3.5       Denial of Treatment to Tutsi Patients

3.5.1    Prosecution

137.    The Prosecution alleges that on or about 13 April, Gérard Ntakirutimana and Mathias Ngirinshuti closed the medical store and the main ward at the hospital. The Prosecution also submits that on or about 15 April, a day before the attack at the Complex, wounded Tutsi who were taken to the hospital by the Red Cross for treatment were denied treatment by the Accused, who locked the medicine storage room at the hospital and claimed that there were no materials for treating the wounded. [170] These allegations are not contained in the Indictment, but are included in Annex B of the Pre-trial Brief. [171]

138.    The Prosecution argues that Gérard Ntakirutimana was well aware of the likely consequences of denying medical treatment at a time when the evidence suggests that wounded Tutsi, having survived attacks in other communes, had come to the Complex seeking shelter and treatment. The Accused could not provide any explanation as to why he decided to abandon the hospital on 14 April, other than that he was asked to leave by gendarmes and he did not question them. [172]

3.5.2    Defence

139.    The Defence rejects the contention that Gérard Ntakirutimana withheld medical care from Tutsi patients by locking away medical supplies, or that he otherwise refused to treat Tutsi patients. According to the Defence, the Accused continued to treat unknown wounded patients, who most probably were Tutsi, up until 14 April. It follows from the testimony of Witnesses 7, 32, and 11 that ethnicity was not recorded in hospital files, contrary to the Prosecution’s submissions.

140.    Gérard Ntakirutimana was in no position to withhold medicines from patients, according to the Defence. Etienne Niyomugabo, a Tutsi, was in charge of the surgical department, and it was he who had the keys to the surgical rooms and operating theatres. Ezekiel Ruhigisha, also a Tutsi, had a master key to all hospital locks. As for Witness FF’s testimony that the Accused refused to treat wounded Tutsi who arrived in Red Cross vehicles, this was refuted by Witness 11’s evidence that the Red Cross did not transport patients and had no such vehicles available in the entire prefecture. [173]

3.5.3    Discussion

141.    The Prosecution relies primarily on the testimony of Witness FF. Accordingly, the Chamber will first summarize her testimony, as well as the testimonies of the other witnesses.

Witness FF

142.    At the time of the events in question, Witness FF was employed at Mugonero Hospital. She testified that around 7 or 8 April Mathias Ngirinshuti, who was in charge of personnel at the hospital, gave every hospital employee an identification card to make it easier for them to get to work, and that after the arrival of the gendarmes the various hospital employees kept working as usual. [174] The witness testified that from 7 to 15 April Gérard Ntakirutimana was present at the hospital complex, but not working in the surgery unit. "He was visiting the patients … normally, and he worked only during the daytime; I never saw him work at night." [175]

143.    The witness testified that in the course of the week leading up to 14 April a number of Tutsi wounded by shrapnel were brought to the hospital by the Red Cross. [176] Gérard Ntakirutimana allegedly denied them treatment. [177] "When the wounded started coming in from communes which were afflicted by violence, he stopped working. He closed the surgery and said that he did not have the tools and necessary equipment in order to treat Tutsis." [178] Witness FF heard the Accused say this while she was receiving wounded patients in the lower level of the main hospital building, in the room next to the surgery unit. [179] She was unable to remember the date when the Accused allegedly made the remark. [180] However she indicated that it was on the day "he closed that part of the hospital and went to Gisovu to his brother-in-law, in the company of his wife." The witness testified that the Accused came back late, whereas his wife remained in Gisovu. According to the witness, it was a weekday, closer to 15 April than 6 April; the Accused had already stopped working at this time. [181]

144.    Witness FF further testified that Gérard Ntakirutimana "did not participate in the rounds up to the 15th because he left prior to that ... he participated in the rounds for some days, and then he stopped". [182] The nurses continued working "in whatever way they could using makeshift means", until 15 April, trying to help those who had been wounded by shrapnel. [183] Witness FF maintained that the nurses washed the patients and had "some medication, some material in stock; for instance they would have some sutures which they would use in the stitching." [184]

