisor to the President.
2. Conclusion
77. The Chamber finds that no evidence was brought to substantiate the allegation
made by the Prosecution that the Accused was an advisor to the President
of Rwanda.
I. Defence Contention that the Accused Became a Member of the Interim Government
under Duress
1. Allegations
78. The Defence further submitted that the Accused became a member of the
Interim Government because his life and that of his family were threatened
and at stake, and, as such, the Accused had no choice but to accept the position
in the Interim Government. In these circumstances, submitted the Defence,
the Accused became a member of the Interim Government under duress. The Defence
therefore maintained that the Accused should not be held liable in any way
for the acts of the Interim Government as the Prosecution sought to do.
2. Conclusion
79. The Chamber has noted the submission of the Defence in respect of the
appointment of the Accused to the Interim Government. The Chamber further
notes that this appointment occurred in May after the events that are charged
in the Indictment with regard to Gikomero commune. The Chamber therefore
finds the evidence tendered relating to the appointment of the Accused to
the Interim Government irrelevant to the acts and conduct of the Accused
as regards events in the Gikomero commune.
80. Moreover, on the basis of the evidence heard at trial, the Chamber finds
no merit in the contention that the Accused was reluctant to be appointed
Minister.
J. Alibi
81. Following the start of the trial, the Defence advanced an alibi pursuant
to Rule 67 of the Rules of Procedure and Evidence. In his alibi, the Accused
asserted that at all times material to in the Indictment, and especially
from 7 to 17 April 1994, the Accused was not present during any of the massacres
that occurred.
1. Applicable Law
82. Pursuant to Rule 67(A)(ii) the Defence shall notify the Prosecution of
its intent to advance an alibi as early as reasonably practicable, and
in any event, prior to the commencement of the Trial. Although Rule 67(B)
provides that the failure to give such notice does not limit the right
of the Accused to rely on the alibi, the Chamber may take such failure
into account when weighing the credibility of the alibi.
2. The Burden of Proof Regarding the Alibi
83. As has been held by the Appeals Chamber in the Celibici Case, the submission
of an alibi by the Defence does not constitute a defence in its proper
sense. The relevant section of the judgment reads:
“It is a common misuse of the word to describe an alibi as a “Defence”. If
a defendant raises an alibi, he is merely denying that he was in a position
to commit the crime with which he is charged. That is not a Defence in its
true sense at all. By raising this issue, the defendant does no more [than]
require the Prosecution to eliminate the reasonable possibility that the
alibi is true.”
84. Therefore, as consistently held throughout the jurisprudence of the
Tribunal and as asserted by the Defence, when an alibi is submitted by the
Accused the burden of proof rests upon the Prosecution to prove its case
beyond a reasonable doubt in all aspects. Indeed, the Prosecution must prove
“that the accused was present and committed the crimes for which he is charged
and thereby discredit the alibi defence”. If the alibi is reasonably possibly
true, it will be successful.
85. Pursuant to Rule 67(A)(ii), the Defence is solely required at the pre-trial
phase—in addition to the notification of his intention to rely on the alibi—to
disclose to the Prosecution the evidence upon which the Defence intends to
rely to establish the alibi. Thus, during the trial the Defence bears no
onus of proof of the facts in order to avoid conviction. But, during the
trial, the Accused may adduce evidence, including evidence of alibi, in order
to raise reasonable doubt regarding the case for the Prosecution. It must
be stressed, however, that the failure of the Defence to submit credible
and reliable evidence of the Accused’s alibi must not be construed as an
indication of his guilt.
3. Notice of Alibi
86. The Defence Notice of Alibi filed on 28 December 2000 states as follows
That at all material times of the Indictment [sic] specifically related to
the events unfolding from 7 April to 17 April 1994, Mr Jean De Dieu Kamuhanda
remained at his home in Kigali without interruption, between 6 April and
18 April 1994. On 18 April he travelled to Gitarama, accompanied by his family
and several neighbours.
4. Defence Statement of Alibi
87. The Defence asserted that the Accused, in compliance with Article 67
of the Rules, notified the Prosecutor of his intent to raise an alibi in
support of his defence. The Defence asserted further that this notice was
served in December 2000 and March 2001, prior to the presentation of the
Prosecution case. The Defence stated further that the Accused provided
the names and addresses of Witnesses and the places he was at the relevant
times of the events.
88. The Defence submitted that by raising the alibi defence, the Accused
not only denies that he committed the crimes for which he is charged but
also asserts that, at the times that the alleged crimes were being committed,
he was not at the scenes of the crimes.
89. The Accused testified that he learned of the death of President Habyarimana
on the morning of 7 April 1994. He was at home in the company of his wife
and two of his children, Rosine and Fernand. His two other children—Irène
and René—were on vacation. Irène was in Nyabikenke at her grandmother’s
and René was at his aunt’s in Kimihurura, a neighbourhood of Kigali.
According to the Accused, he remained at home with his wife until 8 April
1994 when he went to pick up his son René, who at the time was four
years old. His wife had gone to the residence of Defence Witness ALR in order
to telephone her son René. She found him in a state of great anxiety.
Thereupon, the Accused decided to go and pick up his son as he could not
bear the thought of remaining far from him knowing he was in such a state
of anxiety.
90. According to the Accused, it took him two attempts to complete his mission
to pick up René. During the first attempt, in the early morning, he
was accompanied by one of Defence Witness ALS’ household staff, one Canisius,
and by one Mr Karemera. The second time the Accused went out, at the beginning
of the afternoon, he was accompanied by a neighbour known by the nickname
“Juif”. The Accused testified that upon his return the family had already
moved to the house of Defence Witness ALS, who lived next door, because it
afforded better protection against flying bullets. The Accused further testified
that during the evening of 8 April 1994, the family of Defence Witness ALR
joined them at ALS’s house. Together they remained there until their departure
on 17 April 1994.
91. The Accused testified that he did not leave his neighbourhood from 7
April 1994 until 8 April 1994 when he went to look for his son René:
and that during the entire period of 7 April 1994 to 17 April 1994, he was
in his neighbourhood with his family and neighbours and that they did not
leave each others’ sides. The Defence averred that during that period the
Accused and his family shared meals in common in the home of ALS, and that
the women and children slept inside the house while the men slept outside.
The Accused stated that on 17 April 1994, the situation in their Kigali neighbourhood
of Kacyiru had deteriorated, forcing the Accused and his family to move several
metres from the residence where they had spent the night.
92. On the morning of 18 April 1994, stated the Accused, he visited the Hôtel
des Diplomates, which was located near the military camp in Kigali city,
to try and contact his friend General Gatsinzi, as the situation in the neighbourhood
had deteriorated. The Accused testified further that General Gatsinzi provided
them with a bus and that he and his family, ALS and her family and ALA and
other neighbours got onto the bus and travelled to Gitarama from there. The
Accused testified that they arrived at about 8:00pm on the night of 18 April
1994 and spent the night in the stadium. The following morning, he met Defence
Witness ALB, who agreed to accompany him to Nyabikenke where his in-laws
resided. The Accused returned at the stadium on the same day, still accompanied
by ALB. After ensuring that ALS had departed for Butare, and ALR had left
for her parents’ in Gitarama, the Accused returned to his own family.
5. Evidence on Alibi
a. Evidence of the Accused
93. The Accused, Defence Witnesses ALS, ALR, ALB, ALM and ALF, all testified
regarding the whereabouts of the Accused between 7 April and 17 April 1994.
o 6 April 1994
94. The Accused testified that on 6 April 1994, he went to work at 8:00am and at around 8:30 or 9:00am he went to the district of Zaza with a colleague called Jean D. Ndayisaba. The Witness testified that the reason for this trip was to continue with the preparations for a mission to France planned to start on 9 April 1994.
o 7 April 1994
95. The Accused testified that he was at home in Kigali with his wife and two children on the morning of 7 April 1994 when at around 6:00am his night watchman informed him of the death of the President. The Accused testified that he did not go anywhere that day and remained at home the rest of that day.
o 8 April 1994
96. The Accused testified that at around 10:00am on the morning of 8 April 1994, he went to look for his son René who was staying with his aunt at Kimihurura, one of the districts of Kigali-Kacyiru commune, about two kilometres from the Accused’s house. The Accused stated that he was accompanied by two people, Canisius, who was a member of Defence Witness ALS’ household staff and one Mr. Karemera who is a relative of the Accused’s wife. The Accused stated that on the first attempt to go to Kimihurura, they were unable to do so as there was a roadblock which had been set up and the people manning the roadblock began to shoot at them. The Accused stated that later that afternoon he went out again to get his son from Kimihurura and that he was successful this time. On that occasion, stated the Accused, he was accompanied by a neighbour more commonly known by his nickname “Juif”. The Accused testified that on 8 April 1994, he moved his family from his house to the house of his neighbour Defence Witness ALS because they all felt that it was safer there and also because they wanted to keep ALS company as her husband was not in the country. The Accused does not specify in his testimony what happened on the night of 8 April 1994. The Accused stated that the family of ALR joined them at ALS’s residence either on the afternoon of 8 April 1994 or on the night of the next day, but he was unsure of the exact date.
o 9 to 16 April 1994
97. The Accused stated that after going to pick up his son from Kimihurura on 8 April 1994, he neither left the house of Defence Witness ALS where he was taking refuge with his family nor did he leave ALS’s residence until 17 April 1994, when he fled to Gitarama with his family. The Accused stated that they all ate together and the men slept outside to protect the families. The Accused stated further that the men who were in the house stayed together 24 hours a day. The Accused testified that during that period he saw his wife on short periods in the morning for tea and in the evening for dinner.
o 17 April 1994
98. The Accused testified that on the evening of 17 April 1994, due to the escalating insecurity, at around 6:00pm, he and his family, together with the families of ALS and ALR left the residence of ALS and spent the night at a military post located some 500 metres from ALS’s house.
o 18 April 1994
99. The Accused testified that on the morning of 18 April 1994, he went
to the Hôtel des Diplomates which is located in the centre of Kigali
where he contacted his friend General Gatsinzi, a ranking soldier from the
préfecture of Kigali and Chief of staff of the Rwandan Army in April
1994, by telephone from the hotel reception. The Accused testified that two
jeeps were given to them by General Gatsinzi and the various families got
into the cars and they were dropped off at a military camp in Kigali. The
Accused testified that he arrived at the military camp at around 2:00 or
3:00 o’clock in the afternoon. The Accused stated that from there they left
for Gitarama and arrived there at between 8:00 and 8.30pm on the night of
18 April 1994.
b. Evidence of Defence Witnesses
100. Defence Witness ALS testified that she was a neighbour of the Accused
in Kacyiru in Kigali in April 1994 and that they shared a wall between their
houses which were less than a metre apart. Defence Witness ALS testified
that her house was situated in such a way that it was protected from the
gunfire so the Accused and his family decided to move in with her.
101. She testified that she saw the Accused on the morning of 7 April 1994,
when he came to her house to discuss the shooting down of the President’s
plane. Defence Witness ALS stated that the Accused left Kacyiru only on two
occasions during the period of 7 April 1994 to 18 April 1994. She testified
that the Accused left her house on 8 April 1994 and went to Kimihurura (which
is about 1.5 kilometres from Kacyiru) to pick up his son René who
had gone to his aunt who lived in that area. Defence Witness ALS stated further
that the Accused went on foot and that he was accompanied by ALS’s domestic
servant. She stated that the Accused made two trips to Kimihurura that day
before he was able to get his son.
102. Defence Witness ALS testified that she saw the Accused everyday during
this period because he was living in her house. Defence Witness ALS stated
that she could not specify the number of times she saw him during the day
because they were always together. She stated that she never lost sight of
him for longer than a two hour period. She testified that they shared meals
together and that when he was not accompanied by the women, he was resting
in the house, walking in an enclosed area or in the company of the other
men in the house. Defence Witness ALS stated that the Accused could not have
left the quarters without her knowledge because she was always with the wife
and the children of the Accused, and that the Accused could not have left
Kacyiru without informing either his wife or his children.
103. Defence Witness ALS testified that the Accused was absent a second time
on 18 April 1994, when he went to seek the assistance of his friend General
Gatsinzi at the Hôtel des Diplomates as the security situation had
worsened.
104. Defence Witness ALR testified that in April 1994 he lived in the Kacyiru
neighbourhood of Kigali city, across from the Accused’s residence. Defence
Witness ALR testified further that he saw the Accused on the morning of 7
April 1994 when most of the residents in the Kacyiru neighbourhood came out
of their houses and met by the roadside to talk about the shooting down of
the President’s plane. He testified further that he saw the Accused again
later that day when he met with him in the afternoon to talk about what was
happening in the country. He testified that on 8 April 1994, he moved to
the residence of ALS for security reasons and the Accused was there as well.
Defence Witness ALR testified that between 7 April 1994 and 18 April 1994,
the Accused only left the house on two occasions. The first time was on 8
April 1994, when the Accused went to pick up his son René and the
second time was on 18 April 1994, when the Accused went to seek assistance
from his friend Gatsinzi.
105. Witness ALR stated that during the period of 8 April 1994 to 18 April
1994, he saw the Accused everyday. He stated that they were together every
night. This was because from 8 April 1994, the men who were in ALS’s residence,
which included the Accused, “Juif”, Revocate, ALA, Telesphore Jean-Baptiste,
ALB and the Witness, carried out night patrols in their quarters and they
were always in a group.
106. Defence Witness ALR further testified that after these night patrols,
he always had tea with the Accused in ALS’s residence. He stated that they
all had their meals together and were at each other’s side during the day.
107. Defence Witness ALR stated that during the period from 8 April 1994
to 18 April 1994, the Accused left the residence of ALS twice. The first
time was on 8 April 1994, when the Accused went to fetch his son René,
and the second time was on the morning of 18 April 1994, when the Accused
went to see his friend General Gatsinzi.
108. Defence Witness ALR testified that on the evening of 17 April 1994,
the three families of ALR, ALS and Kamuhanda, left ALS’s house and sought
refuge in a shelter designated by military personnel which was not far from
their location.
109. In Cross Examination, the Prosecution pointed out to the Witness that,
contrary to his testimony in court asserting that the Accused had left Kacyiru
on 18 April 1994, he had, in a prior statement to the Investigators from
the Office of the Prosecutor, asserted that the Accused left the Kacyiru
neighbourhood on 12 April 1994. The Prosecution also pointed out that Witness
ALR had omitted to mention to the investigators that his family and that
of the Accused had left Kacyiru with the family of Witness ALS.
110. The Witness explained that he had made a mistake during his Witness
statement. The Witness testified that he realised his mistake when he spoke
to his wife later that evening after speaking to the investigators. The Witness
stated that it was during the conversation that his wife reminded him that
the correct date of their families’ departure from Kacyiru was 18 April 1994
and not 12 April 1994. The Witness testified further that he did not make
any attempt to inform the investigators of his mistake. Witness ALR testified
that he forgot to mention that the family of Witness ALS travelled with the
Kamuhanda family from Kacyiru.
111. Defence Witness ALB testified that he was one of the neighbours of the
Accused. He stated further that he had known the Accused since 1975 when
they were both students. Defence Witness ALB stated that his family and that
of the Accused had, for security reasons, moved to stay in the house of Witness
ALS on 8 April 1994.
112. He testified that during this period, he saw the Accused several times
in a day. On 7 April 1994, Witness ALB stated that he was with the Accused
and they discussed the security situation in Kigali. On 8 April 1994, Defence
Witness ALB testified that the Accused went out to find his son René,
he stated that the Accused came back at 12:00 noon without his son and went
out again and came back at around 3:00pm in the afternoon, this time with
his son. Defence Witness ALB testified further that on the night of 8 April
1994, he began security patrols accompanied by the Accused and Defence Witnesses
ALR and ALA. He testified further that he was with the Accused from 8 April
1994 to 14 April 1994.
113. Defence Witness ALB stated that he, the Accused and the others were
together every night, throughout the night, until approximately 6:00am the
next morning. Defence Witness ALB stated further that he saw the Accused
during the day from approximately 10:00am till noon each day when they met
and carried out patrol of their quarters. He testified further that they
had lunch at noon each day and rested after that until about 2:00pm; and
then met again after dinner which was between 6:00 and 7.30pm each day. Defence
Witness ALB testified that he saw the Accused everyday between 8 April 1994
and 14 April 1994 and that there that the Accused could not have left the
quarters within that period of time.
114. Defence Witness Ingabire Theopitse Kamuhanda (ALF) is the wife of the
Accused. She testified that the Accused could not have travelled to Gikomero
between 6 and 18 April 1994; because, first, they did not leave each other’s
side during the said period and, secondly, access to the Gikomero commune
was impossible.
115. Mrs Kamuhanda testified that on 8 April 1994, the Accused went to Kimihurura
to look for their son René, who was staying with the Witness’ sister.
The Witness stated that the Accused twice attempted to go for his son, once
in the morning and later on in the afternoon, before he was able to get him
from Kimihurura. She testified that on both occasions, he went on foot and
was accompanied the first time by a gentleman known as Innocent Karemera
and the second time by someone known as “Juif”. The Witness stated that from
8 April 1994 to 17 April 1994, a routine was set up and followed by the men
who were in the residence of ALS and the Accused was a part of it. She testified
that the men met from 4:00pm to 6:00pm each afternoon. At 6:00pm, they would
all go and spend the night outside returning in the morning towards 6:00am.
The men, the Accused included, would have breakfast and then rest till 10:00am.
Between 10:00am and 12:00 noon or 1:00pm, they would meet again. At 1:00pm,
they would have lunch and thereafter rest. They would meet again at 4:00pm
and the cycle would begin again. The Witness testified that this pattern
was followed as closely as possible from 8 April 1994 to 17 April 1994, although
there were some days when the shelling and bombardment were so intense that
the men, including the Accused, stayed inside the house and did not venture
outside. Thus when her husband was not with the family, he was with the other
men, conducting patrols in the neighbourhood within calling distance.
116. Mrs Kamuhanda testified further that due to the intensive fighting in
Kacyiru, a decision was made on 17 April 1994 to leave the neighbourhood.
She testified that all the families present in the house of ALS, did not
spend the night of 17 April in ALS’s residence but rather spent the night
outside at a house which was guarded by two soldiers. She testified that
on the morning of 18 April 1994, the Accused left ALS’s house with Defence
Witness ALR and sought out his friend General Gatsinzi who provided them
with a Jeep that took them ( the families of the Accused, ALR and ALS) all
to Camp Kigali. She testified that at Camp Kigali, they got on a bus which
took them to Gitarama.
117. Defence Witness ALM testified that he lived in Kacyiru south in 1994,
which is about 1.5 kilometres from the Accused’s neighbourhood. He testified
that he saw the Accused twice during the period of 8 April 1994 to 17 April
1994. He testified that he saw the Accused around 10 April 1994, when he
went to the Accused’s neighbourhood. He stated further that the Accused was
standing close to his house with Witness ALR and some other people who the
Witness did not know. Witness ALM stated that it was around 2:00pm in the
afternoon and that he spoke to the Accused for about twenty minutes. Witness
ALM testified that he saw the Accused again around 13 or 14 April 1994 before
he left Kacyiru. He testified that he saw the Accused at practically the
same place he had seen him earlier on 10 April 1994. On the road in front
of his house with the same people that he was with on 10 April 1994. Witness
ALM stated that he talked with the Accused and those he was with for a few
minutes. He asked them if there was a general migration of people to their
neighbourhood, as he saw happening in his, due to increased fighting in areas
beyond Kacyiru. He testified that after the Accused and his group replied
him in the negative, he promptly left and went back to his own quarters.
6. Prosecution Allegations on Alibi
118. The Prosecution in their case contended that the Defence alibi was
contrived after the Accused knew the nature of the case against him. The
Prosecution maintained that the Accused went out of his way to procure Witnesses
to try and bear out his contrived alibi. The Prosecution maintained that
the evidence they presented during their case-in-chief, did not place the
Accused at his residence at all relevant times. The Prosecution maintained
that the Accused had ample opportunity to travel to Gikomero to commit all
the crimes alleged against him.
119. The Prosecution stated that the testimony of the Defence Witnesses lacked
credibility and that the Chamber should not rely on them. The Prosecution
stated further that the Defence Witnesses should not be believed as every
alibi Witness was a friend, a colleague or a Hutu who shared his political
leanings. The Prosecution maintained that all the Defence Witnesses were
biased and therefore their testimonies ought to be disregarded by the Chamber.
The Prosecution stated further that the testimonies of the Defence Witnesses
should not be given credence as they contradicted each other and these testimonies
were simply attempting to “fit around the Accused’s contrived story.”
120. The Prosecution maintained that the alibi theory being propounded by
the Accused did not exclude the possibility of the Accused travelling back
and forth between Kacyiru and Gikomero.
121. The Prosecution in attacking the alibi of the Accused enumerated the
various inconsistencies in the testimonies of the various Defence Witnesses.
They include the following.
a. The Accused’s Attempts to Retrieve His Son.
122. The Prosecution recalled that during his testimony, the Accused stated
that on his first attempt to retrieve his son, he was accompanied by Canisius
(ALS’s domestic employee) and Karemera. The Prosecution recalled further
that during his testimony, the Accused referred to the companions as houseboys.
The Prosecution however noted that Karemera is also referred to as a family
friend or relative, later in the testimony.
123. The Prosecution reminded the Court that the testimony of Defence Witness
ALS is different from that of the Accused. She testified that the Accused
was accompanied by Canisius on both attempts to retrieve his son.
124. The Prosecution recalled that during the interview of Witness ALR on
12 March 1999, he stated that to his knowledge, the Accused went to Kimihurura
somewhere between 9 and 10 April 1994.
125. The Prosecution recalled the testimony of Defence Witness ALB, that
on the first attempt to retrieve his son, the Accused was accompanied by
a member of the family of the Accused’s wife.
b. Reasons Why the Accused Returned after the First Attempt.
126. The Prosecution reminded the Court that the Accused stated in his testimony
that on his first attempt to get his son, he was unable to make it as he
was shot at by men guarding a roadblock who were not wearing uniforms.
127. The Prosecution recalled further that during the testimony of Witness
ALS, she made no mention of any shooting at the Accused. Rather she testified
that at the Accused’s first attempt to fetch his son, he was met by a group
of soldiers who told him to go back.
128. The Prosecution recalled the testimony of Witness ALB who stated that
he was told that on the first attempt by the Accused to retrieve his son,
he witnessed a shooting which is why the Accused returned.
c. Accused’s Second Attempt to Retrieve Son
129. The Prosecution recalled the testimony of the Accused that on his second
attempt to retrieve his son, he was accompanied by Nizeyimana “Juif”.
130. The Prosecution reminded the Court of the testimony of Witness ALS that
the Accused was accompanied by Canisius a houseboy on his second attempt
to retrieve his son.
131. The testimony of Witness ALB was noted by the Prosecution that on his
second attempt to retrieve his son, the Accused was accompanied by Juif.
132. The Prosecution referred the Chamber to the differences between the
testimonies of the Witnesses regarding those who accompanied the Accused
when he went to look for his son.
d. Discussion to Move to ALS’s House
133. The Prosecution recalled that during the testimony of the Accused,
he stated that there was no discussion on whether or not to move to ALS’s
house.
134. The Prosecution also recalled the testimony of Witness ALS who stated
that she raised and discussed with the Accused, the matter of moving to her
house.
135. The testimony of Defence Witness ALB on this matter was that he spoke
of moving to ALS’s house with the Accused and they decided to move.
e. Decision to Move to ALS’s House
136. The Prosecution recalled the testimony of the Accused that the parties
present for the decision to move were Defence Witness ALS, the wife of the
Accused and the Accused himself. The Accused claimed that no one else was
present when the decision was made.
137. The Prosecution reminded the Court of the testimony of Defence Witness
ALS who stated that Defence Witness ALR was present when the decision to
move to ALS’s house was made.
f. Parties Living at ALS’ house; Alibi and Notice of Alibi
138. The Prosecution recalled that in the original notice of alibi dated
10 April 2001, the Defence stated that Defence Witness ALB was resident in
ALS’s house during the period from 8 April 1994 to 18 April 1994. The Prosecution
reminds the Court that when the Defence tendered the Revised Notice of Alibi,
the claim that Defence Witness ALB lived in ALS’s house during that period
had been struck out. The Defence now stated that ALB was not living in the
house of ALS during the period of 8 April 1994 to 18 April 1994.
139. The Prosecution recalled the testimony of Defence Witness ALB. The Prosecution
notes that during the interview at his home and during his testimony in court,
Defence Witness ALB stated that he did not live in other people’s homes during
the period following 7 April 1994. He stated that he slept in his own house
during the period from 7 April 1994.
140. The Prosecution noted the testimony of Defence Witness AG who is the
mother-in-law of the Accused. The Prosecution noted that in her Witness statement
on 31 July 2002, the Witness AG stated that the wife of the Accused never
told her that she spent a few nights in another house in Kigali.
141. The Prosecution reminded the Court that during her testimony in court,
however, the Defence Witness AG recalled suddenly that the family of the
Accused and other neighbours had assembled in the house of one of the neighbours.
g. Organisation of Patrols
142. The Prosecution recalled the testimony of the Accused that they spent
the night of 7 April 1994 outside. He later stated that he did not go outside
on the night of 7 April 1994 but rather stayed inside the house. The Prosecution
recalled further the testimony of the Accused that during the day he slept
outside with the group with whom he patrolled the area.
143. The Prosecution recalled the testimony of Defence Witness ALS that the
men, including the Accused, returned at dawn each day and slept in the sitting
room and in the corridor.
144. The Prosecution recalled the Witness statement of Defence Witness ALB
given to the Office of the Prosecutor on 5 January 1997. The Prosecution
recalled further that he stated that he stayed in Kigali for a week with
his family, after which he left the neighbourhood. The Prosecution noted
that he did not tell the investigators that he participated in neighbourhood
patrols. The Prosecution noted however that during his examination-in-chief,
Witness ALB testified that he and the Accused had been involved in night
patrols which was contradictory to his earlier statement given to the Office
of the Prosecutor on 5 January 1997.
h. Night Patrol Systems
145. The Prosecution recalled that the Accused stated that there was no
roster or system concerning protection of the house. The Prosecution noted
that the Accused later testified that there was a system.
146. The Prosecution recalled also the testimony of Witness ALR that the
men were involved in what was traditionally known as night patrols and that
the night patrols were organised in such a manner.
i. Trajectory of Bullets
147. The Prosecution recalled that the Accused testified that his house
acted as a shelter for the bullets that might have hit ALS’s residence.
148. The Prosecution recalled also the testimony of Defence Witness ALS that
the bullets came from the right side of the house and flew over the house
of Witness ALS.
149. The contradicting testimony of Defence Witness ALR that the bullets
came from the north has been noted by the Prosecution.
j. Date the Accused Left for Gitarama
150. The Prosecution recalled that the Accused stated that he left on 18
April 1994 with his family to Gitarama. The Prosecution reminded the Court
that the Accused stated that this was done with the help of ALS and ALR’s
family. The Prosecution recalled further that the Accused stated that he
went with ALR’s vehicle and a driver.
151. The Prosecution recalled the testimony of ALS that they left for Gitarama
on 18 April 1994.
152. The Prosecution drew the attention of the Chamber to the contradictory
evidence of Witness ALR. The Prosecution recalled that during his Witness
statement given to investigators from the Office of the Prosecutor on 12
March 1999, Defence Witness ALR stated that the Accused and his family left
Kacyiru on 12 April 1994. The Prosecution recalled that the Witness when
testifying in court at a later date stated that the Accused left Kacyiru
on 18 April 1994. The Prosecution noted that a second inconsistency was the
fact that Witness ALR only mentioned the departure of his family and that
of the Accused. The Prosecution noted that Defence Witness ALR did not make
any mention of the departure of Defence Witness ALS and her family.
k. Bus Trip to Gitarama
153. The Prosecution recalled that the Accused testified that on the bus
trip to Gitarama, he was sitting next to Enzi Muleka’s wife and that he did
not get up at any time during the trip.
154. The Prosecution reminded the Court of the contradicting testimony of
Defence Witness ALS that on the bus trip to Gitarama, the men remained standing
and the Prosecution also recalled her testimony that the Accused stood in
front of her during the journey.
l. Showing of Identity Cards.
155. The Prosecution recalled the testimony of the Accused that on the bus
trip to Gitarama, the group had to show their identity cards to men who were
not in uniform and who were not armed. The Prosecution further recalled that
the Accused stated that the bus had no military escort.
156. The Prosecution reminded the Court of the contrasting testimony of Defence
Witness ALS that on the journey to Gitarama, the group was not required to
show their identity cards and further more that there was a military officer
on the bus with them.
m. Gitarama Stadium
157. The Prosecution recalled the testimony of the Accused that he spent
two nights at the Gitarama stadium with Defence Witnesses ALS and ALR.
158. The Prosecution reminded the Court of the contrasting testimony of Defence
Witness ALS that she spent only one night at the Gitarama stadium after which
she left.
159. The Prosecution noted the testimony of the wife of the Accused that
the Accused spent at least two nights at the stadium in Gitarama.
160. The Prosecution also recalled the testimony of Defence Witness AG, the
mother-in-law of the Accused, that the family of the Accused spent a night
at Gitarama stadium.
n. Presence of Interahamwe in the Kacyiru Neighborhoods.
161. The Prosecution recalled that the Accused initially stated that there
were no Interahamwe in his neighbourhood. He later changed his testimony
by stating that the Interahamwe were everywhere but he did not see them during
that period.
162. The Prosecution reminded the Court of the testimony of Defence Witness
ALS that there was a small wood in the area of Kacyiru where the Interahamwe
used to meet.
o. Relationship Between the Accused and ALB
163. In discussing the relationship between Witness ALB and the Accused
the Prosecution noted the testimony of the Accused that he knew Defence Witness
ALB since 1974 but they were not friends. The Prosecution also noted the
testimony of Witness ALB who stated that the Accused was his neighbour but
there was no special relationship between them. The Prosecution noted the
apparent contradiction by the wife of the Accused who testified that the
Defence Witness ALB was a long time friend of the Accused. The Prosecution
was of the view that the Accused and Witness ALB sought to hide their friendship
so that it will not seem as if the Defence Witness ALB’s testimony was biased
in favour of the Accused.
7. Findings
a. Discussion
164. The Chamber notes that there is no issue raised by the Prosecution
regarding the alibi notice in terms of its delivery, timeliness or content.
165. The Chamber has made a finding on the Alibi of the Accused after a careful
consideration of the testimony of the various Prosecution Witnesses who testified
that they saw the Accused in Gikomero commune in April 1994.
166. The Chamber has carefully considered the alibi of the Accused and the
Defence Witnesses and finds as follows :
167. The Chamber finds that the Accused may have been in the Kacyiru area
at some time during the period of 7 April 1994 to 18 April 1994. The Chamber
finds, however, that this did not preclude him from travelling to the Gikomero
commune at times during the same period.
168. The Chamber has weighed the testimony of the different Defence Witnesses
and finds that their testimony as to what exactly took place at Defence Witness
ALS’s house has significant contradictions.
169. The Chamber particularly notes the testimony of Witness ALS. She testified
that the Accused never left her house except on 8 April 1994 when the Accused
attempted twice to retrieve his son René from Kimihurura, succeeding
only on the second attempt. She testified that she saw the Accused practically
24 hours a day and that the Accused never left the house again until 18 April
1994. She testified that it was impossible for the Accused to have left the
house without her knowledge, considering especially that she was always in
the company of the Accused’s wife.
170. Concurring with ALS, Mrs Kamuhanda also testified that she was always
in the company of the Accused, never taking her eyes off him.
171. Clearly, there is a potential for bias in the evidence of ALS and Mrs
Kamuhanda. The one Witness is the wife and the other a family friend and
neighbour with whom the Kamuhanda family may well have gone through a difficult
time together. Although a potential for bias tends to taint the testimony
of a Witness, since it is harder to show that such evidence is independent
of all motives of interest, this will not always be the case. There may indeed
be instances when the testimony of a Witness with a basis for bias may come
with evident indicia of reliability which will assist the search for the
truth. That said, it needs also be said that the evidence of a Witness from
whom bias might be expected is not helped by material contradictions. And
such is the case with the testimonies of ALS and Mrs Kamuhanda. The Chamber
finds that it is the Accused himself who contradicts the testimony of Witness
ALS and his wife, when he testified that he did not see his wife much during
the period of 7 April 1994 to 17 April 1994. The Chamber notes that the Accused
testified that he saw his wife twice or sometimes three times during the
day. The Chamber recalls that the Accused testified that he saw his wife
in the mornings for tea, in the afternoon for lunch and sometimes he saw
her for dinner. It thus becomes difficult to rely on the evidence of ALS
and Mrs Kamuhanda when they testified that the Accused never left Kacyiru
between 7 April 1994 and 17 April 1994 because they were with him all the
time and he never left their side so as to be in Gikomero on 12 April 1994
and commit the crimes alleged.
172. The Chamber has also noted the evidence of Defence Witness ALR. During
his cross-examination, it was pointed out that he had no independent recollection
of the dates involved in the alibi. Specifically, he admitted that he was
mistaken when he told the investigators of the ICTR Prosecutor’s Office that
the Accused left Kacyiru on 12 April 1994; and that it was his wife that
reminded him that it was on 18 April 1994 that they all left Kacyiru, including
the Accused and his own family. In view of this, the Chamber feels unsafe
relying on this Witness as regards the other dates to which he testified
in relation to alibi.
173. The Chamber has considered the testimonies of Witnesses ALR and ALB
and finds that there are some contradictions in their testimonies. The Chamber
considers that if these Witnesses were together as they claimed to be, 24
hours a day, seven days a week, then it is most inconsistent that they should
have differing accounts of what happened. The Chamber has also noted that
the Accused in his testimony does not really go into detail as to what the
men who were in ALS’s house did during that period. The Chamber notes that
the Accused just testified that they were together 24 hours a day and that
he does not really state what the exact routine was during that 24 hour period.
174. The Chamber finds that the evidence of Witness ALB does not exonerate
the Accused from being present at Gikomero, in the circumstances that he
was sighted there. The Prosecution evidence, upon which the Chamber relies,
does not claim that the Accused was in Gikomero for any extended period.
Prosecution Witness GEK, for instance, testified that she witnessed a meeting
during which the Accused distributed weapons on between 6 to 10 April 1994.
That meeting lasted 20 to 30 minutes. For his part, Prosecution Witness GAF
testified that the Accused was at the Gikomero Parish for one or two minutes.
That being the case, the time-lines described by Defence Witness ALB cannot
foreclose the possibility described by these Prosecution Witnesses who testified
that the Accused was seen in Gikomero on or about 12 April 1994.
175. Finally, the Chamber also notes the evidence of Defence Witness ALM.
Notably, he testified that he saw the Accused twice during the period from
8 April 1994 to 17 April 1994. Surely, these two instances could not afford
an alibi which would exclude the possibility of the Accused going to Gikomero.
The Chamber attaches no weight to the testimony of Witness ALM.
b. Conclusion
176. The Chamber has weighed all the different testimonies that have been
adduced and comes to the following conclusion as to the alibi of the Accused.
In coming to its conclusion about the alibi of the Accused, the Chamber noted
in particular the testimonies of the different Witnesses as to the patrols
that took place in the quarter from 7 April 1994 to 17 April 1994. The Chamber
noted the testimonies of these Witnesses that these patrols were mounted
primarily to protect them and their families from looters. The Chamber has
also noted from the testimonies that these patrols were very intensive and
around the clock. The Chamber has carefully analysed these testimonies and
finds it incredible that a patrol as intensive as this would be mounted just
to protect the Witnesses and their families from looters. The Chamber finds
that in an attempt to provide an alibi for the Accused, the Witnesses ended
up relating stories that appeared designed for a purpose and therefore not
credible. The Chamber finds that the Accused may have been at the house of
Defence Witness ALS at times during 7 to 18 April 1994. The Chamber finds,
however, that the Accused was able to travel to and from Gikomero commune
between 6 and 17 April 1994. The Chamber refers to its earlier findings that
it was not impossible for the Accused to move around from 6 April 1994 to
17 April 1994. The Chamber therefore finds that the alibi of the Accused
from 6 April 1994 to 17 April 1994 is not credible.
K. Impossibility of Travel from Kigali to Gikomero in April 1994
1. Allegations
177. The Defence asserted that it was physically impossible for the Accused
to participate in the acts or be at the places alleged in the Indictment
during the period 6 April 1994—13 April 1994.
178. In connection with the Prosecution’s allegations about the massacre
at the Gikomero Parish, the Defence submitted that the Accused did not travel
to Gikomero after 6 April 1994, and could not have travelled there, as the
principal travel routes leading from Kacyiru, Kigali where he alleged to
have been at that time to Gikomero were not passable due to the fighting.
The Defence stated further that it was impossible for civilians to move on
the three roads leading out of Kigali to Gikomero due to the combat situation
and the position of the armies at that time. The three routes that led to
Gikomero from Kacyiru, Kigali at that time were the Kacyiru—Kimihurura—Remera—Gikomero
route, the Kacyiru—Kimihurura—Remera—Kanombe—Gikomero, and the Kacyiru—Muhima—Gatsata
route in the direction of Byumba.
179. The Prosecution did not call any evidence specifically rebutting the
evidence of the Defence on impossibility. The Prosecution’s Application to
call rebuttal evidence was denied by the Trial Chamber on 13 May 2002. The
Prosecution therefore focused on the credibility of the Defence Witnesses.
2. Evidence
a. The Kacyiru—Kimihurura—Remera—Gikomero Route (Kigali/Remera Artery).
180. On subject of this route, the Defence led the evidence of Laurent Hitimana
and Witness VPG.
181. Defence Witness Laurent Hitimana was protected Witness RKA but he renounced
his protected status. His evidence related to the Kacyiru—Kimihurura—Remera—Gikomero
Route (Kigali/Remera Artery). Witness RKA testified that in April 1994 he
was living in Remera in Bibare area of Kigali. He testified that as at 7
April 1994 the exit from Remera by the tarred road towards Kanombe was closed
by the government forces (the FAR), at the junction known as Remera. The
Witness testified that on 7 April 1994 refugees started arriving at Bibare.
The refugees said they had come from Remera I and Remera Kicukiro because
the RPF had attacked their neighbourhoods. On 7 April 1994 the Witness had
to move from his home in Remera moving eastward to Gasogi where he arrived
on 8 April 1994 after spending the night at the bureau communal of Rubungo.
The Witness testified that on 10 and 11 April 1994 there was a flow of refugees,
arriving at Gasogi coming from Jurwe, who were fleeing the RPF. The Witness
returned to his house in Remera on 11 April 1994 and saw that soldiers of
the FAR were patrolling the road leading to Amahoro stadium.
182. According to the Witness, the only route one could take to Gikomero
was the Kigali-Remera-Kimironko-Karama-Gikomero Route, which was impossible
to use because the government forces already blocked it.
183. The Witness stated that the road through Kicukiro was blocked by the
RPF at the Kicukiro junction point and it was therefore not possible to use
it to get to Gikomero.
184. In cross-examination the Witness stated that he did not go to the positions
of the Armies and that the positions he gave were either the officially known
positions of the Armies in 1994 or were based on the information he got from
the refugees.
185. Defence Witness VPG lived in Kacyiru, Kigali, in April 1994 but was
originally from Gikomero Commune and a member of the Electoral Commission
on which the Accused also sat. He testified that it was impossible to travel
to Gikomero around 12 April 1994 because all the roads were cut off due to
the fighting. According to him, there were two main routes from Kigali to
Gikomero. The first route was the Byumba route and the second route was through
Remera. According to the Witness, the more practical route was the one through
Remera; and it was the route he used when he travelled to Gikomero on 25
April 1994. The Umuganda Boulevard separated the two fighting parties and
was insecure. The Remera Gendarmerie station had already been taken by the
RPF.
186. Defence Witness VPG testified that from the Accused’s house it was not
possible to move towards the Kanombe airport. Defence Witness VPG testified
that the second route was not available for use because the RPF had control
of it. According to Witness VPG, to go to Gikomero on this route, one had
to turn towards Kabuye and then Nyacyonga, zones that were already in RPF
hands as at 12 April 1994.
187. In cross-examination the Witness stated that in 1994 he was neither
in the military nor was he a combatant and that he did not personally visit
the locations he was testifying about.
b. On the Positions of the Different Belligerents on the Different Routes Leading to Gikomero
188. The Defence led the evidence of three Witnesses: RGM, RGG and RKF who
were all military people.
189. Defence Witness RGG was Gendarme in April 1994, stationed at Muhima
camp in Kigali, and was in charge of security. The gendarmerie controlled
the Kigali—Gitarama route, the Kigali—Ruhengeri route, and the Kigali—Kicukiro
route. Defence Witness RGG testified that on 7 April 1994, he was sent to
Remera camp to collect bullets. He successfully avoided RPF positions by
taking a detour to avoid the CND where RPF soldiers had been stationed since
8 December 1993. As soon as Witness RGG left the Remera Gendarmerie station,
the RPF began shooting at the station from the CND. On his return to Muhima
the Witness was assigned to go and reinforce the Gendarmerie headquarters.
The Headquarters were attacked by the RPF on 7 April 1994. On 9 April 1994
Witness RGG undertook another mission to Kicukiro. On 9 April 1994 it was
impossible to travel the Muhima—Remera road.
