Musema

5. FACTUAL FINDINGS

5.1 Context of the events alleged

Paragraphs 4.1, 4.2 and 4.3 of the Indictment, under the heading "A concise statement of the facts", contain allegations on the general context in Rwanda in 1994, as well as general elements of the crimes which the Accused is charged with committing.
Musema admits that during the relevant events, Rwanda was divided into eleven Préfectures, one of which was Kibuye, as alleged in Paragraph 4.1 of the Indictment.
Musema admits that during the relevant events, Tutsis were identified as members of an ethnic or racial group, as alleged in Paragraph 4.2 of the Indictment.
Musema's admissions also include the fact that for many years prior to 1994, the Tutsis, like the Hutus and Twas, were perceived and identified as an ethnic or racial group and that the Tutsis were the targets of discrimination and killings as such, which prior to 1994 stemmed from the socio-political situation in Rwanda. As noted under "General Admissions" (supra),⁽¹⁾ Musema admitted that in the years following independence, the political scene was dominated by people identified as Hutus. The targeting of the people identified as Tutsi for oppression and discrimination also involved their exclusion from senior positions in politics, the civil service and the army, their arrest and detention and, toward 1993, the overt incitement to violence and extermination of the Tutsi group.
In addition to that, Musema admits that in 1994 widespread or systematic attacks were directed against civilians on the grounds of ethnic or racial origin. Musema testified that the massacres in 1994 were targeted and directed against the Tutsi civilians not as individuals but as members of the said group.
Musema admits that on 6 April 1994, the plane transporting President Juvénal Habyarimana of Rwanda crashed on its approach to Kigali airport, Rwanda and that attacks and killings of civilians began soon thereafter throughout Rwanda, as alleged in Paragraph 4.3 of the Indictment.
Musema testified that while in his house in Kigali, he heard and saw the shots aimed at the plane, heard an explosion, although he did not see the plane crash, nor was he aware of those who were on board. The following day, on RTLM, he learnt of the crash and of those on board. He also admitted the occurrence of this incident and the inception of violence in Rwanda soon thereafter. Musema testified that in the days following the plane crash he witnessed massacres, the destruction of houses and the displacement of people from Kigali. Musema admitted that in the hours following the crash of the President's plane, violence set in and massacres began in Kigali and other préfectures in the country, marking the beginning of massacres described by him as a genocide. As he travelled between Kigali and Gitarama during the time of the massacres, he saw individuals manning roadblocks. These persons separated people they identified as Tutsi or those accused of being Inyenzi by asking for identity cards which indicated the ethnic group of the holders. Musema stated that these persons manning the roadblock threatened him and his family with death. At the roadsides he saw many bodies. He stated that the victims of the massacres were killed, because they were Tutsis (so-called Inyenzi) or because they looked Tutsi or because they were accused of helping the Tutsis. The majority of the victims were Tutsis. Musema stated that the victims included Tutsi children, who naturally could not have been among the FAR or FPR fighters.
In light of these admissions, these facts are not in dispute. The Chamber finds, therefore, that the allegations set forth in Paragraphs 4.1, 4.2 and 4.3 of the Indictment have been established beyond reasonable doubt.

5.2 Massacres in the Bisesero region

Paragraphs 4.4 to 4.6 and 4.11 of the Indictment charge Musema for his involvement in massacres which occurred in the region of Bisesero from 9 April 1994 until 30 June 1994. They read as follows:

"4.4 The area of Bisesero spans two communes in Kibuye Prefecture. 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 Prefecture of Kibuye.

4.5 The individuals seeking refuge in the area of Bisesero were regularly attacked, throughout the period of about 9 April 1994 through about 30 June 1994. The attackers used guns, grenades, machetes, spears, pangas, cudgels and other weapons to kill the Tutsis in Bisesero.

4.6 At various locations and times throughout April, May and June 1994, and often in concert with others, Alfred Musema brought to the area of Bisesero armed individuals and directed them to attack people seeking refuge there. In addition, at various locations and times, and often in concert with others Alfred Musema personally attacked and killed persons seeking refuge in Bisesero.

4.11 The attacks described above resulted in thousands of deaths and numerous injuries to the men, women and children within the area of Bisesero in Gisovu and Gishyita communes, Kibuye Prefecture."

As already developed by the Chamber in the section on the General Admissions of the Defence⁽²⁾, it is not contested that regular attacks occurred in the Bisesero region from 9 April 1994 until about 30 June 1994. The victims were thousands of men, women and children who were predominantly Tutsis and who had sought refuge in the Bisesero region. The attackers were armed with guns, grenades, machetes, spears, pangas, cudgels and other weapons. Thousands of Tutsis were killed, injured and maimed. On 13 May 1994, thousands of Tutsis who had sought refuge on Muyira hill in Gisovu Commune, Rwankuba Secteur, were subjected to a major attack and massacred.

The Defence, however, denies the involvement, whether by direct participation or by aiding and abetting in the execution of these massacres, of Musema. Reliance is placed upon the alibi and on the lack of credibility of the Prosecution witnesses testifying on these allegations.

The evidence adduced by the Prosecutor in this case concentrates on a number of specific massacres mainly in the Bisesero region, in which Musema is said to have participated. The Chamber shall deal with these matters in a chronological manner along with any other sightings and movements of Musema.

April and May 1994

A number of witnesses testify they saw Musema in April and May 1994 participate in massacres against Tutsi civilians.

The position of the Defence is that Musema went to Rubona from Gisovu by 17 April and that he was then, from 22 April, on mission visiting a number of tea factories and thus was not present at the locations referred to by these witnesses. Support for this alibi stems in the main from exhibit D10, an "ordre de mission" (mission order), which was said to be issued to Musema in Gitarama, and then stamped, signed and dated at each tea factory he visited. Other documents and a number of witnesses were also presented by the Defence as further evidence of the movement of Musema. The Prosecutor submitted that this mission order had been falsified so as to hide the extent of Musema's involvement in the massacres which occurred in the Bisesero region.

For the sake of clarity, in view of the complexity and number of issues which arise from the pertinent evidence during this period, the Chamber will first recall the testimony of prosecution witnesses relevant to massacres as they occurred in a chronological manner. The Chamber will then deal with the alibi presented by Musema, after which the factual findings will be made.

•Gisovu Tea Factory, 15 April 1994

The Chamber notes that evidence presented during trial, namely the testimony of two Prosecution witnesses and Musema, relate to the alleged killing of a number of children at the tea factory. The Chamber is of the opinion that this evidence was unclear and inconsistent, and moreover, the events are not specifically averred to in the Indictment. As such, the Chamber shall not make any findings on these allegations.

•Muko and Musebeya Communes, 15 April 1994

Prosecution Witness BB testified as to the whereabouts of Musema on 15 April 1994. The witness, who was based at the Gisakura Tea Factory in 1994, was not physically at this tea factory between 12 and 24 April 1994, as he was hiding in the communes of Muko and Musebeya. He heard that, on 15 April, the director of the Gisovu Tea Factory was seen in the communes of Musebeya and Muko at the wheel of a Daihatsu truck transporting individuals armed with spears and machetes. He received this information from workers from Gisakura and Muko.

•Karongi hill FM Station, 18 April 1994

Prosecution Witness M testified that, on 15 April 1994, his mother, his three children and himself went to the Karongi hill FM station, which he identified in exhibit 20.18. According to the witness, the hill is about 2000 metres high, with only one access road to the top. They hid there with friends of his who were guards at the FM station. On 18 April, he saw Musema lead a meeting of approximately 150 people. Some of these people came on foot whereas others, about 80 people, including Musema, had arrived aboard two vehicles, both Daihatsus, each bearing the inscription "Usine à thé Gisovu". The witness recognized the driver of the Daihatsu transporting Musema and knew him to be an employee of the tea factory.
The witness stated that he was hiding in the guard's hut 10 metres away from where the meeting had convened and was able to see everything through holes in the walls of mud and wood. The hut was three metres by four metres, with one main door, no windows, was split into two rooms and was used by the guards while working at the FM station. He saw people from Gisovu and Mwendo, having first spotted them as the vehicles had commenced the ascent of the hill while he was at the summit. Most of the people at the meeting wore banana leaves and grass on their heads. Musema wore a sports tracksuit. Certain employees of the tea factory were dressed in blue "Usine à thé" overalls. Musema was carrying a medium length gun and a small number of other people were also carrying weapons, namely machetes, clubs and some rifles. The witness was only able to recognize Rekayabo, a communal policeman from Gisovu Commune, and Munyanziza, unemployed and a member of the MRND, because he was too scared and he could not observe very well.
According to the witness, Musema addressed those who had convened in Kinyarwanda, telling them to rise together and fight their enemy the Tutsis and deliver their country from the enemy. Questions were put to him by the crowd, asking what would be their rewards considering that they might lose their lives in this war. Musema answered that there would be no problem in finding rewards, that the unemployed would take the jobs of those killed, and that they would appropriate the lands and properties of the Tutsis. He stated that those who wanted to have fun could rape the women and girls of the Tutsis without fearing any consequences. The crowd applauded Musema. Musema then told the crowd to be patient and wait for all those who had hidden to come out and go to the camp where the Tutsis had sought refuge.
Witness M went on to state that, at this point, Musema asked the witness' friend, the only guard then on duty at the Station, to hand over rifles and ammunition as the crowd wanted to attack the camp on that very day. It was common knowledge that there were weapons at the Station. The guard hesitated in complying, saying that there was a need to get authorization from the commander of Kibuye. Musema shouted at him, telling him that it was a crime not to hand over weapons to defend the country and that if the commander knew of this refusal, the guard could be severely punished.
The witness stated that he observed that the guard, unaccompanied, then went to the hut to collect the rifles and ammunition. According to the witness, the Lee Enfield rifles and ammunition were stored in the room next to the one in which he was hiding. The ammunition was stored in a metallic box against a wall. In the same room were a few pots and pans, foodstuffs and a large folded military tent. The bed was simply grass strewn onto the floor. He described that on walking into the hut, one would first see stones on which the cooking was carried out. Witness M was in the first room and his family were in the adjoining room with the ammunition and rifles. When the guard came to collect the rifles, the witness joined his family in the other room, the walls of which he was unable to see through. When the guard left, closing the front door behind him, the witness went back into the front room so that he could see what was happening outside.
According to the witness, the guard then gave Musema the two Lee Enfield rifles and some ammunition, and showed him how to use the weapons, and then loaded bullets into the magazine. Musema and the crowd left immediately thereafter in the direction of the Gitwa "Tutsi" refugee camp. During the whole meeting, none of those who had gathered at the top of Karongi hill had gone to the hut to see what or who was inside.
Witness M concluded his testimony in this regard by stating that he saw Musema, in the company of two policemen from the factory, stay with the vehicles which were parked away from the camp so that they would not be damaged if the refugees pushed the attackers back. The rest of the attackers went towards the refugee camp in Gitwa, Rubazo Secteur, Gitesi Commune. According to the witness, who had an electronic watch, the attack commenced between 12:30hrs and 13:00hrs and finished around 15:00hrs. The victims were mainly the refugees. After the attack, Musema left Gitwa with the attackers who had come from different regions. Some were on foot, others aboard vehicles.
During cross-examination, witness M affirmed the testimony he had given in direct examination. He provided further details regarding the hut, access to the Karongi hill FM Station and other physical aspects of the locality. Witness M also confirmed that he was able to see and hear the meeting and that he saw Musema, as he had testified in direct examination.
•Near the Gisovu Tea Factory, on or about 20 April 1994
Prosecution Witness K, who hid in tea plantations in Twumba, in the Gitabura Secteur from 8 April 1994 for two weeks, stated that he saw Musema during this period transporting assailants to the Bisesero region.
Questioned as to his hiding place during this period, the witness specified that he was in the "villageois" tea plantation, which he identified on the left hand side of photo exhibit P27.1. However, when asked to point out in the same photo the Gikongoro road about which he testified, he was unable to do so, indicating rather that it would be easier for him to be on the terrain as it was not very clear from the photo.
Witness K went on to say that in April 1994, he saw Musema in his Pajero driving in front of a tea factory Daihatsu going in the direction of Gikongoro. Aboard the Daihatsu, a person using a microphone was calling for others to come to help as the tea factory had been attacked by Inyenzi. The Witness said that "Inyenzi" meant "Tutsis" and that in April 1994 the tea factory had not been attacked by the Tutsis. According to the witness, this was a way of assembling at the tea factory people from Gikongoro and tea factory workers so as to take them to Bisesero.
When questioned as to how he knew the vehicles were going to Gikongoro, the witness stated that he first saw Musema as he returned from Gikongoro with a vehicle loaded with persons armed with spears and clubs. On arriving at a bridge where there was an "arc de triomphe", Musema showed them the road to take while he went up to the factory. The witness testified that they were singing "Let's exterminate them, let's finish them from the forest in which they are hiding". The witness added that he was able to see all of this from the tea plantation in which he was hiding. After the vehicle from Gikongoro had been to the tea factory, all three tea factory Daihatsus went to Bisesero. The vehicles were identifiable as belonging to the tea factory as they bore the inscription "Usine à thé Gisovu".
Amongst those who were taken to Bisesero, Witness K said he recognized employees of the tea factory. The names of these people form part of exhibit P35. Only a certain Mushoka was armed; the others were dancing in the back of the vehicle. The witness added that there were also Twas with them and that they were armed with spears and clubs.
According to the witness, after the attack in Bisesero, certain of the people from Gikongoro were on foot and had cattle and crops in their possession. Musema was travelling in front of the Daihatsu. The witness indicated that fewer people returned from Bisesero than had gone there. The vehicles then parked at the tea factory.
The Chamber notes that it became apparent during the proceedings that there exist discrepancies between the witness' testimony and previous statements he had made to the Prosecutor and to the Swiss authorities. In his statement of 13 October 1995, Witness K stated that for three days from 7 April 1994, there were killings in Gitabura, after which he went to Bisesero. Thus, no mention of the tea plantation. The witness denies having stated this and reaffirmed that he went to the tea plantation on 8 April 1994 where he stayed for two weeks, and then he went to Bisesero. He explained that the investigator must have presumed that everyone sought refuge in Bisesero which would explain why in the statement it was indicated that he had gone to Bisesero after three days.
In his statement of 17 June 1995 to the Swiss authorities, Witness K said that he had stayed in the tea plantations from 8 April to 20 May 1994. In responding to questions on this statement, the witness testified that the date of 20 May should rather be 20 April.
The Chamber notes that the date of 20 May 1994 is mentioned seven times in the statement, while there is no mention of 20 April 1994.
The witness then explained that although the statement read that he did not see Musema before "20 May", it should actually read "20 April". In answer to the next question, he confirmed that he had seen Musema before 20 April 1994.
Furthermore, in the statement, the witness says that he remembered the date of 20 May as he had written it on a piece of paper, and that he had not seen Musema prior to that date. He added that this note was in actual fact the one he referred to as regards 13 May 1994, being the note he had found amongst cadavers after an attack, and which had been read by many people. Witness K continued by explaining that on 20 May he did see vehicles, and that as he was on a hill in the rain he had not written the date but had memorized it. Thus the verb "to write", he stated, should read "to memorize".
In his statement of 17 November 1998, the witness had asked for the date of 20 May 1994 to be changed to 20 April 1994 in his statement of 17 June and 13 October 1995.
•Gitwa Hill, 26 April 1994
Witness M is the sole prosecution witness to have specifically testified about an attack which occurred on Gitwa hill on 26 April 1994. The witness who had been hiding in a hut at Karongi hill FM station, as discussed above, left his hiding place on 20 April 1994 having been told by his friend that other guards were coming to the FM station to replace those who had left their posts. He and his family hid in the bush.
Witness M told the Tribunal that on 26 April 1994 he witnessed an attack led by Musema. The attack started between 12:00hrs and 12:30hrs on Gitwa hill where the refugees had assembled. A total of eight vehicles, three Toyotas and a Suzuki belonging to the Gasenyi school group, two yellow MINITRAPE vehicles, and two Daihatsus from the Gisovu Tea Factory came to the hill. According to the witness, in addition to those in the vehicles, the people on the road and paths going to the hill numbered the same as people coming out of a stadium after a great event, "a manifestation".
Witness M said he saw Musema aboard one of the Daihatsus with tea factory workers wearing blue uniforms. He was carrying a firearm, while the other attackers bore traditional weapons and were dressed in banana leaves and grass belts called "Umuhurura"⁽³⁾ in Kinyarwanda. The attackers killed with a determination unlike before to such an extent that, apart from a few men, no woman or child was able to survive. Musema and others shot into the crowd as such, individuals fell as they fled. Thousands were killed, including many of the witness' relatives.
The witness said he knew that the attack took place on 26 April as he had consulted his electronic watch which worked during that period. He explained that as this was the biggest attack he had seen, he consulted his watch so that he could remember the date while alive. He had also consulted his watch during the meeting of 18 April 1994, as he had done for all other important events. However, when questioned as to the date of his statement (in fact 13 January 1999), the witness recalled that it was in January but was not sure of the precise date.

•End of April - beginning of May
Witness F testified that, between 17 and 30 April 1994, assailants coming on the one hand from the commune of Gishyita, and, on the other hand, from Gisovu, converged on Muyira hill. Amongst the Gisovu group he saw Ndimbati, bourgmestre of Gisovu Commune, Eliezer Niyitegeka, Minister of Information, and the Director of the tea factory in Gisovu. The witness testified that the assailants were pushed back after the first attack but returned after 30 minutes to launch a second attack. He specified that it was during this second attack that he saw Musema amongst the assailants. Musema shot at refugees who had surrounded a policeman, and then ran away to his car, which was red. The witness affirmed that Musema was carrying a black rifle of medium length.
Witness R testified about an attack which took place around the end of April, or the beginning of May, on Rwirambo hill opposite Muyira hill in Bisesero, during which he was injured.
He explained that this attack started in the morning and came from Gisovu. The leaders of the attack were Aloys Ndimbati, the bourgmestre of Gishyita, and Musema, the Director of the tea factory. Musema, who was armed with a rifle of unspecified length, was within rifle range of the witness. Musema had arrived in his red Pajero, followed shortly afterwards by the vehicle of Ndimbati. Other vehicles seen by the witness were 4 tea factory Daihatsu "camionettes" aboard which were Interahamwe. The witness was able to identify the Interahamwe as they wore blue uniforms, on the back of which was printed "Usine à thé de Gisovu". Two of the camionettes were green, one was yellow and one was white. All had "Usine à thé Gisovu" printed on their side panelling.
The witness said he saw that the attackers were armed with clubs, rifles and spears. While in a nearby valley looking for water, Witness R was injured from a shot which came from the direction of Ndimbati and Musema. In cross-examination he described how he was injured on Rwirambo hill, which is two hills and a river away from Muyira hill. The hill was next to the road going to Gishyita from Gisovu.
Witness R explained that as the attackers arrived, the refugees fled in two groups. He fell behind as he was weak from lack of food, and was shot in the arm near the elbow, the bullet entering the front of his body and exiting behind as he had turned to look at the attackers.
In cross-examination, Witness R confirmed that he had already testified in the Kayishema and Ruzindana case. Defence Counsel indicated that he appeared under the pseudonym "JJ" on 13 November 1997. During his testimony in that case, the witness had advanced the date of 29 April as that on which he had been injured.
When details of his previous testimony were put to the witness, he stated that he was injured on the arm between 27 April and 3 or 4 May. He was able to remember the date as there had been a week of calm before the attacks of 13 and 14 May. The witness told the Chamber that as he had been unable to get hospital treatment, a benefactor put cow butter on his injury. To this statement, the Defence noted that in the Kayishema and Ruzindana case, the witness, in answer to a question from Judge Khan, had stated that "[a]t that time the situation was not yet too serious and one could find one or two Hutus who were kind hearted and one could give them money for the purchase of penicillin". The witness also testified that he had been treated in Rwirambo.
Witness R denied having ever said anything about going to Rwirambo as he couldn't have gone to Rwirambo hospital as there were barriers. He was able to recall however that he did speak about penicillin as regards to serious injuries and that some individuals were able to find ways of getting penicillin. The witness stated, after being asked by the Defence and the bench, that he did apply penicillin to his injury much later when his injury had scarred, and that he had never gone to a Hutu to ask for penicillin.

