Jugement

1. The Judgement in the case of The Prosecutor v. Mikaeli Muhimana is issued by Trial Chamber III (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the Tribunal”), composed of Judges Khalida Rachid Khan, Presiding, Lee Gacuiga Muthoga, and Emile Francis Short.

2. The Tribunal is governed by the Statute annexed to the United Nations Security Council Resolution 955 (“the Statute”) and by the Rules of Procedure and Evidence of the Tribunal (“the Rules”).[1]

3. The Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the Republic of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States.[2] Its jurisdiction is limited to acts of genocide, crimes against humanity, and serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II, committed between 1 January 1994 and 31 December 1994. [3]

B. The Accused

4. Mikaeli Muhimana, also known as Mika Muhimana, was born on 24 October 1961 in Kagano Cellule, Gishyita Secteur, Gishyita Commune, Kibuye Préfecture, Rwanda.[4] He became conseiller of Gishyita Secteur in 1990.[5]

5. The Accused was arrested on 8 November 1999 in Dar es Salaam, Tanzania, and transferred on the same day to the United Nations Detention Facility in Arusha, Tanzania.[6]

C. The Charges

6. The Indictment, as amended on 21 January 2004, charges the Accused with four counts: genocide; or alternatively, complicity in genocide; murder as a crime against humanity; and rape as a crime against humanity. All of the alleged events, on which these charges are based, occurred between April and June 1994, in the Bisesero area and in many locations in Gishyita Commune, Kibuye Préfecture, in Rwanda.

D. The Trial

7. The trial of the Accused commenced on 29 March 2004. In the course of 34 trial days, the Chamber heard 52 witnesses, 19 for the Prosecution and 33 for the Defence.

8. Closing Arguments of both the Prosecution and the Defence were heard on 18, 19, and 20 January 2005.

CHAPTER II – FACTUAL FINDINGS

A. Introduction

Allegations Dismissed for Lack of Evidence

9. The Prosecution led no evidence in support of the allegations in Paragraphs 5 (d) (iii), 6 (c) (v), 6 (d) (i), 7 (b) (i), 7 (c) (ii), and 7 (d) of the Indictment. The Chamber therefore dismisses these allegations for lack of evidence.

B. Identification of Tutsi, Hutu, and Twa

10. The Prosecution alleges that :

At all times referred to in this indictment, there existed in Rwanda a minority ethnic group known as Tutsi, officially identified as such by the government. In addition, the majority population was comprised of an ethnic group known as Hutu, also officially identified as such by the government.[7]

11. The Chamber notes that the Defence does not challenge this allegation and that several witnesses for both the Prosecution and the Defence identified people involved in the 1994 events in Rwanda as Tutsi, Hutu, or Twa.[8] Accordingly, the Chamber finds that, in 1994, persons in Rwanda were identified as Tutsi, Hutu, or Twa.

C. Alibi

12. At trial, the Accused raised an alibi to establish that he could not have committed the crimes, which occurred outside his home, for which he was indicted. The Accused called a number of witnesses to say that he remained at his home in Gishyita continuously mourning his dead son from 8 to 16 April. 1994.

13. In the Niyitegeka case, the Appeals Chamber stated that where a defendant raises an alibi:

"he is merely denying that he was in a position to commit the crime with which he was charged," specifically that he was elsewhere than at the scene of the crime at the time of its commission. It is settled jurisprudence before the two ad hoc Tribunals that in putting forward an alibi, a defendant need only produce evidence likely to raise a reasonable doubt in the Prosecution's case. The burden of proving beyond reasonable doubt the facts charged remains squarely on the shoulders of the Prosecution. Indeed, it is incumbent on the Prosecution to establish beyond reasonable doubt that, despite the alibi, the facts alleged are nevertheless true. [9]

14. Similarly, in Musema, it was held that:

"[i]n raising the defence of alibi, the Accused not only denies that he committed the crimes for which he is charged but also asserts that he was elsewhere than at the scene of these crimes when they were committed. The onus is on the Prosecution to prove beyond a reasonable doubt the guilt of the Accused. In establishing its case, when an alibi defence is introduced, the Prosecution must prove, beyond any reasonable doubt, that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence. The alibi defence does not carry a separate burden of proof. If the defence is reasonably possibly true, it must be successful." [10]

15. The Chamber will apply this jurisprudence in considering the alibi put forward by the Defence witnesses. The Trial Chamber is satisfied that the evidence of the Defence witnesses does not raise a reasonable doubt as to whether the Accused was present at the various locations where he is alleged to have committed or participated in the commission of crimes. This finding in no way undermines the Accused’s presumption of innocence, and the Trial Chamber has made its factual findings bearing in mind that the Prosecution alone bears the burden of proving beyond reasonable doubt the allegations made against the Accused.

D. Rape and Murder of Languida Kamukina and Gorretti Mukashyaka in Gishyita Town, 7 April 1994

Allegations

16. The Prosecution alleges that:

On or about 7 April 1994 in Gishyita town Gishyita Secteur, Gishyita Commune, Mikaeli Muhimana brought two civilian women Gorretti Mukashyaka and Languida Kamukina into his house and raped them. Thereafter he drove them naked out of his house and invited Interahamwe and other civilians to come and see how naked Tutsi girls looked like. Mikaeli Muhimana then directed the Interahamwe to part the girls’ legs to provide the onlookers with a clear view of the girls’ vaginas. [11]

On or about 7 April 1994 in Gishyita town Gishyita Secteur, Gishyita Commune Mikaeli Muhimana took to his residence two women, Gorretti Mukashyaka and Languida Kamukina and directed Interahamwe to kill them. The Interahamwe killed the said Gorretti Mukashyaka and Languida Kamukina at Mikaeli Muhimana’s residence and in his presence. [12]

Evidence

Prosecution Evidence

17. Prosecution Witness AP, a Tutsi woman, testified that, on 7 April 1994, she was arrested by Ruhindura, a commune policeman, on the orders of Conseiller Muhimana and the instructions of Bourgmestre Sikubwabo, apparently because she had sent her cattle to Bisesero. According to Witness AP, Muhimana did nothing without receiving orders from Sikubwabo, and the two men were “always together”.[13] The witness was detained in a cell, and she explained to the Chamber that only Tutsi were so detained during this period in Rwanda. Sometime after her release, she witnessed two Tutsi men, agronomists Nkundiye and Murindihabi, being beaten to death with clubs by the Accused, Bourgmestre Sikubwabo, and some Interahamwe. Witness AP testified that she saw the Accused raise a club and hit one of the men over the head, saying, “This is how you kill a Tutsi,” after which she immediately ran home. Witness AP later learned from the people who performed the burial that the bodies also bore signs of “machete blows”.[14]

18. Witness AP testified that, the same day, at approximately 7.00 p.m., the Accused, who was a “very close friend of the family”, came to visit a man called Ruhigira. When the Accused left, he took away two of Ruhigira’s daughters, Tutsi girls named Languide, aged 18, and Immaculée, aged 21. The two girls freely followed the Accused into his house because they considered him a friend who could hide them. Witness AP followed the Accused and the two girls because she hoped that he would agree to hide her children as well. From where she was standing, approximately 15 metres from the house, the witness heard the girls scream horribly, shouting the Accused’s name and saying that they were “not expecting him to do that to them”.[15] Amongst the voices coming from inside the house, the witness also recognised the voice of Bourgmestre Sikubwabo, telling the girls to “shut up”.[16]

19. When the screaming stopped, the witness saw Muhimana lead the girls, who were stark naked and who walked with their “legs apart”, outside of the house. Muhimana called for the young people in the house to come out so that he could show them “what Tutsi girls look like”.[17] Witness AP testified that the area was well lit by the electricity in the Accused’s house, and that she could see when the young men commenced to attack the girls with clubs. After witnessing this beating, she understood that the war had begun, and she ran away. [18]

Defence Evidence

20. Defence Witnesses DN,[19] TQ14,[20] TQ1,[21] DR, [22] DI,[23] NT1,[24] TQ13,[25]and DJ [26] testified that they did not hear about any rapes committed by the Accused in his house in April 1994. Defence Witnesses NT1,[27] DR,[28] and TQ13[29] further testified that under Rwandan culture it is not “possible” for a married man to rape someone in the matrimonial home.

21. Defence Witness DQ testified that Languida was not in Gishyita during the events of 1994. He also denied categorically that Muhimana raped Goretti, “because that would be a very tall story”. Witness DQ elaborated that Goretti sought refuge in Mubuga Church. Witness DI stated also that Languida sought refuge in Mubuga Church.[30]

Findings

Findings on Rape

22. The Prosecution relies on the testimony of Witness AP in support of the allegation of the rapes of Languida Kamukina and Gorretti Mukashyaka.

23. The Chamber finds the evidence of Witness AP to be internally consistent. Moreover, her testimony was not shaken by extensive cross-examination by the Defence. The Chamber is satisfied that the witness knew the Accused at the time of the events and accepts her explanation as to why she was in close proximity to the rapes when they occurred. The Chamber notes that, although she was visibly disturbed in recounting the events of 7 April 1994, her answers were straightforward and she did not exaggerate the evidence. Thus, the Chamber finds her evidence credible and reliable.

24. The Defence points out that Witness AP’s testimony is at odds with the “Amended Indictment” with respect to the age of the two victims.[31] The Chamber finds this challenge to be irrelevant, since the Revised Amended Indictment does not mention the victims’ ages.

25. The Chamber finds that the mere fact that several Defence witnesses did not hear of rapes committed by the Accused in his house on 7 April 1994 does not mean that they could not have occurred. The witnesses advanced no reason to support the implied assertion that, if the Accused had committed rapes, they would have heard of them. The Chamber does not find this argument persuasive. The Chamber does not accept the contention that under Rwandan culture it is impossible for a man to rape a woman in the matrimonial home. The Chamber accepts that in any society such behaviour would be considered unacceptable. However, this fact does not preclude the possibility that it could occur.

26. Although Witness DQ testified that Languida was not in Gishyita during the events of 1994, the Defence did not provide further evidence to substantiate this allegation. The Chamber also notes the contradiction between the evidence of Witness DQ, who stated that Languida was not in Gishyita during the events of 1994, and Witness DI, who stated that Languida sought refuge in Mubuga Church.

27. The Chamber has considered the Defence submission that whereas in the Indictment and the Witness Statement of Witness AP, it is alleged that the two girls who were raped are called Goretti Mukashyaka and Languida Kamukina, Witness AP in her testimony gives the names as Immaculée Mukakayiro and Languida Kamukina.[32] The Prosecution contends that the witness gave an adequate explanation for this discrepancy.[33]

28. In her statement of 30 August 1999,[34] Witness AP refers to the two raped girls as Languida Kamukina and Gorretti Mukashyaka, the daughters of Ruhigira. In her testimony she referred to Immaculée Mukashyaka and Languida Kamukina, the daughters of Ruhigira. However, she also stated that “I may have made a mistake about their names because it's a long time ago. When people are dead you can forget their names, but you always have an image of these people in your head”.[35]

29. The Chamber notes that Witness AP is related to Ruhigira by marriage and knew the victims well. The Chamber accepts the witness’ explanation that the passage of time has led to some confusion as to the exact names of the two sisters, and is satisfied that, where in her testimony Witness AP referred to Immaculée Mukashyaka, or where the surname was given as Mukakayiro, she was referring to the sister of Languida Kamukina and daughter of Ruhigira, that is, Gorretti Mukashyaka.

30. The Chamber has also noted the Defence challenge to Witness AP’s credibility that she is related to the current conseiller of Gishyita Secteur, who replaced the Accused, and that her testimony is therefore biased, and part of a plot against the Accused by the conseiller to deprive the Accused of his property.[36] The Chamber notes that the Defence never put this allegation of bias to the witness during cross-examination. Moreover, in assessing the credibility of Witness AP, the Chamber has taken note of this allegation of bias and is satisfied that it does not in any way discredit her testimony.

31. Consequently, the Chamber dismisses the Defence challenges to Witness AP’s credibility.

32. Although Witness AP was not an eyewitness to the rape of Goretti and Languida, the Chamber infers that the Accused raped them on the basis of the following factors: the witness saw the Accused take the girls into his house; she heard the victims scream, mentioning the Accused’s name and stating that they “did not expect him to do that” to them; finally the witness saw the Accused lead the victims out of his house, stark naked, and she noticed that they were walking “with their legs apart”.

33. The Chamber also finds that, following the rapes, the Accused further humiliated the girls by inviting others to come and see “what Tutsi girls look like”.

Findings on Murder

34. The allegation in Paragraph 7 (a) of the Indictment that Languida Kamukina and Gorretti Mukashyaka were killed by Interahamwe in the presence of the Accused, flows from the chain of events alleged in Paragraph 6 (a) (i) of the Indictment, dealt with above.

35. While the Chamber has found that the two girls were taken by the Accused to his house and raped, the Prosecution presented no evidence that the girls were killed by the Interahamwe in the presence of the Accused, or even that they died.

36. Consequently, the Chamber dismisses the allegation in Paragraph 7 (a) of the Indictment.

E. Attacks Against Tutsi in Kiziba, Nyarutovu and Ngendombi, Between 8 and 11 April 1994

Allegations

37. The Prosecution alleges that:

On or about 8 April 1994 in the morning, Mikaeli Muhimana and other persons, including Charles Sikubwabo mobilised civilians, gendarmes and commune policemen at Kiziba commercial centre and gave them arms and ammunition for purposes of killing Tutsi civilians. The said arms and ammunition were deployed to exterminate the Tutsi population in Gishyita and Gisovu Communes.[37]

The Bisesero area straddles Gishyita and Gisovu Communes in Kibuye Préfecture. Following attacks on Tutsi civilians who had gathered in enclosed places throughout Kibuye préfecture between April and June 1994, thousands of Tutsi survivors fled to the open but steep and undulating hills of Bisesero as their last point of refuge.[38]

On or around 9 April 1994 at Nyarutovu Cellule in Bisesero Mikaeli Muhimana along with Interahamwe, commune policemen and soldiers hunted for and attacked Tutsi civilians seeking refuge in the Nyarutovu hills.[39]

In April 1994 Mikaeli Muhimana, along with Clement Kayishema, Obed Ruzindana and Interahamwe participated in search for and attacks on Tutsi civilians taking refuge in Mutiti and Ngendombi hills in Bisesero.[40]

Evidence

Prosecution Evidence

38. Prosecution Witnesses AW, W, BB, and BC testified about attacks that took place in Kiziba, Nyarutovu Hill, and Ngendombi Hill, which are all sites located within the Bisesero area and are close together.

39. Prosecution Witness AW testified that, on 8 April 1994, he sought refuge at Nyaratovu Hill, where he arrived at about 1.00 p.m. The witness explained that from Nyaratovu Hill, which is only a 30 minute walk from Gishyita town, he could see vehicles parked in front of the Accused’s house. Later on that day, the Accused launched an attack of 3000 assailants on Nyaratovu Hill. The witness saw the Accused arrive in a red minivan, a commune vehicle, accompanied by Sikubwabo and five Interahamwe. They parked the vehicle in Kiziba and launched an attack on the hill, between 11.00 a.m. and 4.00 p.m. The Accused was accompanied by several commune policemen, including Boniface, Rwigimba, Munyansanga, and Ruhindura, all of whom the witness knew. [41]

40. The Accused, Sikubwabo, and the policemen were armed with guns. Using a megaphone, the Accused announced: “You must kill them. You must exterminate them and get them out of the forests. … The Inyenzis must be exterminated. They must be flushed out of all the forests”.[42] The witness testified that among those killed in the attack were Rwagasana, Rwakayiro, Gasana, and women and children.[43]

41. Prosecution Witness W testified that, on the morning of 9 April 1994, Tutsi residents of Nyarutovu, joined by a small number of Hutu, were attacked by people from Musenyi centre and Gishyita Secteur, whom they initially mistook for looters. The residents defended themselves with stones, but were soon overpowered when Bourgmestre Sikubwabo, and Conseiller Muhirwa of Musenyi Secteurs arrived with three uniformed commune police to reinforce the attackers. Sikubwabo and the three commune policemen were armed. The Accused, carrying a long gun and wearing a white shirt and black trousers, participated in the attack. Gendarmes, who arrived in a single vehicle, also participated in the attack. According to the witness, whenever the assailants ran low on ammunition, the Accused supplied them with cartridges.[44]

42. Witness W testified that later that same day, at around 11.00 a.m., people from the Bisesero region came to assist the assailants. Finally, the assailants withdrew to Dukoni and the refugees went to Rurebero Hill.[45] The assailants remained at the base of the hill, separated from the refugees by a coffee farm.

