3.9       General Description of the Attack

4.8 The individuals in the convoy, including Elizaphan Ntakirutimana, Gérard Ntakirutimana & Charles Sikubwabo, participated in an attack on the men, women and children in the Mugonero Complex, which continued throughout the day. [435]

4.9 The attack resulted in hundreds of deaths and a large number of wounded among the men, women and children who had sought refuge at the Complex. [436]

3.9.1    Prosecution

311.    The Prosecution submitted that the "interim government" formed following the death of the President of Rwanda on 6 April 1994 adopted a policy which called upon the country’s Hutu majority ethnic group to murder everyone in the Tutsi minority. The mass killings throughout Rwanda followed.

312.    In support of its case that a genocide ("a single genocide") aimed at the extermination of the Tutsi population was committed in Rwanda between April and June 1994, the Prosecution cites the Akayesu Judgement’s finding to that effect. The Prosecution also relies on Akayesu for its argument that the genocide was meticulously organized and that the Tutsi were targeted because they were Tutsi and not because they were fighters for the Rwandan Patriotic Front (RPF). The Prosecution accepts the view expressed in the Kayishema and Ruzindana Judgement that while a plan is not an element of genocide, it is "not easy" to carry out a genocide without a plan. It further relies on that Judgement for the view that, given the magnitude of the underlying crimes, it is virtually impossible for genocide to be committed without some involvement on the part of the state.

313.    The Prosecution submits that the attack at the Mugonero Complex was part of a pattern of attacks being executed in other locations in Kibuye at around 16 April 1994, such as at Mubuga Church, Home St. Jean, and Gatwaro Stadium. Refugees arriving at those locations found gendarmes present. The gendarmes controlled the congregation, maintained law and order, and, in some cases, prevented refugees from leaving by warning of possible attacks outside those supposedly safe locations. Utility supplies were often disconnected prior to the attacks. The massacres were carried out by law enforcement agents, including gendarmes and communal policemen. They were joined by Hutu militia known as Interahamwe. More importantly, according to the Prosecution, the attacks were perpetrated under the watchful eye of local authorities and prominent Hutu civilians, who participated to a greater or lesser extent. [437]

314.    The Prosecution’s case is that Gérard and Elizaphan Ntakirutimana were needed at Mugonero to keep the refugees there. Their presence at Mugonero made the refugees feel secure. As was the case elsewhere in Kibuye, certain individuals who were locally powerful masterminded, supervised, and encouraged the commission of attacks in their localities. Thus Alfred Musema dealt with Gisovu; Clement Kayishema "took care of" Gitesi commune, and Charles Sikubwabo "dealt with" Gishyita, which was also the Accused’s home territory. The Accused had to "take care" of Mugonero, according to the plan. [438]

315.    As to the number of people killed on 16 April, the Prosecution relies primarily on Witness QQ. He testified that in March 1995, when he returned to Mugonero, he saw masses of bodies thinly covered with soil, remains of bodies scattered in dormitories, classrooms, toilets, and on the lawns of the Complex. There were also mass graves. The witness participated in the burial of the bodies lying about and in the reburial of bodies exhumed from the mass graves. He believed that all the bodies belonged to Tutsi, as it was his view that only Tutsi were targeted in 1994. The witness testified that the remains were put in forty coffins measuring about three metres long and one metre wide. He estimated that between 7,000 and 8,000 bodies were reburied. The Prosecution notes that when asked to explain how he arrived at those figures, Witness QQ said: "if you were to look at the size of the coffin, and during the burial at least 10 people would lift a coffin. And I would say there would be 150 skeletons in each coffin. So if you take 150 and you multiply by 45 you see you come to … 6,650… But there were other bodies … which were found in the graves which were not  … exhumed. Therefore, one can make an estimate of between 6,000 to 7,000, given my calculations". [439]

316.    The Prosecution rejects as "preposterous" what it understands as the Defence theory that the attackers were bandits who took advantage of the President’s death to loot or to settle old scores. [440]

