Untitled Document

53. This Chapter presents the factual findings of the Chamber on the evidence adduced by the Prosecution and the Defence. The findings are set out according to the crimes alleged against the Accused: participation in attacks, participation in meetings, incitement, murder, rape, and other inhumane acts.

54. On Sunday 10 April 1994, Witness GGH saw the Accused in Gisovu, aboard a white Hilux with three soldiers in the back. The witness was having a drink with a police brigadier called Jean Sebahire and others. The Hilux parked where the witness was, and the Accused asked Sebahire to follow them. The witness saw guns piled in the vehicle, together with a sack that was sewn. Sebahire left with the Accused and the soldiers. When the Accused returned to drop off Sebahire, the guns were no longer in the vehicle. The witness later learned that the guns had been used in attacks. The witness heard that Sebahire had distributed the guns to certain individuals named in Exhibit P11 (under seal) whom the witness saw with these weapons during attacks. The witness said that these individuals linked the distribution of these weapons to the Accused. He also said that four of these people were the Accused’s relatives. [22]

55. Witness GGH knew the Accused when he was a radio journalist and when he was a member of parliament. He also knew the Accused was a member of the MDR Power Party, or what used to be called the MDR Parmehutu. He clarified later that he saw the Accused twice in 1993 but would see him often before 1994 because of their involvement in politics. The witness gave a description of the Accused that fits him: a large man of average height, dark-skinned, with spectacles and abundant hair. He identified the Accused in court. [23]

56. The Defence submits that Witness GGH’s statements had been tampered with and that this tainted his credibility. It also submits that his evidence is full of inconsistencies and should be rejected in its entirety. [24] The Chamber notes that the witness mentioned the Accused in his statements dated 13 October 1995 and 8 July 1999.

57. It was further suggested by the Defence that the reference to the Accused, in the statement dated 13 October 1995, was inserted by someone other than the witness. [25] This is not borne out by an examination of the statement as the handwriting is the same as the rest of the text and follows from the rest of the text. It does not appear to have been latterly inserted. There is merely an arrow inserted at that sentence to move it to another part of the statement, which would not alter the substance of the text.

58. The typed English version of the witness’s statement dated 8 July 1999 is not signed and does not have an interpreter’s certificate. Discrepancies between the two documents were raised by the Defence: in the handwritten version, for instance, it is written that the Accused brought soldiers, but in the typed version, it is written that the Accused brought guns. [26] The Prosecution explained that it only led evidence recorded in the witness’s signed handwritten version, that is, it did not lead evidence that the Accused brought guns. It is noted that the witness confirmed his handwritten statement in court. The Defence argued that this discrepancy indicated that facts were being suggested to the witness, which taints his entire testimony, and sought to have the witness discharged. The Chamber denied this application and heard the witness. This discrepancy seems to have been a mistake on the part of the typist as later in the statement it refers to the “soldiers” whom the Accused brought. The other discrepancies were made to clarify matters, for instance, the insertion of “1994” before the word “genocide”, and do not affect the substance of the witness’s statement. The Defence’s argument that the evidence was fabricated seems tenuous and speculative, and makes more of these discrepancies than they merit. [27]

59. Contradictions between the witness’s statements and his testimony were raised by the Defence. In his statement dated 17 June 1995, the witness stated that he arrived in Bisesero on 20 May 1994; he testified in court to having arrived on 20 April instead. In Musema, he had also said that the statement was wrong and the date of 20 April was the correct date. He confirmed that the mistake was the interviewer’s, not his. This was subsequently corrected in his statement dated 17 November 1998. [28]

60. The Defence suggested that the witness changed the date during testimony in Musema in order to place himself in a situation where he could identify Musema. [29] It was pointed out that he said in Musema that he stayed in the area near the tea plantation for two weeks; in this case, he testified to having stayed there for three days. It was suggested that he was changing the dates to enable himself to testify to having seen both Musema and the Accused allegedly committing crimes. The witness said he was there for three days and he saw what he testified to. The Chamber notes that in Musema, the question related to the area around the tea plantation, [30] whereas in this case, the witness was talking about staying in the tea plantation itself, which may explain the discrepancy. The witness later referred to an extensive area around the plantation. However, it is further noted that even if he meant to refer to the area around the plantation, he would have been there for one week at the most, from 13 April to 20 April, as that is when he arrived in Bisesero. [31]

61. In the same statement, the witness also said he was in hiding from 8 April onwards, but he denied this in cross-examination and said there was no reason for him to be in hiding then as the massacres had not yet commenced. However, from a reading of his statement dated 13 October 1995, it appears he was saying killings started on 7 April 1994 in his locality. On re-examination, he clarified that when he talked about when killings started, he meant killings by Hutu against Tutsi on a large scale and in an organized manner involving leaders, but some people had already been killed before this date. [32]

62. Witness GGH’s statement dated 8 July 1999 mentions a meeting in Kibuye attended by the Accused. The witness said he never attended the meeting but heard about it on the radio. This was not led in direct examination. It was suggested by the Defence that he was willing to insert evidence he had invented. The witness maintained that he had heard it on the radio although he had not been present. [33]

63. The witness could not say when the Accused became Minister of Information or if he was already in that position on 13 April 1994. He said the Accused was self-employed immediately before he became Minister of Information but could not say what that work was, other than that it was evident he was an important personality. [34] This lack of knowledge is noteworthy given that the witness maintained that they shared a mutual involvement in political life.

64. The Chamber notes that Witness GGH’s evidence was considered “insufficiently reliable to be admitted as evidence” in Musema. [35] However, the finding as to credibility in Musema was based on the facts of that case. The Trial Chamber will make independent evaluations of the evidence before it, having regard to the facts of this case and the demeanour of the witness during his testimony.

65. The witness gave evidence of attacks on 13 April, 13 May, 14 May and during the end of May, which will be discussed in more detail in II.4.2, II.2.6, II.2.7 and II.2.8 below. The Chamber notes for the present that his evidence on the 13 April and end May attacks contains discrepancies between his testimony and his statement. In direct examination, he stated that the 13 April attack occurred in Rugarama, and during the end May attack, the Accused asked attackers to attack refugees coming out of their hiding places for food. In his statement dated 8 July 1999, the witness states that it was on 13 April at Rugarama that the Accused asked attackers to attack refugees looking for food; the end May attack was not mentioned. When questioned about this, the witness confirmed his testimony in court. It is noted that some of the confusion about these two events was generated by Defence Counsel’s misrepresentation in cross-examination of the witness.

66. The Chamber has taken into account all the above matters in assessing the witness’s credibility. Although the witness’s testimony on the 13 April and end May attacks does not accord with his prior written statement, the Chamber notes that the witness’s testimony in court relating to these two events was clear. The Chamber recalls that sworn testimony before the Chamber has considerably more probative value than the witness’s declarations in prior written statements. The Chamber is not persuaded by the allegations of fabrication of evidence made by the Defence, and considers that other discrepancies detailed above have been adequately explained. Therefore, the Chamber finds that Witness GGH is a credible witness. As for the reliability of the witness’s evidence relating to the 13 April and end May attacks, the Chamber has examined this part of the witness’s evidence carefully, and considered the witness’ demeanour and conduct during this part of his testimony. The Chamber is satisfied that the witness’s testimony in court is reliable. Consequently, the Chamber will rely on his testimony in court on these two events, as having more probative value than his prior statement.

67. During cross-examination, the Defence put it to the witness that the Accused was at a government council meeting in Kigali the entire day on 10 April, which resulted in a Radio Rwanda broadcast of the meeting at 7.00 p.m., and therefore he could not have been in Gisovu on 10 April as alleged by the witness. The witness confirmed that his testimony was accurate. [36] However, the Defence did not adduce any evidence of this meeting. Consequently, the Chamber considers that no alibi has been raised in respect of this event.

68. Based on the totality of the evidence, the Chamber finds that on 10 April 1994, the Accused was transporting guns in Gisovu with three soldiers aboard a white Hilux. The Accused met with Sebahire, a police brigadier, and they left together. When they returned the guns were no longer in the vehicle. The Chamber notes that the evidence of the distribution of the guns is uncorroborated hearsay evidence, which is not inadmissible per se. However, in exercise of the necessary caution with respect to such evidence, the Chamber declines to rely on this evidence.

69. Witness KJ’s testimony was largely given in closed session. Due to the risk that certain details may expose the witness’s identity, the Chamber will not refer to certain places, names or other details explicitly.

70. Witness KJ stated that the Accused procured gendarmes from a named location under seal for an attack on Mubuga Church approximately ten days after 6 April 1994. Sometime before noon that day, the witness was at this location and saw the Accused in the company of two military police and a driver in a vehicle. The witness heard the Accused tell a named person that the Tutsi, whom he called the Inyenzi, were hiding in Mubuga School and Mubuga Church, and that he intended to launch an attack on them. The Accused then chose many gendarmes to participate in the attack, three of whom were named by the witness. According to Witness KJ, he saw that the gendarmes chosen by the Accused took ammunition, grenades and bullets with them as they left for the attack. The witness himself was not at the scene of the attack. A participant in the attack, named Nyagurundi, returned from the attack that evening at around 7.00 p.m., and told the witness about the attack. Nyagurundi said that he had not known how to attack Mubuga Church, and that the Accused had instructed him by telling him to climb onto the roof of the church, make an opening in the roof and throw grenades into the church, in order to kill the Tutsi hiding inside. Nyagurundi also told the witness that after the attack, the Accused had thanked the attackers by promising to buy them drinks as a reward if they continued to launch attacks in the same manner. Nyagurundi described it as a dangerous attack, during which he himself had been injured in the hand by grenade shrapnel. [37]

71. Witness KJ knew the Accused because of the witness’s occupation at the time of these events. The witness first saw the Accused at the witness’s workplace in April 1994 when the Accused came with identification that showed his name, photograph and occupation. KJ identified the Accused in court and stated that he would not forget the Accused as he had seen him several times before. [38]

72. The Defence submitted that Witness KJ is an accomplice and that his evidence should be treated with suspicion. [39] At the same time, the Defence acknowledges that it is not clear whether his status is that of a suspect or a witness in protective custody. [40] The Prosecution submits that Witness KJ’s testimony is not nullified by the fact that he is a detainee or suspect and his evidence should be given full weight. [41]

73. The witness admitted that he is under house arrest in a military camp, where he is held with other witnesses, and that he is in the custody of the military police as part of a disciplinary process. He said he was not there as a detainee, but acknowledged he was still a suspect. He has never been formally charged, and was detained to be a witness in February 1995 when it was discovered he was an eyewitness to events during the genocide. It was suggested by the Defence that he was testifying to help his own case but he said that that was not the case as he had testified twice before and has not been released yet. Since 1996, he has testified before Rwandan tribunals three times and been interviewed many times and it has not resulted in his release. [42] The Chamber notes that the witness has not been charged with any crime in Rwanda and appears to be held in a military camp among witnesses. Moreover, no evidence has been adduced of criminal involvement on his part in the events giving rise to the charges faced by the Accused. The Chamber concludes that the witness is not an accomplice as defined in paragraph 48 above, whose uncorroborated evidence is subject to special caution. Nevertheless, the Chamber has exercised caution in evaluating his testimony.

74. The Defence submitted that the witness is unreliable and not credible due to discrepancies between his prior written statement, testimony in this case, and testimony in previous cases. [43] The witness made one prior written statement dated 6, 7 and 11 August 1998.

75. It was pointed out by the Defence that the statement declares that he was detained from December 1994, not February 1995, as testified to. The witness clarified that in 1994, he was detained for a week over an incident concerning the taking over of a house. He was subsequently detained again on 24 February 1995. [44]

76. The Defence raised another apparent discrepancy: the witness had mentioned in his statement that Dr Gérard Ntakirumana said that the Mubuga Church was to be attacked in May; however, the witness testified to an attack on Mubuga Church in April. The Prosecution submits that the attack on the Tutsi in the church was in April, but the destruction of the church occurred in May. [45] The witness explained in court that there may have been many churches in Mubuga. [46] The Chamber is satisfied that these references relate to two different events.

77. It was asserted by the Defence that there are discrepancies between the witness’s testimony in this case, and his testimonies in Musema and Ntakirutimana. [47] The Defence points out that in the present case he states that Major Jabo was not present during the attacks at Gatwaro and Home St Jean; [48] in Musema, he testified to Jabo’s presence in Kibuye town during attacks; [49] in Ntakirutimana, he stated that Jabo left before the attacks on Gatwaro and Home St Jean. [50] However, the Prosecution correctly points out that the witness’s answers in Musema followed questions about the attacks in Kibuye town generally, not specifically those at Gatwaro and Home St Jean; whereas, the questions in Ntakirutimana and this case were specifically about these locations. [51] Therefore, it is possible that Jabo was present for some, but not other, attacks.