•Muyira hill, 13 May 1994
On 13 May 1994, after a period of calm, Tutsis, estimated by witnesses to number between 15000 and 40000, had sought refuge on Muyira hill and in neighbouring areas. These unarmed Tutsi civilians were subjected to the biggest attack to date, during which thousands lost their lives. The Defence admitted that such an attack occurred and that Tutsi civilians were murdered and exterminated. However, as with all other massacres in which Musema is alleged to have participated, the Defence, by way of alibi, denies Musema's presence at this attack. The Chamber shall thus consider the testimonies of prosecution witnesses specifically in light of this argument.
Witness F testified that, following two weeks of calm a large scale attack took place on Muyira hill on 13 May 1994. He stated that around 08:00hrs, a large number of vehicles, including lorries and a bus, arrived from Gishyita and Gisovu Communes and stopped on the border of the said two communes. Witness F explained how the attackers approached the hill from all sides, splitting up into groups, those from Gisovu including the bourgmestre of the commune, Eliezer Niyitegeka, Alfred Musema, and the conseillers of the secteurs of Gisovu Commune, and amongst those attacking from the other side of the hill were Kayishema, the Préfet of Kibuye, Charles Sikubwabo, the bourgmestre of Gishyita, Karasankima Charles, Sikubwabo's predecessor, conseillers of the commune of Gishyita, and many armed persons. The witness said the weapons carried by the assailants included firearms, traditional weapons, and bamboo sticks cut into spears. The refugees on Muyira hill were overpowered by the assailants and consequently had to flee. During the attack many old people, women, and children, including his five children, aged from 1 year and 1 month old to 10 years old, who were trying to flee, were killed. His wife was seriously injured leaving her disabled today. Witness F estimated that only 10000 of the 40 - 50000 refugees on Muyira hill on 13 May 1994 survived the attack. As far as he knew, all the victims were Tutsis, while all the assailants were Hutus. Questioned by the Bench, he confirmed that the assailants used to chant slogans as they approached the hills. The witness quoted two such slogans, "Exterminate them"⁽⁴⁾, "them" meaning the Tutsis, and "Even the Tutsi God is dead"⁽⁵⁾.
The witness added that he saw Musema carrying a firearm, although he did not personally see Musema fire the weapon.
In cross-examination, the Defence put to the witness prior statements he had given to the Office of the Prosecutor. As pertains to the first statement (20 March 1996), the Defence asked why the witness had made no specific mention of Musema during the May attacks, whereas the witness had specified Musema's presence during the April attacks. Witness F explained that he had mentioned Musema in connection with the May attacks, and referred to the phrase "[...] [l]eading these attackers who were divided into groups were the same persons I listed before. [...]". The Defence then put the second statement (14 and 16 February 1998) to the witness and asked the same question, namely why there was no specific mention of Musema in the 13 May 1994 attack. Again, the witness explained that he did re-cite the names of the leaders of the April attacks and reaffirmed that the leaders of the 13 May attack were the same as those of April.
In re-direct examination of Witness F, the Prosecutor entered into evidence page 52 of the transcripts of 11 February 1998 in the Kayishema and Ruzindana case, where Witness F appeared as Witness QQ. Witness F confirmed having testified on that day that he had seen Musema, the director of the Gisovu Tea Factory, amongst others, during the Muyira attacks of 13 May 1994.
Witness P had sought refuge on Muyira hill with many others up until 13 May 1994. On that day he and other refugees, numbering 40000, on Muyira hill, were the victims of a massive attack during which his wife and two children were killed. Such was the attack, that the refugees were unable to resist the assailants and as a result had to flee. He identified attackers from Rwamatamu, Gisovu, Gitesi, Gishyita and Cyangugu. He said that amongst the attackers from Gitesi were the Préfet Clément Kayishema, a communal policeman by the name of Claude, and Mucungurampfizi, who worked at Electrogaz. Amongst the leaders of the Gisovu group were the bourgmestre Aloys Ndimbati, Alfred Musema, communal policemen called Rukazamyambi and Sebahire, and the conseiller Segatarama. He said that he was also able to recognize workers from the tea factory, who wore a blue uniform on which was written "Usine à thé de Gisovu".
However, Witness P testified that, because he was fleeing, he did not personally see Musema during the attack of 13 May 1994, although he did see the Daihatsus of the tea factory, and Musema's red Pajero.
In cross-examination, Witness P testified that he did not see Musema on that particular day, but that he saw the tea factory vehicles which could only be taken from the factory with the permission of Musema, and that he also saw the vehicle of Musema which only Musema ever drove. Witness P presumed that Musema must have been present as his vehicle was there.
Witness R testified that on 13 May 1994, because he was unable to climb Muyira hill as he was injured, he was hiding in bushes near the Gisovu-Gishyita road, from where he saw the refugees on Muyira hill being attacked.
He explained that the leaders of the attackers regrouped on the Gishyita and Gisovu boundary before attacking the Tutsi refugees on Muyira hill. The first vehicle belonged to Kayishema, Préfet of Kibuye, which was followed by the businessman Ruzindana's car and a number of buses. From the direction of Gisovu came the vehicles of the tea factory led by Musema and Ndimbati. Witness R stated that each of the leaders bore long rifles.
Witness R further testified that when the two groups met on the boundary of the two communes, Kayishema gave instructions on the attack. He heard Kayishema give instructions to the attackers and assign one or more leaders to each group. Musema, Ndimbati and Eliezer Niyitegeka were assigned to the Gisovu and Gikongoro groups, while Elizaphan Ntakirutimana and Ruzindana were assigned to another group. The witness explained that Kayishema then fired the first shot in the direction of Muyira hill after which the leaders, including Musema, and their respective groups, went towards Muyira hill. The witness was unable to see what happened on the hill, but he heard gunfire, grenade explosions and people screaming.
Witness R stated that he stayed hidden until the departure of the attackers, including Musema, at which point he went to Muyira hill to find the bodies of his family. He found the cadavers of his wife, child, mother and older brothers, amongst the many bodies which covered Muyira hill. All the dead were Tutsis and all were civilians.
In cross-examination, Witness R gave more details as to where he hid, namely, in bushes below Muyira hill, approximately 30 metres from the roadside. These bushes were not very far from where the attackers had gathered.
The Defence noted that in the Kayishema and Ruzindana case, Witness R had stated that he was three hundred metres from where Kayishema had stood. The witness confirmed this during this trial and explained that he was able to hear Kayishema give instructions as everyone was quiet and listening to him, and that Kayishema had a megaphone. Witness R stated that all the attackers had their backs to him. The witness testified that the leaders used the megaphone while they were forming the groups. However, the leaders did not use the megaphone when speaking amongst themselves and as such, said the witness, he could not hear everything that they were saying. However, Witness R then stated that as Niyitegeka was speaking in a loud voice, he heard Niyitegeka tell others that they must not go towards their secteurs of origin but that they should go towards Muyira and push the Tutsis to the other side.
Witness R testified further in cross-examination that all the Hutus and the Twas wore white clothing so as to be distinguishable from the Tutsis. The Defence noted that on page 130 of the English transcripts of 13 November 1997 in the Kayishema and Ruzindana case, the witness had said that the Interahamwe of Kayishema wore black, and those from Cyangugu wore white, and that Kayishema had said that to recognise one another, those wearing black should be on one side, and those wearing white should be on another side. The witness remembered having said that and added that although most of the attackers wore white, some of the leaders chose a different colour to set their groups apart.
Witness Z, who had sought refuge on Muyira hill, testified that attackers came on 13 May 1994 to the hill from Gisenyi, Ruhengeri, Gitarama, Kibuye, Gikongoro, Cyangugu, from Yusufu's, and from the Gisovu Tea Factory. He listed the leaders of the attack as the Préfet Kayishema, Obed Ruzindana, Musema, and the bourgmestres Ndimbati and Sikubabwo. The witness identified Musema as he saw him arrive alone in his car.
Witness Z explained that Musema, who was armed with a rifle, led the group of attackers coming from Gisovu, while Ruzindana and Kayishema led a group coming from another direction. All the attackers grouped on the border of Gishyita and Gisovu Communes. The witness stated that amongst the attackers were civilians belonging to the MDR, CDR and MRND, while amongst Musema's group were Interahamwe trained by Musema, Interahamwe from Cyangugu, soldiers, gendarmes, and employees of the tea factory, including guards. Witness Z explained that from his position on the side of the hill he was able to see Musema addressing the attackers aloud as though he was using a microphone, and that, although Musema was at a distance which would take 5 minutes to cover by running, he was still able to hear Musema give instructions to the attackers. He heard Musema say "Go that way, the attackers from Kibuye and Gishyita will come from the other direction", and indicate the directions with his arms.
Witness Z then stated that the leaders of the various groups, including Musema, distributed weapons to attackers trained in the use of such weapons. The weapons, he said, were returned at the end of each day, and redistributed at the start of each day.
In cross-examination, Witness Z added that from his position at the top of Muyira hill, he was able to hear Musema at the bottom of the hill give instructions to various groups of attackers. The witness was able to hear all that was being said as everyone else on Muyira hill was quiet, and the attackers were listening attentively to the authorities as they gave instructions. The Defence also referred to the statement of the witness dated 13 May 1995, wherein the witness lists the attackers he saw yet makes no mention of Musema. The witness explained that, unlike in statements to the Prosecutor, before the court he would speak of everything he knew.
Witness Z described how the attackers made their way up the hill, while the refugees threw stones at them. As the refugees were overpowered by the attackers, a group of about two or three hundred refugees charged the attackers to force a way through them. He told the Chamber that many of the refugees were killed, including his family members.
During cross-examination, Witness Z explained that at the end of the attack, the military kept their weapons, whereas those who had been trained returned their weapons to Musema and were given rewards such as cattle. In the morning the weapons were distributed to the attackers, and if an attacker did not receive a weapon then that attacker would complain that another had received his. Witness Z testified to having seen all of this.
The witness said that he sustained his eye injuries from a grenade thrown by attackers coming from Gishyita while near the road on the Gishyita-Gisovu borders. In cross-examination, Witness Z testified that he could not remember the exact date on which he sustained his injuries. As such the Defence referred the witness to transcripts from the Kayishema and Ruzindana case, of 2 March 1998, wherein the witness, then under the pseudonym NN, testified as to how he was injured on 13 May 1994. The Defence Counsel referred to other pages of the said transcripts, in which the witness states that he can clearly remember the day of 13 May 1994 as it was on this day that he lost many members of his family.
In response to these questions from the Defence, Witness Z stated that he was now testifying in the Musema case and not in the Kayishema and Ruzindana case. The witness then stated that he was indeed injured on 13 May 1994, but that he could not remember clearly the dates during that period.
Witness N testified that there were many attacks on Muyira hill on 13 May 1994, and that very few people survived. He explained that the attackers arrived around 10:00hrs from Gisovu, Kibuye, Rwamatamu, Mubuga and Cyangugu. With regard to the group that came from Gisovu, Witness N specified that, because of the distance between him and the group, he was only able to recognize those in the cars at the front. He stated that he saw the car of Musema, nicknamed a "Benz" by the witness as it was an expensive car, at the head of the others, three Daihatsus from the Gisovu tea factory, three buses belonging to the ONATRACOM and a lorry from Gisovu prison. Witness N was unable to see any other vehicles as they were hidden by the forest. These vehicles came to a stop near a road sign on meeting vehicles coming from "the road below".⁽⁶⁾
Witness N stated that he was unable to say precisely how many people formed the Gisovu group, but he estimated that in total there must have been 50000 people, which included people from Gikongoro and Burundi. When asked how many people came on foot, the witness explained that those on foot had come from neighbouring secteurs, namely Rugaragara and Gitabura, whereas those in vehicles had come from further afield, namely the commune of Gisovu. Questioned from the bench as to the number of people, the witness explained that when speaking of 50000 people, he was talking about the Gisovu group. The witness clarified that he saw Musema aboard his vehicle, and that this was first time that he had seen Musema during the attacks.
Witness N testified that all the attackers had regrouped and that he could see them move their arms and speak, although he was unable to hear what they were saying. He said he was able to hear Musema once the group moved to within a few metres of him. The witness testified that Musema spoke to a policeman named Ruhindura, and asked him whether a young woman called Nyiramusugi was already dead, to which the policeman answered "no". He stated that Musema then asked that before anything, this young woman be brought to him . In cross-examination, the witness specified that he was able to hear Musema as the refugees were speaking amongst themselves softly and the attackers were getting organized. He added that the attackers spoke loudly so that everyone could hear them.
The witness stated that he knew this young woman, who was a teacher, as he used to see her when she walked to school, and that he used to take his cows to graze in front of her parents' house.
Immediately after these instructions, stated Witness N, those from Gishyita started shooting so that everyone else would start shooting. The attacks lasted until 15:00hrs, at which point the witness fled to the commune of Ruhindura. He added that some of the "refugees" fled towards the top of the hill and others towards the bottom of the hill. The witness explained that Musema searched for the young woman throughout this period and also shot at people.
In cross-examination, the witness confirmed his above testimony. The Defence questioned the witness as to why it had taken him five years to come forward with this statement, to which Witness N explained that he had been approached by two investigators to do so and that he had already brought charges in 1997 against Musema at the prosecutor's office of Kibuye. He indicated that when one knows somebody has committed a crime, it is one's duty to report it.
Witness G, who is not originally from the Bisesero region, testified that he saw Musema participate in an attack on 13 May 1994, shooting at refugees, with all the other leaders of the region, whom he said he knew as he visited Kibuye regularly during his holidays. Musema was seen by the witness at Kucyapa on the Gishyita and Gisovu border with Kayishema, Ruzindana and Sikubabwo and many other persons. The witness saw Musema when he was fleeing an attack on Muyira hill.
Witness G testified that the attackers had arrived aboard a number of vehicles, including buses belonging to ONATRACOM and at least two vehicles bearing the inscription "Usine à thé Gisovu". According to the witness, he was able to see from where he had sought refuge on Muyira hill, attackers come from Mugonero, Ngoma, Gisovu, Gishyita, Mubuga, Gitesi and Rubazo.
Witness G explained that as he fled from Muyira hill, attackers caught a woman by the name of Goretti Mukangoga, whom the witness knew as a teacher from his time in primary school. Musema, who was still with Kayishema, Sikubwabo, Ruzindana and Mika, asked for her to be brought to him. According to the witness, he then proceeded to cut open her stomach with a long sword "to see what the insides of a Tutsi woman looked like". The victim crumbled to the ground and was then encircled by the attackers. When asked by the Prosecutor to give more details as to the attackers surrounding the victim, the witness stated that there were men and women, and after a long explanation stated that he could not say how many they numbered.
Witness G described that, as he was tired and thought he would not be found, he hid in a bush near the vehicles of the attackers at which point he saw Musema's red car.
In cross-examination, when photo exhibits of the Bisesero region were put to Witness G, except for one where he thought he recognized the summit of Muyira hill, for all the others he explained that he was not from Bisesero and that it would be easier for him to be able to identify the various hills on site. When pressed as to details on distances and the numbers of vehicles and people that he saw while hidden in a bush in Kucyapa, the witness stated that he was unable to give such details, even though he was an educated man. Further, the witness was unable to explain where and how Musema came into possession of a sword or why in his testimony he had failed to make mention of blood, which, according to the Defence would have inevitably spurted out as Goretti was cut open.
Witness T, who had sought refuge on Muyira hill, stated that on 13 May 1994 a large attack occurred on the hill. Numerous attackers including policemen, civilians, Interahamwe, tea factory workers, soldiers and some officials arrived in an array of vehicles, namely eight ONATRACOM buses, one white and one green Daihatsu belonging to the tea factory and pick-up trucks, all seen by the witness. Witness T explained that the attackers had come from Mwendo, Gisenyi, Gitesi, Rwamatamu, Ruhengeri and Cyangugu.
From Gisovu, said Witness T, came armed civilians, tea factory workers in blue and khaki uniforms, prison guards in yellow uniforms carrying firearms, soldiers with rocket launchers, and policemen wearing green uniforms and bearing firearms. Amongst the leaders of the attack the witness saw Ndimbati, Musema, Sikubabwo, Segatarama and Mika.
The witness explained how the attackers gathered for an hour before launching the attack with gunfire around 10:00hrs. According to the witness, those who had firearms, including Musema, would protect the attackers armed with traditional weapons who were in close proximity against the refugees during the attack. The witness stated that although he did not personally see Musema shoot at the refugees, he presumed that he had done so as he was carrying a rifle. The attackers chased the refugees and threw grenades at them when in range, the refugees retaliating with stones. Witness T testified that the refugees were forced to flee and many were killed during that attack.
In cross-examination, the Defence put to Witness T his previous statement taken during the Swiss investigations in which the witness makes no specific mention of Musema as being present at the massacres or being a leader thereof, although he did mention a number of the leaders he named in his testimony. Moreover, the Defence referred to passages in the statement where explicit mention is made by the witness of the tea factory vehicles transporting killers from Gikongoro to Bisesero without there being any mention of Musema. The only mentions therein of Musema by the witness are "I know Musema, we saw each other sometimes" and after having identified him from a photograph, he states "After the arrival of the French, I saw Musema about 2-3 days later [...]".
In response, Witness T explained that, during that interview, he had not been asked specific questions about Musema, save whether he knew him and could identify him, and whether he had seen him after the arrival of the French.
The Chamber notes at this juncture that, during the cross-examination of Witness T on this issue, as a consequence of a suggestion by the Defence relating to the apparent discomfort of the witness, Witness T requested the permission of the Chamber to continue his testimony standing up as he felt tired.

•14 May 1994, Muyira hill
Witnesses for the Prosecutor also testified that a second large scale attack took place on Muyira hill on 14 May 1994.
Witness AC described a big attack which took place on 14 May 1994 on Muyira hill and which resulted in the deaths of many children and old persons. The attack, he said, was led by Musema, who arrived at the site in a red Pajero followed by four other vehicles, one being from Gisovu. He said that other "dirigeants" were Ndimbati, bourgmestre of Gisovu, Niyitegeka, the Minister of Information, as well as Kayishema, Ruzindana, Sikubwabo, bourgmestre of Gishyita, Samson, the Minister of Agriculture, Elizaphan Ntakirutimana, the Mugonero pastor, Gérard Ntakirutimana, and Kajerijeri from Mukingo.
Witness AC explained there were about 5000 predominantly Hutu attackers, many armed with rifles, clubs called "ntampongano", and small axes. Amongst the attackers were members of the Presidential Guard, military personnel and gendarmes from Kigali and Gitarama who had been informed that Inkotanyi had hoisted their flag in Bisesero, and workers from the Gisovu Tea Factory. The witness testified that he was able to recognize these workers as their clothes bore the words "Thé Gisovu". Other identifiable emblems worn by the attackers as seen by the witness were "MRND", "MDR" and "CDR", while other attackers wore banana leaves.
Witness AC described the first attack which was led by Ndimbati and Musema. He testified that the attackers disembarked from their vehicles on the Gisovu road at approximately 50 metres from the position of the Tutsi refugees. He further specified that Musema was on the Mirambi side of the river, the refugees being on the Muyira side of the river. The attack started when Ndimbati shot in the air, followed by Musema who fired his rifle. The witness added that Musema's rifle had a belt of ammunition around it. According to AC, Musema's shots hit an old man by the name of Ntambiye and another person by the name of Iamuremye.
Witness AC stated that, on being attacked, the refugees threw stones to defend themselves but the military fired tear gas at them, after which the Interahamwe entered the fray using bladed weapons. The refugees were attacked on the one side by the Musema group and on the other by the Ndimbati group. The refugees were forced towards the attackers from Gisenyi and Ruhengeri, but managed to flee into the Muyira forest. Around 18:00hrs the attackers left.
Although there was no cross-examination specific to Witness AC's testimony regarding Muyira, other issues raised and cross-examined during his testimony are relevant inasmuch as they go to the credibility of Witness AC.
Witness AC testified that, on the night of 6 April 1994, he had taken a lift with gendarmes going to Kibuye. Asked as to the names of the gendarmes, he explained that he was unable to remember them as it had been over five years since the events and being an old man his memory was failing him. However, after having been reminded by the Defence of his testimony in the Kayishema and Ruzindana case, the witness recalled having cited the names of the gendarmes.
The witness then testified that a certain Innocent came on the trip and that they had met a certain Major Jabo in Kibuye. Yet, when transcripts of the hearing of 6 October 1997 in the Kayishema and Ruzindana case were put to the witness, he testified that Major Jabo, a friend of his in charge of the Kibuye military camp, a person by the name of Cyprien, a Lieutenant, were on the trip. Witness AC confirmed having said this but continued that, because it all happened so long ago that, he could not remember; had he known these questions would have been asked, Witness AC said, he would have consulted his documents. He added he could not even remember the names of his wife and children. Witness AC then reaffirmed that Major Jabo was in Kibuye and that others, namely Cyprien and Munyankindi, were on the trip. When re-questioned about the presence of Major Jabo on the trip, the witness explained that there were two persons by the name of Jabo, both Majors, one who worked in Gisenyi and the other in Kibuye. Witness AC said it was only at this point that he remembered Major Jabo who went from Karago to Kibuye.
Furthermore, Witness AC testified that during the above trip, he and his travelling companions stopped over in Kibuye before going to Bisesero. Witness AC explained that as he did not have access to the gendarmes' camp in Kibuye, he remained by the side of the road, until his companions rejoined him to continue the trip.
Defence Counsel referred to a statement given by Witness AC on 12 June 1996 to the investigators of the Office of the Prosecutor. In the statement Witness AC describes a meeting he attended in Kibuye during his trip to Bisesero. He explained therein how, by staying close to a certain Lieutenant Kaburuga Cyprien, he was able to attend the meeting which was being held by the authorities, and saw Niyitegeka and Bagasora. He said that he stayed at the meeting for two to three hours while waiting for the soldiers with whom he was travelling.
When questioned by the Defence as to the contents of this statement, Witness AC refused to answer the questions on the basis that he was not called to testify in the Bagasora case. Furthermore, Witness AC refused to answer questions emanating from the Chamber on his attendance at the meeting in Kibuye, saying he did not attend the meeting and that he would prefer to be questioned on matters in relation to the Musema case. After further cross-examination, Witness AC testified that on arrival at Kibuye, he found out that there was a meeting but that he was unable to attend it as he was a simple civilian, and not a gendarme nor a civil or political authority.
In re-examination on these divergences, Witness AC confirmed that the divergence in his answers emanated from the specific questions relating to certain events and people as put to him by the investigators of the Office of the Prosecutor.
Witness R stated that on 13 May 1994 he had heard Niyitegeka tell the other attackers to be aware of Tutsis hiding in Hutu areas. As a result, testified the witness, on 14 May he went back to the place where he had hidden the day before. The witness testified that the attackers who came on Friday 13 May to Muyira Hill also came on Saturday 14 May to kill the survivors. Witness R said that Musema came back on 14 May in his own vehicle with attackers and with all the tea factory vehicles. Witness R stated he had heard that Musema had brought with him people from Gikongoro. The witness specified that as he was not standing very far from the attackers, he was able to hear Kayishema, who was speaking aloud, thank Musema for bringing the attackers from Gikongoro. Witness R said that Kayishema also thanked Ruzindana for having brought people from afar.
Witness F testified that on 14 May 1994 the attacks continued on Muyira hill and surrounding hills during which he was shot in his right arm and was hit by shrapnel in his shoulder. Though he saw Musema's red car amongst the vehicles of other attackers he was able to identify, the witness testified that he did not personally see Musema on that day. The witness added that the hills were strewn with bodies of those who had died the day before.
Issues raised during the cross-examination of this witness have been dealt with above as regards his testimony of 13 May 1994.
Witness Z testified that the refugees on Muyira hill were also attacked on 14 May 1994. At around 09:00hrs, the witness saw Musema arrive with vehicles of the tea factory. He explained that, on seeing the vehicles, he fled. The witness stated that three members of his family were shot by Musema as the refugees came down the hill to break through the attackers. He saw this from where he was standing approximately 15 metres away.
Issues raised during the cross-examination of Witness Z have been dealt with above by the Chamber as regards his testimony of 13 May 1994.
Witness T testified that he saw Musema participate in a large scale attack against Muyira hill on 14 May. The witness indicated that Musema was on an opposite hill and carried a rifle which the witness presumed was used by Musema during the attack.
The Chamber dealt with the cross-examination of Witness T in the context of his testimony on the events of 13 May 1994.
Witness D spoke of a large scale attack which took place on a day of Sabbath, thus a Saturday, between 08:00hrs and 16:00hrs. The Chamber notes that 14 May 1994 was indeed a Saturday. During this attack at Muyira Witness D saw Musema, Sikubabwo, Kayishema and Ndimbati. She saw attackers, numbering approximately 15000, armed with rifles, grenades and traditional weapons arrive in numerous vehicles, including lorries and nine buses, and heard them sing "Let's exterminate them". According to the witness, those with traditional weapons were to finish off refugees who had been injured by bullets. The refugees numbering approximately 15000 fought back with stones.
In cross-examination, Witness D specified that as the vehicles approached, she was unable to identify the vehicles or those aboard. Moreover, she indicated, when the vehicles parked, they were out of her sight. She only saw the attackers once they had disembarked and were making their way towards the refugees, after which she fled. The Defence noted that in her previous statements she had described how as refugees, including her, fled, they mixed with the attackers so as not to be shot.
•A mid-May attack 1994 on Muyira hill
The Chamber notes that "mid-May" means at some time between 10 May and 20 May.
Prosecution, Witness H, spoke of an attack which took place on Muyira hill directed against the Tutsi refugees. He testified that attackers came from Gisovu led by Musema, while those who came from Mugonero were led by Ruzindana and those from Gishyita by the bourgmestre Sikubwabo.
Witness H explained that he saw four vehicles from the tea factory and Musema's red Pajero in front of them which stopped at Kurwirambo. The Chamber notes that at a later stage in his testimony, the witness indicated that Musema's Pajero was behind the convoy of vehicles coming from the tea factory and stopped first at Kurwirambo. Aboard the vehicles were Interahamwe who were, according to the witness, living with Musema in Gisovu. When asked whether he could see anyone else aboard Musema's vehicle, Witness H stated that he was not close to the area and observed everything from a distance. When asked by the Prosecutor whether he was correct in identifying Musema, the witness simply replied that he knew his vehicle. The witness explained that he had seen Musema's vehicle on numerous occasions before 1994, specifically in 1992 while he worked on a Swiss road project.
Witness H described the attackers he saw on that day as being made up, firstly, of workers from the tea factory, dressed in blue factory uniforms with inscriptions on the back and armed with machetes and clubs, secondly, of Interahamwe dressed in white who came on a bus from Kigali to assist the local population, armed with rifles and clubs, thirdly, of soldiers in "smoke" uniform with black berets and gendarmes wearing red berets, all of whom were armed with rifles, and, fourthly, civilian Hutus (men, young people) who had come on foot from Gisovu.
The witness testified that, upon reaching the foot of the hill, Musema came forward and gathered the assailants who were scattered. He then fired a shot which marked the beginning of the attacks around 09:00hrs. Although the villagers only had stones to defend themselves, they were able to drive the assailants back down to the foot of the hill, with the intention of grabbing Musema. However, other assailants, led by Ruzindana and Sikubwabo, surrounded them, and they had to flee. Many refugees, including his wife and children, were killed during this attack. According to the witness, Musema was leading the Interahamwe and personally shot at the refugees, although the witness could not say whether Musema actually hit anyone. Witness H stated that the attack finished around 18:00hrs.

In cross-examination, Witness H specified that during the attack on Muyira hill, he was at the top of the hill from where he could see the vehicles parked on the road about twenty to thirty minutes from where he stood, there being a valley and a river between the road and the top of the hill. He was able to recognize the factory vehicles, because he had seen them several times before. The witness added that he was able to read the inscriptions on the factory uniforms as during the attack he had been close to the workers of the tea factory.

•An attack in mid-May 1994, Mumataba hill
Witness S stated that sometime near the middle of May while he was in refuge on Mpura hill, he saw Musema participate in an attack in Birembo. The witness testified that, around 10:00hrs he saw Musema and many other people (between 120 and 150) on the Gishyita and Gisovu road. He also saw three Daihatsu vehicles, one yellow, one green and one blue, belonging to the tea factory and bearing the inscription "OCIR-thé Gisovu" and Musema's red Pajero. The group of attackers included communal policemen recognizable from their uniforms, people dressed in white, and employees of the factory in blue uniforms and casquettes all bearing the inscription "Usine à Thé". The factory employees carried traditional weapons, machetes, spears and clubs.
The vehicles dropped off the attackers and then all, save Musema's, went to pick up other individuals in Gisovu, returning 45 minutes to an hour later. Other attackers led by Ruzindana and Sikubwabo were also seen by the witness coming from Gishyita with two vehicles, a lorry and a Toyota Stout. Witness S said the attackers first grouped and had a "meeting" before blowing their whistles and launching the attack against Sakufe's house on Mumataba hill. The attack was aimed at between 2000 and 3000 Tutsis who had sought refuge in and around the house. The majority of the refugees, including relatives of the witness, were killed during the attack. The witness stated that Musema stayed by his car during the attack in the company of persons dressed in white.
At the end of the attack the assailants headed towards Gisovu. Musema left the site at the end of the day around 17:00hrs heading in the same direction, while Ruzindana and Sikubwabo went towards Gishyita.
In cross-examination, Witness S described the locations of Mpura hill and Birembo in exhibits P20.1 and P20.2, and their situation in relation to Sakufe's house. He stated that Sakufe's house was ten minutes walk from the Gisovu road, while Birembo is one kilometre from Mpura hill. Even though the vehicles had parked less than one kilometre from where the witness and another person were hiding, the Defence called into question the witness' assertion that he was able to read the inscriptions on the tea factory vehicles.

