Prosecutor v. Muhimana, Case No. ICTR- 95-1B-T, Judgment and Sentence (Apr. 28, 2005).
Tribunal pénal international pour le Rwanda
Before: Judge Khalida Rachid Khan, Presiding
Judge Lee Gacuiga Muthoga
Judge Emile Francis Short
Registrar: Mr. Adama Dieng
TRIAL CHAMBER III
Case No. ICTR- 95-1B-T
JUDGEMENT AND SENTENCE
Office of the Prosecutor:
Mr. Charles Adeogun-Philips
Mr. Wallace Kapaya
Ms. Renifa Madenga
Ms. Maymuchka Lauriston
Counsel for the Defence:
Professor Nyabirungu mwene Songa
Me Kazadi Kabimba
TABLE OF CONTENTS
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
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”).
The Tribunal has the authority
to prosecute persons responsible for serious violations of international
humanitarian law committed in the
Mikaeli Muhimana, also known as
Mika Muhimana, was born on
The Accused was arrested on
The Indictment, as amended on
The trial of the Accused commenced
Closing Arguments of both the
Prosecution and the Defence were heard on 18, 19, and
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.
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
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. 
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." 
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
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. 
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. 
Prosecution Witness AP, a Tutsi woman, testified that, on
18. Witness AP testified that, the same day, at approximately , 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”. Amongst the voices coming from inside the house, the witness also recognised the voice of Bourgmestre Sikubwabo, telling the girls to “shut up”.
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”. 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. 
20. Defence Witnesses DN, TQ14, TQ1, DR,  DI, NT1, TQ13,and DJ  testified that they did not hear about any rapes committed by the Accused in his house in April 1994. Defence Witnesses NT1, DR, and TQ13 further testified that under Rwandan culture it is not “possible” for a married man to rape someone in the matrimonial home.
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
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.
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
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. The Chamber finds this challenge to be irrelevant, since the Revised Amended Indictment does not mention the victims’ ages.
The Chamber finds that the mere
fact that several Defence witnesses did not hear of rapes committed by the
Accused in his house on
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
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. The Prosecution contends that the witness gave an adequate explanation for this discrepancy.
In her statement of
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. 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
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.
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.
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.
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.
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.
Prosecution Witness AW testified that,
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”. The witness testified that among those killed in the attack were Rwagasana, Rwakayiro, Gasana, and women and children.
Prosecution Witness W testified
that, on the morning of
42. Witness W testified that later that same day, at around , people from the Bisesero region came to assist the assailants. Finally, the assailants withdrew to Dukoni and the refugees went to Rurebero Hill. The assailants remained at the base of the hill, separated from the refugees by a coffee farm.
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
Witness W testified that the
Witness W testified that, on
Witness W stated that the
attack at Kiziba, on
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. 
Witness W testified that, still
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
Prosecution Witness BB
testified that, on
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. 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.
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”. 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. 
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
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". The assailants
waited until the Hutu departed and
then they started shooting at the remaining Tutsi
Defence Witnesses DM, TQ13, TQ1, and
NT1 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
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. 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. 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.
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,
On the basis of the testimonies
of Witnesses W and AW, the Chamber finds that, between 8 and
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
The Chamber finds that in the
first attack, which began in the morning of 8 or
The Chamber finds that, on
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.
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”.
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.
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
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.
The Chamber rejects the Defence
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
The Chamber further finds that,
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
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.
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.
Defence Witness TQ13 testified that he
neither saw Charles Sikubwabo or Obed Ruzindana in Gishyita on
Defence Witnesses TQ14, DJ and
NT1 testified that there were no meetings held on
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.
Defence Witness DS, who lived close to
the Accused’s house, testified that, on
Defence Witness DR testified that, on
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”.
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 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
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.
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.
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 She testified that each rape lasted between 30 minutes and one hour, during which the Accused was always completely naked.
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.
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.