78. The Trial Chamber is satisfied that the witness knew and identified the Accused during the events alleged. Based on evidence led in closed session, the Chamber is also satisfied that the witness had knowledge of the activities at the camp. Although there are inconsistencies in the witness’s evidence, the Chamber considers that these are minor and have been adequately explained by the witness, and do not affect the substance of the witness’s testimony. The witness also testified to other alleged acts of the Accused, and these are discussed in detail in II.3.2, II.5.2 and II.7.2 below, together with the submissions relevant to these alleged acts. However, the Chamber has considered as a whole all submissions made as to the credibility of Witness KJ and finds that he is a credible witness.

79. The Defence adduced alibi evidence from Witnesses TEN-10 and TEN-22 in rebuttal of Witness KJ’s testimony. [52] The Prosecution submits that the Defence has not abided by the Rules concerning alibi notice. The Prosecution further submits that the evidence from the two witnesses covered such a broad period of time that it does not negate the ability of the Accused to have been at the scene of the attack as alleged. [53] The Defence asserts that the scope of alibi is wider than that suggested by the Prosecution, in that if the evidence might reasonably be true, and reasonably be probable, it ought to be accepted. [54]

80. Witness TEN-10’s office was within the same complex as the Accused’s office, in Murambi, Gitarama. The Accused’s office was in front of the witness’s own office, so that he could see when the Accused would leave his office. [55] From 14 April to sometime between 20 and 30 May, Witness TEN-10 said he would see the Accused “on several occasions” within this complex. He later said that he would see the Accused “often” during working days. In response to a further question, he stated that he would see the Accused “almost every day”. When questioned further, the witness responded that he would see the Accused once every working day. [56] He also testified to seeing the Accused in Murambi in the evening, generally during the week, in the restaurant where the ministers had dinner. [57] Witness TEN-10 also stated that cabinet meetings were held on Fridays at Murambi town centre, normally from 8.00 a.m. to 2.00 p.m. or longer if necessary, depending on the agenda, and that additional meetings would be held on other days. The witness knew about the schedule of the meetings because of his professional responsibilities. According to the witness, the Accused attended the meetings every Friday, as well as meetings held on other days, except when he was on mission. [58] The witness did not say how he knew of the Accused’s attendance. [59] The witness had access to the agendas of the meetings but not the minutes, and could not give evidence as to the content of these meetings. [60] The witness himself did not attend the meetings.

81. The Chamber considers that the fact that the witness changed his evidence, as his testimony progressed, concerning the frequency with which he saw the Accused is a significant factor in assessing the reliability of this alibi evidence. Further, Witness TEN-10 did not claim to have seen the Accused throughout the day on those working days, or on non-working days. Therefore, even if his account of the Accused’s presence in Murambi is accepted, it is not inconsistent with the possibility that the Accused could have been elsewhere unobserved by the witness during certain periods of time. In addition, if the witness had observed the Accused almost everyday, he ought to have been able to provide information regarding the Accused’s activities, or the functions he performed during that time as Minister. Instead, the witness could not describe the Accused’s tasks as Minister, nor remember any particular visits, except for those of General Dallaire and Bernard Kouchner, the former French Secretary of State for Humanitarian Affairs. However, he described Kouchner as a journalist and he could not remember when Kouchner visited Murambi. The witness told the court that he had been out that day, and that his colleagues had told him about the visit. [61] The witness also stated that there was a lack of resources at the time and the government was unable to function, and that its main task was to expedite routine matters. [62] The witness also said that he did not hear of any of the Accused’s speeches being broadcast over Radio Rwanda, in contradiction of evidence before the Chamber of such broadcasts during this time, for example, of the Accused’s speech at the 3 May meeting in Kibuye. [63] In addition, the Chamber notes that the Defence failed to provide the Prosecution with notice about the alibi evidence the witness would testify to. [64] The witness also testified to the Accused’s presence on certain dates in June and the evidence relating to these dates will be discussed in more detail in II.2.9.3 below. However, the Chamber has taken all these matters into account in assessing the credibility of TEN-10, and finds that TEN-10 is not a credible witness. Therefore, TEN-10’s evidence does not raise a reasonable doubt that the Accused was at the named location under seal or Mubuga Church approximately ten days after 6 April.

82. Witness TEN-22 stayed and worked in Murambi from 11 or 12 April 1994 until around 20 May 1994. His workplace was near the Centre in Murambi where the Interim Government was located. He stated that, during that period of time, he would see the Accused pass by, and sometimes the Accused would drop in to greet TEN-22 and his colleagues. He also stated that the Accused went to the witness’s workplace sometimes to give a report on behalf of the government. He often saw the Accused accompanying visitors to the witness’s workplace. The witness said that during this period, he saw the Accused “often”, “on several days”, or “on several occasions”. The witness could not provide the exact number of days he saw the Accused, or the frequency of his sightings of the Accused. TEN-22 provides no further details on the Accused’s activities during this period. Even if this evidence is accepted, it is not inconsistent with the possibility that the Accused could have been elsewhere during that period of time. The Chamber notes that an alibi notice in respect of this witness was not provided by the Defence, partly because, as the Defence explains, the witness could not give specific dates. [65] Therefore, TEN-22’s evidence does not raise a reasonable doubt that the Accused was present at the named location under seal or Mubuga Church approximately ten days after 6 April.

83. Based on the totality of the evidence, the Chamber finds that approximately ten days after 6 April 1994, the Accused procured gendarmes from the a named location under seal for an attack on Mubuga Church against Tutsi, whom he called Inyenzi, hiding there. The gendarmes he chose took with them to the attack ammunition, grenades and bullets. The Chamber notes that the evidence of the attack that followed at Mubuga Church is uncorroborated hearsay evidence, which is not inadmissible per se. However, in exercise of the necessary caution with respect to such evidence, the Chamber declines to rely on this evidence.

84. Witness GGD testified to an attack at Kizenga Hill in April, on a date after the 17^th, which started between 1.00 p.m. and 2.00 p.m., and lasted until the evening. The attack was perpetrated by Hutu, in particular the Interahamwe and the ABA-Power, and was targeted at Tutsi refugees. About 5,000 to 10,000 Tutsi - men, women, children and people of all ages - had sought refuge at Kizenga Hill. As it was a high hill, the refugees could see from the hill if attackers were coming to attack them.

85. On this particular day at Kizenga Hill, the witness saw the Accused arrive in a vehicle. The attack had started before the Accused’s arrival. Those with him included Ruzindana, Interahamwe and gendarmes, in total about 2,000 and 3,000 attackers. The Accused was armed with a gun carried in a sling, and the Interahamwe were armed with grenades and traditional weapons like clubs, spears and pickaxes. The witness heard that there was an attack the day before which had not exterminated all the refugees. On this occasion, the attackers had surrounded the hill and the refugees had nowhere to go and decided to remain where they were to await death. The witness was close to the road at this time and about 20 metres from the Accused. He saw the Accused shooting at the crowd of refugees, who were praying and blaming the authorities for the attacks. He heard the Accused say that children should not be spared, that everyone should be killed. The witness said that the Accused was inciting members of the population to commit atrocities on others. The witness explained that the Accused’s position and influence indicated that his mere presence was adequate incitement because his presence encouraged people. Furthermore, everywhere the Accused went, he used a megaphone to tell Hutu to kill the enemy, the Tutsi, and to spare no one. During this attack, the witness suffered injuries to his head, chest and fingers from a grenade. He also lost seven of his family members at this attack (others died elsewhere). He survived by remaining under the dead bodies until the night when he extracted himself from the bodies and left. The witness could not estimate the number of dead victims resulting from this attack, but he stated that people spent about ten days burying the dead. There were dead bodies everywhere and the witness could hear the cries of people dying and suffering. [66]

86. The witness gave a description of the Accused that corresponds with the way he looks: tall, dark, with thick hair, fat and with a potbelly. The witness identified the Accused in court. [67] The witness also testified to a meeting in Gatwaro Stadium in the middle of March 1994.

87. The Defence complained of late notice about this allegation. [68] The Chamber notes that this event is not mentioned in the Indictment, the Pre-trial Brief, or the witness’s statement dated 31 January 1996. However, the Chamber notes that it was brought to the attention of the Defence on 10 June 2002, via a memorandum, five days before trial commenced and some two months before Witness GGD’s testimony. The Chamber considers that this cures the lack of notice in the Indictment.

88. The Defence submits that Witness GGD’s testimony was vague and uncorroborated and should not be relied upon. [69] The witness could not confirm the date on which he fled and became a refugee, although he provided this date in his statement dated 31 January 1996. Similarly, he could not provide the date on which he fled Rwanda for Zaire. [70]

89. At one point during cross-examination, Witness GGD exhibited signs of distress and agitation, and could not carry on with his testimony. He claimed that the manner of questioning was upsetting him and stirring up bad memories. He asserted that Defence Counsel was playing with him and it was a form of torture. [71] The Prosecution argued that this was due to the method of cross-examination by the Defence, in that the Defence refused to take the answer given by the witness to a question, and insisted on repeating the question over and over. The Prosecution further contends that this shows how traumatized the witness is by the events that occurred in 1994. [72] The Defence submits that the witness’s traumatized state indicates that his testimony is unreliable. [73]

90. The Chamber notes that the witness mentioned that he was recuperating from a bout of typhoid fever and that he may have been unwell at the time of his testimony. However, the Chamber notes that the witness was cooperative in direct examination but became unresponsive under cross-examination. In response to questions from Defence Counsel about the date he fled and became a refugee, he pleaded that he not be asked such questions as they saddened him. He responded in this manner to a number of questions, and Defence Counsel asserted that if the witness continued to maintain that he could not answer questions because he was suffering, his testimony ought to be withdrawn. On another occasion, the witness replied that the Defence Counsel should return to the witness’s home with him to talk about these events as the witness had so much to say that it would take several days for him to finish. He would also answer that Defence Counsel did not know about the circumstances of the genocide, nor about Rwanda and its history, as he was a foreigner. Given the traumatized state of the witness, the Defence terminated its cross-examination without putting its case as it would have liked to, for fear of upsetting the witness any further. [74]

91. The Chamber observes that the Defence was unable to conduct an effective cross-examination. Under these circumstances, the Chamber considers that it would not be fair to the Accused to rely on Witness GGD’s evidence. Therefore, the Chamber finds that it has not been proven beyond reasonable doubt that the Accused participated in an attack at Kizenga Hill between 17 and 30 April 1994.

92. Witness HR testified to a large-scale attack sometime between 17 and 30 April against the Tutsi refugees at Muyira Hill in Bisesero, when they were attacked three times on the same day.

93. On 10 April 1994, Witness HR left his home to seek refuge on Muyira Hill as the Hutu were killing the Tutsi in his locality, and burning their houses down. He was with his mother, his two sisters and their seven children. There were approximately 5,000 Tutsi refugees on the hill and more arrived everyday. There were Tutsi of all ages and both sexes, including the old, and infants being carried on their mothers’ backs. Some were survivors from other attacks, such as in Ngoma Church, Mubuga Church and the Adventist Church in Kibuye, where many people were killed. [75] The refugees were subjected to attacks once they arrived at Muyira Hill. Sometimes they could repel the attacks and the attackers would leave. However, this particular attack testified to by Witness HR was unusual, according to the witness, in that it was three times larger than other attacks, and they were attacked three times that day.

94. Witness HR stated that the first attack that day occurred at 9.30 a.m. and lasted 25-30 minutes. The witness and other refugees were on the top of Muyira Hill and when the attackers came closer, they began to defend themselves by throwing stones at the attackers. When the attackers approached, they began to shoot at the refugees. As there was nowhere to seek refuge and they could not run away, the refugees confronted the attackers. Amongst the attackers, Witness HR recognized the Accused, Segatarama, who was the Conseiller of Gitabura, two communal police from Gisovu commune, Sebahire, Rukazamyambi, Minyotsi, who was a policeman, Ndimbati, who was the Bourgmestre of Gisovu, and Musema, who was the Director of Gisovu Tea Factory. [76] All of them, including the Accused, were armed with guns. The witness was about 20 metres from the Accused and saw the Accused shoot at the refugees with a medium-sized gun. The witness could not say if the Accused actually shot anyone, but said that since many people were killed by the bullets, the Accused must have shot someone. There were about 20-30 people with guns. He considered the Accused to be a leader of the attack, as the act of picking up a weapon and working with members of a population to kill other members of the population is evidence of leadership, according to the witness. The witness also said that the Accused was always in the front or middle of the attackers. In total, there were more than 6,000 attackers, who comprised soldiers, policemen and Interahamwe. They were armed with spears, clubs and other traditional weapons. During this attack, the refugees successfully defended themselves and the attackers fled.

