4. THE DEFENCE CASE

4.1 General admissions

4.2 The alibi

4.3 Further arguments

300. Musema pleaded not guilty to all counts of the initial Indictment at his initial appearance on 18 November 1997. Following amendments to the Indictment, Musema, on 20 November 1998 and 6 May 1999, pleaded not guilty to the new charges.
301. The Defence case comprised three general arguments:

1. that the Prosecution did not discharge its burden of proving Musema guilty;

2. that the Prosecution did not present sufficient evidence to satisfy the Chamber beyond reasonable doubt of Musema's guilt; and

3. that the Prosecution did not rebut the Defence alibi⁽¹⁾.

302. In support of these arguments, the Defence made a number of admissions and presented a defence of alibi as well as a number of further arguments. These are dealt with separately in the sections that follow.

4.1 General admissions

303. Musema made the following admissions pertaining to paragraphs 4.1-4.5, 4.9 and 4.11 of the Indictment.
     

Paragraph 4.1 of the Indictment

304. During the events referred to in the Indictment, Rwanda was divided into eleven Préfectures: Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-Ville, Kigali-Rural and Ruhengeri. Each préfecture was subdivided into communes which were divided into secteurs, and each secteur was divided into cellules.

Paragraph 4.2 of the Indictment

305. During the events that occurred in Rwanda between 1 January and 31 December 1994, the Hutus, the Tutsis and the Twas were respectively identified as racial or ethnic groups.

Paragraph 4.3 of the Indictment

306. On 6 April 1994, the plane carrying, among other passengers, the President of the Republic of Rwanda, Juvénal Habyarimana, was shot down on its approach to Kigali airport. In the hours that followed the crash of President Habyarimana's plane, violence set in and the massacres began in Kigali and in other préfectures in the country, marking the beginning of the genocide.

Paragraph 4.4 of the Indictment

307. From about 9 April 1994 through 30 June 1994, thousands of men, women and children sought refuge in various locations in Bisesero. These men, women and children were predominantly Tutsis and were seeking refuge from attacks on Tutsis which had occurred throughout the préfecture of Kibuye. The area of Bisesero spans over two communes in Kibuye Préfecture.

Paragraph 4.5 of the Indictment

308. The individuals seeking refuge in the area of Bisesero were regularly attacked, throughout the period beginning on or about 9 April 1994 and ending on or about 30 June 1994. The attackers used guns, grenades, machetes, spears, pangas, cudgels and other weapons to kill the Tutsis in Bisesero. The attacks resulted in thousands of deaths and numerous injuries to men, women and children within the area of Bisesero.

Paragraph 4.9 of the Indictment

309. By 13 May 1994, Tutsi civilians had sought refuge at Muyira hill located in Gisovu Commune, Rwamkuba Secteur. Musema further admits that a major attack against these Tutsi civilians occurred on 13 May 1994 at Muyira hill.
310. On 13 May 1994 at Muyira Hill, genocide was committed against the Tutsi population. Musema also admits that on the same day at Muyira Hill, murder, extermination and other inhumane acts occurred as part of a widespread or systematic attack against a civilian population on ethnic grounds.