190. Defence Witness RGG testified that the FAR controlled the Kigali—Gitarama,
Kigali—Ruhengeri, and Kigali—Kicukiro routes. The RPF controlled Kigali—Kinyinya,
Kigali—Remera—Kimironko, Kigali—Kibungo and Kigali—Byumba.
191. Defence Witness RGM was a young gendarme of low rank stationed at Jari
camp, Rutungo commune, six to seven kilometres from Kigali. He testified
that on 7 April 1994 he heard that gendarmes at the Mugambazi and Nyacyonga
refugee camps had seen the RPF columns coming from the hills. By 8 April
1994 the RPF had taken the Mugambazi and Nyacyonga camps. On 8 April 1994
the RPF attacked the Cyangugu Battalion, forcing them to withdraw. On 9 April
1994, a vehicle was sent from Jari camp to Kigali for supplies, and at about
11:00am before the vehicle reached the Karuruma road it was ambushed by the
RPF. On 12 April 1994 the RPF attacked Jari camp and the gendarmes withdrew
to Shyirongi on the road to Ruhengeri. In cross-examination the Witness stated
that the government forces were in control of Jari until 4 July 1994. On
12 April 1994 the road from Byumba to Karuruma was open. The Witness testified
that he received the information about the ambush at Karuruma from his company
operator.
192. Defence Witness RKF worked at the Ministry of Defence in 1994 where
he was responsible for analysing information related to the military situation
in the city of Kigali. According to the Witness, the RPF attacked the Presidential
Guard and the Headquarters of the Gendarmerie Nationale on 7 April 1994 and
took control of zones surrounding the Amahoro stadium. On 8 April 1994, the
RPF took control of the Gendarmerie brigade in Remera, the displaced persons
camp at Nyacyonga and controlled Gasozi. On 9 April 1994, the RPF took control
of Karuruma. On 12 April 1994, the RPF took control of Jali [Jari] camp to
hold the Nyabugogo—Gatsata—Karuruma access. The Witness testified that the
RPF controlled the Kigali-Byumba road and no civilian could go there. As
for the Kigali—Remera route the Witness testified that it was impossible
to use that route to go to Gikomero around 12 April 1994 because the RPF
had infiltrated the zone and there was heavy artillery combat underway.
193. In cross-examination the Witness admitted that in a war situation lines
of control are ill-defined and fluid and infiltration is possible and further
that there were small roads that were passable and that could be used.
c. The Kacyiru—Muhima—Gatsata—Byumba Route (Kigali/Byumba Route)
194. In relation to the Kacyiru—Muhima—Gatsata—Byumba Route, the Defence
led evidence of Witness RGB and RGS.
195. Defence Witness RGB lived in Rutungo Commune in February 1994. This
Witness’ testimony related to the situation on the Kacyiru—Muhima—Gatsata—Byumba
route (Kigali/Byumba). On 9 April 1994, RGB saw RPF soldiers coming down
the mountains of Kiyanza. The RPF occupied the Rutungo Parish. Defence Witness
RGB stated that he fled, taking the route towards Remera–Mbogo commune and
arrived at Remera at about 7:00pm the same day. On 10 April 1994 the government
positions at Remera were attacked by the RPF and the Witness moved to Jari,
which was a Gendarmerie camp. On 11 April 1994, at about 3:00pm, the gendarmes
informed Witness RGB that their camp at Jari was to be attacked the next
day and therefore the Witness left the camp. Defence Witness RGB testified
that he arrived at Karuruma in the evening, using the Byumba route, which
was packed with refugees from Nyacyonga and Rutungo. Defence Witness RGB
testified further that at Karuruma, he met refugees from Nyacyonga, Kabuye
and Jabana who confirmed that those zones had been taken by the RPF. On the
morning of 12 April 1994 Karuruma was attacked by the RPF and the Witness
RGB testified that he fled towards Gatsata. By 12 April 1994, the RPF had
closed all the roads from Karuruma to Kabuye and Byumba. Defence Witness
RGB testified that he travelled on foot in the bush and went to Gitarama
arriving on 12 April 1994.
196. Defence Witness RGS lived in Gatsata in April 1994, not far from Kigali.
He testified that between 9 and 10 April 1994, he saw a great number of refugees
arriving from the displaced persons camp at Nyacyonga into his neighbourhood.
Defence Witness RGS testified that he was told by the refugees that the Nyacyonga
camp had been attacked by the RPF. The Witness testified further that on
the night of 11 April 1994, he received a phone call from a friend who informed
him that the RPF had taken Jari hill. The Witness testified that he decided
to flee the area on 12 April 1994. Witness RGS testified that he left by
car towards Nyabugogo aiming to go to Kiyovu in Kigali town centre, but at
Nyabugogo, a FAR soldier told him that he could not go further and was directed
towards Gitarama. According to Witness RGS, there were only two routes from
Kigali to Gikomero. The first was Kigali—Byumba—Gatsata—Nyacyonga—Nyabugogo—Kajevuba.
The second route was Rubungo through Jurwe. The Witness testified that the
first route was impassable on 12 April 1994 because Nyacyonga zone and the
region surrounding were occupied by the RPF. The Witness stated that on 12
April the only route, which was passable, was the one leading to Gitarama.
d. Other Witnesses Not Directly Dealing with Impossibility
197. Defence Witness GPR stated that the refugees in Gikomero came from
Mbandazi and Musave in Rubungo.
198. Defence Witness GPE stated that refugees who came to Gikomero around
7 to 9 April 1994 were from Rubungo.
199. Defence Witness GPF also testified that the persons that attacked the
refugees in Gikomero on 12 April 1994 came from Rubungo commune.
200. Defence Witness GPT also testified that the Tutsi that sought refuge
in Gikomero had arrived from Rubungo commune, Gasogi, Ndera and Mbandazi.
201. In summing up the evidence on impossibility the Defence concluded that
the evidence showed that the road from Kigali to Byumba was occupied by the
RPF on 7 April 1994. As of 8 April 1994 the RPF occupied the Kigali—Remera—Gikomero
artery. The Kigali—Kanombe—Gikomero artery was cut off at the level of Giporoso
and Gikondo by 8 April 1994. On this premise, the Defence asserted that it
was impossible for the Accused to have travelled out of his home around 12
April 1994, as alleged by the Prosecution, so as to perpetrate the events
that occurred in Gikomero on or about 12 April 1994.
e. Assertions by the Parties Regarding the Evidence
202. According to the Defence, the evidence of Laurent Hitimana provided
a detailed description of the situation prevailing in the Remera area, on
the route to Gikomero, and corroborates the evidence of the Accused and other
Witnesses.
203. Assessing the evidence of Witness RKF, the Defence stated that the Witness
was at the core of military information channels in April 1994 and was well
positioned to give a precise portrait of the situation on the roads leading
from Kigali to Gikomero.
204. Addressing the evidence of Witness RGG the Prosecution stated that the
Witness was not fully aware of the situation regarding the movement of the
armies, by virtue of the fact that he was only a corporal in the army. The
Prosecutor also submitted that in reply to a question from the Bench as to
why the Tutsi were fleeing Rubungo if the RPF had taken a base nearby, the
Witness gave no credible answer. The Defence stated that this Witness had
information, which was disclosed to all combatants, about the situation even
where he did not observe personally.
205. The Prosecutor submitted that Defence Witness RGS, a long-standing friend
of the Accused, did not at any time go or attempt to go to Gikomero. The
Prosecution therefore maintained that his views on the route were pure speculation.
The Defence pointed out that this Witness was a resident of Gatsata and was
a direct Witness to the events happening in his area especially the Kigali—Byumba
road thus he was qualified to testify.
206. The Prosecution stated that Defence Witness VPG had at no time attempted
to use the routes in question; therefore his testimony was merely speculative
and should be disregarded. The Defence pointed out that this Witness lived
in Kacyiru in the same neighbourhood as the Accused and he could therefore
testify to the situation in the area around 12 April 1994.
207. The Prosecutor asserted that due to the fact that Witness RKF was in
Kigali at the time, he was not in a position to know the exact roads that
were controlled by the opposing armies and especially so after he admitted
that during a war, the lines of control are ill-defined and fluid. Witness
RKF stated in evidence that “when there are two warring parties in any war,
you can never say anything is air tightly closed, there is always infiltration.”
To a question from the Bench the Witness stated that there was “a lot of
small roads, secondary roads, not many, but - well, roads are passable, that
could be used…”. Defence stated that the Witness was at the core of military
information channels and could thus give precise details of the situation
prevailing on the roads from Kigali to Gikomero.
208. In respect of Witness Laurent Hitimana the Prosecution stated that the
Witness was at too many places that tend to confirm the Defences’ theory
of blocked access. In addition the Witness was not able to reply to the fact
that Tutsi from Rubungo fled towards Gikomero around this same period. The
Defence stated that this Witness gave a detailed description of the situation
as it prevailed in Remera on the Route to Gikomero and thereby supported
the evidence of the Accused. In cross-examination, the Witness stated that
the positions of the forces as he had given were the official positions in
1994. The Witness also admitted that he did not personally go to the roadblocks
or to the positions of the forces at that time.
209. Defence Witness Laurent Hitimana testified that he was able to move
out of Remera on 7 April 1994, and fled to Rubungo and later to Gasogi where
he arrived on 8 April 1994. He returned to Remera on the 12 April 1994.
210. On Witness RGM the Prosecution stated that this Witness was a young
gendarme of low rank. The Prosecution asserted further that he was not at
any of the events that he testified about. The Prosecution stated that he
neither witnessed the events at Mugambazi and Nyacyonga nor did he see the
ambush at Karuruma. The Defence affirmed that this Witness is credible and
where he had no direct evidence, he received his information from his superiors
in the course of his work.
211. The Prosecution stated that due to the position occupied by Defence
Witness RGB, his evidence should not be believed. The Defence stated that
the Prosecution was unable to impugn the credibility of the Witness since
the Witness testified that he was a moderate Hutu and his name could be on
the list of people sought by Rwanda for genocide simply because of the post
he occupied in Rwanda in 1994.
212. The evidence of Defence Witnesses GPR, GPE, GPF, and GPT demonstrate
that there were refugees arriving from Rubungo, Ndera, Mbandazi and Musave
from 6 April 1994 and show that it was possible to pass through these areas.
3. Findings
a. Discussion
213. The Chamber has noted the testimony of the Accused and the various Defence
Witnesses as to the impossibility of moving from Kigali to Gikomero commune
during the period of 7 April 1994 to 17 April 1994.
214. In making its findings as to the impossibility or otherwise of movement
to and from Kigali to Gikomero during the period from 7 April 1994 to 17
April 1994, the Chamber has considered the evidence of the various Defence
Witnesses and the challenge made to that evidence and credibility of the
Witnesses.
215. The Chamber notes that Defence Witness Laurent Hitimana was able to
move easily from Remera in Kigali to Rubungo and later to Gasogi between
7 and 8 April 1994 and to return to Remera on 11 April 1994. The Chamber
further notes that the Witness was never present at the various locations
he testified about and admitted that the positions of the Armies that he
gave were either the known official positions in 1994 or it was information
that he got from refugees.
216. The Chamber is not satisfied that Witness RGM, a low ranking member
of the Gendarmerie, could have had access to information about the various
detailed positions, of which he testified. The Chamber notes the Witness’s
admission that he never was at these locations.
217. The Chamber notes that Witness RKF was based in the offices in Kigali
city at the Ministry of Defence. While he could have had access to intelligence
regarding the general situation, he did not have firsthand information about
the condition of travel between Kigali and Gikomero in the period in question.
218. Furthermore the Chamber notes that Witness RKF admitted in cross-examination
that there were small, secondary roads that could have been used to travel
between Kigali and Gikomero.
219. The Chamber notes that the evidence of Defence Witnesses GPR, GPE, GPF
and GPT, who all testified about the situation in Gikomero, showed that some
of the refugees at Gikomero had come from Mbandazi, Rubungo, Musave, Gasogi
and Ndera and therefore that it was possible to pass through these areas.
Those areas were way out from Remera area of Kigali. This evidence, taken
in conjunction with the evidence of Defence Witness Laurent Hitimana who
testified that he fled to Rubungo on 7 April 1994 and came back to Remera
on 11 April 1994, demonstrates that it was possible to move from Remera all
the way to Rubungo and onwards to Gikomero.
b. Conclusion
220. The Chamber therefore finds that, although it might have been difficult,
it was possible to move from Kigali to Gikomero within the period between
7 and 17 April 1994.
L. Expert Witness
221. The Defence called Mr Nkiko Nsengimana as an expert Witness who produced
a report and was heard by the Chamber on 7 and 8 May 2003.
222. The Chamber has considered the full evidence of the Defence Expert Witness.
He testified on various general, historical and political topics. In the
case at hand, the Chamber focused on the Accused’s alleged individual criminal
responsibility. And, due to the general nature of the matters discussed in
the Expert Witness’s report and testimony, the Chamber finds them to be matters
of background information which do not inform on the Accused’s acts and conduct.
PART III - THE PROSECUTION CASE
A. Introduction
223. The Chamber will not make any findings on certain paragraphs of the
indictment due to the following reasons:
§
Paragraphs 5.1 to 5.9; 6.10 and 6.90 are related to issues which are no longer
of any relevance to the case, due to the fact that the Accused was acquitted
on Count 1 of the Indictment;
§
Paragraphs 1.1 to 1.30; 3.3 to 3.19; 5.11 to 5.20; 5.22; 5.23; 5.25 to 5.39;
6.1 to 6.4; 6.6; 6.11 to 6.14; 6.15; 6.16; 6.17; 6.24; 6.28 to 6.30; 6.33;
6.35; 6.36; 6.38 and 6.39; 6.40 to 6.43; 6.47; 6.49 to 6.55; 6.57 to 6.80
to 6.84; 6.85 to 6.87 are of a general nature, deal with historical issues,
have no direct linkage to this case and/or have such characteristics that
there is no need for the Chamber to make findings on them and/or are related
to facts upon which there was no evidence presented to the Chamber.
224. The Paragraph 4.1 of the Indictment has been addressed in the Part I
(Introduction), Section A of the Judgment.
225. The Charges (Final section of the Indictment) will be addressed in the
Part IV (Legal Findings) of the Judgment.
226. The Chamber will, for each Section in this Part, review the allegations
of the Prosecution, the evidence brought by the Parties, and then make its
findings accordingly. The evidence contained in the relevant sub-sections
is a summary of the testimonies of the Witnesses and of the content of the
exhibits.
B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case)
227. Paragraph 2.1 of the Indictment reads:
The crimes referred to in this indictment took place in Rwanda between 1
January and 31 December 1994.
228. The Accused admitted that :
The crimes referred to in this document [the Prosecutor’s request to admit
facts] took place in Rwanda between 1 January and 31 December 1994, particularly
between 1 January and July 1994.
229. The Chamber takes note of these admissions.
C. Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in
1994)
230. Paragraph 2.2 of the Indictment reads:
During the events referred to in this indictment, Rwanda was divided into
11 préfectures: Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama,
Kibungo, Kibuye, Kigali-Ville, Kigali-Rural and Ruhengeri. Each préfecture
was subdivided into communes and secteurs.
231. The Accused admitted that:
Between 1 January 1994 and 17 July 1994, Rwanda consisted of the following
administrative structures:
(a) Rwanda was divided into 11 préfectures: Butare, Byumba, Cyangugu,
Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-Ville, Kigali-Rural
and Ruhengeri.
(b) Each préfecture was subdivided into communes.
(c) Each commune was subdivided into secteurs.
(d) Each secteur was subdivided into cellules.
232. The Chamber takes note of the Rwandese administrative structure as of
between 1 January and 17 July 1994, as well as of the existence during the
relevant period of a préfecture called “Kigali-Rural”.
D. Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda
in 1994)
1. Allegations
233. Paragraph 2.3 of the Indictment reads:
During the events referred to in this indictment, the Tutsi, the Hutu and
the Twa were identified as racial or ethnic groups.
234. The Accused admitted that :
Between 1 January 1994 and 17 July [1994], the Tutsi, the Hutu and the Twa
were respectively identified as racial or ethnic groups.
2. Findings
235. Accordingly, it has been established for the purposes of this case
that at all relevant times for the indictment the Tutsi, the Hutu and the
Twa were identified as ethnic groups in Rwanda.
E. Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic
Attacks in Rwanda)
236. Paragraph 2.4 of the Indictment reads:
During the events referred to in this indictment, there were throughout Rwanda
widespread or systematic attacks directed against a civilian population
on political, ethnic or racial grounds.
237. The Accused admitted that :
The following state of affairs, among others, obtained in Rwanda between
1 January 1994 and 17 July 1994:
(a) there were throughout Rwanda widespread or systematic attacks against
human beings.
(b) the widespread or systematic attacks were directed against a civilian
population on the following grounds:
(i) political persuasion
(ii) ethnic affiliation
(iii) racial origin
(c) The widespread or systematic attacks as indicated above, had the following
features:
(i) they had specific objective of extermination of the Tutsi.
238. The Chamber takes note of the admission of the Defence.
239. The Chamber has analysed the specific issue of widespread or systematic
attacks in Kigali-Rural in the relevant sections below.
F. Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict
in Rwanda)
1. Allegations
240. Paragraph 2.5 of the Indictment reads:
During the events referred to in this indictment, a state of non-international
armed conflict existed in Rwanda. The victims referred to in this indictment
were protected persons, according to the provisions of Article 3 common
to the Geneva Conventions and of Additional Protocol II.
241. The Accused admitted that :
During the events referred to in [the Prosecutor’s Request to Admit Facts]
, a state of non-international armed conflict existed in Rwanda.
2. Findings
242. It is not in contention by the Parties for the purposes of this case
that at all relevant times for the indictment a state of non-international
armed conflict existed in Rwanda.
G. Ministerial Position of the Accused and his Responsibility as Minister
of the Interim Government
1. Allegations
243. Numerous paragraphs of the Indictment deal with the alleged responsibility
of the Accused as Minister of the Interim Government.
2. Findings
244. It is not in contention that the Accused became Minister of Higher
Education and Scientific Research in the Interim Government on the 25 May
1994, replacing Dr. Daniel Nbangura and that he held the office until mid-July
1994.
245. The Chamber notes that no specific evidence has been brought by the
Prosecution with regards to the acts and conduct of the Accused after he
became Minister of the Interim Government.
246. The Prosecution has presented evidence only on alleged crimes committed
by the Accused before the 25 May 1994.
247. Accordingly the Chamber finds that the Prosecution has not proven its
case in relation with the acts and conduct of the Accused in capacity of
Minister of the Interim Government.
H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons)
1. Allegations
248. Paragraph 5.24 of the Indictment reads:
Before and during the events referred to in this indictment, some members
of the Interim government, MRND leaders and some soldiers participated in
the distribution of weapons to the militiamen and certain carefully selected
members of the civilian population with the intent to exterminate the Tutsi
population and eliminate its accomplices.
249. Paragraph 6.44 of the Indictment reads:
Interim Government Minister Jean de Dieu Kamuhanda had family ties to Gikomero
commune, Kigali-Rural préfecture. During the month of April 1994 he
supervised the killings in the area. On several occasions he personally distributed
firearms, grenades and machetes to civilian militia in Kigali-rural for the
purpose of “killing all the Tutsi and fighting the FPR”.
2. Distribution of Weapons at the Homes of the Accused’s Cousins
a. Evidence
250. In this section the Chamber considers the following evidence in addition
to the relevant evidence presented in Part II, Section J on Alibi and K on
Impossibility and in the previous sections of this Part III.
251. Prosecution Witness GEK, a Tutsi woman, testified that her husband,
who belongs to the Hutu ethnic group, was a member of Kamuhanda’s family
and that Kamuhanda “usually came to the house to say hello when he [was]
on his way home just around Muhazi.” On cross-examination, the Defence attacked
the Witness’s identity, attempting to show that she was not in fact who she
claimed to be. After the Accused in his testimony acknowledged Witness GEK
to be who she claimed to be, the Defence continued the attack on her credibility
by attempting to show that she was not in Gikomero during the events about
which she gave testimony. The Witness disputed this proposition. The Witness
identified the Accused in Court.
252. Prosecution Witness GEK testified that prior to the April 1994 events
she saw the Accused about four times. She further testified that the Accused
came to visit her neighbour before the death of the President of the Republic
either on 5 April 1994 or on 6 April 1994. According to the Witness, the
Accused arrived on his own in a white pick-up vehicle, and he was driving
himself. The Witness saw the Accused again sometime between 6 April 1994
and 10 April 1994 when he came to their residence in Gikomero and stayed
to talk to her husband. She stated that she was not in the same room when
the discussion occurred between the Accused and her husband. She said, “When
he [the Accused] entered the house my husband requested me to go inside the
room, because, at that time war had erupted, so he asked me to hide myself.
But I was not far away and I could hear what they were saying to each other.”
253. Prosecution Witness GEK testified that there were four people in the
room with the Accused and her husband. She identified those people as Ngiruwonsanga,
Kamanzi, Karakezi and Ngarambe, who was just a neighbour. She said that these
people came approximately two minutes after the Accused. She testified that
the Accused told Kamanzi that the killing had not yet started in Gikomero
commune and went on to say that “…those who were to assist him to start had
married Tutsi women...” She said that the Accused went on, saying that he
would bring equipment for them to start, and that if their women were in
the way they should first eliminate them.
254. Prosecution Witness GEK testified that her husband, in response to the
Accused, said that “he would continue to persecute his spouse and that he
had even married her against their will.” She said that the meeting lasted
between 20 and 30 minutes.
255. Prosecution Witness GEK, when asked if she knew whether any weapon or
item was handed over in that room, testified, “When I went outside I was
able to see firearms, grenades, and machetes, which they distributed when
he went outside the house.” She said that the Accused distributed firearms
and grenades inside the house before they went outside and she saw her husband
carrying “four grenades that resembled a hammer, a hammer, four grenades
that looked like hammers.” She testified that she knew the grenades, because
she had seen them before when her husband was carrying them while he was
a soldier.
256. Prosecution Witness GEK testified, “When Kamuhanda went outside he went
to Karakezi’s home, a distance of about between five and ten steps. He distributed
to them [Kamanzi, Karekezi, Njiriwonga and Ngarambe] grenades and machetes.
He had distributed, given, distributed a weapon, a gun I should say, inside
our house.” She said that the Accused distributed the weapons to four persons,
but he left them other weapons that these four people were to distribute
to others. When asked how she knew that these people were supposed to distribute
the weapons to others, the Witness said, “… From where I was, from where
they were, I could see [sic] what they were saying. He [Kamuhanda] said to
them to distribute those weapons and said that he would return to assist
them.” She testified that the Accused said that he would return to see if
they had started with the killings or that he would return so that the killings
would start. She said that she saw what happened to the weapons when the
Accused returned to arrange for the killing to start.
257. Prosecution Witness GEK testified that the Accused distributed the weapons
to Karekezi, Kamanzi, Njiriwonga and Ngarambe. She testified on cross-examination
that Ngiruwonsanga was a well-known Interahamwe and when the Accused came
to distribute arms Ngiruwonsanga was present. She said that Ngiruwonsanga
was present at all the locations where attacks were carried out. Witness
GEK testified that she personally saw Garambe and Ngiruwonsanga cutting up
people at the trade centre.
258. Prosecution Witness GEK testified that the Accused did not return that
day when he came to distribute the weapons; he went through Kagagevuba because
he wanted to see an accountant named Rubanguka.
259. Defence Witness GPK testified that he knew the Accused because they
were both born in the same secteur. The Witness stated that he knew Kamanzi
and Karekezi, and that he wouldn’t spend two days without going to see them.
He estimated that the distance between his residence, near Gikomero trade
centre, and theirs was approximately eighty to one hundred metres. In answer
to a question put to him, the Witness stated that between 6 April 1994 and
12 April 1994 he never saw the Accused at the residence of Kamanzi or Karakezi.
Neither did he observe the Accused distributing weapons. Furthermore, had
this happened in his absence, he would certainly have heard about it.
260. Defence Witness GPK testified that he met Karakezi after the attacks
on 12 April 1994, and that Karakezi was armed with a bow and arrows. He said
that Karakezi asked him to come to a place where he had left his wife and
his brother’s wife to check on their situation. He went with Karakezi to
a place called Kibobo where the women were. They were to assure them of the
security situation so that they would not flee and perhaps he would not be
able to find them. He stated that Karakezi's wife was known as Dorsilla Mukayiranga
and Kamanzi's wife was known as Mukamazimpaka.
261. Defence Witness EM, who was fourteen years during the events in question,
testified that she had stayed with the GEK family during April 1994. She
testified that the day after the plane crash GEK’s husband took them to Kibobo
cellule to spend night. During the day they returned to GEK’s house. From
7 April 1994 until 9 April 1994 they continued this routine. From 9 April
1994 until 12 April 1994 they stayed in Kibobo cellule. However, on 12 April
there was a “significant attack” and GEK’s husband took them back to his
residence. The Witness stated that GEK delivered her baby on the night of
12 April 1994. The Witness remembered this particular date because it was
also the date of the attack. The Witness stated that whilst they travelled
back on 13 April 1994, she carried for GEK’s child and GEK carried the new
born baby. During this period, from 9 April to 13 April 1994, the Witness
never left GEK’s side, because she was very tired. The Witness stated that
she knew the Accused, but that the last time she saw him was in 1993. She
stated that she would not have failed to see the Accused if he had come to
the house.
262. Defence Witness Xaviera Mukaminani, the Accused’s younger sister, testified
that the Accused helped his family in many ways, including building a house
for them and paying their bills. He was close to his family and would often
come to visit them in Gikomero especially since their mother suffered badly
from asthma. When she had a bad spell, the Accused would take her to hospital
in Kigali for treatment. The Witness stated that when the Accused came to
visit, he would be driven in an official vehicle. She never saw him driving.
In so far, as she was the only adult in the family, apart from her mother,
she would have known about any visit of the Accused to the family house in
Gikomero commune.
263. Defence Witness Xaviera Mukaminani testified that Kamanzi and Karekezi
were her cousins. She also stated that her house and their houses were next
to each other, separated only by a road. She testified that the last time
the Accused came to Gikomero was during the Easter holidays in 1994, and
that they had not seen him in Gikomero since. In answer to a question put
to her, she replied that it was not true that weapons had been distributed
by the Accused at her cousins’ houses, and that when the Interahamwe attacked
at Gikomero they already had their weapons. She also stated that because
there were not many vehicles in Gikomero, everybody knew when a vehicle arrived.
264. Defence Witness Xaviera Mukaminani testified that she did not see the
wives of her cousins Kamanzi and Karekezi the day after the President’s plane
was shot down. When she asked where they were, she was not told. The Witness
testified that it was only later that she found out from Defence Witness
EM that Kamanzi had placed them in a safe place near Kibobo.
265. Defence Witness Xaviera Mukaminani testified that the Interahamwe attacked
on 12 April 1994, and that she fled to Gasagara and joined her elderly mother
and an old Tutsi woman who had sought refuge there.
b. Findings
o Discussion
266. The Defence initially claimed that Prosecution Witness GEK was not
the person she claims to be. However, the Chamber notes that the Accused,
in his testimony, attested to knowing the Witness GEK and, in effect, admitted
that she is the person she claims to be. The Chamber thus finds that Prosecution
Witness GEK and the Accused did in fact know each other, and that the Defence
challenge to her identity is unfounded. In relation to the Witness GEK’s
testimony that on 5 April 1994 or 6 April 1994 the Accused drove himself
in a white pick-up to the house of the Witness, the Chamber accepts that
the Witness may have been mistaken about the driver of the vehicle.
267. The Defence also claimed that Witness GEK was not at the home of her
husband during the period when the meeting would have taken place, nor was
she in Gikomero during the massacres. Defence Witness EM testified that Witness
GEK gave birth to a baby on 12 April 1994, and that from 9 April 1994 to
13 April 1994 Witness GEK was in Kibobo cellule, and not where she testified
to have been. On 4 February 2002, the Defence made an oral application to
recall Prosecution Witness GEK, and informed the Chamber of having information
to show that Witness GEK was not in Gikomero secteur during the relevant
time period. The Prosecution did not object to the recall, and the Chamber
granted the Oral Motion. When the Witness appeared before the Chamber on
13 January 2003, the Defence questioned her regarding allegations made by
other Witnesses that she had not been in Gikomero secteur on 12 April 1994.
268. During Witness GEK second appearance before the Chamber, the Defence
failed to confront her with the new evidence regarding the birth of her child.
Basic fairness requires that the Defence confront the Witness with evidence
that it intends to use to discredit her credibility.
269. Furthermore, the Chamber notes that Defence Witness GPK did not confirm
Witness EM’s account that Witness GEK was expecting a child or had delivered
a child on 12 April 1994, when Witness GPK claims to have been with her.
270. The Chamber finds that the testimony of Defence Witness EM lacks credibility,
and is not sufficient to impugn the credibility of Prosecution Witness GEK.
271. On the basis of the testimonies of Witnesses GPK and Xaviera Mukaminani,
the Accused’s sister, the Defence claimed: firstly, that the Accused was
not in Gikomero between 6 April 1994 and 10 April 1994; secondly, that he
did not meet with his cousins; and, thirdly, that he did not distribute weapons
at the homes of his cousins. The Chamber notes that the testimonies of these
two Witnesses, that they did not see the Accused in Gikomero, does not exclude
that he could have been there, as claimed by Witness GEK.
272. Having considered all the evidence in relation to this event, and having
considered her demeanour in court, the Chamber finds that Prosecution Witness
GEK is highly credible.
o Conclusion
273. Accordingly, the Chamber finds that a meeting occurred sometime between 6 April 1994 and 10 April 1994 at the home of one of his cousins in Gikomero. This meeting involved the Accused, two of his two cousins, an Interahamwe, and a neighbour. The Chamber finds that at this meeting, the Accused addressed those present and told them that the killings in Gikomero commune had not yet started and that “those [who] were to assist him to start had married Tutsi women”. The Accused told those present that he would bring “equipment” for them to start, and that if their women were in the way, they should first eliminate them. Whilst in his house, Kamanzi received four grenades and a gun from the Accused. Following the meeting which took place in the house, the group went a few steps next door to the home of Karakezi, who is also a cousin of the Accused. Whilst there, the Accused gave the others grenades and machetes, for themselves, and also additional weapons which they were to distribute to others. The Accused told them that they should distribute those weapons and that he would return to assist them. He also said that he would return to see if they had begun the killings, or so that the killings could start. The Accused then left, and did not return that day.
3. Distribution of Weapons at a Football Field in Kayanga Secteur
a. Evidence
274. In this section the Chamber considers the following evidence in addition
to the relevant evidence presented in Part II, Section J on Alibi and K on
Impossibility and in the previous sections of this Part III.
275. Prosecution Witness GAB gave testimony that the Accused attended and
spoke at an MRND political rally during August 1993 in Kayanga secteur, Gikomero
commune. According to the Witness, the Accused was the Guest of Honour. The
Witness testified that the Accused delivered a speech in which he said, “Let
these Tutsis not bother you because their own fate has been considered by
the appropriate authorities. A solution has been found to the problems that
they are raising and this will be conveyed, that solution will be conveyed
to you in the not too distant future.” The Witness testified that someone
who was not a Hutu would not be invited to such meetings, and if they attended,
they could be wounded or even killed.
276. Prosecution Witness GAB testified that between 2:00 and 2:30pm sometime
between 9 April and 11 April 1994 he and his compagnions were playing football
in Nyamise cellule, Kayanga secteur, Gikomero commune, when they saw the
Accused get out of a vehicle, accompanied by soldiers. The Witness stated
that the Accused met with the conseiller of the commune, called Rubanguka
Mathias. Also present at the meeting were Nyarugwaya, the Brigadier of the
commune, and Mabango Thomas, the conseiller. The Witness stated that “[t]here
were Interahamwe there to just -- near where we were playing soccer and he
talked to these people and in the course of their discussion, he gave them
the instruments, the means that he had promised them beforehand, that is,
means to defend themselves, as he promised them before.”
277. Prosecution Witness GAB testified that the Accused arrived in a white
Hilux vehicle that he was driving. In cross-examination, the Witness repeated
that the Accused was driving, and attested that the vehicle arrived from
the direction of Kigali. He further testified that there were weapons in
the Hilux. He stated, “Those arms were covered by plastic material. We were
able to observe these arms only when the plastic was removed so this […].”
278. Prosecution Witness GAB testified to hearing the Accused address the
accountant, Brigadier, conseiller, and bourgmestre who had just arrived.
The Accused said, “Everywhere I went, even in Kigali, the Interahamwe and
CDR have been killing people. What are you doing? How far have you gone?”
The accountant said, “It is true that we have not started killing these people.
All we were doing at this time is detailing them and when we get the necessary
instruments to accomplish our task, … we shall accomplish our task and we
shall accomplish it appropriately.” The Witness testified that the Accused
then asked if the people to whom the instruments had been entrusted could
be counted on to perform. The accountant replied that they were people trained
to fulfil that purpose.
279. Prosecution Witness GAB testified that the Accused selected two Kalashnikovs,
two grenades, and two machetes, which he gave to the accountant, who handed
these weapons to the young people. He recalled the names of these young men
who received weapons. Munyentwari (known as Kapore) was given a gun, and
Desire Habineza a grenade.
280. Prosecution Witness GAB testified that the Accused was present during
the distribution of the weapons. Before leaving the assembled group of men,
the Accused said, “I don’t want to hear that any single Tutsi has escaped
you.” Rutaganira [the bourgmestre of Gikomero] answered the Accused, “We
will do all in our power and just in case the instruments which you have
given us turn out to be insufficient, we shall resort to you again.” The
Accused responded, “I shall wait for [your] initiative, your reaction.”
281. The Accused testified that he attended a MRND political rally in Kayanga
in October 1992. He stated, however, that he had been invited at the last
minute, and that he had not even planned on going to the meeting. Defence
Witness VPG testified that he attended a MRND political rally in Kayanga
in September 1993 or October 1993 with the Accused. He further stated that
the Accused introduced himself to the crowd but did not give a speech.
b. Findings
o Discussion
282. After considering the totality of the evidence, the Chamber is not convinced that Prosecution Witness GAB presented a truthful account of what the Accused said at the MRND political rally. Considering the dangers, alleged by the Witness, faced by anyone not of Hutu ethnicity attending such an event, and considering that the Witness is a Tutsi, the Chamber is not convinced that the Witness even attended this rally. Concerning the testimony of the Witness about the distribution of weapons by the Accused in Kayanga secteur during April 1994, the Chamber finds it unlikely that Prosecution Witness GAB, a young Tutsi male, would casually have been playing football at such time when tensions between Hutus and Tutsis were high, and the situation was becoming increasingly perilous for the Tutsi population. That he might stand around listening to orders for the massacre of Tutsis, whilst weapons were being distributed, seems improbable. The Chamber finds that the testimony of Prosecution Witness GAB as to the actions of the Accused is not credible.
o Conclusion
283. On the basis of the evidence, the Chamber does not find it established
that the Accused distributed weapons in Myamise cellule, Kayanga secteur,
Gikomero commune, as Witness GAB describes.
4. Distribution of Weapons at a Bar in Ntaruka Secteur
a. Evidence
284. In this section the Chamber considers the following evidence in addition
to the relevant evidence presented in Part II, Section J on Alibi and K on
Impossibility and in the previous sections of this Part III.
285. Prosecution Witness GAC testified that one day between 8 April 1994
and 12 April 1994 he was at a bar at Gatanga in Ntaruka secteur, Gikomero
commune, owned by a man called Damien. The Witness saw the Accused arrive
in a truck loaded with weapons, which were covered by a tarpaulin. The Accused
asked a man called Daniel where his Interahamwe forces were. When Daniel
indicated that some personnel were present and that others were on their
way, the Accused produced a list from which he called out names. The Accused
then personally handed out weapons, including guns and grenades, to those
who came forward. When asked by the Prosecutor whether or not he was present
from the beginning to end of the distribution of the weapons, the Witness
affirmed that he was.
286. Prosecution Witness GAC testified that the Accused distributed weapons
in other locations, because “he said so himself”. The Witness stated, “He
[the Accused] said he was going to continue with the distribution of weapons
in other locations where he had not done so.”
b. Findings
o Discussion
287. Having considered the testimony of Prosecution Witness GAC the Chamber
finds it to be improbable that the events would have occurred in the manner
described by the Witness. The Chamber does not find the testimony that the
Accused read from a list of names and distributed weapons in or around the
bar to be credible. Accordingly, the Chamber cannot rely on this evidence.
o Conclusion
288. The Chamber does not find that the Accused came to a bar at Gatanga in Ntaruka secteur, Gikomero commune, and distributed weapons.
5. People Heard from Others That the Accused Distributed Weapons
a. Evidence
289. In this section the Chamber considers the following evidence in addition
to the relevant evidence presented in Part II, Section J on Alibi and K on
Impossibility and in the previous sections of this Part III.
290. Prosecution Witness GAD testified that whilst at a bar, he heard Interahamwe
saying that the Accused had distributed machetes which had been kept in Kayanga.
Prosecution Witness GET testified that when he conducted an investigation
into who was involved in the killings in Gikomero, the results of his enquiry
showed that the Accused had distributed weapons.
b. Findings
o Discussion and Conclusion
291. The Chamber finds that the testimonies of Prosecution Witnesses GAD and GET on the issue of weapons distribution constitute hearsay evidence, which in the circumstances of the present case cannot be relied on for the purpose of establishing the Accused’s involvement in the distribution of weapons.
I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka
Massacres)
1. Allegations
292. Paragraph 6.44 of the Indictment reads:
Interim Government Minister Jean de Dieu Kamuhanda had family ties to Gikomero
commune, Kigali-Rural préfecture. During the month of April 1994
he supervised the killings in the area. On several occasions he personally
distributed firearms, grenades and machetes to civilian militia in Kigali-rural
for the purpose of “killing all the Tutsi and fighting the FPR”.
293. Paragraph 6.45 of the Indictment reads:
Furthermore, Jean de Dieu Kamuhanda personally led attacks of soldiers and
Interahamwe against Tutsi refugees in Kigali-Rural préfecture, notably
on or about April 12th at the Parish Church and adjoining school in Gikomero.
On that occasion Jean de Dieu Kamuhanda arrived at the school with a group
of soldiers and Interahamwe armed with firearms and grenades. He directed
the militia into the courtyard of the school Compound and gave them the order
to attack. The soldiers and Interahamwe attacked the refugees. Several thousand
persons were killed.
294. Paragraph 6.46 of the Indictment reads:
During the attack on the school in Gikomero the militia also selected women
from among the refugees, carried them away and raped them before killing
them.
295. In its closing brief, the Prosecution alleges that:
Between the period of 8 and 20 April 1994, by his acts and omissions in
the wider Gikomero area and more particularly at the Gikomero Protestant
and Gishaka Catholic Parish Churches and schools respectively, the Accused
acted and engaged in activities that make him guilty of all the extant charged
offences. On 12 April, the Accused a very powerful MRND man went to the Gikomero
Parish Church and school where he condoned the shooting of an elderly Tutsi
who was trying to intervene and ordered the massacres of the refugees at
the place. It is the Prosecution case that he did the same as the Gishaka
Catholic Parish and school.
296. In its closing brief, the Defence submits that it does not dispute that
there were massacres on 12 April 1994 at the Parish of Gikomero. Rather the
Defence strictly denies the involvement of the Accused in any capacity. The
Accused testified that from 6 April 1994 he never went to his birthplace
of Gikomero commune and that he was in Kigali throughout this time until
he, his family members and his neighbours went to Gitarama on 18 April 1994.
2. Massacre at the Gikomero Parish Compound
a. Prosecution Evidence
o Presence of the Accused in Gikomero Commune on 12 April 1994
Prosecution Witness GEB
297. Prosecution Witness GEB, a Tutsi, testified that before the war, he
knew the Accused because they came from neighbouring secteurs. The Witness
testified that he had known the Accused for about three years before April
1994. The Witness remembered the day the Accused introduced his wife to his
family in Gikomero , which was the last time that they saw each other. Later,
he testified that the last time he saw the Accused was at the opening of
Kayanga Health Centre. The Witness could not tell the Court the date of the
opening ceremony of the Kayanga Health Centre. On cross-examination, the
Defence asserted that the Accused could not have been at the opening ceremony
that was held in 1991 because the Accused was in Butare and had stayed there
for two years without going to Gikomero. The Witness identified the Accused
in Court.
298. Prosecution Witness GEB testified that he lived in Gicaca secteur. He
testified that he was baptised in Gikomero Parish in 1985. He testified that
on 7 April 1994 he was at home with his wife when he heard about the death
of the President. The Witness testified that “the Hutu decided to kill the
Tutsi at that point in time” and that from that moment he and the others
went to the bush and neighbouring forest. He testified that he left his place
of hiding on 12 April 1994.
299. The Witness testified that when he returned from the bush, he learnt
that refugees were gathered at Gikomero. He and three others, namely Ruhindura,
Munyensanga, and a man from Rubungo, joined the refugees at Gikomero; but
left their wives and children at Gahini Centre for safety reasons. He further
testified that they believed that no one would dare to attack the place of
worship, and that is why they went to Gikomero Parish.