95. About an hour later, between 10.30 a.m. and noon, as the refugees were collecting the bodies of the dead Tutsi refugees for burial, the attackers returned to Muyira Hill from Nyakigugu to attack the Tutsi refugees. Witness HR stated that this was surprising, as the attackers who were successfully repelled would usually return another day, not the same day. This attack lasted between 40 minutes and an hour. The witness said that the same people as those listed above, including the Accused, were amongst the attackers. The witness identified others at this attack, like the prison guards from Muko in Gikongoro Prefecture. [77] There were more attackers this time, and they were armed with firearms, spears, machetes, and clubs. The witness was about 15-16 metres from the Accused who was armed with the same gun and was shooting at the refugees. Both of these attacks resulted in about 15-25 victims. This attack lasted longer than the first and the third attacks. The attackers subsequently left, and the witness said that the refugees thought the attackers would not return.

96. However, around 1.30 p.m., as the refugees were organizing the burial of the dead, they came under a third attack at Muyira Hill. The witness did not see the Accused during this attack. The fighting did not last long this time, and there were not too many victims, about two or three. The refugees killed some attackers and the attackers left early. [78]

97. Witness HR knew the Accused prior to these events. He had seen the Accused sometime before 1990, when the Accused was campaigning to be a member of parliament. At that time, the Gishyita commune authorities had introduced him to the people. His photograph was posted at the bureau communal at the time of the campaign. The witness identified the Accused in court and gave a description that fits the Accused, that is, that he was of average height and large in stature. [79]

98. The Defence submitted that because of the witness’s conflicting prior statements, conflicting prior testimonies, and the inconsistencies in the totality of his evidence, together with the rejection of his evidence on this attack in Musema, the evidence of this witness should be entirely rejected on grounds of unreliability. [80]

99. The dates of the witness’s three statements reflect that he met with investigators more than once. When confronted with this fact, he maintained that he met with investigators only once. He later explained that he had meant that he met them once in Rwanda, and had not included the meetings in Arusha. However, his third statement dated 13 December 1999 was taken in Rwanda, as was his first. [81] The witness could not remember details about his meetings with investigators. However, the Chamber notes that these meetings took place sometime ago, and such details would not make as significant an impact on the witness’s memory as the events to which he was a witness and to which he testified. Therefore, the Chamber does not consider that his inability to remember these details affects his credibility.

100. The Defence argued that the use of military terminology in his 1998 statement, like “strategic position”, “firepower” and “ammunition belts”, pointed to military training on the witness’s part. The witness did not think he was using military terms in his statement. He testified to having received primary school education. [82] Further, he stated that he has never been a member of the RPF and has never undergone military training. [83] The Chamber notes that the witness gave his statement in Kinyarwanda and the words complained of were those of the English translator. The witness was a member of the MRND in 1994, and was therefore not politically opposed to Hutus, as suggested by the Defence. [84]

101. The witness did not mention the Accused in relation to this attack until his second statement dated 14 and 16 February 1998; however, as he explained in the statement, this was because prior investigations appeared to be focused on Kayishema and Ruzindana.

102. Witness HR had originally stated in direct examination that there were 5,000 Tutsi refugees on Muyira Hill. However, he later said in cross-examination that this was not true and there were more than 5,000 refugees. In his statement dated 20 March 1996, he said there were 15,000 refugees. [85] He was unable to explain this discrepancy and denied that he had said the figure “5,000”, despite the transcript record. [86] The Chamber notes that he specified during direct examination that the figure “5,000” was an estimate. The Chamber does not consider that this discrepancy affects his credibility.

103. It was mentioned in the witness’s statement dated 20 March 1996 that the Accused was at a meeting in Kibuye in May 1994, which was presided over by the President of the Republic, wherein it was said that there was a hill in Bisesero at which Rwandan Patriotic Army (“RPA”) soldiers were present because civilians would not be able to kill policemen. The Defence submitted that this was not true. The witness himself had not attended the meeting but he asserted that the meeting was well-known. He said that people who had heard the radio told him about this, and two weeks after the meeting, the people who attended the meeting participated in attacks, and it was clear from the scale and scope of the 13 May attack that they had obtained reinforcements. It was suggested by the Defence that Witness HR had mentioned the Accused in relation to the attacks only because of what he had heard about his comments at the meeting, and the witness felt that as a Minister, the Accused ought to be held responsible for those actions. [87] The witness replied that he had placed the Accused at the end April attack, which was before this meeting. [88] Moreover, the Chamber notes that the witness did not indiscriminately place the Accused in all the attacks; he also mentioned attacks (like the third attack mentioned in paragraph 96 above and the 14 May attack) where he had not seen the Accused.

104. In its Closing Brief, the Defence states that the witness was rejected in paragraphs 689-691 of the Musema Judgement. [89] However, in the preceding paragraph 688, the Trial Chamber in Musema found the witness (Witness F in Musema) to be credible, contrary to the Defence’s assertion. The Trial Chamber in that case did not find it established beyond reasonable doubt that Musema had participated in attacks between 17 and 30 April 1994 because of a lack of specificity in Witness F’s evidence regarding the date of the attacks.

105. The Defence complained that it did not have the “first-made records”, that is, the handwritten notes, taken by investigators during Witness HR’s interviews with investigators. [90] The Chamber reiterates that investigators’ notes and constitute privileged material, to which the Defence is not entitled, pursuant to Rule 70.

106. The Defence tendered a letter dated 30 June 1994 written by the Accused, wherein he denounced the conduct of Ndimbati (Exhibit D54), which it submits would show that the Accused could not have participated in attacks with Ndimbati. [91] The Chamber observes that the letter was written about 2 months after the attack at Muyira Hill, and dealt with offences allegedly committed by Ndimbati, such as pillages and orders to kill. The letter does not negate Witness HR’s eyewitness evidence.

107. The Defence pointed to a discrepancy between the witness’s prior statements. In his statement dated 20 March 1996, the witness mentions an incident involving Mika and Ruzindana as having taken place in mid-May; in his statement dated 14 and 16 February 1998, he places this incident in June. The Defence argued that this change was suggested to the witness by investigators in order to facilitate his testimony in Kayishema and Ruzindana. There is no evidence to support the Defence’s contention. The witness denied the Defence’s assertions and maintained that the incident took place sometime after 14 May. [92]

108. The witness also testified to other alleged acts of the Accused. These are discussed in detail in II.2.6 and II.2.7 below, together with the submissions relevant to these alleged acts. However, the Chamber has considered as a whole all submissions made as to the credibility of Witness HR. The witness was certain that he saw the Accused whom he knew prior to these events, and maintained this position throughout his testimony. Upon evaluation, the Chamber considers the witness to be an honest and careful witness who does not harbour any personal animosity towards the Accused. Therefore, the Chamber finds Witness HR to be a credible witness.

109. The Defence adduced alibi evidence to rebut Witness HR’s evidence with respect to this alleged attack at Muyira Hill. [93] The Prosecution contends that the alibi evidence is not inconsistent with the possibility that the Accused could have moved from one location to another within the same day. [94]

110. The alibi evidence of TEN-22 relating to this time period was examined in II.2.2.3 above, and rejected by the Chamber.

111. The alibi evidence of TEN-10 relating to this time period was examined in II.2.2.3 above and rejected by the Chamber.

112. Witness TEN-8 testified that during the month of April, he did not see the Accused, nor hear of the Accused’s presence, in the Kibuye region. Similarly, the witness never heard that the Accused was involved in any killing or rape in Kibuye during this time, and the witness stated that if those acts had been committed by the Accused, he would have heard about it. [95]

113. Witness TEN-16 resided in Kibuye Prefecture, not far from Bisesero, at the time of these events. According to the witness, if the Accused had been in Bisesero and in Kibuye Prefecture at any time during the period between April and the middle of July 1994, she would have seen him or she would have heard about him, particularly if he had committed the crimes alleged. However, it is not disputed that the Accused attended a meeting in Kibuye on 3 May 1994. Further, the witness acknowledged on cross-examination that she had never personally visited the Bisesero region during the period in question. [96] For these reasons, the Chamber does not consider this evidence to be credible.

114. Neither of these witnesses testified to the Accused’s presence elsewhere at the time of the attack at Muyira Hill. Their testimony that they did not see the Accused, nor hear about his presence, in the Bisesero region does not amount to alibi evidence and does not raise a reasonable doubt that the Accused was present at Muyira Hill between 17 and 30 April.

115. Based on the totality of the evidence, the Chamber finds that on a day sometime between 17 and 30 April 1994, at 9.30 a.m., the Accused, together with others, led more than 6,000 armed attackers, comprising soldiers, policemen and Interahamwe, in a large-scale attack at Muyira Hill against Tutsi refugees. The Accused was in front of or in the middle of the group of attackers. The Accused was armed with a gun and shot at refugees during this attack, which lasted 25-30 minutes. There were approximately 5,000 Tutsi of all ages and both sexes at the hill, including old people and infants.

116. About an hour later, sometime between 10.30 a.m. and noon that same day, the Accused returned to Muyira Hill with others, and led more armed attackers in another large-scale attack against the Tutsi refugees at the hill. The Accused was armed with a gun and personally shot at Tutsi refugees during this attack as well. As a result of both attacks, between 15-25 Tutsi refugees died.

117. Witness GGY testified to a particularly devastating attack sometime between the end of April and the beginning of May 1994 at Kivumu in Bisesero, which he said involved more attackers who were better-equipped, and which resulted in far more victims. [97] The witness had fled to the Bisesero Hills, first from his home, then from Mugonero Hospital, to escape massacres perpetrated by Hutu against Tutsi. He chose the Bisesero hills as it was the only place left where there were still Tutsi refugees. When he arrived, he found “very many” other refugees scattered about on the hills. It was exclusively Tutsi men and women, boys and girls who were being targeted in the Bisesero hills. Some refugees were suffering more than others, some had been shot at or cut up by machetes, and some had ordinary illnesses that could not be attended to. There were children, elderly persons and women. He testified that attacks occurred in Bisesero everyday. [98]

118. With respect to the attack at Kivumu, Witness GGY stated that at the time, he was in the hills at Kazirandimwe cellule near Gitwe Primary School. He first saw the attackers from the top of Gitwe Hill between 8.30 a.m. and 9.30 a.m., but had a better view of them when they were at Kidashya. In order to allow the wounded and elderly to have time to find hiding places, and because there was nowhere else to run away to, the able-bodied refugees ran towards the attackers and met them at Kivumu. There were about 300 attackers, armed with guns, explosives and traditional weapons like machetes, spears, clubs and sharpened bamboo sticks. Amongst these attackers, he recognized as leaders the following: the Accused; Bourgmestre Charles Sikubwabo; Conseiller Mika Muhimana; Ndimbati, the Bourgmestre of Gisovu; Segatarama, the Conseiller of Gitabura; Kanayira, the Assistant Bourgmestre of Gishyita; Mathias Ngirinshuti; Kagaba and one named Vincent who was the Conseiller of Mubuga. From a distance of not more than 100 metres, the witness saw the Accused armed with a gun between 80 centimetres and one metre long on a strap, and shooting at the refugees. He saw the Accused several times during the attack from varying distances, the closest being 80-90 metres. The refugees defended themselves for a short time with stones and sticks but the attackers were heavily armed and attacked the refugees from many directions. The refugees were pursued by the attackers to the top of Gitwe Hill where the refugees then spent the night. The attack lasted until 3.00 p.m. The witness could not place a number on the victims that day. [99]

119. Witness GGY knew the Accused as they were from the same region and the Accused was a high-level authority. He had previously seen the Accused at the end of 1993 at a political meeting in Kizenga in Ngoma secteur. He identified the Accused in court. [100]

120. The Defence does not complain of lack of notice with respect to the attack at Kivumu. [101] The Chamber notes that the witness stated that the location of the attack mentioned in his statement dated 25 October 1999 was Kivumu, which constitutes notice to the Defence of this allegation. The witness also testified to attacks on 13 and 14 May but these are not reflected in his statements. The issue of notice relating to these two events will be discussed in II.2.6 and II.2.7 below.