•End of May at the Nyakavumu cave
Witness AC recalled an incident which took place at a cave in Kigarama Commune, Nyakavumu cellule. He testified that he was 40-50 metres away from the cave and saw Kayishema, Musema, Ruzindana and the bourgmestres of Gishyita and Gisovu come to the cave and order it to be sealed by having it covered in firewood. The witness told the Chamber that a man from Gisovu was ordered by Ndimbati, Ruzindana, Musema, Niyitegeka and Kayishema to light the wood. The man then set the wood on fire using grass and kerosene.
Witness AC recalled that of the 300 people inside the cave, only one survived, all others being suffocated to death by the smoke. Following questions from the bench, the witness affirmed that he had heard Musema give orders at the cave, however, he gave two answers, namely that he had heard Musema say on the one hand, "Bring some wood, make some fire", and, on the other hand, "Bring some wood, bring some sods of earth". The witness also reaffirmed that Musema ordered that a fire be lit.
In cross-examination of Witness AC, the Defence put questions to Witness AC pertaining to his previous testimony in the Kayishema and Ruzindana case during which he made no mention of Musema in the attack perpetrated at the cave. The witness explained that on all the previous occasions he had been interviewed by the Office of the Prosecutor, the questions had been relevant to specific individuals, and so he did not mention Musema. However, in a previous statement of Witness AC of 12 June 1996 which contained the witness' description of events at the cave with a list of people he had seen there, there was no mention of Musema. The Defence further questioned the witness as to his sighting of Prime Minister Kambanda at the cave, Kambanda not being mentioned when Witness AC testified in the Kayishema and Ruzindana case, whereas in the said statement the witness cited Kambanda as one of the attackers taking a prime role in the events. The witness said he did not find it surprising that a person as important as the Prime Minister should be present at the cave.
Witness H testified that around the end of May or early June, an attack led by Musema and Ndimbati was directed against a cave in Nyakavumu. Although he was not present at the attack, he had seen Musema shortly before it in a convoy with others going in the direction of the cave and thus presumed that Musema must have been at the attack. This convoy was made up of vehicles of the tea factory, buses from Kibuye, vehicles belonging to the commune, and Musema's Pajero.
During the attack on the cave, said Witness H, he had hid on the hill at about thirty minutes walk from the cave. This hill was separated from the cave by a small valley and hillock. He explained that the assailants proceeded to destroy the fence of the surrounding houses for firewood to the set the entrance of the cave alight, and gathered branches to produce more smoke. After the attack, the witness said he went to the cave and saw that everything was burnt. He testified that only one person survived.
In cross-examination, the witness confirmed that he was able to see the events as he testified above and explained to the Chamber that it was only recently that he had developed eye problems.
Witness S testified seeing Musema lead attackers towards Nyakavumu cave. He explained that near the end of May, while on Nyirandagano hill with 2000 other refugees, in Gitwa cellule, he saw Musema arrive with tea factory vehicles aboard which were attackers, comprised of tea factory workers and inhabitants of Gisovu. These vehicles, explained the witness, stopped at Birambo around 09:00hrs and 10:00hrs, and Musema's vehicle stopped behind them.
The witness testified that the refugees sent "spies" to see what the attackers were up to. Having received information from these spies that the attackers were too numerous to fight, the refugees fled to Kigarama hill. Witness S described how the attackers chased the refugees who were forced to separate into three groups, the first going to Nyakavumu cave, the second group went towards Nyarukagarata, and the third group, including the witness, fled to Gitwa hill. Witness S said that his group was not chased by the attackers as they had gone to Nyarukagarata and to Nyakavumu cave. The witness testified that, through trees, he saw Musema with a long rifle following the assailants.
Witness S said that those with Musema then blew whistles and shouted out three times for the attackers ahead of them to backtrack as they had passed by the Nyakavumu cave. Those who returned gathered around Musema for approximately two minutes. The witness explained that the attackers exchanged a few words after which they destroyed the house of a certain Munyanbamutsa for firewood which they took to the cave. Witness S was unable to see what then happened at the cave, but saw smoke rise a short while later. The witness indicated to the Chamber that he had hidden his wife in the cave that very same day. The attackers, said the witness, stayed at the cave for four hours after which they left for Gisovu.
Witness S said that he went down to the cave with eight other men after the attackers had left and noted that wood and leaves had been burnt at its entrance. Only three survivors, one man, one woman and one child were pulled out; the last two died during an attack the next day.
The witness indicated that Musema's group had been joined at some point by attackers from Gishyita led by Sikubabwo, Rutagananira and Ruzindana. The Chamber notes that it is unclear exactly where the witness saw these individuals.
In cross-examination, Witness S specified that the vehicles from the Gisovu tea factory had parked at Birembo, while those of the other groups of attackers parked at Gisoro and Mubuga. The Defence referred to the witness' written statement in which he describes in more detail the attack on the cave after having seen Musema with three soldiers and a gun slung over his shoulder. Witness S confirmed that he could not see the attack on the cave from his position on Gitwa hill.
Witness D described an attack which occurred at a cave, although no indication was forthcoming from her testimony as to exactly where and when this attack occurred. She testified that approximately 400 people, including children and women, had sought refuge in the cave. From where she was hiding she was able to see attackers start a fire with grass at the entrance of the cave, the smoke thus suffocating those inside. Amongst those who started the fire, Witness D recognized Musema and Ndimbati. Once the attackers had left, said the witness, she went with others to the entrance of the cave where she saw many bodies. She then fled.
In cross-examination, Witness D specified that she was unable to see any vehicles from where she was hiding on the side of the hill.
Witness AB testified that he saw Musema sometime in the month of June at the military camp in Kibuye in the company of Second Lieutenant 'Buffalo' Ndagijimana, Ndimbati and Doctor Gérard Ntakirutimana. Ndimbati was carrying a pistol and wearing military trousers and a black jacket. He said that Musema was armed with a pistol and was wearing a military jacket. The witness said that he overheard them discussing one last operation that had to be carried out in Bisesero. Witness AB added that he was able to hear them as they were speaking with raised voices, and as he was responsible for the camp security he had the right to know who was there and why they were there.
According to the witness, Musema said that information that he had received indicated that Tutsi were hiding in the tin mines. Musema explained that he therefore needed a lorry load of firewood to start a fire at the entrance of the hole where they were hiding, and consequently to block the hole to prevent anyone getting out. The witness said that Musema asked the second Lieutenant for the firewood. The witness explained that although it was with 'Buffalo' that they carried out the operations, permission for the wood could only be given from Masengesho, the camp commander. Witness AB testified that he was unable to say whether they succeeded in getting the wood as he did not spend all day at the camp.
In cross-examination, Witness AB confirmed that Musema had come to the camp in his red Pajero and had requested a pick up full of firewood. When questioned as to why Musema had not used a tea factory pick-up, the witness stated that Musema would be in a better place to answer. The witness testified that he knew that there was a plantation of wood for burning at the tea factory, but that he did not know whether during the war the wood had become Musema's personal property, whether Musema had come for assistance by asking for this pick-up or whether there remained any wood at the tea factory. He stated that he had never been to the cave where many people had died.

•Attack of 31 May 1994, Biyiniro
Witness E testified that during an attack on Muyira hill directed against 20000 refugees, he and others fled to Biyiniro hill at which point he saw Musema on the road with soldiers, guards, Interahamwe, tea factory workers who were wearing "Usine à thé Gisovu" caps, uniforms and tea leaves, and gendarmes who had come from Gisovu, Gishyita and Kibuye in array of vehicles including a green and a blue Daihatsu from the tea factory. The attackers, who were armed with firearms and traditional weapons, continued shooting at these refugees. The witness explained that the refugees decided to catch Musema as they saw him as a leader and because he had provided vehicles for the attackers. Musema then fled in his Pajero while soldiers continued firing at the refugees, many of whom, including the witness' older brother, were killed during the attack.
In cross-examination, Witness E specified that he fled from Muyira hill before midday in the direction of Biyiniro. According to him, it would take five minutes to walk from the summit of Muyira hill to the Bisesero road. He gave further details as to the vehicles he saw on that day but was unable to enlighten the Chamber as to the exact number of attackers.

•Attack of 5 June 1994, near Muyira hill
In addition, Witness E also saw Musema on 5 June 1994 near Muyira hill. He explained that he saw Musema's car and tea factory Daihatsus, among others, parked on the road at the Gishyita-Gisovu border, near Muyira hill. Aboard these vehicles were gendarmes, tea factory workers, communal policemen, Interahamwe and guards. The witness said he saw Musema carrying a rifle, and other leaders, including Kayishema, Sikubabwo and Ruzindana, give instruction to the attackers. Witness E said the attackers killed many refugees, including his younger sister, and that Musema also fired shots with a rifle during the attack.

•22 June 1994, Nyarutovu cellule
Prosecution Witness P said that in June 1994 while in Nyarutovu cellule he witnessed a number of attacks, and particularly remembered that of 22 June 1994, which he testified was led by Musema, and which occurred six days before the arrival of the French.
The witness described how this particular attack took place near a precious stone mine belonging to a company called Redemi, between 11:00hrs and midday. Musema and a number of tea factory workers, whom he recognized by virtue of their uniforms, were in a blue Daihatsu. The witness said that the vehicle stopped on the Gishyita road next to him and the young woman with whom he was.
He explained that he was with a young woman and a certain François who was crossing the road looking for somewhere to hide. The witness was 30 metres from the road but was unable to specify how many people there were aboard the Daihatsu as he fled while they disembarked. He testified that Musema was standing on the road next to the vehicle when he shot him, Musema holding the firearm with two hands. The witness stated that when the shot was fired he had his back to Musema. In his mind, there was no doubt that it was Musema who fired because he saw him aim at him and because Musema was the only person in the group who had a rifle. Witness P testified that after being shot in the ankle, he fell to the ground face down and feigned death. He then heard another gunshot and he again presumed that it was Musema who fired the shot. When the attackers left, the witness saw the body of François, so he concluded that it was Musema who had killed him. Most of these details pertinent to the gunshots came out during cross-examination.
Witness P stated that after the gunshots, the young woman ran away. He then heard Musema tell his workers to catch this young woman and to bring her back alive, so that they could see how Tutsi women were made. The attackers ran after the young woman, caught her, and put her in the vehicle. The witness said the attackers, including Musema, then drove off in the direction of Gisovu. He said that he never saw the young woman again.

The Alibi

•15/17 April to 22 April 1994

According to the alibi, around 03:00hrs on 17 April 1994 Musema and a soldier who was with him in Gisovu were woken by the supervisor of the Gisovu Tea Factory and by two guards who had come to the residence to warn him that the factory was being attacked. Musema testified that the supervisor told him that he had heard that Musema was going to be killed. The soldier suggested the only course of action was to flee. Musema thus fled towards Butare and then to Rubona aboard the red Pajero, registration A7171. He arrived in Butare around 09:00hrs. During the journey, he came across more roadblocks than he had seen before.

Musema testified that once at Butare, he dropped off the soldier and sought out a certain gendarme to inform him of his brother's death in Gisovu. Musema then went to his mother-in-law's in Rubona where he rested for the remainder of the day. Musema explained that, at this time, what was happening in Rwanda was "du jamais vu"; people were desperate not knowing what was going to happen, hoping that the massacres would stop in the region and that the war would cease in Kigali and in the north of the country.

Claire Kayuku, Musema's wife, testified that he returned to Rubona on either 16 April or 17 April in a state of shock, as a result of the killing of the tea factory employees. She specified that Musema had gone to Gisovu and returned two days later.

The Prosecutor referred in her cross-examination of Musema to exhibit P63, a Swiss asylum interview, wherein Musema states that he left the factory on the night of 15 April 1994. The Chamber notes that Musema then explained that this particular document was not the interview but rather his notes in preparation for an asylum request. The questions/headers were inserted by himself, he said.

In exhibit P56, a Swiss interview of 8 March 1995, Musema states he arrived at Gisovu on 14 April 1994 and left on 15 April around 03:00hrs, and in exhibit P54, a Swiss interview of 11 February 1995, he states he left Gisovu on the night of 15-16 April after being warned by factory guards of an imminent attack. Similarly the calendar of Musema, exhibit P68, indicates that he went to Butare (Rubona) on 15 April 1994. In exhibit P68, it is also indicated that Musema was on mission from 18 April 1994 to 21 April 1994 in tea factories.

During trial, the Chamber sought clarification as to the discrepancies concerning the dates of departure from the factory and the start of the mission. Musema then explained that at the time of preparing the calendar he was not certain of the exact dates of his mission(s). He added that it was only after the Swiss juge d'instruction returned with documentation from a visit of the Gisovu Tea Factory that he was able to recall that between 18 and 22 April he was in Rubona, and that the mission started on 22 April 1994.

Exhibit D27, tendered by the Defence, is a document entitled "Préparation réunion du 15 Avril 1994". Musema confirmed in Court that his annotations appeared on the document which, he stated, had been given to him by the Chief of the Secretariat at either some time in the afternoon of 15 April or in the morning of 16 April, although no meeting was held on 15 April 1994. He also confirmed that, as could be seen from the document, he was concerned about the security situation at the factory, and the human and material damage which had occurred at the factory.

•18 April 1994

On the morning of 18 April 1994, testified Musema, he went to Gitarama, the "transit" area for those fleeing Kigali, in the hope of meeting authorities, including the Director-General of OCIR-thé, who he thought had fled the seat of OCIR-thé in Kigali and, considering the war situation, would have had to go to or through Gitarama. By then the government had already left Kigali, although the transfer to Gitarama had been very disorganized. Once in Gitarama, Musema went to look for the heads of service of OCIR-thé and searched for relatives who could be among the refugees.

According to Musema, he did not meet anyone from OCIR-thé, but spoke with the Minister of Industry, Trade and Handicraft, Justin Mugenzi, to whom he reported the events and situation at the Gisovu Tea Factory, and asked for protection for the factory. According to Musema, the Minister appeared shocked at the news and assured him that he would take the appropriate measures to ensure the security of the factory. Musema testified that it was on this day that the Minister had indicated to him that he would be sent on mission to contact the Director-General of OCIR-thé to start up the factories. Musema returned the same day to Rubona where he stayed until 22 April 1994, although he did visit Gitarama on 21 April 1994, again to look for relatives among the refugees.
In support of the movements of Musema on these dates, the Defence tendered exhibit D45, a document in the name of Musema, requesting payment of expenses incurred for the Pajero, registration A7171. The form was filled out by the secretary of the factory and signed by the accountant and Musema. Attached are receipts from a garage in Butare, for cash payment for a broken windscreen, dated 19 April 1994, and from a garage in Gitarama for petrol on 14 May 1994.
Claire Kayuku told the Chamber she remembered that between 16 and 22 April Musema went to Gitarama twice to see his family. During that period Musema would spend every night at his mother-in-law's. She testified that on 22 April, he went on mission to Gisenyi and returned to Rubona on 26 April.
Exhibit D89, tendered by the Defence, is an undated letter from Claire Kayuku to Nicole Pletscher in which it is written "[i]magine how we all came together on 18 April whereas each one thought the other person was dead"⁽⁷⁾.
With reference to exhibit P56, where he states that he left Gitarama around 19 April⁽⁸⁾, Musema affirmed that at the time of this interview, the dates were just estimations and not necessarily correct, and that it was only after receiving documentation collected by the juge d'instruction and his lawyers that he was able to say with certainty on which dates his mission was effected.

The mission order and the subsequent mission

The Defence tendered exhibit D10, an "ordre de mission" (mission order), dated 21 April 1994. Musema testified that this order was given to him in Gitarama on 21 April 1994, even though it is written "fait à Kigali" on the document. By accident he met Minister Justin Mugenzi near a FINA petrol station at the entrance of Gitarama, who told him that he had tried to contact the Gendarmerie for protection at the factory, and that he had not been able to reach the Director-General of OCIR-thé, Michel Baragaza. The minister then ordered him to go to the north of the country, in particular Gisenyi, to find Michel Baragaza so that the status of each factory could be established.

Musema went on to testify that the minister said he would arrange the security modalities and prepare a mission order necessary for circulation around Rwanda. Musema was to collect the mission order at the residence of Faustin Nyagahima, a director within the Ministry of Industry, Trade and Handicraft. The Minister of Public Works, Water and Energy, Hyacinthe Nsengiyumva, who was also at the station, gave him petrol coupons. The Minister of Industry, Trade and Handicraft authorized the Minister of Public Works, Water and Energy to sign the mission order on his behalf as he had to take care of other business. The meeting lasted 30 minutes.

On 22 April 1994, said Musema, Faustin Nyagahima told him that the Ministry of Foreign Affairs was the only ministry at that time which possessed a stamp/seal and that consequently it is this stamp which appears on the bottom of the mission order.

Musema declared that the mission was in the context of the OCIR-thé, but not in the name of OCIR-thé or for the government. He explained that, in normal times, such missions were ordered by the Director-General of OCIR-thé. Musema believed that he had been given the mission as the minister had found no one else from OCIR-thé to whom to assign it. The expenses were to be met by OCIR-thé/Gisovu Tea Factory. The length of the mission, indicated Musema, must have been decided by the Minister of Industry, Trade and Handicraft. The mission order was not drafted on the basis of particular factories but rather on the basis of Préfectures where tea factories or tea projects were located. In normal times, Musema stated that a memorandum would be drafted outlining the objectives of the mission whereas during this period he had received the objectives of his mission orally.

According to Musema's testimony, the mission extension on the document was typed on at a later stage, around 7-10 May 1994 in Gitarama. Musema explained that more ministries had stamps by then, thus the stamp of the Minister of Defence, Augustin Bizimana, and his signature appear on the document. Musema conceded that to have the stamp of the Minister of Defence as authority for the extension of his mission was not usual practice, though he recalled that, during that whole period, the situation in Rwanda was not normal, which would explain why the Minister of Defence had signed the extension.

Musema further specified that he happened to meet the Minister of Defence in Gitarama. The Minister was an agronomist, originally from Byumba, and he and Musema had begun discussing the situation of finding relatives and about the past four years' conflict. The situation was still very unstable and although Musema's mission had come to an end he still had to visit a number of factories to establish inter-factory contacts. The stamp was to serve as a travel document. It did not extend his original mission with OCIR-thé but came into the context of the visits he wanted to make to other factories, to facilitate his movements and so as to provide him with more personal security. He added that there was no need for him to have the stamp of his ministry as the extension did not have any administrative value but only practical value. Musema was unable to explain why the Minister of Defence had not just given him a travel document for safe passage.

Musema conceded that it was a mistake that there was no indication as to the date on which the extension was issued. He testified that he would not have gone on the mission had the minister not guaranteed his security, and that he had to respect the mission order from a superior.

The Prosecutor contested the veracity of the mission order, submitting that the circumstances in which the mission order was provided, namely through a chance encounter at a petrol station, were unconvincing. Had the mission been simply to contact the Director-General of OCIR-thé, as Musema had indicated in his testimony, then, argued the Prosecutor, the mission should have been terminated on the day Musema established contact with the said Director-General. The Prosecutor did not accept the explanations given by Musema in relation to the stamps on the mission order of the Ministry of Foreign Affairs and of the Ministry of Defence and contended that the documents and stamps are complete fabrications. The mission order, in the mind of the Prosecutor, was designed simply to mislead the Chamber and to conceal the extent of the involvement of Musema in the massacres. Other supposed inconsistencies in the mission order were raised by the Prosecutor during the testimony of Musema as to his whereabouts.

Prosecutor's Witness BB testified that the mission order was unusual and not one normally used in OCIR-thé. Details missing included the length of time to be spent away from one's factory and space for expenses incurred. He also stated that it was odd that a minister should sign the order and also that it was odd to send a director of a factory to visit other factories.

•22 April 1994

Musema testified that on 22 April 1994, he went to Gitarama to pick up the mission order from Faustin Nyagahima who was in a house in the commercial district⁽⁹⁾.

Musema also said that he then went to the military camp in Gitarama where he was given two gendarmes to escort him, and then drove off in the direction of Kabaya around 10:00hrs. In Kabaya, Musema stopped at the house of the Director-General of OCIR-thé, where he met the Director-General's wife. She informed him that the Director-General was somewhere in Gisenyi. Musema asked the Director-General's wife to tell her husband that he would like to meet with him.

Musema stated that he reached the tea factory of Pfunda at the end of the day, around 16:00hrs - 17:00hrs. The director of the tea factory of Pfunda signed the back of the mission order and stamped it with the factory seal. Musema wrote next to the stamp "arrivée à Pfunda le 21/04/1994". Although the date of 21 April 1994 appears next to the signature, Musema was adamant that he arrived at the tea factory of Pfunda the following day, on 22 April 1994.

Musema explained that at the time they did notice the error. He said that the mistake was rectified for accounting purposes but not so reflected on the mission order as it was not expected to be used as an itinerary.

In support of this explanation, the Defence tendered exhibit D28, a "Déclaration de Créances" for expenses incurred by OCIR-thé (Gisovu Tea Factory) for the use of two gendarmes from 22 April 1994 up to 2 May 1994. This document is signed by the chief accountant and Musema and dated 2 May 1994.

Musema stated in his testimony that he stayed at the factory until 25 April 1994. The factory was operational and most of the troubles and massacres were outside the vicinity of the factory. Although he did not see him while at Pfunda, Musema had hoped that the Director-General of OCIR-thé would pass by the factory on his way back from Gisenyi.

The Defence tendered exhibit D29, a "Rapport de Mission" and a covering letter, dated 24 April 1994 and written and signed by Musema in Gisenyi. According to the Defence, these documents were found by the Defence in the archives of the Gisovu Tea Factory.

Musema testified that the interim report was typed at Pfunda factory and was to be sent to the Director-General of OCIR-thé, although Musema acknowledged that the lack of the recipient's full address was an oversight on the part of the typist. Musema explained that he had planned to drop off the report and annexes on his way back to Rubona at the house of the Director-General in Kabaya, but that by accident he bumped into him at Mukamura. He was thus able to hand over the documents in person. Other copies were also given by Musema to the directors of the Pfunda and Nyabihu tea factories whom he also met.

During cross-examination, Musema gave further details as to his mission. He only visited in person the factory of Pfunda, having gone to the factory of Nyabihu which was closed although he met its director. Besides the directors of these two factories Musema also met the director of Rubaya.

The Prosecutor referred to exhibit P56, the Swiss interview of 8 March 1995, where Musema says "[...] I left Gitarama to visit the factories in Gisenyi (Nyabihu, Rubaya and Pfunda)" and to exhibit P58, Swiss interview of 6 April 1995, where he states "Pfunda factory was the first I visited. I met there the factory director, we discussed, and I was accommodated at his house. [...] At Nyabihu, I met the director Mr. Gasongero at his residence. I did not reach Rubaya, but I met the factory director Mr. Jaribu".

Musema explained during the trial that he was able to make a report on these factories based on the discussions he had had with the respective directors. The mission report D29, dated 24 April 1994, contains recommendations for the above three factories.

The Prosecutor argued that this report was "strikingly thin" considering the importance of the alleged mission and the calibre of the requesting official, a minister. The recommendations and issues contained in the report were vague and could have been written at any time without having been on mission, stated the Prosecutor.

• 25 April 1994

Musema testified that he and the gendarmes left Pfunda factory on 25 April 1994 around 08:00hrs and met the Director-General of OCIR-thé, who was with his wife, and the director of the Nyabihu tea factory, at Mukamura. The Director-General of OCIR-thé read the mission report, approved it, added a couple of aspects, and confirmed that Musema could continue his mission. Musema stated that the meeting lasted approximately one hour, after which he drove to Gitarama. He arrived there late at night because of the number of dangerous road barriers, and stayed overnight because of the curfew.

• 26 April 1994

According to Musema, on 26 April 1994, Musema went to Rubona where by now the security situation had completely deteriorated. Pillagers and killers had taken over the ISAR. He stayed overnight with the rest of his family at the house of his brother-in-law, who worked at ISAR.

Claire Kayuku testified that Musema returned to Rubona on 26 April from Gisenyi.

• 27 April 1994

Musema stated in Court that he remained in Rubona on 27 April 1994. Although he did not see any killings he witnessed much pillaging of cattle and plantations.

•28 April 1994

During his testimony, Musema stated that on 28 April 1994, he went to Kitabi where he stayed for the day before returning to Rubona in the evening. The director of the Kitabi tea factory signed and stamped Exhibit D10. Musema heard that some of the factory staff had been massacred but on his visit there, it was calm at the factory.

• 29 April 1994

Musema declared that he left Rubona with the gendarmes between 09:00hrs and 10:00hrs, still in the red Pajero, and travelled back to Gisovu via Butare, Gikongoro and Gasaranda. They arrived in late afternoon. On the mission order appears the Gisovu tea factory stamp with "Arrivée Gisovu 29/04/94" written next to it.

Musema described the situation then as being calmer, with fewer people on the barriers and no movement of groups of killers. The factory was calm, the guards were present while the other employees were in their homes. The bodies he had seen previously on the roads were no longer there.

Musema confirmed that he held a meeting with the higher factory officials between 16:00hrs and 17:00hrs at the factory. There were four participants, excluding Musema, according to the report on the meeting. The report was made by the secretary Nyarugwiza and filed. The minutes were tendered as exhibit D30. The second paragraph of the minutes reads that "[t]he director informed the participants that he had not neglected the workers but rather that the Government had entrusted him with the assignment of going round factories to see how to ensure resumption of operations in such factories".

Musema testified that he stayed at the factory that night.

• 30 April 1994

Exhibit D31, the minutes of a meeting held on 30 April 1994 at the tea factory, was tendered by the Defence.

Musema confirmed that he signed the minutes that were taken by the secretary Nyarugwiza. Musema explained that the meeting took place in two phases, the first with the department heads of service and the second with the technicians so as to hear their opinions on restarting the factory. During the meeting, it was decided that Musema, as director of the factory should be the one to ask for fuel from the Préfet of Kibuye, because in time of war, the Préfets would requisition petrol stations and control the distribution of fuel.

Point 2.7 of the minutes reflects that the disappearance of employees of the tea factory was discussed. Musema stated that the atmosphere at the meeting was cold as everyone knew that there still existed dangers and that there was a general situation of insecurity in the region. Issues discussed included security at the factory, the date for the start of the picking of tea and the amount to be picked and the route to be used for the transport of tea.

Exhibit D32, a letter dated 30 April 1994 from Musema to a Ms Annociathe Nyiratabaruka assigning her as storekeeper, was tendered by the Defence to show the implementation of a decision taken at the meeting of 30 April 1994.

Exhibit D33, dated 30 April 1994 and signed and stamped by the Préfet Clément Kayishema, is an "Autorisation de Circulation". In this particular document, travel permission is granted with reference to the mission order of 21 April 1994.

Musema testified that he met the Préfet on 30 April 1994 for the issuance of this authorization needed to further his mission and travel outside of the Préfecture. The Préfet had previously decreed that all travel outside the Préfecture had to be authorized by him and that all travel between communes had to be authorized by a bourgmestre.

Musema went on to tell the Chamber that during his trip to Kibuye along Lake Kivu he saw burnt and destroyed houses. In Kibuye, the Stadium doors had been destroyed. There were red stains on the walls, and a putrid smell of decomposing bodies hung in the air. The Home Saint Jean and the catholic church had been damaged, and the church's front entrance damaged by fire.

• 1 May 1994

Exhibit D34 was tendered by the Defence to show that, during this period, Musema was still taking care of the running of the tea factory. The exhibit is a letter sent by Musema from Gisovu to Gaspard Bitihuse, in which he reprimands the addressee for not attending the meeting of 30 April 1994 and delegating instead to his subordinates. Musema indicated therein that work at the factory was to restart on 2 May 1994.

