3.13     Shooting of Other Refugees (Kagemana and Macantaraga)

3.13.1  Prosecution

394.    The Prosecution relied on Witness YY’s testimony that on 16 April 1994 he saw Gérard Ntakirutimana shoot one Kagemana at the Complex. The witness testified that Kagemana did not die immediately, but was transferred to the hospital and killed there. The Prosecution further submits that Witness YY saw Gérard Ntakirutimana shoot and kill one Macantaraga. Both victims were Tutsi. [558]

395.    In its oral submissions the Prosecution observed that when Witness YY was cross-examined on his omission to refer to this event in his prior statement, he explained that during his interview with investigators he was mostly asked questions about Mika Muhimana. Only at the trial was he asked for names of persons killed by Gérard Ntakirutimana. The Prosecution reiterated its position that a witness is not precluded from testifying to an event which he or she did not mention in a prior statement, nor should this be taken to mean that the witness is unreliable. [559]

3.13.2  Defence

396.    The Defence submitted that the Prosecution did not inform Gérard Ntakirutimana before trial that Witness YY would testify that the Accused shot and killed Kagemana and Macantaraga at the Complex on 16 April. This lack of notice constitutes a violation of the rights of the Accused to be informed in detail about allegations against him. [560]  

397.    The Defence made no further submissions on this particular event. According to the alibi evidence led by the Defence, Gérard Ntakirutimana went to Gishyita township at around 8.00 a.m. on 16 April and did not return to Mugonero that day.

3.13.3  Discussion

398.    Witness YY testified that, on 16 April, from the time when the attack started in the morning up until the time when he "ran to go and seek refuge at the hospital" he "continually" saw Gérard Ntakirutimana. The witness indicated that he observed the Accused from 9.00 a.m. to 2.00 or 3.00 p.m. [561] "I could see him because the place where we were located in an attempt to protect ourselves was not covered, there were no bushes. … So I could see when we were throwing stones at them, and when we were trying to hide behind these trees, but I could see him, because since he was shooting, he wasn’t hiding himself." [562] He explained that the Accused was wearing a white hat, a white T-shirt on which was written "ADRA", white shorts and white sandals. The witness stated that the weapon the Accused was carrying was of "medium" size, 85 centimetres or one metre long. [563]

399.    Witness YY said that he recognized several people shot by Gérard Ntakirutimana: "There was, for instance, a man known as Kagemana. … This person was shot at, but he did not die immediately and he was moved to the hospital where … he was killed later. There’s another person who was shot at … known as Macantaraga … and many others." Macantaraga died. All were Tutsi. "I was present and I saw him do it." While other attackers with guns were physically proximate to the Accused, they "were not in the same line of fire. They were shooting in other directions. This is how I came to see that it was Gérard who had shot at these people, because they were in the line of fire he was aiming at." [564]

400.    Witness GG testified that he was in "room three" of the main hospital building, when he saw attackers with traditional weapons kill refugees. [565] The witness went from there to the surgery unit. Upon entering the delivery room, he saw dead bodies, including two on the delivery table: Kagemana, who had been shot in the stomach, and one Iminadad. [566] Neither Witness GG nor Witness YY provided the first name or any other identifying information about the person each called Kagemana.

401.    The Chamber notes that the shooting of Kagemana and Macantaraga was not mentioned either in the Indictment, the Pre-trial Brief or the witness’s statement. This raises the issue whether the Defence received sufficient notice of the allegation. The requirements concerning the specificity of Indictments have been discussed generally above (see 3.2).

402.    The Chamber recalls that the Mugonero Indictment does not allege that Gérard Ntakirutimana killed named persons, but states (paragraphs 4.8 and 4.9) that he participated in an attack in which large numbers were killed or wounded. The Prosecution’s Pre-trial Brief states that "Gérard Ntakirutimana personally killed several Tutsi individuals including the hospital accountant, Charles Ukobizaba, and one Kajongi". Annex B to that brief includes a summary of the expected testimony of Witness YY. It states that the "attackers" on 16 April "included Dr. Gérard Ntakirutimana, Pastor Elizaphan Ntakirutimana, Charles Sikubwabo, Mika Muhimana, gendarmes, Interahamwe and armed Hutu civilians". Annex B does not contain an allegation that Gérard Ntakirutimana shot Kagemana or Macantaraga. Witness YY’s prior statement of October 1999 indicates that "many people were immediately killed" after the commencement of the attack, and that the witness saw Gérard Ntakirutimana "in all attacks when I was at Mugonero complex and Bisesero hill. I saw him running after refugees and shooting them." In its opening statement the Prosecution did not mention Kagemana or Macantaraga, but alleged that Gérard Ntakirutimana "orchestrated the assaults at the complex by leading groups of attackers and directing them to attack refugees in both the church and in the basement of the hospital; personally, [he] shot and murdered Tutsi refugees"; and that two witnesses "saw Gérard Ntakirutimana kill Charles Ukobizaba, the hospital accountant". [567]