Paragraph 4.11 of the Indictment

311. The interim government, sworn in on 9 April 1994 and composed solely of prominent Hutus, espoused the objective of extermination of Tutsis. Members of the interim government incited the population to eliminate "the enemy"and its "accomplices". Musema admits that some members of the interim government participated directly in the massacres. During the genocide, the FAR, particularly units of the Presidential Guard, the Para-Commando Battalion and Reconnaissance Battalion, in complicity with militia men, actively participated in the massacres of the Tutsi population throughout Rwanda.
312. In the years following independence, the political scene was dominated by people identified as Hutus. Those identified as Tutsis were excluded from senior positions in the civil service and the army.
313. Musema admits there were ethnic confrontations between the Hutus and Tutsis and that there was a mass exodus of the Tutsi minority from Rwanda into neighbouring countries. On several occasions individuals perceived and identified as Tutsis were the targets of oppressive treatment. For instance, a few days following the invasion of Rwanda on 1 October 1990 by the FPR (made up mainly of Tutsi refugees), Tutsi and any Hutu political opponents characterized as FPR accomplices were arrested by the MRND Habyarimana regime. Between 1990 and April 1994, according to Musema, the same regime assassinated certain political opponents and massacred many Tutsi civilians in the rural areas. The interim government that was established after Habyarimana's death was characterized by Hutu extremism and overt incitement to extermination of Tutsis and of the enemy and its accomplices. Prominent figures close to Habyarimana carried out propaganda campaigns via the radio and the press with the intention of ensuring widespread dissemination of hate propaganda, calls to ethnic violence, and extermination of Tutsis and their accomplices. The MRND party also organized and trained youth wings of the ethnically founded political parties, notably the Interahamwe (the youth wing of the MRND). The interim government executed the objective of exterminating the Tutsis and their accomplices by inciting the public to exterminate the Tutsis and their accomplices.
314. The military and militiamen set up roadblocks throughout Kigali. At the roadblocks, the identity cards of anyone wishing to pass were checked, and people were killed. Military patrols, often involving militia men, scoured the city to execute Tutsis and certain political opponents. Musema admits that all along the road from Kigali to Gitarama there were road blocks manned by individuals, some of whom were drunk, armed with machetes and other weapons. He admits that he saw many bodies by the road side and witnessed pillaging. Musema admits that the people who were killed at the roadblocks were so killed because they were accused of being Inyenzi, because they were Tutsis, or because they looked Tutsi.
315. The incitement to ethnic hatred took the form of public speeches by people sharing the extremist ideology.
316. During the months of April, May, and June 1994, in Gisovu and Gishyita communes, Kibuye Préfecture, in the Territory of Rwanda, genocide was committed against the Tutsi population. Musema admits that between 1 January and 31 December 1994, throughout Rwanda, there were widespread or systematic attacks, which were directed against a civilian population on the grounds of political persuasion, ethnic affiliation, and racial origin.

4.2 The Alibi

317. The Defence Case included the submission of an alibi defence. The Defence alleged that Musema was in locations other than those alleged to be crime sites, or was involved in activities other than those alleged during the times at which the crimes specified in the Indictment were allegedly committed. To support these claims, the Defence relied on three sources of evidence:

(a) the testimony of the Accused, supported by documentary evidence;

(b) the testimony of Defence Witnesses in support of the testimony of Musema;

(c) the testimony of Witnesses which tended to confirm the authenticity of certain documents.

318. The Chamber has already addressed the legal requirements of a defence of alibi⁽²⁾.
319. The arguments raised by the Defence in relation to the alibi were of two forms. Firstly, concerning the content of the alibi; secondly, in response to the Prosecutor's rebuttal of the alibi.
     

4.2.1 The content of the alibi

The whereabouts of Alfred Musema from 6 to 14 April 1994

320. Defence counsel argued that Musema was absent from the Tea Factory on 6 April 1994 and on subsequent days. This is based on a number of documents, including letters sent by Musema during that period to Rwagapfizi and Pletscher⁽³⁾. Musema testified that he was in Kigali, at the OCIR-Thé, from 1 to12 April, in Gitarama from 12 to13 April, in Rubona from 13 to14 April, and in Gisovu from 14 to 17 April. The Defence argued that even if Musema were present at the Gisovu Tea Factory at the time of the alleged crimes, this itinerary reveals that as Musema was not present in the early stages, he did not inspire the atrocities which had already begun.
321. Mrs Claire Kayuku, wife of Musema, testified that he was with the family in their house in Remera, Kigali, from 6 April to 12 April. She stated that they left Kigali on the afternoon of 12 April for Butare, but, due to difficulties at roadblocks, stayed a night in Gitarama. She stated that they left Gitarama on the afternoon of the next day, 13 April, and went to her mother's home in Rubona, 15 kilometres north of Butare.