145.    According to Witness FF, the medical supplies were kept in a building next to the hospital, as well as in a room inside the hospital. "When there was no more medicine I would go into the place where the stocks were kept in the company of the head of stocktaking and he [Gérard Ntakirutimana] was the one who gave me the medication I needed." The witness maintained that "the two places were locked. Had they been open, there wouldn’t have been any problem". She stated that the Accused "had the keys [to both stocks] because he was the one who locked up the surgery room and he took the keys with him". [185] She denied that Etienne Niyomugabo had a key to this room: "The keys for the surgery room were with the doctor because he was in charge of that room. Etienne worked as his assistant, because he was a nurse … he was just supporting the doctor who was actually overall in charge of the surgery room … Normally it was not Etienne who kept the keys, except at times he could be given the keys when he had to go and fetch something from the room." [186]

146.    Without indicating the date on which she had last checked the stocks, Witness FF said that it seemed to her that the medication in stock was sufficient to treat patients until 15 April 1994. But she also testified that Etienne would "use the little material that was in stock, but he didn’t have authority to go into the surgical ward or room because he didn’t have the keys. Furthermore, he didn’t have enough suture material to be able to do the stitching … he didn’t have access to the surgery and he was stitching them up in the hospital ward". [187] The pharmacy held no materials for stitching, only tablets and syringes. [188]

Witness XX

147.    Witness XX, who in 1994 was employed at the Mugonero Hospital, claimed to have seen Gérard Ntakirutimana at the hospital from 9 April onwards, although not on 13, 14, or 15 April: "He no longer lived in … his house which was near the hospital. We did not even see his car around, and it was said that he was living at his father’s." [189] The witness testified that prior to 13 April, "we used the medication available at the hospital". During the period of the Accused’s absence, a message was sent by Etienne Niyomugabo requesting Gérard Ntakirutimana "to come and make medication available". Niyomugabo was "the highest authority amongst the hospital employees", according to the witness, and was "the supervising nurse". Witness XX said that upon being asked for medication, Gérard Ntakirutimana "said that he had no medication for the Tutsis". The witness further stated: "At the time, the stock he had was locked up, and he was the only official who had remained, and he never came back to find out our fate." Witness XX indicated that they nevertheless used what was available at the hospital, but that the stock was depleted. [190]

Other Witnesses

148.    Defence Witness 7, an employee at Mugonero Hospital from January 1994 through 11 April 1994, and then again from May to July 1994, testified, "I never heard a patient complain about Dr. Gérard, so I think his attitude towards the patients was good, generally speaking". As to whether the Accused ever discriminated between Tutsi and Hutu, the witness said, "I never saw any such thing and I never heard anyone make mention of any such thing". [191] The Chamber notes that this witness was not present during the period which is relevant in this context.

149.    Gérard Ntakirutimana testified that during the period 11 to 14 April, persons with wounds requiring surgical treatment arrived in numbers at Mugonero Hospital. He surmised that they were mostly Tutsi: "It’s difficult for me to say, and this is because we weren’t checking on the identity of the wounded. That wasn’t our problem at all. … a patient came, we did what we could do; we didn’t try to find out whether this or that. But given the situation … that prevailed at the time, I believe that most of the people were Tutsis." [192] The Accused testified that Etienne Niyomugabo, who was the nurse responsible for the surgery, had keys to the surgery rooms. [193] Gérard Ntakirutimana denied that he ever refused to treat a patient prior to 14 April, the date on which gendarmes directed him to leave the hospital because of increasing lack of security. [194]

150.    The Chamber observes that the witnesses were uncertain of the date when Gérard Ntakirutimana allegedly denied treatment to Tutsi patients. Witness FF testified that the Accused continued visiting the patients "normally", up until 15 April. Yet, she stated that when the Accused commented about a lack of tools and equipment for Tutsi, he had already stopped working. Witness FF was uncertain about the date on which this remark was made. She testified that it was made on the day when Gérard Ntakirutimana drove his wife to Gisovu, which was 11 April (see 3.4.3(b)). Witness XX said that she did not see the Accused from 13 to 15 April. The Accused said that he left for security reasons on 14 April. In light of all testimonies heard, the Chamber finds that the Accused left the hospital on 14 April.