300. He testified that on his way to Gikomero Parish, at Kagikomero, he saw
the Accused on board a pick-up together with two others sitting in the front
of the vehicle. The people in the back were singing songs which are known
to Interahamwe. He testified that the Accused was sitting in the middle of
the front seat of the pick-up. The Witness testified that there were about
20 people in the back of the pick-up and that some were wearing Kitenge material,
others trousers, and some military uniforms. The Witness added that some
of the people in the back of the pick-up were carrying weapons, and that
about five of them were carrying Kalashnikov guns. The Witness testified
that when the vehicle passed him he was a kilometre and a half from Gikomero
Parish. The car was coming from behind the refugees in the direction of Gikomero
and the distance between him and the vehicle was “just a step away”. He testified
that they did not go further than the place where the vehicle passed them,
and waited to see what the Interahamwe were going to do.
301. Prosecution Witness GEB testified that they heard gunshot noise coming
from the Gikomero Parish, “salvos from several guns and it made a lot of
noise”, approximately 30 minutes after the vehicle passed them. He testified
that they immediately returned to the Gahini Centre where they had left their
wives and children.
302. Prosecution Witness GEB testified that at around 6:00pm or 6:30pm, Tutsi
survivors from Gikomero Parish arrived at the Gahini Centre. The wounded
told them that it was the “Interahamwe that Kamuhanda had brought from Kigali
that had shot them.” The Witness testified that Aciel, a Hutu communal policeman
of Gikomero commune, met the Witness and others at the Gahini Centre the
same evening. He testified that Aciel informed the people that they had to
go and obtain weapons at the commune. The Witness explained that from the
Gahini Centre they went beyond Giti, in Byumba préfecture, to a place
called Rutare for safety.
Prosecution Witness GEU
303. Prosecution Witness GEU identified himself as a Tutsi. The Witness
indicated that he lived on the banks of Lake Muhazi in April 1994. He testified
that while at home at around 5:00am on 7 April 1994, he learnt about the
death of President Habyarimana on an international radio station. He felt
that the Tutsis were going to be killed because they had been killed prior
to 1994, and because there were roadblocks set up to stop Tutsis, even before
1994. He testified that some people disappeared at roadblocks because they
were Tutsis, Inyenzi. The Witness explained that “Inyenzi” was used by supporters
of the Habyarimana government to designate those attacking Rwanda at that
time. He stated that Inyenzi literally meant “insect”, but figuratively meant
“the Tutsi.” The Witness stated that Inyenzi meant Inkotanyi. It meant that
all Tutsis were Inyenzi or traitors, and the word was “pejorative, despising,
negative.”
304. Prosecution Witness GEU testified that on 8 April 1994, he saw many
refugees in flight, coming from Bicumbi, Kabuga, and Mbandazi, saying that
Interahamwe were killing Tutsi in that area. The Witness explained that Interahamwe
usually meant the youth of the MRND party who had undergone military training,
but subsequently the word was used for the entire youth wing of that party
because they behaved like Interahamwe. The Witness testified that the Interahamwe
were Hutus whereas the refugees were all Tutsis. On 8 April he was sent to
the Gicaca trading centre to determine whether members of his extended family
were among the refugees. He testified that he found only the conseiller telling
people to go back to their homes and organise the rounds.
305. Prosecution Witness GEU testified that on 12 April 1994 his parents
sent him again to the Gicaca trading centre to obtain new information. He
testified that refugees were scattered all over the Gicaca Trading Centre.
In closed session cross-examination, he confirmed that he was aware of a
large influx of refugees from Gikomero on 12 April 1994 and that it was impossible
to know from Kibara what was going on in Gikomero because of the distance
between the two locations.
306. Prosecution Witness GEU testified that while he was at Gicaca on 12
April 1994, at almost 1:00pm, a white-coloured vehicle arrived. People approached
it and shouted: “That is Kamuhanda, that is Kamuhanda who has arrived.” The
Witness testified that the vehicle looked like the vehicles used by non-governmental
organisations or the United Nations, like a Land Cruiser. The vehicle had
a distinctive mark, black or blue in colour, which said MINUAR. The Witness
testified that the mark was on adhesive paper, pasted on the side of the
vehicle with letters fading. It was also possible that the same mark was
on the roof of the vehicle. The Witness testified that Kamuhanda was with
his driver. Some people spoke with Kamuhanda for not more than three minutes.
The Witness indicated that the distance between himself and the people who
spoke with Kamuhanda was equivalent to the distance between himself and the
Judges’ bench. The Witness testified that he did not hear clearly what was
said because there was a crowd.
307. Witness GEU testified that those who had spoken with Kamuhanda told
them, “Kamuhanda has just confirmed the fact that the Tutsis had to die.”
The information was conveyed immediately after the conversation with Kamuhanda
and Kamuhanda himself must have heard what the people were saying. The Witness
testified that the vehicle departed in the direction of the Gikomero secteur.
There is only one road and that road leads to the Gikomero secteur. The Witness
had never met Kamuhanda personally, but he had heard mention of him in his
secteur because he was an influential person whose name was familiar. The
Witness testified that after Kamuhanda’s visit, the population’s attitude
changed because someone influential had said that all the Tutsis had to die.
All the Hutus started to get ready to carry out killings. The Witness heard
some Hutus saying they would start sharpening their knives now that they
understood who the target was.
308. Witness GEU testified that he used a side path to return home from the
Gicaca Trading Centre because he was afraid of the dangers. On the way, he
heard grenade explosions and gunshots from the direction of Gikomero. The
Witness estimated that he heard the sounds when he was halfway between Gicaca
Trading Centre and his parents’ house. He did not recall how long it took
him to get home.
309. Witness GEU stated that in the evening, some of the refugees told him
that Kamuhanda had ordered that Tutsis be killed and had distributed weapons
to the Hutus, including grenades and guns. Kamuhanda distributed weapons
in a Gikomero secteur location where there was a Protestant Church, a primary
school and many refugees. On cross-examination, the Witness stated that he
understood that the weapons distribution took place after he saw Kamuhanda
in Gicaca.
310. Witness GEU testified that a certain communal policeman, Sibomana Aseal
[phonetic], travelled virtually everywhere telling the Hutus to embark on
the killings, saying that even Kamuhanda had said that Tutsis had to die,
and that no mistake should be made with regard to the target. The policeman
said these things in public at the location where the Witness lived.
311. Witness GEU testified that on 13 April 1994 he started seeing houses
belonging to Tutsis being burnt. He and other refugees ran away in the direction
of the préfecture of Byumba because killings had not yet started there.
The Witness stated that they crossed Lake Muhazi, where Hutu canoe men raised
their fares for taking people across the lake 100 to 150 per cent. He thought
the canoe men assisted people across the lake initially because they were
not properly informed of the situation; as they later started killing instead.
Prosecution Witness GEK
312. The Chamber recalls that in Section H the evidence of Prosecution Witness
GEK, a Tutsi married to a member of Kamuhanda’s family, was discussed extensively
and that the Chamber found this Witness credible as to her prior knowledge
of the Accused.
313. The Chamber recalls that Prosecution Witness GEK testified that her
husband was a member of Kamuhanda’s family, and that she saw Kamuhanda about
four times prior to the April 1994 events. On 10 April 1994, her husband
asked her to hide inside a room when Kamuhanda came to their residence and
stayed to talk to her husband. The Witness testified that she was not far
away, and could hear what they were saying to each other. Kamuhanda told
her husband that the killings had not yet started in the Gikomero commune
and that those who were to assist them had married Tutsi women. She testified
that Kamuhanda indicated that he would bring equipment for them to start
and if their Tutsi women were obstacles “they should, first, eliminate them”.
She testified that the Accused said that he would return to see if they had
started with the killings or that he would return so that the killings would
start. She said that she saw what happened with the weapons when the Accused
returned to arrange for the killing to start.
314. The Chamber further recalls that Prosecution Witness GEK testified that
Kamuhanda came to the house of a neighbour to arrange for the killings to
start between 10 and 14 April 1994 at the primary school. Kamuhanda parked
his vehicl, which was followed by another vehicle, a blue Daihatsu carrying
a large number of people. The Witness explained that in the second vehicle
some people were carrying machetes, clubs, and guns, but not everyone was
armed, and that occupants either wore ordinary clothes or the Interahamwe
uniform. The vehicle came from the direction of Kigali. On leaving, Kamuhanda
entered his vehicle and went towards the primary school where there were
large numbers of refugees. The Witness testified that she heard gunshots
and noise for between 20 and 40 minutes after Kamuhanda left. After the gunshots
ceased, they were frightened, and could hear the vehicles’ engines, but could
not see them as they left. The Witness testified that she could see wounded
children fleeing towards them and a young girl whose legs were amputated
sought refuge in their house.
315. Prosecution Witness GEK testified that three days after the shootings
which occurred between 10 and 14 April 1994, when the Interahamwe from Rubungo
commune came after them, she and relatives headed for Kibobo. There, they
found bodies in the school. The Witness estimated the number of bodies at
four to five thousand. The Witness went to Kibobo with a relative and Defence
Witness EM, her house-help. In further cross-examination, she denied that
they stayed at Kibobo from 9 to 13 April 1994, as the Defence alleged Drocella
and Defence Witness EM had stated. She testified that they went to Kibobo
because they were afraid of being killed, but they came back quickly because
their Hutu husbands ensured their security, though they were Tutsis. She
denied the allegation by the Defence that she spent the night at Kibobo in
Kayumba’s house. She testified in re-examination that she also travelled
to Kibobo with her servant and one child. The Witness testified in re-examination
that Drocella and her sisters were Tutsi and that Defence Witness EM was
Hutu.
o Presence of the Accused at Gikomero Parish Compound on 12 April 1994 and
the Attack
Prosecution Witness GAF
316. Prosecution Witness GAF, a Tutsi, testified that he knew the Accused
when the Accused was a student at the IPN. He also knew the Accused from
when he started working and met him on several occasions both when the
Accused became involved in politics, and when he was the Director General
at the Ministry of Higher and Scientific Research. The Witness met the
Accused at the inaugurations of the commune office in 1991 and of the Kayanga
Health Centre in 1992. The Witness added that the Accused was very well
known in his area and was known to be a very influential politician and
an influential member of the MRND party from the Gikomero area. In cross-examination,
the Witness testified that he made a mistake in the dates. He testified
that he saw the Accused at the inauguration of the commune office in Gikomero
in 1987, at the Kayanga Health Centre in 1991, and when the Accused attended
MRND meetings in 1992. The Witness testified that the opening of the commune
office was a long time ago. When the Defence suggested that the opening
was in 1986, the Witness testified that he thought it was in 1987. The
Witness testified that Kamuhanda was thanked for what he had done and given
the position of Minister in May 1994. The Witness identified the Accused
in court.
317. Prosecution Witness GAF testified that Tutsi members of his family took
refuge in his house on 7 April 1994 between 5:00 and 6:00pm. He testified
that he and his family members hid in the forests around the houses. At around
5:00am on 8 April 1994, they left their hiding places, went back to their
houses and saw the massive arrival of refugees, mostly Tutsis, from Kabuga
and Ndera regions. On the same day, 8 April 1994, they decided to follow
the refugees to Gikomero Hill together with their cattle. The Witness went
back home and on nearing his house on 9 April 1994, he found a Hutu police
officer, armed with a rifle, telling the Hutus not to flee as only the Tutsis
were being sought.
318. Prosecution Witness GAF testified that on 9 April 1994 he suggested
to his family that they take refuge at the Gikomero Parish. He left his wife
and family with his relative, Gakwene Antoine, for safekeeping. However,
his wife and some other persons sought refuge at Gakwene’s son’s house nearby
because there were too many people in Gakwene’s house. The Witness did not
go back to the Gikomero Parish that night. In the morning after 10 April
1994, after spending the night at Rutabingwa’s house, he went to the Parish
to check on the situation because his elder brothers were there. There was
peace in Gikomero Parish. When the Witness arrived at the Parish, they milked
a cow and he took the milk to his children and their mother who had stayed
at Gakwene’s house. On the following day, 11 April 1994, he left Rutabingwa’s
house to go back to his house and take some food for his family. The Witness
went back to the household of Rutabingwa that evening and returned later
to the Parish where he spent the night with other people. While at the Parish,
at approximately 10:00pm, they listened to Radio Muhabura. While they were
listening, Pastor Nkuranga Charles, who was in charge of the Parish, arrived
and shouted “[…] Now that I have given you shelter, you are listening to
the radio of the Inyenzi which means that you yourselves are Inyenzi.” They
switched off the radio on the Pastor’s orders.
319. Prosecution Witness GAF testified that he found Hutus and Tutsis at
the Parish. A small market had been set up there to enable the refugees to
get food supplies. Although Hutus were among the refugees, the Hutus who
were at the market were natives of the area conducting business. The Witness
remained at the Parish the following day [12 April 1994] when they milked
the cows, and that he had to take supplies to the children and their mother.
He testified that he took his bicycle to the Centre where his store was located
to get some beans. When the Witness returned to the Parish between 2:00pm
and 3:00pm he heard noisy vehicles and that there were cows all around the
courtyard. The Witness testified that he wanted to take a few cows away but
he was not allowed by Pastor Nkuranga. The Witness accepted Pastor Nkuranga’s
statement that they should wait to find out the purpose of those who were
coming.
320. Prosecution Witness GAF testified that he saw four vehicles arrive from
the upper side of the Parish. The leading vehicle had its headlights turned
on. As the vehicles were moving directly at him, he moved away and stood
by the side of the Church. The first vehicle was a white Pajero and the second
a white Hilux pick-up truck, with UN markings. The third vehicle was also
a white Hilux pick-up and the fourth a Daihatsu, but the Witness could not
recall the colour, though it may have been blue. The vehicles stopped and
the Witness was approximately 15 to 20 meters from the line of parked vehicles,
though some were only 10 meters away. The Daihatsu vehicle was full of Interahamwe,
wearing all kinds of attire and carrying clubs, grenades, guns and machetes.
The Witness saw the Accused come out from the vehicle with UN markings, but
could not recall what the Accused was wearing.
321. Prosecution Witness GAF testified that when the vehicles came to a stop,
they shot at Augustin Bucundura, Pastor Nkuranga’s assistant, who fell to
the ground. He could not tell who shot at Bucundura, but that it was the
people who came with the Accused, a soldier disguised as an Interahamwe.
The vehicle was still in motion when Bucundura, a Tutsi, was killed. Bucundura
was standing next to Pastor Nkuranga, a Hutu, when he was shot because they
had come out from the house together. Pastor Nkuranga was not shot.
322. Prosecution Witness GAF testified that Kamuhanda stepped down from the
vehicle, raised his hands and spoke to those who came with him, particularly
the Interahamwe. Kamuhanda was accompanied by Interahamwe, a word used to
designate members of the MRND. However, even the inhabitants of the region
that killed were called Interahamwe, and the word Interahamwe came to mean
anybody who participated in the killings. Kamuhanda spoke in Kinyarwanda
to those who were with him, particularly the Interahamwe, and said “Mukore”,
which means, “work”. Kamuhanda, as he came with killers and was their leader,
used this word to tell them that they should begin the killings. The killings
started after he pronounced that word and all but one of the vehicles left.
Kamuhanda was not armed when he got out of the car. Kamuhanda incited the
people to start the killing and the young people who he had brought with
him started killing on his order. Kamuhanda was only there briefly; approximately
one or two minutes before leaving. Kamuhanda was not present when the killings
started. When Kamuhanda spoke, there were a lot of gunshots following which
most the cattle dispersed. Other cattle were shot in the courtyard and one
of the vehicles carried away the beef.
323. Prosecution Witness GAF testified that nothing happened before Kamuhanda’s
arrival. Before Kamuhanda’s arrival, there were no rifles, grenades, guns,
machetes or Rwandan clubs. Kamuhanda brought instruments to distribute to
people without any. When the Accused left, others stayed behind and started
killing, including some communal police officers. The killers used rifles,
grenades, machetes, Rwandan clubs and even spears. The killers were composed
of Interahamwe and Hutus, but the Witness could not tell whether there were
no Tutsi police officers. Among the police officers, he recognized Karezi,
who lived in Gikomero. Also present were Ngarimbe and John Ntawuruhinga,
reservists from Gikomero, a brigadier Nyarwaya, and another police officer
by the name of Asiel whose first name he did not know.
324. Prosecution Witness GAF testified that he took refuge in a sorghum field
and ran away during the night. From that location, he could see people being
killed in the Compound, but not the killers in the classrooms. The Witness
testified that the number of people killed that day at the Parish was approximately
one thousand. The Witness was shown photographs from Prosecution Exhibit
P2 and pointed out the area to the court. The Witness was also shown a video
to clarify what he had identified from the photographs.
Prosecution Witness GES
325. Prosecution Witness GES testified that as he is from Rubungo commune,
which borders Gikomero, and that he knew Kamuhanda as a local intellectual,
as did most people from that area. Witness GES worked as a civil servant
in the Department of Public Works in the Bridges and Roads Division. He testified
that during a period of approximately three years from 1990 to 1994, Kamuhanda
was Director of Higher Education, a senior post in the civil service, and
that Kamuhanda was well known in the civil service. The Witness testified
that, because his office was across the road from Kamuhanda’s office, he
often saw Kamuhanda before and after work, and during breaks. The Witness
testified that the IRST was a division of the Registry of Higher Education
and Scientific Research, where Kamuhanda was employed. The Defence suggested
that Kamuhanda was at the IRST for two years from 1990 to 1992, contrary
to the Witness’ testimony. The Witness clarified that he did not keep close
account of Kamuhanda’s whereabouts and it was possible that Kamuhanda went
on a mission between 1990 and 1994. The Witness had the opportunity to see
Kamuhanda at several Umugundas and animations that included personnel from
several civil service divisions. When the Defence suggested that the different
divisions of the civil service conducted separate Umugandas and animations,
the Witness responded that sometimes different divisions conducted joint
gatherings. In cross-examination, the Witness maintained that his offices
were in the building across the street from Kamuhanda’s offices housed at
the Kacyiru complex, though the offices may not have actually faced each
other. The Witness identified Kamuhanda in court.
326. Prosecution Witness GES testified that he fled from his home in Kigali
on 8 April 1994 after the Hutus had begun killing the Tutsi there. He fled
to the North via Karagari and Rutare, in Byumba préfecture, and arrived
in Gikomero Protestant Church on the evening of 11 April 1994.
327. Prosecution Witness GES testified that he saw Kamuhanda arrive at Gikomero
Parish on the morning of 12 April 1994. Kamuhanda arrived in the passenger
seat of a single-cab truck with approximately ten armed men in the back of
the truck. Witness GES recognised Kamuhanda as the latter got out of the
truck to speak with the pastor of the Parish, Pastor Nkuranga, approximately
fifty metres away. During this conversation, the truck backed into a parking
place and armed men got out of the truck. In response to a question from
the Bench as to whether or not the men who arrived in the truck with Kamuhanda
were wearing uniforms, the Witness testified that he only remembered that
they wore hats covered with grass and branches. In cross-examination, the
Witness testified that the investigators erred in writing that Kamuhanda
had arrived at 10:00am whereas the Witness testified that he told the investigators
that some Hutus had arrived at approximately 10:00am to loot the Tutsi refugees.
He maintained that Kamuhanda arrived at the Parish sometime between 12:00pm
and 2:00pm.
328. Prosecution Witness GES testified that after approximately ten minutes,
the armed men began to kill refugees who had taken refuge in Gikomero Parish,
starting with a man named Bucundura. The Witness testified that Bucundura
was killed by a person who came with Kamuhanda while Kamuhanda was still
there.
329. Prosecution Witness GES testified that the killings continued in Gikomero,
forcing him to flee once again, across the river to Giti commune and then
across Lake Muhazi.
Prosecution Witness GAA
330. Prosecution Witness GAA, a Tutsi, first met Kamuhanda when Kamuhanda’s
sister Mukabandora was married to Vincent Ngirumpatse and lived in Mbandazi,
about five hundred metres from where he lived. Kamuhanda went to Mbandazi
to take gifts to his sister on the birth of her first child and the Witness
was present during this ceremony, although he was not officially invited.
Witness GAA sat outside the house for about one hour and saw Kamuhanda for
a short while. The Witness further testified that he saw Kamuhanda again
when he had gone to Mbandazi to bury his sister. The Witness identified Vincent
Ngirumpatse from a photograph taken at the Accused’s sister’s funeral. During
both occasions, he never spoke to, nor was he introduced to Kamuhanda but
someone showed him who Kamuhanda was. The Witness identified the Accused
in Court, and the Court noted that the Witness had recognised the Accused.
331. Prosecution Witness GAA testified that, while in Mbandazi, he was told
that he was being sought because he was a Tutsi and because he represented
the PL Party. He stayed in Mbandazi on 7 and 8 April 1994 and went to Kabuga
on 9 April 1994. The Witness did not stay in Kabuga but went back to Mbandazi
and Gicaca on the same day. He spent the night in Gicaca and went to Gikomero
on 10 April 1994. The Witness knew Pastor Nkuranga, who was of Hutu origin.
On 10 April 1994, the Pastor told him that it was safe in Gikomero. In Gikomero,
the Witness could see houses on fire in Mbandazi. Witness GAA felt unsafe
in Gikomero where there were people who knew him and because he saw Interahamwe
at roadblocks; so he left and went to Kibara. Nevertheless, he returned to
Gikomero on 12 April 1994 because about thirty of his family members where
there. The Witness testified that he saw Interahamwe wearing uniforms at
Gikomero on 10 April 1994, but they were not carrying weapons, and they were
only at the roadblocks.
332. Prosecution Witness GAA testified that on 12 April 1994 at Gikomero
Parish, there were about six thousand refugees and livestock in the courtyard
of the Protestant Parish. Local Hutus came to the Church to sell goods to
the refugees. The Witness did not recognise photographs 4, 6 and 8 in Prosecution
Exhibit 2. The Witness testified to having seen a white pick-up truck bearing
the letters “UN” on its side arrive at Gikomero. There were about ten people
who came from the rear of the vehicle including soldiers, Interahamwe and
communal policemen. All of these people wore their respective uniforms and
carried weapons such as rifles, cudgels and knives. He further testified
that another vehicle arrived from which Kamuhanda alighted raising his hands
as if greeting the people. The Witness indicated that he was less than one
hundred metres away from Kamuhanda. He testified that there was a stampede
when the two vehicles arrived and people were being shot at. The Witness
initially testified that the shooting had started when the first vehicle
arrived, and that as soon as he saw the second vehicle arrive, he left.
333. Prosecution Witness GAA testified that Pastor Nkuranga, accompanied
by Bucundura, came out of his house and shouted, “I am Pastor Nkuranga, do
not shoot at me.” The Witness testified that at that moment, one of the soldiers
shot and killed Bucundura and afterwards they shot three others. He further
testified that Bucundura was shot when the two vehicles were there. The Witness
did not mention Bucundura’s shooting in his statement of 6 July 1999.
334. Prosecution Witness GAA testified that in Kamuhanda’s presence, Hutus
shouted, “Get to work Kamuhanda is here now.” The Witness testified that
Kamuhanda went back into his vehicle and left while Hutus continued to shoot
Tutsis. The Witness further testified that Kamuhanda was present during these
killings but he did not stop the soldiers from shooting. The Witness’s family
members told him that the shooting continued for four to five hours, and
after he returned from exile he estimated the number of people killed at
approximately three thousand.
Prosecution Witness GEE
335. Prosecution Witness GEE, a Tutsi, testified that the day after he heard
on RTLM Radio that the President’s plane had been shot down, Tutsi refugees
went to his house, and Interahamwe attacked and killed those refugees. He
survived and fled to Gikomero commune on 7 April 1994. On the way he met
approximately one hundred Tutsi refugees coming from the Kabuga Region. The
Witness testified that he and the refugees were detained by Interahamwe,
who took their belongings and then released them. They went to Burunga to
a place known as “Je t’aime” where the Jurwe secteur Office is located. At
Jurwe, they saw a white “taxi,” coming towards them and they ran to Samutuha
because the people in the vehicle were distributing machetes and other tools
used to kill Tutsis. The Witness explained that he did not talk about this
taxi to the investigators in the statement of 28 February 2000 because he
could not explain every detail. The Witness testified that from Samutuha
he went to Cyabatanzi where he spent two days until the Interahamwe drove
him and the refugees out to Gicaca. They spent a night in Gicaca and the
next morning the Interahamwe attacked them again and they ran to Gikomero
secteur in Gikomero commune. He further testified that he got to Gikomero
at 10:00am on or about 11 April 1994.
336. Prosecution Witness GEE testified that he knew Pastor Nkuranga. He further
testified that there were approximately 400 people in the classrooms of the
Gikomero Parish Compound. The Witness spent the night of 11 April 1994 in
Gikomero with other refugees. He did not recognise any of the buildings in
the Compound from the photographs shown to him in Court.
337. Prosecution Witness GEE testified that between 2:00pm and 3:00pm on
12 April 1994, while they were attacked by Interahamwe, refugees exclaimed,
“We’re going to be killed. Kamuhanda is coming.” The Witness was standing
in front of a classroom when he saw vehicles arrive. Kamuhanda arrived first,
at 3:00pm, with soldiers and communal policemen in a white pick-up truck.
This was the first time the Witness saw Kamuhanda. After the arrival of Kamuhanda,
two other vehicles arrived and stopped to let Interahamwe and soldiers alight.
When Kamuhanda arrived, Pastor Nkuranga was with an old man named Bucundura.
338. Prosecution Witness GEE testified that a policeman shot at Bucundura,
who died on the spot. He was able to see the shooting from where he stood,
despite the crowd of refugees and the cattle. The refugees then fled to the
classrooms where they were shot at, flushed out, and ordered to lie down.
339. Prosecution Witness GEE testified that in the presence of those who
were with him, Kamuhanda called upon the Hutus to carry out the attack and
to stay up all night. The Witness survived and lay among the dead until 4:00am
[the next day], when another attack was launched by the Hutus who were guarding
the site. He escaped to a sorghum field and later fled to Lake Muhazi. According
to the Defence, in his statement, the Witness declared that he hid in the
sorghum fields after the attack, at 5:00pm on 12 April 1994, and not at 4:00am
[the next day] as he testified in Court. The Witness explained that because,
he had not seen Kamuhanda then, he did not think this information to be important
to the investigators. In cross-examination, the Witness was asked why he
had not mentioned in his statement that Kamuhanda ordered this 4:00am attack.
He testified that it was an omission on his part and that he could not explain
everything. Witness GEE did not see Kamuhanda leave the area because he was
lying on top of dead bodies pretending to be dead.
Prosecution Witness GEA
340. Prosecution Witness GEA, a Tutsi, testified that on Wednesday, 6 April
1994, when he was at home, he heard an explosion and saw a bright light between
7:00pm and 8:00pm. He then left his house and went towards Kanombe. He testified
that he hid as of the night of 6 April, without his wife and his loved ones.
He did this because of his experience in the 1963 war, when only Tutsi men
were killed, and women and children were spared. On Friday, two days after
Habyarimana’s plane was shot down, he went to his neighbour, an elderly woman.
However, when he saw three Hutus armed with bows and arrows, machetes and
grenades, he sought shelter in a banana plantation. The three men looted
his house and killed two people he had left there. The Witness testified
that, following this incident, on Friday, 8 April 1994, he left and hid in
Cgishure in Rubungo commune, Jurwe secteur. Here he found more than three
thousand Tutsi refugees from various localities. The Witness testified that
there were attacks every night carried out by the population and the Interahamwe.
Reinforcements came from the communal police and the military, who also killed.
341. Prosecution Witness GEA testified that he headed for Gikomero, arriving
on Monday, 11 April 1994, at the Gikomero Parish. He had never been to that
Church before, and has never returned. The Witness testified that there were
many refugees with their cattle at the Church. He testified that he saw nothing
when he arrived in Gikomero on 11 April 1994 because he was tired, wounded,
and uncertain as to whether the place was safe or not.
342. Prosecution Witness GEA testified that the day after his arrival [12
April 1994], the refugees were attacked by Interahamwe, policemen, and soldiers,
who had arrived in a white pick-up with the letters “UN” on the side. In
cross-examination, the Defence indicated that the Witness had made no mention
of the initials “UN” in his statement. The Witness explained that during
the interview he felt it unnecessary to mention the initials because he was
not directly asked this information. The Witness testified that the white
pick-up carried many people and that, upon its arrival, Kamuhanda alighted
from the front cabin and went towards the Pastor’s house. The vehicle was
parked near the Church. Prior to the massacre, Witness GEA did not know the
Accused. The Witness was told this man was Kamuhanda by a boy, a native of
Gikomero. Others with him shouted, “Kamuhanda has just arrived, our lives
will no longer be peaceful and safe.” In response to a question from the
Bench, the Witness testified that those who recognised Kamuhanda knew him
as a killer. The Witness further testified that upon arriving in the white
pick-up, Kamuhanda talked to Pastor Nkuranga. The Witness said that Nkuranga
connived with Kamuhanda, because he prevented the refugees from leaving the
Compound, by reassuring their safety. In cross-examination, the Witness testified
that on 12 April 1994 the Pastor took pity on the refugees before the arrival
of the assailants, and held a meeting to persuade them not to run away on.
He explained that the Pastor stood in the middle of the crowd, in the courtyard,
and talked to the people. The Witness testified that he personally heard
the Pastor speak, and that the meeting’s sole purpose was to prevent the
refugees from fleeing. He said that the Pastor emphasised “security and safety.”
In cross-examination, the Witness testified that, upon arrival of the assailants,
the Pastor no longer took pity on the refugees. The Witness testified that
people, who had remained behind at Jurwe, joined the refugees on 12 April,
informing them of an imminent attack
343. Prosecution Witness GEA testified that after the conversation between
Kamuhanda and Pastor Nkuranga, an old man, named Bucundura, was shot. He
witnessed this incident from a small eucalyptus bush where he was hiding
on the veranda. The people who were in the pick-up then rushed towards the
refugees and started slashing and shooting them.
344. Prosecution Witness GEA testified that the attack started between 1:00pm
and 2:00pm. Another vehicle came to load military, Interahamwe, and policemen.
He testified that two vehicles came after the first vehicle and after Nkuranga
and Kamuhanda had concluded their conversation. The Witness testified that
he paid attention to the identification marks on the first vehicle, but not
on the others. He testified that this was because he thought the first vehicle
was some ordinary vehicle until he saw that there were the policemen and
Interahamwe who had shot at him at Gishure. The Witness confirmed that one
of the vehicles was from Rubungo commune. The Witness testified that when
they started shooting, Kamuhanda took his vehicle and left. He testified
that those who had arrived in the second vehicle encircled those trying to
flee, and used rifles, grenades, and traditional weapons. He testified that
they shot for a long time because they chased the refugees to the surroundings
of Gahini.
345. Prosecution Witness GEA testified that he could not say how many people
had died at that location, because “that day there were very many.” He testified
that Pastor Nkuranga even chased the survivors from his own residence. The
Witness managed to flee through the lower part of the Church when the assailants
started shooting at people. From there, he said that he headed for Kibobo,
where he took refuge at Gahini in Gikomero. When asked to identify the photographs
contained in Prosecution Exhibit 2, the Witness could not recognise the building
in photograph No. 4 or the building in Photograph No. 8 The Witness testified
that he did not expect to be asked to identify buildings, but only to comment
on the events that had occurred.
Prosecution Witness GEC
346. Prosecution Witness GEC, a Tutsi, sought refuge in Gikomero School
on 11 April 1994 where there were about three thousand refugees. She arrived
at 5:00pm and this was her first time there.
347. Prosecution Witness GEC testified that there were refugees in each classroom
and about fifty people in her room. There were also many cows and sheep in
the Compound. On 12 April 1994, at noon, she and other refugees left to escape
to Igasagara, but a policeman shot at them and they returned to the school.
When Defence Counsel showed Prosecution Exhibit 2, photographs No. 4, 6 and
8 to the Witness, she did not recognise the building. She explained that
she had not noticed the structure of the building when she was a refugee
there. She testified to being inside the classroom when the vehicles arrived
and when she came out of the classroom she saw four vehicles. The first vehicle,
a white pick-up with the "UN" logo, was full of Interahamwe and
soldiers. Another vehicle was a Hilux model. A certain Nzaramba, who was
with her, recognized Kamuhanda as he stepped out of the vehicle. The Witness
also heard other people saying that it would all be over for them because
Kamuhanda had arrived. She also saw Kamuhanda standing in front of the classrooms
with Pastor Nkuranga, who lived nearby.
348. Prosecution Witness GEC testified that she heard from survivors who
were hiding there that they shot at a man named Bucundura, his wife and his
family in front of the classrooms. She did not, however, personnaly see the
incident.
349. Prosecution Witness GEC testified that Kamuhanda raised his hands and
said "start working" to those who were with him. She explained
that the attackers had guns, grenades, machetes, clubs, and cudgels and those
with guns wore military uniforms. She heard the words "start working" when
she was at the door of the classroom. The distance between Kamuhanda and
herself was approximately five metres. The local Hutus joined those who had
arrived in the vehicles. After Kamuhanda said these words, the attackers
started shooting and cutting up people who were in the classrooms. The Interahamwe
ordered the Witness and other refugees to leave the classroom and lie on
the ground. The attackers undressed her and the other refugees and started
cutting them up when they came out of the classroom and lay on the ground.
The Witness did not know if Kamuhanda was still present. The Witness was
injured on her leg, chest, and back with a spear and a club, received a cut
on her head with a machete, and her ear lobe was split in two. The people
lying beside her were cut up, and those trying to run away were shot. According
to the Witness, the massacre started about 1:00pm or 2:00pm and continued
until 5:00pm when the attackers withdrew, but the local people continued
to loot. The Witness estimated that there were about three thousand refugees
there, of which approximately 2,500 died. She testified that at about 5:00pm
she left the place, went to Pastor Nkuranga's house and then went to hide
in a sorghum field. When she left the massacre site, she was injured and
was only wearing a skirt which was torn by the attackers as the attackers
took away the refugees’ clothes.
Prosecution Witness GEG
350. Prosecution Witness GEG, a Tutsi, testified that on the evening of
6 April he was very close to his residence in a bar. When he heard three
gunshots, he came out of the bar and saw a burning plane crash. The killings
started on 8 April 1994 when Interahamwe and soldiers launched an attack
on his home where his pregnant wife and three of his nine children were,
the rest of his children having already escaped. The Witness testified that
when he saw the attackers approaching his house, he managed to escape through
a narrow path to a banana plantation and hide in a thick bush where beans
where growing. He testified that when he came back to his house at around
8:00pm he found his wife and three of his children seriously wounded. He
covered the bodies and went back to his hiding place. When he returned from
exile in August 1994, he found the dead bodies in the toilet pit. The Witness
testified that he left for Gikomero Parish on 10 April with two of his children
and that he arrived at the Protestant Church on 11 April around 8:00am or
9:00am. He testified that there were around 2,000 refugees hiding there,
the majority of whom were Tutsis.
351. Prosecution Witness GEG testified that he spent the night in the Church
courtyard, and saw Pastor Nkuranga the next day, standing in front of his
residence. At this time the refugees were scattered throughout the Compound
and classrooms. During the day, at around 11:00am or 12:00pm, Pastor Nkuranga
called the refugees to talk to them. In cross-examination, the Witness testified
that he knew Pastor Nkuranga because they used to be schoolmates and not,
as indicated in his written statement of February 2001, because the refugees
pointed out to him the Pastor. In cross-examination, the Witness also testified
that there were many cows in the Compound of the Gikomero Parish and that
there was no concentration of people in a particular place. Mainly women
and children were in the classrooms, and the others were outside. The place
was akin to a market place, with locals selling bananas and sweet potatoes.
352. Prosecution Witness GEG testified that he was standing at the side of
the Church facing the courtyard when a small white truck arrived, with two
other vehicles following soon after, and stopped in the Compound. The people
in the vehicles were holding guns and other traditional weapons. The refugees
identified Kamuhanda when he alighted off the white truck by shouting: “That
is Kamuhanda, now that he is here, we are finished.” The Witness did not
personally know Kamuhanda, but the refugees identified him because he was
well-known. In cross-examination, the Witness stated that Kamuhanda was wearing
ordinary clothes. Kamuhanda was not in military uniform, but carried a rifle,
which he did not use. The men accompanying him used their weapons. The Witness
explained that he did not mention the rifle in his written statement of February
2000 because he only remembered details when confronted with a specific question.
The Witness testified that Kamuhanda walked towards Pastor Nkuranga and talked
to him. They were pointing at the refugees as they talked. The people accompanying
Kamuhanda were Hutus with guns and machetes, and were composed of both military
and Interahamwe. The Interahamwe wore Kitenge uniforms with specific berets
and belts, and the soldiers wore military uniforms. There were Hutu policemen
from Rubungo in the other two vehicles. The Witness recognised some of them:
Karasira, Rubanguka, Basesa Jean de Massin, Bucana, and the counsellor of
the Rusoso secteur, Mwongereza Bernard. At that point in time, they had surrounded
some refugees.
353. Witness GEG testified that the vehicle stopped near Pastor Nkuranga’s
residence and passed the place where he was standing at that time, namely
in front of the Church, at the left corner. The white truck was closed in
the front and open in the back, and contained about ten armed people. The
Witness did not flee when he saw the truck arrive since he was unclear about
the situation even though they were armed. There were two vehicles behind
the first truck which stopped in the Compound. Although the Witness recognized
Basesa in the commune vehicle, and seeing Basesa frightened him, he did not
try to flee since they might have asked him why he was running away. The
Witness left when the shooting started.
354. In cross-examination, the Witness identified the Church on photograph
Nos. 4 and 6 , but did not recognize the white buildings on photograph No.
8. The Witness marked where he was standing when the vehicles arrived on
photograph No. 6 but could not mark the location where the vehicles came
to a stop.
355. Prosecution Witness GEG testified that the attack started when a person,
who arrived in the white truck shot Augustin Bucundura, an old man standing
next to the pastor. In cross-examination, the Witness testified that Bucundura’s
wife, standing next to him, died immediately. Kamuhanda left soon afterwards.
In cross-examination, the Witness testified that Kamuhanda was at that location
briefly, approximately two to ten minutes. The Witness never saw Kamuhanda
again, and said that he may not be able to recognise him.
356. Prosecution Witness GEG testified that the refugees tried to escape
in every direction. The attackers assaulted the refugees with rifles, guns,
grenades, machetes and traditional cudgels. He ran away with his two children,
but they were killed on the way. The Witness was wounded in Kayanga, in the
Gikomero area, but he managed to flee because the assailants thought he was
dead.
Prosecution Witness GEI
357. Prosecution Witness GEI, a Tutsi, testified that he heard of the President’s
death on the radio at his home. The following morning he fled with his family,
first to Mbandazi for one night, then to Ruhanga where they hid in the bush
for three days, then to Gicaca, where they arrived on 10 April 1994. They
left Gicaca on 11 April 1994 for the school at Gikomero.
358. Prosecution Witness GEI testified that he and his family arrived at
Gikomero on 11 or 12 April 1994. He had never before be at the school. On
arrival, he saw Pastor Nkuranga, a Hutu, and Pastor of the Protestant Church.
Pastor Nkuranga often preached at Gasogi Parish at the Witness’s Church.
The Pastor refused the Witness’s sisters request for water. The Defence pointed
out that in the statement of 1 March 2000, it is indicated that the Witness
asked for water. However in Court the Witness testified that his sisters
asked for water. The Witness explained that at first they were refused water,
so they thought that maybe if girls asked, they would be given water.
359. Prosecution Witness GEI testified that on 12 April 1994, he saw a white
pick-up truck arrive at Gikomero at about 1:00pm. From a photograph, he identified
a vehicle which resembled the pick-up truck that he saw at Gikomero. In the
back of the vehicle, there were two Interahamwe clad in banana leaves and
two uniformed communal policemen carrying firearms. There were two people
in the front of the pick-up: a driver, and another person who did not carry
a weapon. The latter came out of the vehicle, approached Pastor Nkuranga,
and they talked. On seeing this person, the refugees were surprised and said
something like, “Since Kamuhanda is here, our fate is sealed.” The Witness
did not know this person; he had not seen him before. The Witness testified
that he immediately got closer to them, “up about four metres, in order to
eavesdrop on their conversation.” He heard the person [Kamuhanda] ask the
Pastor about the people there. The Pastor replied that he had seen people
coming to Gikomero. That person [Kamuhanda] then turned to the Interahamwe
in the vehicle, ordered them to come out of the vehicle and said, “All these
people here are Tutsis, kill them.”
360. Prosecution Witness GEI made a sketch of the Gikomero Parish . He testified
that some buildings, as shown on Prosecution Exhibit 2 Sketch B, might have
been renovated since 1994. The Witness indicated that the water tank was
behind what is seen in Photograph No.10 of Prosecution Exhibit 2 and explained
that, in reference to Photograph No. 8, when the vehicle arrived in 1994,
he was at the entrance of the third classroom on the left of the photograph
while Kamuhanda and Nkuranga were near the Church.
361. Prosecution Witness GEI testified that after the person [Kamuhanda]
ordered the Interahamwe to kill the Tutsis, the Interahamwe immediately started
killing. A Protestant preacher and teacher of a school in Mbandazi, Bucundura,
who was standing close to the person [Kamuhanda] was killed first. The Witness
ran away, and he saw Tutsis falling as they were shot.
362. Prosecution Witness GEI testified that he fled from Gikomero to Gicaca.
He wanted to go to Kibara by canoe but the Witness then decided to return
to his home area. When bodies were exhumed in 2000 the Witness identified
three of his four sisters killed at the school in Gikomero.