403.    Under these circumstances, the Chamber holds the view that the Defence did receive notice of allegations that Gérard Ntakirutimana killed persons, in addition to Ukobizaba, during the attack on 16 April. It is true, however, that the Accused was not informed about the identity of the two victims until Witness YY gave his testimony. The question is whether the Chamber is precluded from considering this allegation because the Accused was informed too late. The Chamber observes that there is no indication that the Prosecution was in possession of material about these named individuals. Consequently, it was in no position to provide such details. It also recalls that, according to Kupreskic, the sheer scale of the alleged crimes may make it impracticable to require a high degree of specificity in such matters as, for instance, the identity of the victims. Unlike Kupreskic, Witness YY’s testimony concerning the shooting of Kagemana and Macantaraga was not a dramatic transformation of the Prosecution’s case but was simply an instance of the witness recalling the identity of two specific victims during the attack. The Defence could have asked for more time for cross-examination or recalled witnesses, and had sufficient time to investigate these precise allegations prior to the commencement of the Defence case.

404.    Having found that it is not precluded from examining the incident of Kagemana and Macantaraga because of lack of notice to the Defence, the Chamber finds on the basis of Witness YY’s testimony that Gérard Ntakirutimana participated in attacks on 16 April, as alleged in paragraph 4.8 of the Indictment, and that he shot at refugees. (The Chamber has rejected Gérard Ntakirutimana’s alibi from 9.00 a.m. on 16 April, see 3.11.4).However, there is not sufficient evidence to conclude that the Accused killed the persons mentioned by the witness. It follows clearly from the testimony that Kagemana was killed later by unknown persons at the hospital. Moreover, Witness YY did not provide sufficient detail to establish that it was actually Gérard Ntakirutimana who killed Macantaraga.

3.14  Sighting of Gérard Ntakirutimana in the Basement of the Hospital

3.14.1  Prosecution

405.    The Prosecution contends that Gérard Ntakirutimana was seen at the Complex late on 16 April taking stock of the persons killed at the hospital. For this it principally relies on Witnesses MM and DD. While the allegation is not referred to in the Indictment, some reference to it is included in the Pre-trial Brief. The Prosecution also relies on Witnesses HH and YY to support the hospital sightings. [568] In its oral submissions the Prosecution argues that the evidence of Witnesses MM, DD, YY, and HH indicates that at some stage after the attacks had stopped, in the early or late evening of 16 April, Gérard Ntakirutimana and others came walking among dead bodies, aiming their torches at the those lying dead and injured, trying to identify who were still alive. Witnesses MM and DD were located in the same area and gave essentially the same account. Witness YY, also positioned in the basement, overheard the event but from his hiding spot, and was not able to recognise those present. Witness HH observed the event but from a different perspective. According to the Prosecution, Gérard Ntakirutimana and his companions were taking stock. The purpose of the exercise was to leave no one to tell the tale, which meant that everyone had to be accounted for. [569]

3.14.2  Defence

406.    The Defence case is that the two Accused left Mugonero on 16 April before the fighting began and did not return to Mugonero on that day. [570] According to the Defence, Witness MM’s evidence is unreliable. In his three prior statements and in the "propaganda video" (exhibit 1D41A) he did not mention Gérard Ntakirutimana in relation to 16 April. In his April 1996 statement Witness MM stated that it was Obed Ruzindana who walked among the cadavers in the hospital room where the witness was located. Reconfirmation statements requested by the Defence were not produced. The Defence contends that the Prosecution had prior knowledge of this new allegation; otherwise the witness would not have been asked at trial if he had seen Gérard Ntakirutimana on 16 April at the Complex. [571]