3.9.2    Defence

317.    The Defence argues that the true nature of the Rwandan conflict was political not ethnic and relies on the testimony of Witness Faustin Twagiramungu, who was chosen as Prime Minister in the Broad Based Transitional Government under the Arusha Accords and was Prime Minister in the new RPF-controlled government set up on 19 July 1994. According to the Defence, the witness testified forcefully that the continuing struggle for political control between the RPF and the government of Rwanda was the overwhelming cause of the 1994 conflict. He described the destabilization of Rwanda caused by the major invasions of the country by the RPF in 1990 and 1993 which created more than a million internal exiles and rendered the country almost ungovernable. [441] The government was incapable under these conditions of protecting the people, who were victimized by criminal gangs, were vulnerable to insurgencies, and suffered from fear and insecurity brought about by the history of RPF invasions. Witness Twagiramungu expressed the opinion that more Hutu than Tutsi may have been killed in the 1990-1994 period. [442] The Defence emphasizes the injustice that would result to the people of Rwanda were the Tribunal to reinforce the "fiction" propagated by the RPF that the conflict was caused by simple ethnic hatred, with one group intending to annihilate the other. [443] The Defence also relies on the testimony of Father Serge de Souter, who the Defence considers a pre-eminent scholar on Rwanda, in support of its view that the struggle in Rwanda was political.

318.    With respect to the events in and around Ngoma, the Defence’s position is that, following the death of the President, fear, banditry, and general violence gripped the region. Hutu and Tutsi alike spontaneously sought refuge at Mugonero Complex. [The Defence cites evidence that some of them were armed and may not have had peaceful intentions. [444] ] Patrol groups were formed comprising both Tutsi and Hutu. On 10 April, Gérard Ntakirutimana telephoned the authorities in Kibuye town to report a grenade attack against the house of Jean Nkuranga, a Tutsi, and to ask for gendarmes to be sent to restore security. [445] On 11 April, Gérard Ntakirutimana drove his wife and children, as well as a Tutsi woman and her children, to Gisovu for safety. On the night of 12 April, persons armed with firearms attacked shops at the Kabahinyuza centre. They were repulsed and disarmed by gendarmes. When a mob attempted to attack the hospital on 13 April, Gérard Ntakirutimana assisted a gendarme to chase the mob away. [446] On 15 April, Elizaphan Ntakirutimana witnessed another act of violence at the Kabahinyuza centre. This drove him to warn Issacar Kajongi, a Tutsi, of the poor security situation. He asked Kajongi to alert all the pastors, and through them the people. [447] Also on 15 April, local thugs, including a well-known criminal known as Reuben, had been boasting of their intentions to mount attacks against the Complex. [448]

319.    In this period, according to the Defence, when there was a breakdown of state authority, neither Accused had any authority to suppress the violence. With a million refugees having lost their homes and livelihood as a result of the RPF invasion, with news that the President had been killed, with no possibility of the Arusha Accords going forward, unplanned and chaotic violence was inevitable. [449]

320.    The Defence submits that the Prosecution was precluded from relying on facts proven in other cases and about which no evidence was led in the present case. [450]

3.9.3    Discussion

321.    The Chamber will consider the evidence given by Prosecution and Defence witnesses on the methods and nature of the attack on 16 April, as well as on the number of persons killed at the Complex in the course of the day.

322.    Witness GG was not able to give a time for the commencement of the attack except that it got underway on the morning of 16 April. The attackers consisted of civilians armed with traditional weapons. There was some defence put up by refugees hurling stones. The attack continued until nightfall, according to the witness. Those who had taken refuge in the hospital’s buildings were tracked down and killed there. Witness GG (like Witnesses MM and DD) survived by hiding among dead bodies and pretending to be dead. [451]

323.    Witness HH testified that the attack began between 8.30 and 9.30 a.m. He spoke of a defence put up by the refugees, and claimed that he himself used pieces of wood as well as stones for this purpose. When the defence failed, some refugees sought refuge in buildings of the hospital while others fled to nearby hills. In the early hours of 17 April the attack had died down. [452]

324.    Witness FF saw "soldiers" on board vehicles and Interahamwe on foot arrive at the Complex at 9.00 a.m. The latter were armed with spears and other traditional weapons and were chanting. The killings progressed from open areas to the ESI Chapel, and thence to the hospital, where grenades were used by the attackers. Witness FF left the Complex in the early hours of 17 April, when fighting had ceased. [453]