363. Prosecution Witness GEI identified Kamuhanda in Court.
Prosecution Witness GAG
364. Prosecution Witness GAG, a Tutsi, testified that her neighbour encouraged
her to flee [8 April 1994] with him. She explained that she spent that night
on a colline, while her children took another path. The next day, she went
back home to milk her cows and then fled with the others. In cross-examination,
when asked why she went back to her house to milk her cows when there was
danger, the Witness testified that the first night that she spent on the
hill, nothing had happened in her area. Also the next day, she sent her son
to milk the cows despite the danger, as they were accustomed to that kind
of situation. The Witness spent the night on a hill looking down at the burning
houses. On several occasions, she told her children to go and milk her cows.
They then met Pastor Bucundura, who told them to take refuge in the Parish,
which they did and where another Pastor, Nkuranga offered them refuge.
365. Prosecution Witness GAG testified that on their arrival at the Parish,
there were approximately 40 to 50 people. By 11 April 1994, however there
were up to 15,000 refugees, all Tutsis, who came from everywhere, including
Kabuga, Bicumbi and Gikoro. On 12 April 1994, the Witness and other refugees
had decided to leave Gikomero. On seeing them about to leave, Pastor Nkuranga
reassured them that there were no problems in Gikomero. As they were standing
listening to the Pastor, who was with Bucundura reassuring them, the persons
who were present, including her son, told her that a white pick-up truck
had arrived and guns had been distributed to the Interahamwe. In cross-examination,
the Witness clarified that Gikomero locals who were selling essentials to
the refugees were told to leave by Kibano. The people in the pick-up truck
wore kitenge, banana leaves and carried weapons such as axes, machetes, guns
and grenades. These people alighted from the vehicle. Pastor Nkuranga, on
seeing a man who had come in the vehicle walking towards him, went forward
to meet him. Many refugees who knew this man shouted, “There is Kamuhanda.”
The Pastor then said to the refugees, “I told you that you had nothing to
fear, that your safety would be guaranteed.” The Pastor went aside to speak
with this man [Kamuhanda] as the Interahamwe surrounded the refugees. The
Witness thought that the Interahamwe were protecting them. When this man
finished is discussion with the Pastor, he returned to the vehicle and parked
it near the Church. At this moment, another man who accompanied Kamuhanda
shot Bucundura.
366. Prosecution Witness GAG testified that when the Pastor saw Bucundura
being shot, he raised his hands up and shouted, “I am Pastor Nkuranga.” Kamuhanda
did not stop the shooting and a person who had come down from his vehicle
shot Bucundura. In cross-examination, the Witness confirmed that Kamuhanda
was there when Bucundura was shot.
367. Prosecution Witness GAG testified that the shooting continued and she
ran towards the classrooms because her 4-year-old child was there. She hid
behind a blackboard and mattress with four other women including her elder
sister, while others escaped outside the classroom. From behind the blackboard,
she was able to see the killings from the side, and she saw the killers standing
at the classrooms doors slashing people as they ran out. The attackers put
beautiful girls aside and she heard the girls cry out later. The attackers
specifically told them “we are going to rape you and taste Tutsi women”,
to which the girls replied “instead of raping us, it is better that you kill
us once and for all.” In cross-examination, the Witness explained that despite
a lot of noise in the area she was able to hear people praying as they fled
and even what the girls said. The attackers were dressed in either military
or Interahamwe uniforms, with rags on their heads like savages. Mostly Tutsis
were being attacked. The attackers found the Witness, her child and the four
women. One of the attackers told her to give him her watch and money, while
three girls were ordered to the side to join the other pretty girls. The
Witness explained that the attacker asked to see her ID and then told her
to show it to the other men. The other men looked at it and said that the
she was going to die. They slashed her breast and her head until she was
unconscious. She awakened at 5:00pm outside the classroom on top of dead
bodies.
368. Prosecution Witness GAG testified that she was taken by a friend’s Tutsi
son to the Pastor’s house where she saw many young children crying and other
wounded people being refused water at the Pastor’s house. The Pastor told
them that their fate was to die. In the evening, the Pastor came back with
Interahamwe who had ID cards, including hers, which they gave back to her.
The Pastor told her to leave then. She refused and spent the night there.
In cross-examination, the Witness agreed that it was possible that the refugees
went to the Pastor’s house in the hope that they would be treated but were
instead handed over to Interahamwe to be killed. The next morning, the Pastor
came with Ngarambe, a policeman, and Rutayisire to forcibly remove the Witness
from his house. The Pastor said that Kamuhanda had said that everyone had
to be killed, including the disabled and the children and he asked her to
leave so they could kill her. The Witness explained that the Interahamwe
had come to take all survivors, including children, who were scattered all
over the place to the Bureau de secteur. However, they took her to a bush
where they clubbed until she was unconscious and left her for dead. The Witness
crawled towards the forest and hid in a ravine for 11 days. In cross-examination,
the Witness explained that on the eleventh day, she crawled towards the house
of the old man who had sent his son to look for her at Gikomero after the
massacres; but she came across Interahamwe. She was taken by the Interahamwe
to see the conseiller of Gikomero, who was at a roadblock. A man she knew,
identified her as a Hutu. The same man was instructed to take her to his
house care for her, which he did until the Inkotanyi took control of the
area.
Prosecution Witness GEV
369. Prosecution Witness GEV testified that he fled from his home on 8 April
1994 on hearing reports from refugees about massacres in Rusororo. He took
refuge in Mbandazi until 10 April 1994, when he fled through Gicaca. He arrived
at Gikomero on 11 April 1994 and took refuge at the Compound of the Gikomero
Parish.
370. Prosecution Witness GEV testified that on 12 April 1994, between 1:00
and 2:00pm, he observed a man arriving at Gikomero Parish in a white truck
with a number of Interahamwe. In cross-examination, the Witness was asked
to provide further details on the white truck by comparing what he remembered
to a selection of pictures of trucks provided by the Defence. The Witness
declined to do this, stating that he was not focusing on the details of the
truck on 12 April 1994. He was in the Church with other people when he saw
a man get out of the truck to talk to Pastor Nkuranga. At that point in time,
a friend of the Witness living in Gikomero identified the man as Kamuhanda.
The friend said, “Kamuhanda has just arrived : our fate is sealed.” The Witness
was approximately 15 to 20 metres from Kamuhanda and Nkuranga. Other refugees
in the Parish also identified Kamuhanda. The Witness saw Kamuhanda converse
briefly with Pastor Nkuranga, after which Kamuhanda returned to his truck.
371. Prosecution Witness GEV testified that soon afterwards, the Interahamwe
who had arrived on the truck began killing Tutsis, beginning with Bucundura.
The Witness could not confirm or deny that Kamuhanda was present in Gikomero
Parish when Bucundura was killed. Two other trucks arrived with more Interahamwe
and communal police, both dressed in uniforms, and blocked the road to Gishaka
at a point approximately 40 metres from the Parish. The Witness identified
two of these communal police by name, Rubanguka and Rubwebwe, and testified
that they participated in the killings. He and the other refugees in the
Parish were forced to flee, and he fled across Lake Muhazi through Kibara
Hill.
Prosecution Witness GEP
372. Prosecution Witness GEP testified that all the refugees were at a school
and a Church. On cross-examination, the Witness could not specify the cellule
or the secteur where the Church and school were located, nor could she remember
the name of the location, although she stayed there for at least three days.
The Defence showed Exhibit P2, photographs 3 and 4 to the Witness and asked
whether the buildings in the photos meant anything to her. The Witness said
she was “not there to look at the buildings” but did identify the structure
she saw in photograph No. 4 as a Church. She said she was “in a school, in
a classroom, and the others were in the Church” and that the refugees were
Hutus and Tutsis. There was a constant in-flow of refugees on 9 April [1994],
and an increase in the number of refugees on 10 and 11 April [1994]. On cross-examination,
the Witness testified that some refugees had food and water supplies; others
from the surroundings areas went home to bring food; while some came with
their cows. On cross-examination, the Witness testified that the men were
outside, and the women and children inside the building resting. On cross-examination,
when the Defence inquired about security arrangements, the Witness explained:
“I was still a child, I wouldn’t know about security arrangements.”
373. Prosecution Witness GEP testified that they were all frightened and
decided to flee to areas around Byumba controlled by the RPF. Her father
told them to take the road towards Gikomero and Gikoro to cross Lake Muhazi.
The Witness followed her father, and met “security officers or security agents”
en route. These agents, who were not wearing uniforms, asked to see their
identity papers which they did not show. The agents told her group that a
lot of people who were on the run were moving towards Gikomero to the school
and the Church. They arrived there on 9 April 1994. On cross-examination,
the Witness stated that they went to the place indicated by the agents because
it was their original destination and the agents had told them that there
were others like them at Gikomero whom they went to join.
374. Prosecution Witness GEP testified that early in the morning of 12 April,
approximately 20 Hutus carrying machetes, cudgels, and axes arrived to seize
the refugees’ property. On cross-examination, she stated that these Hutus
arrived between 9:00 and 11:00am. The Hutus asked if there were Hutus amongst
the refugees because “they did not want Hutus killed together with the Tutsis
in the event there was going to be an attack” since the Tutsis were the only
target. The Hutus came out, but among the Hutus were men married to Tutsis
with Tutsi children, who could decide either to join the killers or turn
their backs on them. The Hutus who stood aside left them and went back to
their homes. Close to lunchtime, or just after, a vehicle packed with Interahamwe
arrived. On cross-examination, the Witness stated that it was a pick-up,
possibly white. On cross-examination, she also stated that two Daihatsu vehicles
that she believed were blue arrived after the white pick-up. However, on
subsequent cross-examination, the Witness did not mention the two other vehicles,
but said that “one vehicle arrived at first and that a second vehicle followed
the first.” On cross-examination, she also stated that she knew only that
all the vehicles were pick-ups, but was not aware of their colour, shape,
or make. The people were identified as Interahamwe because of their particular
attire, and they carried leaves or banana leaves, and weapons, with one carrying
a gun. On cross-examination, the Witness stated that she could not estimate
the number of Interahamwe but there were “very many”. On cross-examination,
she also testified that they had machetes, axes, a gun, and cudgels studded
with nails. On further cross-examination, the Witness confirmed that the
vehicle entered the courtyard, turned around in the direction it had come,
and parked on the road towards Gikomero. As a man stepped out of the cabin
of the vehicle, the refugees from that area shouted, “This is Kamuhanda who
has arrived. We are going to die.” Although it was the first time the Witness
saw Kamuhanda, she could see and hear him, because she was in a classroom
close to where he stood. At that point in time the refugees panicked, and
those with the strength to run fled.
375. Prosecution Witness GEP testified that after Kamuhanda had finished
speaking to a man, one of the passengers in the vehicle he had come in shot
the man dead. On cross-examination, the Witness stated that people there
said that the person shot was a Protestant Priest called “Bucundura”, whom
she did not know. On cross-examination, she also stated that Kamuhanda had
a discussion with the pastor before they killed Bucundura. The Witness stated
Kamuhanda said nothing after the man was killed, but turned around and, as
their leader, told the others, “Start working”, so as to incite them to kill.
376. Prosecution Witness GEP testified that they were used to Interahamwe
attacks and when they said, “work”, they knew that it meant to kill. At that
point, a driver moved the vehicle towards the road, and another vehicle with
Interahamwe arrived. The Interahamwe started to assist in the killings. A
man stepped out of this vehicle and had them stop the massacres momentarily
so he could choose some girls. In closed session, the Witness testified that
she heard people call him Kamina and that he had since died. In closed session
cross-examination, the Witness testified that Kamina was the head of an Interahamwe
group, lived in Rugende, went everywhere with his Interahamwe and “got them
to work.” In closed session cross-examination, the Witness explained that
she knew Kamina because of Rugende and Mujumu’s proximity, and one knows
a person of that stature that lives in the area. Not more than 20 girls were
picked, loaded in a vehicle and taken away, and then the massacres resumed.
The vehicle carrying Kamuhanda left after the girls had been loaded into
it. On cross-examination, the Defence read the Witness’ statement in which
she had said that after delivering the “start working” order to the Interahamwe,
“Kamuhanda then left for the commune office.” The Witness replied that the
vehicle was moved to allow the killing to take place, and that she did not
know whether Kamuhanda went towards the commune. On cross-examination, the
Witness stated that the girls were loaded into the pick-up vehicle that had
arrived first, and that she did not know any of them. The Witness later learnt
that the attackers raped and killed all of the girls, except one. On cross-examination,
the Witness testified that she learnet the news at the camp where the Inkotanyi
took those who had escaped the massacres.
377. Prosecution Witness GEP testified that the massacres resumed and that
the Interahamwe, who had machetes, small hoes, axes and grenades, started
cutting people, injuring her. She survived because people fell on top of
her. On cross-examination, the Witness stated that the attacks took a great
deal of time because of the large number of victims. On cross-examination,
the Witness testified that towards the end of the day, the assailants withdrew
to rest. Other survivors went through the bodies to see if anyone was alive
and rescued her. She followed four men, two women, a young boy and two girls.
They looked for a place of refuge, because houses were being burned everywhere.
On cross-examination, the Witness stated that the only survivors she saw
were those who left with her.
378. Prosecution Witness GEP testified that the group fled and the men of
the group asked them to hide separately, which they did. Her group walked
at night and hid during the day. Two men from the other group survived and
told them that even if the war were to continue, the Inkotanyi could not
be very far. The Witness defined Inkotanyi as the RPF soldiers who were coming
to save the victims. The men went looking for the Inkotanyi, and soon came
back to find the refugees and take them to a transit camp.
Prosecution Witness GEH
379. Prosecution Witness GEH, a Tutsi, testified that around 8:30pm [6 April
1994] he heard an explosion and gunfire which continued throughout the night.
It was coming from Kanombe where a military camp is located. In the morning
the Witness learned from Rwanda Radio that President Habyarimana’s plane
had been shot down. At about 8:00am refugees came from Rusororo and told
him of killings there. The refugees told them that Rusororo soldiers and
Interahamwe were shooting at people.
380. Prosecution Witness GEH described the Interahamwe as “people who have
been trained in military matters. They carried guns and worked with soldiers.”
The Interahamwe “were Hutus” and “were militarily trained by Habyarimana”.
The Witness could identify Interahamwe by their kitenge uniforms. He testified
that the refugees told him that the Tutsis were being killed; hence he and
his twenty family members together with Tutsis from the Witness’s hill decided
to flee.
381. Prosecution Witness GEH testified that he went towards Gikomero Protestant
Church where he arrived on 10 April 1994. On re-examination, the Witness
testified that he had never been to Gikomero before the war and has never
been back since he fled from the Parish. On his arrival at Gikomero Parish,
he found 2,000 people from different locations. A Hutu Pastor, Nkuranga,
welcomed them at the Gikomero Parish. After 10 April 1994, no other refugees
joined them in Gikomero Parish. There were refugees everywhere in the Gikomero
Compound, including the buildings, especially the classrooms, and the Church.
There were approximately 10,000 Tutsi refugees at Gikomero Parish. On cross-examination
the Witness declared that “they [refugees at Gikomero Parish] were all Tutsis
that were being sought […] chased and […] being massacred. No others were
being killed apart from the Tutsis […].”
382. Prosecution Witness GEH testified that on 12 April 1994, between 1:00
and 2:00pm, he saw a white pick-up with Interahamwe on board. Pastor Nkuranga
and Mr. Bucundura, a Tutsi catechism preacher from Mbandazi Hill in Gikomero,
went to talk to the men in the vehicle. Kamuhanda returned with Interahamwe
and had a brief conversation with the Pastor. The Witness said that “it was
at that time that the Interahamwe shot at Mr. Bucundura.” The Witness explained
that he did not know Kamuhanda but that refugees from Gikomero told him that
the man was called Kamuhanda. The Witness testified that this man [Kamuhanda]
was with Pastor Nkuranga when they shot at the old man.
383. Prosecution Witness GEH testified on cross-examination that he did not
hear the Accused give the order that the killings should start because it
was impossible to hear the conversation between the Accused and the pastor.
The Witness testified that Kamuhanda went back to his vehicle and that when
he returned, he was with the killer. The Witness believed that “he was the
one that gave the order for the killing.” In cross-examination, the Witness
testified that he did not personally hear Kamuhanda give the order to start
killing. Interahamwe shot at them, and they were with the person [Kamuhanda]
who ordered them from the vehicle. They all panicked and fled because the
Interahamwe had started shooting at them. They ran towards Kibara, where
there were no more than 300 refugees. They spent two days there. . He testified
that they had to move on and cross Lake Muhazi. They went to Rutare commune,
in Byumba préfecture because the people in Kibara “ran after them.”
Prosecution Witness GEM
384. Prosecution Witness GEM testified that she heard the explosion of a
plane at 8:30pm on 6 April 1994. Subsequently she learnt that it was the
President’s plane, at 9:00pm through a radio communiqué: The communiqué and
GEM’s local conseiller, a Hutu, advised everyone to stay in their homes.
She fled from her home on 7 April 1994, arriving in Mbandazi on 8 April 1994,
after spending the night with 5,000 other refugees in a sorghum field. She
subsequently fled Mbandazi to Gicaca on 8 April 1994, and then on to Gikomero
by 11 April 1994.
385. Prosecution Witness GEM testified that she was in Gikomero Parish on
the morning of 12 April 1994 with one million other refugees. She saw a man
identified by others as Jean de Dieu Kamuhanda arrive at the Parish at about
11:00am, alone, in a white truck. The Witness testified to hearing others
identify Kamuhanda and say, “[O]ur fate is sealed.” She testified that they
understood that they had to die, that they had been betrayed. She saw Kamuhanda
meet with Pastor Nkuranga but testified that she had not seen Kamuhanda prior
to 12 April 1994. She relied on other refugees to identify him. The Witness
explained that she had never seen Bucundura or Pastor Nkuranga before arriving
in Gikomero. She testified that an hour after Kamuhanda arrived, he left
the Parish and another truck with armed Interahamwe arrived. She testified
that these armed Interahamwe descended from their trucks and began shooting
in the air, and then into the crowd of refugees. When the Witness was shown
a series of pictures taken of Gikomero Parish, she testified that she did
not recognise the area depicted in those pictures. She testified that a man
from Rusororo named Bucundura was the first to be killed, with his wife and
children.
386. As Kamuhanda was driving out, the Witness testified, another truck arrived
carrying armed Interahamwe. These Interahamwe shot and killed a number of
refugees. Others were killed with clubs and machetes. However, Kamuhanda
was not in the Parish when these killings occurred.
o Evidence After the Events
387. Prosecution Witness GET, a Tutsi born in Gikomero, testified that he
personally knew Kamuhanda as a schoolmate in the local secondary school and
as a friend during Kamuhanda’s university holidays. Kamuhanda invited him
to his wedding and, he visited Kamuhanda when the latter was the Director
General in the Ministry of Higher Education and Scientific Research. The
Witness explained that they were both members of the Gikomero Technical Commission.
He testified that, by virtue of his position and education, Kamuhanda was
feared and respected in his local community in Gikomero, and the Witness
considered him to be a good man.
388. The Witness gave evidence of personally seeing Kamuhanda at the opening
of the Kayanga Health Centre in the presence of the President [Habyarimana]
in line with GEK’s evidence on this matter. The Witness confirmed GEK’s identity
and corroborated her marital status in 1994, as well as the account of the
killings that occurred in front of GEK’s house, as she had reported them
to Witness GET in 1994. The Witness testified that the Gishaka Catholic Parish
School and Church, the Gikomero Protestant Parish School and Church and a
road checkpoint between Gishaka and Gikomero were major massacre sites. In
his capacity as bourgmestre, the Witness testified that he made enquiries
about those responsible for the genocide in Gikomero and that he was told
that Kamuhanda brought and distributed the “instruments” to be used in the
killings. The Witness stated to the Chamber that the last time he saw the
Accused was during the bourgmestre elections held in 1993.
389. The Defence filed a report with the Chamber entitled: Commission pour
le mémorial du génocide et des massacres au Rwanda (Commission
for the Memorial of the Genocide and Massacres in Rwanda) which was drafted
under the authority of the Ministry of Higher Education and was published
in 1996. The Witness admitted that he had met with members of this Commission.
The Defence indicated that Jean de Dieu Kamuhanda did not appear in this
report among those responsible for the genocide in the commune. The Witness
stated that it was not clear that the Commission referred to by the Defence
was an official Commission. It could have been a simple research project.
He added that he had not seen the Report.
b. Defence Evidence
o Defence Witness GPT
390. Defence Witness GPT, a Tutsi male, testified that in 1994 he resided
in Gikomero commune near the Accused’s parents and the Protestant Parish
of Gikomero; therefore he knew the Accused. Although GPT testified that he
was in no way related to the family of Kamuhanda, he later admitted in cross-examination
that he does have family ties with him and that he is grateful to Kamuhanda’s
family for sheltering his mother during the war. He nonetheless denied the
Prosecution suggestion that he had come to give testimony because he had
received fifty thousand Rwandese francs.
391. Defence Witness GPT testified that on 12 of April 1994, when he got
up in the morning at about 9:00am, he went to visit a friend who lived near
the market. Towards 1:00pm, as he was going to his home, he came to a small
drinking place, not far from the market. He heard shots being fired from
the direction of the Protestant Parish of Gikomero, as well as the sound
of motor vehicles driving very quickly. Upon hearing this, he went home and
informed his wife and children, and they fled. He hid in various bushes with
his eldest son and his elder brother. The next day, 13 April 1994, he was
able to flee to the other side of Muhazi, but without his elder brother and
his eldest son, who had been killed. Defence Witness GPT testified that on
12 April 1994 he did not leave the bushes where he was hiding to go to the
Gikomero Protestant Parish. Therefore he did not see with his own eyes the
person who was responsible for the massacres. He testified that he later
heard from people that the Interahamwe and members of the local population
were responsible for these massacres. As a representative of certain organisations
in his commune and having been charged with the task of conducting enquiries,
GPT testified that nobody mentioned who led the attacks on that day.
392. In cross-examination, GPT was reminded that at the time when he made
the aforementioned enquiries, he had already known from the radio and the
Ministry of Justice that the Accused had been arrested for participating
in the genocide in the Gikomero area. GPT admitted that he did not specifically
ask those he interviewed whether the Accused was involved in the killings
that took place in the Gikomero area. He testified nonetheless that he would
have known if people had seen the Accused in the location during the genocide.
393. In cross-examination, Defence Witness GPT testified that he knew the
communal policeman Asiel, although Asiel lived in Kibara. He testified that
he had never heard, as suggested by the Prosecution, that Aisle had told
various people at a bar that Mr. Kamuhanda was due to come the next day with
reinforcements and sharpened machetes and that Kamuhanda had said that no
Tutsi should escape. He testified that he did carry out investigations about
this matter.
394. Defence Witness GPT testified that he knows only two people who were
perpetrators of the Gikomero massacre of 12 April 1994: Nyagatare and Canisius
(a native of Gikomero who lives close to the Parish and Uwimana). He testified
that although the gacaca proceedings had not yet started in Gikomero, Nyagatare
(a detainee who had pleaded guilty and was asking for forgiveness) was brought
to his village and he [Nyagatare] mentioned those with whom he committed
the massacres but he did not mention Jean de Dieu Kamuhanda as one of the
participants. Nor did he [Nyagatare] identify the chief of the Interahamwe.
395. Defence Witness GPT testified that when conducting the census, he did
not speak to GEK because she may have been in prison at that time. He testified
that in April 1994 GEK and her husband were living in Gikomero.
396. Defence Witness GPT attested to knowing Witness GAD, who lived close
to his residence. He said Witness GAD was lying about seeing the Accused
on 8 or 9 April 1994.
o Defence Witness GPR
397. Defence Witness GPR, a female Hutu, resided in Gikomero commune in
April 1994, close to the Parish of Gikomero. She testified that before the
massacres on 12 April 1994, the Hutus and Tutsis of Gikomero lived in harmony.
She testified that refugees had come from Mbandazi and Musave in Rubungo
commune to seek sanctuary at the Gikomero Parish and had stayed for about
one week. Nonetheless, she did not visit the refugees at the Church; rather
refugees such as Bucundura came to her home.
398. Defence Witness GPR testified that after the death of President Habyarimana,
massacres took place in her commune and in the school courtyard in front
of Gikomero Parish Church. Although GPR could not recall the date, she stated
that the massacres occurred on a Tuesday. She testified that the attack started
at approximately 1:00pm, while she was at home. On that day, she saw four
vehicles driving quickly on the road beside her house; and, in the vehicles,
there were people who wore uniforms with caps. It was difficult for her to
identify the people in the vehicles, but then one of them got out of a vehicle
and came to her house asking for her daughter. Witness GPR told this person
that her daughter was not there and that only her husband and she were at
home. This man threatened her and then left her. He went to her husband and
also threatened him. When GPR turned around, she saw that her husband was
on the floor dead, and this man was holding a gun which had been fired once.
She testified that she neither heard the gunshot that was fired nor did she
hear any gunshots at the Parish. Afterwards this person took her to the Gikomero
Protestant Parish Church where she saw military-type vehicles, the same colour
as grass. At the Church, GPR found that refugees had already been killed
by those who had arrived in the vehicles; they had been shot by the attackers
who had carried guns. She saw that the attackers were in the process of slaughtering
cattle, loading the various pieces of meat into the vehicles and looting
the Pastor’s house. GPR heard the man who had threatened her ask her nephew
to lead him to her daughter. The assailants returned to GPR’s house to loot,
loading her belongings and those of her daughter onto the vehicles.
399. Defence Witness GPR testified that following the departure of the vehicles,
the same man gave her meat and asked her to feed children at the Parish.
He threatened her once more before he left. The Witness looked for people
to bury her husband. She testified than three days later he was buried. The
only assailant she recognised that day was the man who had threatened her.
There were no local people from Gikomero among the attackers who looted the
Church. The attackers were from Rubungo and Karama. She knew this because
the man who was looking for her daughter was from Karama in Rubungo. The
Witness attested that the attackers were chasing the refugees from their
area who had sought shelter in Gikomero commune. She testified that only
two people survived the attack.
400. Defence Witness GPR testified that the ethnicity of those who died at
the Parish was Tutsi and that the Interahamwe were all Hutus.
401. Defence Witness GPR testified that she does not know Jean de Dieu Kamuhanda
but that she knows his father, Mureramanzi, who lived on the other side of
Lake Muhazi. After the events, when people spoke of the attacks, GPR did
not hear any mention of Kamuhanda’s name. Since the area in question is Kamuhanda’s
native region, where he has relatives, people would have talked if “Mureramanzi’s
son” had been there during the massacres.
o Defence Witness GPE
402. Defence Witness GPE, a female Hutu, arrived in Gikomero as an adult.
She testified that in 1994 she lived in Gikomero because of work. She testified
that her residence is near the Parish of Gikomero. She testified that in
1994, the refugees at Gikomero Parish had come from Rubungo, that they
had come to the Parish on a Sunday, and that the attack was launched on
a Tuesday. She testified that in the Gikomero area where she lived, there
were few Tutsis. She testified that the local Gikomero Tutsis were not
among the refugees at the Church; they were in their homes because there
were no problems in Gikomero at this point in time. The refugees at the
Parish talked about fleeing from a bad situation which could also have
occurred in Gikomero. Nevertheless, GPR testified that she did not see
any signs of what was to happen. She explained that although the war had
broken out in areas outside her locality, such as Musha, Buganza and Rubongo,
in her area there were no problems.
403. Defence Witness GPE testified that after the death of President Habyarimana,
there were massacres in Gikomero commune, committed at the Parish on 12 April
1994. She testified that this attack was launched between 1:00pm and 2:00pm
but closer to 2:00pm. She explained that at the time of the attack she was
at home as usual. The Pastor was with the refugees at this time. When he
returned to his home to eat lunch he and others in the house heard engines.
The Pastor then went out of the house as did Bucundura, who was also inside,
ready to eat lunch with the Pastor. She testified that, even as vehicles
were arriving in front of the Church, other persons were arriving from another
side. Reuben, a man from the northern side of Gikomero Hill, came from that
direction. He was not in any of the vehicles. Ruben said, “Are you still
here?” As Reuben spoke to them, the vehicles were still arriving and had
not yet parked. The Witness also stated that, “At that point the pastor heard
someone speaking to him, saying, ‘Are you still there when you are amongst
those persons who are meant to be killed?’” When Bucundura heard this question,
he turned probably to warn his children, but at that point he was killed
by a bullet. During this incident, people were alighting from the vehicles.
They asked who the owner of the house was, and were told that it was the
Pastor’s home. At that point someone seized the Pastor and told him to point
out the “accomplices”. The same person went into the Pastor’s residence and
looted everything. The Witness testified that the assailants targeted the
Pastor because he had given shelter to the refugees. She explained that the
search for “accomplices” was just a pretence to pillage the Pastor’s house.
404. Defence Witness GPE testified that when the attack at the Gikomero Parish
Compound began, she fled from her house, taking the nearest bag with clothes
and her three children, one of whom she carried in her arms. She explained
that the attackers, who had firearms and grenades, had taken her by surprise.
She did not see the assailants because, as they were approaching, she ran
out her backdoor, through her fence, and through a sorghum field. She testified
that as she fled she came across attackers who beat her with clubs. They
said, “You should just die. I mean, even your husband is going to die. We
are beating you because you hid Tutsis.” The Witness testified that her life
was spared because the attackers abandoned her to loot from other people
who were fleeing carrying bags of food. When she finally returned home around
6:00pm that evening, she found many dead bodies and a few survivors. The
bodies she saw remained in the courtyard of the Church for two days. She
testified to hearing that the Pastor had informed the bourgmestre about the
bodies and the bourgmestre to buy beers for local people who help to bury
the bodies.
405. Defence Witness GPE testified that she did not Witness the assailants
arrive at the Parish, but believes that they came in vehicles insofar, as
she heard the engines. She did not see the attack. She further asserted that
the Pastor was forced to go into his house to identify the “accomplices”.
406. Defence Witness GPE testified that she knew Jean de Dieu Kamuhanda but
that she had only seen him once at his sister’s wedding. Nonetheless, GPE
testified that the Pastor and Kamuhanda knew each other because they met
at educational meetings. She acknowledged that Kamuhanda was well known in
Gikomero. She stated that neither Kamuhanda nor the Pastor is a killer.
o Defence Witness GPF
407. Defence Witness GPF, a Hutu born in 1972, testified that in April 1994
he lived near Gikomero Parish Compound. In answer to a question from the
Bench, the Witness testified that 1,500 people, approximately, were sheltered
at the Parish on 12 April 1994, the day of the attack. He further testified
that some were killed on the spot, some were killed as they fled the attack
and others survived.
408. Defence Witness GPF realised that there was an attack at the Parish
when he heard gunshots between 1:00pm and 1:30pm. He was having lunch when
Reuben shouted at the Pastor, “You are being attacked and you are still there?”
At that moment, the Pastor and Bucundura stood up and went outside the Pastor’s
residence. The Pastor was behind Bucundura. The Witness explained, “When
I heard the gunshots, I tried to bring out the bicycle in order to go and
hide it. At that point in time, the Pastor, who was already down below [from
GPF’s house] saw me through the window and he told me, “There is no point
in that. The attackers are already upon us. It is better you go and look
for a place to go and hide.” The Witness left the bicycle in the sitting
room of the pastor’s house and fled. In cross-examination, Witness GPF denied
the Prosecution suggestion that Reuben and the Pastor, alerted by shouting,
knew about the impending attack. He also denied the Prosecution’s suggestion
that the Pastor had surrendered Bucundura to the Interahamwe in order to
save himself and his family. He testified that members of Bucundura’s family
have defended the Pastor against criminal allegations.
409. Defence Witness GPF attested to knowing that the assailants at the Gikomero
Parish Compound came from Rubungo, insofar as the policeman who shot his
neighbour, GPR’s husband, was from Rubungo.
410. Defence Witness GPF testified that he had come to the Tribunal to show
that the Pastor did not participate in the genocide.
o Defence Witness GPK
411. Defence Witness GPK testified that in 1994 he carried out his business
in the Kurupangu centre, in Gikomero market. He explained the distance between
Kurupangu and the Gikomero Parish Compound is approximately 300 to 350 metres.
Walking at a moderate pace, one could reach the Parish in fifteen minutes.
In 1994, during the war, he closed his business for security reasons.
412. Defence Witness GPK testified that three days before the massacres,
refugees began flocking to the Parish from Remera in Rubungo commune, and
from Mbandazi. No Tutsi from Gikomero sought refuge at the Parish insofar
as there were no problems of this in Gikomero.
413. According to Defence Witness GPK, the massacres occurred between 1:00pm
and 3:00pm on 12 April 1994. He was near Kurupangu centre when the massacres
commenced. He saw vehicles coming down the road but could not count them.
From a distance of 50 metres, the Witness saw people jump down from one of
the vehicles. They were carrying firearms and traditional weapons. The armed
people encircled the Witness and few others at the market and prevented them
from fleeing. They were told, “Do not be afraid. You won’t have a problem.
We’re only looking for the Tutsis”. They were also told to follow the armed
people to the Gikomero Parish Compound, which they did. On their way they
saw about 10 or 20 dead bodies. When they reached the bureau de secteur they
were divided into two groups; the first group took the normal road to the
Parish to intercept the refugees in their flight from the Parish and the
second group, the one of GPK, was ordered to go in front of the vehicle proceeding
in the direction of the Parish. Witness GPK testified that before the attackers
arrived, he had not heard any guns fired in Gikomero secteur but as he approached
the Parish he heard many gunshots from the direction of the Parish.
414. Defence Witness GPK testified that when his group and Interahamwe reached
the Parish, he saw another group of assailants which had already arrived
at the Parish. He also observed that people had already been killed. At the
Parish Compound, he saw two vehicles: a white Hilux pick-up in front of the
Pastor’s house; and a white Suzuki next to the Church. The Witness testified
that guns were fired, grenades were thrown. The attackers looted the Pastor’s
residence, stealing money, mattresses and other possessions belonging both
to the Pastor and the refugees. The Witness did not recognise anyone during
the attack. When the attackers left he recognised local people. He and other
local people were coerced into joining the attack. He said that the other
local people who joined the attack used bludgeons or clubs, distributed by
the Interahamwe at the Parish. The Witness GPK acknowledged that he was present
during the attack for at least one and a half hours. He also stated that
he personally refused to participate in the attack, but had no other choice
than to stay at the site.
415. In cross-examination, Defence Witness GPK asserted that the Interahamwe
whom he saw on 12 April 1994 were not from Gikomero and were strangers to
him. Defence Witness GPK testified that on 12 April 1994, the massacre was
launched exclusively on the Parish and that the Interahamwe killed indiscriminately.
The Witness testified that he had not seen Kamuhanda distributing weapons
or heard that he had done so, before the Interahamwe arrived in Gikomero.
416. Defence Witness GPK testified that after the massacres, the RPF requested
the inhabitants of Gikomero to identify the perpetrators. The Witness was
personally not asked by the authorities whether or not Kamuhanda was at the
Parish on the day of the massacres. Defence Witness GPK disclosed to the
Chamber the names of those whom he recognised participating in the Gikomero
Parish Compound massacre. All of them were residents of Gikomero in 1994.
He testified that he did not see Reuben on the day of the attack. He further
testified that he did not know whether Reuben was present during the attack.
417. Defence Witness GPK testified that he has not been suspected of involvement
in the massacres. Rather, local people have mentioned him as a Witness to
the massacres.
418. Defence Witness GPK estimated that there were between 30 to 50 assailants,
and that the attack lasted about two hours. The assailants left the area
at around “4:00pm or 4:30pm”.
419. In cross-examination, Defence Witness GPK acknowledged that he has a
family relationship with Kamuhanda.
420. Defence Witness GPK testified that Kamuhanda did not come to his shop
between 6 and 12 April 1994. He further attested that he did not hear of
Kamuhanda being in the area during this period.
o Defence Witness GPC
421. Defence Witness GPC, who lived in Gikomero commune in April 1994, testified
that he has been appointed as a member of the local gacaca tribunal. He acknowledged
that he has family relationship with Kamuhanda. Following the 6 April 1994
the Witness did not see Kamuhanda in Gikomero and indeed has not seen him
since then.
422. Defence Witness GPC testified that victims of the killings were Tutsis
who sought refuge at the Gikomero Parish Compound. The Tutsis who came from
the neighbouring communes of Rubungo, Gikoro and Bicumbi, where killings
had begun, arrived at the Parish on 9 April 1994. The Witness testified that
no local Gikomero residents sought refuge at the Parish since there were
no security problems in Gikomero.
423. Defence Witness GPC testified that killings occurred at Gikomero Parish
Compound on 12 April 1994. On that date, the Witness was in his field close
to the Parish. Hearing gunshots from the direction of the Parish, he went
to the road alongside his field. There he met a man who told him, “Listen,
it is the Interahamwe who are from Rubungo who have just attacked the Tutsis
who are at the Gikomero Parish.” The Witness went to the Parish. When he
arrived he saw attackers who were in the classrooms and in the courtyard.
He testified that he was not afraid because he had already been told by the
men he met on the road that the attackers were only targeting Tutsis. He
observed that the attackers were Interahamwe from Rubungo and that they wore
the distinct Interahamwe uniform. He also saw four vehicles : a white Suzuki
in front of the Church; a double cabin pick-up four by four, near the Pastor’s
house; a blue Daihatsu; and a red motor car. He testified that he did not
stay at the Parish more than five minutes because he had only gone to investigate.
He left to inform his neighbours of what was happening. He estimated that
the attack commenced between 1:00pm and 2:00pm.
424. In cross-examination, Defence Witness GPC dismissed the testimonies
reporting that Kamuhanda was present at the Gikomero Parish Compound as lies.
He stated that Kamuhanda was not at this massacre site. In re-examination,
GPC acknowledged that he arrived at the Compound fifteen minutes after he
heard gunshots coming from the direction of the Parish. He asserted that
he would have been informed if Kamuhanda had been present at the site, before
his arrival.
425. In cross-examination, Defence Witness GPC testified that he had received
no instruction regarding his testimony. He confirmed that he witnessed the
massacres at the Parish and that he did not see Kamuhanda at the massacre
site.
426. Defence Witness GPC testified that he knows very well that both Kamuhanda
and Pastor Nkuranga have been accused of participating in the massacres of
12 April 1994 at the Gikomero Parish. He also knows that Pastor Nkuranga
was released once it was established that the accusations levelled against
him had no grounds. He asserted that his testimony was not to assist Kamuhanda,
but to tell the truth about what he saw.
427. During re-examination, when GPC was asked whether there was an agreement
among the Hutu not to denounce the genocidaires, GPC testified that he knows
of no law that requires Hutu to be silent about the genocidaires. He explained
that when he came to testify, he testified about what he saw with his own
eyes.
o Defence Witness GPB
428. Defence Witness GPB testified that during 1994 he lived in Gikomero
commune and he still lives there to date. He was elected as a member of the
gacaca in his locality. He testified that he has family relations with Kamuhanda.
429. Defence Witness GPB testified that the refugees who started arriving
at Gikomero Parish on 9 April 1994 came from Mbandazi, Rubungo and localities
beyond Kanombe. The Witness passed by the Parish on 10 April 1994 but did
not speak to any of the refugees. When he did so, he saw that the refugees
were in the classrooms and in the Pastor’s house. He testified that there
were no Gikomero Tutsi at the Parish when he passed by the Parish because
before 12 April 1994 there were no problems between the Hutu and Tutsi of
Gikomero.
430. Defence Witness GPB testified that on 12 April 1994 there had been refugees
at the Gikomero Parish but some Interahamwe came and killed them. He testified
that the attack itself took place, “a few minutes after 1:00pm and definitely
between 1:00 and 2:00pm.” At this time, he said he was on the road going
to his home. He stood where the ‘S.O.D.E. VAT project’ road sign is located.
Whilst on his way home, he heard the noise of vehicles and when he looked
back, he saw a blue Daihatsu-type vehicle, followed by a red car. The vehicles
stopped and some Interahamwe came out of the Daihatsu and ordered all the
people in the area, including the Witness, to follow them to the Parish.
He estimates that there were about twenty Interahamwe and about forty local
people. He testified that he and the others followed the assailants and when
they reached the home of Rutayisire the two vehicles stopped. Among the Interahamwe
who stopped at Rutayisire’s home was Twagirayezu, the communal policeman
who killed Edouard [Gashikazi]. The Witness and the others continued, and
when they reached the Parish they were told to stop. He was among the first
group to reach the Parish. After a few moments he saw two other vehicles
arrive, an ISUZU and a white double-cabin pick-up. One of them parked in
front of the Church and the other parked in front of the Pastor’s house.
He testified that when they reached the Parish they were told to stop, slightly
away from the vehicles. The attackers quickly surrounded the classrooms and
told the people who were inside to come out into the courtyard, where the
attackers began to shoot and throw grenades into the crowd. He testified
that the attackers butchered the cattle and loaded them into the vehicles
along with the refugees’ property and that of the Pastor. He did not see
any of the refugees fleeing. He testified that the attack commenced at around
2:00pm and the attackers left at around 4:00pm or 4:30pm, staying approximately
two hours in total. Witness GPB himself stayed there the whole time because
he was surrounded by attackers and was afraid to leave. He testified that
he was forced to join in the attack but although he refused, some of the
people he was with joined in the attack. In his estimation, there were about
one thousand five hundred refugees, and eighty two attackers.