407.    The Defence argues that the evidence of Witnesses HH and DD should be wholly rejected because it lacks credibility. The Defence does not specifically address the witnesses’ allegations pertaining to the hospital basement. [572] As for Witness YY, the Defence disputes that he was present at the Complex at all on 16 April, implying that all his allegations concerning that day were fabricated. In his testimony, Witness YY stated that he could not enter the church so he sought refuge in the hospital where he hid in a small room near the surgery unit. Yet in his October 1999 statement, the witness claimed to have survived by hiding under corpses in the church. [573]

3.14.3  Discussion

408.    The Chamber will first summarize the evidence of the four witnesses relied on by the Prosecution.

Witness MM

409.    Witness MM testified that he did not see Gérard Ntakirutimana during the attacks, and that he never said that the Accused had participated in the attack on the Complex. [574] However, the witness claimed to have seen Gérard Ntakirutimana on the night of 16 April in the company of Ruzindana, Mika, and Sikubwabo, walking in the corridor of the lower floor of the main hospital building among bodies. [575] The witness had been lying on his back under the delivery table in the maternity room since 4.00 or 5.00 p.m. [576] Bodies were lying on top of the delivery table. [577] According to the witness, there was a distance of less than five metres between him and the Accused. [578] The witness did not indicate the orientation of his body in relation to the doorway but said that he was "looking towards the corridor". [579] The lights in the corridor were on. He was not able to describe the Accused’s clothing: "[I]t was in semi-darkness; I couldn’t see very clearly what his clothes [were]". [580]

410.    According to Witness MM, Gérard Ntakirutimana was "sort of drawing up a list saying ‘such-and-such person is dead. Such-and-such person is dead. We’ve found his body, but we don’t know where such-and-such person is.’" [581] They were referring to "important people" who worked at Mugonero Hospital. [582] The witness said he remained in the maternity room until sometime between 11.00 p.m. and midnight. [583]

411.    Witness MM did not mention Gérard Ntakirutimana in connection with the attack of 16 April in his prior statements. [584] The statement of 11 April 1996 states that the witness did not see Sikubwabo after 10.00 a.m. on 16 April. The witness acknowledged that he had made this declaration. [585] The statement also indicates that the witness heard Mika and Ruzindana "take an inventory of the cadavers with great satisfaction, while citing the names of some of the dead", including the name of the treasurer Issacar Kajongi. [586] The witness attempted to explain the absence of reference to Gérard Ntakirutimana in relation to this event, saying that the investigators asked him about Ruzindana and Mika, not about the Accused. [587]

412.    The witness also testified that, just before he entered the maternity room, he and Kajongi were together, at which moment Kajongi was shot in his foot: "He fell, and I immediately went into the room." [588] The witness’s statement of 15 July 1996 makes reference to machete blows to Kajongi but not that he was shot. In the course of his testimony, Witness MM reiterated the claim made in the prior statement, that Kajongi was "finished" with machete blows. [589]

Witness DD

413.    Witness DD testified that in the course of the attack on 16 April he went to the basement of the two-storey hospital building to hide among bodies. [590] He entered through the door leading directly to the basement: "I went straight ahead, in front of me. … Along both sides of the corridor were patients’ rooms … The doors were open, and the rooms were full of people. … I was in the corridor, close to the entrance to the operating theatre. … I was not in a room." The witness continued:  "I was next to the room which was attached to the surgical ward, but I could see into that room." [591] "I lay down facing the operation room. There were other rooms near me and I could see what was happening in that place." [592] The witness described how he ended up covered with bodies: "We went into this building as we fled the attackers … attackers pursued us into the building and were killing us, using bullets and clubs. And when they hit someone and the victim fell, you would fall down with the victim and that victim would fall upon you. At that time when it happened to me I held myself still so that I wouldn’t be noticed." [593]

414.    Witness DD testified that he was lying on his side. [594] Two bodies were on top of him and his eyes were "wide open". [595] It was from this position that the witness claimed to have seen, "a very long time" after he had entered the building, "towards evening", Gérard Ntakirutimana "with the others. They were moving about amongst the bodies and those who were dying." [596] "It was still a bit light. … all the windows had been broken; but when these people came in they had torches, but it was still a little bit light." [597] There was no electricity (and by implication no artificial lighting), according to the witness. [598] The Accused was carrying a gun; "he was in the company of Mika and an old man known as Kanyabungo, who was with his sons. … Together with him, there were a lot of other people. They had torches and they were moving about and they were saying that there were still some people who hadn’t died, and I could hear and see all this." [599] Witness DD estimated that he saw the Accused from a distance of less than two metres: "The distance between us was very short. There were just heaps of bodies between us." The Accused "stayed there briefly, and then they took off". [600]