121. The Defence submitted that Witness GGY was mistaken in his identification of the Accused during this attack, and that the witness’s evidence is unsafe and should not be relied upon. [102]

122. On the issue of mistaken identity, the Chamber notes that the witness knew the Accused prior to this event and had previously seen the Accused at the end of 1993 as detailed in paragraph 119 above. The witness also stated that he observed the Accused many times during the attack, from a distance of 80-90 or 100 metres. For these reasons, the Chamber considers that he had not mistakenly identified the Accused.

123. According to the French transcripts, the witness specified that the date of this attack was the 16^th, although he did not specify which month. [103] The Defence assumes that this refers to 16 April, and submits that in Ntakirutimana, he testified to leaving Mugonero Complex for the Bisesero hills on 16 April sometime between 10.00 p.m. and 11.00 p.m., which would make it impossible for him to have witnessed this alleged attack at Kivumu on the morning of 16 April. [104] Upon an examination of the original Kinyarwanda transcripts, the Chamber considers that the Defence’s assumption is not well-founded, as there is no evidence that the witness meant to refer to the month of April. [105] Even if the Defence’s assumption is correct, that the witness was referring to the 16^th of April, the Chamber notes that this discrepancy was not put to the witness during cross-examination for his explanation. In addition, this discrepancy was not raised in the main Defence Final Trial Brief either; the Defence makes this submission for the first time in its Response to Prosecutor’s Supplemental Submission. [106] As a result, the Prosecution did not have an opportunity to reply to this submission. The Chamber cannot rely on the Defence’s assertions, which may not be accurate and additionally, have not been tested under cross-examination.

124. The Defence submitted that Witness GGY was not a humble refugee, but a highly trained RPF fighter. [107] According to the Defence, this was supported by the witness’s knowledge of people whom the Defence claims are RPF members, and by his current occupation in a government-appointed position in Rwanda. The Defence concluded that the witness is therefore politically opposed to the Accused. It was further suggested that he acted as one in battle at the time. The witness stated that he was not a member of any political party, or the military branch of the RPF, or any local defence force. [108] No evidence was adduced to support the Defence’s speculations.

125. The Defence made the same submissions with respect to the Accused’s relationship with Ndimbati (and Segatarama) as those examined, and rejected, in paragraph 106 above.

126. The witness was asked by the Defence why he had said in Ntakirutimana that his statement was not read back to him and that if it had been, he would not have signed it with the obvious errors it contained. He said the only error related to the languages he spoke. It was suggested by the Defence that the statement dated 25 October 1999 was never read back to him and he never mentioned the Accused in his statement. [109] There is no evidence to support these claims.

127. The witness was asked by Defence Counsel about a preliminary report of the government commission into the genocide (Exhibit D15), where the Accused’s name does not appear in the list of 13 persons held responsible for killings in the Kibuye region. [110] The witness maintained that the Accused was responsible for killings and doubted the source of the information in the report, who, according to the witness, is a person presently accused of having killed Tutsi in Kibuye. He later clarified on re-examination that there were others not on the list who had participated in attacks and the Accused was one of those. [111]

128. Upon evaluation of the evidence, the Chamber finds that Witness GGY is a credible witness.

129. The alibi evidence relevant to this allegation was examined and rejected in II.2.2.3 and II.2.4.3 above.

130. Based on the totality of the evidence, the Chamber finds that sometime between the end of April and beginning of May 1994, from between 8.30 a.m. and 9.30 a.m. to 3.00 p.m., the Accused and others were leaders in a large-scale attack by armed attackers against Tutsi refugees at Kivumu in Bisesero. The Accused was armed with a gun and personally shot at Tutsi refugees.

131. Witness GGY stated that on 13 May 1994, he saw the Accused amongst many attackers at a large-scale attack against Tutsi refugees at Muyira Hill in Bisesero, which caused many deaths among the Tutsi refugees. The witness’s evidence as to the large numbers of Tutsi of all age and both sexes at Bisesero is detailed in paragraph 117 above. On 13 May, the attackers, which included Interahamwe, soldiers and civilians, arrived between 8.00 and 9.00 a.m. The attackers had parked their vehicles at Kucyapa between the Gisovu and Gishyita border. Among these vehicles were ONATRACOM buses, lorries owned by COLAS, and other commandeered vehicles which belonged to Tutsi who had been killed. For example, he saw a vehicle belonging to a Tutsi trader at the Gishyita commercial center, which had been seized by Obed Ruzindana, and a vehicle belonging to another Tutsi trader called Rulinda from Mubuga. The attackers’ vehicles plied the Kibuye/Cyangugu route. At the time, Witness GGY was on a road which goes through the secteur, on the side facing Gitwe hill. He and others were trying to cross the road to go to Muyira Hill. There were many attackers but the witness could not estimate the number, although he said that there were many more attackers than refugees. [112]

132. The witness first saw the Accused at about 9.30 a.m. and the distance between them was not more than 90 metres. He saw the Accused for not more than a minute before the attackers started shooting at the refugees. [113] Witness GGY stated that the Accused was with others by the vehicles, and shooting at refugees coming from the bushes. He was carrying a medium-sized gun on a strap. The attackers were armed with guns, machetes, spears, sharpened bamboo sticks and clubs. The witness said that he recognized others participating in this attack: the bourgmestres of Gishyita and Gisovu communes, the conseiller and prefet of Gishyita commune, Ruzindana, his younger brother Joseph, Pastor Ntakirutimana, Dr. Gérard Ntakirutimana, Alfred Musema and those named in paragraph 118 above. As they were being shot at, the refugees ran to the side where there were no attackers and proceeded towards Muyira Hill. [114]

133. Witness GGY saw the Accused again that same day at 10.00 a.m. at Muyira Hill, shooting at the refugees. The distance between the witness and the Accused was not more than 100 metres. The attackers were shouting “Tuba Tsemba Tsembe”, which he said means “Let’s exterminate them”. The witness stated that this attack lasted until 5:30 p.m. After the attack, the attackers assembled at Kucyapa for a meeting. He said that there were so many refugees killed that day that he would compare them to “leaves which were falling from trees”. Some survivors recognized their kith and kin amongst the dead bodies and buried them in shallow graves; however, other dead bodies were eaten by wild animals and dogs on the hill. As for the method of attack, the witness stated that the attackers would shoot at the refugees first, then the attackers armed with clubs and machetes would finish them off. The Accused was in the front row of attackers with about 20 other people. He was wearing an overcoat, and the witness indicated his height was between 1.60 to 2 metres. He described him as fat and tall, with a full head of hair. [115] The witness’s prior knowledge of the Accused was detailed in paragraph 119 above.

134. Witness HR saw the Accused on 13 May 1994 shooting at Tutsi refugees in an attack at Muyira Hill. The witness’s evidence as to the large numbers of Tutsi of all ages and both sexes seeking refuge at Muyira Hill was detailed in paragraph 93 above. On 13 May, at around 10.00 a.m., the Tutsi refugees were attacked when they were at the top of Muyira Hill by several groups of attackers who had surrounded the hill. The witness named as leaders of this attack the Accused, Kayishema, Ruzindana, Ndimbati, Sikubwabo, and communal policemen. The witness first saw the attackers from the top of Muyira Hill at Kucyapa where they alighted from their vehicles. There were buses and MINITRAP vehicles transporting the Interahamwe, in total not less than 20 vehicles. The Interahamwe were accompanied by soldiers and communal policemen. The witness stated that there were many attackers, between 100,000 and 150,000. The attackers were climbing the hill and attacking the refugees from all sides. Some were armed with guns, like the Accused, Kayishema, Musema, Ruzindana, Ndimbati and Mika. The Interahamwe were armed with sharpened bamboos, machetes, clubs and spears.

135. The witness saw the Accused shooting at the refugees with a black gun from a distance of about 22 metres. Many refugees did not have the strength to defend themselves or to flee and as a result, many of them died. All the witness’s five children, his mother and his sister were killed. He estimated that 90% of the Tutsi refugees died that day. [116] After this attack, the Accused participated in a meeting at Kucyapa. The attackers blew their whistles and they assembled for this meeting. There were two speakers but the witness could not hear what they were saying. The attackers then left. [117] Witness HR’s prior knowledge of the Accused was detailed in paragraph 97 above.

136. On or about 13 May 1994, Witness GGR saw Interahamwe dressed in white, beating drums and blowing whistles, and understood the massacres would resume after the lull period. [118] Therefore, in order to escape from massacres he described as being against Tutsi by the Abatabazi government, he hid in a bush near the border between Gishyita and Gisovu communes at Kucyapa. The witness was on the lower side of the road leading from Gishyita to Gisovu, at Dege Hill. He estimated that he was 40-50 metres from the road. The witness had been shot and injured in his arm about two weeks earlier. He and other Tutsi hid with their families in Bisesero from April to the end of the war, to escape from the attackers. The witness said that all Tutsi from Rwamatamu, Gishyita, Gisovu and Gitesi had gathered at Bisesero.

137. On 13 May, vehicles with Interahamwe and soldiers on board arrived by the witness’s hiding place. The witness heard them start to plan their attacks at Muyira and other hills. They were further than 40-50 metres away but the witness could hear them as they used loudspeakers. The witness said that these attackers were armed Hutu who were trying to exterminate Tutsi. He saw the Accused with Musema and Ndimbati about 80 metres away. The witness said that the Accused seemed to be the leader of a group of attackers because he was in front of these attackers who followed him, and because he was carrying a gun. Witness GGR saw the Accused fire the gun when the Accused was going towards Muyira. [119] At this point, the Accused was about 40-50 metres away from him. The attacks began around 8.00 a.m. and 8.30 a.m., and ended in the evening. The witness saw the Accused on several occasions throughout the attack. In the evening, he heard the attackers singing “Tubatsembatsembe” which he said means “they should exterminate all Tutsis because the Tutsis were a dirty race”. The Accused was in front of the attackers from Gisovu as this was being sung. [120] There were so many attackers that the witness wondered if any Hutu stayed home that day and did not go to the attacks. Many of the Tutsi refugees died that day as a result of the attack. [121]

138. Witness GGR said that he had known the Accused for a long time as someone in central government. The witness saw him at election campaigns although he never spoke to him. The first time the witness saw the Accused was during the legislative elections campaign in the period of multiparty politics sometime after 1980 and before April 1994. He observed the Accused for less than ten minutes. The next time he saw the Accused within the same time period, he was trying to recruit members for the new MDR Party. He observed the Accused for 20-30 minutes at around 5.00 p.m. and 5.20 p.m. when it was still light. He also said he would see the Accused every six months when the Accused would visit his parents near Gisovu and use the road from Kibuye through Mubuga, which went by the witness’s house. After the Accused became a member of parliament, the witness saw him very frequently on the road from Mugonero Hospital. The witness identified the Accused in court. [122]

139. Witness DAF was at Muyira Hill, in Bisesero, on 13 May 1994, during a large-scale attack aimed at exterminating Tutsi who were in Bisesero. The witness saw the Accused from a distance of 50 to 100 metres, in the early afternoon of 13 May at Kucyapa, on the border between Gishyita and Gisovu communes. The attack had begun between 7.00 a.m. and 8.00 a.m. The persons attacked were Tutsi in Bisesero and included old people, young men and women, and babies. The Accused was one of the leaders whom he knew and recognized, which included Kayishema, Prefet of Kibuye Prefecture; Ruzindana, a well-known trader; Musema, Manager of Gisovu Tea Factory; Sikubwabo, the former bourgmestre of Gishyita; Ndimbati, the bourgmestre of Gisovu; and Mika. The attackers comprised Interahamwe, soldiers, policemen and Hutu members of the population. The witness saw the Accused when the attackers were pursuing him and others, and killing the Tutsi. The Accused was shooting at the fleeing Tutsi, including the witness himself. The attackers carried weapons, including firearms, spears, machetes and clubs and were chanting “let’s exterminate them, let’s flush them out of the forest” and “Power, Power”. They came in vehicles, including buses, pick-ups and other vehicles from the Gisovu Tea Factory, which parked at Kucyapa. The leaders, including the Accused, carried firearms. They were well-known persons in authority, or traders, acknowledged as leaders by the attackers. These leaders expressed joy and approval for the acts of killings carried out by the attackers. [123]

