SEPARATE OPINION OF JUDGE NAVANETHEM PILLAY
The judgement is unanimous with the exception of the partial dissents on factual
findings that have been recorded.
assessed the evidence of alibi presented at trial as a whole, rather than on a piece meal, or a day by day basis. My assessment depends on the credibility findings I have made with regard to each witness, and the extent to which any documentary or other additional evidence presented supports or undermines their testimony.
6. The Chamber has reviewed the evidence presented by Witness M and found Witness M to be a credible witness. Witness M testified that he heard the Accused make a statement at the meeting held on Karongi Hill on 18 April 1994 in which he encouraged those present to kill Tutsis and stated that "those who wanted to have fun could rape their women and their children." Subsequently, according to the testimony, the Accused ordered a guard to hand over rifles and ammunition for an attack on Tutsi refugees. Witness M also saw his cousin and niece being raped by five men, two of whom he recognized as having attended the meeting.
7. The majority has in effect rejected this evidence on the grounds that
they accept the alibi of the Accused with respect to 18 April 1994. The
Accused testified that on 18 April he was in Gitarama, and the Defence argued
that therefore he could not have been at the meeting on Karongi hill or
the subsequent attack. Claire Kayuku, the Accused's wife, recalled in her
testimony that the Accused went to Gitarama during this period but could
not recall the exact date. Without specificity regarding dates, the testimony
of Claire Kayuku, in my view, does not corroborate the alibi of the Accused.
8. Having found that the Accused is not a credible witness for the reasons set forth below, I cannot accept his uncorroborated testimony, as the Majority does, when it directly conflicts with the testimony of Witness M, whom the Chamber has found to be credible. The Majority finds that with regard to the meeting at Karongi Hill, the sole testimony of Witness M is insufficient to prove beyond reasonable doubt that the Accused was present. The majority further states that with regard to the rapes about which Witness M testified, "there is no evidence that Musema ordered the rapes."
9. Witness M, who the Chamber unanimously declared to be credible, did provide compelling testimony consituting evidence that the Accused participated in the Karongi meeting and subsequent attack, that he instigated rape through the suggestion he made at the meeting that those who wanted to "have fun" could rape Tutsi women, and that two women were subsequently raped by two men who had attended the meeting.
10. I accept Witness M's testimony as a true account of events which took place on 18 April, and I reject the testimony of the Accused in presenting an alibi for this date on account of the following findings with regard to the alibi defence. The evidence of the Accused is so riddled with inconsistencies, as set forth below, that I do not consider his testimony, that he was in Gitarama on 18 April, which is not confirmed by any other witness or any other evidence, to raise reasonable doubt as to the credibility of the testimony of Witness M.
11. Witness M is the sole prosecution witness for both the 18 April and 26 April attacks. He was found to be credible by the Chamber. The Majority accepted Witness M's evidence and rejected the Accused's alibi and found that the Accused was present and participated in the 26 April attack. In respect of 18 April attack, the Majority accepted Witness M's evidence and also accepted the Accused's defence of alibi. In my view, without additional evidence with regard to either event, the testimony of Witness M cannot be rejected in one instance on the basis of testimony from the Accused and accepted in another instance despite testimony from the Accused.
12. For these reasons I disagree with the factual findings of the majority. I find that the Accused addressed a meeting on 18 April 1994, at which he encouraged the killing of Tutsi civilians and the raping of Tutsi women. I hold that these factual findings should be considered as cumulative evidence, when assessing the culpability of the Accused, in respect of the Counts which charge Genocide and Crimes against Humanity (extermination and rape).
The Alibi Defence
13. The Accused acknowledges his presence in Gisovu on 14 April but denies that he was present at Gisovu on 18 April, the date on which he is alleged to have addressed a meeting on Karonge hill FM Station and participated in the attack which ensued. He denies his presence in Gisovu on 13 and 14 May, the dates of the Muyira hill massacres, and he denies his presence at the entombment and asphyxiation of people in a cave at Nyakavumu at the end of May. He denies his presence in the region when there were attacks on 31 May and 5 June at Gishyita and on 22 June, the date of the attack on the Nyarutovu cellule.