43. According to Witness W, during the attack, the Accused shot a young Tutsi man named Emmanuel from a distance of 20-30 metres. Emmanuel was only 2-3 metres away from the witness when he was shot in the foot and fell. Witness W knew Emmanuel, who was the son of one Munyanshongere of Karama Cellule, Musenyi Secteur. Emmanuel was between 18-20 years old. Emmanuel was carried down the hill by some of the Tutsi and was later taken to Mugonero Hospital.[46]

44. Witness W testified that the attack, on 9 April 1994, lasted an hour and that no fatalities resulted, though four people were wounded. Witness W was of the opinion that the presence of the Hutu among the refugees contributed to the small number of casualties, because the assailants did not want to mistakenly kill the Hutu, who were intermixed with the Tutsi.[47]

45. Later, on 9 April 1994, gendarmes from Kibuye arrived to reinforce the assailants. The gendarmes called upon the Hutu to stop fighting the Tutsi and instructed the Tutsi to come down the hill, promising them protection. The witness testified that he and other refugees initially did not believe that they would be safe with the gendarmes, because there were administrative officials amongst the assailants. Eventually, the refugees descended the hill because they had no choice. The Tutsi were then disarmed of their traditional weapons, namely clubs, spears, and machetes.[48]

46. Witness W testified that, on 11 April 1994, he witnessed several attacks on Tutsi refugees when the Hutu who had been camping with them departed. The witness testified that at Kiziba, a commercial centre in Karama Cellule, Nyarutovu and Ngendombi Hills, the Accused, Sikubwabo, a certain Kananura, as well as other civilians, policemen, and soldiers participated in attacks against Tutsi refugees.[49]

47. Witness W stated that the attack at Kiziba, on 11 April 1994, began at 8.00 a.m. It was led by Rwigimba, a former commune police officer, with assailants originating from Musenyi. The second wave of the attack on Kiziba came at 10.00 a.m. and originated from Gishyita and was led by the Accused, whom the witness saw from about 15 metres armed with a gun up the road. The people defended themselves against the assailants with stones and traditional weapons. [50]

48. According to Witness W, when Bourgmestre Sikubwabo arrived with reinforcements, the refugees’ defence weakened. Witness W testified that some people were killed with machetes. Others were shot and killed by the Accused or Sikubwabo, although the witness could not specify who shot whom. When it began to rain during the attack, the assailants fell back. However, when the rain subsided, the attack resumed, and several more people were killed. The Tutsi refugees then fled from Musenyi Secteur and were pursued to Nyarutovu Cellule in Bisesero Secteur. [51]

49. Witness W testified that, still on 11 April 1994, the refugees were attacked yet again at Nyarutovu, a cellule of the Bisesero Secteur. According to the witness, before the attack, the assailants, who numbered approximately 100, appeared to be holding a meeting at which the Accused was present. Reinforcements of assailants continued to arrive, and towards 12.00 or 1.00 p.m. the number of attackers swelled, although the witness could not give an exact count.[52]

50. Witness W testified that in a locality between the Nyarutovu and Gitwa Secteurs, four refugees died from the explosion of a grenade in an attack at Ngendombi. The witness also heard the Accused tell the Interahamwe that compensation would be given to whoever killed Kabanda, a Tutsi with a business in the Gishyita centre. The witness said that he was between 20 and 30 metres away from the Accused when he heard the reward offer. Toward evening, on 11 April 1994, the assailants left the area. The civilians among them left first, while the leaders and the soldiers continued to shoot at the refugees before leaving the site. [53]

51. Prosecution Witness BB testified that, on Saturday 9 April 1994, at about 11.00 a.m., he and others at Mugonero Adventist Church heard the sound of drums and jerry cans. The sound was coming from the direction of Musenyi Secteur, which is adjacent to Gishyita Secteur. According to Witness BB, the drums were signals from the people of Musenyi for help, indicating they had been attacked. Leaving the women inside the church, the men set out for Musenyi. The witness explained that Rwandan culture dictates that when someone calls for help, people go to “see what has happened”. The witness explained that Nyarutovu Hill lay between their location and Musenyi. [54]

52. When Witness BB and others arrived at Kiziba Hill in Musenyi, they found a crowd of about 200 people on the other side of the centre. From a distance of about 20 metres, the witness saw Rwigimba, a commune policeman, leading an attack. The assailants looted and destroyed Tutsi houses, and captured cattle and sheep. The assailants killed several people in this attack.[55] Witness BB was approximately 30 metres from the Accused, who arrived on a motorcycle and then abandoned it on the road to join other assailants. The Accused was armed with a grenade and a gun. The Accused and Rwigimba shot at people, who tried to defend themselves by throwing stones at the assailants. One of the people shot was a Tutsi man named Assiel Rwakayiro.[56]

53. Witness BB testified that he and Rwakayiro fled to Ngendombi Hill, about half a kilometre from Ngendombi, where they paused, at about 1.00 p.m, to assess their predicament. However, the assailants continued to pursue the refugees to Ngendombi. The witness testified that he saw the Accused, who was carrying a gun and grenades, from a distance of 16 metres. According to the witness, the Accused did not kill with a machete because he was the leader and did not wish to “soak himself in blood”.[57] Rather, the Accused fired his gun and threw grenades. The witness saw a grenade, thrown by the Accused, cause some refugees to fall. The grenade blast killed Camille, Ndahimana, and a young man from Musenyi whose name the witness did not know. Someone called Nguriso was also shot. From a distance of 16 to 20 metres, the witness saw the Accused shoot Musherefu, a Tutsi farmer, who was close to the witness when he fell. [58]

54. When Witness BB and the other refugees reached the summit of Ngendombi Hill, they observed the assailants backtracking. The refugees then returned to the site of the recent attack to assist survivors. According to the witness, the assailants had killed Ndahimana with machetes. He observed that Camille’s chest was torn apart and that his eyes had bled. The witness knew Camille, a resident of Kiziba, and Ndahimana, whose parents were Witness BB’s neighbours. The witness, realising that survival at Ngendombi would be difficult, fled with his wife and six children to Muyira Hill, where they arrived in the evening of 9 April 1994.[59]

55. Prosecution Witness BC testified that people from her area, both Hutu and Tutsi, initially sought refuge together on a hill because they did not know the identity and intentions of their attackers. They did not know that the assailants were targeting only Tutsi. The Accused addressed the refugees who had gathered on the hill, telling them that their attackers were only bandits. He cautioned them that it was unwise to fight against guns with mere machetes and stones. The Accused then disarmed them and asked Ruhindura, a commune policeman, to put all the collected weapons in the house of Casimir Ngendahayo, a Hutu in charge of the Cellule. According to the witness, the Accused "asked the Hutu to break away from the Tutsi [whose] fate was sealed".[60] The assailants waited until the Hutu departed and then they started shooting at the remaining Tutsi refugees. Witness BC testified that, after this incident, she felt that the Accused “was marking” Tutsi, and indeed, from that day forward, the Accused launched daily attacks against the Tutsi refugees.[61]

56. Witness BC testified that, on Friday night, 8 April 1994, a woman named Leona was killed by assailants. Consequently, Witness BC and her family fled to the Bisesero Hills region where there were many hills, and where other Tutsi might help them. Witness BC and her family arrived at Kigarama Hill in Bisesero on Saturday, 9 April 1994.[62]

57. Witness BC testified that, on Sunday, 10 April 1994, the Accused, accompanied by commune policemen named Ruhindura and Rwigimba, led a group of Interahamwe from Gisenyi and Ruhengeri in an attack against Ngendombi Hill. The witness recognised the attackers as Interahamwe because they were clothed only in banana leaves. According to the witness, the Interahamwe wore banana leaves to associate themselves with devils. At approximately 2.00 p.m., after the Tutsi men had repelled the attackers momentarily, Witness BC saw Muhimana throw a grenade on the road. The explosion killed many Tutsi. Those not killed by the explosion were subsequently “finished off” by assailants with machetes. The witness testified that, during the attacks, Muhimana and the attackers chanted: “Exterminate them. Flush them out of the forest”.[63]

58. Witness BC testified that, close to sundown, she saw the Accused “gruesomely kill” her children. According to the witness, the Accused cut the throat of her first child and cut off the arms of both of her other children. He cut the witness’ two hands and then completely cut off her left hand and cut her on the head and shoulders with a machete. The witness, who lost consciousness, was awakened by her husband at about 6.00 p.m. During testimony, Witness BC showed the Chamber the stub of her left hand and the scars on her right hand, her shoulders, and her head.[64]

Defence Evidence

59. Defence Witnesses DM,[65] TQ13,[66] TQ1,[67] and NT1[68] testified that they never heard of any distribution of weapons at Kiziba during the events of 1994. Witness TQ1 stated that the funeral for Muhimana’s son was held on 10 April 1994. From that day until the end of the mourning period, on 16 April 1994, the Accused remained at his residence.[69]

Findings

Mobilization and Distribution of Weapons at Kiziba Commercial Centre[70]

60. In its Pre-Trial Brief, the Prosecution relies on Witness W to prove the allegations that the Accused mobilised assailants and distributed arms and ammunition at Kiziba Commercial Centre, as alleged in Paragraph 5 (a) of the Indictment.[71] However, in its Closing Brief, in support of this paragraph, it asserts that it relies on Witnesses W, BB, and BC, as well as the evidence of all Prosecution witnesses who testified about the factual allegations in Paragraphs 6 (a) (i)-(iii) and 7 (a) (i) of the Indictment in support of Counts III and IV, respectively.[72] The Chamber notes that the testimonies of these witnesses relate to attacks in Kiziba, Nyarutovu, and Ngendombi, while the instant paragraph of the Indictment mentions only the mobilisation and the distribution of arms and ammunition at Kiziba Commercial Centre. Therefore, the evidence of such attacks falls outside the scope of this paragraph.

61. The Chamber notes that no witness was called to testify that, “on or around 8 April 1994, in the morning”, in Kiziba commercial centre, the Accused gave “civilians, gendarmes, and commune policemen … arms and ammunition for purposes of killing Tutsi civilians” or that the “said arms and ammunition were deployed to exterminate the Tutsi population in Gishyita and Gisovu Communes”, as alleged in Paragraph 5 (a) of the Indictment. The evidence relates to a different situation, which is the use and resupply of weapons during an attack against Kiziba.

62. Accordingly, the Chamber finds that the Prosecution has not proved the allegations in Paragraph 5 (a) of the Indictment.

Attacks at Nyarutovu

63. The Chamber finds the first-hand accounts of Witnesses W and AW about the attacks that occurred at Nyarutovu to be credible. The evidence presented by the Defence does not raise any reasonable doubt in relation to these attacks, and no Defence witness has challenged Witness W’s and AW’s accounts of the attacks. The Accused’s alibi, that between 10 April 1994 and 16 April 1994, he did not leave his home, is not convincing. The Chamber finds that, even assuming he was mourning the death of his son between 8 and 16 April 1994, this does not exclude his participation in the attacks at Nyarutovu. The testimony of Witness TQ1 that the Accused remained at his residence from 10 April to 16 April 1994 is not convincing. Many credible Prosecution witnesses and Defence Witness DC saw the Accused in different places outside his house between 8 April 1994 and 16 April 1994.

64. On the basis of the testimonies of Witnesses W and AW, the Chamber finds that, between 8 and 11 April 1994, the Accused participated in two large-scale attacks against Tutsi refugees at Nyarutovu.

65. The Chamber notes the discrepancy between the testimonies of Witnesses AW and W in relation to the date of the first attack at Nyarutovu. Whereas Witness AW testified that the attack occurred on 8 April 1994, Witness W recalled the date of the attack as 9 April 1994. The Chamber is of the view that in situations where witnesses are called to testify on events which took place over a decade ago, discrepancies relating to the time and date of the event may occur.

66. The Chamber finds that in the first attack, which began in the morning of 8 or 9 April 1994, Tutsi residents of Nyarutovu were assailed by people from Gishyita and Musenyi. When leaders from the commune joined the assailants, the Tutsi refugees were overpowered. Based on the eyewitness account of Witness W, the Chamber finds that the Accused was armed and participated in the attack by supplying the assailants with ammunition. The Chamber further finds that the Accused shot a young Tutsi man called Emmanuel in the foot and that Emmanuel fell to the ground. In addition to Emmanuel, many people were injured during the attack before the assailants withdrew to Dukoni and the Tutsi survivors fled to Rurebero Hill.

67. The Chamber finds that, on 11 April 1994, a second attack took place at Nyarutovu Hill and in the neighbouring areas of Kiziba, Nyarutovu, and Ngendombi. These attacks were launched against Tutsi, after the departure of the Hutu refugees. The attackers at these sites included the Accused, Bourgmestre Sikubwabo, a certain Kananura, as well as other civilians, policemen, and soldiers.

68. The Chamber therefore finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 5 (d) (ii) of the Indictment, that the Accused hunted for and attacked Tutsi civilians seeking refuge in the Nyarutovu Hills.

Attack at Ngendombi Hill

69. The Prosecution presented the evidence of Witnesses BB, BC, and W in support of its allegation that the Accused participated in an attack at Ngendombi Hill in April 1994. The evidence of these witnesses has been summarised above.

70. In response, the Defence contends that the Accused was not provided with adequate notice in respect of the allegations contained in this paragraph. The Defence particularly alleges that “the Prosecutor’s Pre-Trial Brief gives no notice as to which Prosecution witness made this allegation”, and further, that “the vagueness of the allegation makes it impossible to determine which actus reus of genocide corresponds to the allegation in this paragraph of the amended Indictment”.[73]

71. The Chamber has reviewed the Prosecution Pre-Trial Brief and notes Paragraph 58 which states that:

… witnesses AW, BU, BG, BB, BE, BP, AT, AP, BF, BC, W and C will testify to acts of genocide, murder and rape that were perpetrated by Mikaeli Muhimana in the various hills and valleys in the Bisesero area. The witnesses will testify to seeing Mikaeli Muhimana either individually or in concert with Clement Kayishema, Charles Sikubwabo, Obed Ruzindana and others, distribute arms, and took part in the attacks and sexual assault on Tutsi civilians.

72. The Chamber holds that the above paragraph clearly provided the Accused with sufficient notice of which witnesses would testify in support of Paragraph 5 (d) (iv) of the Indictment. The Chamber further holds that the instant paragraph of the Indictment provided sufficient information about where the alleged attack took place and that the Pre-Trial Brief provided the Accused with further particulars of the allegation.[74]

73. With regard to the Defence contention that the allegation is so vague as to make it impossible to determine which actus reus of genocide corresponds to the allegation in this paragraph of the Amended Indictment, the Chamber considers that the very allegation in Paragraph 5 (d) (iv) of the Indictment that the Accused participated in the “search for and attacks on Tutsi civilians” would, if proved, constitute the actus reus of genocide. Further allegations which could constitute the actus reus of genocide were also provided to the Accused in Paragraphs 54-58 of the Pre-Trial Brief as well as in the Annex of the same document detailing a summary of the anticipated testimony of Witness BC. The Defence objection in this instance is therefore unfounded.

74. The Chamber has already found Witness W to be credible with regard to the attack at Nyarutovu. The Chamber finds Prosecution Witnesses BB and BC credible. They gave a reliable and detailed account of the events at Ngendombi Hill in April 1994. Witness BB was close to the Accused and gave a comprehensive account of his actions.

75. The Chamber rejects the Defence challenge to Witness BC’s credibility.[75] Contrary to the Defence contention, the Chamber does not find any contradiction in the witness’ account of how her children were killed.

76. Based on the testimonies of Witnesses BB, BC, and W, the Chamber finds that the attack on Tutsi refugees on Ngendombi Hill took place between 9 and 11 April 1994, and that the Accused, with two commune policemen, including Ruzindana, led a group of Interahamwe in carrying out the attack. Based on the consistent and corroborative testimonies of all three witnesses, the Chamber finds that the Accused was armed with a gun and grenades and that he threw a grenade into a crowd of Tutsi refugees, causing many deaths. Witnesses BB and BC also testified that those who did not die from the blast of the grenade were later “finished off” using machetes. Based on the testimony of Witness BC, the Chamber accepts that the purpose of the attack was to flush the Tutsi out of the forest and exterminate them.

77. The Chamber further finds that, on 10 April 1994, after the attack on the refugees at Ngendombi Hill, the Accused killed Witness BC’s three children. The Accused attacked Witness BC with a machete, cutting her on the hands, shoulders, and head. He amputated her left hand.

78. The Chamber finds that, in April 1994, the Accused participated in the search for and attack on Tutsi civilians at Ngendombi Hill. Many Tutsi died or were seriously injured in the attack. However, the Chamber finds no evidence that the Accused searched for and attacked Tutsi civilians taking refuge at Mutiti.

79. The Chamber therefore finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 5 (d) (ii) in relation to the attacks at Ngendombi Hill.