140. The witness knew the Accused prior to these events because they came from the same area, and he had heard the Accused speak as a journalist on Radio Rwanda and had heard others speak of him. He saw the Accused for the first time before 1990. At that time, the Accused was no longer a journalist at Radio Rwanda and he himself was a secondary school student. He and his older brother were at a petrol station in Kigali that he was told belonged to the Accused, when his brother pointed the Accused out to him. From then on he was able to put a face to the name he knew. He described the Accused at the time he saw him as “quite stocky and with a thick neck” and identified him in court. The witness learned subsequently in 1993 that the Accused was a member of MDR Power which was against the Arusha Accords and which advocated hatred and violence against Tutsis. He heard that the Accused was in charge of information within MDR Power. [124]

141. Witness GGM saw the Accused at Kucyapa at the border between Gisovu and Gishyita communes in the evening of 13 May 1994 at a meeting held after the attack. [125] The attackers had been pursuing the Tutsi refugees throughout the day and the witness was tired and had decided to hide and rest in a sorghum field on Uwingabo Hill. One other man was with him in the field. [126] Buses had transported the attackers, including soldiers, to Kucyapa, and many vehicles arrived in the morning. [127] The attackers had surrounded Bisesero hills and there were violent confrontations. The Interahamwe far outweighed the refugees during the attack. Between 40,000 and 50,000 people were killed that day. [128] There were many bodies strewn everywhere around Muyira and Kagari, and all over the hills. [129]

142. At this meeting, the Accused was about 30 metres from the witness. He could not recall what the Accused was wearing except that he was not wearing a jacket. The Accused was not armed. The Accused was holding a meeting in the evening after the killings to decide the programme for the next day and organize the killings. Kayishema and the Accused both spoke using loudspeakers at this meeting, after which the attackers returned home. The witness did not hear everything that was said at the meeting but he heard Kayishema thank the attackers for participating. He also heard the Accused thank the attackers for their participation and commend them for “a good work”. The Accused told them to share the people’s property and cattle, and eat meat so that they would be strong to return the next day to continue the work. The witness said that “work” meant “killing”. The next day, 14 May, the witness and others were pursued and spent the day fleeing from attackers. The witness watched this meeting for not more than 30 minutes. There were many people attending this meeting, possibly 5,000. On this day, the witness lost his whole family and he said that he would never forget this day. [130]

143. During May 1994, the witness was hiding in Bisesero with others who were being pursued. These people were Tutsi from Rubengera, Rutsiro, Rwamatamu, Gisovu and Gikongoro. There were about 60,000 Tutsi in Bisesero and by the time the French arrived, only 1,000 Tutsi had survived. [131] The witness himself sustained a knife wound on his ribs between 13 May 1994 and the middle of June. [132] By 13 May, his entire family had been killed. [133]

144. Witness GGM first heard about the Accused as someone who had campaigned to be a member of parliament and subsequently became one. He came to know him from the ceremony of the inauguration of Bourgmestre Sikubwabo sometime before 6 April 1994. This ceremony began at around 10.00 a.m. and ended at about 2.00 p.m. The witness saw the Accused for 2-4 hours at the meeting. It was held in Kibande in Gishyita commune. Many people attended, possibly thousands. Sikubwabo, Kayishema and the Accused all spoke at the meeting. The Accused spoke for about 30-40 minutes during the meeting. The witness identified the Accused in court. [134]

145. Witness GGH saw the Accused on 13 May 1994 participating in massacres. The witness was hiding at a Sakufe’s house at the foot of Rwirambo Hill, at a place known as Sakufe Hill, which was quite close to the road. He hid in the bushes in a small wood. He saw vehicles transporting attackers and Interahamwe on the road from Kibuye to Gisovu. They stopped at Kucyapa at the border between Gishyita and Gisovu. There were various leaders, including the Accused, giving instructions to the attackers. The other leaders were Alfred Musema, Uwimana, Obed Ruzindana, and conseillers of secteurs, Sikubwabo, who was the bourgmestre of the commune, and Aloys Ndimbati. They were showing the attackers where to go and what to do in order to carry out the attack. The leaders arrived in their own vehicles. The Accused’s vehicle was double-cabin and white, and Musema’s was a red Pajero. There were also three Daihatsu’s belonging to the factory, one red, one white and one blue; a white Hilux belonging to the Gisovu commune; and ONATRACOM buses, which transported Interahamwe and soldiers. The Accused showed the attackers where to go to find the Tutsi who had scattered all over Bisesero Hills. The witness was no more than 100 metres from the Accused, who was wearing a loose-fitting white shirt and white trousers. He was not armed at the time. [135] The witness saw the attackers shooting at people and cutting them up.

146. There were many persons attacking Tutsi of all ages, including new-born babies, old men and old women. He said he remembered the date of 13 May 1994 for two reasons: firstly, many of his family members died there on that day; and secondly, after the massacre, while they were burying the bodies the next day at Kagare in Bisesero, he came across a piece of paper with a message written on it, saying that the act committed on this date of the 13^th would never be forgotten until the war against the enemy is completed. Before they could finish burying the dead victims of this attack, a bus carrying Interahamwe and soldiers arrived and started attacking them. The refugees dispersed and hid in the bushes. [136] Witness GGH’s prior knowledge of the Accused was detailed in paragraph 55 above.

147. The Defence objected to Witness GGY’s evidence of this attack on the basis that it had no prior notice that the witness would testify to this attack. [137] Although this allegation is not mentioned in the Indictment nor in the witness’s prior statements, the Chamber notes that the 13 May attack is mentioned as being Witness GGY’s anticipated testimony in the Prosecutor’s Pre-trial Brief filed on 11 March 2002, about 3 months before the commencement of trial and 5 months before the witness’s testimony. The Chamber considers that this constitutes sufficient notice to the Defence.

148. The Defence complained of inadequate notice of the details Witness GGR would provide about the 13 May attack. [138] The Chamber notes that the Defence does not complain that it had no notice of this attack, but that it had no notice of its details. Notice of this attack was provided in the Prosecutor’s Pre-trial Brief, and the witness subsequently provided supplementary details during his testimony in court. The Chamber considers that this constitutes sufficient notice to the Defence.

149. The Defence argued that it was prejudiced by a lack of notice that Witness DAF would testify to a description of the Accused, and to his prior knowledge of the Accused from a sighting at a petrol station in Kigali. [139] The Chamber notes that the Defence does not complain that it had no notice of the allegations against the Accused to be testified to by the witness. In Ntakirutimana, the Chamber stated that details of this nature arising in the course of testimony, are not matters for disclosure. The Chamber has adopted this position.

150. The Defence complained that it had no notice that Witness GGM would testify to having seen the Accused at the inauguration ceremony. [140] The Chamber notes that the Defence does not complain that it had no notice of the allegations against the Accused to be testified to by the witness. In Ntakirutimana, the Chamber stated that details of this nature arising in the course of testimony, are not matters for disclosure. The Chamber has adopted this position.

151. The Chamber refers to the discussion on Witness GGY’s credibility in II.2.5.3 above. In relation to the 13 May attack, the Defence submits that the witness’s inability to identify Muyira Hill in a photograph in court undermines his evidence relating to this attack. [141] The Chamber considers that the witness’s difficulty with reading photographs does not affect the witness’s credibility.

152. The Defence also submits that the witness was mistaken in his identification of the Accused during the 13 May attack. [142] The Chamber notes the witness’s prior knowledge of the Accused as detailed in paragraph 119 above. In addition, the Chamber observes that the witness saw the Accused from a distance of 90 metres the first time on 13 May, and a second time from not more than 100 metres away. The witness also provided an accurate description of the Accused during this attack. The Chamber considers that the witness had the opportunity to observe the Accused during this attack and did not mistakenly identify him.

153. After consideration of the totality of the evidence, including that discussed here and in II.2.5.3 above, Witness GGY was found to be a credible witness.

154. The Chamber refers to the discussion on Witness HR’s credibility in II.2.4.2 above. In relation to the 13 May attack, the Defence pointed out that the witness had not mentioned the Accused as being one of those involved in the 13 May attack in Kayishema. [143] Witness HR insisted that he had mentioned the Accused, but the transcripts from Kayishema do not reflect this. The Defence suggested that Prosecution investigators had told him about the Accused’s involvement on 14 and 16 February 1998, a few days after his testimony in Kayishema. The witness disagreed and reiterated that he had seen the Accused. [144] Given that he mentioned this in his statement dated 20 March 1996 (as well as that dated 14 and 16 February 1998), the Defence’s suggestion is not well-founded. It was wrongly suggested by the Defence that he had not mentioned the Accused in Musema either. During that trial, the witness mentioned the Accused as having participated in attacks at Muyira Hill together with Musema and others. [145] The Defence had therefore unfairly misrepresented the record to the witness. The Defence sought to assert that these alleged omissions indicated that the Accused was not present at the attack.

155. After consideration of the totality of the evidence, including that discussed here and in II.2.4.2 above, Witness HR was found to be a credible witness.

156. The Defence submits generally that the inconsistencies in the witness’s evidence and his mistaken identification of the Accused indicates that the witness should not be relied upon. [146]

157. Regarding the issue of mistaken identity, the Defence suggested that the witness must have faced the Accused’s back during the attack. The witness said he saw the Accused’s profile. The Chamber notes that the witness saw the Accused on several occasions throughout the day of the attack, from a distance of 40-50 metres. The Chamber further notes that the witness knew the Accused prior to this event and in particular, sometime between 1980 and April 1990, the witness had the opportunity to observe the Accused once for 20-30 minutes when the Accused was recruiting members of the new MDR Party. [147] In light of this, the Chamber considers that the witness was not mistaken in his identification of the Accused during this attack.

158. The Defence also submitted that as the witness had not mentioned the Accused in his first two statements, nor in the Kayishema case, it casts doubt on his testimony. [148] The witness explained that he could not have listed all the names as he saw many people. [149] The Chamber accepts this explanation and observes that the first written statement mainly dealt with Kayishema, whereas the second focused on Gatete. In his third statement, the witness included the Accused among several leaders of the attacks.

159. The Defence pointed out discrepancies in this case, Kayishema and Musema relating to the date he was injured and the treatment he received for that injury. [150] The Chamber notes that the dates he testified to in all three cases fall within a range of dates he indicated in Musema, and that there is therefore no discrepancy in this regard. As for the treatment of his injury, the Chamber considers that it is conceivable that he received more than one form of treatment for his injury.

160. The Defence asserted that the evidence of the witness was rejected as unreliable by the Chamber in Musema. [151] The Chamber notes that the witness was found to be credible in Musema. [152]

161. Upon evaluation of the totality of the evidence, the Chamber considers that apart from minor discrepancies, Witness GGR’s testimony was clear and consistent and the Chamber finds him to be a credible witness.

162. The Defence submits generally that the inconsistencies in Witness DAF’s evidence, and the mistaken identification of the Accused, demonstrate that the witness should not be relied upon. [153]

163. The Defence put it to Witness DAF that he was mistaken in his identification of the Accused during the 13 May attack. The witness confirmed that he had known the Accused prior to this attack and was not mistaken. [154] The Chamber notes that the witness saw the Accused at the attack from a distance of 50 to 100 metres, and that the witness knew the Accused prior to the attack. The Chamber notes the witness’s prior knowledge of the Accused, and the fact that he furnished an accurate description of the Accused as he saw him sometime before 1990. Considering that the witness knew the Accused prior to this event, the Chamber considers that the witness was not mistaken in his identification of the Accused during this attack.

164. The Defence raised the issue of a finding of unreliability relating to the witness’s testimony in Musema. [155] However, the Chamber notes that the finding was in relation to an incident of the capture of a woman on the instructions of Musema, and Musema’s particular actions or words during the 13 May attack. Therefore, the finding does not relate to the witness’s testimony in this case. The Chamber has examined the testimony and observed the witness’s demeanour in this case carefully in considering the reliability of the witness.

165. The witness testified to having been 50 to 100 metres from the Accused and other leaders when he saw them on 13 May 1994. The estimate he gave in his reconfirmation statement dated 20 January 1997 was 100 to 150 metres. It was suggested by the Defence that he could not have recognized the leaders from that distance. The witness said that these were people he already knew and he recognized them immediately. The Chamber accepts his explanation. In the same 1997 statement, the witness also stated that he did not know Ruzindana before the war; yet during his testimony, he claimed to know him and to be able to recognize him. The witness explained that he had told the investigators that he knew Ruzindana before the war. [156] The Chamber does not consider this discrepancy to be significant.