415.    Later in his testimony Witness DD added: "He was wearing ordinary clothes. He did not get into any room. He stood there close to the door which leads to the surgery room. … I did not see him using the gun. … He stood there and then he left." [601] And: "he remained standing near a room there. He was waiting for people … because when they came out, they all went away together. … All I heard him say was, ‘Come and get out; be fast’. And they left with him." (The witness said that the Accused’s words were directed at Mika and Kanyabungo. [602] ) Much later, at around 1.00 a.m. on 17 April, when it had become quiet, the witness left the Complex for Murambi. [603]

416.    Witness DD repeatedly insisted during his testimony that he did not wish to be held to the content of prior statements he had made to Prosecution investigators; rather, his testimony was to be regarded as the authoritative account. [604] At the same time, the witness confirmed that the first of his two statements (dated 11 November 1999) was read back to him in Kinyarwanda and that he had signed each page. [605]

Other Witnesses

417.    Witness YY testified that on 16 April he sought refuge in the hospital main building "in a small room below, near the theatre." [606]   The attackers continued to kill and at one point, they reached the room where he and the other refugees were hiding. The attackers tried to open the door, but the refugees prevented them from doing so. The attackers shot at the refugees through the lower part of the door and one of the refugees was shot in the ankle. However, the refugees remained in the room, and during the night the attackers left. [607] Witness YY remained in that room from about 2.00 or 3.00 p.m. until about 10.00 or 11.00 p.m. With him were another five refugees. [608]

418.    Witness YY testified that the hospital room became darker as night fell, and when pressed to explain how nightfall could have been noticed in a basement room with no windows, the witness put it down to the disappearance of a ray of light that at first came in under the door. "Between 8:30 and 9:30 p.m., there were people who walked past the corridor where we were. I heard their voices and they were using something that gave light. They were looking at bodies of people and they were saying this is so-and-so’s body, and they were wondering whether this was this person’s body or that person’s body." [609] The witness was able to leave the Complex between 10.00 and 11.00 p.m. on 16 April, by which time the attack had ended. [610]

419.    Witness HH testified that he saw Gérard Ntakirutimana at the hospital at nightfall. He had come down from the ceiling where he had been hiding to see what was happening outside. [611] "There were some attackers who were going from room to room looking … for survivors. This is how come I was able to see Dr. Gérard Ntakirutimana passing near the laundry place. He entered the main building of the hospital, and he was … accompanied by some other people and they were searching in these rooms … of the building." [612] Later in his testimony, he said: "I didn’t say that I saw Dr. Gérard enter the main building. I said that I saw him on the way towards the main building. But I saw him, rather, go into … another smaller building, not the main building." He did not see what happened inside the small building; he only heard shots. He said that when the Accused left the smaller building he took the path leading to the main building of the hospital. Witness HH did not see Gérard Ntakirutimana’s ultimate destination, nor did he see him do "anything whatsoever". The witness indicated the timing of the incident to have been "still during the day". [613]

420.    The Chamber notes that four witnesses gave evidence relating to the incident in the hospital basement. One of them, Witness YY, did not mention the Accused in connection with this event. The witness said that around 9.00 p.m. he heard voices from the corridor in the hospital’s basement. The persons "were using something that gave light" and were talking about the bodies before them in the corridor. Therefore, the evidence of Witness YY at most confirms that a group of persons talking about dead bodies passed through the hospital’s basement sometime after nightfall on 16 April.

421.    Witness HH’s testimony is relevant insofar as he claimed to have seen Gérard Ntakirutimana enter the main hospital building at nightfall. However, there is very little information about this alleged observation, such as the distance of the witness from the person he saw, the direction the person was facing, etc. The Chamber will therefore exercise caution in relation to the evidence provided by this witness. It is noted that Witness HH made no reference to this event in his prior statement.

