Before:
Judge Theodor MERON, Presiding 
Judge Florence MUMBA
Judge Mehmet GÜNEY
Judge Wolfgang SCHOMBURG
Judge Inés Mónica WEINBERG DE ROCA

Registrar:  Mr. Adama Dieng  

Date:          13 December 2004

THE PROSECUTOR
v.
Elizaphan Ntakirutimana and GÉrard Ntakirutimana
Cases Nos. ICTR-96-10-A and ICTR-96-17-A

JUDGEMENT

I. INTRODUCTION

A. The Appellants. 2
B. The Judgement and Sentence. 2
C. The Appeals. 3
D. Standards for Appellate Review... 4

II. APPEAL OF GÉRARD NTAKIRUTIMANA. 6

A. Legal Errors. 6

1. The Indictments. 6

(a) Double Jeopardy. 6
(b) Failure to Plead Material Facts. 7

2. The Burden of Proof 42

(a) Assessing the Detention of Witness OO.. 42
(b) Assessing Uncorroborated Alibi Testimony. 44
(c) Declining to Make Findings of Fact in Favour of the Accused. 46
(d) Relying on Credible Testimony as Background Evidence. 47
(e) Reference to Prior Consistent Statements. 48
(f) Application of the Presumption of Innocence. 52
(g) Consideration of the Alibi 56
(h) Consideration of Allegation of a “Political Campaign”. 58
(i) Consideration of Testimony of Prosecution Witnesses. 58

3. Other Errors of Law Asserted by Gérard Ntakirutimana. 59

B. Factual Errors. 60

1. Mugonero Indictment 60

(a) Procurement of Ammunition and Gendarmes (Witness OO) 60
(b) The Shooting of Charles Ukobizaba at Mugonero (Witnesses HH and GG) 72
(c) Attack on Refugees at the Mugonero Complex (Witness SS) 87
(d) Attacks on Refugees at the Mugonero Complex (Witnesses YY, GG, HH, SS) 91

2. Bisesero Indictment 95

(a) The Bisesero Findings Based Solely on Testimony of Witness FF. 95
(b) The Bisesero Findings Based Solely on Testimony of Witness HH.. 96
(c) The Bisesero Findings Based Solely on Testimony of Witness YY.. 97
(d) The Bisesero Findings Based Solely on Testimony of Witness GG.. 97
(e) The Bisesero Findings Based Solely on Testimony of Witness SS. 97
(f) Attending Planning Meetings (Witness UU) 97

III. APPEAL OF ELIZAPHAN NTAKIRUTIMANA 99

A. The Mugonero Indictment. 99
B. Insufficiency of Evidence to Establish That Tutsi Refugees at Mugonero Complex Were Targeted Solely on the Basis of their Ethnicity.. 100
C. Bisesero Indictment. 100

1. Nyarutovu Cellule and Gitwa Hill (Witness CC) 101

(a) Sufficiency of Notice. 102
(b) Discrepancies in the Evidence. 102

2. Murambi Hill (Witness SS) 105

(a) Lack of Notice. 106
(b) Insufficiency of Evidence. 106
(c) Delivery of the Letter 107
(d) Sighting of Gérard Ntakirutimana. 107
(e) Witness Coaching. 108

3. Muyira Hill – Ku Cyapa (Witness SS) 108

(a) Lack of Notice. 108
(b) Insufficiency of Evidence. 109

4. Murambi Church (Witnesses YY, DD, GG and SS) 110

(a) Shooting of Refugees. 110
(b) Removal of the Roof 112

D. Lack of Intent to Commit Genocide. 113
E. Aiding and Abetting Genocide. 115
F. Lack of Credibility in the Prosecution Case. 117
G. Failure of the Prosecution to Provide Notice. 119
H. Defence Testimony Raised a Reasonable Doubt. 119