325.    Witness YY testified that the attack started at around 9.00 a.m. It was launched by Hutu with traditional weapons. The attackers were briefly repulsed by the refugees, who defended themselves with stones, but the attackers came back in greater numbers. [454] Another Prosecution witness, Witness SS, said that the attack commenced some time in the morning. The witness threw stones at the attackers, then fled the Complex for Gitwe Hill. [455] Witness MM continued to defend himself with stones over an extended period of time. The attack ended, according to him, at around 10 p.m. [456] Witness PP also made reference to the refugees’ resistance. He suggested that the attack concluded some time before 10 p.m. on 16 April. [457]

326.    Defence Witness 8 was at her house on 16 April, about 50 minutes’ walk from the Complex. From there she had a view of Esapan Secondary School, though not of the Complex. In the afternoon the witness saw people ("bandits"), coming from the direction of Esapan, pass along the road in front of her house. They were carrying beds, mattresses and chairs. [458]

327.    On 16 April, Defence Witness 5 was in a house belonging to Esapan. On his way to church people warned him not to go there. He turned and heard people shouting; later, grenade explosions and shooting were audible. He stayed in the house because, as he said, many people had run away, others were screaming, people were being slain, and it was frightening. [459]

328.    On 16 April, Defence Witness 7 was living in Mpembe Secteur, at some distance from the Complex. At about midday she saw people passing on the road carrying objects (bed, mattresses) which had been looted from the hospital. She also observed other persons who had in their hands machetes or clubs. [460]

329.    Defence Witness 6 was also in Mpembe. Early in the morning of 16 April he heard people pass by and was told that on other hills people could be seen going toward Ngoma. The witness later heard explosions from the direction of Mugonero. He could see people carrying objects (beds, mattresses) looted from the hospital. They were angry, influenced by drugs and armed with machetes and weapons. Among them were two robbers of some notoriety, Alexis and Sekagarama (nicknamed Rucekeli). The group returning from Mugonero in the afternoon and evening was very large; it "took an hour to pass by where we were". [461] Witness 6 went back to Ngoma around 18 April: "Everywhere we went by, we realised that where there had been Tutsi houses most of them had been destroyed. The houses which were covered by grass had been burnt down. We could see people who were carrying iron sheets which had been removed from roofs, from schools and from places where people had fled." [462] The witness later added: "I also saw houses belonging to Hutus which were destroyed. For instance, at the Mugonero Hospital or in the neighbourhood of the field and in the residences of the workers all the houses had been looted and doors had been broken down." The witness further stated: "It was the Tutsis who were targeted in particular. They were a specific target but there were also other people who were targeted." [463]

330.    Between 10.00 a.m. and noon on 16 April, Defence Witness 32, who was at the CCDFP building in Gishyita, heard noises from the direction of Mugonero (shouting and noises that resembled those "made by iron sheets"). Around 4.30 p.m., the witness saw a large number of people coming from Mugonero carrying looted property (for instance mattresses). They were also carrying spears and machetes. [464] He stated that the hospital had been attacked by "bandits of the same calibre as Reuben". [465]

331.    On 16 April, around 10.00 a.m., Defence Witness 9 was minding a herd of cattle about 15-minute walk from the Complex. He claimed not to have heard any gunshots or explosions or cries from the direction of the Complex (which was out of sight) but rather to have heard people gathered in the hospital area "singing the same songs we sung in church", and in particular "You are the Lord’s Army". [466]