431. Defence Witness GPB testified that on the day of the attack, the first
thing he saw was the attackers surrounding the classrooms. He never saw Pastor
Nkuranga. He testified that what was being said about Pastor Nkuranga was
false. Similarly, the Witness testified that he did not see Kamuhanda, and
that anybody who testified against Nkuranga and Kamuhanda was a liar. He
testified that he knew Edouard Gashikazi, and that he witnessed Twagirayezu
shoot him.
432. Defence Witness GPB testified that after the death of the President
on 6 April 1994, he did not see Kamuhanda in Gikomero, and on 12 April 1994
he did not see him at the Parish. He testified that he saw the vehicles arrive
at the Parish and he saw the whole attack for its whole duration. He said
that those who testified that they saw Kamuhanda among the attackers on 12
April 1994 were liars. GPB testified that he heard of the arrest of Kamuhanda
and when he did he was surprised, as were others in the Gikomero population.
433. The Prosecution suggested to Defence Witness GPB that he was a young,
unemployed man at the time of the attack, and that he was summoned to join
in. The Witness confirmed that he was eighteen years old at the time, and
that he was forced to follow these people. He denied any suggestion that
he participated in the attack. Rather, he claims simply to have followed
the attackers, as he was forced to do.
434. In cross-examination, Defence Witness GPB testified that on 10 April
1994 when he passed the ‘S.O.D.E. VAT project’ road sign, no one were there;
however, when he passed it on 12 April 1994, there were people there. When
the attackers found them, they were all forced to follow, in order to attack
the refugees at the Parish.
435. Defence Witness GPB testified that he knew who Rutabagirwa was, but
not whether he was a Tutsi. He knew that Rutabagirwa had named his child
“Umuhutagehe.” After 1990, the Witness claims that “Umuhutagehe” was considered
to be a Tutsi name, showing that the father of the child was amongst those
who were against the Hutu interest. By giving the name “Umuhutagehe” to his
son, theman blamed the Hutus, and was ready to pursue them.
c. Findings
o Discussion
436. In the following sections, the Chamber will assess the evidence of
both Parties regarding the presence of the Accused in Gikomero commune, at
the Gikomero Parish and School Compound (“Gikomero Parish Compound”) on 12
April 1994 and also the Attack at the Gikomero Parish Compound.
The Presence of Kamuhanda in Gikomero Commune Prior to the Attack of 12 April
1994 on the Gikomero Parish Compound
437. The Chamber notes that Prosecution Witnesses GEK and GEB testified
to having prior knowledge of the Accused. They attested to seeing the Accused
in a vehicle in Gikomero commune before the killings of 12 April 1994 at
the Gikomero Parish Compound.
438. The Chamber recalls the Defence allegations against Prosecution Witness
GEK. The Defence asserted that the Witness lied about her identity, about
being at her home between 10 and 14 April 1994, and about seeing the Accused
before the attack on the Gikomero Parish Compound. The Chamber recalls its
previous finding that Witness GEK’s testimony is both highly credible and
reliable. The Witness gave credible explanations of her movements during
the periods relevant to this indictment. In the Chamber’s opinion, the Witness
knew the Accused prior to the attack of 12 April 1994. The Chamber believes
that on 10 April 1994 she was at her home and overheard the Accused talking
to her husband.
439. The Chamber recalls that it found credible the testimony of Witness
GEK that at her home on 10 April 1994, she heard the Accused tell her husband
that the killings had not started in Gikomero commune; who were to assist
had married Tutsi women; that if their Tutsi women were in the way “they
should first eliminate them”; and that he would bring equipment to start.
The Chamber believes the evidence that the Witness saw, on that same day
outside her home, weapons being distributed when the Accused came out of
the house “to arrange for the killings to start […] at the primary school”.
The Chamber further believes the Witness’ testimony that she saw the Accused
at her neighbour’s house the day the killings started at the Gikomero Parish
Compound - between 10 April 1994 and 14 April 1994 - in a vehicle which was
followed by another vehicle carrying a large number of armed people and Interahamwe
going in the direction of Gikomero Primary School. She heard gunshots and
noise for 20 to 40 minutes afterwards. The Chamber also recalls her testimony
that after the gunshots had stopped, she saw wounded children fleeing. A
young amputated girl sought refuge in her house.
440. The Defence challenged the credibility of Witness GEB. The Defence argued
that the Witness would not have been able to identify the Accused in a moving
vehicle on 12 April 1994, insofar as the Witness had met the Accused only
on brief and rare prior occasions. The Defence further challenged the Witness
about contradictions contained in his prior statement taken by investigators
and his testimony before the Chamber. In his statement, the Witness specified
that a policeman named Asiel had informed him of Kamuhanda’s responsibility
for the attack at the Gikomero Parish. The Witness testified before the Chamber,
however, that wounded refugees had provided this information. The Defence
also pointed out differences between his statement and testimony regarding
the names of refugees who, according to the Witness, were on the road with
him, and who also spotted the Accused in a passing vehicle. The Defence challenged
his account relating to two further events, occurring prior to 1994, where
he attested to last seeing the Accused: the opening ceremony of the Kayanga
Health Centre, in 1991, and the introduction ceremony for Kamuhanda’s wife,
in 1983.
441. The Majority of the Chamber, Judge Maqutu dissenting, finds the account
of Witness GEB regarding the two encounters with the Accused, prior to 1994,
to be credible and to constitute sufficient evidence to establish that the
Witness had prior knowledge of the Accused. The Majority of the Chamber also
accepts the Witness’s testimony that he identified the Accused in a pick-up
vehicle with approximately twenty individuals in the back, some of whom were
armed. The vehicle was coming from behind the refugees, who were approximately
a kilometre and a half from the Gikomero Parish. The Majority of the Chamber
further finds credible the Witness’s testimony that he heard gunshots from
the direction of the Parish, about thirty minutes after the vehicle had passed
the group of refugees.
442. The Chamber has carefully considered the evidence of Prosecution Witness
GEU, who testified that, at 1:00pm on 12 April 1994, he saw a large white
vehicle at the Gicaca Trading Centre, where Kamuhanda was also sighted, according
to unidentified reports. Witness GEU was the sole Witness to testify about
this sighting. The Defence pointed out contradictions between the detailed
vehicle description given by Witness GEU, and the different description given
by Witness GEB who claims to have seen the Accused in a different vehicle
on the same day. The Defence brought the Chamber’s attention to the fact
that the Witness had no prior knowledge of the Accused, and that his reporting
of statements, allegedly made by the Accused when the vehicle stopped at
the Gicaca Trading Centre, was based on the reports of others. The Chamber
finds that it cannot rely on the Witness’s testimony regarding statements
by the Accused, insofar as the basis of his account is uncorroborated hearsay,
and anyhow of questionable credibility.
443. With respect to the identification of the Accused on 12 April 1994 in
Gikomero commune prior to the attack, the Chamber recalls that it has accepted
the evidence of Witness GEK regarding the Accused’s statement about the preparation
of the killing of Tutsis in Gikomero on 10 April 1994. The Chamber also accepts
that the Witness sighted the Accused before the massacres. The Accused was
accompanied by armed people and Interahamwe. The Accused was heading in the
direction of the Gikomero Primary School. From this evidence, the Chamber
finds that the Accused, accompanied by armed people and Interahamwe travelled
in the direction of the Gikomero Parish Compound on 12 April 1994.
444. The Chamber finds credible, by a majority, Judge Maqutu dissenting,
Witness GEB’s sighting of the Accused on the road to Gikomero Parish Compound
on 12 April 1994.
The Presence of Kamuhanda at the Gikomero Parish Compound on 12 April 1994
445. The Chamber observes that 13 Prosecution Witnesses testified to seeing
the Accused on 12 April 1994 at the Gikomero Parish Compound. Three of the
Prosecution Witness, GAF, GAA and GES, attested to having prior knowledge
of the Accused. The Chamber will first assess the credibility of these Witnesses
in turn, regarding identification of the Accused, before evaluating their
factual evidence.
446. The Defence challenged Prosecution Witness GAF’s knowledge of the Accused.
The Defence submitted that the Witness provided inaccurate dates and few
details concerning two occasions when he met the Accused prior to the events
of 1994. Firstly, the inauguration of the bureau communal in 1986, and secondly,
the opening of the Kayanga Health Centre in 1992. Regarding the first challenge,
the Defence points out that the ceremony for the new office occurred in 1987,
and not in 1986, as stated by the Witness. Regarding the second challenge,
the Defence maintained that the Accused could not have been present at the
opening of the Kayanga Health Centre (located in Gikomero commune), because
the Accused lived in Butare at that time. The Chamber notes the dock identification
of the Accused by the Witness. The Majority of the Chamber, Judge Maqutu
dissenting, accepts the explanations given by the Witness regarding the error
in the date of the ceremony for the inauguration of the bureau communal.
The Accused did not deny being there. Indeed, he attested to being responsible
for protocol for this event in 1987. Regarding the opening of the Kayanga
Health Centre in 1992, the Chamber observes that even if the Accused had
been posted in Butare at this time, this alone would not demonstrate the
impossibility of the Accused’s presence. The Majority of the Chamber further
notes that the testimonies of Prosecution Witnesses GEK and GEB corroborate
the testimony of Witness GAF that the Accused was at the opening of the Kayanga
Health Centre in 1992. With respect to prior knowledge of the Accused, the
Majority of the Chamber, Judge Maqutu dissenting, finds the testimony of
Witness GAF to be truthful. However, the Chamber does not believe the unsubstantiated
testimony of Witness GAF that the Accused was known before April 1994 to
be an influential politician and “an influential member of the MRND party
from the Gikomero area”.
447. The Defence challenged Prosecution Witness GES’s knowledge of the Accused.
The Defence suggested that the Department of Bridges and Roads, where the
Witness testified to have been employed at the time, was located more than
four kilometres away from the Ministry of Higher Education and Scientific
Research, where the Accused worked, and not across the street, as the Witness
testified. However, the Chamber notes the Witness’s explanation, that his
office was in a building located across the street from the Accused’s office
in the Kacyiru Complex. The Chamber believes that, as a civil servant, Witness
GES may have known Kamuhanda, a senior civil servant. The Chamber also notes
that the Witness identified the Accused in court. On the basis of all the
evidence presented, the Chamber therefore finds the account of the Witness’s
prior knowledge of the Accused to be credible.
448. The Defence pointed out that Prosecution Witness GAA provided vague
descriptions of two occasions, prior to 12 April 1994, when the Witness allegedly
met the Accused. The first was the birth of the Accused’s sister’s child,
and the second the Accused’s sister’s burial at Mbandazi, less than a kilometre
from the Witness’s residence. The Chamber notes that according to the Witness,
on neither occasion was he introduced to nor did he speak with the Accused.
Rather, the Accused was pointed out to the Witness. The Chamber notes that
the Witness lived close to the Accused’s sister’s home. The Chamber also
notes that the Witness was able to identify the husband of the Accused’s
sister from an old photograph taken at the Accused’s sister’s funeral and
that the Witness identified the Accused in Court. The Chamber is satisfied
that Witness GAA is credible and had prior knowledge of the Accused.
449. The Chamber therefore finds the testimonies of Witnesses GES and GAA
credible regarding their prior knowledge of the Accused. The Majority of
the Chamber, Judge Maqutu dissenting, also finds that the testimony of Witness
GAF is credible regarding his prior knowledge of the Accused.
450. The Chamber will now assess the evidence of Witnesses GAF, GES, and
GAA with respect to their identification of the Accused at the Gikomero Parish
Compound on 12 April 1994.
451. Prosecution Witnesses GAF, GES, and GAA alleged that they were refugees
at the Gikomero Parish Compound on 12 April 1994 and that they identified
the Accused on his arrival at the Compound on this day. Witness GAF testified
that between 2:00pm and 3:00pm, he saw the Accused, from a distance of 15
to 20 metres, arrive in a vehicle with UN Markings. The vehicle was the second,
coming from the upper side of the Parish. The Accused remained at the Compound
for only a short period of time. The Defence maintained, given the large
number of refugees and the short stay of the Accused, that Witness GAF could
not have identified the Accused. The Majority of the Chamber finds Witness
GAF’s identification of the Accused in Gikomero Parish Compound to be credible,
insofar as the Witness saw the Accused in broad daylight and had prior knowledge
of the Accused. Witness GES testified that between 12:00am and 2:00pm he
saw Kamuhanda getting out of a single–cab truck carrying approximately ten
armed men in the back. The Witness was standing at a distance of approximately
fifty metres from the Accused at this time. The Defence challenged Witness’s
identification of Kamuhanda from this distance. However, the Chamber is satisfied
that the Witness was able to accurately see the Accused from that distance.
Witness GAA testified that he was fewer than one hundred metres away when
he saw a white pick-up truck bearing the letters “UN” with about ten people
in the back. Witness GAA did not mention the time of the arrival but did
testify that the Accused came in another vehicle. The Defence expressed doubt
that the Witness could have identified Kamuhanda from this distance. The
Chamber is satisfied that, insofar as the observations of Witness GES and
GAA were made in broad daylight and insofar as they had prior knowledge of
the Accused, their identification of the Accused on that day at Gikomero
Parish Compound by the Witnesses is accurate. The Chamber finds that slight
differences in the Witnesses’ accounts of the vehicle in which the Accused
arrived does not affect the reliability of these Witnesses as a vehicle’s
arrival is a passing event.
452. The Chamber has heard the accounts of other Prosecution Witnesses who
saw the Accused on 12 April 1994 at the Gikomero Parish Compound but who
did not have prior knowledge of the Accused. The Chamber will now assess
their evidence.
453. The Chamber notes that the Defence challenged the credibility of Prosecution
Witness GEE on the basis that the Witness did not recognise the Church premises
in Prosecution Exhibit 2. The Chamber notes Witness GEE’s testimony that
he was standing in front of a classroom between 2:00pm and 3:00pm on 12 April
1994. The Witness stated that unnamed refugees, on seeing a white pick-up
truck arrive, exclaimed, “We are going to be killed. Kamuhanda is coming”.
The Chamber further notes Witness GEE’s testimony that, although there were
cattle and refugees in the area, he was able to see the man identified as
Kamuhanda. The Chamber recalls that GEE attested to Witnessing the killing
of Bucundura by a policeman who arrived with the Accused. The Chamber does
not find the fact that the Witness did not recognise the photograph in Prosecution
Exhibit 2 to be unusual, insofar as the Witness testified that he had never
been at Gikomero Parish Compound before. The Chamber finds the Witness’s
identification of the Accused to be credible.
454. The Defence challenged Prosecution Witness GEA’s identification of the
Accused and the Church. The Witness who recalled that there was a veranda
on the Church was unable to identify the Church building from a photograph
of the Church. The Chamber recalls the Witness’s testimony that on 12 April
1994, between 1:00 and 2:00pm, he saw both Kamuhanda exiting and talking
to the Pastor. According to the Witness, a boy named Musonera, a native of
Gikomero pointed out to him Kamuhanda. The Witness testified that other refugees
exclaimed “Kamuhanda has just arrived, our lives will no longer be peaceful
and safe.” The Witness attested that he was hiding in a small eucalyptus
bush on the veranda of the Church when he witnessed the killing of Bucundura,
by a man who had arrived with Kamuhanda and in the presence of Kamuhanda.
The Chamber does not find it unusual that the Witness did not recognise the
Church premises from photographs shown to him during his testimony insofar
that as he had been at the Gikomero Parish Compound on this one occasion.
The Chamber finds the Witness’s identification of the Accused to be credible.
455. The Defence questioned the ability of Prosecution Witness GEC to identify
the Accused at Gikomero Parish Compound. The Chamber recalls her testimony
that on 12 April 1994, between 1:00pm and 2:00pm, she was in a classroom
when vehicles arrived. A man, who stepped out of a vehicle, was pointed out
to her by someone called Nzarambo as being Kamuhanda. The Chamber observes
that she further testified to seeing Kamuhanda with Pastor Nkuranga in front
of the classroom and to seeing Kamuhanda raise his hands. From a distance
of five metres, she heard him say, “start working”. The Chamber finds that
the Witness’s identification of the Accused is credible.
456. Defence pointed out that Prosecution Witness GEG is the sole Witness
to have testified to seeing the Accused with a weapon at the Gikomero Parish
Compound. The Defence also pointed out that Witness GEG was unable to recognise
the Accused in court. The Witness testified that he was standing at the side
of the Church facing the courtyard when a vehicle carrying the man identified
by other refugees as Kamuhanda arrived and passed by the place he was standing.
According to the Witness, the Accused arrived while the refugees were meeting
with Pastor Nkuranga. The refugees shouted “[T]hat is Kamuhanda, now that
he is here, we are finished.”. Concerning the Defence submission that GEG
is the only Witness to testify about seeing the Accused with a weapon, it
is the Chamber’s opinion the Witness may simply have been mistaken. The Chamber
finds that the Witness’s testimony in the main corroborates the evidence
of other Witnesses with regard to the sequence of events at Gikomero Parish
Compound on 12 April 1994. The Chamber finds, therefore, the Witness’s identification
of the Accused at the Gikomero Parish Compound to be credible.
457. The Defence submitted that Prosecution Witness GEI’s sketch, drawn for
the ICTR investigators, does not correspond to the Gikomero Parish Compound,
as it looked in 1994. Rather, it resembles the Parish today. The Chamber
notes Witness GEI’s testimony that he visited the Gikomero Parish Compound
in 2000 during the exhumation of massacre sites. Accordingly, the Chamber
is of the opinion that Witness GEI may have mistakenly included new buildings
in his sketch given to the Tribunal investigators. The Witness testified
that at approximately 1:00pm, on 12 April 1994, he saw a white pick-up truck
in Gikomero. The person who exited the vehicle identified by refugees who
shouted, “Since Kamuhanda is here, our fate is sealed.” The Witness attested
to moving to approximately four metres from the Accused in order to eavesdrop
on his conversation with Pastor Nkuranga. The Witness heard the Accused ask
the Pastor, “[what] are these people still doing here”. The Pastor replied
that he saw “these people come here”. The Witness testified that the Accused
immediately ordered the Interahamwe to come down from the vehicle. He told
them that “all these people here are Tutsi, kill them”. The Accused also
gave an order for the Interahamwe to shoot Bucundura. After consideration
of all the evidence presented, the Chamber does not find credible the Witness’s
account that he moved significantly closer to the Accused to “eavesdrop on
a conversation”; particularly in respect of his testimony that the refugees
said their fate was sealed when Kamuhanda arrived. The Chamber acknowledges
that Witness GEI is the only Witness who testified that Kamuhanda ordered
the Interahamwe to kill Bucundura. Consequently, the Chamber cannot rely
upon this uncorroborated evidence.
458. The Chamber notes that Prosecution Witness GAG testified that, between
1:00pm and 2:00pm, she was outside the classrooms listening to Pastor Nkuranga,
who was talking to the refugees. At this time she was told by her son, among
others, that a white pick-up truck had arrived and that guns had been distributed
to Interahamwe. She testified that many refugees shouted “that is Kamuhanda”
and that a man who had come with Kamuhanda shot at Bucundura in Kamuhanda’s
presence. She added that once Kamuhanda had finished talking to the Pastor,
he returned to the vehicle. The Defence challenged Witness GAG’s familiarity
with the Gikomero Compound because she could not recognise photographs 7
and 8 in Prosecution Exhibit 2. The Chamber, however, finds the description
of the classrooms by the Witness to be reliable. The Chamber recalls that
Defence Witness GPE testified to having given shelter to Witness GAG who
was wounded after the attack at the Gikomero Parish Compound. The Chamber
finds the Witness’s account of her identification of the Accused at the Gikomero
Parish Compound to be credible.
459. The Chamber notes that Prosecution Witness GEM testified that on the
morning of 12 April 1994, she was at the Gikomero Parish with approximately
one million other refugees. She testified that a man, identified by others
as Kamuhanda, arrived at 11.00am in a white truck. The Witness testified
that she heard people say that Kamuhanda was there and that, “our fate is
sealed”. The Witness testified that within one hour of Kamuhanda’s arrival,
the Accused left in his truck and another truck arrived with armed Interahamwe
who got out of the truck and started shooting at the refugees. She testified
that the first person to be killed was a man from Rusororo named Bucundura
with his wife and children. When shown photographs of the Gikomero Parish,
the Witness testified that she did not recognise the area depicted therein.
The Chamber finds that the inability of the Witness to identify Gikomero
Parish in the pictures is not unusual given that this was the Witness’s first
time at the Parish. However, the Witness’s estimates of time and numbers
are unreliable when compared to the corroborated evidence of other credible
Witnesses. Consequently, the Chamber does not find the Witness to be reliable
on such issues.
460. The Chamber notes that Prosecution Witness GEV testified that, between
1:00pm and 2:00pm on 12 April 1994, he saw a man arrive at Gikomero in a
white truck with Interahamwe. He testified that a friend said “Kamuhanda
has just arrived, our fate is sealed.” At this time he was approximately
fifteen to twenty metres from the place where Kamuhanda and Nkuranga talked
together. Soon afterwards, the Interahamwe shot at Bucundura. The Witness
did not know whether the Accused was still on the premises at that time.
The Chamber finds the Witness’s identification of the Accused at the Gikomero
Parish Compound to be credible.
461. Prosecution Witness GEP was unable to recognise Gikomero Parish Compound
from Prosecution Exhibit 2. The Defence used this to challenge the Witness’s
credibility. However, the Chamber is satisfied with the Witness’s description
of Gikomero Parish Compound as it was on 12 April 1994. The Chamber notes
that Witness GEP testified that around lunchtime on 12 April 1994 she was
in a classroom when she saw a vehicle arrive in the Compound and a man get
out of the vehicle. She testified that refugees shouted “this is Kamuhanda
who has arrived.” The Chamber finds the Witness’s identification of the Accused
at the Gikomero Parish Compound to be credible.
462. Prosecution Witness GEH was unable to recognise Gikomero Parish Compound
from Prosecution Exhibit 2. The Defence used this to challenge the Witness’s
credibility. However, the Chamber is satisfied with the Witness’s description
of the Gikomero Parish Compound as it was on 12 April 1994. The Chamber notes
the testimony of Witness GEH that on 12 April 1994, between 1:00pm and 2:00pm,
he saw a white pick-up with Interahamwe on board. He testified that Nkuranga
and Bucundura went to talk to a man in the vehicle and that some refugees
from Gikomero told him that this man was Kamuhanda. The Witness did not hear
their conversation but testified that Kamuhanda was present when Bucundura
was shot. He did not hear the Accused give an order to start the killings.
The Chamber finds the Witness’s identification of the Accused at the Gikomero
Parish Compound to be credible.
463. The Chamber does not find it unusual that some Prosecution Witnesses
could not recognise the buildings in the photographs shown to them. Since
the events in question, the Compound has been renovated and new buildings
added.
464. The Chamber recalls the testimony of Witness PC who told the Chamber
that “Kamuhanda” can mean “on the road” in Kinyarwanda. The Chamber does
not accept this explanation given the context.
465. The Defence submits that it is not reliable identification evidence
that on 12 April 1994 some Prosecution Witnesses identified a man called
Kamuhanda at Gikomero Parish through shouts from the crowd, when they did
not personally know the Accused, and could not identify him in court. It
submitted that “Kamuhanda” was a common name in Rwanda. Furthermore, only
one of these Witnesses with no prior knowledge of the Accused gave the Chamber
names of those in the crowd who drew attention to the man called “Kamuhanda”
by shouting out his arrival at the scene. The Chamber recalls the testimony
of those Prosecution Witnesses who fit in this category, and their testimony
regarding the crowd’s general exclamation of “Here is Kamuhanda” or words
to that effect. Due to the circumstances of the event, the Chamber finds
nothing unusual in the fact that these Witnesses could not give the Chamber
names of those shouting out the name “Kamuhanda”, and therefore finds that
this fact does not adversely affect their credibility. The Chamber recalls
its finding that the evidence of Witnesses GES and GAA, who identified the
Accused arriving at the Gikomero Parish on 12 April 1994 just before the
massacre, is credible. By a majority, Judge Maqutu dissenting, the Chamber
also found the evidence of Witness GAF, identifying the Accused at the massacre,
to be credible. With regard to the Witnesses who had no prior knowledge of
the Accused, the Chamber finds that their testimonies provide further corroboration
regarding the identification of the Accused by other Witnesses with prior
knowledge of the Accused at Gikomero Parish Compound on 12 April 1994.
466. The Chamber accepts the sighting of the Accused by Witnesses GEK, GES
and GAA at Gikomero Parish Compound before the attack. The Majority of the
Chamber, Judge Maqutu dissenting, also accepts the evidence of Witnesses
GEB and GAF in this respect. Additionally, other Prosecution Witnesses, with
no prior knowledge of the Accused, testified to hearing that Kamuhanda had
arrived at the Gikomero Parish Compound. Given the above, the Chamber finds
that the Accused arrived in a vehicle at Gikomero Parish Compound in the
afternoon of 12 April 1994.
467. The Chamber recalls that both Prosecution and Defence Witnesses testified
that people took refuge at the Gikomero Parish Compound from around 9 April
1994. The Chamber recalls that Witness GAF testified that there were mainly
Tutsi refugees at the Parish on 10 April 1994. Witness GAA testified that
there were about six thousand refugees at the Parish on 12 April 1994. Witness
GEE testified that there were refugees and cattle at the Parish. Witness
GEC testified that there were refugees in each classroom, about fifty people
in her room, and also cattle in the Compound. Witness GEG testified that
there were approximately two thousand mainly Tutsi refugees at the Parish
on 11 April 1994, with women and children in the classrooms and the others
outside. Witness GEH testified that that there were about ten thousand Tutsi
refugees at the Parish Compound on 12 April 1994. Witness GAG testified that
there were up to fifteen thousand Tutsi refugees at the Gikomero Parish Compound
by 11 April 1994. Witness GEP testified that in the early morning of 12 April,
he was asked by a Hutu whether there were any Hutu amongst the refugees because
“they did not want Hutus killed together with the Tutsis in the event there
was going to be an attack”. Based on the totality of the evidence, the Chamber
finds that a large number of mainly Tutsi people had taken refuge at the
Gikomero Parish Compound on 12 April 1994.
468. The Chamber recalls the testimony of the Defence Witnesses on the events
that took place at the Gikomero Parish Compound on 12 April 1994. The Chamber
further recalls that most of these Witnesses testified that the attack of
12 April 1994 on the Gikomero Parish Compound began between 1:00pm and 2:00pm.
469. The Chamber recalls that Defence Witnesses testified that they did not
see the Accused at the Gikomero Parish Compound during the massacre of 12
April 1994. Defence Witness GPT, however, testified that he did not go to
the Gikomero Parish Compound at all. Defence Witness GPR did not indicate
when exactly she arrived at the Gikomero Parish Compound but that when she
did, she found dead bodies and the attackers were looting. Defence Witness
GPE testified that she did not see the attackers arrive because she had fled.
Defence Witness GPF testified that he was having lunch when he heard the
vehicles arrive. When the Pastor saw him through a window, trying to hide
a bicycle, he was advised to flee and he did. Defence Witness GPK testified
that he was apprehended by the attackers and he reached the Gikomero Parish
Compound forty minutes after he first heard gunshots from the direction of
Gikomero Parish. Defence Witness GPC testified that he was harvesting in
his fields when he heard gunshots from the direction of the Parish, he went
to investigate. He arrived fifteen minutes later to find that an attack was
in progress at the Gikomero Compound. On the other hand Defence Witness GPB
testified that he was apprehended and he was among the first group to arrive
at the Gikomero Parish Compound on 12 April 1994 and the first thing he saw
was an attack in progress. Witness GPB testified that he did not see Pastor
Nkuranga or the Accused from the time when he arrived at the Gikomero Parish
Compound to the time when he left to go to his home at the end of the attack.
470. The Chamber notes that the Defence Witnesses may have arrived on the
scene of the events after the man identified as Kamuhanda had already left.
In such a case, even if the Chamber were to believe these Witnesses, it would
not demonstrate that the Accused was not there.
471. The Chamber recalls the testimony of Witness GPB. He testified that
he was in the first group of attackers to arrive at Gikomero Parish Compound
on 12 April 1994, however he did not see Pastor Nkuranga. The Chamber recalls
the version of events given by Defence Witnesses GPE and GPF, who testified
that Pastor Nkuranga was present when the vehicles arrived at the Compound.
The Chamber finds that even if Witness GPB were to be believed, he may have
missed seeing both Pastor Nkuranga as well as the man identified as Kamuhanda
at Gikomero Parish Compound on 12 April 1994.
472. The Chamber notes the evidence of Defence Witness GPT that following
the inquiries he made there was no mention of a leader of the attack of 12
April 1994 at the Gikomero Parish Compound. The Chamber notes that while
indeed GPT may have made inquiries, he testified that he did not question
Prosecution Witness GEK. The Chamber thus finds that even if GPT did make
such inquiries, it does not rule out the possibility that a man identified
as Kamuhanda had been at the Gikomero Parish Compound for a brief period
on 12 April 1994, bringing with him attackers who attacked the refugees sheltering
there.
473. The Chamber notes that Defence Witness GPK testified that he did not
see Kamuhanda in Gikomero between 6 April 1994 and the day of the attack
on 12 April 1994. In fact, he testified that he did not see Kamuhanda for
a long time prior to 6 April 1994. He therefore asserts that Kamuhanda had
not been in Gikomero at any time prior to 6 April 1994 up until 12 April
1994. The Chamber finds Witness GPK to be entirely lacking in credibility
on the material facts. The Chamber does not find it credible that GPK was
unable to flee during the forty minutes from the time he was apprehended
to the time he arrived at the Gikomero Parish Compound. The Chamber is not
satisfied that GPK could observe the attack, without participating, but could
not flee at any time during the attack, a period of approximately one and
a half hours. Neither was he able to help the three young refugee children
who he was asked to help after the attack, nor was he able to recognise most
of the attackers. The Chamber is not satisfied that the Witness saw Karekezi,
a cousin of Kamuhanda, arrive on the scene of the massacre after the attack.
According to the Witness, Karekezi had come to find out what had happened.
The Chamber found his demeanour in court to be evasive and finds that his
aim in testifying was to protect the Accused. This was particularly evident
by his insistence that as he did not see Kamuhanda in Gikomero at the relevant
time, he could not have been there. Witness GPK did not give truthful testimony
about the events of 12 April 1994, and the Chamber rejects his evidence.
474. Defence Witness GPC asserted that because he had not seen Kamuhanda
in Gikomero between 6 April 1994 and 12 April 1994, Kamuhanda was not there.
The Chamber finds his testimony to be unsubstantiated. The Witness holds
the Accused in high esteem, and the objective of his testimony was to protect
him.
475. The Chamber considered the statement of Defence Witness GER, Pastor
Nkuranga, admitted under Rule 92bis of the Rules. In it he made no mention
of the Accused in relation to the events of Gikomero Parish Compound on 12
April 1994. Having considered the evidence of all the other Witnesses who
testified in relation to this event, the Chamber does not accept Pastor Nkuranga’s
evidence. Moreover, the Chamber finds the observations of Pastor Nkuranga
to be unreliable, as he was under investigation for the crimes with which
the Accused is charged.
476. Having considered the evidence of all the Defence Witnesses, the Chamber
finds that even if believed, it would not provide a sufficient basis to rule
out the possibility that the Accused was present at the Gikomero Parish Compound
on 12 April 1994. Taking into account the Prosecution evidence and considering
the evidence as a whole, the Chamber finds that it has been established beyond
a reasonable doubt that the Accused was present at the Gikomero Parish Compound
on 12 April 1994.
The Attack at the Gikomero Parish Compound on 12 April 1994
477. The Chamber will hereinafter discuss the Witnesses’ accounts of the
sequence of events leading to the attack and the attack itself.
478. The Chamber recalls that Prosecution Witnesses GES, GAA and (for the
majority, Judge Maqutu dissenting) GAF, knew and identified the Accused upon
his arrival at the Gikomero Parish Compound. Witnesses GAF and GES testified
that the Accused, accompanied by Interahamwe, got out of the vehicle to speak
with the Pastor of the Parish, Pastor Nkuranga. Witness GAF testified that
Bucundura, a Tutsi, was shot dead by the people who came with the Accused
when the vehicles were still moving. Witness GAF testified that Kamuhanda
stepped down from the vehicle, raised his hands and spoke to those who came
with him, particularly the Interahamwe. Witness GAF added that the Accused
said “mukore”, which means “work”, and the killings started after the Accused
left the Compound, which was only shortly after his arrival. The Witness
testified that the attackers- including communal policemen and reservists-
had rifles, grenades, machetes, Rwandan clubs and spears. The Witness fled,
hid in a sorghum field. He testified that the number of people who were killed
at the Parish on that day were about one thousand. The Chamber by a majority,
Judge Maqutu dissenting, relies on the testimony of Witness GAF in its findings.
479. The Chamber recalls that Witness GES testified that approximately ten
minutes after the arrival of the Accused, armed men wearing hats covered
with grass and branches began to kill the refugees. The killing started when
Bucundura was shot in the presence of the Accused.
480. The Chamber observes that Witness GAA testified that when the Accused
alighted from the vehicle he raised his hands up and the shooting began.
Witness GAA further stated that, in the Accused’s presence, Hutus shouted
“get to work Kamuhanda is here now”. The Witness testified that Pastor Nkuranga
and Bucundura came out of the Pastor’s house at that moment and one of the
soldiers shot and killed Bucundura, and three other persons. At that stage,
the Accused went back to his vehicle and left while the attackers continued
shooting. The Defence attacked the testimony of Witness GAA on the basis
that the Witness did not recognise the photographs of Gikomero Parish Compound
and that the Witness testified that he was not very familiar with this Church.
The Chamber accepts the explanation of Witness GAA on his lack of recognition
of the photographs.
481. The Chamber notes that the testimonies of Witnesses GES and GAA do not
fully corroborate one another, and there is a slight discrepancy in relation
to the moment when a Tutsi called Bucundura was killed by armed persons who
accompanied the Accused. However the Chamber finds that this does not affect
the substance of their testimonies. In this respect, the Majority of the
Chamber also relies on the testimony of Witness GAF.
482. The Chamber recalls that it has, in the previous sub-section entitled
“The presence of Kamuhanda on 12 April 1994 at the Gikomero Parish Compound”,
analysed the testimonies of other Prosecution Witnesses with respect to the
events leading up to the attack. The Chamber will hereafter only recall certain
aspects of their testimonies which are relevant to the findings of the Chamber
on the Accused’s role in the sequence of events.
483. The Chamber notes that Prosecution Witness GEE testified that after
one policeman shot at Bucundura, the refugees fled to the classrooms where
they were shot at, flushed out and ordered to lie down. Regarding his reference
to a second attack which, according to the Witness occurred during the night
between 12 and 13 April 1994, the Chamber does not rule out that this may
have happened.
484. Prosecution Witness GEA testified that after the conversation between
Kamuhanda and Pastor Nkuranga, an old man was shot. The Witness added that
the people from the pick-up truck then rushed towards the refugees and started
cutting them up, shooting at them and maltreating them. The Witness testified
that when the attackers started shooting, Kamuhanda took his vehicle and
left. Witness GEA testified that he could not say how many people had died
at that location, because “that day there were very many.”
485. The Chamber recalls that Witness GEC testified that she saw the Accused
with Pastor Nkuranga in front of the classroom and that the Accused raised
his hands and said “start working”. The Witness claims to have been five
metres away at this moment. The Chamber notes that Prosecution Witness GEC
testified that she did not know if the Accused was still there when the attack
started. According to the Witness, the massacre started at about 1:00pm or
2:00pm and continued until 5:00pm when the attackers withdrew, and the locals
continued to loot. The Witness estimated that out of the three thousand refugees
who were there, two thousand five hundred were killed.
486. The Chamber recalls that Prosecution Witness GEG testified that the
attack started when someone from the white truck shot Bucundura and his wife.
Immediately after this, Kamuhanda left. The Witness testified that Kamuhanda
was at that place for a short time, approximately two to ten minutes.
487. The Chamber recalls that Prosecution Witness GAG testified that the
Pastor went to the side to speak with Kamuhanda as the Interahamwe surrounded
the refugees. The Witness testified that when Bucundura was shot, Kamuhanda
did not stop the shooting, and furthermore that Bucundura was shot by a person
who had come down from his vehicle. The Witness testified that the shooting
continued, and she ran towards the classrooms. When the attackers found her,
they started slashing her breast and her head until she became unconscious
and she woke up at 5:00pm outside the classroom, on top of dead bodies.
488. The Chamber recalls that Prosecution Witness GEV testified that after
the conversation between Kamuhanda and the Pastor, the Interahamwe who had
arrived on the truck began killing Tutsis, beginning with Bucundura. The
Witness did not know whether Kamuhanda was still present when Bucundura was
killed.
489. The Majority of the Chamber observes that Prosecution Witness GEP testified
that after Kamuhanda finished speaking to a man, one of the passengers of
the vehicle shot at Bucundura. She added that from the classroom, she saw
Kamuhanda turn around and she heard him tell the others “Start Working”.
She added that the attack took a long time because there were many victims
and that towards the end of the day, the assailants withdrew to rest.
490. The Chamber recalls that Witness GEH testified that Nkuranga and Bucundura
went to talk to a man in the vehicle. He did not hear their conversation.
He said that Kamuhanda was present when they shot Bucundura.
491. After careful consideration of all the evidence presented, and mindful
of the fact that the Witnesses who had taken refuge at the Gikomero Parish
Compound were fearful for their lives and were hiding when the attack started
on 12 April 1994, the Chamber finds credible the evidence that the Accused
spoke with Pastor Nkuranga, witnessed the killing of a Tutsi man named Bucundura
by an armed person who arrived together with him, and left shortly thereafter.
The Chamber also finds credible that by his gesture and (for the Majority
of the Chamber, Judge Maqutu dissenting) words, the Accused intimated to
the attackers to start the killings shortly before leaving the scene.
492. As to the identity of the attackers, the Chamber has heard evidence
that the Accused came with Hutus, Interahamwe wearing all kinds of attire
carrying clubs, grenades, guns and machetes, a police officer from Gikomero,
reservists from Gikomero, a brigadier, Hutu policemen from Rubongo, a conseiller
of Rusoso secteur, and soldiers. The Chamber finds that the differences between
the accounts are not significant enough to affect the credibility of the
Witnesses. The Chamber is therefore satisfied that those who attacked the
Tutsi refugees at Gikomero Parish Compound were armed Hutus, Interahamwe,
soldiers, communal policemen and reservists who were led by the Accused to
start the killings.
493. As to the attack itself, the Chamber notes the evidence that after the
killing of Bucundura, the people who came with the Accused attacked the refugees
using rifles, grenades and traditional weapons. The Chamber further notes
that the attackers blocked the refugees’ escape from the classrooms and the
courtyard, ordered the refugees to lie down, undressed the refugees and finished
off the work by cutting up the refugees using cudgels and guns. The Chamber
is satisfied with the evidence of Witnesses to the effect that refugee women,
children and men, of Tutsi origin, were killed, injured and forced to flee
at Gikomero Parish Compound on 12 April 1994. The Chamber is further satisfied
that this was carried out by attackers brought by and led by the Accused,
though the Accused left as the attack had just started.
494. The Chamber has considered the evidence of Witness GET and finds it
credible. However, the Chamber considers that the nature of his evidence
based exclusively on hearsay is not relevant because he did not Witness any
of the events at stake in the Indictment.
495. With respect to the allegations of rape, the Chamber has noted that
the Defence stated that Prosecution Witness GAG testified that during the
attack of 12 April 1994 she had seen women taken away by assailants to be
raped. The Chamber observes that GAG did not Witness the rapes, but learned
from her daughter and two victims about them after the war.
496. The Chamber further notes that the Defence highlighted the testimony
of Prosecution Witness GEP who asserted that during the massacres some girls
were selected and led away in a vehicle while the massacres continued. The
Witness specified that the Accused left after the departure of the girls.
The Witness added that no more than 20 girls were picked. She indicated that
she did not know any of these girls, but later learnt at the camp where the
Inkotanyi took those who escaped the massacres, that all the girls except
one were raped and killed by the attackers. The Chamber observes that Witness
GEP did not Witness the rapes but learnt about them after the events.
497. The Chamber recalls that on 20 August 2002, it denied a Defence Motion
to enter a judgement of acquittal with respect to Count 6 of the Indictment,
Crimes Against Humanity (Rape), finding that at that stage of the proceeding,
the evidence adduced was not prima facie insufficient for a conviction. Having
analysed all the evidence presented, the Chamber finds that the testimonies
of both Witnesses GAG and GEP are credible but that the hearsay nature of
the evidence adduced by these Witnesses is not sufficient to sustain a rape
charge against the Accused. The Chamber finds therefore that there is insufficient
evidence for a conviction of Rape as a Crime against humanity.
o Conclusions
498. The Chamber recalls the Accused’s admission that between 1 January
1994 and 17 July 1994 there were throughout Rwanda widespread or systematic
attack against a population with the specific objective of extermination
of the Tutsi.