The whereabouts of Alfred Musema from 14 to 22 April 1994

322. Musema testified that he went to the Gisovu Tea Factory on 14 April, 1994, with one soldier. Upon arrival he saw a number of bodies of employees and their families, including the body of the Chief Accountant, at the factory.
323. Musema testified that he spent 15 April at the tea factory until early 17 April when, learning that the factory was being attacked, he fled towards Butare and then to Rubona. Musema remained in Rubona until 22 April, except for two day-trips to Gitarama on 18 and 21 April, where he met with the Minister of Industry, Trade and Handicrafts and was told that he would be sent on a mission to contact the director-general of OCIR-Thé.
324. Claire Kayuku testified that Musema was with the family in Rubona on 13 April. On 14 April he went to Butare to look for an escort, returning very early on 16 or 17 April, having, in the meantime, visited the Gisovu Tea Factory. Musema told her that Annunciata was killed while he was at the factory.

The whereabouts of Alfred Musema from 22 April until the end of April 1994

325. The Defence Counsel submitted as evidence the Ordre de Mission of 21 April (Annex B), discovered at the Gisovu Tea factory by the Swiss Juge in 1995⁽⁴⁾. The Defence claimed that this document confirms the activities of Musema between 22 April and 7 May. Musema agreed that the documents referred to and the actual mission did not follow regular procedure, but stated that the deplacement of the government, and the unknown whereabouts of the OCIR-Thé Director-General, occurred as a result of the prevailing security situation in April 1994.
326. Further documents support that Musema undertook a mission to different tea factories, such as Pfunda Tea Factory in Gisenyi Préfecture, between 22 to 25 April⁽⁵⁾. He testified, supported by documentary evidence, that he remained in Rubona during 26 to 29 April, visiting Kitabi Factory on 28 April⁽⁶⁾. Reports from meetings of 29 and 30 April from Gisovu Tea Factory indicate that Musema was at the factory as part of his mission, and that he presented an authorisation to travel, dated 30 April, from the Préfet of Kibuye⁽⁷⁾. The Defence Counsel argued that was this document a forged document, Musema would not have mentioned his presence at Gisovu during this time period. Other documents also provide evidence of Musema's presence in Gisovu until 2 May⁽⁸⁾.
327. Claire Kayuku testified that her husband was in Rubona between 16 April and 22 April, travelling once or twice in that period to Gitarama, but spending every night at home in Rubona. According to her, Musema left for Gisenyi Préfecture on 22 April. He returned on 26 April.

The whereabouts of Alfred Musema in early to mid May 1994

328. Musema presented further documentary material, and oral testimony in support of his alibi defence for the month of May, 1994. The Defence submitted that between 3 May and 19 May, Musema visited Rubona, Butare, and Gitarama. The Ordre de Mission has stamps dated 3-5 May from Shagasha and Gisakura Tea Factories, and from Mata Tea Factory 7 May⁽⁹⁾. Musema testified that he spent from 5 to 19 May in Rubona, making one day trip to Mata 7 May, and that during such period he never set a foot near Kibuye Préfecture.
329. Defence Witness MG testified to having met Musema twice in Gitarama on dates, in late April or in early May, before 16 May, and Defence Witness MH testified to having met Musema in Gitarama on 10 May and in Rubona on 13 May, and Defence Counsel submitted documentary evidence that Musema was present in Rubona on and around 17 May⁽¹⁰⁾.

The whereabouts of Alfred Musema in mid to late May 1994

330. Following the Ordre de Mission, Musema returned to Gisovu on 19 May where he remained until 21 May, making a visit to Kibuye on 20 May.⁽¹¹⁾ Musema returned to Rubona on 21 May, where he allegedly stayed until 27 May. He allegedly returned to Gisovu on 27 May. The Defence presented letters to show that Musema was only present in Gisovu from 19 May to 21 May, dealing with documents for the months of April and May⁽¹²⁾. Together, the Defence claimed, these documents demonstrate Musema's absence from Gisovu during the period from 21 May to 29 May, as he had not dealt with administrative matters in his usual pattern.
331. Upon Musema's return on 27 May to Gisovu, he only remained there until 29 May, making a visit to Kibuye on 28 May, before leaving to Shagasha on 29 May. Musema remained in Shagasha until 30 May when he left for Cyangugu. On 31 May he left Cyangugu to visit Zaïre. Musema's Defence Counsel presented further documentary evidence in support of Musema's whereabouts for the end of May.
332. Claire Kayuku supported Musema's alibi concerning his whereabouts from the end of April until the end of May. She testified that he did not travel a great deal after 26 April, but according to her, he spent most nights in Rubona with her.