F. Meeting At The Accused’s Residence in Gishyita Town, Mid-April 1994

Allegations

80. The Prosecution alleges that:

On or about 7 April 1994, Mikaeli Muhimana held a meeting at his residence in Gishyita town, Gishyita Secteur, Gishyita Commune, with, amongst others, the Gishyita Bourgmestre Charles Sikubwabo and a businessman Obed Ruzindana. Shortly thereafter killings, rape and other atrocities commenced in Gishyita Commune.[76]

Evidence

Prosecution Evidence

81. Prosecution Witness AQ, a Tutsi woman, testified that, in mid-April 1994, Muhimana, Ruzindana, and Sikubwabo convened a meeting in the courtyard in front of Muhimana's house. Witness AQ was close to the many participants, at the meeting but was not able to hear what was said. The witness testified that some time before the meeting, she overheard the Accused state that he was going to hold a meeting to encourage the Hutu population to go out and kill Tutsi.[77]

Defence Evidence

82. Defence Witness TQ13 testified that he neither saw Charles Sikubwabo or Obed Ruzindana in Gishyita on 7 April 1994 nor heard that a meeting was held on 7 April 1994 in Gishyita town centre.[78]

83. Defence Witnesses TQ14[79], DJ[80] and NT1[81] testified that there were no meetings held on 7 April 1994 at the Gishyita centre. Witness TQ14 specified that he did not attend, nor was aware of, any meetings held by the authorities in April, May, or June 1994.[82]

84. Defence Witness NT1 asserted that there were no meetings in the Gishyita centre during the months of April and June 1994. The witness added that, during the war, it was impossible for the bourgmestre to hold meetings, due to insecurity.[83]

85. Defence Witness DS, who lived close to the Accused’s house, testified that, on 7 April 1994, he did not hear of a citizens’ meeting organised by the commune authorities.[84]

86. Defence Witness DR testified that, on 7 April 1994, around 11.30 a.m., he stopped by the Accused’s home, where he remained for about two hours. The witness testified that, while at the Accused’s home, he was neither aware of any meeting nor saw Bourgmestre Sikubwabo or Obed Ruzindana. [85]

87. Defence Witness DI testified that, during the war, the Accused and Sikubwabo were not on good terms because the former “was married to a Tutsi woman, and Sikubwabo did not like men who were married to Tutsi women”.[86]

Findings

88. The Chamber finds that there is insufficient evidence to prove the allegations contained in Paragraph 6 (a) of the Indictment and Paragraph 40 of the Pre-Trial Brief[87] that the Accused and others held meetings at which plans to attack Tutsi civilians were made. On the basis of Witness AQ’s testimony, the Chamber finds that a meeting of officials was held at the Accused’s residence during mid-April 1994. However, there is nothing to suggest that the meeting was held for an unlawful purpose, and the Prosecution has failed to establish a link between the meeting and the killings, rapes, and other atrocities that allegedly occurred afterwards.

G. Rape and Murder of Esperance Mukagasana, Mid-April 1994

Allegations

89. The Prosecution alleges that:

On or about 14 April 1994 in Gishyita town Gishyita Secteur, Gishyita Commune, at his residence, Mikaeli Muhimana raped a Tutsi woman Esperance Mukagasana and offered her to an Interahamwe named Gisambo, for the same purpose. The said Gisambo raped Esperance Mukagasana at Mikaeli Muhimana’s residence and within his presence.[88]

On or about 14 April 1994 in Gishyita town Gishyita Secteur, Gishyita Commune, at his residence, Mikaeli Muhimana directed an Interahamwe named Gisambo to kill a civilian woman Esperance Mukagasana. The said Gisambo executed the said woman in the presence of Mikaeli Muhimana at his residence.[89]

Evidence

Prosecution Evidence

90. Prosecution Witness AQ, who lived in the Accused’s house, testified that, about a week after the war erupted, she saw the Accused rape Esperance Mukagasana on four separate occasions. According to the witness, all of the rapes occurred at the home of the Accused within one or two days, usually between 5.00 and 6.00 p.m. She testified that each rape lasted between 30 minutes and one hour, during which the Accused was always completely naked.[90]

91. Witness AQ testified that she secretly followed the Accused when he snatched Esperance from her room and dragged her “like a goat” into his room. Witness AQ stated that, during the first rape, Esperance struggled to be released from the Accused’s grip, but he was too strong for her. The Accused subsequently pushed Esperance on to the bed, stripped her naked, and raped her. According to the witness, the third rape lasted between 30 minutes and an hour, and she left the location, after watching her sister being raped repeatedly.[91]

92. Witness AQ testified that Esperance was also raped twice by an Interahamwe called Gisambo, who frequently visited the Accused’s house “during the war”. She witnessed Gisambo drag Esperance, who was screaming, into the Accused’s house. However, the witness was not able to see the rape because Gisambo closed the door behind him.[92]

93. Witness AQ also testified that, around mid-April 1994, the Accused, Ruzindana, and many Interahamwe returned from an attack in a vehicle and stopped in front of the Accused’s house. The Accused and Ruzindana sent two Interahamwe militiamen to bring Esperance from the Accused’s house to the vehicle. The Accused returned later, at 9.00 p.m., without Esperance. After this event, Esperance was never seen again, and the witness deduced that she had been killed by the Accused.[93]

94. Witness AQ testified that, in April 1994, the Accused also raped her on three different occasions in his house. On the first occasion, the Accused forcefully opened the door of her bedroom while she lay in bed. The Accused then undressed and raped her. According to the witness, she was a little over 15 years of age and had never had sexual intercourse before she was raped. About two or three days following the first rape, the Accused again raped the Witness at night in her bedroom. Despite the rapes, Prosecution Witness AQ continued to stay at the Accused’s home because she had no other place to hide. [94]

Defence Evidence

95. Defence Witness DA testified that she never heard that Muhimana raped any woman in his house during the period that she lived there.[95]

96. Defence Witness DQ testified that she never heard that Muhimana raped Esperance. According to Witness DQ, it was impossible for Muhimana to have raped Esperance Mukagasana.[96]

97. Defence Witness NT1 testified that he never heard that Esperance Mukagasana was raped by the Accused. The witness stated that the Accused could not have raped anyone in his house on 7 April 1994, because a person who is married cannot rape someone in his own home, “especially young girls”.[97] He also testified that a group of persons called Abakiga might have abducted Esperance Mukagasana, between May and June 1994, when the Accused was not at his house.[98]

98. Defence Witness DR testified that, during the gacaca sessions, he never heard about any rape occurring in Gishyita Secteur. The witness added that he did not think it was possible for Muhimana to have raped women in his own house, where his wife resided.[99]

99. Defence Witness DJ testified that Esperance Mukagasana used to live in the Accused’s house. From a distance of 50 metres, he witnessed her being taken from inside the Accused’s home, in broad daylight, into Obed Ruzindana’s vehicle. Muhimana was not present that day since he had gone to bury his cousin. The witness did not hear that the Accused raped Mukagasana in his house before she was abducted.[100]

100. Defence Witness DI stated that, while Muhimana was away from home, attending a relative’s funeral, Interahamwe from Bugarama abducted Esperance from his house.[101]

101. Defence Witness TQ1 testified that she did not know Esperance. Furthermore, she also testified that she never heard of any rape committed in Gishyita Commune. The witness further stated that she used to go to Gishyita Centre and would have heard if there had been a rape. [102]

Findings

Rape

102. The Chamber finds the testimony of Prosecution Witness AQ credible. The Chamber is satisfied that Witness AQ, who lived in the Accused’s house, was an eyewitness to the rape of Esperance. She gave a detailed description of how the Accused raped Esperance several times. The Witness did not exaggerate her evidence and was prepared to admit that she was not able to see the alleged rape of Esperance by Gisambo, because he closed the door.

103. The Chamber accepts Witness AQ’s testimony that she and the victim lived in the Accused’s house at the time of the rape, and that she saw Esperance raped several times. The witness was able to see what the Accused did to the victim because the door to the room was open, and he was always completely naked. The witness stated that, on the first occasion, “about a week after the war erupted”, she saw the victim being dragged to the room, struggling to be released. The Accused pushed her on to the bed, stripped her naked, and raped her. The Chamber also finds that the witness’ approximation of the date of the first rape corresponds to the date alleged in Paragraph 6(a) (ii) of the Indictment.

104. The Chamber has already found that, even though some Defence witnesses testified that they did not hear of rapes committed by the Accused in his house on 7 April 1994, it does not follow that such rapes did not occur. The Chamber rejects the testimony of Defence witnesses who testified that it was not possible for the Accused to rape women in his own house, where his wife lived. These witnesses did not advance any convincing reason for this assertion.

105. Regarding the allegation in the Indictment that the Accused offered Esperance to an Interahamwe named Gisambo, who raped her in the Accused’s house and in his presence, the Chamber notes that no evidence was led to support the allegation that Esperance was offered to Gisambo by the Accused or that she was raped in his presence. Furthermore, although Witness AQ testified to seeing Gisambo drag Esperance into the Accused’s house as she screamed, the witness was not able to see the alleged rape because Gisambo closed the door behind him. Accordingly, the Chamber finds that the Prosecution has failed to prove the allegation that the Accused offered Esperance to Gisambo and that he raped her in the Accused’s presence.

106. The Chamber is mindful of the Defence submission regarding the partiality of Witness AQ and has, accordingly, considered her testimony with the necessary caution. Nevertheless, the Chamber finds her recollection of the events credible and reliable.

107. The Chamber will address the allegation of the witness’ rape by the Accused in the Facts Not Pleaded Section of this Judgement.

108. Based on the eyewitness testimony of Witness AQ, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegation in Paragraph 6 (a) (ii) of the Indictment that the Accused raped Esperance Mukagasana in his residence.

Murder

109. The allegation in Paragraph 7 (a) (i) of the Indictment that the Accused directed an Interahamwe named Gisambo to kill Esperance flows from the chain of events alleged Paragraph 6 (a) (ii) of the Indictment, dealt with above.

110. The Chamber accepts Witness AQ’s testimony that Esperance Mukagasana was taken away in a vehicle by the Accused and others, and that the Accused returned to his home without Esperance. There is no evidence that the Accused instructed Gisambo to kill Esperance, or that Esperance was killed. Consequently, the Chamber dismisses the allegation in Paragraph 7 (a) (i) of the Indictment.

H. Events At Mubuga Church – Looting of food, 11 to 15 April 1994

Allegations

111. The Prosecution alleges that:

Between 8 and 14 April 1994, about five thousand six hundred Tutsi civilians sought refuge at Mubuga Catholic Church, Gishyita Commune after fleeing from attacks on Tutsi civilians which were occurring throughout the Prefecture of Kibuye. After the Tutsi civilians had begun to congregate in the Mubuga Catholic Church between 8 and 14 April 1994, Mikaeli Muhimana acting in concert with, among others, Charles Sikubwabo and Clement Kayishema visited the church regularly and took stock of refugees in preparation for an attack. [103]

Between 14 and 15 April 1994, Mikaeli Muhimana acting in concert with Charles Sikubwabo, gendarmes, Interahamwe and soldiers looted Mubuga Catholic Church of food donated by humanitarian organisations including CARITAS, for consumption by refugees seeking shelter in the Mubuga Catholic Church, and thereby deprived the refugees of food during the period they were seeking shelter in the aforesaid Mubuga Catholic Church.[104]

Evidence

Prosecution Evidence

112. Prosecution Witness AV testified that she sought refuge, on 11 April 1994, at Mubuga Catholic Church. On arrival she found many men, women, and children refugees. The same day, the witness, who was outside the church, saw Mikaeli Muhimana, Ryandikayo and Vincent Rutaganira pass nearby on their way to the presbytery. The witness did not see them any other time that day. [105]

113. Prosecution Witness AF testified that he sought refuge “from the genocide” at Mubuga Catholic Church on 13 April 1994.[106]

114. The witness said that, on 14 April 1994, Father Gahinda was driven away “by Mika’s people”[107] in a vehicle and was killed. On that same day, Father Marcel, the vicar of the Parish, refused the witness’ request to distribute food brought by CARITAS to the Tutsi refugees. According to the witness, Charles Sikubwabo, Mikaeli Muhimana, and others came to the church and spoke with Father Marcel in the presbytery. Shortly after their meeting, the youth of Ngiyuranga left in vehicles and on motorcycles with the CARITAS food. Sikubwabo told Father Marcel that he “was going to solve the problem of the refugees in the church”.[108] According to the witness, the Accused said nothing.[109]

Defence Evidence

115. Defence Witness DA testified that, on 12 April 1994, he sought refuge at Mubuga Church, which was reportedly safe. The witness stated that many refugees had gathered at the church, which was protected by gendarmes. The witness reported that the refugees in the church had water to drink and that the CARITAS organisation distributed small rations of food. According to Witness DA, this food was later looted by assailants.[110]

116. Defence Witness DD testified that food was distributed to the refugees at the church by an organisation called CARITAS. Later, the witness observed that the CARITAS food was looted by, amongst others, Bourgmestre Sikubwabo and a trader called Ryandikayo. The witness did not see the Accused, whom he would have recognized.[111]

117. Witness DD testified that no authorities from Kibuye counted the number of refugees gathered at the church. However, the witness stated that one gendarme asked how many refugees there were.[112]

118. Defence Witness DF testified that, as of 8 April 1994, people who lived in the vicinity of the parish sought refuge at Mubuga Church.[113]

119. Defence Witness DL testified that he had heard about looting which occurred at Mubuga. According to the witness, Bourgmestre Sikubwabo and Conseiller Vincent Rutaganira were among those who stole rice, motorcycles, and other vehicles. The witness testified that during the gacaca sessions, Mika’s name was never mentioned; it was reported that Conseiller Vincent Rutaganira called people to participate in the massacres at the church. [114]

120. Defence Witness DC testified that he fled alone towards Mubuga Church on the evening of 12 April 1994, where he found other refugees, whose number kept increasing. Gendarmes, who were supposed to be guarding the refugees, were stationed around the church. The refugees gathered at the church were given rations provided by CARITAS.[115]

121. Witness DC testified that the CARITAS food store was looted in his presence before nightfall on 12 or 13 April 1994. According to the witness, the Accused was present during the looting. The witness stated, “He was standing there. He was doing nothing. I didn't see him do anything. I didn't see him kill anybody, but he was present”.[116]

Findings

Events Prior to the Attack on Mubuga Church

122. In relation to the events alleged to have occurred at Mubuga Church, the Prosecution relies primarily upon the evidence of Witnesses AV and AF.

123. The Chamber finds that Witness AF convincingly narrated a sequence of events, commencing on 14 April 1994 and culminating in an attack the following morning. Moreover, the Chamber notes that the accounts of Witnesses AV and AF were detailed and consistent regarding the sequence of events leading to the attack on Mubuga Church, and that their testimonies were corroborative regarding the incident of the attack. Accordingly, the Chamber is convinced that Witnesses AV’s and AF’s accounts of the attack on Mubuga Church are credible and reliable.

124. The Defence submits that there are inconsistencies between Witness AV’s and AF’s accounts of the events leading up to the attack on Mubuga Church. According to the Defence, Witness AV alleged that the Accused arrived at the church by car, while Witness AF recalled that the Accused arrived on foot. Additionally, while Witness AF claimed that the attack started at 6.00 a.m., Witness AV estimated that it commenced at 10.00 a.m. The Chamber considers these discrepancies to be minor and simply a result of the witnesses’ varying perspectives in relation to the attack.

125. The Defence challenges the credibility of the evidence given by Witness AF. It submits that it is unlikely that the Accused would have confided in a Tutsi about the training of Interahamwe in Nyungwe forest. The Chamber is not persuaded by the Defence argument. The witness did not claim that the Accused personally informed him of the training. Rather, the witness testified that he “could hear him say it.”[117]

Preparation for an Attack

126. The Chamber notes that the Defence does not dispute that many members of the civilian population sought refuge in Mubuga Church from attacks occurring in the area.

127. The Indictment states that, between 8 and 13 April 1994, “about five thousand six hundred Tutsi civilians sought refuge at Mubuga Catholic Church”. [118] Upon review of all the evidence given by both Prosecution and Defence witnesses, the Chamber concludes that there is insufficient evidence to accurately determine the number of refugees who sought shelter at the church; however it is clear that many did so. Witness AF, whom the Chamber has found credible, succinctly described the situation when he testified that the refugees in the church were Tutsis and that the church was “full to bursting … nobody could move”.[119]

128. In relation to the allegation that the Accused and others visited the church regularly and “took stock of refugees in preparation for an attack”, the Defence submits that the Prosecution presented insufficient evidence to substantiate this charge. According to the Defence, the witness did not testify that she saw the Accused “go to the Catholic Church regularly” or that she saw “anything that was reprehensible in Mika Muhimana’s conduct” prior to 15 April 1994. [120]

129. Based upon the clear and consistent testimony of Witness AV, the Chamber finds that the Accused visited the premises of Mubuga Catholic Church on 11 April 1994. However, the Chamber finds that the Prosecution has not proved the allegation that the Accused visited the church regularly in order to “take stock” of refugees and prepare for an attack. Consequently, the Chamber dismisses Paragraph 5 (b) of the Indictment.