499. Both Prosecution and Defence Witnesses testified to the effect that
Tutsi civilians from Kigali-Rural préfecture had started taking refuge
at the Gikomero Parish Compound from around 9 April 1994 onwards, fleeing
an attack on Tutsis. Therefore, the Chamber accepts that by 12 April 1994
a large number of men, women and children mainly of Tutsi origin, along with
their cattle, had taken refuge at the Parish.
500. The Chamber has found that the Accused was seen on the road in Gikomero,
in a white vehicle accompanied by armed Interahamwe, prior to the killing
of Tutsi refugees at Gikomero Parish Compound on 12 April 1994.
501. The Chamber finds that the Accused arrived at the Gikomero Parish Compound
in the early afternoon of 12 April 1994 in a white pick-up vehicle. The Chamber
further finds that he was in the passenger section of the front cabin and
that he was accompanied by armed people who were in the back.
502. Based on the totality of the evidence, the Chamber accepts that the
Accused stepped out of the vehicle and had a conversation with Pastor Nkuranga,
a Hutu in charge of the Parish and who resided there. The Majority of the
Chamber, Judge Maqutu dissenting, accepts that after that conversation, the
Accused told the armed persons whom he had brought to the Parish to “work”
which, in this context, was understood by some Witnesses as an order that
the killings of the Tutsi refugees should start. The Majority of the Chamber,
Judge Maqutu dissenting, accepts the Witnesses understanding that the Accused
gave an order to start the killings.
503. The Chamber finds that a Tutsi man called Augustin Bucundura, who accompanied
Pastor Nkuranga in the Gikomero Parish Compound, was shot shortly after the
arrival of the Accused and while the Accused was still present in the Compound.
The Chamber further finds that Bucundura was shot by someone who came with
the Accused.
504. The Chamber finds that the Accused was in a position of authority over
the armed attackers because he led them to the Gikomero Parish Compound and
because he ordered the attack. The Chamber does not, however, find that the
Accused was in a formal superior-subordinate relationship with the attackers
of the Gikomero Parish Compound nor that he maintained an effective control
over them on the day of the attack.
505. The Chamber finds that the Accused arrived on 12 April 1994 at the Gikomero
Parish Compound with a group of Interahamwe, soldiers, policemen and local
population armed with firearms, grenades and other weapons and that he led
them in the Gikomero Parish Compound, Kigali- Rural préfecture, to
initiate the attack. The Chamber finds on the basis of the totality of the
evidence that the Accused initiated the attack and the Majority further finds
that the Accused said the word “work” to give an order to the attackers to
start the killings.
506. The Chamber finds that at the Gikomero Parish Compound on 12 April 1994,
the attackers used traditional weapons, guns and grenades to kill and injure
a large number of Tutsi refugees. The killings were committed by armed Interahamwe,
soldiers, policemen and the local population, and were committed in the Compound,
Church and classrooms. The Chamber finds that the Accused left the Compound
in a vehicle when the killings began.
507. The Chamber does not find the hearsay evidence adduced by the Prosecution
to demonstrate alleged rapes committed during the attack at the Gikomero
Parish Compound on 12 April 1994 sufficient to implicate the Accused, as
alleged in paragraph 6.46 of the Indictment.
3. Massacre at Gishaka Parish
a. Evidence
508. In this section the Chamber considers the following evidence in addition
to the relevant evidence presented in Part II, Section J on Alibi and K on
Impossibility and in the previous sections of this Part III.
509. Prosecution Witness GKL, a Tutsi man, testified to having seen the Accused
during the day on 10 April 1994 at a roadblock at Kayanga in Gishaka secteur,
with armed Interahamwe and police, as well as on the following day, 11 April
1994, between 8:00 and 10:00am, outside the Gishaka Parish and at the football
field, where Tutsis were assaulted and killed.
510. Prosecution Witness GKL testified about the events which preceded his
flight to the Gishaka Parish. According to the Witness, on 7 April 1994,
soldiers came to his cellule, searched his home, and physically assaulted
him. Realizing that there was no security in the area, the Witness and others
left their cellule and went towards Jurwe. There were approximately three
hundred Tutsi from different areas travelling with them “but some of them
died along the way” in attacks from Hutu Interahamwe. After reaching Jurwe
secteur on 9 April 1994, the group proceeded on to Kayanga, where they arrived
on 10 April 1994.
511. Prosecution Witness GKL testified that on this same day, 10 April 1994,
he saw the Accused from a distance of twenty metres “right in front of him”
, together with “one Pascal, Brigadier Nyarwiya, [and] another Interahamwe,”
at a roadblock in Kayanga. The Witness acknowledged that he did not have
an unobstructed view of the Accused, as there were several people in the
way. The Witness, who was moving through a queue of refugees toward the roadblock,
was able to observe the Accused’s activities for approximately fifteen minutes.
The Witness testified that because “everything took place during the day
time and not at night time”, it was clear to him the Accused was “in charge
of that roadblock.” He further stated, “The situation as I was able to observe
it was such that all of those who were with Kamuhanda, everything they did,
they did this after consulting with Kamuhanda and Kamuhanda was there making
hand gestures and he was either pointing in the direction in which we should
be led or what should be done. It was obvious that he was their leader even
though he was not personally carrying any weapons.” The Witness stated that
the Accused was wearing Interahamwe clothing, consisting of a shirt and trousers
that were blue and white and made of Ibitenge cloth. The Witness estimated
that there were approximately twenty Interahamwe and police officers manning
the roadblock. The police had modern weapons, and the Interahamwe were armed
with machetes, spears, clubs, and hoes.
512. Prosecution Witness GKL testified that the Interahamwe pulled refugees,
shouting and screaming, from the group, which was lined up in single file
at the roadblock. The Accused did nothing to prevent the Interahamwe’s violent
assaults. Although the Witness was unable to estimate the number of people
dragged from the queue at the roadblock, he did provide the names of two
refugees whom he knew, Riziga and Muhire. The Witness saw no dead bodies
at the Kayanga roadblock, but did see bodies lying on the ground approximately
20 metres below the road. The situation at the roadblock was chaotic; the
Accused told the Interahamwe to move the refugees towards Gishaka Parish
where their safety would be assured and said to the refugees, “Go to Gishaka;
there you will find protection”.
513. Prosecution Witness GKL testified that the group of refugees then left
the Kayanga roadblock in the direction of Gishaka Parish. En route they travelled
through another smaller roadblock at Rwegeka in Gishaka secteur. This roadblock
was manned by Interahamwe and people displaced by the war, referred to as
Abakiga. The Witness and his group arrived at Gishaka Parish on the afternoon
of the following day. The testimony was unclear as to whether this was 10
or 11 April 1994. According to the Witness, “It took us only one day to go
from Kayanga to Gishaka.” When the Witness and his group arrived at the Gishaka
Catholic Church, the Interahamwe and the Abakiga who were at the site pushed
the refugees into the Church and stole their cattle and other property. The
Witness said that he was not able to estimate the number of refugees at the
site, but that the Church was full of Tutsis when he arrived. Once they were
inside the Church, the refugees were prevented from exiting by the Interahamwe
and Abakiga, who closed the front and back doors. In the evening, from inside
the Church, he heard the Interahamwe rejoicing about their work accomplished
that day. The Witness heard screams throughout the night of people dying,
although he did not see how they were killed. He testified that “people were
taken away from the Church through a back door” by Interahamwe and “never
came back.” The Witness did not see the Parish Priest at the Church. The
Witness stated that he did not personally observe any killing and that no
one was killed inside the Church or in the courtyard but farther away where
there was grass for the cattle.
514. Prosecution Witness GKL testified that the next morning [11 or 12 April
1994], Bizimana, a guard at the convent, came to the Gishaka Church and told
the Interahamwe, “[L]eave these people to go back to their commune.” The
refugees were then ordered to come out of the Church. The Witness stated,
“We sat in a small wood of cypress trees near the convent and in this location
we were separated with the men on one side and women and children on the
other.” The Witness then saw Kamuhanda, who was with members of the Interahamwe
and several policemen.” While the Accused was “going around this place”,
with “his hands in his pocket”, where the refugees were gathered, the Interahamwe
took the refugees’ money and belongings, especially the “clothing that was
still new”. According to the Witness, the Accused was with Nzaramba, who
was the ambulance driver from the health centre, Nyarwaya, Hamachiga and
some policemen. On cross-examination, the Witness testified that the Accused
had come to Gishaka Parish in Nzaramba’s white ambulance.
515. Prosecution Witness GKL testified that the refugees were then taken
to the canton tribunal, where the women were told to return to their homes
and the men, numbering between 80 and 90, were led to the football field,
where the Abakiga had already constructed “bullet proof” structures. The
Witness stated, “Once we got to the football field … they started pushing
us, beating us up.” The Witness, who was able to escape from the crowd of
refugees, saw the Accused at the site, along with policemen who were leading
the other men away. The Witness said that he did not see any of these men
again, and that after the war bodies were exhumed from the football field.
The Witness stated that Kamuhanda was present that morning at the Gishaka
Parish site from 8:00am until 10:00am, from the time that the refugees were
released from the Church until the men were led to the football field.
516. In relation to his identification of the Accused, the Witness testified
that his former classmates at Cerai school, in Gishaka commune, had pointed
out the Accused to him prior to 1993 and that he had seen the Accused on
four occasions near the Gishaka communal office before the war. In the words
of the Witness, "I saw him on four occasions, that is whilst I was attending
school and it was at the time that we used to walk around with other students
and we passed by and saw him with other people." In regard to his identification
of the Accused at the roadblock at Kayanga, the Witness testified that two
refugees by the names of Muyanga and Kanango, both now dead, were with him
at the roadblock, and that they first spotted the Accused. The Witness added,
“When I saw him, myself, I realized that it was a man that usually I saw
at the communal office at Gishaka.” In cross-examination the Witness attested
to hearing from "fellow pupils," as well as from Muyanga and Kananza
at the roadblock, that the Accused was Minister for Education in the “government
of the Abatabazi”. In regard to the identification of the Accused at the
Gishaka Parish Church, the Witness stated that this man was the same person
whom he had just seen at the Kayanga roadblock and whom he recognised from
his student days. The Witness was unable to recognise the Accused in court.
517. Prosecution Witness GKJ, a Tutsi woman, testified that, following the
attacks directed against Tutsis which began in her area on 7 April 1994,
she fled with others to Jurwe. This journey took them “a few days”. The refugees,
who numbered approximately three thousand, were attacked at every location
where they spent the night before arriving in Jurwe. They stayed at Jurwe
for four to six nights, where they were also subject to attacks, and then
they travelled to Gasagara and on to Kayanga. The Witness testified that
on the road to Kayanga the refugees saw a blue Daihatsu pick-up belonging
to the Accused. The Witness was able to identify the driver and two passengers,
who told the refugees to proceed to Gishaka, where their security would be
ensured. The Witness stated, “I able to recognize the police brigadier. His
name was Nyarwiya, […]. I was also able to recognize the driver of the vehicle.
His name is Nzaramba […], and between the people was another person and this
person was Kamuhanda.” Approximately twenty people amongst the three thousand
refugees mentioned the Accused’s name when the vehicle passed on the road.
The Witness acknowledged that she did not know who were the owners of the
either of the two vehicles. She also stated that she had never before personally
seen the Accused. The persons inside the vehicle told the refugees to go
to Gishaka. A second vehicle, which was white, followed the blue pick-up.
According to the Witness, “[T]he occupants of that vehicle repeated what
the occupants of the blue vehicle had said, to go to Gishaka.”
518. Prosecution Witness GKJ testified that the refugees then proceeded to
Gishaka. En route they travelled through Kayanga, where there was a principal
roadblock held by the Interahamwe. The refugees, many of whom were accompanied
by children or were leading cattle, walked in groups. Some used the road,
and others followed paths next to the road. According to the Witness, several
of the refugees were clubbed to death by the Interahamwe at the roadblock
at Kayanga. In response to a question on direct examination about her survival,
the Witness attested to taking another path and returning to the main road
after the roadblock.
519. Prosecution Witness GKJ testified that, on instructions from the individuals
in the two vehicles, the refugees travelled to Gishaka, where they arrived
in the afternoon. The Witness testified, “Once we got there, we were told
to get into the Church.” There were already other refugees both inside and
outside of the Church. The refugees were initially separated. Women with
children entered the Church first, and men followed. According to the Witness,
“We closed the [Church] doors, because we knew that there were Interahamwe
arriving. In just a few moments after that, we heard the engines of the vehicles
arriving, and then people ran to the windows to see what was happening outside.
And I heard people saying, this is our dawn, our fate is sealed, because
Kamuhanda has arrived.” She could see the Accused through the window of the
Church, “but there was a lot of hustle and bustle.” The Accused was not alone;
“he was in front of the others.” The Witness also said, “At that time they
were on foot, because they had parked the vehicle in the courtyard.” The
Witness recognized the Accused as the same man whom she had seen in the vehicle
earlier that day. Moreover Nyarwaya was still with him. Many other refugees
in the Church recognized the Accused, and called out, “Kamuhanda, there comes
Kamuhanda.” The assailants carried traditional weapons, except for Nyarwaya
who had a gun. It was now nightfall, and the assailants tried to break down
the doors of the Church. The Parish Priest spent the night trying to prevent
the assailants from committing atrocities, and instructing the refugees to
pray. According to the Witness, the Priest said, “Rwandans are bad. You are
going to be exterminated because Kamuhanda has come.” There was no killing
inside the Church that night; “only the children died asphyxiated.” The Witness
also stated, in cross-examination, that the assailants had been told not
to kill the refugees in the Church.
520. Prosecution Witness GKJ testified that the killings intensified in the
morning.” The refugees opened the Church doors, on which the Interahamwe
were pounding, upon the arrival of the Priest, who told them to leave the
Church. “We heard an engine [sic] arriving, and at that point, the Parish
Priest told us, ‘You are going to die. I would like you to make your last
prayer.’” The refugees were then separated into two groups, the men on one
side and the women on the other, and were attacked. The Witness saw the Accused
in the Church courtyard and heard him say to the Interahamwe “to kill people
and to send the rest of the people home.” The Witness testified to seeing
bodies lying everywhere around Gishaka Parish. She stated that the refugee
men were taken away to another location, where they were killed. Although
the Witness fled from the Parish which was later attacked by assailants,
thrown into a ditch, and left for dead.
521. Prosecution Witness GKJ attested, in cross-examination, to first seeing
the Accused when he and others drove by the group of refugees in a blue Daihatsu
pick-up. Other refugees pointed out the Accused. The Witness also stated
that she was able to distinctly see the persons in the vehicle at that time.
In regard to her identification of the Accused subsequently at the Gishaka
Parish Church, the Witness stated that she recognised him twice: first, on
the day of her arrival, when she saw him through the window of the Church,
as pointed out by an elderly man by the name of Chbakanga; second, on the
following morning between 7:00am and 9:00am outside the Church when her life
was being threatened, and she was able to catch only a “swift glance of him.”
522. Prosecution Witness GEL, a Tutsi man, testified to having seen the Accused
on 10 April 1994 both in front of the Gishaka communal office, with other
local officials, and at the Gishaka Parish Church, shortly before an attack
on Tutsi refugees who were gathered there.
523. Prosecution Witness GEL testified about the events preceding his flight
to Gishaka Parish Church, following the death of President Habyarimana. On
7 April 1994, he, five members of his immediate family and more than twenty
people from his uncle's family fled from the hill where they lived in the
Kigali-Rural Préfecture to escape attacks against Tutsis by the Interahamwe
in this area. On direct examination, the Witness testified that the refugees
fled to Jurwe before proceeding through Gikomero to Kayanga and then to Gishaka.
On cross-examination, the Witness testified that his group of refugees also
travelled through Rutinga. When asked why he had not mentioned Rutinga earlier,
he responded that the Prosecutor had not asked him about all the stops which
the refugees had made on their odyssey. The Witness testified that in Jurwe
they were attacked by Interahamwe from the local population. According to
the Witness, Stanislas Mbonampeka led this attack. During the attack, which
lasted all day, the refugees confiscated three grenades and a gun from their
assailants. These weapons, however, were later taken from them, without incident,
when they arrived in Kayanga, where the road "was blocked".
524. Prosecution Witness GEL testified that, in Kayanga, the refugees met
the following three local authorities: the bourgmestre of Gikomero commune,
the accountant for the commune, and Nyarwaya, who was brigadier of the Gikomero
communal police. The Witness testified that the Gikomero communal office
was located at Gishaka and that these three individuals "assured us
that they were going to take us [to] the communal office in Gishaka and that
at the communal office our security would be guaranteed by the soldiers of
UNAMIR."
525. Prosecution Witness GEL testified that, as a result of the security
assurances given by the bourgmestre of Gikomero and the other two local authorities,
he and his group of refugees travelled from Kayanga that day, which he thought
to be 10 April, to the Gikomero communal office in Gishaka. There, while
walking along the road leading to the Parish Church, the Witness recognized
the Accused, who was standing in front of the communal office, conversing
with local authorities, including the bourgmestre, the accountant and the
brigadier, who had gone ahead of the refugees. The Witness provided a broad
estimate of the distance between himself and the Accused, as "between
50 metres, 20 metres, 10 metres", and acknowledged, "I wasn't able
to look at him for long because I was escaping". There were no UNAMIR
soldiers at the communal office. The Witness testified that other refugees
also recognized the Accused and said, “That one is Kamuhanda. He is an authority
and he is going to intercede on our behalf.” The Witness stated that he did
not know the Accused well, yet he thought that the Accused would lead the
refugees to the UNAMIR soldiers, who would protect them.
526. Prosecution Witness GEL testified that four soldiers of the presidential
guard were also with Kamuhanda, the bourgmestre, and the other local authorities
at the Gikomero communal office in Gishaka that day. In direct examination,
the Witness said that he knew the members of the presidential guard; however,
he had never before seen any of these soldiers. In cross-examination, the
Accused acknowledged that he did know one of the soldiers, who was responsible
for the security of Nsabimana. The Witness estimated that a thousand refugees
of Tutsi ethnicity, coming from Bicumpi, Kanombe, Rubungo Gikomero and other
locations, were amassed at the commune office on that day.
527. Prosecution Witness GEL testified that, after seeing Kamuhanda at the
communal office in Gishaka, he and his group of refugees reached the Church
on the afternoon of the same day, 10 April 1994. The Witness said that the
roadblock on the main road between the commune office in Gishaka and the
Parish Church had been lifted to allow refugees to pass through. When asked
how many people were gathered at the Church, the Witness answered, “There
were many, many people there, sir, and I would put them at more than a thousand.
Our group was composed of about a thousand people too, but they were more
than a thousand. I didn't count. This is a simple estimate.” The Witness
testified that the people in the Church were Tutsis and that they sought
shelter at the Church because there was not enough space at the commune office
in Gishaka. The Witness did not see the Parish Priest Father Michel Donnet
on 10 April 1994. According to the Witness, “[H]e had already left, but people
told us that he was there in the morning.”
528. Prosecution Witness GEL testified that, once inside the Church, he looked
through the window and saw the Accused outside, driving around the Compound
in a Hilux double cabin vehicle, which he thought to be red. The Accused
did not stay long, and the Witness did not hear him say anything. Shortly
following the Accused's visit to the Parish, the refugees amassed at the
Church were attacked. According to the Witness, "Between 30 minutes
and one hour elapsed between the arrival of Kamuhanda and the attack."
529. Prosecution Witness GEL testified that immediately after the Accused's
departure and just before the attack on the refugees, Stanislas Mbonampeka,
who had led the violent assault against refugees in Jurwe, arrived at the
Church. "He simply said that [President] Sindikubwabo had died and that
he was killed by Tutsi. He didn’t say anything else, and, then, he immediately
left.” Following this announcement, the Witness saw Interahamwe, soldiers,
and police officers “coming from nowhere.” The Interahamwe had traditional
weapons, whilst the police and the military carried grenades and guns. According
to the Witness, civilians and peasants also charged the refugees with traditional
weapons. The attackers hurled grenades through the windows of the Church,
because the doors were closed. Most of the refugees who attempted to escape
from the Church were killed with machetes. The Witness estimated that 200
people, approximately, survived the attack on the Gishaka Parish Church.
530. Prosecution Witness GEL recalled having seen the Accused prior to April
1994 on two separate occasions. He first saw the Accused some time before
1994 at the Ministry of Primary and Secondary Education in Kigali, where
a friend pointed out the Accused, as a "senior official" in the
ministry. The Accused was walking down the corridor, and the Witness, from
a distance of "five to ten metres", was not able to observe him
at length. Approximately a year later, the Witness again observed the Accused,
this time at a public ceremony for a development project held at the bureau
communal office in Rubungo. The Witness recalled that the ceremony was held
on a Sunday and that he arrived around 11am just as the Accused was introduced
to the audience. The Witness also testified to having been in the midst of
a crowd, to having seen from a distance of ten to twenty metres, approximately,
, and to having left the ceremony "five minutes after the introduction
of Kamuhanda". The Witness identified the Accused in court.
531. Prosecution Witness GKI testified that on 11 April 1994 the bourgmestre
of Gikomero commune, Telesphore Rutaganira, a Hutu, visited her hill and
met the Hutus residents. Shortly thereafter, the Hutus began to establish
roadblocks, and the Tutsis began to flee from the hill. The Hutus had been
told to go to the Gishaka bureau communal, and the Tutsis to the Gishaka
Parish Church.
532. Prosecution Witness GKI testified that on 12 April 1994 at approximately
4:00am or 5:00am she and members of the family left their home in Gikomero
commune to seek shelter at the Gishaka Parish Church, where they arrived
early in the morning with a group of between fifty and eighty Tutsis. The
Witness recalled the date because her birthday was the next day. They were
the first refugees to arrive at the site. Later in the day, other refugees,
fleeing from attacks at Nyakonga, joined them and, in the afternoon, between
800 and 1000 refugees had gathered at the Church. Many of them carried papers
to guarantee their security at Gishaka Parish, which they gave to the Priest.
Many of the refugees who sought shelter at the Parish told the Witness about
being attacked by the Interahamwe, and some bore wounds from machetes and
grenade explosions.
533. Prosecution Witness GKI testified that children in her family were ill
and that she sought medicine for them from Dr. Rusatsi at the health centre
in the area. The Witness testified that when she entered the canteen at the
health centre, people stopped conversing and withdrew to the inner part of
the room. At the centre, she greeted and spoke briefly with the bourgmestre,
Telesphore Rutaganira, about the refugees’ security problems. The bourgmestre
was with other people, and said to one of them “Mr. Kamuhanda we will see
you. We will meet again later.” The Witness testified, “This was Kamuhanda,
and when he [the bourgmestre] said this person's name, I turned around and
looked at the person he was speaking to. I saw this man's face” The Witness
also recalled that this was same man whom her brother had pointed out in
a passing white vehicle on the morning of 30 March 1994, six days before
the death of President Habyarimana. On that date her brother had told her
that the bourgmestre's wife had information from Kamuhanda of plans for the
Interahamwe to kill Tutsi accomplices in Nkuzuzu cellule.
534. Prosecution Witness GKI testified that she returned to the Gishaka Parish
Church from the health centre around 5:00pm on this same day. While sitting
in the courtyard in front of the Church, she saw a blue minibus, used as
an ambulance, arrive with the bourgmestre and policemen carrying rifles.
The Witness confirmed that the bourgmestre was the same person whom she saw
with Kamuhanda at the health centre one hour earlier.
535. Prosecution Witness GKI testified that the bourgmestre ordered the Tutsi
refugees to enter the Parish Church and the Hutus to go to the bureau commune.
She testified, “[W]e were pushed into the Church and the doors were closed
[and] I saw persons that were armed surrounding the Church.”
536. Prosecution Witness GKI gave testimony about rumours that spread amongst
the refugees in the Church that the Accused helped to distribute equipment
for the killing in the Gikomero region. She testified, “While we were at
the Church during the night people were screaming saying we must pray because
we are about to die and these people said that Kamuhanda had brought weapons.”
She testified that throughout the night of 12 April 1994 assailants opened
the door and took people out; then the refugees in the Church heard people
screaming and shots being fired.
537. Prosecution Witness GKI stated there was a lull between 5:00am and 6:00am
on the morning of 13 April. The Witness approached the Priest, who was baptizing
refugees, and requested a drink of water. The Priest told her to follow him
to his house for water. While she was at the Priest’s house, the Witness
heard screams and shots from the Church. The Witness testified that the Priest
asked her to hide in one of the bedrooms, but that between 4:00pm and 5:00pm,
someone informed the Priest that he too would be killed if he hid a Tutsi.
Shortly thereafter, when the Witness left the Priest's residence, she saw
between fifty and a hundred dead bodies. Witness GKI testified before the
Chamber that she stepped over the body of her own dead mother as she fled
from the site. According to the Witness’s estimate, the attack on the Gishaka
Church lasted until some time between 8:00pm and 10:00pm, after beginning
between 5:00am and 6:00am, with a lull around 2:00pm.
538. The record does not indicate the Witness’s identification of the Accused
in court. The Witness attested to having seen the Accused on two brief occasions
prior to the attack at the Gishaka Parish Church. Although she heard rumours
from other refugees about Kamuhanda's distribution of equipment to the assailants,
the Witness did not personally see the Accused at the Parish Church during
the massacre.
539. Defence Witness PCE , a female relative of the Accused, testified that
on 12 April 1994 she went to the health centre near the Gishaka Parish in
order to meet with her uncle, a Tutsi. Together they went to the Gishaka
Parish Church to discover if any of their relatives had sought shelter there
.They did not find any relative at the Church. Back at the health centre,
the Witness noticed Prosecution Witness GKI, whom she knew well as they attended
Church together, and who had come from the Parish to ask for medicine. Witness
GKI had come to ask for medicine, and it was only Witness PCE and her uncle
who were present. Witness PCE saw Witness GKI come and go. Defence Witness
PCE visited her uncle between around 11:00am and 3:00pm, however they only
spent around 20 minutes together at the Church. That day, the Witness also
passed by the house of Rutaganira, the bourgmestre of Gikomero commune, and
could see that no one was in. In response to a specific question, the Witness
stated that between 6 April 1994 and 13 April 1994 she never saw the bourgmestre
working at the commune office, nor did she hear that he was there. Nor had
she heard of any meeting held at the canteen located between the health centre
and the bureau communal that took place on 12 April 1994, and thinks that
this would have been impossible anyway, as it had been closed due to the
security situation. The Witness heard from others that the bourgmestre had
already fled, and that he had found refuge with a person called Akayunga.
540. Defence Witness PCE testified that killings took place at the roadblocks
next to the Gishaka secteur office on 13 April 1994. At that time there was
around two hundred Hutus displaced by the war gathered at the Gishaka secteur
office and another four hundred Hutus displaced by the war gathered at the
Gikomero commune office in Gishaka. The distance separating these two offices
was around 400 to 500 metres. The distance between the Gishaka secteur office
and the Gishaka Catholic Parish was around 200 metres. The Witness testified
that there were around three hundred Tutsi refugees gathered at the Gishaka
Catholic Church. Up until 13 April 1994, these two communities of Tutsi Refugees
and Hutu displaced persons lived in harmony, and were even provided with
food by the local people. The Witness remained in her house on 13 April 1994
but observed many Tutsis fleeing from the Gishaka Catholic Church. Some of
them stopped by her house on the way to ask for water, and she learned that
the brigade commander, Nyarwaya, and his team, particularly, Rwanyange and
Ephrem, had chased away the refugees. The Tutsis and also those “opposed
to the regime” were being massacred at the roadblocks set up around the Gishaka
Parish, but there were no killings at the Parish itself. The Witness testified
that she did not see the Accused in April 1994.
541. Defence Witness PCE testified that on 19 April 1994 the Inkotanyi put
her in a camp in an occupied zone, and she stayed there until around the
end of July 1994 or the beginning of August 1994. She testified to meeting
Prosecution Witness GKJ in the camp, and to discussing their experiences.
Witness GKJ told her that she had left the Gishaka Parish before the massacre
took place, and fled to the residence of a man named Niyivugu, and where
she stayed until the Inkotanyi found her.
542. Defence Witness PCE testified that she is a relative of the family of
Witness GEK. The Witness went to see GEK on 16 April 1994 and observed she
had a newborn child , who could hardly have been a week old.
543. Defence Witness PC testified that on 8 April 1994, Tutsi refugees began
to arrive at the Gishaka Parish Church. They came first from Rubungo commune,
and later from Gikomero commune. The Parish was traditionally considered
has a sanctuary in times of danger and the Witness expected that refugees
would seek shelter in the Church Indeed, between 500 and 1000 Tutsi refugees
sought refuge in the Church, filling both the main structure and the Church
meeting room. . According to the Witness the refugees had fled from the Interahamwe,
whom he described as young unemployed people with no future who had been
trained by some politicians as instruments of death.
544. Defence Witness PC testified that approximately 20,000 Hutus, displaced
by the war, had arrived in the Gishaka area since 1992. . One large group
of displaced Hutus had put up their tents next to the football field just
down from the Gikomero bureau communal in Gishaka secteur, and another group
was camped next to the Gishaka secteur office. According to the Witness the
distance between the Gikomero bureau communal and the Gishaka Parish is one
kilometre by road, and 400 metres “as the crow flies”. He estimated the distance
between the Gishaka secteur office and the Gishaka Parish to be around 300
metres.
545. Defence Witness PC testified that until 9 April 1994 there was no trouble
between the Hutu displaced persons and the Tutsi refugees, as the Hutu displaced
persons occupied sites close to the secteur and commune offices. However,
on 9 April 1994, Hutu displaced persons also started coming from a place
called Nyaconga, and to settle in the classrooms of the Primary School close
to the Gishaka Parish. This created a situation where, “as they say in Rwanda,
they started looking at each other with leopard eyes”. The Witness testified
that on 10 April 1994 bourgmestre Rutaganira came to the Parish to observe
the situation, and the Witness told him that the Hutu displaced persons and
the Tutsi refugees could not stay in the same place, and that it was absolutely
necessary to find a solution to the problem. Rutaganira then went away with
two delegates from the displaced persons to find another place in Bumboga
secteur where they could move. A part of the Hutu displaced persons, sheltered
in the classrooms of the primary school and camped at the Parish field, left
on 10 April 1994, but the majority left the next day, 11 April 1994.
546. Defence Witness PC testified that as of 12 April 1994 the official communal
institutions no longer existed. The last time he saw the bourgmestre, during
this period, was on 10 April 1994. On 12 April 1994 the communal offices
were vacated. The bourgmestre as well as all the conseillers, had left. However
the health centre next to the Gikomero bureau communal remained operational
up to the 14 April 1994 or 15 April 1994.
547. Defence Witness PC attested to having seen, on 12 April 1994, a man
outside of the Parish premises, watching the refugees. This man told the
Witness that he “was watching the refugees to avoid them fleeing”. From the
man’s conduct, the Witness identified him as member of the Interahamwe.
548. According to Defence Witness PC, on the morning of 13 April 1994, around
9:00am or 10:00am, a man, identified as a lieutenant of the FAR, led a group
of between fifty and one hundred armed Interahamwe, to the Gishaka Parish
Church. The Tutsi refugees, while greater in number than the Interahamwe,
were all unarmed. The Witness observed that it was impossible to reason with
the Interahamwe, and some of them seem to be under the influence of drugs.
The Interahamwe, under the leadership of the lieutenant, led the refugees
away from the Church, preventing them from fleeing Only Prosecution Witness
GKI and a small boy, hidden behind the alter, remained in the Church. There
were no gunshots and no wounded at the Parish. The buildings were undamaged.
The Witness later learned that the refugees were led to the bureau communal
to be executed.
549. Defence Witness PC denied the testimony of Prosecution Witness GKJ that
the Priest had shouted “Kamuhanda, Kamuhanda has arrived, say your last prayers”.
He denied also the testimony of other Prosecution Witnesses that members
of the crowd had exclaimed “Look at Kamuhanda, we are finished”. He further
denied having seen the Accused at any time during the events which occurred
at the Gishaka Parish Church.
550. Defence Witness PC stated that on 15 April 1994 the RPF arrived in Gikomero
commune.
551. Defence Witness PC estimated that between 300 and 400 Tutsis were killed
in Gishaka secteur. In answer to a question from the Bench, the Witness attested
that he did not know why the Tutsi refugees were led away from the Church
to be killed rather than being killed in the Church itself.
552. Defence Witness PCB testified that there were no incidents in Gishaka
secteur until 9 April 1994. On that day, the situation began to deteriorate.
A refugee from Nduba, who sought shelter in the Witness’s home, informed
her that displaced Hutus from Nyacongo had arrived in Gishaka to loot the
Tutsi’s property and to kill them. The Witness testified that displaced persons
of Hutu ethnicity, numbering between 400 and 500, had been living in Gishaka
secteur since 1992. They had set up camps in the courtyard behind the bureau
communal, in an area near the secteur office, around the health centre, and
at the football pitch.
553. According to Witness PCB, Tutsi refugees began to arrive on 9 April
1994. The flow of refugees continued on 10 and 11 April 1994. The refugees
settled in two places, one group numbering around 200 persons in the courtyard
next to the bureau communal, and the other group at the Gishaka Catholic
Parish.
554. Defence Witness PCB estimated the distance between the two separate
communities, of Tutsi refugees and displaced Hutus, which had settled near
the bureau communal, to be 100 metres. Conflicts arose between the two groups.
The bourgmestre came to warn the Hutus that they would be chased from the
commune if they continued to create problems and instructed the communal
police to keep the displaced Hutus away from the Tutsi refugees. According
to the Witness, some of the displaced persons, offended by the warning, called
the bourgmestre and the communal police "accomplices of the Inkotanyi".
555. Defence Witness PCB testified that the anger of the displaced persons
increased over the next few days, and on 11 April 1994 the commune brigade
commander, Michele Nyarwaya, came to the bourgmestre and asked, “Why then
are you preventing us from working?”. The Witness testified that, at that
time, “to work” meant “to kill”. The bourgmestre replied, “That it is my
responsibility to ensure the safety of people under my administration. I
shall maintain the peace of the people, I should therefore protect them”.
The commune brigade commander then got angry and left.
556. Defence Witness PCB testified that on 11 April 1994, at around 1:00pm,
after the commune brigade commander had left the meeting with bourgmestre,
a man who lived nearby, but who is now dead, came to the bourgmestre to tell
him that the commune brigade commander had left angry and that he had said
he was going to bring back Interahamwe from Remera to kill them and then
to kill the Tutsis. At around 4:00pm the same day he repeated the warning
with even more urgency. The bourgmestre decided to flee and he left for Kayanga
with his family.
557. Defence counsel questioned Witness PCB about an allegation, made by
Prosecution Witness GKI, that, on 12 April 1994, the bourgmestre of Gikomero
commune attended a meeting about killings at the health centre canteen located
in Gishaka secteur. Witness PCB denied the allegation and insisted that the
bourgmestre did not attend this meeting.
558. Defence Witness PCB attested to having seen the Accused once, at a burial
ceremony, in 1992, and stated that she probably would not even be able to
recognise him in Court.
559. Defence Witness PCB testified that she had access both to the Gikomero
communal office and the home of the bourgmestre. At neither place did she
ever see any weapons. She also related facts that in her opinion had motivated
Prosecution Witness GET to bear false Witness against the bourgmestre as
a genocide suspect.
560. Witness PCB testified, in cross-examination, that the Gishaka Catholic
Parish Church was not destroyed. Rather the bureau communal, the Tribunal,
and the health centre suffered destruction..
b. Findings
o Discussion
561. The Chamber recalls the testimony of Witness GKL that he recognised
the Accused as Minister of Education “in the government of the Abatabazi”,
and that the Accused position had been pointed out to him by his friends.
The Chamber notes that at the point in time to which the Witness referred,
the Accused had not yet been appointed to the position of Minister of Higher
Education and Scientific Research in the Interim Government. The Witness
placed excessive emphasis on his sighting of the Accused at the bureau communal,
in an attempt to convince the Chamber that he knew the Accused well. Moreover,
the Witness was unable to identify the Accused in Court. The Chamber finds
that the Prosecutor did not adequately demonstrate that the Witness knew
or recognised the Accused, and thus the Chamber is not satisfied that the
Witness properly identified the Accused, and finds his testimony regarding
the Accused’s actions to be unreliable. Furthermore, the Chamber is not convinced
that the Witness’s account is accurate. Although it is not inconceivable
that the Accused would be wearing Interahamwe clothing and would personally
be commanding a roadblock as described by the Witness, in the absence of
specific corroboration, the Chamber cannot rely on this testimony. The Chamber
concludes that Prosecution Witness GKL was not a truthful Witness, and therefore
will not rely upon his testimony.
562. The Chamber also recalls the testimony of Prosecution Witness GKJ. It
is clear from her testimony that she did not personally know the Accused,
and that she identified the man said to be “Kamuhanda”, only through what
she heard repeated by others. The Chamber did not find the Witness’s account
to be coherent.
563. Prosecution Witness GEL testified that he saw the Accused in conversation
with the bourgmestre at the Gikomero bureau communal in Gishaka secteur on
10 April 1994, and thereafter again at the Gishaka Catholic Church, where
he saw the Accused walking around the Church approximately thirty minutes
before the attack. The Defence pointed out in its closing brief that there
is a fundamental contradiction between the testimony of the Witness in court,
and a previous written statement of the Witness. In his testimony before
the Court, the Witness identified the site of the attack as Gishaka Church.
However, in his previous statement, the Witness placed the attack at the
bureau communal, where he was in hiding. In Court, the Witness explained
this discrepancy as the fault of the investigators who inaccurately recorded
his out-of-court statement. However the Chamber is not convinced on this
point. Witness GEL also testified as to the words spoken by people outside
the Church. The Chamber is not convinced that, whilst packed tightly inside
the Church with more than one thousand other refugees, the Witness would
be able to hear what people were saying to each other outside of the Church.
The Chamber notes that Witness GEL was the sole Witness to testify that assailants
threw grenades through the windows of the Church. Even if this Witness’s
account were to be believed, it would established the Accused’s presence
at the Gikomero bureau communal and at the Gishaka Parish Church at around
the time of the massacre, but it would not establish his involvement in the
killings. However, in the final analysis, the Chamber is not convinced the
Witness positively identified the Accused. Although Witness GEL obviously
suffered a great deal during the attacks which occurred during April 1994
upon the Tutsi population, the Chamber cannot consider his evidence to be
credible, and cannot rely upon his testimony in relation to the presence
or acts of the Accused in connection with the attack of the Gishaka Parish
Church.
564. In analysing the testimony of Prosecution Witness GKI, the Chamber has
found her evidence to be credible, and the basic structure of her account
to be sound, matching in broad strokes the testimonies of other Witnesses:
such as that Defence Witness PCE about her being at the Gishaka Health Centre
on 12 April 1994, and that of Defence Witness PC about her being sheltered
at the Priest’s residence. However, the Witness did not know the Accused
well, and only during a visit to the dispensary at the Health Centre did
she overhear a man exchanging parting words with someone he called “Mr. Kamuhanda”.
Later on, she overheard some people at the Church saying that “Kamuhanda
had brought weapons”. The Chamber has found this Witness’s testimony to be
truthful, but does not find it sufficient to establish the presence or the
acts of the Accused in Gishaka secteur, Gikomero commune, during April 1994.
565. Having considered the totally of the evidence, the Chamber notes the
many inconsistencies between the Witness testimonies. Even an analysis limited
to the Prosecution Witnesses’ testimonies reveals irreconcilable differences
in relation to the events at the Gishaka Parish Church. Witness GKL testified
that once the Tutsi refugees were inside the Gishaka Church, the Interahamwe
and the Abakiga shut the doors to prevent them from escaping. Witness GKJ
testified that not the Interahamwe and the Abakiga but the refugees themselves
shut the Church doors to prevent the Interahamwe from entering. Witness GKJ
further testified that the assailants tried to break down the doors. Witness
GKL testified that refugees were taken out through a back door during the
night and were never seen again. Witness GKL also stated that, later, the
refugees were led out of the Church, where the men and the women were separated.
Witness GEL is the only Witness to have testified that grenades were thrown
through the windows of the Church. Witness GEL further stated that some of
the refugees said, “That one is Kamuhanda. He is an authority and he is going
to intercede on our behalf”, whilst Witness GKJ heard people say that the
refugees’ fate was sealed because “Kamuhanda has arrived”. Similar contradictions
exist among the testimonies of all Prosecution Witnesses testifying about
the events at the Gishaka Parish Church. Therefore the Chamber cannot determine
with certainty either the time of the attack, the precise location of the
attack, the sequence of events, or the role, if any, of the Accused in the
attack.
o Conclusion
566. The Chamber finds that a massacre of Tutsi refugees who had sought
shelter in the Gishaka Catholic Parish Church, Gikomero commune, Kigali-Rural
préfecture, occurred between 10 April 1994 and 13 April 1994, with
the most refugees killed around the 12 April 1994 in a devastating attack.
The evidence is inconsistent as to the precise location or locations of the
killings. However, it can be said without any doubt that the killings occurred
in the vicinity of the Gishaka Parish Church and that many Tutsi refugees
lost their lives.
567. Having considered all the evidence relating to the events which occurred
between 10 April 1994 and 13 April 1994 at Kayanga Roadblock and Gishaka
Catholic Parish Church, sites which are located both in Gikomero commune,
Kigali-Rural préfecture, the Chamber finds that the Prosecution has
not proven the charges against the Accused in relation to his alleged involvement
in the massacres which occurred there between these dates.