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 , without Esperance. After this event, Esperance was never seen again, and the witness deduced that she had been killed by the Accused.
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. 
95. Defence Witness DA testified that she never heard that Muhimana raped any woman in his house during the period that she lived there.
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.
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
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. 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. 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. 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. 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.
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
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.
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
111. The Prosecution alleges that:
Between 8 and
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.
Prosecution Witness AV testified that she
sought refuge, on
Prosecution Witness AF testified that he sought refuge “from the genocide” at Mubuga
Catholic Church on
The witness said that, on
Defence Witness DA testified that, on
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.
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.
Defence Witness DF testified that, as of
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. 
Defence Witness DC testified that he
fled alone towards
Events Prior to the Attack on
In relation to the events
alleged to have occurred at
The Chamber finds that Witness
AF convincingly narrated a sequence of events, commencing on
The Defence submits that there
are inconsistencies between Witness AV’s and AF’s accounts of the events leading
up to the attack on
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.”
Preparation for an Attack
The Chamber notes that the
Defence does not dispute that many members of the civilian population sought
The Indictment states that,
between 8 and
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
Based upon the clear and
consistent testimony of Witness AV, the Chamber finds that the Accused visited
the premises of Mubuga Catholic Church on
Looting of the CARITAS Food Stores
The Chamber finds the
eyewitness testimony of Prosecution Witness AF, who observed the Accused on
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
Based upon the testimony of Witness
AF, corroborated by that of
I. Attack Of
133. The Prosecution alleges that:
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.
course of an attack on Tutsi civilians
seeking refuge in Mubuga Catholic Church on
Prosecution Witness AF testified that,
during the night of
The following morning, on
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.
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
Prosecution Witness AV
testified that, on 15 April, at , she was inside
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.
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 , 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.
Defence Witness DD testified that, on
Witness DD stated that during
the night of
Witness DD fled to Bisesero
Defence Witness DF confirmed that
Defence Witness DL testified that he heard
about the massacre at
Witness DL testified that
regarding the attacks on
Defence Witness DZ testified that, at
about , armed gendarmes gathered about eight hundred Hutu men from the centre of Ryaruhanga Cellule and forced them to go to
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”.
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.
Defence Witness DAA testified that the Tutsi took refuge in
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. 
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.
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.
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
Distribution of Weapons and Attack on the Church
Based on the evidence of
Witness AF, as corroborated by the evidence of Witness AV, the Chamber finds that, on
the morning of
However, the Chamber is not
convinced that the Accused played a leadership role in the attack on
Furthermore, the Chamber finds
that the Prosecution has failed to prove that, between 14 and
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.
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 and 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 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
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 , and the witness testified that she left her hiding place in the church at 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
Based on the testimony of
Witness AV, which the Chamber has previously found credible, the Chamber finds
that, at approximately
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
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. 
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.
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.
169. In its Pre-Trial Brief, the Prosecution summarises the anticipated testimony of Witness AV as follows:
Prosecution Witness AV testified that,
at about on
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". 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".
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
173. Defence Witness DAA stated that, prior to his imprisonment
Defence Witness DC testified that, on
the evening of
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
Witness DL testified that he
never heard of women being raped at
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
DF testified to
seeing girls, who had taken refuge in the presbytery of
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.
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.
Defence Witness DG stated that, during
the night of 14 and
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”. 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.
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.
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.
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.
Defence Witness DD testified that he
Witness DD testified that at
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.
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
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.
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
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: 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”. 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. 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.
On the basis of Witness AV’s
testimony, the Chamber finds that, on
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.
The Chamber finds the Defence
evidence presented in rebuttal of this allegation that the Accused raped Agnes
Mukagatere to be unconvincing. Witnesses
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.
The Defence presented evidence
regarding the death of the Accused’s son, the mourning period, and the funeral
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,
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.
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.
210. The Prosecution alleges that:
Between 14 and
211. Prosecution Witness BI stated that, on 13 or
Witness BI testified that,on
the following day,
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.