Looting of the CARITAS Food Stores

130. The Chamber finds the eyewitness testimony of Prosecution Witness AF, who observed the Accused on 14 April 1994 at the scene of the looting of the CARITAS food aid intended for the refugees, to be credible. The witness, who knew the Accused prior to the events of 1994 and identified him in court, had a clear view of the looters, as the door of the Presbytery was opposite the spot in the church where he was standing.[121]

131. The evidence provided by Defence Witness DC corroborates Witness AF’s sighting of the Accused at the scene of the looting, although he testified that the looting occurred on 12 and 13 April 1994, not 14 April, as Witness AF testified. Given the time that has passed since the events, an element of uncertainty in relation to dates is understandable.

132. Based upon the testimony of Witness AF, corroborated by that of Witness DC, the Chamber finds that the Accused was physically present at the scene of the looting of the CARITAS food supply. By his continued presence, and by virtue of his position as conseiller, the Chamber finds that the Accused encouraged the looting of the food supplies which were intended for the refugees in the church. Consequently, the Chamber finds that the Prosecution has established beyond reasonable doubt the allegation contained in Paragraph 5 (b) (i) of the Indictment.

I. Attack Of Mubuga Church, 15 April 1994

Allegations

133. The Prosecution alleges that:

Between 14 and 15 April 1994, Mikaeli Muhimana, acting in concert with Charles Sikubwabo and soldiers distributed grenades and guns to Interahamwe and armed civilians at the Mubuga Catholic Church for purpose of attacking the Tutsi civilians seeking refuge in the aforesaid Mubuga Catholic Church. [122]

On or about 15 April 1994, Mikaeli Muhimana along with Clement Kayishema, Obed Ruzindana, soldiers, Interahamwe, armed civilians and communal policemen launched an attack on Tutsi civilians seeking refuge in Mubuga Catholic Church, using guns, grenades, machetes, pangas and other traditional weapons killing over five thousand Tutsi civilians who were seeking refuge in the aforesaid Mubuga Catholic Church.[123]

In the course of an attack on Tutsi civilians seeking refuge in Mubuga Catholic Church on 15 April 1994, Mikaeli Muhimana killed hundreds of people including Kaihura and injured several others. [124]

Evidence

Prosecution Evidence

134. Prosecution Witness AF testified that, during the night of 14 April 1994, assailants, who had received the key to the presbytery of Mubuga Church, came to the presbytery, where they raped, tortured, and killed the Tutsi women and girls who were hiding there. The witness acknowledges that he did not personally see the attack, which occurred in the inner courtyard of the presbytery, because he was inside the church.[125]

135. The following morning, on 15 April 1994, after having disposed of the corpses of the victims from the presbytery, in the banana field, the attackers turned their attention to the refugees inside the church. The witness, observing Muhimana from a distance of 10 metres, noted that he seemed to be a leader of the assailants. According to the witness, Muhimana wore military attire. The witness testified that Muhimana and Sikubwabo “were inseparable,” and were accompanied by Vincent Rutaganira, conseiller of Mubuga Secteur, Mugwa, another secteur conseiller, a trader known as Ryandikayo, and several youth from the Younahonga centre. The Accused, Sikubwabo and Vincent Rutaganira were all armed with guns.[126]

136. Many of the refugees inside the church were still sleeping when the assailants encircled the building. Witness AF testified that the assailants whistled, waking those who were still asleep. The refugees shut and locked the iron doors of the church to prevent the attackers from entering and killing them “slowly” with their machetes, clubs, and spears. The refugees tried to fend off the attackers by throwing loose bricks from the church wall. Failing to break through the doors of the church, the attackers, who included Muhimana and Sikubwabo, shot and threw tear gas and grenades into the church, killing many refugees. Witness AF could not identify which refugees were killed by the guns or grenades used by the assailants.[127]

137. After the attack, the witness left the church to see where the assailants had gone, at which time he discovered a woman named Claudine amidst the corpses of other victims. Another refugee then suggested that they should flee to Burundi, by crossing Nyumgwe Forest. The witness agreed, and they left. Witness AF later heard that, on 17 April 1994, the assailants succeeded in breaking down the doors of the church and exterminating the remaining refugees.[128]

138. Prosecution Witness AV testified that, on 15 April, at 10.00 a.m., she was inside Mubuga Church with her siblings, except one young sister who was at Mubuga dispensary with their parents. The Church had been surrounded by many Interahamwe when a blue Suzuki driven by Mikaeli Muhimana arrived. The Accused and the gendarme accompanying him, who were both dressed in army fatigues, off-loaded an “average-sized” carton of grenades from the vehicle. The Accused placed the carton on the stairs of the church in front of him, next to the gate leading to the presbytery, but he did not enter the church itself. The witness could not estimate the distance separating her from Muhimana, but she did see him hurl a grenade into the church. The grenade landed approximately five metres away from the witness, who was wounded on her head, neck, and shoulders. Many others were seriously wounded from the explosion, and were bleeding. Witness AV testified that she was afraid and unable to clearly observe all of the incidents that occurred. She did note, however, that the explosion from Muhimana’s grenade shattered the head of a Tutsi man named Kaihura, thus killing him.[129] [130]

Defence Evidence

139. Defence Witness DA testified that, around 15 April 1994 at Mubuga Church, while she was close to the steps which led up to the altar, she saw many people, including gendarmes, come to the church and calm the refugees. Witness DA testified that people, whom she could not identify, began firing. The witness stated that, during the first part of the attack, assailants threw grenades, and only a few people died. Then, when the doors to the church were opened and people struggled to exit, the assailants used various other weapons, including clubs, machetes, firearms, grenades, and many people died. The witness did not have time to identify any assailants, but noted that Sikubwabo was amongst them.[131]

140. According to Witness DA, people hid under corpses and pretended to be dead. The witness went out through the main door of the church and headed towards the rear courtyard, where she hid in a small house behind the church. The witness left her hiding place during the night at around 7.00 p.m., when it was already dark, and headed alone to Muhimana’s house through the bushes. The witness could not say at what time she arrived at his home, but she found him asleep.[132]

141. Defence Witness DD testified that, on 12 April 1994, he left the hills for Mubuga Church, where he had been told it would be safe. On 14 April 1994, the witness stated that an attack against the Tutsi occurred at the church. According to the witness, the attack was “not … large-scale”. The assailants, mainly gendarmes, fired guns, killed a few people, and then left.[133]

142. Witness DD stated that during the night of 14 April 1994, gendarmes abducted and killed the filles de Monseigneur. The witness heard the girls screaming. According to the witness, when refugees asked a gendarme what had happened, the gendarme replied, “you yourselves will be killed the following day.”[134]

143. Witness DD fled to Bisesero Hills on 15 April 1994, from where he heard many gunshots and observed that Mubuga Church had been attacked. Since he was not present at Mubuga Church on 15 April, Witness DD could not identify the assailants.[135]

144. Defence Witness DF confirmed that Mubuga Church was attacked. He stated that he neither participated in nor witnessed the attack. The witness recalled that the attack took place on the day after the girls were killed at the cemetery, but could not remember the exact date. According to the witness, the first target during the attack at the parish was the priest’s residence. The witness testified that refugees who had gathered in the church were killed during the attack. The witness had not heard of any distribution of weapons at Mubuga Church, and did not know what weapons were used in this attack.[136]

145. Defence Witness DL testified that he heard about the massacre at Mubuga Church from others in the gacaca sessions during his imprisonment. According to the witness, the gendarmes who guarded the church, in collaboration with members of the population, killed the people in the church. According to confessions the witness heard in prison, the attacks on Mubuga Church were led by Conseiller Vincent Rutaganira. The witness testified that he did not hear of weapons being distributed at Mubuga Church.[137]

146. Witness DL testified that regarding the attacks on Mubuga Church and cemetery, the Accused’s name was not mentioned during the confessions at the gacaca sessions in Gisovu prison. Furthermore, the Accused’s name was never mentioned, during gacaca sessions in relation to events that occurred in Bisesero Secteur. Witness DL added that had the Accused been involved in, or led attacks in Bisesero, he would have known.[138]

147. Defence Witness DZ testified that, at about 10.30 a.m.,[139] armed gendarmes gathered about eight hundred Hutu men from the centre of Ryaruhanga Cellule and forced them to go to Mubuga Church, beating them along the way. On arrival at the church, the witness could hear Tutsi “screaming” because they “realized that people were coming to kill them”.[140] The witness said that the men were ordered to kill all the Tutsi who came out of the church.” However, during the four hour attack, the witness testified that he did not kill anyone because “no Tutsi was able to come out of that church”, as all were killed inside. According to Witness DZ, “gendarmes, [and] the former Bourgmestre of Gishyita, Charles Sikubwabo, were those who were leading us”.[141]

148. However, when questioned by the Prosecution about whether his admission to participating in the attack on Mubuga Church involved killing Tutsi hiding in the church, DZ responded, “You would be right in saying so”.[142]

149. Witness DZ testified that he knew the Accused, who was not among the attackers at the church. The witness stated, during cross-examination, that the arms he used to kill Tutsi were in the possession of the gendarmes and the conseiller of Gishyita Secteur. However, when asked by the Bench to clarify this statement, the witness insisted that he had not referred to the Accused but to Bourgmestre Sikubwabo.[143]

150. Defence Witness DAA testified that the Tutsi took refuge in Mubuga Church because of the lack of security in the parish centre. According to the witness, at approximately 9.00 a.m., gendarmes beat and shot at refugees gathered in the church. They then called on civilians to join in. Witness DAA testified that he was recruited to participate in the attack by Vincent Rutaganira. Witness DAA recalled that Bourgmestre Sikubwabo was the most prominent figure among the leaders of the attack on the church. Gendarmes, soldiers, as well as Vincent Rutaganira, the conseiller of Mubuga Secteur, were also present. At the scene, the assailants received instructions from Bourgmestre Sikubwabo and Rutaganira to surround and attack the church. Defence Witness DAA denied that the Accused was among the participants in this attack.[144]

151. According to Witness DAA, the attack lasted two hours on that day. In Witness DAA’s estimation, there were more gendarme assailants than civilian assailants: about 2000 gendarmes and about 1,500 civilians, totalling 3,500 persons. Witness DAA did not recall a distribution of arms. The witness stated that many of the military men and the gendarmes carried weapons, which included grenades, chains of cartridges, cartridges of bullets and other firearms, which the witness could not identify precisely. The civilians were armed with machetes, clubs, and other weapons. Defence Witness DAA categorically denied that Mika was among the participants. [145]

152. Defence Witness DC testified that, on the Sunday following the President’s death, which he thought to be 10 April 1994, he was at the centre carrying out his activities and saw members of the population, particularly women accompanied by their children, carrying mats and moving towards Mubuga Church to seek safety. The gendarmes, who were stationed at the church to protect the refugees, opened fire on them and threw grenades at the church, destroying it.[146]

153. While he was a refugee at Muguba Church, Defence Witness DC testified that he had heard about, but did not see, the “girls of the Monsignor” being brought to the cemetery to be killed. However, he did not hear of any rapes. Witness DC stated that he heard that the assailants at the cemetery were Interahamwe and thugs from Ryaruhanga. [147]

154. Witness DC testified that he left Mubuga Church the day after the looting of the CARITAS food stock, on approximately 14 April 1994, when early in the morning an attack on the church was launched. Tear gas was thrown at the refugees, and one of the gendarmes that had been guarding the church told the refugees that their “fate had been sealed” and advised them to flee. The witness left, as did others, to seek refuge in the houses of friends or in the bush. The witness recalled that a few people were killed.[148]

Findings

155. The Prosecution relies on the evidence of Witnesses AV and AF to prove the allegations against the Accused in relation to distribution of weapons at Mubuga Church, and participation in the subsequent attack, including the murder of a Tutsi man called Kaihura. The Chamber recalls its previous finding that Witnesses AV and AF are credible witnesses.

Distribution of Weapons and Attack on the Church

156. Based on the evidence of Witness AF, as corroborated by the evidence of Witness AV,[149] the Chamber finds that, on the morning of 15 April 1994, the Accused participated in an attack on Mubuga Church. The Accused, and other local leaders, such as Bourgmestre Sikubwabo and Conseiller Rutaganira, were prominent participants in the attack, and all carried guns.[150] The attackers surrounded the church and whistled at the refugees barricaded behind the church doors. After unsuccessfully trying to break down the church doors, the assailants, including the Accused and Bourgmestre Sikubwabo, threw grenades and fired their weapons into the church, killing many of the Tutsi refugees.

157. However, the Chamber is not convinced that the Accused played a leadership role in the attack on Mubuga Church, as alleged by the Prosecution. The Chamber observes that the testimonies of Witnesses AV and AF regarding the Accused’s role in the attack appear to reflect personal assumptions, based on the Accused’s position as conseiller, and are unsupported by evidence of the Accused’s words or actions during the attack, demonstrating his leadership. The Chamber finds that the Accused’s status as a conseiller, his association with important local authorities at the scene of the attack, and his action in throwing a grenade do not necessarily lead to the conclusion that the Accused was one of the leaders of the attack.

158. Furthermore, the Chamber finds that the Prosecution has failed to prove that, between 14 and 15 April 1994, the Accused, acting in concert with Charles Sikubwabo and soldiers, distributed grenades and guns to Interahamwe and armed civilians at Mubuga Catholic Church, as alleged in Paragraph 5 (b) (ii) of the Indictment. On the basis of Witness AV’s testimony, the Chamber accepts that the Accused threw one grenade from a box, which he carried from a vehicle to the church. However, the Prosecution did not present evidence to show that the Accused, or any other individual, distributed any grenades remaining in the box to other assailants who surrounded the church. Nor did the Prosecution lead any evidence about the distribution of any other weapons at Mubuga Catholic Church. The only evidence on the record in this regard was submitted by the Defence: that the gendarmes who participated in the attack at the church were well-equipped and that no Defence witness, some of whom participated in the attack, saw or heard of weapons which were distributed at the church.

159. The Defence claims that the Accused was at home when the attack is alleged to have occurred. To support this contention, it adduced evidence from Witnesses TQ1, DZ, DA, and DAA.

160. Witness TQ1 claims that the Accused was mourning the death of his son during the attack. The Chamber, however, notes that the witness’s testimony was internally inconsistent with regard to her own presence in the Accused’s house during that time. While the witness testified that she was continuously present at the Accused’s house between 6.00 a.m. and 8.00 p.m. every day, and that it was customary for the entire neighbourhood to participate in the mourning, she could not recall the names of any of the guests who were present. Further, and contrary to her own testimony, she also told the Court that she used to go to pray every day and that she returned to her house at 6.00 p.m. In response to questions from the Bench, the witness was also evasive in her answers. In light of these factors, the Chamber does not find Witness TQ1 to be a credible witness. The Chamber notes that Defence Witness DC places the Accused at Mubuga Church on 12 or 13 April 1994, during the looting of the CARITAS food stores. The Chamber further notes that Defence Witness TQ28 testified that the Accused was among those who welcomed the witness and his father on the morning of 16 April 1994, when they arrived around 8 or 9 a.m., at the CCDFP building in Gishyita. The Chamber is therefore not persuaded that the Accused was continuously present in his house during the mourning period.

161. The Chamber has considered the testimonies of Witnesses DZ and DAA, who participated in the attack but did not see the Accused. However, the Chamber finds that this evidence does not affect the reliability of the Prosecution evidence as to the Accused’s presence during the attack on the church. While it is quite possible that these witnesses would have recognised the Accused if they had seen him during the attack, it is also quite possible that they could have missed seeing him. Witness DZ admitted that he was not stationed at the church itself, but rather on the road close to the church, to prevent any Tutsi from escaping.

162. In its assessment of Witness DA’s testimony, the Chamber has taken into consideration the close family relationship between Witness DA and the Accused. Even if the Chamber were to accept the witness’ testimony that she was present during the attack and did not see the Accused, that would not preclude the Accused’s presence and participation in the attack. The witness may not have been in a position where she could see the Accused, especially since she was hiding during the attack. The attack on the church commenced at around 10.00 a.m., and the witness testified that she left her hiding place in the church at 7.00 p.m. and reached the Accused’s house during the night, where she found him asleep. Consequently, it is possible that the Accused may have participated in the attack and returned home long before Witness DA arrived there.

163. The Chamber finds insufficient evidence to prove the allegation that the Accused distributed weapons at the church, as alleged in Paragraph 5 (b) (ii) of the Indictment.

164. On the basis of the testimonies of Witnesses AV and AF, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegation in Paragraph 5 (b) (iii) of the Indictment that, on the morning of 15 April 1994, the Accused, along with others, launched an attack on a large number of Tutsi civilians who had sought refuge in Mubuga Catholic Church.

Murder of Kaihura

165. Based on the testimony of Witness AV, which the Chamber has previously found credible, the Chamber finds that, at approximately 10.00 a.m. on 15 April 1994, the Accused unloaded a box of grenades from a vehicle in which he arrived, and placed the box on the steps of Mubuga Church. The Accused then flung one of the grenades from the box into the church. Witness AV and many others were seriously injured in the blast, and a Tutsi man called Kaihura was killed when the blast shattered his skull.