166. The Defence pointed out that the witness had mentioned the Accused as one of the leaders of the Bisesero attacks in his testimony in the Kayishema trial, [157] but had not done so in the later Musema trial. [158] The witness explained that his focus was the Accused in that case and that he had not been asked anything about the Accused. [159]

167. The Defence highlighted another discrepancy: the witness testified to having been at Kucyapa before 13 May; however, in Musema, he said that the first time he was at Kucyapa was on 13 May. [160] He explained that in Musema, he had meant that 13 May was the first time he was at Kucyapa for the purpose of hiding from attackers. [161]

168. Witness DAF also testified to an alleged rape and murder by the Accused, which is examined in more detail in II.6 below. However, the Chamber has considered as a whole submissions made as to the credibility of the witness. The Chamber notes that the witness’s account of the sighting of the Accused on 13 May, and the alleged rape and murder of the young girl by the Accused on 20 May, are consistent with his prior statements. The witness was consistent during cross-examination. Based on an evaluation of the totality of the evidence, the Chamber finds Witness DAF to be a credible witness.

169. The Defence submits that the witness’s evidence contained inconsistencies and that the witness mistakenly identified the Accused. In light of these factors, the Defence asserts that there would be a serious risk of a miscarriage of justice if the witness were to be relied upon. [162]

170. The Defence submits that the witness was too young at the time of events to provide a reliable account of what he witnessed. [163] The Chamber notes that he was 17 years old in 1994, and therefore old enough to understand the events to which he claims to have been an eyewitness.

171. The Defence put to the witness that the inauguration took place at a time when the witness would have been in school. The witness was a secondary school student at the time. The witness said that he had stayed at home in Gitwa a long time as he could not resume his studies until November. A week later, he sat for his exams. It was also put to him that the Accused did not attend that meeting. The witness reiterated that he was present at the meeting and saw the Accused. The Defence suggested that he was mistaken as to the identity of the person he saw, but the witness said that the person introduced himself as Eliézer Niyitegeka. [164]

172. It was suggested by the Defence to the witness that he had named the Accused because he felt a minister ought to be responsible for the killings. The witness indicated that he had not mentioned other ministers like Karemera, as he had not seen him. [165] Further, when the witness had not seen something himself, he would state that he had merely heard about it.

173. The Defence contended that since the person Witness GGM was with in the sorghum field on 13 May did not confirm the witness’s account when he testified in Kayishema under the pseudonym KK, it casts doubt on the witness’s evidence. [166] The Defence claimed that Witness KK said that this meeting took place on 14 May and that Witness KK did not mention seeing the Accused from the sorghum field. [167] The Chamber consulted the relevant testimony of Witness KK in Kayishema and concludes that he was referring to a different meeting that took place on 14 May, as Witness KK refers to a meeting that occurred from 9 a.m. to noon, during which the attackers were told to go home as it was the last day of attacks. [168] The Chamber notes that Witness GGM’s testimony in Kayishema relating to the Accused’s involvement is consistent with the account he gave in this case. [169]

174. The Defence erroneously states that the witness did not deny that his brother died fighting as an RPF soldier. [170] In fact, the witness, when asked by the Defence if he had any family members who died fighting for the RPF, clearly said “No.” When asked more specifically about his brother, he said there were no RPF soldiers in Bisesero, and he did not know how his brother had died. [171] The Defence’s assertion is therefore misleading. Similarly, the Defence’s assertion that Witness GGM’s evidence regarding the absence of RPF soldiers contradicts Witness GK’s testimony on this issue is misleading, as it is clear from Witness GK’s evidence that he did not believe people who had told him that there were RPF soldiers present (see II.4.3 below).

175. Witness GGM corroborates the evidence as to a large-scale attack at Muyira Hill on 13 May, but he does not say that he saw the Accused during the attack. Witness GGM also testified to other events, which are detailed in II.5.3 and II.5.4 below. However, the Chamber has considered as a whole submissions made as to the credibility of the witness. The witness gave a clear eyewitness account of incidents personally observed by him and his testimony on this attack was consistent. Upon evaluation of the totality of the evidence, the Chamber finds Witness GGM to be a credible witness.

176. The Chamber refers to the discussion on Witness GGH’s credibility in II.2.1.2 above, and recalls that the Chamber found that the witness was credible.

177. The Chamber considered and rejected the relevant alibi evidence in II.2.2.3 and II.2.4.3 above.

178. Judicial notice was taken of the fact that on 13 May, a large-scale attack took place at Muyira Hill against Tutsi refugees. [172] Based on the totality of the evidence, the Chamber finds that on 13 May, sometime between 7.00 a.m. and 10.00 a.m., the Accused was one of the leaders in a large-scale attack by armed attackers against Tutsi refugees at Muyira Hill. The Accused was armed with a gun and was shooting at the Tutsi refugees at the hill. In addition, the Accused instructed the attackers during the attack, showing the attackers where to go and how to attack the refugees. There were a large number of Tutsi refugees, of all ages and both sexes, at Muyira Hill. The attackers comprised thousands of Interahamwe, soldiers, policemen and Hutu civilians. The attackers were armed with guns, machetes, spears, sharpened bamboo sticks and clubs. They were transported in ONATRACOM buses, lorries belonging to COLAS, MINITRAP vehicles, buses, pick-ups, vehicles from the Gisovu Tea Factory and vehicles commandeered from Tutsi. These vehicles parked at Kucyapa. The attackers were chanting “Tuba Tsemba Tsembe”, which means “Let’s exterminate them”, a reference to the Tutsi. The Accused was in the front row leading attackers, together with other leaders. Thousands of Tutsi were killed as a result of this attack.

179. Witness GGY testified to having seen the Accused on the morning of 14 May 1994 shooting at refugees at Muyira Hill. The Accused and the other attackers had parked their vehicles at Kucyapa. He saw the Accused at a signpost along the road at Kucyapa, from less than 100 metres away. The Accused was with Kayishema, the former Kibuye Prefet; Alfred Musema; Sikubwabo, the Bourgmestre of Gishyita; Ndimbati, the Bourgmestre of Gisovu; Ruzindana; Mika; Gérard and Elizaphan Ntakirutimana; Enos Kagaba; Kanyabungo Augustin; a young man called Victoire; Gasha Kabuhakwe, the former bourgmestre of Gishyita; Segatarama, the conseiller of Gitarama; Vincent Rutaganira, the conseiller of Mubuga, amongst others. The group of attackers comprised civilians, soldiers, Interahamwe, gendarmes and communal policemen. They were carrying guns, spears, clubs, machetes and sharpened objects. The Accused was carrying a medium-sized gun, between 80 and 100 centimetres in length. Upon seeing the attackers, the refugees fled to Muyira Hill where the witness saw the Accused shoot at the refugees there. The attack lasted until 4.30 p.m. or 5.00 p.m. They were chased to Kiraro river where another group of attackers were waiting and “they slayed many, many people to the extent that the river became red with blood.” [173] Witness GGY’s testimony as to Tutsi being targeted at the Bisesero hills, and his prior knowledge of the Accused was recounted in II.2.5.1 above.

180. Witness GGH saw the Accused on 14 May 1994, when he had fled to Nyabushyoshyo Forest with an Alex Gumiza. [174] He saw the Accused aboard a vehicle going towards Kucyapa, but he did not see the Accused do anything.

181. On 14 May, Witness HR and the refugees saw the same vehicles as those used during the 13 May attack, approach and stop at Kucyapa. The refugees had not been able to sleep the night before. When they saw the attackers, they fled in various directions and were pursued by the attackers who shot at them. Some were killed with machetes, others who were hiding were found and killed. The refugees spent that day running around the hills trying to save their lives. The witness stated that many refugees died that day. Witness HR said that he did not see the Accused on that occasion. [175]

182. The Defence objected to Witness GGY’s evidence of this attack on the basis that it had no prior notice that he would give such evidence. [176] The Chamber notes that attacks in Bisesero are alleged in the Indictment but the specific dates of these attacks, including those of 13 and 14 May, are not specified. The 14 May attack is not specified in the Prosecutor’s Pre-trial Brief or the witness’s prior statements. However, in his statement dated 25 October 1999, Witness GGY mentioned that attackers used to come everyday to the Bisesero hills, and indicated that the Accused was one of the participants involved in one of these attacks at Kivumu in Bisesero. Further, Prosecution witnesses have testified to large-scale attacks almost daily in various areas in the Bisesero Hills.

183. Witness GGY gave evidence as to the large-scale attack at Muyira Hill on 13 May, of which the 14 May attack is a continuation. There is evidence that the 13 May and 14 May attacks were in fact one continuous attack. Judicial notice was taken of the fact that a large-scale attack against Tutsi refugees took place at Muyira Hill on 13 and 14 May 1994. [177] Witness HR testified to the same vehicles as those used on 13 May arriving in Kucyapa on 14 May.

184. The Chamber considers that the Indictment provided notice to the Defence that it would be alleged that the Accused participated in attacks in Bisesero, and views the 14 May attack as a continuation of the 13 May attack, of which the Defence had notice, through the Prosecutor’s Pre-trial Brief, that Witness GGY would testify to.

185. The Chamber refers to the discussion on Witness GGY’s credibility in II.2.5.3 and II.2.6.3 above. In addition, the Defence submits that the witness was mistaken in his identification of the Accused. [178] The Chamber notes the witness’s prior knowledge of the Accused as detailed in paragraph 119 above. In addition, the Chamber notes that the witness observed the Accused from a distance of less than 100 metres away during this attack and could name the other leaders who were with the Accused. The witness was able also to describe the gun used by the Accused in the attack. In light of this, the Chamber considers that the witness had the opportunity to observe the Accused during this attack and did not mistakenly identify him.

186. After consideration of the totality of the evidence, including that discussed here and in II.2.5.3 and II.2.6.3 above, the Chamber found that Witness GGY is a credible witness.

187. Witness GGH provides limited corroboration for the Accused’s presence in the area of Kucyapa on 14 May. The Chamber refers to the discussion on the witness’s credibility in II.2.1.2 and II.2.6.3 above, wherein he was found to be a credible witness.

188. Witness HR corroborates evidence that a large-scale attack took place on 14 May when the attackers’ vehicles parked at Kucyapa. The Chamber refers to the discussion on Witness HR’s credibility in II.2.4.2 and II.2.6.3 above, wherein he was found to be a credible witness.

189. The Defence adduced alibi evidence to rebut the Prosecution’s allegations relating to the 14 May attack.

190. The Chamber refers to the discussion of Witness TEN-22’s alibi evidence in II.2.2.3 above. Witness TEN-22 testified to Bernard Kouchner’s visit to Murambi in Gitarama in mid-May, at which the Accused was present. He could not recall the exact date of the visit and stated that he thought it was on 14 May; however, he could only state with certainty that it was sometime in mid-May. Kouchner came to the witness’s workplace with the Accused, where Kouchner spent a few minutes and the Accused greeted the witness and his colleagues. The witness explained that he recalled the visit because Kouchner was escorted by bodyguards, which he declared was unusual. One of the bodyguards told the witness that the RPF army had shot at them when they left Kigali. The witness testified that Kouchner paid only one visit to Murambi, and stayed for a few hours in that place. [179]

191. The Prosecution suggested to the witness that Bernard Kouchner did not come to Gitarama on Saturday 14 May 1994, as Kouchner was in Kigali on that date, and only travelled to Gitarama on Sunday 15 May 1994. The witness answered that he could not remember the exact dates, and that he did not remember what day of the week Kouchner’s visit to Gitarama had taken place. [180] No evidence was led to support the Prosecution’s suggestion regarding the date of Kouchner’s visit.

192. The Chamber considers that the witness’s uncertainty as to the date of Kouchner’s visit weakens the alibi evidence significantly. There is no evidence as to whether this visit took place in the morning of 14 May, at the time of the attack. Even if it is accepted that the visit was on 14 May, the witness only saw the Accused for a few minutes on that day, which is not inconsistent with the possibility that the Accused could have left Murambi for Bisesero, and returned the same day, unobserved by the witness. The Chamber finds that Witness TEN-22’s evidence does not raise a reasonable doubt that the Accused was at Muyira Hill on 14 May.

193. Witness TEN-9 stated that on 14 May, Bernard Kouchner came to Murambi, Gitarama Prefecture, with a considerable escort in an armed car. Mr Kouchner went to the centre in which the Interim Government had its offices. At the center, he met with the Accused, and together, they met journalists who were to interview Kouchner at Radio Rwanda’s mobile studio in the centre of Murambi. The witness passed by and saw the Accused. [181] He added that, upon their arrival, he heard that Kouchner’s convoy had been shot at during their journey from Kigali.