•2 May 1994

According to Musema, exhibit D28, the "Déclaration de Créances" dated 2 May 1994, was drafted prior to him leaving Gisovu on that same day. He left for Shagasha tea factory between 10:00hrs and 11:00hrs and arrived between 18:00hrs and 18:30hrs. Musema stated that the reference of 3 May 1994 as the date of arrival at Shagasha on Exhibit D10 was an error and that he arrived in Shagasha on 2 May 1994. The visit to the factory took place the next day, which may explain the date of 3 May 1994.

During cross-examination the Prosecutor referred to exhibit P56, a Swiss interview of 8 March 1995, where Musema states that he travelled on 2 May 1994 to the factory of Kitabi where he met with the director.

• 3 May 1994

Musema said he carried out his visit to Shagasha tea factory on the morning of 3 May 1994 and then visited the Gisakura factory afterwards. At Shagasha the teamaker signed the ordre de mission but did not have a stamp. Musema could not explain to the Chamber why the Shagasha signature appears further down the page after the Gisakura stamp, but assured the court that he did visit the former first. He stated that he came back to Shagasha after visiting Gisakura and that it may have been then that the teamaker signed.

Musema stated that the chief accountant of the Gisakura factory put his factory's stamp on the mission order on 3 May 1994. Musema visited Gisakura on at least two more occasions before leaving Shagasha on 5 May 1994.

However, prosecution Witness BB stated that on 3 May 1994, he was at the Gisakura tea factory. He also stated that Musema did not meet with the director of the Gisakura factory, although the stamp of the factory appears on Musema's mission order (exhibit D10, discussed below). In the opinion of the witness, had they met, the Gisakura director would have signed mission order, and not the chief accountant, whose signature the witness recognized.

According to Witness BB, the factory had two stamps: one was kept by the director and the other by the chief of personnel. In his opinion, the chief accountant, who was superior in rank to the chief of personnel, must have requested the latter for the stamp of the factory at the time of stamping the mission order for Musema. The usual procedure was to have the chief of personnel stamp the document if the director was unavailable. The witness added that as the chief accountant was a member of MDR Power, he would have had good relations with Musema.

The witness added that he believed that it was peculiar that the director had not been informed by his staff or wife of the visit of Musema.

During cross-examination of Claire Kayuku, the Prosecutor suggested in a question to her that on 3 May 1994, Musema attended a meeting in Kibuye town with the Prime Minister. The witness had no knowledge of this.

•5 May 1994

Musema testified he left for Rubona on 5 May 1994, and hoped to visit the tea factory of Mata. He departed from Shagasha around 08:00hrs and arrived in Rubona around 18:00hrs, staying there overnight. Although there were no massacres at Rubona, tension had risen as a result of all the refugee movements and because of all the news of the intensifying war.

• 6 May 1994

Musema said he believed he stayed in Rubona on 6 May 1994.

The Prosecutor put exhibit P56 to Musema wherein he states that "[o]n 3 May, I once again visited the factories in the south west, that is, Gisakura and Shagasha. I then returned to Butare. On 7 or 8 May, I returned to Gisovu and on 9 May, I supervised the resumption of operations of the factory. I remained there until 19/20 May and travelled to Butare to join my family."

During his testimony, Musema affirmed that between 7 and 19 May 1994 he was at Rubona and visited Gitarama on occasions.

•7 May 1994

Musema testified that on 7 May 1994, he went to Mata tea factory. The visit lasted no more than six hours after which he returned to Rubona. The chief accountant of Mata tea factory affixed his stamp to the mission order which is dated 7 May 1994.

According to Claire Kayuku, Musema visited a number of tea factories at the end of the month of April and the beginning of May.

• 7 to 19 May 1994

Musema stated that he stayed in Rubona from 7 May 1994 until 19 May 1994, never going beyond the towns of Butare and Gitarama and thus did not set foot in Kibuye Préfecture, and that he did not visit any other factory.

Exhibit D35, a letter dated 8 May 1994, to which is annexed the mission report, was typed up by the secretarial services of ISAR at Rubona. Reference is made therein to the date of the start of the mission, its objectives and to the interim report of 24 April 1994. There is mention of the dates on which the various tea factory started up production and existing stocks at the Gisakura and Shagasha factories. These last figures, according to Musema, could be made available by the teamaker, the accountant or even by the director. Conclusions rendered by Musema deal with fuel provisions, payment of salaries, security of the tea factories, recruitment of new staff and the setting up of transport routes for black tea via Gisenyi.

Musema indicated that he made approximately ten copies of the report for transmission to the directors of the visited tea factories. Musema handed a copy for the Director-General of OCIR-thé on 10 May 1994 to the commercial bank in Gitarama which had a convoy going to Gisenyi. The manager of the bank had promised to deliver this report to the Director-General.

Defence Witness MH said he saw Musema on 10 May and 13 May 1994. On 10 May, the witness saw Musema in Gitarama. He talked with him but did not remember asking him where he had come from or what he was doing. Musema had arrived in a vehicle, but Witness MH could not remember the type of vehicle it was, nor the colour of the vehicle. He recalled that these events dated back five years which may account for his inability to remember such details.

MH added that, on 13 May 1994, he was fleeing on his own to Burundi and had left Gitarama in the afternoon between 12:00hrs to 13:00hrs, travelling in his vehicle from Gitarama to Butare, towards the Kanyaru-Haut border post. After 45 minutes to an hour, he stopped at Rubona where he spent no more than 20 minutes. In Rubona, the witness went to the residence of the Kayuku family, being the family of Musema's mother-in-law, to say goodbye to them and to inform them that he was leaving Rwanda for Burundi, in transit to Kenya. He saw and spoke with Musema. Although he was unable to specify exactly when he met with Musema, he estimated it to have been around 14:00hrs, roughly one hour after leaving Gitarama.

A copy of Witness MH's passport with the entry stamp for Burundi on 13 May 1994 was introduced by the Defence as exhibit D102. On the same page as this stamp is a stamp issued at the Bujumbura airport showing the exit of Witness MH from Burundi territory on 15 May 1994.

Exhibit D45 contains a copy of a receipt dated 14 May 1994 from a FINA petrol station in Gitarama for a cash payment made by Musema for fuel for the Pajero, registration number A7171. This document, contends the Defence, strikes at the Prosecutor's case by placing Musema elsewhere than at the scene of the massacres in Bisesero.

Defence Witness MG, the wife of MH, said she saw Musema on two occasions between mid-April and 16 May when he came to visit her family in Gitarama. Although she was not sure of the exact dates, she believes that one of these visits was in May. MG left Gitarama on 15 May and Rwanda on 17 May. On 7 June 1994, she wrote a letter (exhibit D92) from Nairobi to Nicole Pletscher in which she indicates that on 17 May 1994 Musema and his family were in Butare at the house of Claire Kayuku's mother. She specified in her testimony that she did not personally see Musema in the days preceding her departure from Rwanda, but that she had heard of his whereabouts from one of her brothers and indirectly from her husband. MG indicated that she had written the date of 17 May in her letter as it was then that she had finally left Rwanda, and that she would be unable to confirm whether or not Musema had left the house of his mother in law on 16 May.

Defence witness Claire Kayuku, Musema's wife, declared she remembered that he returned to Gisovu at some time around the middle of May to pay the tea factory employees. She recalled that at the beginning of the month of May, Musema's red Pajero spent one or two weeks in a garage in Butare for repairs.

Exhibit D36, a letter, was tendered to demonstrate that Musema was a man not taking part in the events but just watching the events unfold and that by being in Butare on 14 May 1994, he could not have been in Muyira as alleged⁽¹⁰⁾.

According to Musema, this letter was written by him on 14 May 1994 in Butare and addressed to a Swiss friend called Nicole Pletscher. He gave it to a person going to Burundi on 14 May 1994, and hoped that it would be posted in Bujumbura. Musema had known Nicole Pletscher since 1986 and his family and hers had become friends. The last time he saw her was on 3 April 1994 in Kigali. The next time he saw this letter was during his testimony in this case.

In further support of Musema's absence from Gisovu, the Defence tendered exhibit D46, a letter from Musema sent to the prefect of Kibuye, dated 18 May 1994 requesting gendarmes for the factory. On the letter is written ACL, meaning "à classer". Annexed to this letter is a note, headed "A qui de droit", which Musema said was given to him by the Minister of Defence then based in Gitarama on 10 May 1994. By this note drafted by the minister, the commander of Kibuye groupement is requested, taking into account its importance, to ensure the close security of the tea factory. Musema stated that on 18 May 1994, as he still had car trouble, the letter and annex were given by Musema to someone in Gitarama who was going to Kibuye.

Were Musema in Gisovu, contends the Defence, he would not have waited eight days to transmit this note.

A number of other documents were tendered by the Defence to prove that Musema was absent from the Gisovu tea factory in mid-May 1994. Exhibit D41, a request for employment, received 5 May 1994 at the tea factory, was only dealt with by Musema on 14 June 1994. Exhibit D42, a request for accommodation for security reasons, was received on 11 May 1994, yet there appears no date as to when the request was dealt with. Exhibit D44, a request for accommodation, received at the tea factory on 16 May 1994 was dealt with by Musema on 14 June 1994.

Exhibit D43, is a letter sent from Joseph Nyarugwiza, head of personnel to the bourgmestre of Gisovu, dated 16 May 1994. Before the Chamber, Musema stated that the author of the letter forwarded the list of security personnel who requested to be trained in weapons, in furtherance of their discussions of 13 May and 16 May 1994. Musema was not aware of this letter, the first time he had seen it being upon its discovery by his Counsel during investigations at the Gisovu Tea Factory.

The Defence contends that, were Musema acting in concert with the bourgmestre Ndimbati during the massacres, Musema would have acted on the letter D43 or commented upon it, yet he did neither.

Exhibit D49, entitled "demande de trésorerie" and dated 21 May 1994, according to the Defence, was written by Musema for the attention of the Director-General of OCIR-thé. Annexed thereto is the trésorerie for April and May 1994. The annex is dated 7 May 1994 and signed by Musema.

Musema testified that this date referred to the date document D49 was prepared and not when it was signed by him, being 21 May.

Musema continued his testimony to say that as the situation was deteriorating in Rwanda, he and his family tried to formulate a plan in case they had to leave the country. Exhibit D37 is a certificate of complete identity issued for his eldest son Patrick Olivier Rukezamiheto, certified by the bourgmestre of Ruhashya Commune on 16 May 1994. By having this identity certificate, Musema hoped, the task of getting a passport for his son would be facilitated. Copies of the passports of his sons were tendered as exhibit D38, D39 and D40. According to Musema, all the passports were issued in Gitarama on 18 May 1994 in his presence. The passport tendered as exhibit D40 was signed by Musema as his son was not old enough to hold an identity card, and was then personally given to Musema.

Musema said he also went to the Commercial Bank in Gitarama on 18 May 1994 to find out about operations since the bank had moved from Kigali. He left his mission report for the Director-General of OCIR-thé with the manager of the bank who would deliver it on the occasion when funds were to be taken to Gisenyi.
Musema added he spent the night of 18 May in Rubona.
During cross-examination, reference was made to Musema's handwritten calendar, exhibit P68, which indicates that he was in Gisovu from 4 May to 14 May. Musema testified that this was an error and that he was not in Gisovu at that time.
In exhibit P57, a Swiss interview of 16 March 1995, Musema said that he was in Gisovu in the week of 4 to 13 May. The Prosecutor also recalled exhibit D49, the "demande de trésorerie". Musema reiterated that the date of 7 May referred to the date the document was prepared and not the date when signed by him, which was on 21 May.
Musema confirmed that, although he did not know the specific names of hills in the Bisesero region, he knew that there had been attacks in the Bisesero region on 13 and 14 May and before. When asked how he knew that there had been attacks when he had not been there, he stated that the agronomists had informed him during the meeting of 19 May 1994 and that he had so heard on radio RTLM and the FPR radio, Muhabura. He also testified that he did not participate in attacks on Muyira hill or elsewhere on 13 and 14 May. Musema did not have any proof or reason to suspect that employees of the tea factory participated in the attacks or that tea factory vehicles were used. He did add, however, that there were times when he was absent from the tea factory, and as such could not be sure that a certain individual or a certain vehicle was not part of the attacks.

• 19 May 1994
Musema testified that on 19 May 1994, he returned to the Gisovu Tea Factory. He travelled in the company of two soldiers, Félicien and Alphonse, who had been with him since the start of the mission, and a locksmith who came to help with the safes and doors. They travelled aboard the Pajero. Having left around 09:00hrs they arrived between 15:00hrs and 16:00hrs. The stamp of the Gisovu Tea Factory and "Arrivée à Gisovu le 19.05.94" appear on Exhibit D10. The writing is that of Musema and the signature imposed on the seal that of the chief of personnel.
Musema went on to say that a meeting was held at the factory. Those present were Musema, Gaspard Bitihuse, teamaker, James Barawigirira, chief mechanic ad interim, Joseph Nyarugwiza, chief of personnel, and François Uwamugura, accountant of the factory. The minutes of the meeting, drafted by Joseph Nyarugwiza and signed by him and Musema, were tendered by the Defence as exhibit D47. Most issues dealt with stocks and operations of the tea factory. Paragraph 2 of the minutes indicates that the Director of the tea factory had been on "tournée" and that when he was to return his car had broken down and that although he had sought assistance from the factory, none had been forthcoming.
During his testimony, Musema explained that his Pajero had developed problems on 7 May 1994 during his visit to Mata tea factory. As the problems were not solved, he had to stay in the Butare region. He had asked for a replacement car from the factory which was only sent on 19 May 1994 by which time the Pajero had been repaired. Exhibit D45, the "Déclaration de Créance", requesting payment of expenses incurred by Musema for the Pajero reg. A7171, is dated 19 May 1994. The form was filled out by the secretary of the factory and signed by the accountant and Musema. Attached, inter alia, is a bill from a garage in Butare, for spare parts, dated 19 April 1994.
Also tendered by the Defence was exhibit D48, a letter dated 19 May 1994, from Musema to the manager of the Banque Commerciale du Rwanda requesting withdrawal of funds. The letter also explained that the chief accountant, Canisius Twagura-Kayego, the usual co-signatory, had not been seen since 13 April 1994. In cross-examination, Musema stated that he could not indicate explicitly in the letter that people had died, but that it was implied by saying that they had disappeared. The bench confirmed that in French the term "disparu" could be used to indicate that someone had died.
Musema told the Chamber that he stayed at the Gisovu Tea Factory on the night of 19 May 1994.

•20 May 1994
Musema testified that on 20 May 1994, he went to the Commercial Bank in Kibuye to deliver the letter and collect funds for the salaries. He was accompanied by the two soldiers and the cashier.They stayed at the Gisovu Tea Factory on the night of 20 May 1994.

•21 to 27 May 1994
Musema testified that he returned to Rubona to see his family on 21 May 1994. He left Gisovu Tea Factory with the locksmith around 11:00hrs after having distributed the salaries.
Musema added that he stayed in Rubona until 27 May 1994. While in Rubona, Musema and his family again discussed leaving the country. At some point during this period, he said he travelled to Gitarama to drop off documents for the factory at the commercial bank and to search for family members. He also went to Nyanza one day to visit a friend of his who was a priest.

• 27 May 1994
Musema stated that he returned to the tea factory on 27 May 1994. His family had moved to Kitabi as result of the advancing soldiers. He stayed the night of 26 May in Rubona and then passed via Kitabi to collect his family on his return to the factory in Gisovu. His wife, two of his children and the soldiers, Alphonse and Félicien, accompanied him to the tea factory.
According to Musema, a meeting with eight participants and chaired by himself was held at the factory 27 May. The report of such a meeting was tendered as exhibit D51. The report refers to the meetings of 29 April, 30 April and 19 May. The atmosphere at the tea factory was tense due to news of the war and the ongoing massacres in the Bisesero region. The meeting addressed a number of issues pertaining to the security and production of the tea factory, including losses incurred due to a breakdown which had not been repaired. This breakdown had occurred ten days before 19 May. This, concludes the Defence, demonstrates that Musema was not in the vicinity of the tea factory during these ten days, i.e. 10 - 19 May 1994.
One recommendation of the meeting referred to an agreement reached between Musema and the bourgmestre of Gisovu for weapons training. It was also decided that gendarmes would come and help the factory guards due to the general insecurity.
Musema added that he and his family stayed at the Gisovu Tea Factory on 27 May 1994.
The Prosecutor referred to exhibit D51, and to the recommendation regarding civil defence as proof of Musema's involvement in the training of tea factory employees. Musema stated that this point constituted an issue raised by an employee. He did not send people for training as it was not of direct concern for the tea factory, but was rather the concern of the bourgmestre and the commune. This, Musema explained, was the agreement between him and Ndimbati.

•28 May 1994
Musema testified that, by 28 May 1994, he had two plans in mind, one to evacuate his family to the border, and the other to participate in a technical mission headed by a certain Claudien Kanyarwanda, to prospect a corridor for import and export.
According to Musema, a meeting was held on 28 May 1994 at the factory in which he participated. Exhibit D52 is a report thereof, signed by Musema. In the report it is stated that Musema handed over three Kalashnikov rifles. During his testimony, Musema stated that he had obtained them in Gitarama, from the military camp on the order of the Minister of Defence, Augustin Bizimana after having explained to the minister his security concerns for the tea factory, and that no help had been forthcoming from the Préfet. The minister agreed to give Musema three rifles to complement the two at the factory and to equip all five military reservists.
Support for the movements of Musema was put forward by the Defence in exhibit D53, "Autorisation de sortie de fonds" dated 28 May 1994, which authorized the payment of funds for expenses to Harelimana for mission expenses with Musema from 21 May to 29 May 1994. Exhibit D55, "Déclaration de créance" confirmed the payment of funds to corporal Félicien Harélimana for the mission with Musema from 21 to 29 May 1994. This is signed by Musema and the accountant of the tea factory.
Exhibit D54, "Autorisation de sortie de fonds" dated 29 May 1994, authorized advance payments of funds to Musema for his mission to Zaïre.
In the penultimate paragraph of a letter from the witness Claire Kayuku to the witness Nicole Pletscher, tendered by the Defence as exhibit D90, there is mention of the fact that Musema and she stopped over in Gisovu on 27 and 28 May on their way from Butare to Shagasha.

•29 May 1994
Defence exhibit D10, shows a stamp of Gisovu Tea Factory, with "Fin de mission: 29/05/94" written by Musema. The signatures of the chief of personnel and of Musema also appear.
Musema testified that he left Gisovu with his family on 29 May 1994. They first went to Shagasha tea factory where they stayed at the "maison de passage".
Musema explained in cross-examination that the date of 29 May 1994 pertained to the end of the mission with the OCIR-thé and that between 19 May and 29 May he finalized his reports. Although he dealt with personal issues, the expenses he incurred during this eleven day period were billed only for the official work he carried out. Normal procedure required more precise dates, usually on a daily basis, than those on the exhibit D10 for payment of expenses. For this particular period, stated Musema, he was paid for six to eight days, on the basis of his oral representations.
Musema affirmed that the date of 29 May was clearly indicated on the exhibit and that the "2" had not been written over a "1". The bench accepted this statement.
The Defence filed exhibit D63, a "Prime" for Corporal Ndindabahizi for the period 29 May to 17 June 1994 signed by Musema on 17 June 1994. The corporal was one of two gendarmes who had been sent to the tea factory by the Kibuye gendarmerie for security purposes.

•30 May 1994
Musema testified that on 30 May 1994 he left Shagasha between 08:00hrs and 09:00hrs and went to Cyangugu to join the technical mission. After a number of meetings, he returned to Shagasha where he stayed overnight.

•31 May 1994
On 31 May 1994, stated Musema, he rejoined the mission in Cyangugu and stayed overnight at the Chutes Hotel.
The Defence tendered photocopies of the passport of Musema as exhibit D56. On page 12 of the passport are stamps dated 31 May 1994. Musema explained that he travelled with the technical mission to Zaïre leaving Rwanda through Bugarama and entering Zaïre at Kamanyoma. He testified that they came back from Zaïre on the same day. Exhibit D54 is an "Autorisation de sortie de fonds" dated 29 May 1994, which authorized advance payments of funds to Musema for his mission to Zaïre.
Also tendered was exhibit D59, letter of 2 June 1994, sent to Musema and received at the tea factory on 4 June 1994. In annex are the minutes of a meeting held by the agronomists on 31 May 1994, Musema not being marked as present at the meeting.

•1 to 10 June 1994
Musema testified that after meeting a delegation from Bukavu in Cyangugu, he travelled back to Shagasha where he stayed at the maison de passage. His family and he remained at Shagasha until 10 June 1994. He testified that for the first few days he stayed at the maison de passage, and that he also spent one night in Kitabi where he searched for his mother-in-law. He stated that he had to wait longer than he expected for the return of the directors of the Shagasha and Gisakura tea factories with news from the Director-General of the OCIR-thé.
The Defence produced exhibit D57, an "Autorisation spéciale de circulation CEPGL", issued on 3 June 1994 in Cyangugu. Musema explained that this document was valid for travel in Burundi, Rwanda and Zaïre.
Exhibit D58 is a letter signed by Musema, dated 6 June 1994, sent to a merchant in Cyangugu requesting fuel for the Gisovu Tea Factory and the calculation of costs. Although the letter is addressed from Gisovu, Musema testified that he was in Shagasha when he drafted it. He explained that the directors of Shagasha and Gisakura Tea Factories had recommended the merchants based in Cyangugu who were buying fuel from Zaïre.
Defence Witness Claire Kayuku testified that from 29 May 1994, until 7 or 10 June, Musema stayed with her and the family at the Shagasha tea factory, except for one or two nights which he spent in Bukavu as the border had closed. She explained that during this period he was with a delegation working between Cyangugu and Zaïre looking for ways to export tea to Zaïre.

•10 - 17 June 1994
Musema testified that he returned to Gisovu Tea Factory on 10 June 1994, without the two soldiers who had received the order to return to Gitarama. Musema testified that this order had been sent by Colonel Bagarameshe head of the Cyangugu Gendarmerie. As such, the colonel had given him a gendarme from Cyangugu to accompany him to Gisovu.
On 10 June, said Musema, the factory was functioning normally save for the uncertainty that hung in the air as regards the war. He said that he stayed at the factory until 17 June 1994 and carried out his normal duties.
He denied ever transporting people in factory cars to massacres, and stated that he could not have control over all the factory workers, especially not those outside the premises of the factory. He stated that he had noted an unusual increase in fuel consumption since 6 April 1994.
A number of exhibits were filed by the Defence to demonstrate that Musema worked as per normal during this period. Exhibit D60 is a "note de service" requesting drivers to maintain certain standards, to service their vehicles and to account for all fuel consumption, dated 14 June 1994, and signed by Musema. Exhibit D63 is the "prime" authorizing payment to Corporal Ndinbabahizi signed on 17 June 1994 by Musema. Exhibit D61 is a fiche de déplacement, dated 16 June 1994, signed and stamped by the Préfet of Kibuye, Clément Kayishema, giving Musema the two gendarmes, and a driver permission to travel for 30 days (17 June to 17 July) between Cyangugu, Gikongoro, Butare and Gisenyi on mission in vehicle reg. A9095. Musema stated that this last document was collected by an agronomist who went to Kibuye on 16 July.
The Defence produced exhibit D64, a letter dated 31 May 1994, sent to Musema by the two gendarmes ensuring security at the factory, wherein they request means of transport to make a trip to their camp in Kibuye. Musema testified that he never received the letter, and that it must have been signed by one gendarme only as the other had accompanied Musema on his trip during the first ten days of June.
In cross-examination, the Prosecutor referred to this exhibit and suggested that Musema exerted control over the gendarmes. Musema denied this saying that they were at all times under the command of the Gendarmerie of Kibuye.

• 17 June 1994
Musema testified that on 17 June 1994 he went to Shagasha tea factory to see his family and to buy some goods. He was accompanied by a gendarme and travelled aboard a Daihatsu to bring the goods back to Gisovu.
He arrived in Shagasha around 15:00hrs or 16:00hrs. He first went to see his family at the Shagasha Tea Factory maison de passage, and then went to the tea factory and to Cyangugu to inquire and purchase the necessary goods. He spent the night with his family at Shagasha.
Exhibit D65, a mission order given to the gendarme accompanying Musema, and delivered to the commanding officer of the Gendarmerie of Kibuye, was filed by the Defence as support for the alibi during this period. Dates thereon are those of departure from Gisovu to Cyangugu, 17 June 1994, return to Gisovu from Cyangugu, 20 June 1994, departure from Gisovu to Gisenyi, 21 June 1994, and return to Gisovu from Gisenyi, 28 June 1994.
The Defence produced exhibit D66, "Pièce de Caisse Sortie", dated 17 June 1994, which indicates the amount advanced to Musema for the purchase of goods for the factory. Also produced was exhibit D67, a handwritten note dated 17 June 1994 and left by Kanyarwanda Claudien - the director of Magerwa who headed the earlier mission to Zaïre, with Musema's family at Shagasha. The Defence submitted that this note clearly indicates that the author expected to meet Musema in the near future.
Defence Witness Claire Kayuku testified that she remained in Shagasha until 18 July 1994.

• 18 June 1994
On 18 June 1994, stated Musema, he went to Gihundwae, Cyangugu to visit family members who had come from Rubona. At Cyangugu he also bought the goods he needed and met with a merchant called Elias Bakundukiza. Musema added that he stayed in Shagasha overnight.

•19 June 1994
Musema testified that on 19 June 1994 he travelled to Kitabi and Gikongoro to see other relatives including his mother-in-law. He went to Rubona to look for other relatives and spent the night in Gikongoro.
In support of this travel, the Defence filed exhibit D90, a letter from its Witness Claire Kayuku dated 21 June 1994 from Shagasha. She writes therein "Alfred is still on the move, he is going back and forth and serving as a link between everybody, Butare, where my elder sister is, my mother who has fled to Gikongoro with two brothers and three children, with us in Cyangugu guest house [...]".