14. There are a number of documents which are relevant to the alibi defence. Exhibit P54 is a record of an interview of the Accused by Swiss authorities on 11 Feb 1995. In this document, the Accused is recorded as having stated that he left Gisovu on the night of 15 to 16 April. Exhibit P56 is a record of an interview with Swiss authorities on 18 March 1995. In this document, the Accused is recorded as having said that he arrived at Gisovu on 14 April and left on 15 April at 0300. Exhibit P63 is a document written by the Accused, consisting of his notes for his asylum request to Swiss authorities. In these notes he says he left Gisovu on the night of 15 April 1994. Exhibit P68 is a hand written calendar drawn by the Accused, in which he indicates that he went to Butare from Gisovu on 15 April. The Accused testified, contrary to the documents cited above, that he left Gisovu on 17 April at 0300 and arrived in Butare at 0900 on the same day. His wife testified that he returned to their home in Butare on either 16 or 17 April.
15. The handwritten calendar (Exhibit P68), further indicates that the Accused was on mission from 18 to 26 April. Exhibit D10, an ordre de mission, records that the date on which the mission commenced was 22 April. A handwritten notation by the Accused next to the first stamp, on page 2 of this document, records that he started the mission on 21 April 1994. The Accused testified that his date of departure on mission was 22 April. He explained his handwritten entry of 21 April on the ordre de mission as an error.
16. The Accused does not maintain that he remained in Butare throughout the period 17 to 22 April. He testified that he went to Gitarama on 18 April in the hope of meeting authorities and searching for relatives. He testified that he went again to Gitarama to look for relatives on 21 April. The Accused's wife, Claire Kayuku, testified that between 16 and 22 April the Accused went twice to Gitarama to see his family but she did not specify exact dates. There is no testimony to corroborate the Accused's testimony that he was in Gitarama on 18 April. According to Exhibit P68, the hand written calendar written by the Accused, he should have been on mission to the tea factories on 18 April. There is no tea factory in Gitarama. The Accused testified, under cross-examination, that when he prepared the calendar he was not in possession of documents collected by the Swiss magistrates and by his defence lawyers and that it was only upon sight of these documents that he could say with certainty on which dates his mission was effected.
17. With regard to the whereabouts of the Accused on 13 and 14 May, the Accused testified that he remained in Rubona from 7 to 19 May 1994 and was not in Gisovu during this period. According to Exhibit P68, the handwritten calendar made by the Accused, he was in Gisovu from 4 to 14 May 1994. According to the record of an interview with Swiss authorities which took place on 16 March 1995, the Accused again said he was in Gisovu during the week of 4 to 13 May 1994. His wife, Claire Kayuku, testified that she remembered that the Accused returned to Gisovu sometime around the middle of May to pay the tea factory employees. She recalled that at the beginning of May the motor vehicle used by the Accused (the red Pajero), was under repair at a garage in Butare for one or two weeks. The Accused testified that the Pajero, registration number A7171, developed mechanical problems on 7 May 1994 and he submitted exhibit D45, a request for payment of expenses for the vehicle's repair. The date of the request was 19 May 1994. There is also a petrol receipt in exhibit D45, for fuel purchased on 14 May in Gitarama for a Pajero, registration number A7171. This document, the Defence contends, places the Accused away from the scene of the massacres in Bisesero on 14 May, but it is inconsistent with his testimony that the vehicle was out of order from 7 May to 19 May and that he was only able to travel to Gisovu on 19 May following its repair. The Chamber also notes that the other receipt submitted with exhibit D45, an invoice for a vehicle part, is dated 19 April 1994.
18. Other than his wife, who was not sure of the exact dates, the only witness to corroborate the statement of the Accused that he was in Rubona, Butare on 13 and 14 May was Defence Witness MH, who testified that he saw the Accused in Rubona on 13 May. Witness MH testified that when he was fleeing from Gitarama to Burundi he stopped in Rubona for twenty minutes in the early afternoon of 13 May 1994. He said he saw and spoke with the Accused there at the house of his mother-in-law and then proceeded to Burundi where he arrived on the same day. His passport was produced with an entry stamp for Burundi on 13 May 1994. Witness MH also testified that the Accused came to see him in Gitarama on 10 May 1994.
19. When asked on cross-examination how he knew the Accused, Witness MH was very vague and evasive, repeating several times that it is very difficult to explain how one comes to know people. He said that he knew the Accused through his family-in-law but insisted that he had no relationship with the family-in-law of the Accused. Then subsequently Witness MH testified that one of his brothers-in-law was married to someone from the Accused's wife's family and that the two families knew one another through marriage. Witness MG, the wife of Witness MH, testified that the Accused came to their house one time in May but that she did not remember the exact date. She described him as a friend and did not mention any family relationship. Neither the Accused nor his wife Claire Kayuku testified to having met Witness MH.