J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local
Authorities)
1. Allegations
568. Paragraph 6.37 of the Indictment reads:
From April to July 1994, by virtue of their position, their statements,
the orders they gave and their acts and omissions, members of the Interim
Government and influential members of MRND, MDR (Hutu) and PL (Hutu) including
Jean de Dieu Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, Edouard
Karemera, Callixte Nzabonimana, André Rwamakuba, Mathieu Ngirumpatse,
Joseph Nzirorera, Félicien Kabuga, Juvénal Kajelijeli, Eliezer
Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, Jérôme Bicamumpaka
and Justin Mugenzi exercised authority over the local authorities and the
militia, including the Interahamwe-MRND militia. These local authorities
and militiamen, in complicity with the military, as from 6 April, committed
massacres of the Tutsi population and of moderate Hutu which extended throughout
Rwandan territory, with the knowledge of members of the Interim government,
including, Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, André Rwamakuba,
Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, Jerôme Bicamumpaka
and Justin Mugenzi.
2. Findings
569. The Chamber recalls its findings that during the events of Gikomero
Parish Compound the Accused exercised authority over Interahamwe, local policemen,
soldiers, and local population amongst the attackers but that he was not
in a superior-subordinate relationship with them and did not maintain effective
control over them.
K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes
Committed by the Perpetrators or to Punish Them)
1. Allegations
570. Paragraph 6.31 of the Indictment reads:
Between 8 April and 14 July 1994, in several préfectures, including Butare, Kibuye, Kigali, Gitarama and Gisenyi, ministers, préfets, bourgmestres, civil servants and soldiers gave orders to commit, instigated, assisted in committing and did themselves commit massacres of members of the Tutsi population and moderate Hutu population. Jean Kambanda, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, Jérôme Bicamumpaka, Edouard Karemera, André Rwamakuba, André Ntagerura, Pauline Nyiramasuhuko and Eliezer Niyitegeka knew or had reason to know that their subordinates had committed or were preparing to commit crimes, and failed to prevent these crimes from being committed or to punish the perpetrators thereof.
571. Paragraph 6.89 of the Indictment reads:
Knowing that massacres of the civilian population were being committed, the political and military authorities, including Augustin Ngirabatware, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, Jérôme Bicamumpaka, Justin Mugenzi, Eliezer Niyitegeka, Edouard Karemera, André Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera and Juvénal Kajelijeli took no measures to stop them. On the contrary, they refused to intervene to control and appeal to the population as long as a cease-fire had not been declared. This categorical refusal was communicated to the Special Rapporteur via the Chief of Staff of Rwandan Army, Major-General Augustin Bizimungu.
2. Findings
572. On the basis of the evidence brought to it, the Chamber has found that
the Accused led the attackers to Gikomero Parish Compound but that no evidence
shown that he was in a superior-subordinate relationship with the attackers
and nor that he did maintain effective control over them on 12 April 1994.
573. Accordingly, the Chamber finds that the Accused cannot be liable for
the failure to prevent the commission of the crimes or to punish the perpetrators
thereof.
PART IV – LEGAL FINDINGS
574. In the present Part, the Chamber will present its legal findings based
on the factual findings made above in Part II and III.
575. The Indictment states that:
The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant
to the authority stipulated in Article 17 of the Statute of the International
Criminal Tribunal for Rwanda (‘the Statute of the Tribunal’) charges:
JEAN DE DIEU KAMUHANDA
With CONSPIRACY TO COMMIT GENOCIDE; GENOCIDE, or alternatively COMPLICITY
IN GENOCIDE; CRIMES AGAINST HUMANITY, and VIOLATIONS OF ARTICLE 3 COMMON
TO THE GENEVA CONVENTIONS AND ADDITIONAL PROTOCOL II, offences stipulated
in Articles 2, 3 and 4 of the Statute of the Tribunal.
A. Admitted Facts
576. The Accused has admitted that:
Between 1 January 1994 and 17 July 1994, Rwanda was a state party to the
Genocide Convention (1948) having acceded to it on 16 April 1975.
The victims referred to in this document were protected persons, according
to the provisions of Articles 3 common to Geneva conventions and additional
protocol.
B. Cumulative Convictions
577. In almost every case tried before this Tribunal, the issue has arisen
as to whether or not the accused may be convicted of multiple offences based
on the same facts. In Musema, this Tribunal’s Appeals Chamber finally had
an opportunity to pronounce itself on the matter. This issue as it arose
in that case was whether it was permissible to convict the prisoner of both
genocide and extermination (as a Crime against Humanity) based on the same
facts. Approving and adopting the applicable test as it was enunciated in
the ICTY Appeals Chamber’s case of Delalic et al. (the “Celebici Case”),
the ICTR Appeals Chamber in Musema held that it was permissible so to convict
the prisoner.
578. In the Celebici Case, the relevant test was set out as follows:
Having considered the different approaches expressed on this issue both within
this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons
of fairness to the accused and the consideration that only distinct crimes
may justify multiple convictions, lead to the conclusion that multiple criminal
convictions entered under different statutory provisions but based on the
same conduct are permissible only if each statutory provision involved has
a materially distinct element not contained in the other. An element is materially
distinct from another if it requires proof of a fact not required by the
other.
Where this test is not met, the Chamber must decide in relation to which
offence it will enter a conviction. This should be done on the basis of the
principle that the conviction under the more specific provision should be
upheld. Thus, if a set of facts is regulated by two provisions, one of which
contains an additional materially distinct element, then a conviction should
be entered only under that provision.
579. In the Musema Case, the ICTR Appeals Chamber also noted:
In the Jelisic Appeal Judgment, ICTY Appeals Chamber adopted the reasoning
it had followed in the Celebici case, and held that the multiple convictions
entered under Article 3 and Article 5 of ICTY Statute are permissible because
each Article contained a distinct element requiring proof of a fact not required
by the other Article.
580. Having reviewed these ICTY cases, the Appeals Chamber in Musema approved
the test therein as one that “reflects general, objective criteria enabling
a Chamber to determine when it may enter or affirm multiple convictions based
on the same acts” and then confirmed the test as “the test to be applied
with respect to multiple convictions arising under ICTR Statute.”
581. Concerning the elements of the offences to be considered in the application
of this test, the ICTR Appeals Chamber said:
The Appeals Chamber further endorses the approach of the Celebici Appeal
Judgment, with regard to the elements of the offences to be taken into consideration
in the application of this test. In applying this test, all the legal elements
of the offences, including those contained in the provisions’ introductory
paragraphs, must be taken into account.
582. Applying the foregoing analysis to the issue in the Musema Case, the
Appeals Chamber held as follows:
Applying the provisions of the test articulated above, the first issue is
whether a given statutory provision has a materially distinct element not
contained in the other provision, an element being regarded as materially
distinct from another if it requires proof of a fact not required by the
other.
Genocide requires proof of an intent to destroy, in whole or in part, a national,
ethnical, racial or religious group; this is not required by extermination
as a Crime against Humanity. Extermination as a Crime against Humanity requires
proof that the crime was committed as a part of a widespread or systematic
attack against a civilian population, which proof is not required in the
case of genocide.
As a result, the applicable test with respect to double convictions for genocide
and extermination as a Crime against Humanity is satisfied; these convictions
are permissible. Accordingly, Musema’s ground of appeal on this point is
dismissed.
583. In deciding the issue as it did on that occasion, however, the Appeals
Chamber declined to pronounce itself on the question of whether multiple
convictions under different Articles of the Statute are always permitted.
584. The Chamber considers that in the present case there is no need to pronounce
on the same question, especially as the Chamber has not been invited to do
so by the Parties.
C. Criminal Responsibility
1. Indictment
585. The Indictment alleges that the Accused is criminally responsible on
the basis of Article 6 of the Statute for the crimes described in the Counts
below.
2. The Statute
586. The Article 6 of the Statute on Individual Criminal Responsibility reads:
1. A person who planned, instigated, ordered, committed or otherwise aided
and abetted in the planning, preparation or execution of a crime referred
to in Articles 2 to 4 of the present Statute, shall be individually responsible
for the crime.
2. The official position of any accused person, whether as Head of state
or government or as a responsible government official, shall not relieve
such person of criminal responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in Articles 2 to 4 of the present
Statute was committed by a subordinate does not relieve his or her superior
of criminal responsibility if he or she knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to prevent such acts
or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a government
or of a superior shall not relieve him or her of criminal responsibility,
but may be considered in mitigation of punishment if the International Tribunal
for Rwanda determines that justice so requires.
3. Jurisprudence
a. Responsibility under Article 6.1 of the Statute
587. Article 6(1) addresses criminal responsibility for unlawful conduct
of an accused and is applicable to all three categories of crimes: genocide
and derivative crimes; Crimes against Humanity; and violations of Article
3 Common to the Geneva Conventions and Additional Protocol II.
588. Article 6(1) reflects the principle that criminal responsibility for
any crime in the Statute is incurred not only by individuals who physically
commit that crime, but also by individuals who participate in and contribute
to the commission of a crime in other ways, ranging from its initial planning
to its execution, as specified in the five categories of acts in this Article:
planning, instigating, ordering, committing, or aiding and abetting.
589. Pursuant to Article 6(1), an individual’s participation in the planning
or preparation of an offence within the Tribunal’s jurisdiction will give
rise to criminal responsibility only if the criminal act is actually committed.
Accordingly, crimes which are attempted but not consummated are not punishable,
except for the crime of genocide, pursuant to Article 2(3)(b),(c) and (d)
of the Statute.
590. Jurisprudence has established that for an accused to incur criminal
responsibility, pursuant to Article 6(1), it must be shown that his or her
participation has substantially contributed to, or has had a substantial
effect on, the completion of a crime under the Statute.
591. The elements of the crimes of genocide, Crimes against Humanity, and
violations of Article 3 common to the Geneva Conventions and Additional Protocol
II, articulated in Articles 2 to 4 of the Statute, are inherent in the five
forms of criminal participation enumerated in Article 6(1), for which an
individual may incur criminal responsibility. These five forms of participation
are discussed below.
o Forms of Participation
(i) Planning
592. “Planning”, implies that one or more persons contemplate a design for
the commission of a crime at both the preparatory and execution phases. The
existence of a plan may be demonstrated through circumstantial evidence.
In Bagilishema, it was held that the level of participation in planning to
commit a crime must be substantial, such as the actual formulation of a plan
or the endorsement of a plan proposed by another individual.
(ii) Instigating
593. “Instigating”, involves prompting another person to commit an offence,
and needs not be direct or public. Both positive acts and omissions may constitute
instigation. Instigation is punishable on proof of a causal connection between
the instigation and the commission of the crime.
(iii) Ordering
594. “Ordering”, implies a situation in which an individual with a position
of authority uses such authority to impel another, who is subject to that authority,
to commit an offence. No formal superior-subordinate relationship is required
for a finding of “ordering” so long as it is demonstrated that the accused
possessed the authority to order. The position of authority of the person who
gave an order may be inferred from the fact that the order was obeyed.
(iv) Committing
595. To “commit” a crime usually means to perpetrate or execute the crime by
oneself or to omit to fulfil a legal obligation in a manner punishable by penal
law. In this sense, there may be one or more perpetrators in relation to the
same crime where the conduct of each perpetrator satisfies the requisite elements
of the substantive offence.
(v) Aiding and Abetting in the Planning, Preparation, or Execution of an Offence
596. “Aiding and abetting” relate to discrete legal concepts. “Aiding” signifies
providing assistance to another in the commission of a crime. “Abetting” signifies
facilitating, encouraging, advising or instigating the commission of a crime.
Legal usage, including that in the Statute and case law of the ICTR and the
ICTY, often inter-links the two terms and treats them as a broad singular legal
concept.
597. “Aiding and abetting”, pursuant to the jurisprudence of the ad hoc Tribunals,
relates to acts of assistance that intentionally provide encouragement or support
to the commission of a crime. The act of assistance may consist of an act or
an omission, and it may occur before, during or after the act of the actual
perpetrator. The contribution of an aider and abetter before or during the
fact may take the form of practical assistance, encouragement or moral support,
which has a substantial effect on the accomplishment of the substantive offence.
Such acts of assistance before or during the fact need not have actually caused
the consummation of the crime by the actual perpetrator, but must have had
a substantial effect on the commission of the crime by the actual perpetrator.
o Mens Rea
598. To be held criminally culpable of a crime, the perpetrator must possess
the requisite mens rea for that underlying crime.
599. For purposes of accomplice liability, the mens rea requirement will
be fulfilled where an individual acts with the knowledge that his or her
act(s) assist in the commission of the crime by the actual perpetrator(s).
While the accused need not know the precise offence being committed by the
actual perpetrator(s), the accused must be aware of the essential elements
of the crime, and must be seen to have acted with awareness that he or she
thereby supported the commission of the crime.
600. An accused’s position of superior authority, in and of itself, does
not suffice to conclude that the accused, by his or her mere presence at
the scene of the crime, encouraged or supported the offence. The presence
of the accused at the crime site, however, may be perceived as a significant
indicium of his or her encouragement or support. The requisite mens rea may
be established from an assessment of the circumstances, including the accused’s
prior and similar behaviour, failure to punish or verbal encouragement.
b. Responsibility Under Article 6(3) of the Statute
601. Article 6(3) of the ICTR Statute addresses the criminal responsibility
of a superior by virtue of his or her knowledge of the acts and omissions
of subordinates and for failure to prevent, discipline, or punish the criminal
acts of his or her subordinates in the preparation and execution of the crimes
charged. The principle of superior responsibility, which derives from the
principle of individual criminal responsibility as applied in the Nuremberg
and Tokyo trials, was subsequently codified in Article 86 of the Additional
Protocol I to the Geneva Conventions in 1977. Article 6(3) of the Statute,
which is applicable to genocide, Crimes against Humanity, and serious violations
of Article 3 Common to the Geneva Conventions and Additional Protocol II,
provides as follows:
The fact that any of the acts referred to in Articles 2 to 4 of the present
Statute was committed by a subordinate does not relieve his or her superior
of criminal responsibility if he or she knew or had reason to know that the
subordinate was about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to prevent such acts
or to punish the perpetrators thereof.
602. The jurisprudence of both the ICTR and the ICTY has recognised that
a civilian or a military superior, with or without official status, may be
held criminally responsible for offences committed by subordinates who are
under his or her effective control. The chain of command between a superior
and subordinates may be either direct or indirect.
603. The following three concurrent conditions must be satisfied before a
superior may be held criminally responsible for the acts of his or her subordinates:
(i) There existed a superior-subordinate relationship between the person
against whom the charge is directed and the perpetrators of the offence;
(ii) The superior knew or had reason to know that the criminal act was about
to be or had been committed; and
(iii) The superior failed to exercise effective control to prevent the criminal
act or to punish the perpetrators thereof.
o Existence of a Superior-Subordinate Relationship
604. The test for assessing a superior-subordinate relationship, pursuant
to Article 6(3), is the existence of a de jure or de facto hierarchical chain
of authority, where the accused exercised effective control over his or her
subordinates as of the time of the commission of the offence. The cognisable
relationship is not restricted to military hierarchies, but may apply to
civilian authorities as well.
605. By effective control, it is meant that the superior, whether a military
commander or a civilian leader, must have possessed the material ability,
either de jure or de facto, to prevent or to punish offences committed by
subordinates. The test to assess a superior-subordinate relationship, in
the words of the Appeals Chamber in Bagilishema, is:
[…]whether the accused exercised effective control over his or her subordinates;
this is not limited to asking whether he or she had de jure authority. The
ICTY Appeals Chamber held in the Celebici Appeal Judgment that ‘[a]s long
as a superior has effective control over subordinates, to the extent that
he can prevent them from committing crimes or punish them after they committed
the crimes, he would be held responsible for the commission of the crimes
if he failed to exercise such abilities of control.
o Mens Rea Requirement that the Superior Knew or Had Reason to Know
606. To hold a superior responsible for the criminal conduct of subordinates,
the Chamber must be satisfied that the superior possessed the requisite mens
rea, namely, that he or she knew or had reason to know of such conduct.
607. A superior in a chain of hierarchical command with authority over a
given geographical area will not be held strictly liable for subordinates’
crimes. While an individual’s hierarchical position may be a significant
indicium that he or she knew or had reason to know about subordinates’ criminal
acts, knowledge will not be presumed from status alone.
608. A superior is under a duty to act where he or she knew or had reason
to know that subordinates had committed or were about to commit offences
covered by Articles 2, 3, and 4 of the Statute.
609. In accordance with current jurisprudence related to Article 6(3), a
superior will be has found to possess, or will be imputed with, the requisite
mens rea sufficient to incur criminal liability, where, after weighing a
number of indicia, the Chamber is satisfied that (1) the superior had actual
knowledge, established through direct or circumstantial evidence, that his
or her subordinates were committing or were about to commit, or had committed,
an offence under the jurisdiction of the Statute, or, (2) information was
available to the superior which would have put him or her on notice of offences
committed by subordinates.
o Effective Control of Subordinates to Prevent or Punish Their Criminal Acts
610. Where it is demonstrated that an individual is a superior, pursuant
to Article 6(3), with the requisite knowledge, then he or she will incur
criminal responsibility only for failure to take “necessary and reasonable
measures” to prevent or punish crimes subject to the Tribunal’s jurisdiction
committed by subordinates. Such measures have been described as those within
the “material possibility” of the superior, even though the superior lacked
the “formal legal competence” to take these measures. Thus a superior has
a duty to act in those circumstances in which he or she has effective control
over subordinates, and the extent of an individual’s effective control, under
the circumstances, will guide the assessment of whether he or she took reasonable
measures to prevent, stop, or punish a subordinate’s crimes.
4. Findings
611. The Chamber finds that no specific evidence has been brought to it
as regards the nature of the relationship between the Accused and the attackers
of the Gikomero Parish Compound. There has been no clear evidence presented
by the Prosecution that the Accused had a superior-subordinate relationship
with these attackers nor that he maintained effective control over them during
the period relevant to the Indictment.
612. This finding is not inconsistent with the Chamber’s earlier finding
that the Accused was in a position of authority over the attackers, for purposes
of his responsibility under Article 6(1) for ordering the attack at the Gikomero
Parish Compound. The finding of a position of authority for purposes of “ordering”
under Article 6(1) is not synonymous with the presence of “effective control”
for purposes of responsibility under Article 6(3). It is settled that the
two provisions are distinct: and, in our view, so are the considerations
for responsibility under them.
613. Therefore the Chamber does not find that the Accused can bear criminal
responsibility as a superior under article 6(3) of the Statute for the crimes
that occurred in Kigali-Rural préfecture between 1 January 1994 and
July 1994.
614. The Chamber will consider the elements of the individual criminal responsibility
of the Accused under the Article 6(1) of the Statute in the relevant sections
below in relation with each count of the Indictment.
D. Genocide and Related Crimes
615. The Trial Chamber acquitted the Accused of Count 1 of the Indictment,
conspiracy to commit genocide.
616. Count 2 of the Indictment charges the Accused with genocide. Count 3
charges him with complicity in genocide.
1. The Statute
617. Article 2 of the Statute on Genocide reads:
1. The International Tribunal for Rwanda shall have the power to prosecute
persons committing genocide as defined in paragraph 2 of this Article or
of committing any of the other acts enumerated in paragraph 3 of this Article.
2. Genocide means any of the following acts committed with intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as
such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
2. Genocide
a. Indictment
618. Count 2 of the Indictment charges:
Count 2 - Genocide, pursuant to Article 2(3)(a) of the Statute
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below:
Jean de Dieu Kamuhanda:
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
-pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed GENOCIDE, a crime stipulated in Article 2(3)(a) of the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute.
619. For the reasons indicated in Part III, Section I of this Judgment,
the Chamber has made these factual findings based only on the relevant paragraphs
of the Indictment referred to in Count 2.
b. Jurisprudence
620. The Tribunal is empowered to try the crime of Genocide under Article
2 of the Statute.
621. Article 2 of the Tribunal’s Statute is a reproduction of Article II
and III of the Convention on the Punishment of the Crime of Genocide, which
was adopted on 9 December 1948.
622. The crime of genocide requires a finding of both mens rea and actus
reus. The mens rea for genocide comprises the specific intent or dolus specialis
described in the general clause of Article 2(2) of the Statute—i.e. the commission
of a genocidal act ‘with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group’. And the actus reus consists of any
of the five acts enumerated in Article 2(2) of the Statute, as shown above.
o Proof of Specific Intent
623. In determining the specific intent of the crime of genocide it is instructive
to consider the following pronouncement of Trial Chamber I in the Akayesu
Case:
“intent is a mental factor which is difficult, even impossible, to determine.
This is the reason why, in the absence of a confession from the accused,
his intent can be inferred from a certain number of presumptions of fact.
The Chamber considers that it is possible to deduce the genocidal intent
inherent in a particular act charged from the general context of the perpetration
of other culpable acts systematically directed against the same group, whether
these acts were committed by the same offender or by others. Other factors,
such as the scale of atrocities committed, their general nature, in a region
or a country, or furthermore, the fact of deliberately and systematically
targeting victims on account of membership of a particular group, while excluding
the members of other groups can enable the Chamber to infer the genocidal
intent of a particular act.”
624. The Chamber generally approves of this statement adding only that intent
to commit a crime, even genocide, may not always be difficult or impossible
to discern from the circumstances of the case.
625. In Kayishema and Ruzindana, Trial Chamber II also expressed the opinion
that it may be difficult to find explicit manifestations of intent by perpetrators.
Under such circumstances, the Chamber held, the perpetrator’s actions, including
circumstantial evidence, may provide sufficient evidence of intent. According
to the Chamber, some of the indicia of intent may be “[e]vidence such as
the physical targeting of the group or of their property; the use of derogatory
language toward members of the targeted group; the weapons employed and the
extent of bodily injury; the methodical way of planning, the systematic manner
of killing.” In the ICTY Jelisic Judgment, the Commission of Experts Report
was quoted to this effect: “[i]f essentially the total leadership of a group
is targeted, it could also amount to genocide. Such leadership includes political
and administrative leaders, religious leaders, academics and intellectuals,
business leaders and others—the totality per se may be a strong indication
of genocide regardless of the actual numbers killed.”
626. The Trial Chamber in Bagilishema stated that when demonstrating the
“specific intent” of an Accused through his words and deeds, a balance has
to be struck between his words and deeds and his actual purposeful conduct,
especially when his intention is not clear from what he says or does.
To Destroy
627. An Accused may be liable under Article 2 if he “intends to destroy
a […] group.” According to the Report of the International Law Commission,
destruction within the meaning of Article 2 is “[t]he material destruction
of a group either by physical and biological means and not the destruction
of the national, linguistic, religious, cultural or other identity of a particular
group.”
In Whole or in Part
628. Under Article 2, an accused may be liable if he “intends to destroy
in whole or in part a […] group.” As has been explained in judgments of this
Tribunal, in order to establish an intent to destroy “in whole or in part”,
it is not necessary to show that the perpetrator intended to achieve the
complete annihilation of a group from every corner of the globe. It is sufficient
to prove that the perpetrator have intended to destroy more than an imperceptible
number of the targeted group. In effect, the Chamber endorses the opinion
expressed in the Semanza Judgment: the Prosecution must establish, beyond
reasonable doubt, the intent of the perpetrator to destroy the target group
in whole or in part, there is no numeric threshold of victims necessary to
establish genocide.
629. In the Report of the Sub-Commission on Genocide, the Special Rapporteur
stated: “The relative proportionate scale of the actual or attempted destruction
of a group, by any act listed in Articles II and III of the Genocide Convention,
is strong evidence to prove the necessary intent to destroy a group in whole
or in part.”
o Protected Groups
630. It is required to show under Article 2 that the Accused, in committing
genocide intended to destroy “a national, ethnical, racial or religious”
group. Trial Chambers of this Tribunal have noted that the concept of a group
enjoys no generally or internationally accepted definition, rather each group
must be assessed in the light of a particular political, social, historical
and cultural context. Accordingly, “[f]or purposes of applying the Genocide
Convention, membership of a group is, in essence, a subjective rather than
an objective concept [where] the victim is perceived by the perpetrator of
genocide as belonging to a group slated for destruction.” A determination
of the categorized groups should be made on a case-by-case basis, by reference
to both objective and subjective criteria.
o The Acteus Reus
631. The acteus reus for the crime of genocide is provided for under Article
2(2) of the Statute. As the issues arising in the present case are limited,
the Chamber shall review only the meaning of the requirements for the crime:
(a) “killing members of the group”; and (b) “causing serious bodily or mental
harm to members of the group”.
Killing Members of the Group
632. It is clear from the established jurisprudence of this Tribunal that the Prosecution bears the burden of proof to show that the perpetrator participated in the killing of one or more members of the targeted group and that the perpetrator possessed the intent to destroy the group, as such, in whole or in part. There is no requirement to prove a further element of premeditation in the killing.
Causing Serious Bodily or Mental Harm to Members of the Group
633. Regarding the requirement under Article 2(2)(b) that in order to be
held liable by causing serious bodily or mental harm to members of the
group, the International Law Commission has indicated that this covers
two types of harm that may be inflicted on an individual, namely bodily
harm which involves some type of physical injury and mental harm which
involves some type of impairment of mental faculties. The International
Law Commission further observed that the bodily or mental harm inflicted
on members of a group must be of such a serious nature as to threaten its
destruction in whole or in part.
634. Trial Chambers of the Tribunal have held that what is “bodily” or “mental”
harm should be determined on a case-by-case basis and have further held that
“serious bodily harm” does not necessarily have to be permanent or irremediable,
and that it includes non-mortal acts of sexual violence, rape, mutilations
and interrogations combined with beatings and/or threats of death. The Trial
Chamber in Kayishema and Ruzindana considered “serious mental harm” to include
more than minor or temporary impairment of mental faculties such as the infliction
of strong fear or terror, intimidation or threat. The state of the law in
this regard is aptly captured in the conclusion drawn by the Semanza Trial
Chamber:
The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema
and Ruzindana as to the determination of serious bodily or mental harm. In
addition, the Chamber finds that serious mental harm need not be permanent
or irremediable.
c. Findings
635. The Chamber has found it to be established for the purposes of this
case that at all times relevant to the Indictment the Tutsi, the Hutu and
the Twa were identified as ethnic groups in Rwanda.
636. The Chamber will consider successively the following issues: (1) intent
to destroy in whole or in part the Tutsi ethnical group; (2) the actus reus
of genocide; (3) the individual criminal responsibility of the Accused.
o Intent to Destroy in Whole or in Part the Tutsi Ethnic Group
637. The Chamber has found that at a meeting occurring sometime between
6 April 1994 and 10 April 1994, at the home of his cousins in Gikomero commune,
the Accused addressed those present, incited them to start killing Tutsi,
and distributed grenades, machetes and guns to them to use and to further
distribute. He also told the participants that he would return to see if
they had started the killings, or so that the killings could start.
638. The Chamber has found that the Accused arrived at the Gikomero Parish
Compound in the early afternoon of 12 April 1994 in a white pick-up vehicle
and was accompanied by armed people in the back of the pick-up.
639. The Majority of the Chamber has found that the Accused, after a conversing
with Pastor Nkuranga, ordered the armed persons whom he brought to the Parish
to “work” which, in this context, was understood by some witnesses as an
order for the killings of the Tutsi refugees to start. The Majority of the
Chamber agrees with the witnesses’ understanding that the Accused gave a
verbal order to start the killings.
640. The Chamber has found that a Tutsi preacher named Augustin Bucundura,
who accompanied Pastor Nkuranga into the Compound, was shot by an armed person,
who had come with the Accused. The shooting occurred shortly after the arrival
of the Accused and while the Accused was still present at the Gikomero Parish
Compound.
641. The Chamber has found that the Accused was in a position of authority
over the armed attackers, insofar as he led them to the Gikomero Parish Compound.
The Chamber, however, has not found that the Accused was in a formal superior-subordinate
relationship with the attackers of the Gikomero Parish Compound, nor that
he maintained effective control over them.
642. The Chamber has found that the attackers involved in the attack used
traditional weapons, guns, and grenades, to kill and injure Tutsi refugees.
The Chamber has found that the Accused left the Compound in a vehicle sometime
after the commencement of the attack of the refugees by armed Interahamwe,
soldiers, and policemen. The attackers attacked the refugees throughout the
Compound, including in the Church and in the classrooms.
643. The Chamber has found on the basis of the totality of the evidence that
the Accused initiated the attack. The Majority has further found that the
Accused used the word “work” and to give an order to the attackers to start
the killings. Therefore the evidence adduced by the Prosecution proves that
the Accused personally led an attack of individuals, soldiers, Interahamwe,
and policemen against Tutsi refugees on 12 April 1994 at the Parish Church
and adjoining school in Gikomero, Kigali-Rural préfecture. The Chamber
has found that the Accused arrived at the school with a group of individuals,
soldiers, policemen and Interahamwe armed with firearms, grenades and other
weapons and that he led them in the Gikomero Parish Compound and gave them
the order to attack.
644. The Chamber has found that individuals, soldiers, policemen and Interahamwe
attacked the refugees and that a large number of Tutsis were killed by those
attackers at the Gikomero Parish Compound on 12 April 1994.
645. On the basis of the established facts, the Chamber finds that the killings
occurring in Gikomero Parish Compound, Gikomero commune, Kigali-Rural préfecture,
were systematically directed against Tutsi civilians. The conduct of the
Accused shows clearly that he participated in those killings with the specific
intent to destroy the Tutsi ethnic group.
o Killing of Members of the Tutsi Group
646. The Chamber has found that a large number of members of the Tutsi ethnic
group were killed by Interahamwe, soldiers, policemen and individuals from
the local population at the Gikomero Parish Compound on 12 April 1994.
647. Accordingly, the Chamber finds that genocidal killings of members of
the Tutsi group occurred at the Gikomero Parish Compound, in Gikomero commune,
Kigali-Rural préfecture, on 12 April 1994.
o Individual Criminal Responsibility of the Accused (Article 6.1 of the Statute)
648. On the basis of its factual findings and legal findings above, the
Chamber finds that the Accused participated in the killings in Gikomero Parish
Compound in Gikomero commune by ordering Interahamwe, soldiers, and policemen
to kill members of the Tutsi ethnic group, instigating other assailants to
kill members of the Tutsi ethnic group and by aiding and abetting in the
commission of the crime through the distribution of weapons and by leading
the attackers to the Gikomero Parish Compound.
649. Judge Maqutu joins with the Majority to conclude that the Accused participated
in the crime by ordering these killings, but his reasoning differs from that
of the Majority. This reasoning is explained in his Separate and Concurring
Opinion on the Verdict.
650. The Chamber finds that at the time of his participation in these killings,
the Accused had the intent to destroy the Tutsi ethnic group in whole or
in part.
d. Conclusion
651. In conclusion, the Chamber finds beyond a reasonable doubt that the
Accused is individually criminally responsible for instigating, ordering,
and aiding and abetting the killing of members of the Tutsi ethnic group
in Gikomero Parish Compound, Gikomero commune, Kigali-Rural préfecture,
pursuant to Article 6(1) of the Statute.
652. Accordingly, in relation to Count 2 of the Indictment, the Chamber finds
the Accused GUILTY of GENOCIDE.
3. Complicity in Genocide
653. As an alternative count to Count 2, Count 3 of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below:
Jean de Dieu Kamuhanda
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
-pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for killing and causing serious bodily or mental harm to
members of the Tutsi population with the intent to destroy, in whole or in
part, a racial or ethnic group, and thereby committed COMPLICITY IN GENOCIDE,
a crime stipulated in Article 2(3)(e) of the Statute of the Tribunal, for
which he is individually responsible pursuant to Article 6 and which is punishable
in reference to Articles 22 and 23 of the Statute.
654. The Chamber recalls that Count 3 is an alternative count to Count 2
of the Indictment and that both charges arise from the same factual allegations.
Considering that the Chamber has already found the Accused guilty of genocide
under Count 2 pursuant to Article 2(3)(a) of the Statute, the Chamber will
make no finding on the charge of complicity in genocide pursuant to Article
2(3)(e) of the Statute as charged in Count 3. Accordingly, Count 3 is hereby
dismissed.
E. Crimes against Humanity
1. General Elements
a. Indictment
655. The Accused is charged with the following acts as Crimes against Humanity:
murder (Count 4), extermination (Count 5), rape (Count 6) and other inhumane
acts (Count 7).
b. The Statute
656. Pursuant to Article 3 of the Statute:
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment;
(f) Torture;
(g) Rape;
(h) Persecutions on political, racial and religious grounds;
(i) Other inhumane acts.
c. Jurisprudence
o Relationship Between the Enumerated Acts and the General Elements
657. The Accused is charged with the acts of murder, extermination, rape,
and other inhumane acts as Crimes against Humanity. The commission of any
of these acts by the Accused will constitute a Crime against Humanity, only
if the Chamber finds that the offence was committed as part of a widespread
or systematic attack on a civilian population on any of the following discriminatory
grounds: nationality, political persuasion, ethnicity, race, or religion.
658. In relation to each count for which the Accused is charged with a Crime
against Humanity, the Prosecution is required to prove the elements indicated
above.
659. An act may form part of a widespread or systematic attack without necessarily
sharing all the same features, such as the time and place of commission of
the other acts constituting the widespread or systematic attack.
o General Elements
The Attack
660. The Chamber adopts the accepted definition of “attack” within this
Tribunal, as “an unlawful act, event, or series of events of the kind listed
in Article 3(a) through (i) of the Statute.” This definition has remained
constant throughout the jurisprudence of the Tribunal.
661. Moreover, an attack committed on specific discriminatory grounds need
not necessarily require the use of armed force; it could also involve other
forms of inhumane treatment of the civilian population.
The Attack Must be Widespread or Systematic
662. The French and the English language versions of the Statute, equally
authentic are not consistent regarding this part of the text. The French
language version which uses the conjunction “et” reads in translation,
“widespread and systematic”, whilst the English language version uses the
disjunctive “or” and reads, “widespread or systematic”. The practice of
the ICTR and ICTY Tribunals has been to accept the English language version,
which is in line with customary international law.
663. Trial Chamber III in Semanza held that: “The Chamber does not see any
reason to depart from the uniform practice of the two Tribunals.” This Chamber
also adopts the standard of the Tribunals and accepts the English language
version, “widespread or systematic”.
Widespread
664. The term “widespread”, as an element of the attack within the meaning of Article 3 of the Statute, has been given slightly different meanings within the various Trial Chamber Judgments of the Tribunal. However, all can be said to refer to the scale of the attack, and sometimes the multiplicity of victims. The Chamber, following the definition given in the Niyitegeka and Ntakirutimana Judgments, adopts the test of “large scale, involving many victims”.
Systematic
665. There has been some debate in the jurisprudence of this Tribunal about
whether or not the term “systematic” necessarily contains a notion of a policy
or a plan. The Chamber agrees with the reasoning followed in Semanza and
finds that the existence of a plan is not independent legal element of Crimes
against Humanity. In Semanza, ICTR Trial Chamber II endorsed the jurisprudence
of the Appeals Chamber of the ICTY in Kunarac, that whilst “the existence
of a policy or plan may be evidentially relevant, in that it may be useful
in establishing that the attack was directed against a civilian population
and that it was widespread or systematic, […] the existence of such a plan
is not a separate legal element of the crime”.
666. The Chamber finds that “systematic”, as an element of the attack within
Article 3 of the Statute, describes the organized nature of the attack. Demonstration
of a pattern of conduct will also carry evidential value in the Chamber’s
final analysis.
The Attack Must be Directed against Any Civilian Population
667. Akayesu defined the civilian population as:
[…] people who are not taking any active part in the hostilities, including
members of the armed forces who laid down their arms and those persons
hors de combat by sickness, wounds, detention or any other cause. Where
there are certain individuals within the civilian population who do not
come within the definition of civilians, this does not deprive the population
of its civilian character.
668. This definition has been consistently followed in the jurisprudence
of the Tribunal. Bagilishema added:
It also follows that, as argued in Blaskic, “the specific situation of the
victim at the moment the crimes were committed, rather than his status, must
be taken into account in determining his standing as a civilian”.
669. It was also noted in Bagilishema that the term “population” does not
require that the Crimes against Humanity be directed against the entire population
of a geographic territory or area. Semanza further clarified that:
The victim(s) of the enumerated act need not necessarily share geographic
or other defining features with the civilian population that forms the primary
target of the underlying attack, but such characteristics may be used to
demonstrate that the enumerated act forms part of the attack.
670. The Chamber endorses this jurisprudence.
The Attack Must be Committed on Discriminatory Grounds
671. Article 3 of the Statute provides that the attack against the civilian
population be committed on “national, political, ethnical, racial or religious
grounds”. This provision is jurisdictional in nature, limiting the jurisdiction
of the Tribunal to a narrow category of Crimes, and not intended to alter
the definition of Crimes against Humanity in international law.
672. The Akayesu Appeals Chamber clarified the position:
In the opinion of the Appeals Chamber, except in the case of persecution,
a discriminatory intent is not required by international humanitarian law
as a legal ingredient for all Crimes against Humanity. To that extent, the
Appeals Chamber endorses the general conclusion and review contained in Tadc,
as discussed above. However, though such is not a requirement for the crime
per se, all Crimes against Humanity, may, in actuality, be committed in the
context of a discriminatory attack against a civilian population. As held
in Tadc: “[i]t is true that in most cases, Crimes against Humanity are waged
against civilian populations which have been specifically targeted for national,
political, ethnic, racial or religious reasons”. It is within this context,
and in light of the nature of the events in Rwanda (where a civilian population
was actually the target of a discriminatory attack), that the Security Council
decided to limit the jurisdiction of the Tribunal over Crimes against Humanity
solely to cases where they were committed on discriminatory grounds. This
is to say that the Security Council intended thereby that the Tribunal should
not prosecute perpetrators of other possible Crimes against Humanity.
The Appeals Chamber has found that in doing so, the Security Council did
not depart from international humanitarian law nor did it change the legal
ingredients required under international humanitarian law with respect to
Crimes against Humanity. It limited at the very most the jurisdiction of
the Tribunal to a sub-group of such crimes, which in actuality may be committed
in a particular situation. (...) In the case at bench, the Tribunal was conferred
jurisdiction over Crimes against Humanity (as they are known in customary
international law), but solely “when committed as part of a widespread or
systematic attack against any civilian population” on certain discriminatory
grounds; the crime in question is the one that falls within such a scope.
Indeed, this narrows the scope of the jurisdiction, which introduces no additional
element in the legal ingredients of the crime as these are known in customary
international law.
673. In the present case, we follow this jurisprudence of the Appeals Chamber.
However, such acts committed against persons outside the discriminatory categories
need not necessarily fall outside the jurisdiction of the Tribunal, if the
perpetrator’s intention in committing these acts is to support or further
the attack on the group discriminated against on one of the enumerated grounds.
674. The Chamber notes that a specific discriminatory intent is required
for the charge of persecution as Crime against Humanity. However, since the
Prosecution informed the Chamber during its closing arguments that it no
longer wished to pursue this charge of persecution, the Chamber does not
find it necessary to consider the legal elements of this crime.
The Mental Element for Crimes against Humanity
675. A clear statement of the mental element of Crimes against Humanity
is to be found in the Semanza Judgment:
The accused must have acted with knowledge of the broader context of the
attack and knowledge that his act formed part of the attack on the civilian
population.
676. This Chamber fully endorses this position.
d. Findings
677. The Chamber recalls that the Accused admitted that between 1 January
1994 and 17 July 1994 there were throughout Rwanda widespread or systematic
attacks against a civilian population with the specific objective of extermination
of the Tutsi.
678. The Chamber has accepted that by 12 April 1994, several thousand men,
women and children, mainly of Tutsi origin, along with their cattle, had
taken refuge at the Parish.
679. The Chamber has found that a large number of Tutsi were killed on 12
April 1994 at the Gikomero Parish Compound, Gikomero commune.
680. The Chamber has also found that a large number of Tutsi were killed
on or about the 13 April 1994 in Gishaka, Gikomero commune.
681. The evidence of both Parties shows that these Tutsi victims had taken
refuge in Gikomero Parish Compound and Gishaka fleeing prior attacks against
them that occurred in other areas of Kigali-Rural, such as Rubungo.
682. Thus, the Chamber finds that killings of members of the Tutsi ethnic
group occurred on a mass scale in Gikomero commune during April 1994. The
targets were whole populations of Tutsi ethnicity, attacked at places such
as where they took shelter and refuge. The Chamber further finds that this
constitutes a widespread attack upon a civilian Tutsi ethnic group.
683. The Chamber finds that the attack of Gikomero Parish Compound on 12
April 1994 was part of a widespread attack against the Tutsi civilian population
in Rwanda and particularly in Kigali-Rural.
2. Crimes against Humanity - Murder
a. Indictment
684. Count 4 of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below:
Jean de Dieu Kamuhanda
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13,
5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14
to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54,
6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for the murder of persons as part of a widespread and systematic
attack against a civilian population on political, ethnic or racial grounds,
and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article
3(a) of the Statute of the Tribunal, for which he is individually responsible
pursuant to Article 6 of the Statute and which is punishable in reference
to Articles 22 and 23 of the Statute.
b. Jurisprudence
685. For the reasons set out in the next section on Legal Findings relating
to murder, in the Legal Findings section on extermination as a Crime against
Humanity, and in the Chamber’s findings on the law relating to cumulative
conviction on the same facts for both murder and extermination as Crimes
against Humanity, the Chamber does not here find it necessary to set out
the law relating to murder as a Crime against Humanity.
c. Findings
686. The Chamber notes that apart from the question of scale, the essence
of the crimes of murder as a Crime against Humanity and extermination as
a Crime against Humanity is the same. The Chamber finds that there was insufficient
distinction drawn in the Indictment between the general allegations of murder
as a Crime against Humanity and extermination as a Crime against Humanity.