194. The Prosecution suggested to the witness, on cross-examination, that Bernard Kouchner was in Kigali on Saturday 14 May 1994, and that he arrived in Gitarama only on 15 May 1994. The witness disagreed and stated that Kouchner arrived on 14 May. The Prosecution then put to him that Mr. Kouchner’s convoy was shot at not on the way from Kigali to Gitarama, but on the way back from Gitarama to Kigali, on 15 May 1994. The witness maintained his testimony. The Prosecution relied on a press article by Journalist Mark Huband of the Guardian Newspaper in London, who travelled in the same vehicle as Bernard Kouchner and published an account of the delegation’s visit to Rwanda, to show that Kouchner was in Murambi on 15 May, not 14 May. The witness reiterated his testimony and explained that perhaps Kouchner had stayed a night in Gitarama and was still there on 15 May. [182]

195. There is no evidence as to whether this visit took place in the morning of 14 May, at the time of the attack. There is no evidence as to the length of time for which the witness observed the Accused, but the witness’s testimony indicates that it was for a short time. This is not inconsistent with the possibility that the Accused could have left Murambi for Bisesero, and returned the same day, unobserved by the witness. Therefore, TEN-9’s evidence does not raise a reasonable doubt that the Accused was present at Muyira Hill on 14 May.

196. The Chamber refers to the discussion of the alibi evidence given by the Witness TEN-10 in II.2.2.3 above. In addition, TEN-10 testified to a mission the Accused undertook to Goma in mid-May, sometime between 10 to 20 May. Due to his occupation at the time, the witness saw the mission warrant intended for the Accused, but he did not verify whether the Accused actually went on this mission, although he said that once a warrant is issued, the mission would be undertaken. However, the witness said that he could not remember the length of the missions, and had not seen a mission report containing more details of the mission. [183]

197. The Prosecution pointed out in cross-examination that the witness was not aware of the missions of the other ministers, only those of the Accused. The witness replied that this was because he had come to testify for the Accused specifically, and given time, he would be able to remember the missions of the other ministers. [184]

198. The witness’s selective memory regarding the Accused’s missions undermines the reliability of his evidence. In any event, as the witness is uncertain about the exact dates and duration of the mission, and did not verify that the Accused in fact went on the mission, this is not inconsistent with the possibility that the Accused could have left for Bisesero on 14 May as alleged by the Prosecution. TEN-22 and TEN-9 testified to the Accused’s presence in Murambi, not Goma, on 14 May. The Chamber does not consider this alibi evidence to be reliable, and recalls that TEN-10 was not found to be a credible witness in II.2.2.3 above. Therefore, TEN-10’s evidence does not raise a reasonable doubt that the Accused was present at Muyira Hill on 14 May.

199. Witness TEN-23 travelled to Gitarama at the beginning of May 1994. Witness TEN-23 noted that he met Witness TEN-19 by chance in the street, and that Witness TEN-19 agreed to provide him with accommodation. The witness testified that he had met Witness TEN-19 once before, some time between 1991 and 1992, when one of his fellow students at the military school had introduced them. Witness TEN-23 testified that he found other people at Witness TEN-19’s house, and that more individuals arrived after he did. He testified that, in total, there were approximately 15 to 20 people at the house, including men, women and children, looking for protection. The witness stated that he could not be certain of the ethnicity of the other people at the house, but he guessed that they were a mixed group. He explained that he, like the other refugees, was fearful of encountering Interahamwe outside the compound, therefore, he left the compound only once. Witness TEN-23 testified that on one day, sometime between 10 and 15 May 1994, during his stay at the house a group of Interahamwe armed with “big sticks” came to the door looking for Tutsi, specifically supporters of the Inkotanyi. According to the witness, the Interahamwe were not too numerous to count. He testified that Witness TEN-19 talked to the Interahamwe and said the people inside the house were people he knew. [185]

200. Witness TEN-23 stated that the Interahamwe wanted to break down the door and were knocking very hard on the door using clubs and big sticks, but that the owner of the house was able to resist them.He stated that, although Witness TEN-19 was unarmed, he was able to prevent the Interahamwe from entering the house, and when he managed to repel them, he shut the door. [186]

201. Witness TEN-23 said that Witness TEN-19 then left the house and returned ten minutes later, accompanied by the Accused. The Interahamwe continued to knock on the door after Witness TEN-19 had left but were unable to enter the house. He said that, when Witness TEN-19 returned to the house, he unlocked the door with a key, and those inside unfastened the latch and opened the door for him. The witness said that the Interahamwe were still nearby. [187]

202. Witness TEN-23 stated that Witness TEN-19 explained to the Accused that the Interahamwe were threatening the people inside his house, and requested his assistance to make these people leave. The witness said that the Accused then instructed the Interahamwe to depart, and used a Rwandan proverb which says that in Rwandan culture, when the hunter flushes out an animal and the animal finds a refuge in a house it is prohibited to chase out the animal and give the animal to the hunter. Subsequently, the Interahamwe left. The conversation lasted for approximately ten minutes. The witness heard the conversation between the Accused and the Interahamwe because he was standing inside the house near the door. Witness TEN-23 said that the Accused then calmed the people in the house down and told Witness TEN-19 that he should contact the Accused if any more problems arose. [188]

203. Witness TEN-23 described the Accused as being of medium height but stout. The Accused was wearing a suit and spectacles, and had greying hair. He further stated that the Accused was unarmed. [189]

204. The Chamber notes that the witness does not provide a certain date for this incident, only that it occurred between 10 and 15 May, which is not inconsistent with the possibility that the Accused was present in Bisesero on 14 May as alleged. The Chamber does not consider that this evidence provides an alibi for the Accused.

205. Judicial notice was taken of the fact that on 14 May, a large-scale attack took place at Muyira Hill against Tutsi refugees. [190] Based on the totality of the evidence, the Chamber finds that on the morning of 14 May, the Accused and others, together with attackers, arrived at Muyira Hill and parked their vehicles at Kucyapa. The attackers comprised civilians, soldiers, Interahamwe, gendarmes and communal policemen. They were carrying guns, spears, clubs, machetes and sharpened objects, and launched a large-scale attack against the Tutsi refugees at Muyira Hill. The Accused was armed with a gun and shot at Tutsi refugees at Muyira Hill.

206. Witness GGH saw the Accused at the end of May when the Accused pursued the witness and other refugees the entire day, until they managed to escape to Cyamaraba in Kazirandimwe and hid in a bush there. [191] At about 4.00 p.m., the Accused parked his vehicle at Rugarama and instructed attackers to return at 6.00 p.m. to continue the killing, in particular, to attack and kill the refugees when they left their hiding places to look for food. The witness heard the Accused’s instructions as he was hiding in a small forest. The Accused was wearing a khaki long coat and a hat at the time. The attackers then went back and killed those who had started to leave the bushes, in which they were hiding, to search for food. [192] Although the Accused was about 250 metres away, the witness said he could hear the Accused because the witness was in a valley, looking upwards at the Accused who was on a mount, and the witness could hear the echoes of the Accused’s voice. [193]

207. The Chamber refers to the discussion of Witness GGH’s credibility in II.2.1.2 above, wherein he was found to be a credible witness. The Chamber recalls that the witness’s evidence on this event in particular was accepted, despite discrepancies with his statement. However, given the conditions in which the witness heard this instruction, in particular, the distance of 250 metres between the Accused and the witness, the witness’s evidence of this incident is not reliable and the Chamber will not rely on this evidence.

208. Witness GGV saw the Accused participating in an attack at Kiziba at about 11.00 a.m. around 18 June. The witness, a Tutsi, was among the attackers, disguised as one of them, with Interahamwe friends of his who were protecting him. They had persuaded him that being with them would be safer than staying at home, at a time when the Interahamwe were searching houses for Tutsi and killing any Tutsi found. The attackers at Kiziba were armed with traditional weapons. The witness arrived at the attack between 9.30 a.m. and 10.00 a.m., by which time the attacks had already begun. The witness stayed behind to watch over the buses used as transport for the attackers. The Accused arrived later in his vehicle with a high-ranking lieutenant; Ruzindana arrived with Kayishema. After parking their vehicles, all of them proceeded to the scene of the attack, armed with guns and pistols, including the Accused. The witness saw them exit their vehicles and load their weapons. He did not follow them towards the scene of the attack, but he could see them as he was using binoculars. In the middle of the attack, the Accused ran back, without his gun, to the place where the buses were parked. His civilian trousers were torn and he was breathless. He said they were able to kill Tutsi in Bisesero but some of these Tutsi escaped and were able to identify the Accused and the lieutenant. They both began to fire their guns, and when they were running out of ammunition, the lieutenant continued shooting to provide cover for the Accused to flee. While the Accused was resting, one person found Inyenzi in the bushes and said he had found his victim for the day. The Accused told him not to kill them, an old man and a young boy, but to bring them to the Accused. The Accused then said to them: “[Y]our relatives almost killed me”. He loaded his gun and shot the old man in the chest. He shot the young boy in the head and the body, and told the attackers to “remove the filth”, being a reference to the corpses of the old man and young boy. This attack lasted until around 3.00 p.m. or 4.00 p.m. and resulted in a large number of victims among the Tutsi refugees. [194]

209. After the attack, some left and others, transported in buses, went to the prefecture offices in Kibuye town. Some were in the Kibuye Prefectural Office, while others were in the canteen. The witness was outside in the open air close by the windows of the canteen with his Interahamwe friend. From his position he could hear what was going on in the canteen despite the fact that people were coming and going and there was quite a lot of noise. The meeting was held to provide refreshments to the attackers and to discuss the attack and its shortcomings, and to plan for the future. Many lamented the fact that they could not “finish off” the refugees in Bisesero and said the attacks should continue the next day. The witness said the Accused spoke as the government’s representative and promised gendarmes for the next day’s attack. He also told the bourgmestres and others present to do everything they could to ensure they participated in the attacks in order to end the Tutsi problem in Bisesero. Others also spoke while refreshments were served. The meeting only lasted about one to two hours, as it was already dark. Everyone then returned home. The witness heard from one of his friends that an attack did take place the next day although he did not witness it. [195]

210. Witness GGV knew the Accused before 1994 as the Accused visited the witness’s house once with his younger brother, who was friends with the witness’s older brother and would visit often. The Accused’s brother was an officer and was armed with a pistol whenever he visited, although he was in civilian clothes. The Accused’s brother was of an average skin colour, not too dark or too fair, and was stocky and not very tall. He also knew the Accused from Nyirambo Adventist Church, and from the construction of the Gisovu-Gishyita road, which passes the witness’s house. During the construction, the Accused would visit the site. In addition, he knew him from having attended an MDR Power meeting held near the Esapan School, over which the Accused presided. After 6 April 1994, he would also see the Accused passing in Kibuye town in his vehicle. The witness identified the Accused in court. [196]

211. The Defence submitted that the witness’s evidence was fantastical and incredible. [197] In particular, the Defence suggested that his account in his statement dated 8, 9 and 10 November 1999 of having narrowly escaped death twice is extraordinary. The witness offered a plausible explanation: on both occasions, friends intervened and saved him. [198]

212. Another indication of unreliability, according to the Defence, is the witness’s testimony that the Accused’s brother visited his house once with the Accused – the Defence suggested to the witness that the Accused had no brothers living at the time. [199] The witness explained in court that the term “brother” included the son of a paternal uncle or a person one is very close to. [200]

213. The Defence suggested that he was giving testimony to save himself from prosecution, and questioned the motives of the witness, given that he himself approached the ICTR to give information. [201] The Defence also asserted that the witness had ties with the RPF. [202] The Defence has not adduced any evidence to support its assertions. The witness was clear and consistent about the substance of his eyewitness testimony. The witness also testified to other incidents (see II.3.1.1 below). Having considered all the evidence, the Chamber finds Witness GGV to be a credible witness.

214. Witness TEN-10 testified to three meetings of the Interim Government chaired by the Prime Minister at Muramba on Friday 10 June, Friday 17 June and sometime between 20 and 30 June, which were attended by the Accused. The third meeting took place about a week after the second. The first two meetings lasted from 10.00 a.m. or 11.00 a.m. to 5.00 p.m. or 7.00 p.m. The witness did not say that he personally attended these meetings. He did not see the minutes of the meetings; he saw only the agendas issued prior to the meetings. He was not able to provide information on the content of the discussions at the meetings, or any other details concerning the meetings, other than that they fell on the Fridays to which he attached the dates stated. He was also uncertain about the attendance of other ministers. In cross-examination, some dates were put to the witness at random and he was asked to say on which day of the week those dates fell, including 10 and 17 June, but he was unable to say on which days of the week any of the dates fell. [203] Therefore, his evidence that there were meetings on 10 and 17 June is questionable. In light of this, and the reasons detailed in II.2.2.3 above, the Chamber finds that Witness TEN-10 is not credible and his evidence does not raise a reasonable doubt that the Accused was at Kiziba around 18 June.