The whereabouts of Alfred Musema in June and July 1994

333. According to the testimony of Claire Kayuku, on 10 June, Musema went to the tea factory in Gisovu until17 June when he went to Shagasha. From Shagasha he visited his family in Gikongoro on 19 June, and left on 20 June for Gisovu and drove towards Gisenyi on 21 June. Claire Kayuku did not see him again until 24 July 1994, in Bukavu in Zaïre.
334. The Defence submitted documentary evidence and witness testimonies in support of the claims that Musema was at the Shagasha Tea Factory from 1 June to 10 June, in Gisovu on 20 June, and on mission to Cyangugu, Gikongoro, Butare and Gisenyi between 17 June and 17 July. When he returned to Gisovu, Musema responded to correspondence received throughout June, which allegedly indicates his prior absence.
335. The Defence introduced further documents as evidence that Musema was in Gisovu from 28 June until 25 July. On or about 4 July 1994, French troops arrived at the tea factory where they stayed until Musema's departure. Musema testified that he had no knowledge of what occurred on 16 July, after which many prominent leaders left Rwanda for Zaïre. The Defence submitted a letter, dated 18 July, from the French military, and correspondence from employees, dated 20 July. Musema testified that he replied to the letter from the French Army, thanking the soldiers for their protection, and that he surrendered his personal pistol⁽¹³⁾.
     

4.2.2 Arguments in response to the Prosecutor's rebuttal of the alibi

336. The Prosecutor argued that Musema's alibi is untruthful, and that the documents in the Swiss Files, including a personal calendar written by Musema (Annex C), along with the testimonies of the prosecution witnesses, provide a more accurate representation of Musema's true whereabouts during the relevant period.
337. The Defence presented several arguments to counter the Prosecutions rebuttal. The Defence argued that the Swiss Files are unreliable because of the circumstances and conditions of the Swiss interviews and investigations. Musema testified that during the first two interrogations conducted by Swiss officials he was not represented by counsel, and that at other interrogations he was represented only by a trainee lawyer; that he was not advised of his right to remain silent; that both he and his counsel were denied access to transcripts of the interviews and to his files; that he was pressured to sign every page of the transcript of the interviews without having read it; that the information recorded in the transcripts was at times inaccurate⁽¹⁴⁾; and that he produced the calendars and schedules without the assistance of his files (or dossier).
338. The Defence introduced four exhibits (D85, D86, D87, D88) to prove that Musema did not see his files until more than one year after his arrest. The Defence argued that the files are unreliable because not all interrogations conducted by the Prosecutions are admissible under the Rules.⁽¹⁵⁾
339. The Defence argued that documents provided by Musema to the Swiss juge d'instruction, are, by their nature, truthful. The Defence suggested that, if Musema had fabricated these documents with a view to providing a defence before any future criminal proceedings, he would have known the dates, nine months after the alleged incidents at Muyira Hill, when he provided dates to the Swiss juge d'instruction; he would not have given the juge a calendar placing him in Gisovu on 13 May if he had known what had happened there at that time; he would have fabricated a document specifically for 13 May 1994, instead of providing documents around that date⁽¹⁶⁾. The Defence further argued that the documents were reliable business records compiled during the normal course of every day proceeding. ⁽¹⁷⁾

4.3 Further arguments

4.3.1 The requirement that the Accused respond to Counts 7, 8 and 9 of the Indictment

340. The Defence argued that, pursuant to Articles 19(2) and 20(4)(a) of the Statute, and in accord with the spirit of the Rules, the Accused had no cause to answer on the amended or added counts 7, 8 and 9 of the Indictment, since the Indictment, as amended by order of the Chamber on 6 May 1999, was never served on the Accused. The last Indictment served on the Accused was the amended Indictment of 18 November 1998.
341. In relation to this argument the Chamber notes briefly:

• that in its Decision on the Prosecutor's Request for Leave to Amend the Indictment of 6 May 1999, the Chamber reminded "the Prosecutor of her obligation to immediately serve on the Accused and his Counsel the amended indictment in English and in French";
  
  
• that the fact that the Accused entered pleas of Not Guilty to Counts 7, 8 and 9 of the amended Indictment on 6 May 1999 is evidence that the Accused received and had knowledge of the amended Indictment; and
  
  
• that the failure to formally serve the Accused with the amended Indictment did not infringe his rights under Article 19 and sub-Article 20(4)(a) of the Statute.