1. Mugonero Complex: 16 April 1994. 119
2. Gishyita: From 16 April 1994 to End of April or Beginning May 1994. 120
3. Return to Mugonero: End of April to Mid-July 1994. 120
4. Error of Law by Drawing an Adverse Inference. 121
5. Alibi of Gérard Ntakirutimana for the Morning of 16 April 1994. 122

I. Failure to Consider the Appellants’ Motion to Dismiss. 123

IV. COMMON GROUND OF APPEAL ON THE EXISTENCE OF A POLITICAL CAMPAIGN AGAINST THE APPELLANTS

A. Assessment of the Appellants’ Witnesses and Evidence. 125

1. Witness 9. 125
2. Witness 31. 127
3. Film 1D41A.. 129
4. African Rights Booklet P29. 130

B. Appellants’ Challenges to Credibility of Prosecution Witnesses. 131

1. Witness GG.. 131
2. Witness HH.. 132
3. Witness KK.. 133
4. Witness YY.. 134
5. Witness SS. 135
6. Witness FF. 136
7. Witness II 138
8. Witnesses CC, DD, MM... 139

V. PROSECUTION'S FIRST, SECOND AND THIRD GROUNDS OF APPEAL 140

A. Admissibility of the First Three Grounds of Appeal. 140
B. Alleged Error in Not Applying the Joint Criminal Enterprise Doctrine to Determine the Responsibility of Gérard Ntakirutimana and Elizaphan Ntakirutimana.. 142

1. Law Applicable to the Alleged Error 146

(a) Joint Criminal Enterprise. 146
(b) Degree of Specificity Required in an Indictment as to the Form of Responsibility Pleaded. 149
(c) Did the Trial Chamber Err in Failing to Apply Joint Criminal Enterprise Liability to the Accused on the Facts of the Case as Presented by the Prosecution?. 150
(d) The Contents of the Indictments and the Pre-Trial Brief Did Not Put the Trial Chamber and the Accused on Notice that Elizaphan and Gérard Ntakirutimana Were also Charged as Co-Perpetrators of a Joint Criminal Enterprise to Commit Genocide. 153

C. Alleged Error in Confining Gérard Ntakirutimana’s Conviction for Genocide to the Acts of Killing or Serious Bodily Harm that he Personally Inflicted on Tutsi 156

D. Alleged Error in Defining the Mens Rea Requirement for Aiding and Abetting Genocide. 159  

VI. PROSECUTION’S FOURTH GROUND OF APPEAL (extermination) 165

A. Alleged Error for Requiring that Victims be Named or Described Persons  165
B. Alleged Error for Failing to Consider that the Accused Participated in a Joint Criminal Enterprise or Aided and Abetted the Crime of Extermination.. 169
C. Additional Issues Raised by the Accused in Relation to the Prosecution Fourth Ground of Appeal. 174

VII. PROSECUTION’S FIFTH GROUND OF APPEAL MURDER (Murder as A Crime Against Humanity) 177

VIII. SENTENCE.. 179

A. Prosecution’s Sixth Ground of Appeal. 179
B. Convictions and Sentence for Gérard Ntakirutimana.. 181
C. Convictions and Sentence for Elizaphan Ntakirutimana.. 184

IX. DISPOSITION. 187

ANNEX A : PROCEDURAL BACKGROUND. 1

ANNEX B : CITED MATERIALS/ DEFINED TERMS. 5

A. Jurisprudence. 5

1. ICTR.. 5
2. ICTY.. 6
3. Other Jurisdictions. 8

B. Other Material. 8

1. Books/Chapters in Books. 8
2. Other 8

C. Defined Terms. 8

1. The Appeals Chamber of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January 1994 and 31 December 1994 (“Appeals Chamber” and “Tribunal” respectively) is seised of appeals by Elizaphan Ntakirutimana and Gérard Ntakirutimana (“Appellant” individually or “Appellants” collectively, or “Accused”) and by the Prosecution, against the Judgement rendered by Trial Chamber I in the case of Prosecutor v. Elizaphan and Gérard Ntakirutimana on 21 February 2003 (“Trial Judgement”). [1]