332.    Gérard Ntakirutimana testified that on the morning of 16 April, from his location at the CCDFP building in Gishyita, he saw people being chased from the Complex. (It is not clear who these people were, or who was chasing them.) Some time later, between 10.30 and 11.30 a.m., "we could hear explosions such as grenade explosions. They were really very, very loud powerful explosions … These noises continued until about 2 p.m., and at around 3:00 in the afternoon the noises had significantly diminished." "In the afternoon we also saw people who were leaving Mugonero … some of them who were going towards Kigarama, others were going towards Gishyita and the neighbouring hills. They were carrying belongings on their heads – mattresses, sacks, things like that … which they were taking away from the hospital. … the mattresses belonging to the hospital … are covered by plastic sheets, and one could recognise the hospital mattresses because of these waxed cloths that covered them". They were "peasants and mostly very able-bodied young people. I would say that that’s what they were, and I could see that [their clothes were] in tatters, so one could even call them vagabonds". The Accused did not indicate the distance from which he was able to observe this degree of detail, except that he was afraid to get near them. [467] In later testimony, the Accused distinguished three categories of perpetrators: "There were people who were attacking others for political reasons. … There were others who were attacking people to enrich themselves, to take over their wealth. And there was yet another group that was attacking others who wanted to take advantage of the crisis, the confusion to attack people for ethnic reasons. So there was that inter-ethnic conflict as well, which was part of the war." [468]

333.    Elizaphan Ntakirutimana testified that from his location close to the CCDFP building in Gishyita, around 11.00 a.m. on 16 April, "I could see people going up towards Ngoma, launching attacks. I could see other people who were going towards Magarama … I heard something like grenade explosions, and all these things made me afraid. So I said to myself that people were being decimated." And: "I saw people running at th[e] West Rwanda school. I could hear explosions, and … I was seeing people running helter-skelter." [469]

334.    From the above evidence of Prosecution and Defence witnesses it follows that the allegation in the Indictments that on 16 April 1994 there was a general attack on refugees at the Complex which "continued throughout the day and into the night" (as worded in the Bisesero Indictment) has been made out. Large numbers of attackers assembled from many directions and attacked the refugees using traditional weapons, firearms, and grenades. Many engaged in looting towards the end of the attack.

335.    It follows from the evidence that the persons killed included the following named individuals: Pastor Sebihe, Pastor Semugeshi, Ukobizaba, Kajongi, Nkuranga, three members of Witness MM’s family, four members of Witness KK’s family, Kagemana, Macantaraga, Iminadad, seven members of Witness YY’s family, Ruhigisha, Nkuranga’s younger brother, Evelyn and four other women in hiding with Witness FF, one of Witness SS’s brothers, more than five members of Witness PP’s family, and three or more members of Witness DD’s family. It is also clear that many persons were wounded, for instance the following identified persons: Witness KK, Witness XX, three persons with whom Witness YY was hiding, Witness YY’s father, Segikware, and Witness FF. (The Chamber did not receive information about the ethnicity of each of these individuals, but is left with the clear impression that most of them were Tutsi.) In addition, Witness MM estimated that he hid in a room containing up to 30 bodies. Gérard Ntakirutimana stated that there were four or five dead bodies in the vicinity of a Tutsi child he rescued, but he did not know who they were. [470]

336.    This evidence of about 70 killed and eight wounded must be augmented by the other evidence on record concerning refugees being killed or bodies lying on the grounds and in the buildings of the Complex. Defence witnesses also gave an indication of the large number of persons killed on 16 April. Witness Nataki saw signs of two mass graves, one approximately 50 metres from the field office, the other on the hospital grounds. He did not know how many bodies they contained. [471] On 20 April, Witness 5 walked from Esapan School to the field office at the Complex: "from [a]far I saw, in front of the field, a pile of dead bodies and there were tractors which were in readiness to dig the graves so that the bodies could be buried in front of the … field office". The pile consisted of about fifty bodies. [472] Elizaphan Ntakirutimana saw a "very big grave", three by four metres across, in front of the field office. [473] He saw another grave which could have contained one or two bodies near the primary school. [474] Gérard Ntakirutimana testified that, towards the end of April 1994, the burial of the bodies at the Complex had already begun, "and I saw that there was a mass grave in front of the … office of the association. And there was also another mass grave by the parking lot". [475]

337.    From the above evidence of Prosecution and Defence witnesses, the Chamber concludes that while it is not possible to be exact about the number of casualties, eye-witness evidence indicates hundreds of dead and a large number of wounded as a consequence of the attack on 16 April. [476] This finding is consistent with the allegation in the Indictments that the attack resulted in "hundreds of deaths and a large number of wounded". The casualty estimates based on alleged exhumations of mass graves at the Complex supports this finding. The Chamber sees no need to analyze this evidence further. [477] It follows that paragraph 4.9 of the Indictments has been made out.