422.    Two of the four witnesses testified that they observed Gérard Ntakirutimana in the hospital basement. The Chamber will first consider the evidence of Witness MM, who claimed he saw Gérard Ntakirutimana with Ruzindana, Mika, and Sikubwabo in the corridor outside the maternity room, at a distance of less than five metres; the Accused was talking about persons who were dead or missing. The witness was lying on his back on the floor of the maternity room pretending to be dead. It was night, and the lights in the corridor were on. Witness MM did not provide any details about the Accused’s appearance.

423.    The Chamber recalls that Witness MM gave three statements to investigators. The first two describe the events on 16 April. In the statement of 12 September 1995 there is no reference to any stock-taking of dead bodies in the hospital basement and no mention of Gérard Ntakirutimana at Mugonero, only of his father conveying attackers. Gérard Ntakirutimana is, however, mentioned in connection with Bisesero. The second interview, dated 11 April 1996, contains the following passage:

I saw Obed Ruzindana among the attackers. It was he who directed the killings. He even encouraged the destruction of the hospital, because he claimed that he had the money to build another one. I saw him throw tear gas. Then, I also saw him move among the cadavers in the room where I was located. He had a pistol in his hand and was accompanied by the Conseiller of the Gishyita sector, Mikka, who carried a rifle. I heard them take an inventory of the cadavers with great satisfaction, while citing the names of some of the dead, such as the hospital accountant, Charles Ukobizaba; the treasurer, Issacar Kajongi; the director, Jean Nkuranga; pastor Seth Sebihe; pastor Ezéchiel Semugeshi.  They continued to look for the bodies of persons of interest to them, including the secretary, Amos Karera; the nurse, Etienne Niyomugabo; and particularly the businessman, Antoine Nzamurambaho. … [614]  

424.    The Chamber observes that, in the statement, Gérard Ntakirutimana is not included among the persons alleged to have made an inventory of dead bodies. His name is not mentioned in any incident that allegedly took place on 16 April, whereas his father is again said to have transported attackers on that date. The statement only makes reference to Gérard Ntakirutimana in connection with incidents at the Mugonero Complex on 9 and 10 April and in Bisesero from 17 April onwards. When Witness MM was asked why he had not mentioned Gérard Ntakirutimana in connection with the event in the hospital basement, he answered that the investigators asked him about Ruzindana and Mika, later about the CDR, then about Elizaphan Ntakirutimana. He also explained that the investigators did not give witnesses time to tell what they know, and that even his testimony did not contain everything he knew. Asked why Gérard Ntakirutimana was mentioned in the same statement three paragraphs later the witness stressed that he was telling the truth.

425.    The Chamber accepts that statements to investigators do not always give the full account of the events and are influenced by factors such as the time available for the interview, the questions asked by investigators, and communication problems. However, in relation to Witness MM’s statement of 11 April 1996, his answer was not entirely convincing. The statement contains an introductory paragraph, according to which the witness "will tell … everything" he witnessed during the massacres in Ngoma, Gitwe, and Bisesero. Its structure is mainly chronological and does not focus on specific individuals. The CDR is mentioned in the beginning and the middle of the statement. Elizaphan Ntakirutimana is mentioned before Ruzindana and Mika. Also the references to Gérard Ntakirutimana appear in chronological order in connection with 9, 10, 17 and 18 April. 

426.    The text of the statement gives the impression that the witness was answering a question about persons, possibly leaders, who participated in the attacks on 16 April. It follows both from the witness’s testimony and his statements that he did not see Gérard Ntakirutimana during the attacks on that date. This would explain why the witness did not include the Accused in the passage about the basement. However, the response of the witness was different. Under these circumstances, and in view of the fact that the passage about the hospital basement was recorded with considerable detail, the Chamber will place limited reliance on this part of the testimony even if it generally considers Witness MM a credible witness, see 3.8.3 (d).

427.    The Chamber will now consider the testimony of Witness DD, who testified that he was lying on his side in the corridor of the basement, close to the entrance to the operating theatre. Two corpses were on top of him. His eyes were open. Though it was evening there was still natural light in the corridor. The lights were not on. From a distance of less than two metres, Witness DD claimed to have seen the Accused, wearing "ordinary clothes" and armed with a gun, in the company of Mika Muhimana, one Kanyabungo, and many others. The persons Witness DD claimed to have seen had torches. "They" were saying that some people had not yet died. Witness DD heard the Accused speak once only, when he told Muhimana and Kanyabungo: "Come and get out; be fast". The Chamber notes that Witness DD’s statement of 11 April 1999 also refers to dead bodies and the witness’s observation of Muhimana, Gérard Ntakirutimana and Kanyabungo and his two sons. There are some differences between the statement and the testimony but there is no need to pursue them here.