Defence Witness TQ28, who was present at
Mugonero Complex, in Ngoma around
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
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
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.
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
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. 
Witness ARI testified that he
did not see Maria or Mariana at Mugonero Hospital Complex, where he remained
until the evening of
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 TQ8 said that he and
some young persons passed by the
Abduction and Rape
223. The Chamber accepts the evidence that the Accused, Sikubwabo, and Gisambo took Josiana, Martha, and Mariana away in a vehicle. 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,
226. The Prosecution alleges that:
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
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.
Witness BG testified that a
number of “influential people”, who arrived on board several vehicles at , led an attack at Mugonero
Complex on the morning of
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
Witness BG testified that the Interahamwe pursued the refugees to
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.
Prosecution Witness AT testified that,
Prosecution Witness AU testified that
one Saturday around ,
“the war began”. Assailants attacked
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 and ended at ” The witness stated that the Tutsi refugees were successful in repelling the assailants until Interahamwe and military reinforcements arrived.
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.
Defence Witness ARI stated that he
Because of persistent rumours
of an imminent attack on
Witness ARI testified that, on
Defence Witness TQ28 testified that the
day after President Habyarimana’s death,
According to Witness TQ28, on
arriving at CCDFP, on
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
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,
Defence Witness DK testified that he
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.
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
The Defence submits that
because of Witness BG’s conflicting prior written statements, dated
According to the Defence, a
discrepancy exists between Witness BG’s first written statement of
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.
Defence Witness AR1 testified
that he was not at Mugonero Complex at the time of the attacks on
Defence Witness TQ28
acknowledged that he was not at Mugonero Complex at the time of the attack on
Defence Witnesses DS and DK
were not eyewitnesses to the crimes committed at Mugonero Complex on
On the basis of evidence
presented by both Prosecution and Defence witnesses, the Chamber finds that,
between 9 and
On the morning of
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.
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
260. Consequently, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegations in Paragraph 5 (c) of the Indictment.
and Murders at Mugonero Complex,
Rape and Murder of Mukasine Kajongi
261. The Prosecution alleges that:
Prosecution Witness AT testified that,
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.
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. 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.
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.” 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.”
Defence Witness TQ28 testified that he
neither saw anyone committing acts of rape nor heard of anyone having come to
Defence Witness TQ7 testified that it
would have been impossible to commit rape in April 1994, at
Defence Witnesses AR1 and TQ28 both
testified that Kajongi’s daughter, Joy Mukasine, was a student at
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.
The Defence points out that
Witness AT recollected the rape of Mukasine Kajongi for the first time in his
written statement of
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
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.” 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.
At the same time and in the
same area where the Accused raped Mukasine Kajongi in the basement of
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
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
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
278. The Prosecution alleges that:
Prosecution Witness BH testified that,
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”. 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”. 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.
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. 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
283. The Prosecution alleges that:
Prosecution Witness BJ testified that,
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”. Witness BJ testified that the Accused ordered the girls to follow the three men to another room which contained three beds. 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”. 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.
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. 
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
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
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.
The Chamber finds that, on
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
293. The Prosecution alleges that:
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.
Witness AU testified that she
and other refugees fled from an attack at
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.
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”. 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 , proceeding toward
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” 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.
Defence Witnesses AH7 and TQ28 both testified
that they were unable to confirm that any rapes had been committed at
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.
On the basis of Witness AU’s
testimony, which the Chamber has found credible, the Chamber finds that on
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.
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
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.
Rape of Witness BG,
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.
Prosecution Witness BG testified that,
during the night of
Witness BG testified that, on
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
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”. 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.
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
Defence Witness DAC testified that, on
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.
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.
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
Witness DAC assisted Witness BG
in escaping to the
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.
The Chamber accepts Witness
BG’s testimony that, on
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.
324. The Prosecution alleges that:
The Bisesero area straddles Gishyita and Gisovu Communes in