151.    Whether Gérard Ntakirutimana not only left the hospital, but also denied treatment to Tutsi patients by locking away the medical supplies is unclear. It follows from the findings in the previous section that most of the patients at the hospital towards the end of that second week were Tutsi. The evidence suggests that there were few medical supplies left at Mugonero Hospital during this period. Numerous patients were arriving. Witness FF testified that there was no stitching material in the pharmacy, only tablets and syringes. There is no evidence before the Chamber as to the actual amount of stock remaining in the pharmacy and in the surgery unit. [195] Under these circumstances a remark by the Accused to the effect that he lacked the necessary means to treat Tutsi arriving at the hospital with shrapnel wounds (according to Witness FF), or that he had no medication for Tutsi (according to Witness XX), is not in itself conclusive evidence of any discriminatory intent. Consequently, the Chamber must exercise caution when interpreting this alleged remark, which only Witness FF testified to having heard. Witness XX’s testimony was hearsay. Furthermore, the Chamber notes that Witnesses FF and XX testified that after Gérard Ntakirutimana left, the staff made use of available medication. Hence, even after the Accused’s departure, some material was available.

152.    In view of the insufficient evidence, the Chamber will not make a finding against the Accused that he denied treatment or medical supplies to Tutsi patients. Moreover, there is no need to consider whether only Gérard Ntakirutimana kept the keys to both stocks, as stated by Witnesses FF and XX, or whether also Etienne Niyomugabo, the supervising nurse at the surgery, and Ezekiel Ruhigisha, the person in charge of the technical services, had keys, as suggested by the Defence.

153.    This being said, the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients. The members of his staff, who were mainly Tutsi, were also left behind. The Chamber notes these elements as part of the general context.

3.6       Severance of Utilities

3.6.1    Prosecution

154.    It is the Prosecution’s case that on or about 14 April, Gérard Ntakirutimana cut off utility supplies to the Complex, leaving several thousands of refugees without water, electricity, and other basic sanitary supplies. This allegation is not mentioned in the Indictment. The Prosecution further submits that utility supplies were often disconnected at locations where Tutsi persons were gathered prior to their being attacked. [196]

3.6.2    Defence

155.    There are no specific submissions by the Defence about this allegation. However, it follows implicitly from its general submissions and explicitly from the cross-examination of Witness MM that the Defence disputes this allegation. [197]

3.6.3    Discussion

156.    Witness MM testified that between 12 and 16 April, water supply and telephone connections were disconnected at the Complex. He saw that the water supply had been disconnected at a location on a hill where he passed when escaping from the Complex on 16 April. The witness stated that during the night of 13 April, Ezekiel Ruhigisha, a Tutsi who was in charge of technical services at the hospital, told him that he had secretly gone to find out why the water had been cut off and was told by someone else that Gérard Ntakirutimana had given orders to that effect. Ruhigisha had repaired the pipes, but the water was disconnected a second time. [198] Witness FF said that pipes carrying water to the hospital had been destroyed, but it was not established how the witness knew this. [199]

157.    The Chamber observes that Witness MM did not hear the Accused give orders to cut off the water, but based his testimony on information from Ruhigisha, who had been told by an unidentified person that the Accused had done so. The information is therefore based on hearsay. There is no other evidence to connect the Accused to the alleged act.

158.    The allegation that Gérard Ntakirutimana ordered the disconnection of the hospital’s telephones, so that Tutsi there should not communicate with the "Inkotanyi", is also based only on hearsay (the son of Abel Bahunde, conseiller of Ngoma Secteur, allegedly told Witness MM), and involves speculation by Witness MM. [200]

159.    The Chamber finds that the allegation that Gérard Ntakirutimana cut off utility supplies (water and telephone) to the Complex is not supported by sufficient evidence.

3.7       Procurement of Gendarmes and Ammunition by Gérard Ntakirutimana

3.7.1    Prosecution

160.    According to the Prosecution, Gérard Ntakirutimana procured gendarmes and ammunition. [201] The Prosecution submits that the Accused went to the gendarmerie camp in Kibuye town for the first time early in the afternoon of 15 April 1994 in the hospital vehicle. Witness OO testified that the Accused asked to see the commander of the camp, claiming to have a prior appointment. He then met with 2nd Lieutenant Ndagijimana for about an hour. Witness OO testified that the Accused returned to the camp an hour later, accompanied by four armed soldiers dressed in camouflage. On this occasion the Accused met with Lieutenant Masengesho and was later joined by Obed Ruzindana. The meeting lasted three hours, following which the witness overheard the participants say that they had an other appointment at the camp the following day. The Prosecution notes that no witness corroborated Gérard Ntakirutimana’s claim that on 15 April he remained at his father’s house and did not venture out. [202]