342. The Chamber accordingly finds that the Accused does have a cause to answer on Counts 7, 8 and 9.
     
     

4.3.2 The authority of Alfred Musema

343. The Defence argued that Musema's political activity was minimal, and that the prosecution failed to produce evidence to support Witness W's claim of Musema's involvement in the regime's politics. Musema testified that he was never involved in political activities at school or at University, but that, like other Rwandan citizens, he was a member of the MRND. He admitted that his father-in-law was a member of Parliament. Musema testified that he was the Director of Gisovu Tea Factory, but denied being the eyes and ears of the government in Gisovu or Kibuye because of his position as director. The Defence argued that the Prosecutor produced no evidence to establish that Musema was an influential person in Kibuye Préfecture, or to show that he exercised civic authority.
344. The Defence argued that the nature of Musema's appointment as Director of Gisovu Tea Factory was not conclusive evidence of any association with the government regime. While Musema's appointment by Presidential decree to this position was unusual, it was not unique insofar as one other tea factory director was appointed during the same period by Presidential decree. Since no other tea factory directors were appointed subsequently, it is unclear whether this was a new form of procedure being adopted for such appointments⁽¹⁸⁾.
345. The Defence argued that Musema was a dedicated businessman and nothing more. Musema testified that the Gisovu Tea Factory, one of the top tea factories in Rwanda traded on the London tea market. Defence Exhibit 11, a table of figures from Wilson Smith & Co., was tendered by the Defence as evidence of the quality of tea produced by the factory.
346. Musema testified that although the factory was situated in Kibuye, his zone of responsibility as Director spanned two préfectures, Kibuye and Gikongoro. He stated that the bourgmestre and préfet had no influence on the management of the tea factory. The only influence either the bourgemestre or the préfet might exert was in the recruitment of family members for employment. Musema testified that the tea factory was not the largest employer in the region and that his position as a director was not political. He explained that two trips between 1984 and 1994 to the Kenya Tea Development Authority and to Morocco were not related to politics⁽¹⁹⁾.
347. Claire Kayuku testified that Musema, as Director of the Tea Factory, was an influential person in the area. However, he was not part of the interim government, politically or in any other manner.

4.3.3 Arguments concerning the reliability of evidence

348. The Defence argued that much of the Prosecution evidence was unreliable.
349. The Defence argued that much of the investigation, which is the basis of the Prosecution's evidence, was unreliable. Specifically, the Defence challenged the absence of forensic and real evidence, and the Prosecutions failure to introduce relevant evidence from the Gisovu Tea Factory, which the Defence later presented⁽²⁰⁾.
350. The Defence also challenged the testimonies of Prosecution witnesses whose memories were affected by the passage of time. The Defence also argued that witnesses mistakenly identified Musema by erroneously associating him with vehicles and employees of the tea factory⁽²¹⁾.
351. The Defence contended that documents may be more reliable than oral testing to re-establish events which occurred many years ago, especially when such documents relate to the ordinary affairs of an individual. The Defence argued that the passage of time impeded the Musema's defence, since documents may disappear, and access to evidence may become limited⁽²²⁾.
352. The Defence argued that many of the documents on which Musema relied where intended only as a means of refreshing his memory. The Defence contended that Musema may have made errors concerning dates when he drafted the documents for the Swiss juge d'instruction, but only the specific dates, not the events were in error⁽²³⁾.
353. The Defence argued that the Prosecutor's allegations that Musema lied are untrue and irrelevant. The Defence claimed that inconsistencies may have arisen not because Musema intentionally lied, but because he was merely mistaken in his recollections. The Defence further argued that, even if the Chamber were convinced that Musema did lie, the Chamber should not necessarily conclude that he is guilty. The Defence argued that Musema might, should he be lying, have many "innocent" reasons for doing so.⁽²⁴⁾

1. See Defence Closing Argument, 28 June 1999