215. Based on the totality of the evidence, the Chamber finds that around 18 June, at about 11.00 a.m., the Accused was at Kiziba with the attackers who were armed with traditional weapons. The Accused was armed with a gun and he shot at Tutsi refugees. The findings of the Chamber in relation to the alleged murder of the old man and the young boy will be set out in II.5.1.3 below. The findings of the Chamber in relation to the meeting after the attack will be set out in II.3.2.4 above.

[22] T. 15 Aug. 2002, pp. 87-89; T. 16 Aug. 2002, pp. 61, 89-90.

[23] T. 15 Aug. 2002, pp. 84-86; T. 16 Aug. 2002, pp. 84-85, 93-94.

[24] Defence Final Trial Brief, p. 95, para. 4; p. 111, para. 74.

[28] Id., pp. 68-70; Defence Final Trial Brief, p. 97, para. 13.

[31] T. 15 Aug. 2002, pp. 112-118, T. 16 Aug. 2002, pp. 28-29.

[32] T. 15 Aug. 2002, p. 118; T. 16 Aug. 2002, pp. 82-83.

[36] T. 16 Aug. 2002, p. 61; Defence Final Trial Brief, p. 104, para. 48.

[37] T. 15 Oct. 2002, pp. 15-27; T. 16 Oct. 2002, p. 103.

[38] T. 15 Oct. 2002, pp. 8-11; T. 16 Oct. 2002, p. 46.

[39] Defence Final Trial Brief, p. 112, para. 4.

[41] Prosecutor’s Supplemental Submission, p. 3, paras. 6 and 7.

[43] Defence Final Trial Brief, p. 118, para. 19.

[44] T. 15 Oct. 2002, pp. 75-76; Defence Final Trial Brief, p. 112, para. 4.

[45] Defence Final Trial Brief, pp. 113-114, paras. 6 and 8; Prosecutor’s Supplemental Submission, p. 7, para. 23.

[47] Defence Final Trial Brief, pp. 114, paras. 7-8.

[51] Prosecutor’s Supplemental Submission, p. 8, paras. 25-27.

[52] Defence Final Trial Brief, p. 114, para. 9. The reference to TEN-9 is an error.

[53] Prosecutor’s Supplemental Submission, p. 8, para. 28.

[54] Defence Response to Prosecutor’s Supplemental Submission, p. 14, para. 29.

[59] The witness himself did not attend the meetings, but as part of his professional responsibilities, he would sit outside the door of the meeting for the duration of the meeting to await instructions; Exhibit D42, p. 2.

[65] T. 29 October 2002 pp. 91-92, 97, 102-107.

[66] T. 29 Aug. 2002, pp. 114-123, 160, 174.

[68] Id., p. 114; Defence Final Trial Brief, p. 88, paras. 1 and 20.

[69] Defence Final Trial Brief, p. 94, para. 21.

[72] Id., pp. 169-170; Prosecutor’s Supplemental Submission, p. 5, para. 17.

[73] Defence Response to Prosecutor’s Supplemental Submission, p. 12, para. 20.

[74] T. 29 Aug. 2002, pp. 128, 147-149, 157-159, 174-184.

[76] T. 19 Aug. 2002, p. 15; T. 19 Aug. 2002, p. 27 (Fr.). The French spelling of “Rukazamyambi” and “Minyotsi” are favoured over the English (“Rukazamby” and “Myotsi”) as the first translation from the original Kinyarwanda.

[77] T. 19 Aug. 2002, p. 21; T. 19 Aug. 2002, p. 37 (Fr.). The French transcripts indicate that the witness referred to Gikongoro Prefecture, while the English transcripts refer to Gikongoro secteur. The French version is favoured as the first translation from the original Kinyarwanda.

[78] T. 19 Aug. 2002, pp. 11-25, 105-107; T. 20 Aug. 2002, pp. 9-10, 26, 39-42.

[79] T. 19 Aug. 2002, pp. 16-18; T. 20 Aug. 2002, pp. 20, 39.

[80] Defence Final Trial Brief, p. 130, para. 39.

[82] T. 20 Aug. 2002, pp. 3-7; Defence Final Trial Brief, p. 122, para. 14.

[85] Defence Final Trial Brief, p. 128, para. 30.

[87] Defence Final Trial Brief, pp. 125-126, para. 23.

[88] T. 19 Aug. 2002, pp. 90-92; Defence Final Trial Brief, p. 125, para. 23.

[89] Defence Final Trial Brief, p. 120, para. 2.

[92] T. 19 Aug. 2002, pp. 127-132; Defence Final Trial Brief, p. 129, para. 35.

[93] Defence Final Trial Brief, p. 124, para. 18.

[94] Prosecutor’s Supplemental Submission, p. 11, para. 36.

[97] T. 14 Aug. 2002, p. 20. According to the French transcripts, at pp. 32-33, the witness specifies that this attack took place on the 16^th, but he does not say of which month (“le 16 de ce mois-là” – “the 16 of that month”). In the original Kinyarwanda (14 Aug. 2002 AM, FLOOR/FRENCH #1, Track 01, Min. 46, between Sec. 27 and 42), the witness said: “Sinavuga cyane ko ari ikidasanzwe, kuko icyabaye ni igitero cyahateye gikomeye cyane, kandi ubundi ibitero byari bimaze iminsi biza ariko icyo cyari gifite ingufu kurenza ibyari byakurikiye icyo kuri 16”, which, translated, means “I can't really say it was an unusual attack. The attack against that location was a very big one; besides, attacks had been carried out for some days, but that one was more serious than those that had followed the one launched on 16^th.” However, in all the transcripts, the witness dates the attack as being between the end of April and the beginning of May.

[98] T. 14 Aug. 2002, pp. 15-20, 96; T. 15 August 2002, pp. 65-66.

[99] T. 14 Aug. 2002, pp. 19-31, 122; T. 15 Aug. 2002, pp. 74-75.

[101] Defence Final Trial Brief, pp. 176, para. 2.

[104] Ntakirutimana, T. 2 Oct. 2001, p. 30 (Witness YY).

[106] Defence Response to Prosecutor’s Supplemental Submission, p. 21, para. 52.

[107] Defence Final Trial Brief, pp. 178, para. 9.

[108] T. 14 Aug. 2002, pp. 127-128; T. 15 Aug. 2002, pp. 67-68.

[110] Rapport préliminaire d’identification des sites du génocide et des massacres d’avril-juillet 1994 au Rwanda, une publication du Ministère de l’enseignement supérieur, de la recherche scientifique et de la culture (commission pour le mémorial du génocide et des massacres au Rwanda, B.P. 624 Kigali) – Preliminary Report Identifying the Sites of Genocide and Massacres in April-July 1994 in Rwanda, a publication of the Ministry of Higher Education, and Scientific and Cultural Research (Commission for the Rwandan Genocide and Massacre Memorial).

[112] T. 14 August 2002, pp. 31, 37-39, 40; T. 15 August 2002, pp. 71-72.

[115] Id., pp. 41-42; T. 15 August 2002, pp. 56-57, 61-62, 77.

[123] T. 26 Aug. 2002, pp. 83-88, 96, 102-103.

[126] This person was Witness KK in Kayishema.

[130] T. 23 Aug. 2002, pp. 14-15; T. 26 Aug. 2002, pp. 4-5, 13, 28, 67-68.

[132] T. 23 Aug. 2002, pp. 50, 52; T. 26 Aug. 2002, p. 33.

[134] T. 23 Aug. 2002, pp. 10-12; T. 26 Aug. 2002, pp. 69-71.

[135] T. 15 Aug. 2002, pp. 93-97; T. 16 Aug. 2002, p. 86.

[137] Defence Final Trial Brief, p. 176, para. 2.

[144] T. 19 Aug. 2002, p. 117-124; Kayishema, T. 11 Feb. 1998, pp. 43-44.

[146] Defence Final Trial Brief, p. 149, para. 25.

[148] Defence Final Trial Brief, p. 145, para. 12.

[150] Defence Final Trial Brief, p. 146, para. 16.

[153] Defence Final Trial Brief, p. 158, paras. 28-29.

[155] Defence Final Trial Brief, p. 149, para. 2.

[162] Defence Final Trial Brief, pp. 168-169, paras. 36-38.

[164] T. 23 Aug. 2002, pp. 22-25; T. 26 Aug. 2002, p. 60.

[166] Defence Final Trial Brief, p. 162, para. 15.

[168] Kayishema, T. 26 Feb. 1998, pp. 47-49, 91-92.

[169] Id., T. 10 Nov. 1997, pp. 91-92, 97-100.

[170] Defence Final Trial Brief, p. 168, para. 33.

[172] Decision on the Prosecutor’s Motion for Judicial Notice of Facts, dated 4 September 2002.

[173] T. 14 Aug. 2002, pp. 47-53; T. 15 Aug. 2002, p. 79; T. 14 Aug. 2002, pp. 79-81 (Fr.).

[174] T. 15 Aug. 2002, pp. 97-99; T. 16 Aug. 2002, p. 76; T. 15 Aug. 2002, p. 178 (Fr.).

[175] T. 19 Aug. 2002, p. 31.

[176] Defence Final Trial Brief, p. 176, para. 2.

[177] Decision on the Prosecutor’s Motion for Judicial Notice of Facts, dated 4 September 2002.

[178] Defence Final Trial Brief, p. 181, para. 22.

[179] T. 29 Oct. 2002, pp. 98-99; 112-113.

[180] Id., pp. 110-111.

[181] Id., pp. 136-137.

[182] T. 30 Oct. 2002, pp. 35-38.

[183] T. 11 Nov. 2002, pp. 19, 82-83, 99-100.

[184] T. 11 Nov. 2002, pp. 82, 105-106.

[185] T. 22 Oct. 2002 pp. 61-68, 71; T. 23 Oct. 2002 pp. 12, 26, 30-36. Witness TEN-19 was a witness for the Defence, but he was not called.

[186] T. 22 Oct. 2002 pp. 66-68; T. 23 Oct. 2002 pp. 12-14.

[187] T. 22 Oct. 2002 pp. 66-68; T. 23 Oct. 2002 pp. 13-15.

[188] T. 22 Oct. 2002 pp. 66-69; T. 23 Oct. 2002 pp. 10-12.

[189] T. 23 Oct. 2002 p. 11.

[190] Decision on the Prosecutor’s Motion for Judicial Notice of Facts, dated 4 September 2002.

[191] T. 15 Aug. 2002, p. 99; T. 15 Aug. 2002, p. 180 (Fr.). The place named by the witness in Kazirandimwe is spelt “Kamarapa” in the English transcripts; in the French transcripts, it is spelt “Cyamaraba”. The French version is favoured as the first translation from the original Kinyarwanda.

[192] T. 15 Aug. 2002, pp. 99-101; T. 16 Aug. 2002, p. 93.

[193] T. 16 Aug. 2002, pp. 86-87; T. 16 Aug. 2002, pp. 144-145 (Fr.). See in particular, p. 145 (Fr.): “Lorsqu’on est près de la vallée, il y a toujours des échos quand on parle, et quand il parlait, j’entendais sa voix et les échos.”

[194] T. 27 Aug. 2002, pp. 29-38, 44, 75-76, 79, 117; T. 28 Aug. 2002, pp. 60-62.

[195] T. 27 Aug. 2002, pp. 39-44; T. 28 Aug. 2002, pp. 17-18.

[196] T. 27 Aug. 2002, pp. 3-7, 19; T. 28 Aug. 2002, p. 63.

[197] Defence Final Trial Brief, p. 182-183, paras. 3-4, p. 191, para. 30.

[198] T. 27 Aug. 2002, pp. 92-97, 100-105; Defence Final Trial Brief, p. 185, para. 8.

[199] Defence Final Trial Brief, p. 185, para. 9; T. 27 Aug. 2002, pp. 62-63; T. 28 Aug. 2002, pp. 58, 78.

[200] T. 28 Aug. 2002, pp. 83-84.

[201] Id., pp. 26-27.

[202] Defence Final Trial Brief, p. 191, para. 29.

[203] T. 11 Nov. 2002, pp. 26-28, 62-63, 95, 103-104.