428.    Witness DD claimed to have seen Gérard Ntakirutimana from a short distance (less than two metres). The Chamber notes, however, that, according to Witness DD’s account, the persons passing through the corridor were using torches to see in the semi-darkness and they were actively looking for persons still alive. Even if Witness DD had had the courage to stare at such persons from a distance of less than two metres, the Chamber is not convinced beyond a reasonable doubt that the witness would have had a clear view of the faces of persons shining torches toward the ground where he lay. There is evidence that Witness DD knew of Gérard Ntakirutimana ("I know that he worked at the hospital. It was said that he was a doctor. I’m not sure what his functions were"), [615] but not that he was familiar with him or even knew him personally. For these reasons the Chamber is not convinced beyond a reasonable doubt that Witness DD could recognize Gérard Ntakirutimana in semi-darkness, or from his voice when the Accused is said to have uttered, "Come and get out; be fast".

429.    The Chamber notes that the testimonies of Witnesses MM and DD both refer to Gérard Ntakirutimana allegedly being seen in the hospital basement at nightfall on 16 April. The witnesses were in close proximity. However, there are also significant differences between the two accounts. According to Witness DD, Gérard Ntakirutimana did not engage in a discussion about persons killed (as alleged by Witness MM), but uttered a brief instruction. More importantly, Witness DD did not mention seeing Ruzindana and Sikubwabo; and he said that the lights in the corridor were off, contradicting Witness MM who, moreover, did not mention any torches. Furthermore, as already indicated, the Chamber cannot overlook the extreme conditions under which both witnesses made their observations, under dead bodies, at nightfall. Under these circumstances the Chamber must exercise caution in its assessment of the evidence.

430.    In previous sections the Chamber has found that Gérard Ntakirutimana procured arms and ammunition from the gendarmerie camp in Kibuye (3.7), participated in armed attacks at the Complex on 16 April and killed named individuals during those attacks (3.11-3.13). However, for the reasons explained above, the Chamber has not found sufficient evidence to conclude beyond a reasonable doubt that Gérard Ntakirutimana took stock of dead bodies in the hospital basement at nightfall on 16 April.

3.15     Evidence of Superior Responsibility

4.12 Before all of the above mentioned attacks, Gérard Ntakirutimana knew or had reason to know that his subordinates, including various employees of the Mugonero Hospital under his authority and control, were about to participate in attacks on the men, women, and children, and did not take necessary and reasonable measures to prevent such attacks. In addition, after the attacks, Gérard Ntakirutimana did not punish the perpetrators. [616]

3.15.1  Prosecution

431.    It is the Prosecution’s case that following the departure of Dr Giordano and his wife from Mugonero Hospital on or about 10 April, Gérard Ntakirutimana took charge of the operations and administration of the hospital and acted as a de facto director until his departure from Rwanda in July 1994. In view of the Accused’s testimony that Dr Giordano did not inform him who would act as director, the Prosecution submits that it is immaterial whether a formal offer of appointment was made to the Accused because his conduct during the period manifested all the powers and functions of director. The Prosecution submits that Gérard Ntakirutimana attended a meeting of 3 May in Kibuye town in his capacity as the de facto director of Mugonero Hospital. [617]

432.    The Prosecution argues, in particular, that Gérard Ntakirutimana had effective control over Mathias Ngirinshuti, the director of personnel at the hospital. This can be surmised from evidence concerning the attack on 16 April. The Prosecution relies on Witnesses GG, YY, HH, and DD. It follows from the Prosecution’s Closing Brief that the allegation of Gérard Ntakirutimana’s superior responsibility for acts of subordinates primarily relates to crimes said to have been committed by Ngirinshuti at the Complex on 16 April. This follows also from the Prosecution’s final oral submissions. [618]