• 20 June 1994
Musema stated that he returned to Shagasha in the morning of 20 June and later on the same day he travelled to Gisovu. He explained that he returned to Gisovu as his family had heard a communiqué on the radio from a Mr Kanyarwanda asking him to join him in Gisenyi. Musema testified that as he arrived late in Gisovu he stayed overnight.
The Defence presented a number of exhibits to show that Musema had returned to Gisovu on this date. Exhibit D70 is a letter from the tea factory to the bourgmestre of Gisovu, Ndimbati, dated 21 June 1994, on which appear handwritten notes of Musema, also dated 21 June. The subject concerned a night guard, a "Zamu", who had been working at the tea factory and who, according to Musema, was suspected of participating in massacres and had thus been sent to the bourgmestre. Exhibit D52 is the report of a meeting held on 28 May 1994 on which Musema wrote on 21 June that this report should be circulated to a number of individuals.
During cross-examination concerning exhibit D70, Musema explained that this night guard "Zamu" was paid and worked on a day-to-day basis. Contrary to the feeling of the Prosecutor, Musema did not find anything peculiar in this system. The Prosecutor tendered exhibit P70, a response to exhibit D70, indicating that the guards' training would be terminated. Musema explained that this training was that given by the gendarmes to guards at the factory, in the context of the factory security. The rest of the cross examination on this exhibit and on exhibits P71 and P72 pertained to the type of training received by the guards and others, and whether this involved weapons and was carried out with the full knowledge of Musema. Such matters are not alleged in the Indictment and have thus been left out here.

•21 to 28 June 1994
Musema stated that he drove to Gisenyi on 21 June 1994, leaving around 09:00hrs in the A7171 Pajero with a gendarme, and arriving around 18:00hrs. He stayed in Gisenyi to finalize the tea export mission and to access funds from the Banque Commerciale which had moved from Kigali to Gisenyi. He indicated that he was very concerned for his family and tried to contact individuals outside Rwanda.
During this period, and in the context of the tea exportations, Musema said that he went to Goma in Zaïre, only returning to Gisovu on 28 June with the gendarmes who had accompanied him. Musema explained that he returned on this day to Gisovu so as to deposit cash at Kibuye bank for the salaries of the tea factory personnel, to supervize the factory and also to be able to join his family for whom he was concerned. On their return trip, they followed a French military convoy and arrived in Gisovu late afternoon.
As regards these dates, the Defence referred to exhibit D65 again, the mission order given to the gendarme accompanying Musema, and delivered to the commanding officer of the Gendarmerie of Kibuye. The departure from Gisovu to Gisenyi is 21 June 1994, and the return to Gisovu from Gisenyi is on 28 June 1994. The Defence also referred to exhibit D69, a letter written by Musema on 23 June 1994 from Gisenyi and addressed to Swiss friends. The letter was sent through the intermediary of the Belgian director of SOTRAG who was returning to Europe.
The Defence presented two exhibits to show that Musema travelled to Gisenyi during this period. In exhibit D90, a letter dated 21 June 1994 from Defence Witness Claire Kayuku in Shagasha, it is written of Musema that "for the time being he is in Gisenyi after satisfying everybody's needs especially to make them secure. [...] He will certainly try to contact you through Goma [near Gisenyi], he has been called urgently by his Minister we do not know for what reason." In exhibit D91, another letter from Claire Kayuku, this one dated 6 July 1994, she writes "Alfred has not returned since 20/6. On his return from Gisenyi last week he passed through Gisovu. On arrival there he fell ill and was confined to bed without medication for 3 days. He wrote a short letter to inform me yesterday [...]".
During the cross-examination of Claire Kayuku, the Prosecutor suggested that during this period Musema was part and parcel of the interim government, and that he was in Kapgayi and Gisenyi at the same time as the interim government were in these locations. The witness refuted these allegations and stated that she described Musema in the letter as "impertubable" because he would go to any length to ensure that the factory was safe and that it stayed in operation as directed by the Minister.

• 29 June to 24 July 1994
Musema testified that he stayed at the Gisovu Tea Factory until 24 July 1994. On or about 4 July 1994, French troops came to the tea factory where they stayed until the departure of Musema. Some moved into a church being built by Musema, while others stayed in the houses of the tea factory.
Musema explained that on 16 July, "there was an event" after which the Préfet, gendarmes, shopkeepers, bourgmestres - everybody - left the Préfecture of Kibuye and went to Zaïre. The bourgmestre of Gisovu and his colleagues fled in the night of 17July. Musema said he did not know what was happening and that he was not associated to it. Employees of the tea factory also wanted to flee, but Musema believed that they should wait to see how the situation developed in the south of the country at the Shagasha and Gisakura factories.
He testified that tea production ended on 19 July 1994 at the factory.
On 20 July 1994, said Musema, he sent a messenger to the Shagasha tea factory to contact his wife. However the messenger found the factory destroyed and abandoned. When he received this information, being worried, he decided to leave for Cyangugu and Shagasha.
Musema stated that on 24 July, he drove to Cyangugu and crossed the border by foot into Zaïre where he went to Bukavu blindly looking for his family amongst the thousands of refugees. By luck, he saw one of his sons near a petrol station and managed to meet his family and other relatives. Musema said that he explained to his wife that he couldn't just abandon the factory and thus returned to Gisovu the same day.
A number of exhibits were presented by the Defence to show that Musema was present at the factory during this period and that he dealt with matters left unattended during his travels between 21 and 28 June. Exhibit D71, are two letters from the prefect of Kibuye, dated 21 June 1994, the first addressed to Musema requesting information on the personnel status at the Gisovu tea factory, and the second, addressed to the bourgmestre and to the head of service of the tea factory informing them of the need for funds and the bank account for the civil defence. Musema's handwritten notes dated 29 June 1994 appear on both letters. Musema stated that he did not deem it necessary to respond to the second letter, an inaction which, according to the Defence, goes against the Prosecutor's allegation as regards Musema's participation in the massacres.
Exhibit D72, is a letter received by the tea factory on 29 June 1994. Musema confirmed that the date of 28 June 1994 as written by him on this letter was an error on his part. The letter was sent by the bourgmestre Ndimbati informing the addressees of the bank account for the civil defence and of the need to contribute funds to fight and vanquish the Inkotanyi. Musema testified that he did not provide any funds in this regard. His handwritten remarks are that the letter should be circulated to the heads of service for dissemination.
Other evidence tendered by the Defence include exhibit D73, a letter received 27 June 1994 by the tea factory, with handwritten notes of Musema dated 29 June; exhibit D74, a letter received 8 July 1994 by the tea factory, sent by the bourgmestre of Gisovu to Musema in response to the letter filed as exhibit D70. Musema wrote comments on the letter on 9 July 1994. The individual, the "Zamu" was not to be allowed to be trained in the use of weapons. Also tendered were exhibit D75, an inventory of materials given to the French troops, dated 5 July 1994 and signed by the Adjudant Jean-Pierre Peigne; exhibit D76, a letter dated 8 July 1994 and sent by Musema to Swiss friends through the French troops; exhibit D77, dated 13 July 1994 and signed by Musema, a payment of Corporal Ndindabahizi for his expenses while he stayed at the tea factory from 18 June to 13 July 1994; exhibit D78, a letter dated 13 July 1994 from Musema forwarding to the Director-General of OCIR-thé the figures of the Gisovu Tea Factory for the first quarter of 1994; exhibit D80, a letter sent on 18 July 1994 from Musema to the directors of the Gisakura and Shagasha Tea Factories enquiring as to the possibility of housing the families of his personnel at their factories in view of the security situation; exhibit D81, a letter from Captain Lecointre of the French military, addressed to Musema and dated 18 July 1994, in which the author of the letter explains that he is leaving to go to another zone and that Lieutenant Beauraisain is henceforth in charge of the troops staying in Gisovu; exhibit D82, a letter dated 20 July 1994, sent from employees to Musema requesting overtime payment; exhibit D83, a letter sent from Musema to Colonel Sartre on 22 July 1994 thanking him for the security provided at the factory; and exhibit D22, a handwritten note indicating the return of a gun by Musema to the French army on 24 July 1994.

• 25 July 1994
Musema testified that he finally left Gisovu tea factory on 25 July 1994, passing into Zaïre without a vehicle, leaving Rwanda for the last time.

Factual Findings

The Chamber has considered the testimonies of the witnesses, the evidence in support of the contested facts and the alibi of Musema. It shall now present in chronological order, its factual findings thereon. The burden of proof being on the Prosecutor, the Chamber will first consider the Prosecutor's evidence, and then, if the Chamber deems there to be a case to answer, it will consider the alibi before finally making its findings.

•15 April 1994

As pertains to the facts alleged:

Although Witness BB testified, concerning the alleged events of 15 April 1994, that he received information from workers from Gisakura and from Muko that Musema had been seen in the communes of Musebeya and Muko at the wheel of a Daihatsu truck transporting individuals armed with spears and machetes, the Chamber notes that this testimony is hearsay corroborated by no other witness brought to testify. Furthermore, the Prosecutor did not advance any other arguments or evidence in support of this testimony.

Consequently, the Chamber finds that it has not been established beyond reasonable doubt that Musema was in the communes of Musebeya and Muko at the wheel of a Daihatsu truck transporting individuals armed with spears and machetes.

• Karongi hill FM Station, 18 April 1994

As pertains to the facts alleged:

The Chamber has considered the testimony of Witness M with regard to the meeting at Karongi hill on 18 April 1994. As already indicated in the section on evidentiary matters, the Chamber may in principle rely on the testimony of a single witness as to certain events, without necessitating corroboration thereof.

The Chamber finds Witness M to be credible, his evidence proving to be consistent throughout his testimony. Under cross-examination, no inconsistencies with prior testimony emerged and the Chamber was satisfied that the witness was able to see and hear Musema make statements to the people at the meeting on Karongi hill. Among these statements, he said that they had to rise together and fight their enemy the Tutsis and deliver their country from the enemy. Musema also said that as compensation the unemployed would take the jobs of those killed, and that they would appropriate the lands and properties of the Tutsis. Witness M also heard Musema say that those who wanted to have fun could rape the women and girls of the Tutsis without fearing any consequences.

The Defence, in its closing brief, submitted that Witness M was not credible on the grounds that it was improbable that the witness would not have been discovered in the hut; that it was improbable that the meeting would have been held at the top of the hill rather than at the bottom of the hill; and that it was peculiar that the witness should wait nearly five years (the witness statement being dated 13 January 1999) before making a statement on the events he witnessed.

The Chamber has considered all of these arguments and finds that they do not impair the credibility of the witness. The Chamber does not find it inherently improbable that his presence at the hut would not have been discovered. The witness clearly described his movements from one room to another within the hut to avoid detection. He gave two reasons as to why the meeting should be held at the top of Karongi hill - firstly that the assailants could get the guns there and secondly because from this vantage point they could see the refugee camp which was subsequently attacked. In the opinion of the Chamber, for the witness to have waited five years before making a statement is not significant because he only made the statement in response to an approach from the Office of the Prosecutor at that time.

As pertains to the alibi:

According to the alibi, Musema was in Rubona and Gitarama on 18 April 1994 having left Gisovu on 17 April.

The Prosecutor contested this last date by referring to numerous previous interviews and a calendar prepared by Musema in 1996, all of which tend to suggest that Musema left Gisovu two days before that date, namely on 15 April. Furthermore, the Defence Witness Claire Kayuku, Musema's wife, testified that she saw him on his return to Rubona on 16 or 17 April 1994.

Although there appears to be some doubt as to the exact date of departure of Musema, in the opinion of the Chamber, the submissions of the Prosecutor on this issue, the testimony of Musema and of Claire Kayuku and the other evidence, all tend towards demonstrating not that Musema was at or in the vicinity of Karongi hill FM Station on 18 April, but rather that he had actually left Gisovu on a date earlier than that which he indicated in his testimony during the trial. No evidence, save the testimony of Witness M, places Musema at Karongi FM station on that day. The Prosecutor has not demonstrated how and when Musema may have traveled from Rubona to Kibuye Préfecture to lead the meeting. This, in the opinion of the Chamber, creates doubt in the facts as alleged by the Prosecutor as pertains to the participation of Musema in a meeting convened at Karongi hill FM Station on 18 April 1994.

Findings:

Therefore, in the opinion of the Chamber, there still remains doubt on Musema's presence at the 18 April 1994 meeting on Karongi hill, taking into account his and Claire Kayuku's testimonies on the alibi, and the arguments of the Prosecutor which indicate only that Musema had left Gisovu earlier than he stated, without questioning whether he was in Gitarama on 18 April or not.

Under these circumstances, the Chamber finds the sole testimony of Witness M in the matter to be insufficient to prove beyond reasonable doubt that Musema participated in a meeting at the Karongi hill FM Station on 18 April 1994.

•On or about 20 April and on 26 April 1994

Prosecution witnesses testified in relation to events which occurred on or about 20 April and on 26 April 1994 respectively. As the alibi of Musema is not specific to these dates but covers the period as a whole, the Chamber shall first consider each of the events alleged and the credibility of the witnesses, and it shall then consider the alibi for that period before making its findings.

•On or about 20 April 1994, near the Gisovu Tea Factory

As to the facts alleged:

Witness K testified that on or about 20 April 1994, while in hiding, he saw Musema transport armed attackers in the vicinity of the Gisovu Tea Factory. The witness stated that the assailants, including tea factory employees and persons from Gikongoro, were taken to the Bisesero region to kill Inyenzi.

Regarding the alleged events on or about 20 April 1994, the Chamber has considered the testimony of Witness K, including his previous statements. A number of discrepancies arose during the course of his cross-examination between his oral testimony and previous statements. Questions were addressed to the witness by the Chamber and by the Defence regarding these discrepancies, in particular with regard to the dates during which he was hiding in the tea plantation, the note allegedly discovered by the witness on Muyira hill after a massacre, and the basis of his remembering important dates.

The Chamber finds that, in answering these questions, the witness was evasive and often contradictory as to a number of important details. The witness sought during his testimony to have the verb "to write" substituted by the verb "to memorize" in one of his statements, essential to his testimony inasmuch as it supports the means by which he could remember the dates of the events about which he was testifying.

The Chamber accepts that, considering the prevailing circumstances in which pre-trial statements are taken, errors and inaccuracies may occur therein. However, in the present instance, the alleged errors which the witness is seeking to amend are key to his testimony of the participation of Musema in events and in the way he remembers such events. Furthermore, in the opinion of the Chamber, such discrepancies cannot be solely attributed to the investigators and the methods used in the taking of pre-trial statements. Rather, the Chamber deems such discrepancies to cast doubt as to the veracity and consistency of the witness' testimony and to be contradictions serious enough to put into doubt the credibility of the witness. Consequently, the Chamber deems the testimony of Witness K insufficiently reliable to be admitted as evidence.

Therefore, the Chamber is not satisfied beyond reasonable doubt that on or about 20 April, Musema transported tea factory workers and attackers from Gikongoro in tea factory vehicles to massacres in the Bisesero region as alleged by Witness K.

•Gitwa hill, 26 April 1994

As pertains to the facts alleged:

The Chamber has considered the sole testimony of Witness M as regards to an attack he described seeing on 26 April 1994 led by Musema on Gitwa hill, six days after having left his hiding place at the Karongi hill FM station. The witness said that during this attack he saw Musema aboard a tea factory Daihatsu, and a number of other vehicles which he described during his testimony. Musema and many others, some of whom wore banana leaves and Imihurura belts, are then said to have taken part in a large scale attack on Gitwa hill. Musema fired shots into the crowd of refugees.

The witness stated that this had been the most sweeping attack he had seen and one he had memorized very well by consulting his electronic wrist-watch at the time. Although in cross-examination the witness was unable to remember the precise date of the statement he had given three months earlier, the Chamber does not find such a lapse of memory sufficient to cast doubt on the credibility of the witness. Rather, the Chamber finds Witness M overall to be credible and consistent, without at any time being evasive during his testimony.

As pertains to the Alibi:

The Chamber notes that the alibi of Musema is not specific to 26 April 1994, but is linked with the mission order and travel consequent thereto. The Defence purports that on 18 April 1994, Musema, while searching for the heads of service of OCIR-thé in Gitarama, ran into the Minister of Industry, Trade and Handicraft, Justin Mugenzi. Having conveyed to Musema his concerns for the Gisovu Tea Factory, the minister indicated to him that he would be sent on mission to contact the Director-General of OCIR-thé to start up the tea factories.

According to the alibi, Musema, who during this period was staying in Rubona, returned to Gitarama on 21 April 1994 where again he ran into Justin Mugenzi and also the Minister of Public Works, Water and Energy, this time at a FINA petrol station. Mugenzi told Musema of the security measures he had taken for the factory, and informed him that he had been unable to contact Mr Baragaza the Director-General of OCIR-thé. As such, Musema was to go to the north of the country to find him. The minister said he would prepare the necessary paperwork which Musema should pick up from the residence of Faustin Nyagahima, a director within the Ministry of Industry, Trade and Handicraft. During the meeting at the FINA station, Mugenzi authorized the Minister of Public Works, Water and Energy to sign the eventual mission order.

On 22 April, Musema picked up the mission order (exhibit D10) from Faustin Nyagahima. The order was stamped by the Minister of Foreign Affairs, who, according to Musema, was the only minister at that time in Gitarama to possess a stamp. Musema was given two gendarmes from the military camp in Gitarama and then traveled up to the factory of Pfunda where he stayed until 25 April. With reference to exhibit D10, where Musema wrote "arrivée à Pfunda le 21/04/1994", Musema attributed this date to an error, and affirmed that he arrived at the factory in Pfunda on 22 April. Exhibits in support of this contention include exhibit D28, a "Déclaration de Créances" for expenses incurred by OCIR-thé (Gisovu Tea Factory) for the use of two gendarmes from 22 April 1994 up to 2 May 1994, which is signed by the Chief accountant of the Gisovu tea factory.

Although he only visited the Pfunda Tea Factory during this part of his mission, Musema admitted that he was able to include the factories of Nyabihu and Rubaya in his interim report (exhibit D29), having met the respective directors during the trip.

According to the alibi, on 25 April Musema returned to Gitarama after meeting the Director-General of OCIR-thé at Mukamara, who read the interim report and confirmed that Musema could continue his mission. Having stayed overnight in Gitarama, Musema traveled on to Rubona.

Defence Witness Claire Kayuku testified that Musema left Rubona on 22 April for Gisenyi and returned on 26 April where he stayed overnight.

The Chamber has considered the contentions of the Prosecutor that the mission order was false and that the stamps of the ministries were fabrications. The Prosecutor also contends that chance encounters with ministers, as described by Musema, were hardly convincing as the basis of the mission. In the opinion of the Prosecutor, the mission order was designed simply to mislead the Chamber and to conceal the extent of Musema's involvement in the massacres. The Prosecutor further contends that the interim report was strikingly thin considering the apparent nature of the mission. Moreover, Prosecution Witness BB stated that the mission order was unusual, and not one normally used by OCIR-thé.

The Chamber has considered the alibi and the Defence witness. The Chamber finds that the documentary evidence, read in conjunction with the testimony of Musema, raised a number of contradictions, many of which were addressed by the Prosecutor. These contradictions related, inter alia, to the plausibility of the chance meetings, the date the mission actually started, the array of ministry stamps on the mission order and the content of the interim report prepared by Musema.

The Chamber moreover considered the answers given by Musema to explain these discrepancies. However, the Chamber was not convinced by the relevant explanations, and, as such, must reject the alibi for this period.

Findings:

As stated above, the Chamber finds that Witness M appeared credible during his testimony as regards the attack on Gitwa hill of 26 April 1994. Moreover, the Chamber finds that the alibi of Musema for this date is doubtful and contains a number of material inconsistencies. The explanations given by Musema for these inconsistencies were unconvincing, in the opinion of the Chamber.

As such, the Chamber finds that it has been proved beyond reasonable doubt that Musema led and participated in the attack of 26 April 1994 on Gitwa hill. It has been proved beyond reasonable doubt that Musema arrived aboard one of the Gisovu Tea Factory Daihatsus. It has been established beyond reasonable doubt that Musema and others, some of whom wore Imuhura belts and banana leaves, participated in a large scale attack against refugees. The Chamber finds that it has been established beyond reasonable doubt that Musema shot into the crowd of refugees.

•End of April - beginning of May 1994, Muyira and Rwirambo hills

As pertains to the facts alleged:

The Chamber has considered the testimonies of Witnesses F and R as regards the alleged participation of Musema in attacks near the end of April and the beginning of May 1994.

Witness F spoke of an attack he witnessed at some point between 17 and 30 April 1994 on Muyira hill. He described how assailants from Gisovu and Gishyita converged on the hill and launched a first attack on Muyira hill during which they were forced back by the refugees. Half an hour later, they regrouped, and launched a second attack. Witness F told the Chamber that he saw Musema during these attacks, carrying a medium length black rifle and firing shots at refugees who had surrounded a policeman, before running away to his own red car.

As for Witness R, he described to the Chamber an attack which he said took place on Rwirambo hill around the end of April or the beginning of May 1994. The witness identified Musema, armed with a rifle, amongst others, and saw a number of vehicles, including four tea factory pick-ups aboard of which were Interahamwe. The witness explained that as he fled the attackers, he was wounded in the arm by a gunshot coming from the direction of Musema and another.

The Chamber notes that Witness R previously testified in the Kayishema and Ruzindana trial under the pseudonym "JJ". The Defence raised a number of apparent contradictions between the witness' testimony in that trial and in this trial as regards the treatment he received for his gun shot wound.

Having considered the arguments of the Defence as to these discrepancies and the answers of the witness thereon, the Chamber finds Witness R to be credible. The questions raised by the Defence relating to the date of his injury and the manner in which it was treated did not elicit inconsistencies between the witness' testimony in this trial and his earlier testimony in the trial of Kayishema and Ruzindana. He clarified that he had obtained penicillin not soon after the injury, which is when it was treated with cow butter, but much later. With regard to dates, the Chamber notes that the 29 April falls within the time period 27 April to 3-4 May. While the specific date testimony is clearly more precise, the two testimonies are not inconsistent.

As pertains to the alibi:

The Chamber notes that the Prosecutor has alleged that the attack of 13 May followed a week and a half to two weeks of calm. The Chamber is therefore to assume that the attacks witnessed by R and F occurred before 3 May 1994.

It remains, as a result, for the Chamber to consider the alibi from 26 April to 2 May.

Musema stated that on 27 April he was in Rubona. On 28 April, he said he visited Kitabi factory, the stamp and date of arrival appearing on exhibit D10, and then returned to Rubona. These dates and movements were not contested by the Prosecutor. On 29 April he travelled to Gisovu with two gendarmes via Butare, Gikongoro and Gasaranda, arriving in Gisovu late in the afternoon. Exhibit D10 carries the stamp of Gisovu Tea Factory and the date of arrival, namely, 29 April 1994. Musema remained at the factory until 2 May taking care of business. A number of exhibits, including reports of minutes of meetings held on 29 and 30 April, and correspondence, were tendered by the Defence to support this. On 30 April he visited the Préfet of Kibuye who issued Musema with an "Autorisation de Circulation", in which reference is made to the mission order. On 2 May, Musema said he left for Shagasha, departing between 10:00hrs and 11:00hrs and arriving there before 19:00hrs. Musema explained that he visited the Shagasha Tea Factory the next day which would explain why the date of 3 May 1994 appears on D10 as the date of arrival at this factory.

Findings:

The Chamber has considered the testimonies of Witnesses F and R and finds them to be credible. Musema admits to being in Gisovu from 29 April to 2 May attending to factory business. Thus, in the opinion of the Chamber, it is not excluded, considering the distance between Gisovu and the locations of the attacks, that Musema was both at the tea factory working and taking part in attacks, although at different times. Also, to have visited Kibuye on 30 April does not rule out that an attack involving Musema may have occurred on the same day.

However, of concern to the Chamber is the lack of specificity on the part of the Witness F as regards the date of the attacks. Witness F speaks of an attack which occurred between 17 and 30 April. Witness F's approximation, which takes 17 April as the earliest date, would suggest the attack he witnessed occurred closer to the middle of the month rather than later in the month.

For further guidance on this issue, the Chamber also considered the closing arguments of the Prosecutor, which includes a detailed chronology of the events and massacres as they evolved during April and May. However, no mention is made therein of the testimonies of Witness F and the attack involving Musema. This thus creates further ambiguity and doubt in the matter.

Consequently, the Chamber finds that it has not been established beyond reasonable doubt during the trial that Musema participated in the alleged attacks which occurred between 17 and 30 April.

As regards Witness R, who testified to Musema's participation in an attack which occurred around the end of April and the beginning of May, the Chamber notes that there also existed ambiguity during this testimony as to the exact date of the attack. Notwithstanding this, while testifying in the Kayishema and Ruzindana case, the witness was clear that he was injured on 29 April, the date of the attack. Thus, the Chamber is satisfied that it has been established beyond reasonable doubt that an attack occurred between 27 April and 3 May 1994 on Rwirambo hill.

Furthermore, the Chamber is of the opinion that the alibi does not cast doubt on the testimony of Witness R, and that his testimony is consistent and reliable. The Chamber consequently finds that Musema, who was armed with a rifle, others unknown and Interahamwe aboard a number of vehicles, including four tea factory pick-ups, participated in an attack between 27 April and 3 May 1994 on Rwirambo hill. The Chamber also finds that as Witness R fled the attackers, he was wounded in the arm by a gunshot coming from the direction of Musema.

•The mid-May 1994 attacks, Muyira hill

The Chamber will now consider events which are alleged to have taken place in the middle of May 1994, namely the 13 and 14 May attacks and two other mid-May attacks. As the alibi pertains to this period as a whole, the Chamber will first deal with all the relevant witnesses for these attacks, and, if there is a case to answer, will consider the alibi for the period, before finally making its findings.