161.    The Prosecution alleges that on the next day, 16 April, between 6.30 and 7.30 a.m., Gérard Ntakirutimana returned to the gendarmerie camp driving a white pick-up. Witness OO saw ten Interahamwe in the back of the vehicle dressed in uniforms and banana leaves and wearing feathers on their head. The Accused told the witness that he had an appointment with 2nd Lieutenant Ndagijimana about flushing out the Tutsi living in the hospital and the church, which the Accused could not achieve without military assistance. Witness OO testified that two officers and between 15 and 30 gendarmes, together with the Accused, departed the camp in three vehicles, after having requisitioned two cases of ammunition and consumed two cases of beer. [203] The gendarmes returned around 5 p.m., informing the witness that they had launched an attack against Tutsi at Mugonero. The witness was also told that Gérard Ntakirutimana had been very helpful to the gendarmes in the course of the attack, as he knew the premises well and knew where the Tutsi were hiding. He had invited the gendarmes to return to search the dead bodies for money. [204]

162.    It is the Prosecution’s case that Gérard Ntakirutimana left Mugonero for the gendarmerie camp in the hospital vehicle between 5.30 and 6.30 a.m. on the morning of 16 April and did not return until sometime after 7.30 a.m. This, in the Prosecution’s view, accounts for why Defence Witnesses 16 and Royisi Nyirahakizimana, Elizaphan Ntakirutimana’s wife, did not mention seeing the Accused at his father’s residence early that morning. The first time Witness Nyirahakizimana saw Gérard Ntakirutimana on 16 April was sometime after 8 a.m., as they prepared to leave for Gishyita. [205]

163.    In its oral arguments the Prosecution submitted that two "scenarios" are possible: Gérard Ntakirutimana could either have remained in Kibuye town on the evening of 15 April, mindful of the fact that he had an appointment the following day, or he could have returned to Mugonero. In any case the critical point is that there is no positive sighting of the Accused in Mugonero between noon on 15 April and 8.30 a.m. the next day. As for his alleged trip to Gishyita early in the morning of 16 April, this is not mentioned in Gérard Ntakirutimana’s summary of expected testimony or in the notice of alibi of 10 September 2001. Nor does the summary of the expected testimony of Witness Nyirahakizimana mention her son going to Gishyita that morning. [206]

164.    The Prosecution addressed the Defence’s argument that no witness at the Complex saw Interahamwe in banana leaves and feathers, and that therefore Witness OO’s sighting of Gérard Ntakirutimana in the company of persons dressed in that fashion cannot have been accurate. The Prosecution responds that Defence Witness 25 testified that he saw attackers, so dressed, on 16 April at the Complex. This evidence, in the Prosecution’s view, corroborates Witness OO’s testimony by supplying a "nexus" between events at the gendarmerie camp and events at the Complex. [207]

165.    The Prosecution also contends that Witness KK saw three convoys of vehicles arrive at the Complex on 16 April and did not see Gérard Ntakirutimana in the first two convoys; he saw him only in the third convoy at 8.30 a.m. Witness HH also placed Gérard Ntakirutimana in a convoy at 8.30 a.m.; Witness PP saw him with his father at around 9.00 a.m. This, according to the Prosecution, is consistent with the evidence of Witness OO, as that witness saw the Accused at the gendarmerie camp between 6 a.m. and 7 a.m. Prosecution exhibit P7 shows the distance between Kibuye town and Mugonero to be 25 to 27 kilometres, or 45 minutes to an hour by car. [208]

166.    As to Witness OO’s ability to identify Gérard Ntakirutimana, the Prosecution submits that he had known the Accused for about three or four months prior to seeing him at the gendarmerie camp. He had visited the hospital and had received treatment from the Accused twice. In addition, Witness OO’s duty at the camp was to ascertain the identity of people entering. He was able to account for the ten Interahamwe in Gérard Ntakirutimana’s vehicle because he counted them. He also testified that he maintained a log book in which he would often write down information about vehicles entering the camp. [209]

3.7.2    Defence

167.    The Defence submits that the fact that Witness OO had been in prison in Rwanda for seven years at the time of his testimony undermines his credibility. [210] During cross-examination the Defence suggested that the witness was testifying against the Accused in the expectation that he would gain an early release from the Rwandan authorities. [211]