The Chamber also notes that the Indictment does not specify the identities
of victims for whom the Accused is charged with murder.
687. After consideration of the evidence in this case, the Chamber finds
it appropriate to consider the evidence relating to the killing of specific
individuals as examples of targeting populations or groups of people for
purposes of extermination, rather than murder specifically. This position
accords with the Chamber’s finding on the law relating to cumulative convictions
on the same facts for murder and extermination.
d. Conclusion
688. Accordingly, the Chamber will make no finding in relation to Count 4 of the Indictment (MURDER AS A CRIME AGAINST HUMANITY). The count is hereby dismissed.
3. Crimes against Humanity - Extermination
a. Indictment
689. Count 5 on Crimes against Humanity - extermination of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below:
Jean de Dieu Kamuhanda:
-pursuant to Article 6(1), 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
-pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for the extermination of persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(b) of the Statute of Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute.
690. For the reasons indicated in Part III, Section I of this Judgment,
the Chamber has made these factual findings based only on the relevant paragraphs
of the Indictment referred to in Count 5.
b. Jurisprudence
691. It is well established in ICTR case law that:
Extermination is a crime, which by its very nature is directed against a
group of individuals. Extermination differs from murder in that it requires
an element of mass destruction, which is not required for murder.
692. Thus, the killings must have been committed on a large scale for the
Chamber to find the Accused guilty of extermination. There is no conclusive
authority on how many murders constitute extermination. The first judgments
concerning extermination as a Crime against Humanity considered that “large
scale” does not suggest a numeric minimum. It must be determined on a case-by-case
basis, using a common-sense approach.” Accordingly, Trial Chamber I in Bagilishema
held that:
A perpetrator may nonetheless be guilty of extermination if he kills, or
creates conditions of life that kill, a single person, providing that the
perpetrator is aware his or her acts or omissions form part of a mass killing
event, namely mass killings that are proximate in time and place and thereby
are best understood as a single or sustained attack”.
693. In contrast, more recent judgments have held that “responsibility for
a single or a limited number of killings is insufficient.” This most recent
approach appears to be more in conformity with established jurisprudence
that an element of mass destruction is required for extermination.
694. The Chamber is satisfied that a single killing or a small number of
killings do not constitute extermination. In order to give practical meaning
to the charge of extermination, as distinct from murder, there must in fact
be a large number of killings, and the attack must be directed against a
group, such as a neighbourhood, as opposed to any specific individuals within
it. However, the Chamber may consider evidence under this charge relating
to the murder of specific individuals as an illustration of the extermination
of the targeted group.
695. In Bagilishema and Kayishema and Ruzindana it was held that extermination
is not limited to intentional acts or omissions but also covers reckless
or grossly negligent conduct of the accused. The Chamber notes that more
recent judgments have taken a slightly different approach, with Semanza holding
that:
[…] in the absence of express authority in the Statute or in customary international
law, international criminal liability should be ascribed only on the basis
of intentional conduct.
696. We do not interpret Bagilishema and Kayishema and Ruzindana to suggest
that a person may be found guilty of a Crime against Humanity if he or she
did not possess the requisite mens rea for such a crime, but rather to suggest
that reckless or grossly negligent conduct are indicative of the offender’s
mens rea. Understood in that way, the Semanza position is not at odds with
the Bagilishema and Kayishema and Ruzindana judgments.
c. Findings
697. The Chamber recalls its findings under the Count of Genocide that Tutsis
were killed at Gikomero Parish Compound and that the Accused participated
in this killing by ordering, instigating and aiding and abetting the commission
of the crime.
698. The material element of extermination is the large-scale killing of
a substantial number of civilians. Although the evidence does not indicate
the specific number of victims to enable a specific finding of the number
of deaths at the Gikomero Parish Compound, the evidence clearly shows that
large numbers of Tutsi civilians were killed there during the attack, in
which the Accused participated. On the basis of reliable and credible evidence,
the Chamber finds that the scale of killings at the Gikomero Parish Compound
is sufficient to be termed extermination, and that the principal perpetrators
of the killings committed extermination as a Crime against Humanity.
699. The Chamber finds that the Accused participated in the attack at Gikomero
Parish Compound, and that the Accused was fully aware that his actions formed
part of a widespread attack. On the basis of the evidence and in view of
the scale of this event, the Chamber is convinced that the Accused ordered,
instigated, and aided and abetted the principal perpetrators of the attack
at the Gikomero Parish Compound against the Tutsi civilians, who had gathered
there in large numbers to seek shelter and refuge.
d. Conclusion
700. In conclusion, the Chamber finds beyond a reasonable doubt that the
Accused is individually criminally responsible, pursuant to Article 6(1)
of the Statute, for instigating, ordering, and aiding and abetting the extermination
of members of the Tutsi ethnic group at the Gikomero Parish Compound in Gikomero
Commune.
701. Judge Maqutu joins with the Majority to conclude that the Accused participated
in the crime by ordering these killings, but his reasoning differs from that
of the Majority. This reasoning is explained in his Separate and Concurring
Opinion on Verdict.
702. Accordingly, in relation to Count 5 of the Indictment, the Chamber finds
the Accused GUILTY of EXTERMINATION AS A CRIME AGAINST HUMANITY.
4. Crimes against Humanity – Rape
a. Indictment
703. Count 6 on Crimes against Humanity – rape of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below:
Jean de Dieu Kamuhanda
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
-pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for rape as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(g) of Statute of the Tribunal, for which they is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute.
704. For the reasons indicated in Part III, Section I of this Judgment, the Chamber has made these factual findings based only on the relevant paragraphs of the Indictment referred to in Count 6.
b. Jurisprudence
705. In Akayesu the Trial Chamber considered that the traditional mechanical
definition of rape did not adequately capture its true nature and instead
offered a definition of rape as:
A physical invasion of a sexual nature, committed on a person under circumstances
which are coercive. Sexual violence which includes rape is considered to
be any act of a sexual nature which is committed on a person under circumstances
which are coercive.
706. This conceptual definition of rape was approved in Musema, where the
Chamber highlighted the difference between “a physical invasion of a sexual
nature”, and “any act of a sexual nature” as being the difference between
rape and sexual assault. Meanwhile, a Trial Chamber of the ICTY handed down
the Furundžija Judgment, in which that Chamber preferred the following more
detailed definition related to objects and body parts:
Most legal systems in the common and civil law world consider rape to be
the forcible sexual penetration of the human body by the penis or the forcible
insertion of any other object into either the vagina or the anus”.
707. This definition substantially modified and completed by Trial Chamber
II in the Kunarac Judgment has been endorsed by the Appeals Chamber. It reads
as follow:
The actus reus of the crime of rape in international law is constituted by:
the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or
any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator; where such
sexual penetration occurs without the consent of the victim. Consent for
this purpose must be consent given voluntarily, as a result of the victim’s
free will, assessed in the context of the surrounding circumstances.
708. The mens rea is the intention to effect this sexual penetration, and
the knowledge that it occurs without the consent of the victim.
709. Given the evolution of the law in this area, endorsed in the Furundžija/Kunarac
approach by the ICTY Appeals Chamber, the Chamber finds the latter approach
of persuasive authority and hereby adopts the definition as given in Kunarac
and quoted above. The mental element of the offence of rape as a Crime against
Humanity is the intention to effect the above-described sexual penetration,
with the knowledge that the act was perpetrated without the consent of the
victim.
710. Other acts of sexual violence which may fall outside of this specific
definition may of course be prosecuted, and would be considered by the Chamber
under other categories of crimes for which the Tribunal has jurisdiction,
such as other inhumane acts.
c. Findings
711. The Chamber is not satisfied with the evidence adduced in support of
the allegation that the Accused was involved in any rapes that occurred during
or in relation to the attack at the Gikomero Parish Compound.
712. Therefore the Chamber does not find the Accused criminally responsible
for rape, as alleged in Count 6.
d. Conclusion
713. Thus, in relation to Count 6 of the Indictment, the Chamber finds the
Accused NOT GUILTY of RAPE AS A CRIME AGAINST HUMANITY.
5. Crimes against Humanity – Other Inhumane Acts
a. Indictment
714. Count 7 of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below:
Jean de Dieu Kamuhanda
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
- pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90
is responsible for inhumane acts against persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(i) of Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute.
715. For the reasons indicated in Part III, Section I of this Judgment,
the Chamber has made these factual findings based only on the relevant paragraphs
of the Indictment referred to in Count 7.
b. Jurisprudence
716. In Kayishema and Ruzindana the Trial Chamber noted that since the Nuremberg
Charter, the category “other inhumane acts” has been maintained as a useful
category for acts not specifically stated but which are of comparable gravity.
717. Crimes which may fall under this category would only be acts or omissions
similar in gravity to the conducts enumerated in Article 3 of the Statute,
and would be decided by the Tribunal on a case-by-case basis. In proving
its case, the Prosecution must prove a nexus between the inhumane act and
the great suffering or serious injury to the mental or physical health of
the victim. Inhumane Acts are only those which deliberately cause suffering.
Therefore, where third parties observe acts committed against others, in
circumstances in which the Accused may not have had an intention to injure
those third parties by their observation of these acts, the Accused may still
be held accountable for their mental suffering.
718. In Kayishema and Ruzindana the position was summarised that:
[…] for an accused to be has found guilty of Crimes against Humanity for
other inhumane acts, he must commit an act of similar gravity and seriousness
to the other enumerated crimes, with the intention to cause the other inhumane
act, and with knowledge that the act is perpetrated within the overall context
of the attack. In the Niyitegeka Judgment, Trial Chamber I has found that
by perpetrating gross acts of sexual violence upon a dead woman’s body, the
Accused caused mental suffering to civilians, his actions constituted a serious
attack on the human dignity of the Tutsi community as a whole, and that these
acts were part of a widespread and systematic attack against the civilian
Tutsi population on ethnic grounds.
c. Findings
719. There was not enough and specific evidence to establish beyond reasonable
that the Accused either planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution of inhumane acts.
d. Conclusion
720. Thus, in relation to Count 7 of the Indictment, the Chamber finds the
Accused NOT GUILTY of OTHER INHUMANE ACTS AS A CRIME AGAINST HUMANITY.
F. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II
1. General Elements
a. The Statute
Article 4: Violations of Article 3 Common to the Geneva Conventions
and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons
committing or ordering to be committed serious violations of Article 3 common
to the Geneva Conventions of 12 August 1949 for the Protection of War Victims,
and of Additional Protocol II thereto of 8 June 1977. These violations shall
include, but shall not be limited to:
(a) Violence to life, health and physical or mental well-being of persons,
in particular murder as well as cruel treatment such as torture, mutilation
or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault;
(f) Pillage;
(g) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilised peoples;
(h) Threats to commit any of the foregoing acts.
b. Jurisprudence
o Nature of the Conflict
721. The provisions of Common Article 3 and Additional Protocol II, as incorporated
in Article 4 of the Statute, are expressly applicable to alleged offences
committed within the context of conflicts of a non-international character.
Accordingly, the Chamber must address the question whether the 1994 conflict
in Rwanda falls within the ambit of these provisions.
722. Common Article 3 prescribes: “In the case of armed conflict not of an
international character occurring in the territory of one of the High Contracting
Parties, each Party to the conflict shall be bound to apply, as a minimum
… [certain] provisions…” . Therefore, Common Article 3 is applicable to any
non-international armed conflict within the territory of a state party. In
general, non-international armed conflicts referred to in Common Article
3 are conflicts with armed forces on either side engaged in hostilities that
are in many respects similar to an international war, but take place within
the confines of a single country.”
723. Additional Protocol II develops and supplements Common Article 3. Specifically,
Additional Protocol II applies to conflicts taking place “in the territory
of a High contracting party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible command,
exercise such control over a part of its territory as to enable them to carry
out sustained and concerted military operations and to implement this Protocol”.
724. Expanding on Common Article 3, Article 1 of Additional Protocol II sets
out the material requirements for applicability:
(i) the occurrence of an armed conflict in the territory of a High Contracting
party, namely, Rwanda, between its armed forces and dissident armed forces
or other armed groups;
(ii) the responsible command of the dissident armed forces or other organized armed groups;
(iii) the exercise of control by dissident armed forces or other organized armed groups, enabling them to carry out sustained and concerted military operations;
(iv) the implementation of Additional Protocol II by the dissident armed
forces or other organized armed groups.”
o Rationae Personae: Perpetrators
725. Pursuant to Article 4 of the ICTR Statute, the Tribunal “shall have
the power to prosecute persons committing or ordering to be committed serious
violations of [Common Article 3 and Additional Protocol II]”. The category
of persons who are accountable under this article for war crimes on civilians
is not limited. As noted by the Appeals Chamber of this Tribunal, “Article
4 makes no mention of a possible delimitation of classes of persons likely
to be prosecuted under this provision.”
726. Similarly, Common Article 3 and Additional Protocol II do not specify
classes of potential perpetrators but rather indicate who are bound by the
obligations imposed by their provisions to protect victims and potential
victims of armed conflicts. Under Common Article 3, “each Party to the conflict”
is so bound. The ICRC Commentary on Additional Protocol II simply indicates
that criminal responsibility extends to “those who must, within the meaning
of the Protocol, conform to certain rules of conduct with respect to the
adversary and the civilian population.”
727. However, further clarification of the class of potential perpetrators
is unnecessary in view of the principal purpose of these instruments, which
is to protect victims of armed conflicts. Indeed it is well established from
the jurisprudence of the International Tribunals that the protections of
Common Article 3, as incorporated in Article 4 of the Statute, imply effective
punishment of perpetrators, whoever they may be. In this regard, the Appeals
Chamber in its judgment in the Akayesu case held that:
The minimum protection provided for victims under common Article 3 implies
necessarily effective punishment on persons who violate it. Now, such punishment
must be applicable to everyone without discrimination, as required by the
principles governing individual criminal responsibility as laid down by the
Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the
opinion that international humanitarian law would be lessened and called
into question if it were to be admitted that certain persons be exonerated
from individual criminal responsibility for a violation of common Article
3 under the pretext that they did not belong to a specific category.
728. The Akayesu Appeals Chamber also held that there need be no requisite
link between the perpetrator and one of the parties to the conflict. Specifically,
the Appeals Chamber stated that “such a special relationship is not a condition
precedent to the application of Common Article 3 and, hence, of Article 4
of the Statute.”
729. Accordingly, criminal responsibility for the commission of any act covered
by Article 4 of the Statute is not conditional on any defined classification
of the alleged perpetrator.
o Rationae Personae: Victims
730. The protections of both Common Article 3 and Additional Protocol II,
as incorporated in Article 4 of the Statute, extend to persons taking no
active part in the hostilities. In view of the jurisprudence of the International
Tribunals, an alleged victim, under Article 4 of the Statute, is “any individual
not taking part in the hostilities.”
731. The criterion applied in the Tadic Judgment to determine the applicability
of Article 4 to alleged victims of armed conflicts is: “whether, at the time
of the alleged offence, the alleged victim of the proscribed acts was directly
taking part in hostilities”. If the answer to this question is the negative,
then the alleged victim was a person protected under Common Article 3 and
Additional Protocol II.
o Rationae Loci
732. The protection afforded to victims of armed conflicts under Common
Article 3 and Additional Protocol II, as incorporated by Article 4 of the
Statute, extends throughout the territory of the state where the hostilities
are occurring, without limitation to the “war front” or to the “narrow geographical
context of the actual theatre of combat operations,” once the objective,
material conditions for applicability of these provisions have been satisfied.
o Nexus Between the Alleged Violation and the Armed Conflict
733. For a criminal offence to fall within the ambit of Article 4 of the
Statute, the Chamber must be satisfied that a nexus existed between the alleged
breach of Common Article 3 or of Additional Protocol II and the underlying
armed conflict.
734. The objective of this requirement of a nexus between the crimes committed
and the armed conflict can best be appreciated in light of the underlying
humanitarian purpose of these instruments to protect victims of internal
conflicts, not victims of offences unrelated to the hostilities, however
reprehensible such offences may be.
735. The existence of the requisite nexus at the time of the alleged crime
is an issue for determination on the evidence presented. It is the view of
both the ICTR and the ICTY Appeals Chambers that the nexus requirement is
met if the alleged offence is “closely related to the armed conflict”. Indeed
the Appeals Chambers have stated:
The armed conflict need not have been causal to the commission of the crime,
but the existence of an armed conflict must, at a minimum, have played a
substantial part in the perpetrator’s ability to commit it, his decision
to commit it, the manner in which it was committed or the purpose for which
it was committed. Hence, if it can be established that the perpetrator acted
in furtherance of or under the guise of the armed conflict, it would be sufficient
to conclude that his acts were closely related to the armed conflict.
736. The determination of whether or not there existed a close relationship
between a particular offence and an armed conflict will usually require consideration
of several factors, including: whether the perpetrator is a commander or
combatant; whether the victim is a non-combatant; whether the victim is a
member of the opposing party; whether the crime is part of a military campaign;
and whether the crime was committed within the context of the perpetrator’s
official duties. These criteria are not exhaustive of the factors indicating
the existence of a close relationship between a particular offence and an
armed conflict.
o Serious Violations
Pursuant to Article 4 of the Statute, the Tribunal has been granted jurisdiction to prosecute serious violations of Common Article 3 and of Additional Protocol. A “serious violation” within the context of Article 4, in the opinion of this Tribunal, constitutes a breach of a rule protecting important humanitarian values with grave consequences for the victim. On this basis, the Tribunal has expressed the view, with which this Chamber concurs, that the acts articulated in Article 4 of the Statute, constituting serious violations of Common Article 3 and Additional Protocol II, entail individual criminal responsibility.
c. Findings
737. For the Accused to incur criminal responsibility under Article 4 of
the Statute, it is incumbent on the Prosecution to prove beyond reasonable
doubt that the Accused committed the alleged underlying crime or crimes against
persons not taking an active part in the hostilities; that the alleged act
or acts were committed in the context of an internal armed conflict; and
that there existed a nexus between the alleged acts and the armed conflict.
738. It has been established, for the purposes of this case, that a state
of non-international armed conflict existed in Rwanda as of 6 April 1994
to mid-July 1994 when the Accused left the country.
739. For the Accused to incur criminal responsibility under Article 4 of
the Statute, it is incumbent on the Prosecution to prove beyond reasonable
doubt that he was directly engaged in the hostilities, acting for one of
the conflicting parties in the execution of their respective conflict objectives.
Accordingly, it is the Prosecution’s responsibility to prove that the Accused
was either a member of the armed forces under the military command of the
belligerent parties or that, by virtue of his authority as a public civilian
official representing the Government, he was legitimately mandated or expected
to support the war efforts.
740. This Chamber has found on the basis of evidence presented during trial
that, at the time of the events alleged in the Indictment, the Accused distributed
weapons to members of the Interahamwe and others engaged in the attacks in
Gikomero and that the Accused himself participated in the crimes against
the Tutsi population at Gikomero on 12 April 1994.
741. The Prosecution has relied in part on the same facts which support the
Chamber’s findings regarding genocide and extermination as a Crime against
Humanity to attempt to demonstrate the existence of a nexus between the alleged
actions of the Accused and the conflict in Rwanda in 1994. The Prosecution
has alleged that the Accused embodied national governmental authority and
that he held an executive civilian position within the administration of
the country, including the communes of Gikomero and Gishaka. However, the
Prosecution has not shown sufficiently how and in what capacity the Accused
supported the Government effort against the RPF. No convincing evidence has
been presented to demonstrate that the Accused, either in a private capacity
or in his role as a civil servant, worked with the military, actively supported
the war effort or that the Accused’s actions were closely related to the
hostilities or committed in conjunction with the armed conflict.
742. In the Chamber’s view, the evidence in the present case can be distinguished
from the facts of the recent Appeals Chamber judgment in Prosecutor v. Rutaganda,
where the Accused was found, pursuant to Articles 6(1) and 4(a) of the Statute,
to be criminally responsible for crimes of murder as violations of common
Article 3 of the Geneva Conventions. In Rutaganda, evidence established beyond
a reasonable doubt that a nexus existed between the armed conflict existing
in Rwanda and the crimes charged against the Accused. The basis of this evidence,
in significant part, was established on the testimony of two expert witnesses,
which demonstrated, inter alia, that soldiers of the RAF provided military
training to the members of the Interahamwe za MRND, which was the youth wing
of the political majority in the government in power in April 1994, and that
some of the army leaders most involved in the genocide influenced the activities
of the Interahamwe za MRND. The Rutaganda Appeals Chamber also found, on
the basis of facts accepted by the Trial Chamber, that the Accused was second
vice-president of the youth wing of the Interahamwe za MRND, and that he
exercised de facto authority over the Interahamwe militia. It further found
beyond a reasonable doubt, on the basis of evidence presented before the
Trial Chamber, that a nexus existed between the armed conflict and an attack
at the site of Nyanza, in which both the Accused and RAF troops directed
the activities of the Interahamwe and participated in the killing of refugees
alongside the Interahamwe.
743. In the present case, as distinguished from Rutaganda, insufficient evidence
has been established to enable a finding that there is a nexus between any
crimes committed by the Accused and any conflict—either a conflict generally
raging in Rwanda or one specifically affecting the material regions indicated
in the Indictment.
744. Accordingly, it is not necessary for the Chamber to discuss the other
elements of the following crimes, for purposes of this case.
2. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II—Outrage on Personal Dignity
a. Indictment
745. Count 8 of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below
Jean de Dieu Kamuhanda:
- pursuant to Article 6(1), according to paragraphs: according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90.
- pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13,
5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14
to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54,
6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90.
is responsible for outrages upon personal dignity, in particular humiliating
and degrading treatment, rape and indecent assault, as part of an armed
internal conflict, and thereby committed SERIOUS VIOLATIONS OF ARTICLE
3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II, a crime
stipulated in Article 4(e) of the Statute of the Tribunal, for which he
is individually responsible pursuant to Article 6 of the Statute and which
is punishable in reference to Articles 22 and 23 of the Statute.
b. Conclusion
746. In relation to Count 8 of the Indictment, the Chamber finds the Accused
NOT GUILTY of Serious Violations Of Article 3 Common To The Geneva Conventions
And Of Additional Protocol II—Outrage On Personal Dignity.
3. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II—Killing and Violence
a. Indictment
747. Count 9 of the Indictment charges:
By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically
in the paragraphs referred to below:
Jean de Dieu Kamuhanda
-pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90.
-pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90.
is responsible for killing and causing violence to health and to the physical
or mental well-being of civilians as part of an armed internal conflict,
and thereby committed SERIOUS VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA
CONVENTIONS AND ADDITIONAL PROTOCOL II, a crime stipulated in article 4(a)
of the Statue of the Tribunal, for which he is individually responsible pursuant
to Article 6 of the Statute and which is punishable in reference to Articles
22 and 23 of the Statute.
b. Conclusion
748. In relation to Count 9 of the Indictment, the Chamber finds the Accused NOT GUILTY of Serious Violations Of Article 3 Common To The Geneva Conventions And Of Additional Protocol II – killing and causing violence to health and to the physical or mental well-being of civilians as part of an armed internal conflict.
PART V - VERDICT
749. For the reasons set out in this Judgment, having considered all the
evidence and arguments, the Trial Chamber finds in respect of the Accused
as follows.
750. Unanimously:
Count 2 (Genocide): GUILTY
Count 3 (Complicity in Genocide): DISMISSED
Count 4 (Murder as a Crime against Humanity): DISMISSED
Count 5 (Extermination as a Crime against Humanity): GUILTY
Count 6 (Rape as a Crime against Humanity): NOT GUILTY
Count 7 (Other Inhumane Acts as a Crime against Humanity): NOT GUILTY
Count 8 (Outrage On Personal Dignity as Serious Violations Of Article 3 Common
To The Geneva Conventions And Of Additional Protocol II ): NOT GUILTY
Count 9 (Killing and Violence as Serious Violations Of Article 3 Common To
The Geneva Conventions And Of Additional Protocol II ) : NOT GUILTY
751. Judge Maqutu appends his Separate and Concurring Opinion on the Verdict.
752. Done in English and French, the English text being authoritative.
Arusha, 22 January 2003
William H. Sekule Winston C. Matanzima Maqutu Arlette Ramaroson
Presiding Judge Judge Judge
(Seal of the Tribunal)
PART VI - SENTENCE
A. General Sentencing Practice
753. In considering the sentence to be imposed on Kamuhanda, the Chamber
is mindful that this Tribunal was set up by the Security Council of the United
Nations under Chapter VII of the Charter of the United Nations. The Chamber
is particularly mindful of Security Council Resolution 955 (1994), which
in the preamble stressed in the terms set out below the themes of deterrence,
justice, reconciliation, and the restoration and maintenance of peace.
[…]
Determined to put an end to such crimes and to take effective measures to
bring to justice the persons who are responsible for them,
Convinced that in the particular circumstances of Rwanda, the prosecution
of persons responsible for serious violations of international humanitarian
law would enable this aim to be achieved and would contribute to the process
of national reconciliation and to the restoration and maintenance of peace,
Believing that the establishment of an international tribunal for the prosecution
of persons responsible for genocide and the other above-mentioned violations
of international humanitarian law will contribute to ensuring that such violations
are halted and effectively redressed,
[…]
754. In considering the appropriate sentence to be passed upon Kamuhanda,
the Chamber weighs heavily the factors which will contribute towards the
realisation of these objectives. In view of the grave nature of the crimes
committed in Rwanda in 1994, it is essential that the international community
condemn them in a manner that carries a substantial deterrent factor against
their reoccurrence anywhere, whether in Rwanda or elsewhere. Reconciliation
amongst Rwandans, towards which the processes of the Tribunal should contribute,
must also weigh heavily in the Chamber’s mind when passing sentence.
755. In sentencing Kamuhanda, the Chamber will take into account the gravity
of the offences pursuant to Article 23 of the Statute and Rule 101 of the
Rules, the individual circumstances of Kamuhanda, aggravating and mitigating
circumstances as well as the general sentencing practice of the Tribunal.
In terms of Rule 101 of the Rules, the Chamber must take into account the
general practice regarding prison sentences in the courts of Rwanda. Should
it be appropriate, the Chamber will give credit to Kamuhanda for time served
in custody pending trial.
B. Mitigating Factors
756. Parties are required in terms of Rule 86(C) to address matters relating
to sentencing in their closing briefs. The Defence did not do so. However,
the Chamber invited Counsel to do so during the oral closing arguments. The
Defence expressed reluctance to address matters relating to sentencing because
in its submission Kamuhanda should be acquitted. When pressed on the matter,
the Defence submitted that in the event Kamuhanda is found guilty, his sentence
should be limited to the time period he has already spent in custody at the
behest of the Tribunal.
757. After considering the evidence, the Chamber notes the fact that prior
to his involvement in the genocide, Kamuhanda was widely regarded as a good
man, who did a lot to help his commune and his country.
758. However, the Chamber finds by a majority, Judge Maqutu dissenting, that
given the gravity of the Crimes for which the Accused has been found guilty,
there are insufficient reasons to conclude that there are any mitigating
factors in this case.
C. Aggravating Factors
759. The Chamber notes that there is no evidence of any previous criminal
conduct on the part of Kamuhanda, and the Chamber finds no aggravating circumstances
in his conduct prior to 1994.
760. The Chamber notes that according to Article 23(2) of the Statute, the
gravity of the crimes committed should be taken into account during sentencing.
The Chamber interprets this to mean that the more heinous the crime, the
higher the sentence that should be imposed upon its perpetrator. However,
in assessing the gravity of the offence, the Chamber ought to go beyond the
abstract gravity of the crime to take into account the particular circumstances
of the case as well as the form and the degree of the participation of Kamuhanda
in the crime.
761. Kamuhanda has been found guilty of Genocide and guilty of Extermination
as a Crime against Humanity.
762. The Prosecution submitted in its closing brief that the fact that Kamuhanda
was a top civil servant who subsequently rose to the highest position of
Minister in Charge of the Ministry of Higher Education and Scientific Research
is a strong aggravating factor that should be considered by the Chamber in
its deliberations on sentencing. It also submitted that, as a top civil servant,
Kamuhanda was a prominent figure within Rwandan society generally, and the
Gikomero commune particularly. It submits that Kamuhanda was popular and
renowned in Gikomero, where he held the position of Chairman of the Electoral
College and the Technical Committee. It submits that his high position placed
him under a duty to espouse the principles laid down in the Constitution,
and uphold a higher than average degree of morality. Instead, according to
the Prosecution, he supported the genocidal campaign, actively engaging himself
in the killing of Tutsis and inciting others to kill.
763. In determining the extent of the existence of any aggravating factors,
the Chamber will consider only those factors on which it has made a positive
finding. The Chamber has considered the submissions of the Parties and the
entirety of the evidence in the case, and finds the following aggravating
factors when considering the culpability of Kamuhanda for the crimes for
which he has been found guilty.
764. The Chamber finds that the high position Kamuhanda held as a civil servant
can be considered as an aggravating factor. Kamuhanda was a respected man,
influential, and considered to be an intellectual. He was in the position
to know and to appreciate the dignity and value of life, and also the value
and importance of a peaceful coexistence between communities. He was in the
position to promote the value of tolerance. Instead of doing so, he blamed
people who were living peacefully for not taking part in the campaign of
violence. He instigated and led an attack to kill people who had taken shelter
in a place universally recognised to be a sanctuary, the Compound of the
Gikomero Parish Church. As a result of this attack many people were massacred.
The Chamber considers these to be gravely aggravating factors.
D. Sentencing Ranges
765. The Chamber has taken into consideration the sentencing practice in
the ICTR and the ICTY, and notes particularly that the penalty must first
and foremost be commensurate to the gravity of the offence. Principal perpetrators
convicted of either genocide or extermination as a Crime against Humanity,
for both of which Kamuhanda has been found guilty, have been punished with
sentences ranging from fifteen years to imprisonment for the remainder of
the convicted person’s life.
766. The Chamber has considered the general sentencing practice regarding
prison sentences in Rwanda. The Chamber notes that for the most serious crimes,
comparable to a conviction by this Tribunal for Genocide or Extermination
as a Crime against Humanity, a convict under the Rwandan judicial system
would be liable to the death penalty. In regard to lower categories of crimes
in Rwanda, a Rwandan court would have the power to impose a life sentence.
Thus, the Chamber regards this as one factor supporting the imposition of
a heavy penalty upon Kamuhanda.
E. Credit for Time Served
767. The Accused was arrested in France pursuant to a warrant of arrest issued
by the Tribunal on 26 November 1999, and transferred to the seat of the Tribunal
on 7 March 2000.
768. Pursuant to Rule 101(D), Kamuhanda is entitled to credit for the period
during which he was detained in custody pending surrender and trial.
769. The Chamber finds that Kamuhanda is entitled to credit for time served
of four years and fifty eight days, if applicable.
F. Conclusion
770. Given all of the foregoing, the Chamber, by a majority, Judge Maqutu
dissenting, now sentences Kamuhanda as follows:
for Genocide (Count 2): Imprisonment for the remainder of his life;
for Extermination as a Crime against Humanity (Count 5): Imprisonment for
the remainder of his life;
771. These sentences shall run concurrently.
772. Judge Maqutu appends his Dissent on the Sentence.
773. In accordance with Rules 102(A) and 103, Kamuhanda shall remain in
the custody of the Tribunal pending transfer to the State where he shall
serve his sentence.
774. Done in English and French, the English text being authoritative.
Arusha, 22 January 2004
William H. Sekule Arlette Ramaroson
Presiding Judge Judge
(Seal of the Tribunal)
Detailed Table of Contents
PART I - Introduction 4
A. The Tribunal and its Jurisdiction 4
B. Procedural Background 5
1. Pre-Trial Phase 5
2. The Indictment of 15 November 2000 6
3. Trial Phase 8
C. Evidentiary Matters 9
1. General Principles of the Assessment of Evidence 10
2. Credibility 10
3. Corroboration 12
4. Hearsay Evidence 13
D. Witness Protection Issues 13
PART II – The Defence Case 14
A. Introduction 14
B. Vagueness of the Indictment 14
1. Allegations 14
2. Discussion 15
3. Findings 16
C. In and out of Court Identification of the Accused by the Prosecution.
17
1. Allegations 17
2. Discussion and Conclusion 18
D. The Defence Contention that the Citizens of Gikomero Were Surprised by
the Attacks and That the Assailants Came from Rubungo. 18
1. Allegations 18
2. Discussion and Conclusion 19
E. Defence Contention that Prosecution Witnesses Bore False Testimony against
the Accused and That the Charges against the Accused are Fabrication 19
1. Allegations 19
2. Conclusion 19
F. The Alleged Influence of the Accused. 20
1. Allegations 20
2. Conclusion 20
G. The Personality of the Accused was Incompatible with the Description of
the Person Presented by the Prosecutor. 20
1. Allegations 20
2. Conclusion 21
H. Prosecution Allegation That the Accused Was an Advisor to the President.
21
1. Allegations 21
2. Conclusion 21
I. Defence Contention that the Accused Became a Member of the Interim Government
under Duress 21
1. Allegations 21
2. Conclusion 22
J. Alibi 22
1. Applicable Law 22
2. The Burden of Proof Regarding the Alibi 23
3. Notice of Alibi 24
4. Defence Statement of Alibi 24
5. Evidence on Alibi 26
a. Evidence of the Accused 26
o 6 April 1994 26
o 7 April 1994 26
o 8 April 1994 26
o 9 to 16 April 1994 27
o 17 April 1994 27
o 18 April 1994 28
b. Evidence of Defence Witnesses 28
6. Prosecution Allegations on Alibi 33
a. The Accused’s Attempts to Retrieve His Son. 34
b. Reasons Why the Accused Returned after the First Attempt. 34
c. Accused’s Second Attempt to Retrieve Son 35
d. Discussion to Move to ALS’s House 35
e. Decision to Move to ALS’s House 36
f. Parties Living at ALS’ house; Alibi and Notice of Alibi 36
g. Organisation of Patrols 37
h. Night Patrol Systems 37
i. Trajectory of Bullets 38
j. Date the Accused Left for Gitarama 38
k. Bus Trip to Gitarama 39
l. Showing of Identity Cards. 39
m. Gitarama Stadium 39
n. Presence of Interahamwe in the Kacyiru Neighborhoods. 40
o. Relationship Between the Accused and ALB 40
7. Findings 40
a. Discussion 40
b. Conclusion 43
K. Impossibility of Travel from Kigali to Gikomero in April 1994 43
1. Allegations 43
2. Evidence 44
a. The Kacyiru—Kimihurura—Remera—Gikomero Route (Kigali/Remera Artery). 44
b. On the Positions of the Different Belligerents on the Different Routes
Leading to Gikomero 46
c. The Kacyiru—Muhima—Gatsata—Byumba Route (Kigali/Byumba Route) 47
d. Other Witnesses Not Directly Dealing with Impossibility 49
e. Assertions by the Parties Regarding the Evidence 49
3. Findings 52
a. Discussion 52
b. Conclusion 53
L. Expert Witness 53
PART III - The Prosecution Case 54
A. Introduction 54
B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case) 54
C. Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in
1994) 55
D. Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda
in 1994) 55
1. Allegations 55
2. Findings 56
E. Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic
Attacks in Rwanda) 56
F. Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict
in Rwanda) 57
1. Allegations 57
2. Findings 57
G. Ministerial Position of the Accused and his Responsibility as Minister
of the Interim Government 57
1. Allegations 57
2. Findings 57
H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons) 58
1. Allegations 58
2. Distribution of Weapons at the Homes of the Accused’s Cousins 58
a. Evidence 58
b. Findings 63
o Discussion 63
o Conclusion 64
3. Distribution of Weapons at a Football Field in Kayanga Secteur 65
a. Evidence 65
b. Findings 67
o Discussion 67
o Conclusion 67
4. Distribution of Weapons at a Bar in Ntaruka Secteur 67
a. Evidence 67
b. Findings 68
o Discussion 68
o Conclusion 68
5. People Heard from Others That the Accused Distributed Weapons 69
a. Evidence 69
b. Findings 69
o Discussion and Conclusion 69
I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka
Massacres) 69
1. Allegations 69
2. Massacre at the Gikomero Parish Compound 71
a. Prosecution Evidence 71
o Presence of the Accused in Gikomero Commune on 12 April 1994 71
Prosecution Witness GEB 71
Prosecution Witness GEU 73
Prosecution Witness GEK 76
o Presence of the Accused at Gikomero Parish Compound on 12 April 1994 and
the Attack 77
Prosecution Witness GAF 77
Prosecution Witness GES 82
Prosecution Witness GAA 83
Prosecution Witness GEE 85
Prosecution Witness GEA 87
Prosecution Witness GEC 90
Prosecution Witness GEG 91
Prosecution Witness GEI 94
Prosecution Witness GAG 96
Prosecution Witness GEV 98
Prosecution Witness GEP 99
Prosecution Witness GEH 103
Prosecution Witness GEM 105
o Evidence After the Events 106
b. Defence Evidence 107
o Defence Witness GPT 107
o Defence Witness GPR 109
o Defence Witness GPE 110
o Defence Witness GPF 112
o Defence Witness GPK 113
o Defence Witness GPC 115
o Defence Witness GPB 117
c. Findings 119
o Discussion 119
The Presence of Kamuhanda in Gikomero Commune Prior to the Attack of 12 April
1994 on the Gikomero Parish Compound 119
The Presence of Kamuhanda at the Gikomero Parish Compound on 12 April 1994
121
The Attack at the Gikomero Parish Compound on 12 April 1994 131
o Conclusions 135
3. Massacre at Gishaka Parish 137
a. Evidence 137
b. Findings 154
o Discussion 154
o Conclusion 156
J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local
Authorities) 157
1. Allegations 157
2. Findings 157
K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes
Committed by the Perpetrators or to Punish Them) 158
1. Allegations 158
2. Findings 159
PART IV – Legal Findings 160
A. Admitted Facts 160
B. Cumulative Convictions 160
C. Criminal Responsibility 162
1. Indictment 162
2. The Statute 163
3. Jurisprudence 163
a. Responsibility under Article 6.1 of the Statute 163
o Forms of Participation 164
o Mens Rea 166
b. Responsibility Under Article 6(3) of the Statute 167
o Existence of a Superior-Subordinate Relationship 168
o Mens Rea Requirement that the Superior Knew or Had Reason to Know 168
o Effective Control of Subordinates to Prevent or Punish Their Criminal Acts
169
4. Findings 169
D. Genocide and Related Crimes 170
1. The Statute 170
2. Genocide 171
a. Indictment 171
b. Jurisprudence 172
o Proof of Specific Intent 172
To Destroy 173
In Whole or in Part 174
o Protected Groups 174
o The Acteus Reus 175
Killing Members of the Group 175
Causing Serious Bodily or Mental Harm to Members of the Group 175
c. Findings 176
o Intent to Destroy in Whole or in Part the Tutsi Ethnic Group 176
o Killing of Members of the Tutsi Group 178
o Individual Criminal Responsibility of the Accused (Article 6.1 of the Statute)
178
d. Conclusion 178
3. Complicity in Genocide 179
E. Crimes against Humanity 180
1. General Elements 180
a. Indictment 180
b. The Statute 180
c. Jurisprudence 181
o Relationship Between the Enumerated Acts and the General Elements 181
o General Elements 181
The Attack 181
The Attack Must be Widespread or Systematic 182
Widespread 182
Systematic 183
The Attack Must be Directed against Any Civilian Population 183
The Attack Must be Committed on Discriminatory Grounds 184
The Mental Element for Crimes against Humanity 185
d. Findings 186
2. Crimes against Humanity - Murder 186
a. Indictment 186
b. Jurisprudence 187
c. Findings 187
d. Conclusion 188
3. Crimes against Humanity - Extermination 188
a. Indictment 188
b. Jurisprudence 189
c. Findings 190
d. Conclusion 191
4. Crimes against Humanity – Rape 191
a. Indictment 191
b. Jurisprudence 192
c. Findings 193
d. Conclusion 193
5. Crimes against Humanity – Other Inhumane Acts 194
a. Indictment 194
b. Jurisprudence 194
c. Findings 195
d. Conclusion 196
F. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II 196
1. General Elements 196
a. The Statute 196
b. Jurisprudence 197
o Nature of the Conflict 197
o Rationae Personae: Perpetrators 198
o Rationae Personae: Victims 199
o Rationae Loci 200
o Nexus Between the Alleged Violation and the Armed Conflict 200
o Serious Violations 201
c. Findings 201
2. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II—Outrage on Personal Dignity 203
a. Indictment 203
b. Conclusion 204
3. Serious Violations of Article 3 Common to the Geneva Conventions and of
Additional Protocol II—Killing and Violence 204
a. Indictment 204
b. Conclusion 205
PART V - Verdict 206
PART VI - Sentence 207
A. General Sentencing Practice 207
B. Mitigating Factors 208
C. Aggravating Factors 209
D. Sentencing Ranges 210
E. Credit for Time Served 210