As pertains to the facts alleged:

•13 May 1994, Muyira hill

As already stated, the attack which occurred on 13 May 1994 on Muyira hill took place after two and a half weeks of relative calm. This day was to see the biggest attacks so far launched against unarmed Tutsi refugees, who numbered between 15000 and 40000. According to witnesses, thousands of attackers came from all over the region in vehicles and on foot intent on killing the refugees.

The Prosecutor presented a number of witnesses to this attack. However, having considered the testimonies, the Chamber disregards the testimonies of Witnesses Z and G for a lack of reliability.

As regards Witness Z, it is questionable whether the witness could have heard what he claims to have heard Musema say, at the distance he says he was, namely the length of a five minute run, and from his position at the top of Muyira hill. The Chamber notes that in his prior statement dated 13 May 1995, Witness Z made no mention of the presence of Musema at the 13 May 1994 attack. His explanation for this omission in the main was that unlike in statements, before the court he could speak of everything he knew. The Chamber is not convinced by this explanation. Similarly, when questions were put to him relating to his testimony in the Kayishema and Ruzindana case and the discrepancies with his testimony in this case, he was resistant and evasive. Consequently, the Chamber does not find the testimony of Witness Z to be reliable.

Considering Witness G, who said he saw attackers catch a woman on the instructions of Musema and subsequently that she was killed by Musema, the Chamber is also not convinced of the reliability of this witness. The Chamber notes that, whenever pushed for further details as to the number of attackers around the victim, the number of vehicles and distances, the witness consistently evaded the questions and presented long winded explanations as to why he could not remember such details, although he is an educated man. Whenever pressed for more information the witness seemed uncomfortable and very evasive. The Chamber notes, in contrast, that the witness had no difficulty in remembering the exact words of Musema during the unfolding of the events. Consequently the Chamber does not find the testimony of Witness G reliable.

Notwithstanding this, many witnesses presented a consistent account of events as they unfolded in the attack of 13 May 1994.

Witnesses F, P, T, and N all described how attackers from Gisovu, Gishyita, Gitesi, Cyangugu, Rwamatamu and Kibuye arrived in an array of vehicles, including Daihatsus belonging to the tea factory and ONATRACOM buses. Amongst the attackers, who were armed with traditional weapons, firearms, grenades and rocket launchers, the witnesses saw communal policemen, workers from the Gisovu Tea Factory wearing their uniforms, Interahamwe, prison guards, armed civilians, and soldiers. Leading the attackers from Gisovu were the bourgmestre of the commune Aloys Ndimbati, Eliezer Niyitegeka, Alfred Musema, and the conseillers of the secteurs of Gisovu Commune. Leading attackers from other regions were Kayishema, the Préfet of Kibuye, Charles Sikubwabo, the bourgmestre of Gishyita, Charles Karasankima, Sikubwabo's predecessor, conseillers of the commune of Gishyita, Obed Ruzindana and others. As the attackers approached the hill, they sang slogans such as "Exterminate them" and "Even the Tutsi God is dead".

Witness F said the attack against the Tutsi refugees started around 08:00hrs. He saw Musema, amongst the Gisovu group and bearing a firearm, although he did not personally see him fire the weapon. Witness F estimated that only 10000 or so of the 40-50000 Tutsi refugees survived the attack, those killed being old people, women and children, including five of his own children.

The testimony of Witness F, in the opinion of the Chamber, went virtually unchallenged by the Defence. On cross-examination the witness was questioned as to why he had not specifically mentioned Musema in his description of the May attack in his 1996 statement to the Prosecutor but had mentioned him in his description of an April attack. The witness in response cited the passage in his statement where he said of the May attack, "Leading these attackers who were divided into groups were the same persons I listed before [...]". The Chamber notes that the cross-examination of Witness F, which was brief, in no way impaired his credibility, and the Chamber considers his evidence to be reliable. Moreover, the Chamber recalls that during his testimony in the Kayishema and Ruzindana case, as confirmed during his examination in this case, Witness F stated that he had seen Musema during the 13 May 1994 attacks.

Witness P lost his wife and two children during the attack. He explained how the assailants overpowered the refugees who, including himself, were forced to flee. Although the witness did not personally see Musema during the attack, he saw Musema's red Pajero and tea factory Daihatsus which led him to conclude that Musema must have been present. Amongst the attackers he recognised tea factory workers by virtue of their uniforms.

The Chamber notes that in cross-examination, asked as to how he could conclude that Musema was present during the attack, Witness P stated that, in his view, the tea factory vehicles could not have been used without the permission of Musema, and that only Musema ever drove the red Pajero. While the Chamber finds the witness to be credible, his evidence is not probative of Musema's presence at or participation in the attack at Muyira on 13 May. Nevertheless, it corroborates the testimony of other witnesses in important respects.

Witness T saw a green and a white Daihatsu belonging to the tea factory and tea factory workers wearing blue and khaki uniforms. Musema was seen by the witness amongst the leaders of the attack, bearing a firearm. The witness described how the attackers who had firearms protected those who were fighting in close against the refugees. Many refugees were killed and the survivors fled, their stones useless against the grenades of their assailants. The witness specified that he did not see Musema fire his weapon but presumed that he had.

The Chamber notes that in cross-examination, the witness was questioned by the Defence as to his previous statements and the lack of mention therein of Musema in relation to the above attack. Witness T explained that at the time he had not been asked specific questions about Musema save whether he knew him and could identify him, and whether he had seen him after the arrival of the French. The Chamber is satisfied with this explanation. The Chamber also notes that the cross-examination as a whole did not impair the credibility of the witness and the Chamber thus finds his evidence to be reliable.

Witness N, whose specific testimony on the fate of a certain Nyiramusugi will be dealt with in section 5.3 below, witnessed many attacks on Muyira hill on 13 May 1994. Amongst the attackers who arrived around 10:00hrs from Gisovu, the witness saw Musema aboard his vehicle which he described as a "Benz" because it was expensive, leading other vehicles, including three Daihatsus from the Gisovu Tea Factory. He elaborated, saying that save for these and four or five other vehicles, he was unable to identify others as they were hidden by trees.

He could not hear the attackers when they regrouped, though he could see them gesticulating and speaking. Witness N was able to hear Musema once the group had moved to within a few metres of him. Musema asked a policeman named Ruhindira to fetch a young woman called Nyiramusugi after having found out from him that she was still alive. Immediately after this, said the witness, the attackers from Gishyita launched the attack with gunfire. The attack lasted until 15:00hrs, and, according to the witness, Musema searched for the young woman throughout this period and shot people.

The Chamber notes that in cross-examination, the witness confirmed his testimony. To the issue of when and how he made his statement, the Chamber is satisfied with his explanation and does not find his credibility to have been impaired. Consequently, the Chamber finds the testimony to be reliable.

•14 May 1994, Muyira hill

A number of witnesses testified that the attacks continued on 14 May 1994 against the surviving refugees on Muyira hill.

Witness AC described a big attack he saw on 14 May. He saw Musema arrive in his red Pajero and recognized a number of other "dirigeants", which he cited in his testimony. The 5000 or so attackers, armed with rifles and traditional weapons, were predominantly Hutu and comprised gendarmes, soldiers, Interahamwe, tea factory workers recognizable by their uniforms and other assailants some of whom wore political party emblems.

The witness described the attack which was led by Musema and Ndimbati. It was started by Ndimbati who fired a gunshot into the air. Musema, carrying a firearm and a belt of ammunition then fired gunshots, which, according to Witness AC hit an old man by the name of Ntambiye and another person by the name of Iamuremye. On being attacked by the assailants led by Musema and Ndimbati, the refugees defended themselves with stones but the military fired tear gas at them. Overpowered, the refugees fled. Around 18:00hrs the attackers left.

The Chamber notes that there was no cross-examination of this witness specific to this attack. Other issues raised on cross-examination, however, raise questions as to the reliability of the witness' testimony. There are many confusing elements in the testimony. It is unclear, for example, whether or not he attended the meeting in Kibuye. It is also unclear why he had such difficulty remembering names of gendarmes, whose names he was able to recall during his testimony in the Kayishema and Ruzindana case. When asked to explain these divergences in his testimony he was willing to provide them in this case. The Chamber considers that the Defence did not establish that the testimony of Witness AC was untruthful in any material respect. However, in light of the confusion which emerges from the cross-examination, the Chamber is willing to accept the evidence of this witness only to the extent that it is corroborated by other testimony.

Witness F was injured by shrapnel and a gunshot during an attack of 14 May on Muyira hill and surrounding hills. Although he did not see Musema during the attacks, he did see Musema's red car among the vehicles of other attackers. As previously stated with regard to the 13 May 1994 attack, the Chamber finds the testimony of Witness F to be reliable.

Witness T also saw Musema participate in a large scale attack on Muyira hill. He explained that he saw Musema on an opposite hill, armed with a rifle which he presumed Musema utilized during the attack. The Chamber recalls its findings as pertains to this witness on his testimony on the 13 May attack, and thus considers him to be reliable.

Witness D spoke of a large scale attack which took place on the day of Sabbath, 14 May 1994, during which she saw Musema and other leaders including Kayishema and Ndimbati. The assailants, numbering 15000, armed with firearms, grenades and traditional weapons, and singing "Let's exterminate them", arrived in an array of vehicles and attacked the refugees, the attackers being armed with traditional weapons, and finishing off the refugees who had been injured with bullets.

In cross-examination, Witness D confirmed her above testimony. The Chamber notes that she was careful to explain that she could only see certain vehicles but could not identify those aboard and that when the vehicles parked she lost sight of them. Witness D gave the further precision that she only saw the attackers once they had disembarked and were making their way to the refugees, after which she fled. The Chamber notes that the cross-examination did not impair the credibility of the witness' testimony and therefore finds it to be reliable.

•The two attacks in mid-May 1994

The Chamber notes that, in its opinion, the expression mid-May would seem to indicate a day between 10 and 20 May, and shall thus consider the testimonies of Witnesses H and S with this in mind.

Witness H testified about a first attack which occurred in mid-may 1994 against Tutsi refugees on Muyira hill, Musema leading attackers from Gisovu, including Interahamwe, and tea factory workers in blue uniforms. The witness saw Musema's red Pajero and four tea factory vehicles stop at Kurwirambo. The witness gave a detailed description of the attackers he saw, in terms of dress and weapons. Amongst the attackers were soldiers, gendarmes and civilians. According to the witness, Musema launched the attack with a gunshot and personally shot at refugees although he could not say whether he actually hit anyone.

At some point during the attack, the refugees were able to drive back the assailants and attempted to grab Musema but were prevented from doing so by other attackers.

The Chamber is satisfied with the explanations given in cross-examination by Witness H as to how he could identify the tea factory vehicles and Musema's Pajero. Other issues raised in cross-examination did not impair the credibility of Witness H. The Chamber therefore considers the testimony of Witness H to be reliable.

Witness S saw Musema take part in an attack involving between 120 and 150 assailants sometime near the middle of May on Mpura hill and in Birembo. The witness saw three Daihatsus belonging to the tea factory and Musema's red Pajero. Amongst the attackers were communal policemen and tea factory employees wearing tea factory uniforms and caps, and armed with traditional weapons.

The vehicles, except Musema's, collected more assailants from Gisovu, while more persons arrived from Gishyita. Once all the assailants were in place, they held a small "meeting" and, with a blow of whistles, launched their attack against Sakufe's house on Mumataba hill, the place of refuge for 2000-3000 Tutsis. Most of the refugees, including relatives of the witness, were killed. Throughout the attack, Musema stayed by his car with persons dressed in white, and left for Gisovu with other attackers around 17:00hrs.

In cross-examination, Witness S described in more detail the area of the attack by reference to Prosecutor photo exhibits 20.1 and 20.2. Other issues raised during the cross-examination of the witness, in the opinion of the Chamber, in no way lessened his credibility and his testimony is, as such, reliable.

As pertains to the alibi for all the Muyira hill mid-May attacks:

The Chamber has considered the alibi of Musema for the period of 7 to 19 May, during which Musema testified that he was in Rubona and visited Gitarama on occasions. The Defence presented a number of documents to support the alibi and also the testimony of Witnesses MG, MH and Claire Kayuku.

The Chamber notes that Musema stated that he visited Mata tea factory on 7 May 1994, the signature of the chief accountant of the Mata tea factory and the stamp appearing on the mission order not being specifically contested by the Prosecutor. After this visit, asserts Musema, he returned to Rubona where he stayed until 19 May 1994, not visiting any other factories, nor going beyond the town of Butare and Gitarama and thus not setting foot in Kibuye Préfecture.

Witness MH remembers meeting Musema in Gitarama on 10 May and in Rubona on 13 May 1994. In direct examination, Witness MH stated that he met Musema only once in Gitarama, most probably on 10 May 1994, although he was unable to provide the Chamber with details as to the length or subject of the conversation he had with Musema on this day, save that he believed they may have discussed the situation in Rwanda. The Chamber notes that in cross-examination, he indicated that they did not speak about why Musema had come to Gitarama and that he could not remember five years later the type and colour of the vehicle driven by Musema. In support of the alibi for this date, the Defence presented exhibit D46, a letter 18 May 1994, and a note entitled "A qui de droit" dated 10 May 1994 in Gitarama. Musema testified to receiving this note from the Minister of Defence on 10 May 1994, and contended that, had he been in Gisovu, he would not have waited eight days to transmit it.

As regards 13 May 1994, Witness MH, who on this day was fleeing to Burundi, stated that he saw Musema on 13 May 1994 for approximately 20 minutes in Rubona at the residence of the Kayuku family. He confirmed this in cross-examination.

The Chamber notes that the witness testified that he had last used his passport in 1994, when in fact it was evident from the document that it had been used in 1995.

According to Claire Kayuku, Musema returned to Gisovu around the middle of May to pay the tea factory employees. She added that, in the beginning of May, Musema's Pajero spent one or two weeks in a Butare garage undergoing repairs. Musema had explained that he had developed car problems on 7 May while in Mata, and that he remained in the Butare region until the car was repaired. A replacement car from the factory only reached him on 19 May by which time his Pajero was roadworthy. Exhibit D47, the minutes of a 19 May 1994 meeting at the factory, refers to Musema's broken down car and the resultant delay in returning to the factory.

According to Exhibit P68, the handwritten calendar personally made by Musema, he was in Gisovu from 4-14 May 1994. The Chamber recalls also that according to the record of an interview with Swiss authorities which took place on 16 March 1995, Musema again said he was in Gisovu during the week of 4-13 May 1994. When presented with these dates during the cross-examination, Musema indicated that these were errors. The Chamber notes at this juncture that, according on the handwritten calendar (P68) Musema indicated that the Gisovu Tea Factory started production again on 9 May 1994.

A number of documents were tendered by the Defence to demonstrate that Musema was absent from Gisovu Tea Factory between 7 and 19 May 1994. Exhibit D35 is a letter dated 8 May 1994 from Musema to the Director-General of OCIR-thé in Kigali, annexed to which is the mission report, which Musema says was typed by the secretarial services of ISAR at Rubona. Musema explained that he made ten copies of the report for transmission to the directors of the visited tea factories and handed over a copy for the Director-General of OCIR-thé on 10 May 1994 to the Commercial Bank in Gitarama which had a convoy going to Gisenyi. The Chamber notes that this letter, signed by Musema, is on Gisovu Tea Factory headed paper and moreover would appear to have been written in Gisovu.

Exhibit D45 contains a copy of a receipt dated 14 May 1994 from a FINA petrol station in Gitarama for a cash payment made by Musema for fuel for the Pajero, registration number A7171. Exhibit D36 is a letter written by Musema on 14 May 1994 in Butare, by which the Defence alleges Musema appears to be a man just observing the events. Exhibit D92 is a letter written by MG in Nairobi on 7 June 1994, in which she writes that, before 17 May, the Musema family was still in Butare. During her testimony Witness MG specified that she could not confirm whether or not the family was in Butare at that date. Exhibit D37, dated 16 may 1994, is a certificate of complete identity issued for one of Musema's sons and required for the issuance of a passport. Exhibits D38, D39 and D40 are copies of passports issued on 18 May 1994 in Gitarama, for Musema's sons, D40 being signed by Musema for his thirteen year old son. Numerous other documents were produced, including letters which were received at the tea factory during this period but which were either not acted upon until much later by Musema or not even seen by Musema, for instance exhibit D43, a letter dated 16 May 1994 from the Chief of Personnel to the bourgmestre of Gisovu, in furtherance of discussions held on 13 and 16 May respectively and regarding weapons training of security personnel. Exhibit D41, a request for employment, received 5 May 1994 at the tea factory, was only dealt with by Musema on 14 June 1994. Exhibit D42, a request for accommodation for security reasons, was received on 11 May 1994, yet there appears no date as to when the request was dealt with. Exhibit D44, a request for accommodation, received at the tea factory on 16 May 1994 was dealt with by Musema only on 14 June 1994.

The Chamber has considered all the above evidence. As regards the testimony of MH, the Chamber notes that, as regards the meeting of 10 May with Musema, the witness was unable to provide any specific details, this contrasting with his testimony on the meeting of 13 May 1994, which is detailed and specific in a number of ways. The Chamber notes however that the latter testimony is uncorroborated by other Defence evidence, including Musema's testimony. Claire Kayuku testified that Musema returned to Gisovu during the middle of May to pay the employees, whereas the handwritten calendar drafted by Musema, exhibit P68 and his statement to the Swiss juge d'instruction of 16 March 1995, similarly place Musema in Gisovu between 4 and 14 May. The testimony of MH is thus of little probative value as it is unsupported by any other direct evidence.

Other evidence would suggest that Musema was indeed in Gisovu during this period. Exhibit D35, the cover letter for the mission report, is dated 8 May 1994 in Gisovu. According to Musema, this letter was typed up in Rubona.

In the handwritten calendar, Musema clearly indicates that on 9 May 1994, the tea factory re-started production. This date is confirmed in his mission report. Moreover in exhibit P56 Musema states that "[o]n 3 May, I once again visited the factories in the South West, that is, Gisakura and Shagasha. I then returned to Butare. On 7 or 8 May, I returned to Gisovu and on 9 May, I supervised the resumption of operations of the factory. I remained there until 19/20 May and travelled to Butare to join my family."

The Chamber finds Musema's supposed absence from the factory on this occasion irreconcilable with his evidence during this case, evidence which tends to portray Musema as a dedicated director of the tea factory who at all times shared equivalent concerns for the safety of his family and for the factory, often, according to him, leaving the former to rejoin the latter, for example in April, May, June and July 1994, despite threats to his safety. Moreover, in exhibit D51, the report of the meeting of 27 May 1994, recalls the minutes of the meeting of 19 May 1994, and states "[t]he meeting of 19 May 1994 also discussed the breakdown that the manager had asked the Agronomist Benjamin KABERA to repair and which was not done in good time (after 10 days) giving rise to heavy loses (sic);[...]". This would presuppose that the Agronomist had received instructions on 9 May 1994. The Chamber also presupposes that as it was now Musema himself dealing with this breakdown, as the Director of the tea factory, he must have either directly or indirectly given the original instructions.

Musema, throughout his testimony, affirmed that his handwritten calendar and the Swiss statements were inaccurate, and that any errors therein were subsequently corrected as documents were uncovered during investigations from, amongst other places, Gisovu Tea Factory. In some instances, such an explanation is valid. However, as regards the present period, the Chamber cannot accept such an explanation. In the said calendar and the 16 March 1995 Swiss statement, Musema clearly remembers being in Gisovu between 4 and 14 May 1994, and recalls that he was present the day the tea factory started up production. To remember such an occasion and one's presence thereat, is not, in the opinion of the Chamber, something one forgets and recalls only after seeing newly uncovered documents. Rather, it is an event which, as Director of the tea factory, Musema would beyond any doubt not have forgotten.

The Chamber notes other discrepancies in the alibi as regards his vehicle, registration A7171, which he says developed problems on 7 May 1994 and was not repaired until 19 May 1994 in Butare, being the date on which he finally returned to Gisovu. Exhibit D45, dated 19 May 1994, includes a bill for repairs to the vehicle in April 1994 and a petrol receipt from a FINA petrol station in Gitarama dated 14 May 1994. The Chamber must raise a number of issues as regards this exhibit. If the Chamber were to follow Musema's version of the events, the Pajero, registration A7171, could not have been fit enough to drive from Butare, where he says it was being repaired, to Gitarama before 19 May 1994. Thus, notes the Chamber, the above mentioned petrol receipt puts into doubt Musema's testimony.

Whereas, if the Chamber accepts the handwritten calendar and the said Swiss statement, the FINA receipt would support the dates therein by confirming that Musema travelled on 14 May 1994. In the opinion of the Chamber, the receipt, and the letter of 14 May 1994 which Musema says he wrote in Butare, are by themselves, insufficient to refute the possibility that on the same day, yet at a different time, Musema was in the Bisesero region.

Moreover, the Chamber notes that Musema advanced no details, namely with which vehicle or other mode of transport, as to how he travelled to Gitarama on 18 May 1994 to collect the passports of his sons. The Chamber finds this at odds with his alibi, as, to have indicated such details would have given support to his testimony.

The Chamber notes that Musema kept his receipt for car repairs dated 19 April 1994, and the petrol bill of 14 May 1994, yet kept no such receipts kept for the repairs, which according to Musema, occurred between 7 and 19 May 1994.

As regards the specific attacks of 13 and 14 May 1994 and the name of the hills, the Chamber considers, as put to Musema, at trial, that one would remember where one was when such momentous massacres in the Bisesero region occurred, without having to consult a calendar. The Chamber cannot accept the explanations given by Musema that he only knew of these massacres from hearing of them on the radio and because they were discussed at a meeting at the Gisovu tea factory on 19 May 1994. Nor can the Chamber accept that Musema did not know the names of specific hills in the Bisesero region, considering that he had been director of the Gisovu tea factory since 1984 and that, as testified by numerous witnesses, there were many "thé villageois" plantations on hills around the Bisesero region. Such plantations, in the opinion of the Chamber, would undoubtedly have been visited by Musema in his capacity as director of the tea factory.

The Defence has argued that certain documents, such as receipts and correspondence, and even Musema's delays in replying to correspondence, should be interpreted as supporting his defence of alibi. In the Chamber's view, this evidence, while it may in some cases be consistent with the alibi, is not probative thereof. For example, the failure of Musema to reply to correspondence received in May 1994 until June 1994 could be explained by his absence from the tea factory in Gisovu, or it could be explained in may other ways, for instance that he was attending to other issues. Such delays, in the opinion of the Chamber, do not, in themselves, support the alibi that Musema was absent from the Gisovu tea factory in mid-May 1994.

In light of the above, the Chamber must reject the alibi of Musema as regards 13 May, 14 May and mid-May 1994, as it is not supported by evidence sufficient to cast any doubt on the overwhelming reliable evidence for this period presented by the Prosecutor.

Findings on all the mid-May Muyira hill attacks:

The Chamber therefore finds that, on the basis of consistent and reliable evidence presented by the Prosecution witnesses discussed above, it has been established beyond reasonable doubt that Musema participated in attacks against Tutsi refugees in the Bisesero region in mid-May 1994, including on 13 and 14 May.

Consequently, the Chamber finds that it has been established beyond reasonable doubt that on 13 May 1994, a large scale attack occurred on Muyira hill against up to 40000 Tutsi refugees. The attack started in the morning. The attackers, who had arrived at Muyira hill on foot and in an array of vehicles including Daihatsus belonging to the Gisovu Tea Factory, were comprised of Gisovu Tea Factory workers in uniform, gendarmes, soldiers, civilians, and Interahamwe. The attackers were armed with firearms, grenades, rocket launchers and traditional weapons, and sang anti-Tutsi slogans.

The Chamber finds that it has been established beyond reasonable doubt that Musema was one of the leaders of the attackers coming from Gisovu and drove his red Pajero to the attack. Musema was armed with a rifle. The Chamber finds that it has been established beyond reasonable doubt that he used the weapon during the attack. The Chamber finds that it has been proved beyond reasonable doubt that thousands of unarmed Tutsi men, women and children were killed during the attack at the hands of the assailants and that many were forced to flee for their survival.

The Chamber finds that it has been established beyond reasonable doubt that during the attack, Musema asked one of the attackers, a certain policeman by the name of Ruhindara to fetch a young woman called Nyiramusugi after having found out from him that she was still alive. The Chamber finds that Musema searched for the young woman throughout this period.

As regards 14 May 1994, the Chamber finds that it has been established beyond reasonable doubt that a large scale attack occurred on Muyira hill 14 May 1994 against Tutsi civilians, and that the attackers, numbering as many as 15000, were armed with traditional weapons, firearms and grenades, and sang slogans.

The Chamber finds that it has been established beyond reasonable doubt that Musema was amongst the leaders of the attack of 14 May 1994 and that his red Pajero was at the site of the attack. The Chamber finds that it has been proved beyond reasonable doubt that Musema was armed with a rifle during the attack.

The Chamber does not find that it has been established beyond reasonable doubt that Musema shot a certain Ntambiye and a certain Iamuremye during the attack.

The Chamber is satisfied that it has been established beyond reasonable doubt that Musema participated in an attack in mid-May 1994 on Muyira hill against Tutsi refugees. The Chamber finds that it has been established beyond reasonable doubt that Musema led attackers, including Interahamwe and tea factory workers from Gisovu. It has been established beyond reasonable doubt that Musema's red Pajero and tea factory vehicles were seen at the attack.

The Chamber finds that it has been proved beyond reasonable doubt that Musema launched the attack with a gunshot and personally shot at refugees. It has not been established, however, that Musema actually hit anyone with his gunshots.

The Chamber is satisfied beyond reasonable doubt that Musema participated in an attack on Mumataba hill in mid-May 1994. It has been established that the assailants, numbering between 120 and 150, included tea factory employees, armed with traditional weapons, and communal policemen.