168.    The Defence further submits that Witness OO’s evidence is inconsistent. He testified that the first time he saw Gérard Ntakirutimana was some time before the 18 April 1994 attack at Gatwaro Stadium, which, he said, took place after the transfer of Major Jabo to Kigali. In the Musema case Witness OO testified that Jabo was still present in Kibuye during the stadium attack. And in his statement to investigators the witness said that Jabo left with 50 or 60 gendarmes three days after that attack. This inconsistency casts serious doubt on the truthfulness of his allegations. [212]

169.    The Defence refers to Witness OO’s testimony that the third time he saw the Accused at the gendarmerie camp in Kibuye town was between 6.30 and 7.30 a.m. on 16 April. The Defence notes the witness’s admission that the chronology of events in his prior statement is problematic: "[o]ne would think the paragraphs were put upside down", according to the witness. Witness OO testified that the Interahamwe brought by the Accused to the camp that morning were dressed in banana leaves and wore feathers on their heads. He also testified that Gérard Ntakirutimana departed the camp together with a khaki-coloured minibus and a blue Daihatsu pick-up in which gendarmes were transported. The Defence submits that no Prosecution witness at the Complex claimed to have seen a khaki-coloured minibus, a blue Daihatsu pick-up, or Interahamwe in banana leaves and feathers. [213]

170.    The Defence case is that Gérard Ntakirutimana did not leave his father’s residence at any time between the afternoon of 14 April and the morning of 16 April. [214] The Defence submits that the two Accused left Ngoma on the occasion of their first trip to Gishyita on 16 April at around 6.15 a.m., that they departed Gishyita for Mugonero between 7.10 and 7.30 a.m., and that they returned to Elizaphan Ntakirutimana’s house before 8.00 a.m. At 8.05 a.m. a gendarme directed them to leave immediately, whereupon they set off for Gishyita for the second time that morning. They arrived in Gishyita between 8.30 and 9.30 a.m. The Defence relies on the evidence of Witnesses 16 and Ann Nyirahakizimana, in addition to that of the Accused, to refute the allegation that Gérard Ntakirutimana was in Kibuye town that morning. [215]

171.    In its oral submissions, the Defence questioned why the two Accused, if they were involved in planning the attack at the Complex, went to Gishyita on the morning of 16 April. The Defence argues that the Prosecution, to support this allegation, latterly proposed that the purpose of the first trip to Gishyita was not to intercede with the bourgmestre but to transport attackers to Mugonero. The Defence maintains that it is illogical to suggest that the two Accused waited until the last moment to evacuate their family and others, and that Gérard Ntakirutimana somehow managed to transport gendarmes from Kibuye town to the Complex in the morning of 16 April, evacuate the group to Gishyita, then return to Mugonero to take part in the attack. [216]

3.7.3    Discussion

172.    The Mugonero Indictment does not allege that Gérard Ntakirutimana acquired weapons, ammunition, and gendarmes from the gendarmerie camp in Kibuye town for the purposes of the attack at the Complex on 16 April. However, the Prosecution’s Pre-trial Brief makes the following allegation: "Between 10 and 16 April 1994, Dr. Gérard Ntakirutimana frequently visited the Kibuye Gendarme[rie] camp headquarters from where he procured arms, ammunition and gendarmes, for purposes of launching an attack on Tutsi refugees gathered at the Mugonero complex." [217] Therefore the Accused had sufficient notice of this allegation.

173.    The Chamber found Witness OO to be a credible witness. In April 1994, he was a gendarme with the rank of sergeant at the Kibuye town camp of the gendarmerie. [218] At the time of his testimony, and since 1994, the witness was, according to his account, in detention awaiting trial (not "in prison", as the Defence states). The witness testified: "I am accused of having kept people in my home who subsequently died. I am also accused of giving a pistol to a young man who was a civilian." [219] There is no evidence to contradict Witness OO’s account in this regard. Given the presumption of innocence enjoyed by a detained person awaiting trial, the Chamber will not draw any adverse inference against Witness OO on account of his status as a detainee.