166. The Defence claims that Witness AV did not properly identify the alleged victim of the Accused’s grenade attack, the man known in the Indictment simply as “Kaihura”. The Chamber notes that, in her testimony, the witness clearly identified the victim as a Tutsi man called Kaihura, and that the Defence was unable to demonstrate any inconsistencies in the witness’ recollection on this point. The Chamber is mindful that, in such a situation, where hundreds of refugees are crammed together under stressful conditions, it may be difficult to expect clear identifying information for each victim. The Chamber is persuaded by the witness’ account that the victim, whom she identified as Kaihura, is the same man mentioned in Paragraph 7 (b) of the Indictment.

167. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegation in Paragraph 7 (b) of the Indictment, that the Accused killed a Tutsi civilian by the name of Kaihura by throwing a grenade into the church. Furthermore, the attack, in which the Accused participated, resulted in the deaths of hundreds of people.

J. Rape and Murder of Colette, Alphonsine and Agnes at Mubuga Parish Cemetery, 15 April 1994

Allegations

168. The Prosecution alleges in the Indictment that:

On or around 15 April, 1994, at Mubuga parish, Mikaeli Muhimana in concert with others, including Interahamwe named Kigana, Theophil and Byamwenga took Tutsi civilian women named Colette a girl from Mubuga, Agnes Mukagatare an employee of Mubuga dispensary and Alphonsine from Mubuga dispensary to the vicinity of a cemetery located between Mubuga parish and Mubuga dispensary where Mikaeli Muhimana raped AV-K. [151]

On or around 15 April 1994, at Mubuga parish, Interahamwe raped two women named Colette a girl from Mubuga and Alphonsine on instructions and within the presence of Mikaeli Muhimana.[152]

On or around 15 April, 1994 at Mubuga parish, Mikaeli Muhimana instructed Interahamwe to rip open the stomachs of two women named Colette, a resident of Mubuga, and Alphonsine to see how stomachs of Tutsi women look like. The stomachs of the two women were ripped open in the presence of Mikaeli Muhimana, thereby killing the two women in the process.[153]

169. In its Pre-Trial Brief, the Prosecution summarises the anticipated testimony of Witness AV as follows:

On 15 April 1994, Muhimana working in common purpose with Interahamwe Kigana, Theophil and Byamwenge, took away Tutsi women, including one Colette and a girl called Agnes Mukagatere, an employee at Mubuga dispensary to an isolated area of a cemetery located between the Parish and the dispensary. Muhimana indicated that it would not be proper to kill the girls without first raping them. Muhimana violently raped Agnes. Muhimana ordered the Interahamwe to rape the other girls and kill them by opening up their bellies.[154]

Evidence

Prosecution Evidence

170. Prosecution Witness AV testified that, at about midday on 15 April 1994, after the attack on Mubuga Church had subsided and while she was still inside the church, her younger sister came to inform her that their parents had been killed at the dispensary. On her way through the woods to see the bodies of her parents, the witness encountered the Accused, armed with a gun, Ryandikayo, and many other Interahamwe, who were armed with traditional weapons. Witness AV hid five metres from the Accused and testified that she could see everything, as she hid under a Nyakobwa tree, which does not have leafy branches that might have blocked her view. Witness AV added that she believed, that if he had been paying attention, the Accused could have seen her as well, since her view was unobstructed. The Accused and his escorts were leading six girls down the road towards the cemetery, which is about five minutes from the dispensary. The witness recognized, among the girls, three Tutsi girls named Collette, Alphonsine, and Agnes.[155]

171. According to Witness AV, the Accused announced to his cohorts that he intended to rape the girls before killing them. To demonstrate his seriousness, the Accused seized Agnes Mukagatare, who worked at Mubuga dispensary, and ordered her to undress. When she refused, the Accused then slapped her, and in a panic, Agnes unbuttoned her blouse and her skirt. The Accused then asked Agnes to lie down on her clothes, while he undressed and gave his shirt to a man standing next to him. The Accused then took off his underclothing and began to rape Agnes, causing her to scream with pain and beg the Accused to kill her without causing her to suffer. According to the witness, the Interahamwe accompanying Muhimana could not see what he was doing to Agnes because they had withdrawn. After raping her, the Accused dressed himself and threatened Agnes with a bayonet, causing her to plead with the Accused to kill her with the gun rather than with the bayonet. The Accused responded with laughter and pushed the still-naked Agnes towards the other girls. The Accused then told the Interahamwe to rape the other girls. The Accused said to the Interahamwe, "Now is the time. You can continue doing your work, and after killing those people you must make sure you see what they look like".[156] At this point, the witness could not stand to watch anymore, and crawled away on her stomach in the direction of the church. A young man named Cum, who had also sought refuge in the church, later informed the witness that the Interahamwe, after raping the girls, took them to the road and "cut them up into pieces".[157]

172. Prosecution Witness AF stated that there were many Tutsi refugees, mainly women and young girls, hiding in the rooms in Mubuga Parish. The witness was inside the church during the attack on the presbytery but learned of the events from a Tutsi girl called Claudine who survived. During the night between 14 and 15 April 1994, Father Marcel told the women and girls in the presbytery, “I have already given the key to the assailants. You have to come out. If you don't come out the assailants will open the doors and kill you.”[158] The girls, however, were afraid and stayed where they were. During the night, assailants raped, tortured, “sacrificed in Uwagati”, and killed the girls. In the morning, some of the bodies were thrown into a banana plantation.[159]

Defence Evidence

173. Defence Witness DAA stated that, prior to his imprisonment in Rwanda, he did not hear about any women who had been raped in Mubuga Cemetery. He stated that this incident could not have been kept a secret.[160]

174. Defence Witness DC testified that, on the evening of 12 April 1994, he went alone towards Mubuga Church, where refugees had gathered for days. The witness also saw at least three gendarmes at the church. The gendarmes were supposed to be guarding the church. The witness stated that he saw Muhimana at the Church, although he did not see him doing anything or killing anybody. [161]

175. Witness DC testified that, during the time he was at the church, he had heard about the “girls of the Monsignor” being brought to the cemetery to be killed but did not personally witness the incidents. He did not hear of any rapes. The witness heard that the attackers were Interahamwe and thugs from Ryaruhanga.[162]

176. Defence Witness DL testified that his wife was a Tutsi and, since there were rumours of an attack against the Tutsi and their accomplices, his wife and children sought refuge at Mubuga Parish Church on Sunday evening, 9 April 1994. The witness visited his wife and children at the parish on Monday and found that many refugees had gathered there. The witness then returned home with his children, while his wife stayed on at the parish until Wednesday, when she returned home, accompanied by a gendarme to whom the witness had paid 3,000 francs. The witness’ wife survived the events of 1994.[163]

177. Witness DL testified that he never heard of women being raped at Mubuga Cemetery. The witness knew a young girl called Therese, the daughter of a neighbour, who survived attacks at the cemetery. The witness stated that he visited and spoke with Therese about the events at the cemetery on two occasions. Therese said that the girls were clubbed, but did not say that the girls had been disembowelled.[164]

178. According to Witness DL, during the confessions which took place in the gacaca sessions in the Gisovu Prison, the Accused’s name was never mentioned in regard to attacks on Mubuga Church and Cemetery, or in relation to events in “that” secteur.[165]

179. Defence Witness DF testified to seeing girls, who had taken refuge in the presbytery of Mubuga Church, killed in the cemetery. The witness testified that he did not kill anyone himself but that he was present when they were killed. The witness could not remember the exact date or day, but recalled that there was a full moon. The witness testified that he was brought to the presbytery, where there were gendarmes, and knocked on the door and spoke through the door to the girls. The girls immediately opened the door, since they knew him. According to the witness, he was forced to do this because the girls trusted him, as he used to provide them with supplies. The assailants then advanced towards the girls, explaining that they were going to be moved to Kibuye, for security. The girls, as well as others, voluntarily left the presbytery, which was located close to the cemetery.[166]

180. According to Witness DF, when the refugees reached the cemetery, they were killed two or three at a time by the assailants with clubs. The witness testified that there were more assailants than victims present and that between 15 and 25 people were killed. The witness declared that the girls were neither raped before being killed nor disembowelled afterwards, since Sikubwabo and the gendarmes immediately called the assailants away from the site. The witness said that the girls’ corpses were left at the cemetery.[167]

181. Witness DF identified the victims at the cemetery: the girls of the Abahire, girls from the Herman’s family, girls in charge of orphans, including a certain Karege, and Herman Muzungu and his wife. The witness claimed that all of the other victims were Tutsi girls.[168]

182. Defence Witness DG stated that, during the night of 14 and 15 April 1994 at about 2.00 or 2.30 a.m., a young man called “Philner” came to the witness’ house accompanied by two gendarmes and asked for his vehicle. When the witness refused, the gendarmes brought the witness to see their commander, who was absent from their camp. The gendarmes and the witness then continued along the road leading to the cemetery in search of the commander, when they met two vehicles transporting the “girls of the bishop”. The commander announced that the problem had been solved and there was no longer any need to see the witness. In the opinion of the witness, Philner and the gendarmes had wanted to use his vehicle to transport the girls but had found an alternative vehicle.[169]

183. According to Witness DG, upon consultations between the gendarme and bourgmestre, the girls were taken to the cemetery, accompanied by members of the population, including the witness. The witness testified that the girls were around 25 in number, and included a man, Herman Muzungu, and his wife. The girls were transported in two vehicles for 160 metres, escorted by the bourgmestre, gendarmes, and members of the population, armed with clubs, all on foot. The witness did not know the names of the girls, but stated that they were called the “girls of the bishop”.[170] From where the vehicles were parked, it was a short distance to the cemetery, where the civilians walked on foot. The witness stated that it took about five minutes for the group to walk to the cemetery. According to the witness, one of the vehicles belonged to a trader who was living in the centre and had been requisitioned by the bourgmestre. The second vehicle belonged to another trader in that centre and had been requisitioned by the gendarmes.[171]

184. Witness DG testified that at the cemetery, the girls were taken from the vehicles by youngsters and killed under the moonlight in everyone’s presence. According to the witness, the girls were killed because they were Tutsi.[172]

185. Witness DG denied that the girls were raped before they were killed. According to the witness, Sikubwabo brought out the girls from the presbytery, and the gendarmes put them in the two vehicles. The witness considered that it was not possible that the girls had been made to alight from the cars and were raped. He had heard no one mention their rapes and stated that he witnessed only the killing of the girls.[173]

186. Witness DG testified that he could not identify any of the assailants, except a young man by the name of Urikumwenimana Theophile. The witness did not know the name of other assailants, a group of about 30 young men brought by the bourgmestre. The witness declared that he did not see Muhimana, whom he knew, at the cemetery.[174]

187. Defence Witness DD testified that he went to Mubuga Church on 12 April 1994, because he had been told the church was safe. The witness arrived at the church at about midday on 12 April [1994], and found many people there. The witness stayed at the church until 4.30 or 5.00 a.m. on 15 April 1994. [175]

188. Witness DD testified that at dawn on 15 April 1994, he escaped through a window of the church, unguarded by gendarmes. According to the witness “[i]t was not very clear, but one could see.” He personally saw the bodies of the filles de Monseigneur littering the cemetery. He also testified that the bodies had not been disembowelled and that he had never heard from anyone that the girls had been raped.[176]

189. Defence Witness DZ testified that he knew Agnes Mukagatare before the war, and that she “was a young girl who had just completed CERAI”. The witness further testified that after the war Agnes sought refuge somewhere, but he never saw her again. Witness DZ did not know Alphonsine or Colette.[177]

190. Defence Witness DA testified that she never heard of any rape committed in Mubuga and its surroundings. However, the witness was told by other refugees, who arrived in Mubuga Church after her, that some girls were found dead in Mubuga Cemetery. Witness DA does not know who killed these girls and did not hear that these girls were raped or disembowelled.[178]

Findings

Rape

191. The Prosecution relies on the evidence of Witness AV to support its allegations that the Accused raped Agnes Mukagatare, and that two other girls were raped by the Interahamwe in his presence.

192. The Defence contends that the rape of Agnes Mukagatare by the Accused, to which Witness AV testified, is not alleged in the Indictment. Therefore, the Accused cannot be expected to prepare a defense against such an allegation. It submits that actual witness testimony cannot serve as an amendment to the Indictment.[179]

193. An analysis of Paragraph 6 (b) of the Indictment (including sub-paragraph 6(b) (i)) reveals that the Accused is charged with personally raping one Tutsi woman in the cemetery on 15 April 1994, Witness AV, and ordering the rape of two others. The evidence speaks to the rape not of Witness AV by the Accused, but to the rape of one of the abducted girls by the Accused.

194. The Chamber notes that on 27 February 2004, upon filing its Pre-Trial Brief, the Prosecution placed the Defence on notice that Witness AV-K (later Witness AV) was not in fact raped as alleged in Paragraph 6 (b) of the Indictment, but rather that she witnessed the rape of the women mentioned in that paragraph:[180] Colette from Mubuga, Agnes Mukagatare and Alphonsine from Mubuga. The Chamber further notes that in the Annex to the Pre-Trial Brief, the Prosecution gives the following details in its summary of the anticipated witness testimony of Witness AV:

195. Before closing its case, the Prosecution made an oral request before the Chamber to rectify a “typographical error” in the Indictment, to amend the name of the woman allegedly raped by the Accused in Paragraph 6 (b) of the Indictment from “AV-K” to “Agnes”.[182] The Prosecution explained that the error had occurred in the drafting of the Indictment as Witness AV-K and “Agnes” share the same first name, which had at the time of drafting caused some confusion. However, the Prosecution submitted that the Defence had been given notice of this typographical error since the Pre-Trial Brief was filed. The Bench proceeded to enquire from the Defence whether it had any objection to the amendment, and the Defence replied that it did not see any reason to object. However the Defence made a reservation that it wished to verify the information, since it did not have the relevant document at hand.[183] Unfortunately, the Chamber did not return to the matter after the commencement of the Defence case.

196. The Chamber notes that the Accused was given notice, from the time of the Indictment, of the time and place where he is alleged to have raped a Tutsi woman. The Indictment specified the names of all three girls that the Accused and others were alleged to have abducted and taken to the cemetery. One of the three girls mentioned is Agnes Mukagatare, the girl that Witness AV alleges in her testimony to have been raped. The Chamber also notes that the Prosecution Pre-Trial Brief gave accurate details of Witness AV’s anticipated testimony in sufficient time for the Accused to prepare his defence. The Chamber concludes that the Defence suffered no prejudice in its ability to meet the Prosecution evidence on this matter, and in fact presented several witnesses to rebut the Prosecution evidence. Consequently, the Chamber finds that the defect in the Indictment was cured by timely, clear, and consistent information.

197. The Chamber has already found Witness AV to be a credible and reliable witness. Furthermore, the Chamber notes that, during the events in the cemetery, she clearly recognised the Accused and had a clear and unobstructed view of the events.

198. On the basis of Witness AV’s testimony, the Chamber finds that, on 15 April 1994, the Accused, accompanied by a group of Interahamwe, abducted six Tutsi girls and led them to a cemetery near Mubuga Church. The Accused informed the Interahamwe that “[n]obody should kill [these] girls before we've raped them.”[184] He then grabbed Agnes Mukagatere, and forced her to undress and lie down. Following this, he climbed on top of her and raped her violently, while she screamed and pleaded with him to stop.

199. After raping her, the Accused pushed his naked victim towards the Interahamwe and told them, “Now you should kill her, but before killing her take time to see her guts, to see what she looks like”. He then ordered the Interahamwe to continue with their “work” on the other girls, and instructed them that they should disembowel the girls before killing them.

200. The Chamber received hearsay evidence as to what happened to the girls, but finds that this evidence lacks sufficient indicia of reliability to prove that they were raped following the Accused’s instruction.

201. The Chamber finds the Defence evidence presented in rebuttal of this allegation that the Accused raped Agnes Mukagatere to be unconvincing. Witnesses DAA, DC, DA, and DL testified that they did not hear of any rapes committed at the cemetery. In the opinion of the Chamber, this might be true, but it does not make it impossible that these events occurred. Furthermore, the Chamber recalls its finding that Witness DA is not a credible witness.

202. Witnesses DG and DF described incidents they witnessed or heard about involving girls being taken to the cemetery, where neither the Accused was present nor were any girls raped. Witness DF mentioned different names to those mentioned by Witness AV, and in any case could not remember the date on which this happened. It is difficult to conclude that the witnesses are recalling the same event.

203. The Defence presented evidence regarding the death of the Accused’s son, the mourning period, and the funeral on 10 April 1994. However, for reasons already noted, the alibi is not persuasive. It does not render the Accused’s presence elsewhere impossible. Indeed, as has already been noted, both Prosecution Witnesses AV and AF, and Defence Witness DC, place the Accused at Mubuga Church on 15 April 1994.

204. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegation in Paragraph 6 (b) of the Indictment and the relevant sections of the Pre-Trial Brief, that, on 15 April 1994, the Accused, acting in concert with a group of Interahamwe, abducted a group of Tutsi girls, and led them to a cemetery near Mubuga Church. The Accused then raped one of the abducted girls, Agnes Mukagatere.

205. The Chamber finds insufficient evidence to establish the allegation that two Tutsi girls, called Alphonsine and Colette, were raped by the Interahamwe in the presence of and on the instructions of the Accused. Consequently, the Chamber dismisses the allegation in Paragraph 6 (b) (i) of the Indictment.

Murder

206. The Prosecution relies on the evidence of Witness AV to establish the allegation that two Tutsi girls, Alphonsine and Colette, were disembowelled and killed on the orders of or in the presence of the Accused.

207. The Chamber recalls its finding above that, on the basis of the credible and reliable testimony of Witness AV, the Accused ordered the Interahamwe, who accompanied him to the cemetery, to continue “their work” on the other girls, further suggesting that they should disembowel the girls before killing them.

208. However, Witness AV did not give any eyewitness evidence as to whether the girls were killed, since after watching the rape of Agnes, she crawled away on her stomach. The Chamber finds that Witness AV’s hearsay evidence lacks sufficient indicia of reliability to prove that Alphonsine and Colette were killed.

209. The Chamber finds insufficient evidence to establish that two Tutsi girls called Alphonsine and Colette were disembowelled and killed on the orders of or in the presence of the Accused. Consequently, the Chamber dismisses the allegation in Paragraph 7 (b) (i) of the Indictment.

K. Abduction and Subsequent Rape of Josiana, Mariana and Martha -Mugonero Complex, 13 and 14 April 1994

Allegations

210. The Prosecution alleges that:

Between 14 and 16 April 1994, Mikaeli Muhimana in concert with, amongst others, Charles Sikubwabo and an Interahamwe named Gisambo took three civilian Tutsi women Josiana, Mariana Gafurafura, and Martha Gafurafura from Mugonero complex where they had sought refuge, to Gishyita Commune where they continually raped them. [185]

Evidence

Prosecution Evidence

211. Prosecution Witness BI stated that, on 13 or 14 April 1994, after meeting with gendarmes, the Accused, together with others, including Bourgmestre Sikubwabo, and a man called Gisambo, went towards the residence of female hospital staff, in Mugonero Complex. According to the witness, they stayed at the residence for some time, before they came out leading three young women, Martha, Mariana, and Josiana, who were working at the hospital. The Accused asked the young women to board the vehicle, and the vehicle left, with Sikubwabo driving. The witness recalled that Martha and Mariana were sisters and that their father’s name was Gafurafura.[186]

212. Witness BI testified that,on the following day, 14 April 1994, he saw the Accused return the young women to their residence. They arrived in a vehicle, together with two commune policemen, and the vehicle parked in front of the association office. The three young women descended from the vehicle, which then departed. The witness observed this from a distance of between 35 and 45 metres. [187]

213. Witness BI testified that the young women told him and others that they had been taken to Gishyita, where they were raped by Sikubwabo, the Accused, and Gisambo. They did not specify, however, who raped whom.[188]

Defence Evidence

214. Defence Witness TQ28, who was present at Mugonero Complex, in Ngoma around 12 April 1994, denied that Muhimana raped Josiane on 16 April 1994. The witness stated that if any incident of this nature had occurred at the complex, he would have known of it, because it was his duty to patrol the complex, before he left to seek refuge in Gishyita. The witness testified that, in April 1994, Gafurafura’s daughters, Marie and Martha, did not reside at Mugonero Complex.[189]

215. Witness TQ28 testified that he neither saw nor heard of anyone committing rape at the hospital in Mugonero Complex during this period of time. The witness stated that he saw the Accused in Gishyita on 16 April 1994. According to the witness, it was not possible for the Accused to be in Ngoma and in Gishyita on the same day. The witness acknowledged, however, that, depending on the speed of a vehicle, it could take an hour or less to travel between Gishyita and Ngoma.[190]

216. Defence Witness TQ7 denied that Martha was raped in Gishyita in April 1994, since at that time, she was neither in Mugonero nor in Gishyita. Witness TQ7 testified that Martha’s sister, Maria Mukeshimana, lived in Kigali in April 1994, not in Gishyita. The witness concluded that, therefore, Maria could not have been raped in Gishyita in April 1994. [191]

217. Witness TQ7 stated that, when she fled from Mugonero Complex, no rapes had been committed; on her return, she was not told of any rapes that had been committed at the complex. As such, the witness could not confirm that acts of rape had been committed in Mugonero Complex or that Josiane Mukeshimana was raped in April 1994.[192]

218. Defence Witness ARI testified that, in April 1994, Marthe had left the area to participate in a training course at Kabgayi, located in the Gitarama Préfecture. Witness ARI also testified that, in 1994, Marie Mukeshimana, one of Gafurafura’s daughters, lived in Kigali.[193]

219. Witness ARI testified that Josiane Mukeshimana was Amos Karera’s daughter. The witness stated that Josiane was the same person as Janette or Yohanita and that she had changed her name in order to enrol in school after having failed the competitive entrance exam. [194]

220. Witness ARI testified that he did not see Maria or Mariana at Mugonero Hospital Complex, where he remained until the evening of 12 April 1994. The witness, who was not at the hospital on 13 to 14 April 1994, could not state whether the Accused took Maria and Marianna to his residence in Gishyita. The witness conceded that he was not present at the Accused’s residence to know whether the girls were there.[195]

221. Defence Witness TQ8 testified that he saw Marie Mukeshimana in April 1994, among those seeking refuge from the Inkotanyi at Kanserege. According to the witness, on 12 April 1994, Marie, her colleague Rachelle, and other persons requested protection and assistance from the gendarmes to cross the Kacyiru Valley. Consequently, several gendarmes, including TQ8, accompanied Marie and her friends to the Holy Family Church up to Kimicanga, where the gendarmes left them to return to camp.[196]

222. Witness TQ8 said that he and some young persons passed by the Holy Family Church on 20 April 1994, where they saw Marie and her friends again. The witness engaged them in discussion before proceeding to Nyamirambo to visit friends.[197]

Findings

Abduction and Rape

223. The Chamber accepts the evidence that the Accused, Sikubwabo, and Gisambo took Josiana, Martha, and Mariana away in a vehicle.[198] However, the Chamber finds insufficient evidence to prove that the Accused raped any of the women.

224. A single witness, Witness BI, testified about the alleged rapes of the three women. He was not an eyewitness to the alleged rapes. The women told the witness that they had been raped but did not give any information as to who raped whom or provide any details as to the circumstances under which the rapes had occurred.

225. The Chamber finds that the Prosecution has failed to prove that the Accused participated in the alleged abduction and rape of three civilian Tutsi women from Mugonero Complex. Consequently, the Chamber dismisses the allegations in Paragraph 6 (c) of the Indictment.

L. Attack Against Tutsi Refugees at the Mugonero Complex, 16 April 1994

Allegations

226. The Prosecution alleges that:

Between 9 and 16 April 1994, about six thousand civilians, predominantly Tutsi, congregated in the Mugonero church, hospital and nursing school in Ngoma Secteur, Gishyita commune seeking protection against attacks on Tutsi civilians which were occurring throughout the prefecture of Kibuye. Around 9 am on 16 April 1994, Mikaeli Muhimana, acting in concert with others, including Clement Kayishema, Charles Sikubwabo, Obed Ruzindana, soldiers, communal policemen and Interahamwe launched an attack on the civilians seeking protection at the Mugonero church, hospital and nursing school. The attackers, using guns, grenades, machetes cudgels and other traditional weapons inflicted deaths and serious injuries to the six thousand civilians who had sought refuge in the aforesaid Mugonero church, hospital and nursing school.[199]

Evidence

Prosecution Evidence

227. Prosecution Witnesses BG, BI, AT, AU, BH, and BJ all testified that they sought refuge in Mugonero Complex in Ngoma in the days immediately following the assassination of President Juvenal Habyarimana. These witnesses all stated that a multitude of Tutsi refugees from surrounding secteurs also sought shelter at Mugonero Complex. Witnesses BI and AT testified that Tutsi refugees gathered at the complex because in previous years it had served as a place of refuge during massacres of Tutsi. Witnesses BG and BI estimated that, as of 16 April 1994, 40,000 to 50,000 refugees had gathered at Mugonero Complex. [200]

228. Witnesses BH, BI, and AT testified that the assailants, after parking their vehicles in front of Dr. Ntakirutimana’s office, threw grenades and fired at the refugees. Prosecution Witness BI testified that the refugees first tried to repel the attackers with stones. He further testified that he saw the Accused shoot at the refugees and that many people were killed in this attack.[201]

229. Witness BG testified that a number of “influential people”, who arrived on board several vehicles at 8.00 a.m., led an attack at Mugonero Complex on the morning of 16 April 1994. Prosecution Witnesses AT, BH, and AU stated that, following a first attack by unarmed Hutu that lasted “about 15 minutes”, a second attack was launched around 9.00 a.m. at Mugonero Complex. Assailants, who were both civilians and soldiers, arrived from Gishyita in six vehicles, some which belonged to the commune. The drivers of the vehicles included: Pastor Elizaphan Ntakirutimana; Obed Ruzindana; Bourgmestre Sikubwabo of Gishyita Commune; Dr. Gerard Ntakirutimana, a doctor at Mugonero Hospital; and Kayishema, the préfet of Kibuye Préfecture, whose vehicle was accompanied by a truck carrying soldiers. According to Witness AT, the Accused, who arrived in the rear of a vehicle driven by Obed Ruzindana, carried a gun slung across his shoulder. Prosecution Witness AU stated that, from inside Mugonero Church, she saw the Accused, who was armed with a gun and a knife, arrive with attackers who “came singing”. According to Witness AU, the Accused, who was in the company of Ezikia Ntakirutimana, led assailants, armed with machetes, nail-studded clubs, cudgels, and spears. “They started killing at nine o’clock, and at 10 o’clock there were many bodies”.[202]

230. Witness BG testified that, although she did not see who fired the first shot, she learned from another refugee that one of the gendarmes, who “came to pretend to be protecting” them, fired first. Bullets then rained on the Tutsi refugees. Assailants “fell on the refugees and cut them with machetes”. According to the witness, “It was all very well prepared.” Assailants surrounded Mugonero Hospital parking lot, where Witness BG had fled, and the witness then ran to the church, located approximately 100-150 metres from the hospital parking lot.[203]

231. Witness BG testified that the Interahamwe pursued the refugees to Mugonero Church, forced open the doors and windows, fired their guns, and threw grenades into the building, killing many refugees and wounding numerous others, including Witness BG. The witness saw the assailants pouring petrol to burn the premises but “since there was a lot of blood all over, the fire was put out”. [204] When the assailants finally broke down the doors of the church, Witness BG managed to escape through a small back-door and ran to Mugonero Hospital.[205]

232. Prosecution Witness BI testified that he was unable to enter the church in Mugonero Complex because it was surrounded by the Accused, Sikubwabo, Kanyabungu, Ndayisaba, and other assailants. The witness stated that the Accused “was armed with a gun” and “kept shooting at the people.” Bourgmestre Sikubwabo, who stood in front of the door of the church, asked Hutu women married to Tutsi men to come out. Among the women who left the church, Witness BI recognized two young women named Nyiragwiza and Nyareri, who were married to Tutsi. The women abandoned their children inside the church, because their children were considered to be Tutsi. The witness testified that, following this “incident” at the church, he took refuge in one of the rooms of the hospital.[206]

233. Prosecution Witness AT testified that, on 16 April 1994 at 8.00 a.m., a small number of Hutu civilians, armed only with machetes and clubs, attacked Tutsi refugees gathered at Mugonero Complex in an apparent attempt to steal their cows. The refugees, using stones, repelled the attack within fifteen minutes. Following this initial victory, the gendarmes, who were guarding the refugees, told them that they would be attacked again and should protect themselves, since the gendarmes could not. The gendarmes then left.[207]

234. Prosecution Witness AU testified that one Saturday around 9.00 a.m., “the war began”. Assailants attacked Mugonero Church where she and her family had sought shelter, killing the witness’ two children and her mother and father. According to Witness AU, the assailants “were only killing Tutsi.” The witness fled from the church, after the deaths of her mother and father, to hide in a small room in the surgical theatre of the hospital.[208]

Defence Evidence

235. Defence Witness DI testified that Bourgmestre Sikubwabo forced members of the local population to take part in the massacres at Mugonero Complex in April 1994. The witness, armed with a club, left with his neighbours Keranguza, Semariza, and Nikobahoze for the complex, where, along with Interahamwe and soldiers from Bugarama and Mugonero, he participated in an attack, which he estimated “started at 10 o’clock and ended at 3 p.m.” The witness stated that the Tutsi refugees were successful in repelling the assailants until Interahamwe and military reinforcements arrived.[209]

236. According to Witness DI, “Mika wasn’t present” during the attack. Because Mika was in mourning for his dead son, “the Bourgmestre had left him in peace”. The witness also stated that he “never” saw the Accused with Bourgmestre Sikubwabo or “had news that a girl or a woman had been raped during an attack” in Gishyita Commune. Witness DI testified that the Accused never clubbed anyone to death, as only the assailants without guns or grenades killed victims in this manner.[210]

237. Defence Witness ARI stated that he worked at Mugonero Hospital until April 1994, when he left because of security problems caused by bandits coming from Mpembe, Mugonero, and Gishyita.[211]

238. Because of persistent rumours of an imminent attack on Mugonero Hospital, Witness ARI, his family, and the family of Pastor Jacques Ushizimpumu left their homes at 6.00 a.m. on 16 April 1994 to seek shelter at the CCDF building in Gishyita, about five to seven kilometres away from Mugonero Complex.[212]

239. Witness ARI testified that, on 16 April 1994, between about 10.00 a.m. and midday, while at the CCDF in Gishyita, he heard screams coming from Mugonero Complex and that later he heard about the attack on the complex from survivors. The witness was informed that the assailants were Interahamwe who came from Cyangugu, Rubengera, and northern Rwanda. The witness stated that he had not heard that Obed Ruzindana played a leadership role or that Bourgmestre Sikubwabo, Elizaphan Ntakirutimana, or Gerard Ntakirutimana participated in the attacks. In response to the Prosecution’s question about the witness’ knowledge of who bore responsibility for the attack on Mugonero Complex, the witness said that he was not aware of anyone who has admitted that the events took place.[213]

240. Defence Witness TQ28 testified that the day after President Habyarimana’s death, 7 April 1994, he and his family sought refuge at his father’s working place, Mugonero Hospital Complex. As a security measure, they conducted patrols of the complex, in which the witness participated. On 12 April 1994, the witness and his family left Mugonero Complex for the nearby Kabahinyuza Market in Ngoma, where they remained until 16 April 1994, when they sought shelter at the CCDFP in Gishyita.[214]

241. According to Witness TQ28, on arriving at CCDFP, on 16 April 1994, he and his family were welcomed by the authorities of Gishyita, including the former Bourgmestre Sikubwabo and the former Conseiller Muhimana, who listened to their problems and showed them where to sleep. The witness reported that the Accused spent about 30 minutes with the refugees before leaving. [215]

242. Witness TQ28 testified that, on 16 April, he “shuttled to and from” the Gishyita market. The witness maintained that each time he visited the market, on 16 April 1994, he found the Accused there with other people, although he did not notice what the Accused was doing. Since the witness saw the Accused in Gishyita on 16 April 1994, he deduced that the Accused was not at Mugonero Hospital since “Mika could not have been at Ngoma and Gishyita at the same time.” The witness acknowledged, however, that travel by car between Gishyita to Ngoma could take less than an hour. [216]

243. On 17 April 1994, while he was at CCDFP, Witness TQ28 heard of the attacks at Mugonero Hospital Complex which had occurred on 16 April 1994. The witness heard that the assailants came from various, fairly distant places. In response to a question from the Defence about the Accused’s participation in the attack, the witness stated that he did not hear “Mika’s name amongst the assailants there were mentioned”. [217]

244. Defence Witness DS told the Chamber that no one had ever mentioned to him that the Accused was one of the assailants in the attacks at Mubuga, Mugonero Hospital, or Bisesero.[218] The witness testified that he had heard of the killings at Mugonero Hospital and in Bisesero but that he had not personally participated in the attacks.[219]

245. Defence Witness DK testified that he knew Mugonero Hospital because he had received medical treatment there. The witness stated that, although detainees during the gacaca sessions had discussed the large-scale massacres at Mugonero Hospital, no one had spoken of the Accused’s participation in these attacks.[220]

Findings

246. The Chamber has carefully considered the evidence and the Parties' submissions. On the basis of the corroborated evidence presented by Prosecution Witnesses BG, BI, AT, AU, BJ, and BH, the Chamber finds that the Accused participated in an attack against Tutsi civilians at Mugonero Complex on 16 April 1994. However, the Chamber has found significant inconsistencies in the testimony of Witness BH in relation to this attack, and, accordingly, will not rely on his testimony.