The Chamber finds that it has been established beyond reasonable doubt that in the presence and with the knowledge of Musema, tea factory vehicles transported attackers to the location. It has been established beyond reasonable doubt that the attack was launched on the blowing of whistles, and that the target of the attack were 2000 to 3000 Tutsis who had sought refuge in and around a certain Sakufe's house.

The Chamber finds that it has been proved beyond reasonable doubt that Musema remained next to his vehicle, with others, throughout the attack, and left with attackers for Gisovu around 17:00hrs.

•End of May attack at Nyakavumu cave

As pertains to the facts alleged:

Witnesses AC, H, S and D, all testified about an attack which occurred at Nyakavumu cave.

Witness AC saw Musema amongst others arrive at the cave in which 300 people had sought refuge. Following orders from Ndimbati, Ruzindana, Musema, Niyitegeka and Kayishema, the cave was sealed with wood, then a man from Gisovu set the wood on fire with kerosene and grass. Only one of the refugees survived, while the others were asphyxiated to death by the smoke.

The Chamber has considered the issues raised during cross-examination and is satisfied by the explanations given by the witness. Notwithstanding this, and as the Chamber stated in its factual findings on 14 May 1994, the testimony of Witness AC shall only be accepted as evidence to the extent that it is corroborated by other testimony.

Sometime around the end of May early June, said Witness H, he saw Musema shortly before the attack, in a convoy going in the direction of the cave, and thus presumed that he must have been present at the cave. Within the convoy was Musema's Pajero and tea factory vehicles. The witness observed from a nearby hill assailants destroy the fence of houses in the vicinity for firewood and set light to the entrance of the cave. Only one person survived the fire.

The Chamber considered the issues raised in cross-examination and deems them not to have impaired the reliability and testimony of Witness H.

Witness D observed the attack from a cave and said she saw Musema amongst the assailants. From where she was hiding, she said that she was able to see the attackers start a fire at the entrance of the cave and that the smoke suffocated the 400 refugees inside. After the attack she went down to the cave and saw many bodies, and then fled. The Chamber notes that during her testimony, she was unable to say exactly when the attack occurred.

In cross-examination, Witness D specified that she was unable to see any vehicles from where she was hiding on the side of the hill. The Chamber found this witness to be consistent and reliable throughout her testimony.

Witness S described how sometime near the end of May, attackers chased refugees who were fleeing towards Kigarama hill. Amongst the attackers he saw Musema, who was armed with a long rifle, and tea factory workers aboard factory vehicles. The refugees were forced to split into three groups, one of which went towards Nyakavumu cave.

According to the witness, the assailants with Musema blew their whistles and shouted three times to call back those attackers who had gone beyond Nyakavumu cave. The attackers then gathered around Musema for a couple of minutes and exchanged a few words, after which they destroyed a nearby house for firewood which they took to the cave.

A short while later, although he did not see the attack on the cave, Witness S saw smoke rise. The witness indicated that he had hidden his wife in the cave the very same day.

After the attackers had left, he and eight others went to the entrance of the cave, and pulled out three survivors, two of whom died the next day.

In cross-examination, the Defence referred to a previous statement of the witness in which he provided more details on the involvement of Musema in the attack. In this regard, the witness stated, as he had in direct-examination, that he did not actually see the attack on the cave. This and other issues raised in cross-examination did not impair the credibility of Witness S, and thus the Chamber finds him to be credible.

The Chamber has also considered the testimony of Witness AB who testified that sometime in the month of June he saw Musema, who was armed and wearing a military jacket, at the Kibuye military camp in the company of second Lieutenant 'Buffalo' Ndagijimana, Ndimbati and Doctor Gérard Ntakirutimana. The witness overheard them discussing one last operation that had to be carried out in Bisesero. According to the witness, Musema said that information that he had received indicated that Tutsis were hiding in the tin mines and that, according to the witness, Musema said that he therefore needed a lorry load of firewood to start a fire at the entrance of the hole where they were hiding, and consequently to block the hole to prevent anyone getting out. Although Musema asked an officer of the camp for the wood, the witness could not say whether any was given to him.

In cross-examination, Witness AB confirmed that Musema had come to the camp in his red Pajero. The witness added that he had never been to the cave where many people had died. Other issues raised in cross-examination did not impair on the consistency of the witness' testimony.

The Defence admitted that such an attack took place near the end of May or in June 1994 and that those who had sought refuge in the cave were Tutsi civilians.

Having considered all the above evidence, it would appear, in the opinion of the Chamber, that the attack on the cave occurred at some point between the end of May and early June.

As pertains to the alibi:

The Chamber has considered the alibi for this period.

The alibi places Musema in Gisovu on 27 and 28 May 1994, at the Gisovu Tea Factory, and is supported by documentary evidence and the testimonies of Claire Kayuku and of Musema. Musema travelled to Shagasha with his family on 29 April 1994. Then, according to the alibi, on 30 May 1994 until 10 June 1994, Musema was away from the Gisovu Tea Factory, having traveled on 30 May to Shagasha. He rejoined a technical mission in Cyangugu and spent the day in Zaïre on 31 May. Copies of his passport and the pertinent border stamps were filed in support of this alibi.

On 1 June 1994, according to the alibi, Musema went to Shagasha where he stayed with his family until returning to Gisovu on 10 June. Exhibit D57, issued in Cyangugu, was produced to support the alibi of Musema for 3 June, and exhibit D58 for 6 June 1994.

Claire Kayuku confirmed that Musema stayed with her and the family until 7 or 10 June 1994. The Chamber notes that all of the above evidence is corroborated by Musema's handwritten calendar (P68), which indicates that he left Gisovu on 29 May with his family and returned to Gisovu only on 10 June.

Findings:

The Chamber notes that the alibi does not specifically refute the presence of Musema at the cave. Although the exact date of the attack is unclear from the testimonies, the Chamber notes that the witnesses all provided an overall consistent account of the events at Nyakavumu cave throughout their testimonies. The fact that the date of the attack is unclear does not, in the opinion of the Chamber, impair on the reliability of the witnesses.

The Chamber therefore finds that on the basis of the overwhelming evidence of four Prosecution witnesses, all of whom presented consistent testimonies as to the attack on the cave, the Chamber rejects the alibi and finds that it is established beyond reasonable doubt that Musema participated in the attack on Nyakavumu cave.

The Chamber consequently finds that it has been established beyond reasonable doubt that Musema participated in the attack on Nyakavumu cave at the end of May 1994. It has been established that Musema was aboard his Pajero in a convoy, which included tea factory Daihatsus aboard of which were tea factory workers, travelling towards the cave. It has been proved beyond reasonable doubt that Musema was armed with a rifle. It has been established beyond reasonable doubt that Musema was present at the attack during which assailants closed off the entrance to the cave with wood and leaves, and set fire thereto. The Chamber finds that it has been proven beyond reasonable doubt that over 300 Tutsi civilians who had sought refuge in the cave died as a result of the fire.

•Attack of 31 May 1994, Biyiniro hill

As pertains to the facts alleged:

Witness E saw Musema during an attack on Biyiniro hill after fleeing from the adjacent Muyira hill where 20000 refugees were being attacked by assailants from Gishyita and Gisovu. Amongst the attackers were tea factory employees in uniform and gendarmes who had arrived aboard an array of vehicles including tea factory Daihatsus. The refugees, who identified Musema as one of the leaders and as a provider of vehicles for the attackers, tried to catch him. Musema fled in his Pajero under the cover of gunshots of soldiers. The attack continued after the departure of Musema.

In cross-examination, the witness provided more details as to the geographical location of the attack and as regards the types of vehicles he saw.

As pertains to the alibi:

According to the alibi, Musema, after having spent the night in Shagasha, returned to Cyangugu on 31 May 1994 to continue his participation in a technical mission. Musema travelled with the rest of the mission to and from Zaïre on that day. In support of the alibi, the Defence tendered exhibit D56, containing a photocopy of page 12 of Musema's passport, showing two signed stamps by the Rwandese immigration authority in Bugarama, one of exit and one of entry, and also two signed stamps by the "Poste frontalier" of Kamanyoma in Zaïre, all four stamps dated 31 May 1994. The Defence also tendered exhibit D54, being an "Autorisation de sortie de fonds" dated 29 May 1994, authorising advance payment of funds to Musema for a mission to Zaïre.

Findings:

Although the Chamber finds that the evidence presented by Witness E was consistent throughout his testimony, the alibi and the documents tendered in support thereof are such as to cast doubt on the allegations of the Prosecutor. Therefore, the Chamber does not find Musema's alleged participation to the attack on Biyiniro Hill on 31 May 1999 to have been established beyond reasonable doubt.

•Attack of 5 June 1994, near Muyira hill>

As pertains to the facts alleged:

Witness E saw Musema in his car on 5 June 1994 near Muyira hill and a number of tea factory Daihatsus parked on the road at the Gishyita-Gisovu border, near Muyira hill. The attackers seen by the witness included gendarmes, tea factory workers, communal policemen, Interahamwe and guards. Musema, who carried a rifle, and other leaders, including Kayishema, Sikubabwo and Ruzindana, gave instructions to the attackers who subsequently killed many refugees, including the witness' younger sister. Musema is said also to have fired shots with a rifle during the attack.

The Chamber recalls its recent findings as regards the cross-examination of this witness on the attack on 31 May 1994 near Biyiniro Hill, and notes that the evidence presented by the witness was consistent throughout his testimony. The Chamber confirms this also with respect to his above testimony.

As pertains to the alibi:

Musema's alibi alleged that after meeting in Cyangugu, Musema travelled back to Shagasha where he and his family remained until 10 June 1994. This alibi was supported by exhibits D57, 58 and 59, the testimony of Musema and that of Defence Witness Claire Kayuku. The Chamber notes that cross-examination during Musema's testimony did not specifically challenge the alibi for this period.

Findings:

In light of the above, although the evidence presented by Witness E was found to be consistent throughout his testimony, the alibi of Musema for these dates, supported by documentary evidence and oral testimony, and scrutinized by the Chamber is, in the opinion of the Chamber, such as to cast a reasonable doubt on the allegation of the Prosecutor as to the involvement of Musema in the attack of 5 June 1994 as alleged.

As such, the Chamber finds that it has not been proved beyond reasonable doubt that Musema participated in the attack of 5 June 1994.

• 22 June 1994, Nyarutovu cellule

As pertains to the facts alleged:

It was alleged by Witness P that Musema led an attack on 22 June 1994 in Nyarutovu cellule. Witness P described how Musema stopped in a blue Daihatsu on the Gishyita road, about 30 metres from where he was. Musema was standing on the road next to the vehicle when he shot him, holding a firearm with two hands. He described how two shots were fired, one of which hit him in the ankle, and one of which hit and killed a certain François, who was with him.

Witness P also stated that Musema instructed Tea Factory workers who were with him to catch a young woman that was with the witness, who had run away, and to bring her back alive, so that "they could see how Tutsi women were made". After the attackers caught the young woman and put her in the vehicle, Musema drove off with them in the direction of Gisovu.

In cross-examination the witness advanced more details relating to the allegations, including the fact that he had not seen Musema fire the shots, but that he assumed it was he who had fired, since he saw Musema aim, before he was shot in the ankle, and Musema was the only one in the group with a firearm.

The Chamber notes that this cross-examination did not undermine his testimony, and, accordingly, finds the evidence presented during his testimony to be consistent.

As to pertains to the alibi:

According to the alibi, Musema was in Gisenyi on 22 June until 27 June, conducting business. During this period he also visited Goma, in Zaïre. He returned to Gisovu on 28 June 1994. This alibi was supported by exhibits D65, 90 and 91, and by the testimony of Claire Kayuku.

Findings:

Despite the consistent evidence of Witness P, the Chamber finds that Musema's alibi for this date, heavily scrutinized by the Chamber, supported by documentary evidence and oral testimony, is such as to cast doubt on the allegation of the Prosecutor as to the involvement of Musema in the events alleged of 22 June 1994.

As a result, the Chamber finds that it has not been proved beyond reasonable doubt that Musema led or participated in an attack in Nyarutovu cellule on 22 June 1994.

5.3 Sexual crimes

The Chamber will now assess, one by one, four paragraphs (4.7 to 4.10) of the Indictment according to which Musema allegedly committed crimes connected with sexual offences (cf. Annex A to the Judgement).

General allegations of rape and of encouraging others to capture, rape and kill Tutsi women throughout April, May and June 1994 (paragraph 4.7)

Paragraph 4.7 of the Indictment states the following:

"At various locations within the area of Bisesero and Gisovu, in the prefecture of Kibuye, throughout April, May and June 1994, Alfred Musema, committed acts of rape and encouraged others to capture, rape and kill Tutsi women, seeking refuge from attacks within the area of Bisesero in Gisovu and Gishyita communes, Kibuye Prefecture."

Musema admitted that there had been mass killings at the Gisovu Tea Factory and around.

Witness M testified that during the meeting held on Karongi hill on 18 April 1994, Musema said that "those who wanted to have fun could rape their women and their children, without fearing any consequences"⁽¹¹⁾, referring to Tutsi women and children.

Witness M also testified that subsequently, the day after, on 19 April, two of the men who had attended this meeting, together with three other men, took part in the rape of his cousin and niece, on the hill of Rushekera, opposite to Mount Karongi. Witness M was hiding in the undergrowth on a hillside opposite the hillside where the rapes took place. He said that he was at no more than 300 metres from where the attackers were. In the course of the cross-examination, witness M confirmed that he saw the five rapists at a distance of between 250 and 300 meters. The witness explained that the women were dragged out of the bushes to a more visible area on the "terraces"on the hillside used for cultivation.

Factual Findings:

According to the Chamber, the Prosecutor has not proven beyond reasonable doubt that Musema was present at the meeting on 18 April 1994 on Karongi hill. The Chamber here refers to its factual findings in Section 5.2 above, under the heading "Karongi hill FM Station, 18 April 1994".
Under these circumstances, the Chamber considers that there is no evidence that Musema ordered the rapes.
Concerning the general allegations in paragraph 4.7 that Musema himself committed acts of rape throughout April, May and June 1994, the Chamber refers to its conclusions below regarding paragraphs 4.8 to 4.10 of the Indictment.

Alleged acts of rape and murder of Annunciata Mujawayezu on 14 April 1994 (paragraph 4.8)

Paragraph 4.8 of the Indictment reads as follows:

"On 14 April 1994, within the area of the Gisovu Tea Factory, Twumba Cellule, Gisovu Commune, Alfred Musema, in concert with others, ordered and encouraged the raping of Annunciata, a Tutsi woman, and thereafter, ordered, that she be killed together with her son Blaise".

Witness I, a 32 year-old Tutsi woman, testified that in 1994 she was working as a teacher in a primary school. Her husband worked in the Gisovu Tea Factory from 1992 to 1994, and they lived within the factory premises. The witness testified that when the killing began at the tea factory, she and her youngest child took refuge in the Guest House where they were discovered by Interahamwe. The Interahamwe showed her a list of people to be killed. The first name on the list was her husband's, and her own name was second. Next on the list were the names of Canisius, the Chief Accountant of the factory, and his wife Annunciata Mujawayezu and their children. Two of Annunciata Mujawayezu's children were killed at that time by the Interahamwe. Annunciata Mujawayezu escaped and went to hide in the tea plantations. The witness testified that on that day, 13 April, Canisius was killed.
Witness I was held by the Interahamwe to wait for the arrival of Musema, together with the children of a certain Ndoli. On the next day, 14 April, the witness saw Musema arrive in his vehicle at the tea factory. He was accompanied by two soldiers, whom she named, in a second vehicle. She said they told her that they had come for her children and for the children of Ndoli. Ndoli's children were killed on the spot by an old man who did not want them to suffer. The witness testified that Musema asked where her children were and ordered them to be taken away to be drowned or put in bags and beaten like rats. Her two children, one and three years old, were then taken from the house. The witness followed the vehicle, throwing stones at it. Though she was later reunited with her own children, Witness I testified that she subsequently discovered sacks which had been thrown away in the forest containing bodies of dead children, some of which had been decapitated, as well as some children still alive, in the throes of death. The witness recognized many of these children whom she named at trial.
When asked whether they should kill Witness I, the witness heard Musema say no, that they should take her with him to the guest house. The witness testified that with the help of someone called Mushoka, she was able to escape and hid in a nearby bush. She then met Annunciata Mujawayezu who said she was hiding in Ndoli's house. They decided to go and hide close to the guest house in the tea plantation so that they could hear what was being said and know where attacks would be made and where they could hide. Annunciata Mujawayezu was with her child Blaise.
Witness I testified that Musema and other people came to the bungalow, close enough for her to hear what they were saying. Annunciata Mujawayezu's child Blaise, a five year old, then began to cry from hunger, and she told Witness I that she did not want everyone to be killed so she was leaving with the child. She then stood up, and Musema called her from the bungalow and told her, "come we are going to kill you like the Inyenzi killed our own people." According to Witness I, Musema then called the Twas and told them to rape her and to cut one of her breasts off and give it to the child to eat if the child was hungry. There were then many cries. Witness I testified that she was sure the breast was cut because she heard them say to Annunciata Mujawayezu that since she only had one breast nobody could "treat" her for that. Witness I further testified that she was sure that Annunciata Mujawayezu was raped because she heard them say "you slept with the Tutsi now you have slept with the Twa."⁽¹²⁾ Witness I said she continued to hear the cries of Annunciata Mujawayezu and later on sounds which she described as snoring. She thought the child was killed before because she heard something like a blow and the child died immediately. Witness I stated that Musema then told Ndimbati and another man, called Bayingana, that they had done a good job, that the list no longer had many names and that he was going to pay them.
Witness I testified, on cross-examination, that, she recognized Musema's voice and distinctly heard the cries and comments. Although many people were speaking at the same time, and there was a lot of noise when Musema was speaking, she added that she only heard when Musema ordered Annunciata Mujawayezu's breast to be cut off. Further, the witness said that somebody else told her, after she had taken refuge at her house, that Annunciata Mujawayezu's killers had driven stakes into her corpse.
Still on cross-examination, Witness I was presented with a handwritten statement of hers dated 15 April 1995. In this statement she wrote that Musema had undressed Annunciata Mujawayezu. The Witness explained that in her handwritten statement she included information she had been told but that in her testimony she had only related what she herself had seen and heard. She said she did not herself hear anything about Musema undressing Annunciata Mujawayezu. Similarly, she was presented with having written that the hands and ears of Annunciata Mujawayezu, as well as her breast, were cut off and given to her son Blaise to eat. She again explained that this handwritten statement, which she had done for a priest, was an account of everything she had heard others say, and not limited to what she herself heard, which was only related to the cutting off of the breast. Witness I was presented with another portion of the pre-trial statement in which she was recorded as saying that some men in the crowd ordered the Twas to rape Annunciata Mujawayezu without specifically mentioning Musema.
The Defence extensively cross-examined Witness I on her physical location and the extent to which she could have been able to see from where she was hiding. In her testimony, which she reaffirmed on cross-examination, she stated that she was approximately 1.5 metres from the bungalow. She clarified that she could not see Musema because she was lying on the ground of the plantation but that she knew and recognized his voice. She also clarified that pieces of wood were missing from the fence, differentiating it from the picture of the fence introduced by the Defence and dated 1995. When questioned about the statement made to a Swiss judge on 16 June 1995 in which she said she saw Musema on 15 April 1994 but that she was not sure of the day, Witness I acknowledged that she had thought it was the following day but had not been able to be specific with regard to the dates.
Defence counsel extensively questioned Witness I regarding discrepancies between her pre-trial statements and her testimony as to how she was reunited with her children the night following the death of Annunciata Mujawayezu. The witness maintained repeatedly that she had not spent the night in the forest with her children, as recorded in a statement, but that the watchman had taken the children to his home after he had come to the forest looking for her unsuccessfully. The witness noted on cross-examination that with regard to the long period of several weeks in which she was hiding it would be difficult to recount every single detail of where she stayed and when. She stated that she had in fact hidden in all of the places mentioned in her pre-trial statements at various times.
Witness L, a thirty nine year-old Hutu employed at the tea factory, testified that Musema returned to the factory around the 18th of April. Witness L said he knew Annunciata Mujawayezu. He recounted that on the day Musema returned, the bourgemestre Ndimbati arrived with some young people, and they said that they had come from Bisesero to have a drink at the guest house. He said he saw them there with Annunciata Mujawayezu and they were drinking, that Musema came and joined them there together with Annunciata Mujawayezu, all standing close to the fence which surrounded the guest house. He said Musema stood by Ndimbati but that the witness was up the road and did not hear what they were saying to each other. The witness testified that after a short while Musema went into his car but in the meantime Annunciata Mujawayezu was made to enter the guest house by those who were with her, through the back door. Witness L, who was observing from the road, continued on his way. The next morning he asked a child whether he had seen a woman in the guest house and the child replied that the woman had been killed.
On cross-examination, Witness L stated that he did not see Musema go into the guest house and that he did not see Musema at the guest house with Annunciata Mujawayezu.
On re-examination, the witness clarified that he saw Musema standing near the pergola (bungalow) and that Annunciata Mujawayezu was standing with the others behind the pergola. He added that Annunciata Mujawayezu was holding a child in her arms which he was told was hers.
In the course of the cross-examination, the witness also said that the killings at the tea factory started before the return of Musema and that the killing at the Guest House occurred a few days after the other killings at the tea factory.
In re-examination, the witness added that he was not at the Tea Factory when the killings took place there, as he was off duty. Witness L confirmed that when he saw Musema at the Guest House in the company of the bourgmestre, Musema had only just returned from Kigali and not even gone to his residence. The witness further said that he saw Nzamwita but not Musema with Annunciata Mujawayezu enter the Guest House.
Witness PP, a 46 year-old Hutu was employed at the Gisovu tea factory in 1994, testified that on 13 April 1994 he saw a number of bodies, including the body of Annunciata Mujawayezu, whom he knew, which was below the road near the canteen. He said her body had clothes on its lower part, and the face was turned towards the canteen. The witness testified that he did not observe any injuries on the body from that position. Witness PP identified a number of the bodies as those of Tutsi employees of the factory. Witness PP further testified that he knew Musema was around on the evening of 14 April 1994 because he saw his vehicle near the canteen, which was below the factory. He clarified that this was the same canteen near which he saw the body of Annunciata Mujawayezu.
The only witness for the Defence on the allegations relating to the rape and killing of Annunciata Mujawayezu is Musema. According to his testimony, Musema was at the Guest House on 14 April 1994, talking with the bourgmestre Ndimbati, when they suddenly heard a woman's cough and the cry of a child. He realized later that it was Annunicata. He then saw a few people, among them a soldier and Emmanuel, a school teacher, going into the Guest House. Emmanuel came out and was wiping blood off his sword. Musema testified that he suspected some complicity between the bourgmestre and the others. When the others had gone, he asked his Chief of Personnel what had happened. He did not ask Emmanuel. The Chief of Personnel told him that Annunciata Mujawayezu had been killed and that they had arrived too late. No mention was made of the child.
On cross-examination, Musema was confronted with his other accounts of this incident, which differ substantially from his testimony. Prosecution brought forward notably three interviews of Musema given to the Swiss Judge, namely on 12 May and 13 July 1995, and on 4 March 1996, respectively.
In a statement he made on 12 May 1995 to Swiss authorities (Exhibit P59), Musema was reported to have said that Annunciata Mujawayezu was murdered while he was touring the factory and en route to the Guest House where the bourgmestre joined them. A pick-up truck arrived carrying many people including a teacher and a police inspector. People shouted that Annunciata Mujawayezu had been found and Musema said he shouted back that she was not to be killed. The people with the bourgmestre then ran towards her and killed her and the people at her residence. In a statement made on 13 July 1995 to Swiss authorities (Exhibit P60), Musema was reported to have said that Annunciata Mujawayezu was killed at the residence of the Chief Accountant⁽¹³⁾. People took her from the tea plantation near the guest house to the staff quarters above the guest house more that 300 metres away. He was inside the guest house together with Ndimbati and several others. He noted that the guest house referred to both the main building and the pergola (bungalow). He said that he and Ndimbati heard cries from the tea plantation, that they both stayed inside while others went out. In a statement made on 4 March 1996 to Swiss authorities (Exhibit P61), Musema was reported to have said that Annunciata Mujawayezu had been killed in her house from where the cries were heard.