174.    Witness OO stated that at some point before 18 April 1994, or alternatively before 14 April 1994, the then gendarmerie commander Jabo was transferred out of the camp because he opposed the killing of Tutsi refugees who at the time were streaming into Kibuye town and gathering in the town’s stadium and in other public spaces. Jabo’s successor, Lieutenant Masengesho, "collaborated with the Interahamwe, the préfet and the préfectural administration in general". Witness OO claimed to have seen prefect Kayishema come to the camp on "several" occasions after Jabo’s departure. Other individuals visited the camp during this time, including Eliezer Niyitegeka and Aloys Ndimbati (respectively, Minister of Information and bourgmestre of Gisovu Commune, according to the witness), Obed Ruzindana, Alfred Musema, and Gérard Ntakirutimana (whom the witness described as a doctor at Mugonero Hospital). [220]

175.    The witness estimated that he saw Gérard Ntakirutimana at the camp on at least four occasions (for the fourth occasion, see II.4.10, below). The first occasion was between 1.00 and 2.00 p.m. on a day in April 1994, prior to the 18th (it may be inferred from the witness’s later comments that it was on 15 April). The Accused came in a white pickup and asked to see the commander of the camp. The witness told him to wait. "And he told me that he could not wait because he had already spoken to the commander on the telephone, telling him that he was coming to see him". The vehicle had writing on its side indicating that it belonged to Mugonero Hospital. [221]

176.    Because the commander of the camp was not present, the Accused did not stay. When he returned again he was with four soldiers. They were in the rear part of the pickup and were armed. The Accused met with Lieutenant Masengesho. The witness testified that he did not know what they discussed, but at the time they separated, he heard them mention an appointment the next day. During the course of the meeting between Lieutenant Masengesho and the Accused, which took place in the former’s office, Ruzindana arrived in a green pickup. When Witness OO reported the new arrival to the two men, "Dr. Ntakirutimana told me, ‘Let him in; he has the same problems as we do’." The Accused, Ruzindana, and Masengesho departed the camp at the same time on that day, between 5.00 and 6.00 p.m. The meeting lasted about three hours. [222]

177.    Witness OO saw the Accused return to the camp the following morning, between 6.30 and 7.30 a.m. [223] This was on 16 April 1994. [224] "He came with people I would describe as Interahamwe … They were wearing the Interahamwe uniform. They had feathers on their head, with banana leaves around them. They carried machetes, spears and clubs. There were ten of them. They were singing and shouting, and when they got close to the camp they asked for weapons and ammunition, saying that the gendarmes were not up to the task. … they did that after shooting in the air twice." Some of these Interahamwe also had "Kalashnikovs". [225] They said they wanted the arms and munitions because the gendarmes had "failed"; the witness did not know exactly what they meant by this. [226] Gérard Ntakirutimana asked the witness where 2nd Lieutenant Ndagijimana was and added that he had an appointment with him to go "to beat the Tutsis who were in the hospital, in the church and even in the [hospital] store." [227] The Accused said that he required military assistance for this purpose.

178.    Witness OO could not remember what the Accused was wearing at the time but he did recall that he was not armed. [228] Second Lieutenant Ndagijimana asked a corporal named Nkunzurwanda to fetch two cases of ammunition. The witness said that he did not know how many rounds were in the cases. "They also asked for two cases of beer, and they served themselves before they left. And while they were there, a khaki-coloured minibus with a yellow licence plate, showing that it belonged to the state, came up followed by a blue Daihatsu which belonged to [a] trader". [229] The gendarmes got into the Daihatsu and the minibus and the Interahamwe got into the Accused’s vehicle, followed by 2nd Lieutenant Ndagijimana and Rwabukumba, another 2nd Lieutenant. The witness estimated that between 15 and 30 gendarmes boarded the two vehicles. He named several of them. [230]

179.    The gendarmes returned to the camp around 5.00 p.m. the same day. Witness OO approached a gendarme called Nizeyimana to ask what had happened: "[H]e told me that they had just launched an attack against the Tutsis in Mugonero, that the Tutsis were in the church at the hospital and also in the hospital store. He went on to say that, even if the work had not been completed, they had at least done good work. He said that Dr. Ntakirutimana had asked them to come back and search the dead bodies for money and that if the gendarmes continued to take part in such operations, they [would] be appropriately remunerated." Witness OO’s informant allegedly told him that Gérard Ntakirutimana was present during the attack: "He did not spare praise when he talked about Dr. Gérard, saying he had helped him a lot, [b]ecause he knew the plan of the premises and he said there were refugees in the store and that had it not been for his knowledge of the premises, they would not have been able to find them." [231]

180.    Several inconsistencies between the chronology of events as represented in Witness OO’s statement of 6-11 August 1998 and his testimony before the Chamber, including the date of departure of Jabo, were addressed by the witness: "When the investigators were questioning me they were taking down notes and when they went to type out my statement … they did not maintain the chronology of events. And I did not have the opportunity to read that over with them to be able to correct that error." He added: "I signed the statement all right … And I said to myself that even if there was a problem with the statement, I was going to solve it since I would be present [before the Trial Chamber] myself." [232] The Chamber accepts this explanation of the witness and concludes that the inconsistencies are not so material as to affect the substance of his testimony.