20. On direct examination, Witness MH stated, in response to a question as to whether he had seen the Accused in Gitarama, that he only saw him once, on 10 May. I note that it was only at the prompting of Defence counsel that Witness MH recalled that he saw the Accused again on 13 May, the day he left the country. Initially he testified simply that he left Gitarama for Burundi, saying subsequently that he had forgotten to mention his stop in Rubona where he saw the Accused. The Chamber notes that the cross-examination of Witness MH elicited further memory lapses. The witness testified on cross-examination that he did not remember the make or the color of the vehicle driven by the Accused on May 10th, when he came to Gitarama. 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.
21. On cross-examination, Witness MH testified that before moving to Gitarama he had lived with his wife in Remera. When confronted with her testimony that they lived in Kicukiro, the witness claimed that the area was called Remera Kicukiro. He was unable or unwilling to describe a major landmark near his house in Remera. He was resistant to the questions put to him and did not provide any information on this matter.
22. The manner in which Witness MH testified casts doubt on the credibility of his testimony. He appeared to be very uncomfortable and hesitant to answer questions relating to his relationship with the Accused and to provide details relating to his testimony. In some instances, he virtually refused to answer questions put to him, even relatively straightforward questions. Some of these questions, while undermining his credibility as a witness, did not go directly to the relevant substance of his testimony. Some of these questions, however, are material to the alibi defence, such as his relationship with the Accused and the reason he went to Rubona in the midst of his flight from the country. He is the only witness presented at trial who testified that he saw the Accused somewhere other than in Bisesero on 13 May. There is no defence testimony that the Accused was in Rubona specifically on the date of 14 May, other than that of the Accused.
23. The evidence of Witness MH that he saw the Accused in Rubona on 13 May cannot be accepted, based on his demeanor, his reluctance to answer questions forthrightly, and the many inconsistencies in his testimony. There is no corroboration of his account, even from testimony of the Accused.
24. I put to the Accused at trial, that momentous events like the massacre at Muyira on 13 and 14 May are such that one would remember where one was when they occurred, without having to consult a calendar. The Accused prepared his own handwritten calendar, meticulously shading in the dates of his movement, less than a year after these massacres took place. The Accused testified that he knew these massacres had occurred because he had heard about them on the radio and because they were discussed at a meeting at the Gisovu Tea Factory on 19 May. The Accused further testified that when he prepared the handwritten calendar, he believed it to be accurate.
25. Having carefully considered the evidence of alibi presented by the Defence, I note the numerous inconsistencies between the testimony of the Accused, the Defence exhibits and prior statements made by the Accused, which was tendered as evidence at the trial. These inconsistencies are material and go to the heart of the alibi defence, particularly in respect to the dates of his travel to and from Gisovu. Witness MH was the only witness, other than the Accused's wife, who testified in support of his alibi, and the Chamber does not accept the testimony of this witness.
26. The Accused relies heavily on the document referred to as Exhibit D10, the mission de ordre. The authenticity of this document is in question for numerous reasons. The circumstances, as described by the Accused, of both its issuance and the extension affixed to it, seem highly unlikely and give rise to many questions which have not been satisfactorily explained. The document purports to have been issued by the Minister of Industry and Commerce but it is signed by the Minister of Justice and was extended by the Minister of Defence. The extension is not dated, and all the dates of arrival and departure noted next to the stamps on the second page of the document, are, by the Accused's own admission, in his own handwriting. Moreover, the Accused stated in his testimony that the first entry dated 21 April is not accurate. For these reasons, I do not accept the document as corroborating evidence of the alibi. Moreover, even if Exhibit D10 were to be accepted, it would not support the alibi defence in that it does not contain evidence of his whereabouts on the 18 April, 13 or 14 May, and other dates on which the crimes are alleged to have been committed.
27. The Defence has argued that certain documents, such as receipts and correspondence, and even the Accused's delay in replying to correspondence, should be interpreted as supporting his defence of alibi. In my view, this evidence while it may in some cases be consistent with the alibi, is not probative. For example, the failure of the Accused 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 many other ways. Moreover, some of the documents presented by the Defence raise more questions than they answer. For example, the receipt for petrol purchased on 14 May 1994 for a Pajero motor vehicle, registration A7171, suggests that the vehicle was in use at that time, although the Accused testified that it had developed mechanical problems on 7 May and was under repair until 19 May 1994. His submission of a request for reimbursement that is dated 19 May is not evidence that he returned to the factory on 19 May, rather than before 19 May, nor is it evidence that he was not there on other dates.