247. The Chamber finds credible and reliable the accounts of Prosecution Witnesses BG, BI, BJ, AT, and AU about attacks that occurred at Mugonero Complex on 16 April 1994.

248. The Defence submits that because of Witness BG’s conflicting prior written statements, dated 14 November 1995 and 24 October 1999, as well as inconsistencies in her testimony, the evidence of this witness should be rejected.[221] The Defence refers to Witness BG’s testimony that a fire set by assailants at Mugonero Church with petrol was put out because of the “blood everywhere”.[222] The Defence maintains that this testimony is “untrue because, according to the laws of nature and common sense, blood cannot have such an effect.”[223] The Chamber does not consider that this account, even if scientifically inaccurate, tarnishes the credibility of the witness.

249. According to the Defence, a discrepancy exists between Witness BG’s first written statement of 14 November 1995 and the second statement of 24 October 1999. In the prior statement, the witness failed to mention that she first hid in the church before she sought shelter in one of the hospital toilets. The Chamber finds that the discrepancy is minor, particularly in light of the witness’ acknowledgement that in 1995 she was traumatized by the recent events, including the loss of her two children, and spent much of the year in the hospital.[224]

250. The Chamber observes that Defence Witness DI testified to having participated in the attacks at Mugonero Complex, on orders issued by Bourgmestre Sikubwabo. He also stated that the bourgmestre did not insist that the Accused should participate in the attacks at the complex because of the recent death of his son. The Chamber does not consider credible Witness DI’s testimony that the Accused could not have been present during the attacks at Mugonero Complex. Given the large number of assailants, the scale, and the duration of the attacks, it is plausible that the witness may not have been aware of the Accused’s presence and participation in the attacks. Furthermore, even assuming that the Accused was mourning the death of his son, there is no evidence that he stayed at home continuously on that day. The Chamber notes that Mugonero Complex is only an hour’s drive by car from the Accused’s home in Gishyita.

251. The Chamber further observes that, during cross-examination, Witness DI acknowledged that he was related to Muhimana though marriage. Also, during cross-examination, the Prosecution submitted a confession by the witness before the gacaca court in which he admitted that he killed refugees in attacks at Mugonero Complex and in Gitovu. This confession is inconsistent with the witness’ testimony, during direct examination, that, though he participated in the attacks at Mugonero Complex, he killed no one.[225]

252. Defence Witness AR1 testified that he was not at Mugonero Complex at the time of the attacks on 16 April 1994, but, from where he had taken shelter at CCDF, he heard screams coming from the complex at around 10.00 a.m. The witness’ bare assertion that he did not hear of the participation of certain local authorities is not sufficient to undermine credible and corroborated testimonies that local authorities, including the Accused, Pastor Elizaphan Ntakirutimana, Dr. Gerald Ntakirutimana, Préfet Kayishema, and Bourgmestre Sikubwabo participated in the atrocities committed at Mugonero Complex on 16 April 1994. Accordingly, the Chamber finds that Witness ARI’s testimony does not undermine the corroborated testimonies of several Prosecution witnesses about the alleged crimes committed by the Accused at Mugonero Complex on 16 April 1994.

253. Defence Witness TQ28 acknowledged that he was not at Mugonero Complex at the time of the attack on 16 April 1994. However, the witness testified that, on this day, he saw the Accused at Gishyita, the first time around 8.00 or 9.00 a.m., and then later during the day. The Chamber does not accept the witness’ testimony that because he “shuttled to and from” the Gishyita centre on 16 April 1994 and saw the Accused, the Accused could not have participated in the attacks in Mugonero, located five to seven kilometres away from Gishyita, according to the witness’ estimation. The Chamber notes that the witness does not state how many times, and at what times of the day, he saw the Accused. Therefore, the Chamber finds that the testimony of Witness TQ28 does not in any way affect the credible and corroborated testimonies of Prosecution witnesses that the Accused participated in attacks at Mugonero Complex in the morning and later on during the same day.

254. Defence Witnesses DS and DK were not eyewitnesses to the crimes committed at Mugonero Complex on 16 April 1994. Both witnesses testified, however, that years later, in Gishyita Prison and during gacaca sessions, the Accused’s name was never mentioned in relation to the attack at Mugonero Complex. The Chamber does not consider this evidence to be persuasive.

255. On the basis of evidence presented by both Prosecution and Defence witnesses, the Chamber finds that, between 9 and 16 April 1994, thousands of civilians, predominantly Tutsi, sought shelter from attacks in Mugonero Complex, a traditional refuge in Ngoma Secteur, Gishyita Commune.

256. On the morning of 16 April 1994, the Accused arrived at Mugonero Complex in a convoy of vehicles, together with Clement Kayishema, Charles Sikubwabo, Obed Ruzindana, Elizaphan Ntakirutimana, Gerard Ntakirutimana, and soldiers transported in a truck. Among the assailants were also civilians, Interahamwe, and gendarmes. However, the evidence does not show, as stated in Paragraph 5 (d) (i) of the Indictment, that commune policemen participated in the attack.

257. Based on the evidence presented by both Prosecution and Defence witnesses, the Chamber finds that a large-scale attack occurred at Mugonero Complex in which many Tutsi civilians were injured or killed. The assailants used guns, grenades, machetes, cudgels, and other traditional weapons, causing death and serious injuries to Tutsi civilians who were gathered at the complex.

258. During the attack, the church at Mugonero Complex was surrounded by the Accused, Sikubwabo, Kanyabungu, Ndayisaba, and other assailants when Bourgmestre Sikubwabo addressed the crowd of refugees inside, and asked Hutu women married to Tutsi men to come out. Some of the women complied, abandoning their children, considered Tutsi, inside the church. The Chamber finds that this directive demonstrated that the attackers targeted the Tutsi refugees who had gathered in the church.

259. Based on the testimony of Prosecution Witnesses BG, BI, BJ, AT, AU and AV, the Chamber finds that the Accused was among the assailants during the attack on 16 April 1994 at Mugonero Complex. He was present, along with other local authorities at Mugonero Complex, when the attack was launched, and he was in close proximity to Bourgmestre Sikubwabo when the latter authorized Hutu women to leave the church, before the assailants continued their attack against the refugees. Furthermore, during the attack, the Accused used his gun to kill and inflict injuries on Tutsi civilians targeted by the attackers.

260. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 5 (c) of the Indictment.

M. Rapes and Murders at Mugonero Complex, 16 April 1994

Rape and Murder of Mukasine Kajongi

Allegations

261. The Prosecution alleges that:

On 16 April 1994, at the Mugonero complex, Mikaeli Muhimana in concert with two Interahamwe raped civilian Tutsi women in one of the halls of the Mugonero medical school. Mikaeli Muhimana raped one Mukasine Kajongi while brutally assaulting her and removing her clothing so that passers by could view her sexual organs. [226]

On 16 April 1994, at the Mugonero church, hospital and school, Mikaeli Muhimana in concert with two Interahamwe killed a civilian woman named Mukasine and another, in one of the halls of the Mugonero medical school.[227]

Evidence

Prosecution Evidence

262. Prosecution Witness AT testified that, on 16 April 1994, he fled to Mugonero Hospital, after the attack on Ngoma Church, where he had first sought refuge. Around 11.00 a.m., he entered the surgical theatre, located in the basement of the hospital. According to the witness, in the room, where he spent the entire day, there were three beds with mattresses and 30 corpses lying on the floor. The door and windows had been broken. Witness AT hid amongst the corpses, pretending to be dead, and was located in a position where he was able to observe anyone entering the room. The bodies, which lay close to the beds, were still bleeding. Blood dripped into his mouth. When the assailants arrived in the room, he was drenched in blood amidst the corpses, and they could not distinguish him from the dead.[228]

263. Witness AT stated that, from his position under the dead bodies, he saw three girls burst into the surgery room, out of breath. They lay down on the three beds, located about four and a half metres from where the witness was lying. The witness recognized the girls. One was named Mukasine. She was the daughter of Isaac Kajongi, the accountant of the Adventist Association and Ntakirutimana’s subordinate. Mukasine had just completed her education at the nursing school. Though he did not know their names, Witness AT recognized the other girls as the daughters of Amos Karera, an employee in the hospital laboratory. According to the witness, one of the daughters was a teacher, and the other was a student.[229]

264. Witness AT testified that the Accused entered the room shortly after the girls. The Accused was accompanied by Kanyabungo’s sons, who, according to the witness, were soldiers just like their father. The Kanyabungos were the witness’ neighbours, whom he saw during holidays. Upon entering the room, the Accused went straight to Mukasine, and Kanyabungo’s sons headed for Amos Karera’s daughters. The Accused took Mukasine and told her to undress quickly. Mukasine raised her hands, pleading for mercy, but the Accused rejected her pleas. When Mukasine refused to undress, the Accused threw her on the floor, undressed her forcefully, and removed her underwear.[230] Muhimana then hit Mukasine with the butt of his gun and parted her legs forcefully before raping her. She cried in pain. The other two girls also cried as they were raped by Kanyabungo’s sons. The witness stated that he could not distinguish between the brothers to ascertain who raped each of the girls. The witness testified that the three assailants completed their acts almost simultaneously and estimated that the rape lasted approximately five minutes. When the Accused had finished, he dressed and picked up his gun.[231]

265. According to Witness AT, once the assailants had finished, they said, “Those girls are Inyenzi. We are not going to abandon them here. We are not going to leave them alive." The Accused then stated, “Let us kill those two -- those Inyenzi…I'll count one to three and then open fire simultaneously.”[232] The Accused then counted from one to three, after which the witness heard the sputter of gunfire and understood that the girls had been killed. Subsequently, the Accused took Mukasine's legs, spread them apart, and said, “Everyone passing should see what the vagina of a Tutsi woman looks like.”[233]

Defence Evidence

266. Defence Witness TQ28 testified that he neither saw anyone committing acts of rape nor heard of anyone having come to Mugonero Hospital to rape people.[234]

267. Defence Witness TQ7 testified that it would have been impossible to commit rape in April 1994, at Mugonero Hospital, considering the number of people who had overrun the premises with their cattle and property, right up to the entrance. The witness added that when she left the hospital there had not been any cases of rape and that when she returned, no one mentioned that any rapes had occurred. [235]

268. Defence Witnesses AR1 and TQ28 both testified that Kajongi’s daughter, Joy Mukasine, was a student at Butare University and was not present in Ngoma in April 1994. Witness TQ28 stated that she could not have been raped on 16 April 1994 at Mugonero Complex. [236]

Findings

Findings on Rape

269. On the basis of inconsistent information contained in Witness AT’s out-of-court written statements of 1996, 1999, and 2002, in regard to the number and the identity of victims allegedly raped by the Accused, the Defence asserts that the witness is not reliable or credible. After a careful review of the written statements and the oral testimony of Witness AT, the Chamber finds that the inconsistencies relate only to minor details and do not undermine the overall credibility of Witness AT’s account of the acts of rapes.

270. The Defence points out that Witness AT recollected the rape of Mukasine Kajongi for the first time in his written statement of 12 November 1999. The Defence contends that the omission of this rape in the prior 1996 statement affects the credibility of the witness’ testimony. The Chamber notes the witness’ explanation, during cross-examination, that the 1996 statement focused on the attack itself, not on particular incidents which occurred during the course of the attack. The Chamber further notes that, in his later out-of-court statements of 1999 and 2002, as well as in his oral testimony, the witness was consistent in his description of the rape of Mukasine Kajongi. The Chamber therefore is of the view that the omission of the rape of Mukasine Kajongi in the 1996 statement does not, in and of itself, affect the witness’ credibility.

271. The Defence contends that Witness AT’s testimony did not provide a credible account of the location of the room in the surgical theatre in Mugonero Hospital, where he allegedly hid and witnessed rapes committed by the Accused and others. In support of its argument, the Defence refers to the testimony of its Witness AR1 that there were not many rooms in the surgical theatre and that the rooms for post-surgery patients were far from the surgery ward. The Chamber notes that Witness AT did not assert that the surgical theatre consisted of many rooms. Rather, the witness testified only that there were more than two rooms in the surgical area, located in the basement of the hospital. The Defence also points to inconsistencies between the witness’ testimony before the Chamber and his evidence presented in the Ntakirutimana case about the location of his hiding place in the surgical theatre. In light of the trauma which the witness experienced at the time of the events, the passage of time, as well as the witness’ prior lack of familiarity with the surgical theatre, the Chamber finds that the inconsistency with regard to the witness’ location in Mugonero Hospital does not undermine the credibility of the witness’ testimony.

272. The Chamber also accepts Witness AT’s account of how he hid under corpses and that from his position he could see the Accused and the other alleged perpetrators of the crimes. The Chamber finds credible Witness AT’s testimony that he was approximately four and half metres away when the Accused “took his gun, … hit Mukasine on her body with the butt of the gun … opened up her legs forcefully, … took his penis and thrust it into the vagina of his victim.”[237] On the basis of the witness’ detailed description of the rapes, his proximity to the crimes, and his plausible explanation that the Accused and the other perpetrators could not see him as he lifted his head up and down from his hiding place because “they were busy raping those young girls,” the Chamber finds the witness’ account of the rape to be credible and reliable.

273. The Chamber has already found Witness AT to be credible. On the basis of her testimony, the Chamber finds that the Accused told Mukasine Kajongi to undress and that, upon her refusal, and notwithstanding her plea for mercy, threw her on the floor, undressed her forcefully and took off her underwear. He then hit her with the butt of his gun, parted her legs forcefully, and thrust his penis into her vagina.

274. At the same time and in the same area where the Accused raped Mukasine Kajongi in the basement of Mugonero Hospital, two soldiers, in his presence, raped the daughters of Amos Karera. By his presence during these rapes, and by his own actions in raping Mukasine, the Accused encouraged the two soldiers to rape Amos Karera’s daughters.

275. The Chamber therefore finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 6 (c) (i) of the Indictment.

Findings on Murder

276. The Chamber finds that, in the presence of the Accused, and after having raped Mukasine Kajongi and one daughter of Amos Karera, the assailants said, “Those girls are Inyenzi. We are not going to abandon them here. We are not going to leave them alive." The Chamber finds that the Accused then stated, “Let us kill those two -- those Inyenzi…I'll count one to three and then open fire simultaneously.” The Accused then counted from one to three, after which gunfire was heard by Witness AU. The Chamber accepts the witness’ evidence that she inferred that the girls had been killed. The Chamber finds that Mukasine Kajongi and Amos Karera’s daughter were killed on the 16 April 1994 at Mugonero Hospital by assailants, under the instructions of the Accused. The Accused was present during the killing and encouraged the killers.

277. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 7 (c) of the Indictment.

Rape of Johaneta, Teresa Mukabutera, and Eugenia at Mugonero Hospital

Allegations

278. The Prosecution alleges that:

On 16 April 1994, in the surgical wardroom in the Mugonero hospital, Mikaeli Muhimana, in concert with two Interahamwe collectively raped Tutsi women Johaneta, Theresa Mukabutera and Eugenia, verbally insulting them in the process. [238]

Prosecution Evidence

279. Prosecution Witness BH testified that, on 16 April 1994, he fled to the basement of Mugonero Hospital during the evening, before nightfall. While in the basement, Witness BH testified to seeing three girls, Johaneta, Eugenia and Mukabutera, run into another room, which was between the surgery theatre and the pharmacy. The witness testified that he could see all that was happening in the other room because “the very large door had been broken”.[239]

280. Witness BH testified that he saw Muhimana and Kayabungo’s sons, Alphonse Kayabungo, an agronomist, and Muhayimana Kayabungo, a soldier, enter the room where the three girls were hiding. Witness BH heard the three men ask the girls to choose “between rape and death”.[240] According to the witness, the men told the girls that `they were arrogant, and that “now we are going to do what we want to do with you because you are in our hands”. The witness testified that he saw the Accused and the other men “bring down their zips and rape the girls”.[241] According to the witness, the Accused raped Johaneta, Alphonse raped Virginie, and Muhayimana raped Mukabutera. After the men had finished their violent acts, the girls asked whether the men would take them from the hospital or leave them to die. The men deliberated, and the Accused replied, “If we take them with us, they may report us, and that might be bad for us”. The witness testified to later seeing unidentified Interahamwe kill the girls.[242]

Findings

281. The Prosecution relies solely on the evidence of Witness BH in support of the allegations in Paragraph 6 (c) (iii) of the Indictment. The Chamber recalls its finding in relation on the credibility of Witness BH in relation to the attack on Mugonero Complex.[243] Similarly, the Chamber finds that Witness BH’s testimony in relation to the alleged rapes of Johaneta, Theresa Mukabutera, and Eugenia lacks credibility.