181.    The witness was asked if he had re-read his prior statement to refresh his memory. He answered that he did not have to do so "because the facts I am testifying on are facts which are well known to me". [233]

182.    Witness OO was the only witness to allege that Gérard Ntakirutimana went to the gendarmerie camp to procure arms and gendarmes for the attack at Mugonero on 16 April. Witness OO testified that two vehicles described as a khaki-coloured minibus and a blue Daihatsu drove 15 to 30 gendarmes out of the camp. The vehicle driven by the Accused transported ten Interahamwe. As discussed below (II.3.8), witnesses based at the Complex alleged that Gérard Ntakirutimana came to the Complex carrying persons in his vehicle variously described as Interahamwe, gendarmes, soldiers, and attackers. The description of the vehicles do not conform to the description given by Witness OO.

183.    The Chamber does not consider it important that no Prosecution witness testified about seeing the arrival of the convoy of vehicles and persons that departed the gendarmerie camp on the morning of 16 April. Witness OO did not claim to know from his own experience what happened to the convoy after its departure. He relied rather on indirect evidence, provided by the gendarme Nizeyimana, as to what the gendarmes (or at least some of the gendarmes) did after they left the camp. This does not diminish the reliability of the observations made by this witness in relation to the afternoon of 15 April and the morning of 16 April.

184.    The Chamber gives no credence to Gérard Ntakirutimana’s alibi that he was at his father’s house throughout the afternoon of 15 April and accompanied his father to Gishyita on the morning of 16 April, namely, at the time when Witness OO places him at the gendarmerie camp. The Chamber finds it noteworthy that the Defence was unable to lead any evidence, except for Gérard Ntakirutimana’s own claim, [234] to prove that he remained at his father’s house on the afternoon of 15 April and that he was there also in the early morning of 16 April. As discussed below under 3.8.3 (e), only Elizaphan Ntakirutimana supported his son’s claim to have traveled with him to Gishyita between 6.30 and 7.30 a.m on 16 April. The Chamber gives no credence to Elizaphan Ntakirutimana’s testimony in this regard. (The evidence concerning the first trip to Gishyita is examined below.) Defence Witness 16, who was Elizaphan Ntakirutimana’s housekeeper, said that he did not see Gérard Ntakirutimana at his father’s house on the morning of 16 April 1994: "I did not see him there. I saw only the pastor." [235] (The witness also seemed to suggest that Gérard Ntakirutimana had left his father’s house already on 15 April 1994. [236] ) Defence Witness 9, a cattle herder, arrived at the house around 7 a.m. on 16 April: "I met [Elizaphan Ntakirutimana] in the company of his wife in the morning." The witness said that they "were getting ready to board the vehicle." [237] He also saw Defence Witness 16, but did not see Gérard Ntakirutimana. Witness Nyirahakizimana, wife of Elizaphan Ntakirutimana, described her activities at the house early on 16 April without mentioning her son. She did see the hospital vehicle (which was usually driven by Gérard Ntakirutimana) parked on the road outside the compound of her house, but that was around 8 a.m. [238]

185.    The Chamber has also considered the other submissions of the Defence about alleged discrepancies but does not find that they affect the credibility of the witness.

186.    For the above reasons, the Chamber accepts Witness OO’s evidence and finds that Gérard Ntakirutimana attended a meeting with the commander of the gendarmerie camp and Obed Ruzindana in Kibuye town on the afternoon of 15 April. The Chamber also finds that on the morning of 16 April, between 6.30 and 7.30 a.m., Gérard Ntakirutimana returned to the gendarmerie camp. In his vehicle he was carrying Interahamwe who told Witness OO that they were in need of arms and ammunition. Gérard Ntakirutimana announced that he had an appointment with the commander of the camp to go "to beat the Tutsis who were in the hospital, in the church". The Accused departed shortly thereafter, taking with him the Interahamwe with whom he arrived, and accompanied by a number of gendarmes in two other vehicles who had been provisioned with boxes of ammunition. Later that day, one of the gendarmes reported to the witness that he and Gérard Ntakirutimana had taken part in an attack against Tutsi persons at the Mugonero Complex.

cont....