28. Having already found, the testimony of Witness MH to be unreliable, for the reasons set forth above, I note that the only other witness who testified on behalf of the Defence, in support of the alibi, is the testimony of the Accused's wife, Claire Kayuku. The Accused also testified on his behalf. Claire Kayuku's testimony, in large measure does not specifically corroborate the account by the Accused of his whereabouts. For example, she testified that the vehicle was under repair in the first week of May and that the Accused went to Gisovu sometime in the middle of May to pay the tea factory workers. This evidence could as easily be interpreted to support the allegation that the Accused was in Gisovu on 13 and 14 May, when the massacres took place, as to support his claim that he only went to Gisovu on 19 May. Moreover, I note that Claire Kayuku's testimony is consistent with the handwritten calendar of the Accused, in which he places himself at Gisovu through 14 May.
29. In light of the above, I reject the alibi defence, as it is not supported by sufficient evidence to make it even possible to cast reasonable doubt on the other evidence the Chamber finds to be credible. In coming to this conclusion, I note the evidence presented by the Prosecution placing the Accused at the scenes of the crimes he is alleged to have committed. For example, ten witnesses testified that they saw the Accused at Muyira hill in mid-May. Witnesses S and H testified that they saw him in mid-May. Witnesses R and F saw him on the 13 and 14 May. Witnesses N and T saw him on 13 May, Witness D saw him on 14 May and Witness P saw his vehicle on the 13 May. The Chamber found these witnesses to be credible and to have corroborated each other's evidence.
30. For these reasons, I reject the testimony of the Accused as inherently unreliable in its entirety.
31. With regard to the 31 May attack on Biyiniro hill, the Majority finds that the defence of alibi raised by the Accused casts a reasonable doubt on the evidence presented by the Prosecutor, although they find Witness E to be a "reliable witness", who was "consistent through out his testimony". Hence, the majority finds that the allegations in respect of the aforementioned attack have not been proved beyond a reasonable doubt. I concur with this finding of the Majority. I have reached this conclusion for reasons different to those of the Majority. I am of the view that the alibi defence does not diminish the evidence presented by the Prosecutor, in respect of this allegation. However, I find that the testimony of Witness E does not provide sufficient evidence, with regard to the participation of the Accused in the 31 May attack on Biyiniro hill, to satisfy the required standard of proof. It is solely for this reason that I find that the Prosecutor has failed to prove her case beyond a reasonable doubt, that the Accused participated in the 31 May attack on Biyiniro hill attack.32. With regard to the 5 June attack, near Muyira hill, the Majority finds that the defence of alibi raised by the Accused casts a reasonable doubt on the evidence presented by the Prosecutor, although they find Witness E to have been "consistent through out his testimony". I concur with this finding of the Majority. I have reached this conclusion however, for reasons different to those of the Majority. I am of the view that the alibi defence does not diminish the evidence presented by the Prosecutor, in respect of this allegation. However, I find that the testimony of Witness E does not provide sufficient evidence, with regard to the participation of the Accused in the 5 June attack, near Muyira hill, to satisfy the required standard of proof. It is solely for this reason that I find that the Prosecutor has failed to prove her case beyond a reasonable doubt that the Accused participated in the 5 June attack near Muyira hill.
33. With regard to the 22 June attack in Nyarutovu cellule, the
Majority finds that the defence of alibi, "documentary evidence and
oral testimony" presented by the Defence, cast a reasonable doubt on
the evidence presented by the Prosecutor, although they find Witness P to
have given "consistent evidence". I concur with the finding of
the Majority that allegations in respect of the aforementioned attack have
not been proved beyond a reasonable doubt. I have reached this conclusion
for reasons different to those of Majority. I am of the view that the alibi
defence does not diminish the evidence presented by the Prosecutor, in respect
of this allegation. However, I find that the testimony of Witness P does
not provide sufficient evidence, with regard to the participation of the
Accused in the 22 June attack, to satisfy the required standard of proof.
I therefore find that the Prosecutor has failed to prove beyond a reasonable
doubt that the Accused participated in the 28 June attack in Nyarutovu cellule.
Done in English and French, the English being authoritative.
Arusha, 27 January 2000
Navanethem Pillay
Judge
(Seal of the Tribunal)