Factual Findings:

The Chamber notes that the testimony of Witness I was confusing in certain respects, particularly with regard to the details of her movement and the chronology of events. However, her testimony was consistent on cross-examination, and she did provide reasonable and clear answers to the questions raised on cross-examination with regard to her various pre-trial statements. The Chamber noted the determination of the witness to clarify the distinction between what she had heard others say and what she herself witnessed. She also carefully indicated on numerous occasions what she did not see or hear, as well as what she did see or hear. With regard to her account concerning the rape and murder of Annunciata Mujawayezu, the Chamber finds Witness I to be clear and consistent and accepts her testimony.
The testimony of Witness L is limited with respect to its probative value because the witness was not able to hear Musema from where he was standing. What he saw, that is Musema standing near the pergola (bungalow), Annunciata Mujawayezu standing by the fence with the others and subsequently being taken by them into the guest house, is consistent with Witness I's much more detailed account of the event. On cross-examination, the witness clearly stated that Musema did not enter the guest house. This is not inconsistent with the other accounts, all of which indicate that he remained outside and left shortly thereafter in his vehicle.
It, it is clear, from Witness L's testimony, Witness I's testimony and Musema's own testimony, that Musema and Annunciata Mujawayezu were at the Guest House on 14 April 1994. It appears that Annunciata Mujawayezu was near the Guest House at the beginning but afterwards she was taken in by the back door. According to Musema's testimony to the Swiss Judge, he was inside the Guest House. The Chamber notes that Witness L places the date of this incident as around 18 April. In light of the evidence of Witness I and Musema himself that this incident took place on the 14 April, the Chamber considers that the witness is mistaken about the date, which he indicated in any event as an estimation.
The testimony of Witness PP is limited with respect to its probative value because Witness PP was not present when the killing of Annunciata Mujawayezu occurred. The witness saw her body and testified that there was no clothing on the upper half of the body. This evidence would be consistent with the account of Witness I that sexual violence might have been directed to her upper body. However, Witness PP noted that he did not see injuries to the body from its position. The testimony does not make it clear whether the body was face down or on its back. For this reason, the Chamber finds that the evidence of Witness PP, while credible, is not helpful in establishing what happened other than to corroborate that Annunciata Mujawayezu was killed and that Musema was present at the factory on 14 April. The Chamber further notes that the witness testified that he saw the body of Annunciata Mujawayezu on 13 April, whereas both Witness I and Musema date the death of Annunciata Mujawayezu to 14 April. The Chamber considers that the witness is mistaken about the date.
The Chamber has considered the testimony of Musema in light of the pre-trial statements he made to Swiss authorities which differ not only from his testimony but from each other in material respects. In one version of the incident, Musema tried to stop the killing of Annunciata Mujawayezu. In another version, he came too late. In each version, she was killed in a different place. In light of these gross inconsistencies, for which Musema does not have any reasonable explanation, the Chamber concludes that the only reasonable explanation for the inconsistencies is that he is not being truthful.
Having considered the evidence, as set forth above, the Chamber finds that the Prosecution has established beyond a reasonable doubt that Musema ordered the rape of Annunciata Mujawayezu, a Tutsi woman, and the cutting off of her breast to be fed to her son. No evidence was introduced to indicate that he ordered her to be killed, although there is conclusive evidence that she was in fact killed. Considering Musema's high position in the commune, he must have known that his words would necessarily have had an important and even binding impact on his interlocutors.
There is no conclusive evidence that Annunciata Mujawayezu was raped, or that her breast was cut off, although there is some evidence to support an inference that these acts were perpetrated.

Alleged acts of rape and murder of Immaculée Mukankuzi and others on 13 May 1994 (paragraph 4.9)

Paragraph 4.9 of the Indictment states the following:

"On 13 May 1994, within the area of Bisesero, in Gisovu and Gishyita communes, Kibuye Prefecture, Alfred Musema, in concert with others, raped and killed Immaculée Mukankuzi Mukankusi, a pregnant Tutsi, and thereafter ordered others accompanying him to rape and kill Tutsi women seeking refuge from attacks."

Witness J, a 49 year-old Tutsi woman, testified that she had five children, four girls and one boy. In 1994 the girls were 25, 23, 19 and 12 respectively, and the boy was 9 years old. The witness testified that she arrived in Bisesero in April 1994 seeking refuge on Muyira hill with two of her children. The other three children had been shot by Charles Sikubwabo, the bourgmestre of the Gishyita Commune on 7 April as she was fleeing.
Witness J testified that she first saw Musema on 13 May, leading the attackers, although she stated that she knew him previously as the managing Director of the Gisovu Tea Factory, where her husband worked. He was with about thirty young men, many Interahamwe wearing red shirts and white shorts and armed with clubs, sticks and machetes. Witness J testified that she was with five other Tutsi women and that when they saw Musema they ran and hid in a bush. He fired in the air, and they came out of the bush and tried to run away. Musema told his men to run after them, and they were caught. She said Musema told the men that he was going to take one of the women and rape her and that they should follow his example and do the same thing. The assailants followed the instructions. Witness J heard Musema tell them in Kinyarwanda "What I do, you will imitate after me." Musema also told the youths to take the Tutsi women and to check and note their constitution, which the witness understood to mean they were to be raped. The witness stated that Musema regrouped and instructed the assailants by using a megaphone and a whistle, and by speaking to them.
According to Witness J, Musema then raped one of the women, a Tutsi woman named Immaculée Mukankusi who was 25 years old and eight months pregnant. He hit her with the butt of his gun, she fell down, he dropped his trousers and underwear to the knees and jumped on her. The witness said Immaculee was struggling and she was crying because he was saying that he was going to kill her. Musema was on top of her for about four minutes. After raping her, he put on his clothes, got up and killed her, stabbing her with the knife attached to his gun between the neck and the shoulder.
Witness J testified that the killing of Immaculée Mukankuzi gave the men with Musema the courage to kill the other women. The other five women, including Witness J and her 18 year-old daughter, were then raped. After raping them, the men stuck sharpened sticks into their private parts. The witness said that she was raped last because the others were much younger than she was and she was considered as an old woman. She said the other women were still alive when the sticks were inserted into them and that they were screaming, and she clarified that they were killed with the sticks. Those who did not die were finished off with clubs or machetes. Witness J testified that she saw her daughter dying. The rapes, killings and other acts took place at less than two metres from her.
The witness said that while all this was happening Musema was further off but still in the area, shooting at the men who were fleeing. He told his men that when they had finished killing the women they should all leave. The witness testified that Musema was watching while she was raped and that her clothing was removed by her attackers. She said that the man who raped her was on top of her for four hours. On further questioning she said that because of the pain she was feeling she thought it went on for four hours and then she lost consciousness. On further questioning of the four hours, the witness said that maybe it was one year because the suffering was so much. Witness J said that nothing was inserted into her private parts because she was almost unconscious but that they cut her head with a machete and on her right shoulder and hand with a panga. She was also kicked in the stomach. When she recovered consciousness she noticed that she was bleeding and she saw the cadavers of the other victims, including that of her daughter. As a result of the attack, the witness said she has lost feeling in her arm and still has bleeding for which she cannot be treated. She said that while other widows were able to remarry she was not as she has become disabled.
On cross-examination, Witness J testified that her three older children - the 25 year-old, the 23 year-old and the 19 year-old were the ones shot by the bourgmestre when she was fleeing to Bisesero. She said the other two were killed in Bisesero. Defence counsel also questioned Witness J on the discrepancies between her testimony in court and a radio interview that she did in January 1998 for Radio Rwanda. In the interview, the witness gave an account of the killings that took place in Bisesero. Defence counsel noted that the witness did not mention certain killings, including the killing of her three children by Sikubwabo and also that she mentioned details in the interview that she had not mentioned in her testimony, such as that she went to the Mubunga church on the day she fled to Bisesero. The witness explained that she was asked questions and was not testifying against anybody, that she did not think it necessary to mention the church as she did not think there was anyone there against whom she was testifying. Defence counsel accused the witness of lying in her testimony because she felt that somebody should be responsible for her loss and injury. The witness emphatically insisted that her testimony was what she herself had witnessed and experienced. Defence counsel noted that the witness had not mentioned Musema, or the fact that she was raped or that others were raped, in the radio interview. She replied that she had not wanted to raise this matter and on re-direct examination she stated that before testifying she had not told anyone about the rape.
On cross-examination, Defence counsel noted that Witness J had said that her three oldest children had been shot by Sikubwabo, leaving her two children ages 12 and 9. He asked how then her 18 year-old daughter could have been raped by Musema's men subsequently. The witness responded that the child was her own baby that she had brought into this world and said that Defence counsel was trying to make her lose her mind with questions about the ages. She then said insistently that it was Musema who ordered the killing of her children, together with all those who were with her. At the request of the Chamber, the Prosecution introduced documentary evidence establishing that the witness had five children and giving their names.
Defence counsel questioned the witness extensively with regard to the physical location of the rape and killing showing her a number of photographs and asking her to identify Muyira hill. She was unable to do this from the photographs, which she attributed to the fact that the hills were all similar in nature and did not have distinguishing characteristics that could be identified, such as crop plantations.
According to the Defence, the allegations based on Witness J' testimony falls, since the witness lacks integrity and is unfaithfull.

Factual Findings:

The Chamber notes that witness J is the sole witness of the rape and killing of Immaculée Mukankuzi by Musema and the rape and killing of other women by the men with him at Muyira Hill on his instruction. The Chamber found her, generally speaking, to be a balanced witness. Her evidence on direct and cross-examination was notably consistent and additional details which emerged through extensive questioning provide a clear picture of the events she was describing.
Yet, the Chamber notes that the witness made several time estimates which appeared to be inaccurate. For example, she testified that the man who raped her was on top of her for four hours, saying subsequently that it felt like four hours or even a day. She testified that a distance which would take a young man five minutes to cover would take her two hours. The Chamber considers that these estimates reflect a general difficulty of the witness in measuring time which do not detract from the credibility or her testimony.
On cross-examination, Defence counsel challenged the witness on several grounds. The Chamber considers that with regard to the interview she did on Radio Rwanda, that it is inaccurate to characterize the interview as "different"from her testimony, as if it were therefore inconsistent with her testimony. Defence pointed out that she did not say everything in the interview that she said in her testimony and that she did not say everything in her testimony that she said in the interview. The witness had a reasonable explanation for these differences - the radio interview was of short duration with a specific purpose and controlled by the interviewer. The fact that she did not mention Musema is not, in the view of the Chamber, significant, particularly in light of the fact that she did not mention the killing of her children and other very significant events to which she testified. The chamber recognizes that it is especially difficult to testify about rape and sexual violence, moreover in a public forum. No inconsistencies between the radio interview and the testimony were identified.
The Chamber considers that the principal inconsistency in the testimony of Witness J relates to her account of the circumstances surrounding the killing of her 19 year-old daughter by Sikubwabo and the rape and killing of her 18 year-old daughter by the young men with Musema at Muyira hill. The witness clearly testified several times that she had five children, who were aged 25, 23, 19, 12, and 9. This has further been established by documentary evidence at the request of the Chamber. She clearly testified several times that her three eldest children were killed by Sikubwabo, leaving her with two children aged 12 and 9. Yet she also testified that one of the five young women raped with her at Muyira hill was her 18 year-old daughter. On cross-examination when the question was put to her to explain how this was possible, she did not provide any answer. On re-direct examination, in reply to a specific question on this point by the Prosecutor, she provided a very general answer to the effect that Musema had ordered her children to be killed. She did not explain the apparent inconsistency.
While the Chamber found the testimony of Witness J to be generally credible, it is deeply troubled by this unexplained inconsistency regarding the rape of her daughter. Without any reasonable explanation, the Chamber must question the accuracy of the account. The Chamber believes that there is likely to be a reasonable explanation, based on its evaluation of the witness.
However, recalling the high burden of proof on the Prosecutor and the lack of any other evidence produced to corroborate the account of Witness J, the Chamber cannot find beyond a reasonable doubt that the allegations have been established relating to the rape and killing of Immaculée Mukankuzi by Musema and the rape and killing of others with her by his men and on his order on 13 May 1994.

Alleged acts of rape and murder of a woman called Nyiramusugi on 13 May 1994 (paragraph 4.10 ).

Paragraph 4.10 of the Indictment reads as follows:

"On 13 May 1994, within the area of Bisesero, in Gisovu and Gishyita communes, Kibuye prefecture, Alfred Musema, acting in concert with others, raped Nyiramusugi, a Tutsi woman, and encouraged others accompanying him to rape and kill her".

Witness N , a 39 year old Tutsi, testified that he sought refuge in the Bisesero area from 26 April to 13 May 1994. He stated that there were many attacks on Muyira hill on 13 May 1994 and that he stayed on Muyira hill until that date, after which he had to flee again. He testified that he knew Musema. He saw Musema arrive at Muyira hill aboard his red vehicle on 13 May 1994. He said that this was the first time that he had seen Musema during the attacks. He explained that he was able to hear Musema once the group moved to within a few metres of him.
The witness testified that Musema spoke to a policeman named Ruhindura, and asked him whether a young woman called Nyiramusugi was already dead, to which the policeman answered 'no'. He stated that Musema then asked that before anything, this girl had to be brought to him.⁽¹⁴⁾ He and the bourgmestre fired the first shots so the others would start shooting. Ruhindura while fighting and looking for the young woman caught her. The Witness stated that he knew Nyiramusugi. He used to see her when she walked to school and he used to take his cows to graze in front of her parents' house. He said that she was a young unmarried teacher.
Witness N testified that Nyiramusugi was caught around 15.30hrs. He said that he saw Ruhindura with four youths drag the young woman on the ground and take her to Musema. He said that Musema was carrying a rifle which he then handed to Ruhindura. The four people holding Nyiramusugi brought her to the ground. They pinned her down, two holding her arms and two holding her legs. The two holding her legs then spread them, and Musema placed himself between them. The witness saw Musema rip off Nyiramusugi's clothes and underclothes and then took off his own clothes. The witness stated that Musema said aloud "Today, the pride of the Tutsi shall end"⁽¹⁵⁾ and then raped the young woman. Witness N said that Nyiramusugi was a very well known Tutsi girl who was very beautiful.
The witness explained that because of the echo at Muyira hill, it was possible to hear everything that was said and to recognize the voice of certain of the attackers. The Witness also explained that he was able to see the rape as he had fallen in a bush when fleeing to the top of the hill. Musema was at 40 metres, bird flight, on a little hill at Muyira, walking distance being further because to get to Musema from the Witness' position on the hill, one had to walk down and back up the other side.
The witness affirmed that the victim was Tutsi and explained that Musema took her by force. He stated that during the rape, Nyiramusugi struggled until Musema grabbed one of her arms and held it against her neck. The four assailants who initially held down the victim watched from nearby while the policeman, Ruhindura, stood further away. Witness N stated that after the rape, which he estimated lasted forty minutes, Musema walked over to Ruhindura, took his rifle back and left with him.
Witness N also testified that the four other men, who initially pinned down the victim, went back to the girl and took turns raping her. She was struggling and started rolling down toward the valley. He was able to see them rape Nyiramusugi until they were out of sight. During the rape, he heard the victim scream and say "the only thing that I can do for you is only to pray for you."⁽¹⁶⁾
Witness N added that he later saw the four attackers on the rise of the other side of the valley and saw that Nyiramusugi had been left for dead in the valley. That night, the witness and three other people went to the victim and found her badly injured. She was cut all over her body, covered with blood and nail scratches around her neck. He stated that they took her to her mother. The witness testified that the mother died the next day and that he learnt from Nyiramusugi's brother that she had been shot.
On cross-examination, Defence counsel extensively questioned the witness as to how he came to testify and the circumstances of his statement which was made on 13 January 1999 to the Prosecutor. The witness explained that he had previously made a statement about Musema to the local court in 1997. The witness further testified that he was able to hear Musema as the refugees were speaking amongst themselves softly and the attackers were getting organized. Moreover, the attackers spoke loudly so that everyone could hear them.
The witness was asked why Nyarimusugi was not killed after she was raped. He replied that he did not know. When asked again, he replied that what they did to her was worse than killing her. When pressed further as to whether it was not strange that she was not killed he replied that in a way they did kill her, and that sometimes they would leave people to die if they thought they had been sufficiently weakened. He added that if she had been left there without any help through the night, she would have died. The witness was asked whether he had been paid any money to come and testify, and he replied that he had not. Finally, it was put to him that he was lying, and he replied that he had not come to lie but rather to talk about what he himself had seen and that Musema would know that he was telling the truth.
According to the Defence, Musema was not in Kibuye during the period covering 13 May 1994. Several letters were presented in support of the alibi.

Factual Findings:

The Chamber accepts the testimony of Witness N as credible.
It is clear and consistent, and nothing emerged from the cross-examination of the witness which cast any doubt on the evidence presented. In the view of the Chamber, the reasons given by witness N as to why he waited five years to come forward with this statement, namely that he reported Musema to his local court in 1997, is satisfactory.
The reasons given by the witness as to how he had been able to hear Musema's exclamations are also convincing. The witness indeed explained that, firstly, the attacks had not yet started when Musema asked for the girl to be brought to him, secondly, he was able to hear Musema since the refugees were speaking amongst themselves softly and the attackers were getting organized, and thirdly, the attackers spoke loudly. Moreover, the witness explained that because of the echo at Muyira hill, it was possible for him to hear everything that was said and to recognize the voice of certain attackers, taking into account that the bush in which he was hiding was approximately at 40 metres bird flight from Musema. In the light of exhibits D7-A, D7-B and P21, Witness N's observation and description of the area of Muyira hill is convincing.
Concerning the alibi, the Chamber recalls its finding in Section 5.2 above as regards mid-May attacks. The Chamber here confirms that this alibi does not stand.
Based on this evidence, the Chamber finds, beyond a reasonable doubt, that Musema, acting in concert with others raped Nyiramusugi, and by his example encouraged the others to rape her on 13 May 1994.
According to the Chamber, there is no evidence, however, that he encouraged them to kill her, as alleged in the Indictment.

5.4 Musema's Authority

Paragraph 5 of the Indictment states that Musema is individually criminally responsible pursuant to Articles 6(1) and 6(3) of the Statute for the crimes with which he is charged in the Indictment.

In Section 3.1 of the Judgement, the Chamber discussed the legal principles pertaining to individual criminal responsibility under Articles 6(1) and 6(3) of the Statute. As it determined there, the authority, whether de facto or de jure, or the effective control, exercised by Alfred Musema in the context of the events alleged, may provide the basis for such individual criminal responsibility.

In relation to Article 6(1), the nature of the authority wielded by an individual affects the assessment of that individual's role in planning, instigating, ordering, committing or otherwise aiding and abetting the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the Statute. In particular, the presence of an authority figure at an event could amount to acquiescence in the event or support thereof, and, in the perception of the perpetrators, legitimize the said event.

In relation to Article 6(3) of the Statute, the nature of the authority exercised by an individual is crucial to an assessment of whether that individual exercised a superior responsibility over perpetrators of acts detailed in Articles 2 to 4 of the Statute, and whether, as a result, that individual attracts individual criminal responsibility for those acts.

It is, therefore, necessary for the Chamber to assess the nature and extent of the authority, whether de facto or de jure, and the effective control exercised by Musema in the context of the events alleged in the Indictment. The Chamber will make that assessment of Musema's authority, firstly by examining the testimonies of witnesses before the Chamber and the documents tendered to it, and secondly by presenting its factual findings on the matter.

The Evidence

Many of the witnesses testified that Musema was perceived as a figure of authority and considerable influence in the Gisovu region. Witness H stated that Musema was "very well respected" in the locality. Witness W testified that Musema "occupied an important position in Rwanda", and that he occupied a place higher in the regime than others of equivalent or higher age or qualifications. Witness E stated that Musema was considered to have the same powers as a Préfet. Witnesses R and D both testified to seeing Musema sitting with officials or authorities at political meetings.

Witnesses offered two different, and overlapping, explanations for Musema's influence. According to some witnesses, his power stemmed from his control of socio-economic resources. According to other witnesses, his power was politically based.

Witness BB stated that Directors of Tea Factories became well respected in their respective Préfectures as a result of their provision to the local communities of social services (such as clinics and schools) ancillary to the factories. This respect extended their influence beyond their direct control over factory employees. Witness G stated that Musema was a "very important personality" because he employed many people at the factory.

Witnesses W, E and AB all testified in relation to Musema's political activities, and that he played an important political role within the Gisovu region.

The Expert Witness of the Prosecutor, André Guichaoua, provided testimony linking these two explanations of the source of Musema's authority. Guichaoua emphasized the political importance in the Second Republic of controlling key posts and positions which controlled the distribution of resources, including export earnings. These positions included management positions in parastatal organizations, such as OCIR-thé. OCIR-thé was a key parastatal because it controlled the "coming in of external resources" in the form of export earnings from tea. Guichaoua stated that according to the National Commission of Agriculture reports of 1991, it was one of the central export earners in Rwanda.

According to Guichaoua, the importance of the Tea Factory in Gisovu was magnified by the relative poverty of the region. Musema's influence as Tea Factory Director extended not only to the people, whom he could employ, but to the communal authorities, since by employing the people, and providing them with financial resources with which to pay communal taxes, he made it possible for the commune to pay its employees. As a result there was, according to Guichaoua, generally an extensive solidarity between the communal authorities and the parastatal enterprises. He stated that a Director of such an enterprise could "buy social peace".

Guichaoua also testified that Musema's appointment to the directorship of the Tea Factory was politically motivated, and to his links with the central government. He stated that Musema's influence and "prerogatives" would have expanded after the instalment of the new government on 8 or 9 April, 1994, because of the unprecedented presence of citizens of Kibuye in that government. Guichaoua outlined many personal affiliations between Musema and a range of governmental ministers. According to Guichaoua, during times of conflict, it was the role of a Tea Factory Director to maintain infrastructure and exports, but also to "ensure peace". The economic importance of Tea Factories meant Directors were closely surveyed by the central government. In Guichaoua's opinion it would not have been possible, being in a position such as that Musema occupied, not to have participated in the decision-making process at the time.

The Defence contested these allegations concerning Musema's authority. Their representations are contained in Section 4.3 of the Judgement. Generally, it was argued that no evidence had been presented of Musema's alleged civic authority; that the nature of Musema's appointment to the Directorship of the Gisovu Tea Factory was not conclusive evidence of any link between him and the regime; and that he was not in any way part of the interim government.

Musema's legal status as a Tea Factory Director was clarified by Witness BB. He stated that Tea Factory Directors, as heads of the factories in the independent legal entity, the parastatal OCIR-thé, were appointed by the President. They reported to the Managing Director of OCIR-thé, who in turn reported to the Ministry of Agriculture. Witness BB stated that the Préfet represented the Head of State in the Préfecture, and that the Factory Director was bound to respect him. However, the day-to-day administration of the factory, including the appointment of staff, was the prerogative of the Director, with no need of consultations with the Préfet nor the bourgmestre. In the Witness' opinion, the Director "exercised control" over his staff.

The Chamber notes that Musema testified that he could visit certain military camps, and that he was authorized to carry a firearm. Moreover, notes the Chamber, the fact that Musema was accompanied by military personnel also shows the importance of his general position.

In conclusion, the Chamber notes that the Defence also tendered numerous documents, including meeting reports and minutes and official correspondence, which all tend to demonstrate that at the time of the events alleged in the Indictment, Musema exercised de jure and de facto authority over tea factory employees in his official capacity as Director of the Tea Factory.

Factual findings

Having reviewed the evidence presented to it, and in light of its assessments of the credibility and reliability of witnesses in the Sections 5.2 and 5.3 of the Judgement, the Chamber will now make its factual findings regarding the nature and extent of authority and control, if any, exercised by Musema in the context of the events alleged in the Indictment.

The Chamber finds that it has been established beyond reasonable doubt that Musema exercised de jure authority over employees of the Gisovu Tea Factory while they were on Tea Factory premises and while they were engaged in their professional duties as employees of the Tea Factory, even if those duties were performed outside factory premises. The Chamber notes that Musema exercised legal and financial control over these employees, particularly through his power to appoint and remove these employees from their positions at the Tea Factory. The Chamber notes that Musema was in a position, by virtue of these powers, to take reasonable measures, such as removing, or threatening to remove, an individual from his or her position at the Tea Factory if he or she was identified as a perpetrator of crimes punishable under the Statute. The Chamber also finds that, by virtue of these powers, Musema was in a position to take reasonable measures to attempt to prevent or to punish the use of Tea Factory vehicles, uniforms or other Tea Factory property in the commission of such crimes. The Chamber finds that Musema exercised de jure power and de facto control over Tea Factory employees and the resources of the Tea Factory.

In relation to other members of the population of Kibuye Préfecture, including thé villageois plantation workers, while the Chamber is satisfied that such individuals perceived Musema as a figure of authority and as someone who wielded considerable power in the region, it is not satisfied beyond reasonable doubt on the basis of the evidence presented to it that Musema did, in fact, exercise de jure power and de facto control over these individuals.

The Chamber finds, therefore, that it has been established beyond reasonable doubt that there existed at the time of the events alleged in the Indictment a de jure superior-subordinate relationship between Musema and the employees of the Gisovu Tea Factory.

In Section 6 of the Judgement in its legal findings, the Chamber will evaluate whether Musema's individual criminal responsibility is engaged under Article 6 of the Statute with respect to paragraphs 4.6 to 4.11 of the Indictment.

1. Section 4.1 of the Judgement.

2. See Section 4.1 of the Judgement - "General Admissions"

3. In plural "Imihurura"

4. Kinyarwanda "badutsembatsembe".

5. Kinyarwanda "Imana y'Abatutsi barayishe. Nta Mana bakigira".

6. French Transcript 28 April 1999, "Ces véhicules qui venaient de la route d'en bas et les gens qui étaient à bord des véhicules sont descendus et tout le monde s'est regroupé près du panneau de signalement, près du panneau routier".

7. French original "Imaginez que tout le monde s'est retrouvé le 18/04 alors que chacun croyait tout les autres morts".

8. Exhibit P56A, English translation of P56, refers, incorrectly, to 17 April.

9. It should be noted that later in his testimony, Musema named the person as Faustin Nyavihima and spelt the name for the Court.

10. See Defence Closing Brief para. 263.

11. The French transcript reads "Pour ceux qui voulaient s'amuser, ils pouvaient violer leurs femmes et leurs filles, sans craindre aucune conséquence"(transcript of 30 April 1999, p.30).

12. French transcript reads " Tu as couché avec des Tutsi et maintenant tu viens de coucher avec des Twa".

13. The French states "Elle a été assasinée dans l'habitation du chef comptable. Les gens l'ont prise dans le thé, à proximité du guest house, puis ils sont montés vers les habitations, au-dessus du guest house, soit à plus de 300m. Moi-même, je me trouvais au guest house, à l'intèrieur. J'étais à ce moment avec Ndimbati, un enseignant, l'IPJ de la commune, deux militaires venus avec moi de Butare et Baragiwira". Musema made no mention of the bloodied sword carried by the teacher nor the coughs coming from the plantation behind him and said he was in the Guest. In Court he said he was outside.

14. ¹⁴ French transcript, 28 April 1999, page 75, lines 1 and 2, 'Musema a dit, qu'avant toute chose, on devait lui amener cette jeune fille.'

15. ¹⁵ French transcript, 28 April 1999, "il a dit 'Aujourd'hui, l'orgueil des Tutsis va finir.'"

16. ¹⁶ French transcript, 28 April 1999, "la seule chose que je peux faire pour vous, c'est de prier pour vous seulement."