3.15.2  Defence

433.    The Defence denies the Prosecution’s claim that Gérard Ntakirutimana "had both de facto and de jure authority over Mathias Ngirinshuti, Kagaba and Elizaphan Gakwere during the period 9th to 30th April 1994" and that it was within the Accused’s power to prevent these subordinates from attacking Tutsi refugees gathered within the Complex on 16 April. The Accused was only a doctor at the hospital. The Defence submits that Enos Kagaba was a director of studies under Jean Nkuranga at the ESI Nursing School, Manasse Gakwerere was a pastor and one of the three directors under Elizaphan Ntakirutimana at the SDA, and Mathias Ngirinshuti was the director of personnel at the hospital and independent of, if not higher in administrative authority, than Gérard Ntakirutimana. The Defence contends that there is no evidence to suggest that the Accused had any authority over the three named persons. [619]

3.15.3  Discussion

434.    It is established case law that civilian leaders may incur responsibility in relation to acts committed by their subordinates or other persons under their "effective control". [620]   In the present case, this implies that the Prosecution must prove that Gérard Ntakirutimana had "effective control" over Mathias Ngirinshuti (and any other persons) before it can argue that the Accused should be held responsible for Ngirinshuti’s actions (or the actions of any other persons). The Prosecution acknowledged this during its final oral submissions. [621]

435.    Evidence suggests that Gérard Ntakirutimana took charge of the hospital after Giordano’s departure. Witness XX testified that the Accused "immediately" became the "necessary" replacement and "took over the responsibilities as medical director". She identified the Accused as being the person "in charge" of the hospital during the period 7 to 16 April. [622] Witness FF stated that prior to the events of April, Dr Giordano acted as the surgeon at the hospital, while Gérard Ntakirutimana was a consulting physician only. After the former’s departure, "it was Dr. Gérard who was responsible for all these tasks". [623] The evidence of Witness MM was that it was the Accused and Ngirinshuti "who seem[ed] to be in charge of the hospital. And on several occasions, they asked us to leave the hospital because they said it was a place where they were supposed to be treating patients." [624] The Accused testified that there were no hospital staff under his direction: "When I did the hospital rounds I would have the nurses who would mention examinations to be given or the medication to be given, so I didn’t supervise anyone. Even with the nurses, they were under Ngirinshuti, Mathias, who was the chief of personnel." [625]

436.    The Chamber observes that even if the evidence established that in the days leading up to 16 April Gérard Ntakirutimana assumed the directorship of the hospital (whether or not by way of formal appointment), this would not, alone, demonstrate that he had effective control over Ngirinshuti or other hospital staff. Conversely, the fact that Gérard Ntakirutimana was not in any kind of administrative relationship with Enos Kagaba (who was an employee of the nursing school) does not in itself preclude that he had effective control over Kagaba. Regard must be had to the evidence adduced.

437.    In the present case there is very little evidence about Gérard Ntakirutimana’s relationship with Mathias Ngirinshuti, and certainly not enough to establish beyond a reasonable doubt that the latter was under the effective control of the former. It is not established whether Ngirinshuti was acting on his own, or under another person’s control, or as another person’s accomplice, or in some other capacity. Witness HH testified that among the attackers at the Complex on 16 April he saw Gérard Ntakirutimana "accompanied by" Ngirinshuti. [626] He also identified Enos Kagaba, a teacher at the nursing school, as one of the attackers. [627] Witness YY recognised staff of the Complex among the attackers: Kagaba, Ngirinshuti (whom he mistakenly identified as a "doctor" at the hospital), Pastor Gakwerere, and Pastor Ushizimpumu. [628] Witness DD testified that among the attackers on 16 April he saw Gérard Ntakirutimana and Kagaba, both armed, and Ngirinshuti, who was unarmed. [629] The witness also alleged that Kagaba and Ngirinshuti were together at the ESI Chapel, when Ngirinshuti was asking a Hutu person to leave the chapel. [630] Witness GG claimed he saw Gérard Ntakirutimana in the company of Ngirinshuti and Kagaba: "They were placing the attackers in such a way that they surrounded the hospital." [631] None of these witnesses provided any information that Gérard Ntakirutimana had control, let alone effective control, over the other named persons.

438.    In view of the fact that the Prosecution has failed to prove that Gérard Ntakirutimana had effective control over any person during the period up to and including 16 April 1994 and even thereafter, the Chamber does not find it necessary to consider evidence in relation to the other elements of superior responsibility.

cont....