282. Consequently, the Chamber dismisses the allegation in Paragraph 6 (c) (iii) of the Indictment.

Rape of Witness BJ, Mukasine, and Murekatete

Allegations

283. The Prosecution alleges that:

On 16 April 1994, at the Mugonero complex, Mikaeli Muhimana and Interahamwe collectively raped civilian Tutsi women Mukasine and Murekatete staff maids at Mugonero hospital, and a civilian Hutu lady BJ-K. Mikaeli Muhimana subsequently apologised to BJ-K for the “mistake” of raping her as he initially thought she was Tutsi.[244]

Evidence

Prosecution Evidence

284. Prosecution Witness BJ testified that, on 16 April 1994, at around 9.00 a.m., she was caring for her employers’ children at their home. Hearing screaming and observing many refugees from various locations, including Gishyita, Rwamatamu, and Mpembe, hurrying toward Mugonero Complex, she assumed that the war had started. She left her employers’ house, with their children, for Mugonero Complex, where they had already sought shelter. Witness BJ left the children with their mother in the church. Because assailants were killing refugees who had amassed in the complex, the witness ran to Mugonero Hospital, where she hid in a room, which she identified before the Chamber as Room No. 3. Two other girls, whom she identified as Murekatete and Mukasine, hid with her. The witness testified that she heard “people screaming everywhere”.[245]

285. Witness BJ told the Chamber that the Accused entered Room No. 3, where she was sitting on a bed with Murekatete and Mukasine. The Accused was accompanied by two men. “One of them had a club, and another had a machete, and a pointed, sharpened stick”.[246] Witness BJ testified that the Accused ordered the girls to follow the three men to another room which contained three beds.[247] The girls did so. In this room, which the witness identified as Room 4, the Accused instructed the girls to undress and lie on their backs so that the men could see the genitals of Tutsi girls. In response to questions from the Prosecution, the witness specified that “[i]t was Mika” who ordered the girls to lie on their backs. “Everybody respected what Mika said”.[248] Witness BJ complied with the Accused’s demands because she thought that, if she did so, her life would be spared. The Accused, who was wearing a white shirt and jeans, undressed and had sexual intercourse with her for about three minutes, despite her pleas for mercy. Witness BJ testified that, when the Accused raped her, she was fifteen years old and a virgin, and that it was painful. Muhimana’s companions raped Murekatete and Mukasine while the Accused was raping Witness BJ.[249]

286. Witness BJ testified that the Accused threatened to insert sharpened sticks into the vaginas of the girls, before killing them. Before this threat materialized, however, an Interahamwe named Ngendahimana, who was Witness BJ’s neighbour, asked why she, a Hutu, would seek refuge with Tutsi. The Accused, hearing these words, said that he had been “unaware” that Witness BJ was a Hutu. She then was allowed to escape; she quickly ran home because she was told that if she remained too long on the road, the Interahamwe could mistake her for a Tutsi and kill her. Witness BJ told the Chamber that she never saw Murekatete or Mukasine again, after the girls were raped. [250]

Defence Evidence

287. Defence Witnesses AR1 and TQ7 both testified that, because Eugenia Murekatete was not present at Mugonero Complex in April 1994, she could not have been a victim of rape there. Defence Witness AR1 stated that Eugenia Murekatete was in Kigali in April 1994. [251]

Findings

288. The Prosecution relies on the evidence of Witness BJ to establish the allegation that the Accused and Interahamwe collectively raped her and two Tutsi staff maids from Mugonero Hospital, Mukasine and Murekatete.

289. The Chamber has found Witness BJ credible and reliable. This finding is based on her straightforward and detailed testimony and her demeanour in Court.

290. The Defence challenges Witness BJ’s credibility on the grounds that, when the Accused, in the hospital basement, said that he wanted to see the private parts of a Tutsi woman, she did not disclose her Hutu ethnicity. The Chamber accepts the witness’ explanation that she did not realise that only Tutsi were being targeted but thought, at that time, that all Rwandans were the same, as they had taken refuge in the same place. The Chamber accepts the witness’ explanation and does not find the Defence contention persuasive.

291. The Chamber finds that, on 16 April 1994, in the basement of Mugonero Hospital, at Mugonero Complex, the Accused raped Witness BJ, a young Hutu girl, whom he mistook for a Tutsi. At the same time, the two men who were accompanying the Accused raped the two other girls, named Mukasine and Murekatete, whose ethnicity is unknown.

292. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegation in Paragraph 6 (c) (ii) of the Indictment.

Rape of AU, Immaculee Mukabarore, Josephine Mukankwaro, and Bernadette at Mugonero Hospital

Allegations

293. The Prosecution alleges that:

On 16 April 1994, at the Mugonero complex, Mikaeli Muhimana, acting in concert with Interahamwe went to one of the operating rooms in the medical school building in the Mugonero complex and collectively raped Tutsi women AU, Immaculate Mukabarore, Josephine Mukankwaro In particular Mikaeli Muhimana raped AU. [252]

On 16 April 1994, at the Mugonero complex, Mikaeli Muhimana, acting in concert with Interahamwe went to one of the operating rooms in the medical school building in the Mugonero complex and collectively killed civilian Tutsi women named Immaculate Mukabarore, Bernadette Mukangorero and Josephine Mukankwaro. [253]

Evidence

Prosecution Evidence

294. Prosecution Witness AU testified that, when she arrived at Mugonero Complex, the courtyard in front of the complex was already full of an inestimable number of refugees, including people from Bisesero and other places.[254]

295. Witness AU testified that she and other refugees fled from an attack at Mugonero Church to the nearby hospital, where they sought shelter in the surgical theatre located in the basement. She and her companions entered a small room in the hospital, the second to the left in the basement. The room could hold two mattresses placed on the floor, which together could accommodate eight people. The witness and the other refugees lay down on the floor and pushed the door closed, without locking it securely.[255]

296. Witness AU testified that the Accused, who carried a knife and gun, entered the little room, with “about six” Interahamwe, including Ezekias Ntakirutimana and Alphonse Kanyabungo. Witness AU recognized the Accused. She begged him to save her. He did not listen to her but threatened to kill her.[256]

297. The Accused then ordered the witness to undress, and when she did not fully comply, he used his knife to tear off her pair of shorts, two pieces of underwear, and a loin cloth. The Accused, who wore a pair of jeans, a white shirt, and white underwear, then undressed. He pushed the witness on to the floor. The witness screamed for mercy, prompting the Accused to threaten to kill her. Muhimana then climbed on top of her and had sexual intercourse with her. While he raped her, he banged her head against the floor and promised to take her “out of that area where the victims were; and he was saying that Tutsis had been handed over to them and they should kill them”.[257] Witness AU stated that she had confidence in the Accused’s promise because he was in a position of authority and could rescue her. Muhimana did not honour his word to save Witness AU. Instead he raped her twice. The witness recalled that the two rapes lasted some hours. After the rapes, the Accused left the witness in the room, where she hid among the dead bodies, until she escaped at approximately 2.00 a.m., proceeding toward Lake Kivu.[258]

298. While she was being raped, Witness AU saw Interahamwe raping many young girls and women in the hallway, before killing them. One of the Interahamwe, whom the witness recognized, was Ezekias Ntakirutimana. The witness testified that all of these acts occurred in the presence of the Accused. Prosecution Witness AU also stated that “bonbons were distributed”[259] to some of the young girls, and the Interahamwe promised to take them away. While the witness did not know the names of all the women and young girls whom the Interahamwe sexually assaulted, she was able to identify three young women: Immaculee Mukabarore, Josephine Mukangwiro, and Bernadette, who was the witness’ neighbour.[260]

Defence Evidence

299. Defence Witnesses AH7 and TQ28 both testified that they were unable to confirm that any rapes had been committed at Mugonero Hospital in April 1994. Witness AH7 stated that he had no knowledge of any rapes that had occurred within their locality before 1994 or thereafter.[261] Similarly, Witness TQ28 testified that he neither saw nor heard of anyone committing acts of rape at Mugonero Hospital.[262]

Findings

Findings on Rape

300. The Prosecution relies on the testimony of Witness AU to establish the allegation in Paragraph 6 (c) (iv) of the Indictment that the Accused and Interahamwe collectively raped Tutsi women AU, Immaculate Mukabarore, and Josephine Mukankwaro. Specifically, the Prosecution alleges that the Accused raped Witness AU.

301. The Defence challenges the credibility of Witness AU on the basis of alleged inconsistencies in her testimony concerning the identities of other rape victims and her failure to recall their full names.

302. On the basis of Witness AU’s testimony, which the Chamber has found credible, the Chamber finds that on 16 April 1994, in the basement of Mugonero Hospital, at Mugonero Complex, the Accused raped Witness AU twice.

303. The Prosecution also charges the Accused with the collective rape of Immaculee Mukabarore and Josephine Mukankwaro. By virtue of her location, and the fact that she was being violently raped at the time, the Chamber finds that she may not have been in a position to observe what was being done to other girls in the hallway.

304. Consequently, the Chamber finds proved beyond reasonable doubt the allegation in Paragraph 6 (c) (iv) of the Indictment that the Accused personally raped Witness AU on 16 April 1994 in a room in the basement of Mugonero Hospital. However, the Chamber finds that the Prosecution has failed to prove the allegation that the Interahamwe raped Immaculee Mukabarore and Josephine Mukankwaro in the presence of the Accused.

Findings on Murder

305. The Prosecution relies on the testimony of Witness AU to establish the allegation in Paragraph 7 (c) (i) of the Indictment that the Accused and Interahamwe killed Immaculee Mukabarore, Bernadette Mukangorero, and Josephine Mukankwaro after they were raped.

306. For the reasons stated above with regard to the rape of the other women, the Chamber finds that the Prosecution has failed to prove this allegation. Therefore, the Chamber dismisses the allegation in Paragraph 7 (c) (i) of the Indictment.

N. Rape of Witness BG, 22 April 1994

Allegations

307. The Prosecution alleges that:

On or around 22 April 1994, Mikaeli Muhimana permitted an armed civilian, one Mugonero to detain and keep a Tutsi woman BG-K in his house where he repeatedly raped her for several weeks.[263]

Evidence

Prosecution Evidence

308. Prosecution Witness BG testified that, during the night of 16 April 1994, she climbed the hills towards Gitwa and that, the following day, she continued walking towards Bisesero. Like many others, she sought refuge in Bisesero because she thought that the region’s hilly and forested terrain would deter the assailants. However, the Accused and other assailants pursued the Tutsi refugees to Bisesero. According to the witness, the assailants did not leave the area until they had killed as many people as they could. Witness BG testified that she saw the Accused in Bisesero on several occasions and heard him encourage other assailants to seek out Tutsi who had sought refuge in the region. [264]

309. Witness BG testified that, on 22 April 1994, at around 3.30 p.m., the Accused and members of the Interahamwe, including a man called Mugonero, found her hiding on a hill in Bisesero. She was with seven other Tutsi. The assailants brought the Tutsi refugees close to a road, where they were told to sit down and stretch out. The Interahamwe then killed the other refugees. According to the witness, the orders to kill must have been given beforehand, but she noted that the Accused, who was an influential person, did nothing to stop the killings, which occurred in his presence. The witness did not see how each of the refugees was killed, but she heard their cries of pain before death. [265]

310. Witness BG stated that Mugonero, a member of the Interahamwe, asked the Accused to allow him to take away Witness BG so that he could “smell the body of a Tutsi woman”. According to the witness, this meant that he wanted to rape her. The Accused gave Mugonero permission to take the witness, and Mugonero drove her to his house, in Muramba in Gishyita Secteur, Gishyita Commune. During the next two days, Mugonero kept Witness BG at his house, under the guard of Interahamwe, and raped her “on three occasions”, before she escaped on 24 April 1994.[266]

Defence Evidence

311. Defence Witness DAB testified that Mugonero, a farmer had asked for Witness BG’s hand in marriage and that Witness BG had agreed to “go and live with him as his wife”.[267] Witness DAB stated that he visited Mugonero’s house the day after Witness BG had arrived, that he visited her every day while she was in the house, and that Mugonero did not rape Witness BG.[268]

312. According to Witness DAB, Witness BG left Mugonero’s house at the end of April or in early May. Witness DAB testified that Witness BG did not want to leave Mugonero’s house. However, an attack was launched by Interahamwe in Gisovu in the Gisagara Region, and Mugonero, who did not want his “wife” to be killed, escorted her to her parents’ house in Ambara, en route to the Congo. Witness DAB accompanied them. According to the witness, Mugonero provided Witness BG with pocket money. He also told the witness, “I will come and fetch her after the war”.[269]

313. Defence Witness DAC testified that, on 16 April 1994, while at home with his wife, they heard explosions from an attack launched against Mugonero Hospital. Witness BG, who worked in the maternity of the hospital, arrived at Witness DAC’s home at about 3.00 p.m. Defence Witness DAC testified that Witness BG stayed with Witness DAC and his wife for two weeks and that they tried to console her, as she was concerned about her family and her fiancé, Samuel Cyibitoki, whom she believed was dead.[270]

314. Witness DAC testified that Mugonero spoke with Witness BG on several occasions during the time that she resided with Witness DAC. According to the witness, Mugonero reminded Witness BG that he knew her from Kibuye, where he was friends with her father and cared for property at her father’s home. The witness testified that, on another occasion, Witness BG and Mugonero spoke together on the road for approximately an hour. Following this conversation, Witness BG informed the witness that she had agreed to become Mugonero’s “wife”, since her husband had been killed.[271]

315. According to Witness DAC, Witness BG desired to marry Mugonero. Witness DAC stated that Mugonero would not have forced Witness BG to marry him. According to the witness, Mugonero brought Witness BG clothes and allowed her to visit the church to pray. Witness DAC expressed the view that Mugonero could not have raped Witness BG.[272]

316. Witness DAC testified that, in response to BG’s request, he visited her parents. At that time, the witness found at home BG’s mother, who had been badly beaten, and learned that both BG’s father and her fiancé, Samuel, had sought refuge in the Congo. After receiving this information, Witness BG planned to leave Mugonero. According to the witness, Mugonero accepted that she should leave, because of criticism from his cousins about marrying a Tutsi. The witness also stated that Mugonero planned to come for Witness BG after the war. [273]

317. Witness DAC assisted Witness BG in escaping to the Congo. He changed her identity card and accompanied her by boat to Kibuye.[274]

Findings

318. In light of the evidence and submissions of the Parties, the Chamber finds credible Witness BG’s testimony that the Accused allowed an Interahamwe, Mugonero, to abduct and rape her.

319. The Chamber accepts Witness BG’s testimony that, on 22 April 1994, on a Bisesero Hill, she and other refugees who were in hiding were found by the Accused, Mugonero, and a group of Interahamwe. Mugonero asked the Accused if he could take away the witness so that he could “smell the body of a Tutsi woman”. It is apparent to the Chamber, from the witness’ testimony, that Mugonero’s words meant that he wanted to rape her. The Chamber finds that the Accused granted his request, following which Mugonero took the witness to his house in Muramba. There, the witness was kept in a locked room, with Interahamwe standing guard on the outside of the room, where the witness was raped several times until she escaped on 24 April 1994.

320. The Chamber notes the Defence contention that the witness voluntarily “married” Mugonero, who gave her protection. In support of this version of the incident, the Defence relied on the evidence of Witness DAC, whom the Chamber finds not to be a credible witness.

321. The Defence also challenges Witness BG’s credibility because of her inability to describe the vehicle in which she was taken to Mugonero’s house, her description of the size of the window in the room in which she was detained, and her escape through a window in the house, which was surrounded by Interahamwe.

322. Having considered the evidence and the Parties’ submissions, the Chamber finds Witness BG’s account of her abduction and rape credible and reliable. In light of the coercive circumstances prevailing in the Bisesero area at this time, the Chamber is not persuaded by the testimonies of Defence Witnesses DAB and DAC that Witness BG consented to “marry”, or cohabit with Mugonero, an Interahamwe, who had participated in killing other refugees who had been in hiding with the witness. The Chamber finds the testimony of Witnesses DAB and DAC implausible. In the Chamber’s view, the inconsistencies in Witness BG’s account of her abduction and rape, such as the circumstances surrounding her detention and eventual escape, are insignificant, and do not undermine the credibility and reliability of her evidence.

323. Accordingly, the Chamber finds that the Accused permitted Mugonero to take away Witness BG, knowing that he wanted to rape her. The Chamber further finds that Mugonero raped Witness BG several times in his house, as alleged in Paragraph 6 (d) of the Indictment.

O. Kanyinya Hill Attack, May 1994

Allegations

324. The Prosecution alleges that:

The Bisesero area straddles Gishyita and Gisovu Communes in Kibuye Prefecture. Following attacks on Tutsi civilians who had gathered in enclosed places throughout Kibuye prefecture between April and June 1994, thousands of Tutsi survivors fled to the open but steep and undulating hills of Bisesero as their last point of refuge. [275]

In May 1994 Mikaeli Muhimana along with Clement Kayishema, Obed Ruzindana, Interahamwe and gendarmes, searched for and attacked Tutsi civilians taking refuge in Kabakobwa, Gitwa, Kanyinya and Ngendombi hills in Bisesero area..