338.    Regarding the ethnic identity of the persons who were killed and wounded, the Chamber refers to the evidence above and recalls the following evidence. Witness MM identified all but one of the refugees as Tutsi. At an unspecified date prior to the attack on 16 April this person of Hutu ethnicity was evacuated. [478] According to Witness HH, almost all the refugees were Tutsi, with the exception of two Hutu (Jose Nbarubukeye and Manasse Gakwerere) who both worked at the Complex and had come with their families. The witness conceded that among the refugees there were Hutu whom he did not know. Witness YY described the refugees as Tutsi who had gone to the Complex to seek refuge, and said that there were some Hutu women among them who were married to Tutsi. Two Hutu families left before the attack on 16 April. The witness said that there were Hutu refugees at the Complex also during the attack, although at least some of them were asked by the attackers to leave.

339.    Witness PP testified that the majority of the refugees at the Complex were Tutsi, except for Hutu women married to Tutsi men. Witness GG knew of only one Hutu (Nbarubukeye) who had sought refuge at the Complex with his family. Similar evidence was given by Witness SS, who said that Hutu pastors went to Esapan Secondary School with their families. Witness XX recognized a few Hutu, including a man who had a Tutsi wife. Witness FF knew only two Hutu who were there with their families. She added that it was possible that there were other Hutu at the Complex, but that she could only speak about the people she recognized and saw at the location she was at.

340.    On the basis of the evidence considered above, the Chamber finds that the majority of the persons who sought refuge at the Complex up to 16 April were Tutsi. The Chamber also finds that the overwhelming majority of the refugees who were killed and wounded during the attack at the Complex on 16 April were Tutsi. Accordingly, the Chamber finds that Tutsi refugees were targeted solely on the basis of their ethnic group.

3.10     Attack on Refugees at ESI Chapel

3.10.1  Prosecution

341.    It is the Prosecution’s case that the Accused were involved in the attack on the refugees at the ESI Chapel. This is not referred to in the Indictments, but dealt with in Annex B of the Pre-trial Brief. According to the Prosecution Elizaphan Ntakirutimana went to the ESI Chapel around 9.00 a.m. on 16 April, demanded the keys to the chapel from Pastor Seth Sebihe, threatening to make an example of him. The Prosecution relies primarily on Witness KK, who was in the chapel. (The witness said the event occurred around 10.00 a.m., but according to the Prosecution’s oral submissions he must have been mistaken as to time.) After the Accused left, the attack at the Complex commenced. Elizaphan Ntakirutimana headed to his residence to prepare for the evacuation to Gishyita. [479] In relation to the events at the ESI Chapel the Prosecution refers also to the testimonies of Witnesses DD, YY, and SS. [480]

3.10.2  Defence

342.    The Defence rejects the above allegations, contending that the two Accused departed for Gishyita at around 8.00 a.m. on 16 April and did not return to Mugonero again on that day. [481] According to the Defence, Witness KK is not a credible witness.   In relation to the event at the ESI Chapel there is a contradiction between his testimony and his written statement to investigators, according to which it was Mika Muhimana, not Elizaphan Ntakirutimana, who said that they should start with Pastor Sebihe as an example. This, according to the Defence, shows that the witness tried to "demonize" the Accused. The Defence rejects the witness’s assertion that the attack on the refugees at the ESI Chapel began at 10 a.m. and continued until dark, alleging that it conflicts with all other descriptions. [482]

3.10.3    Discussion

343.    The Chamber will first summarize the testimonies of the witnesses, in particular that of Witness KK.

Witness KK

344.    The witness testified that after the commencement of the attack he went to the ESI Chapel at around 9.00 or 9.30 a.m. on 16 April. [483] There he saw Elizaphan Ntakirutimana, Charles Sikubwabo, Mika Muhimana, and Interahamwe carrying firearms; they included Daniel the son of the Conseiller Bahunde, Ngabonzima, and Nyamwanga. These persons entered the chapel, though not all came through the same door. (It is not clear whether they entered at the same time.) Witness KK specified that Elizaphan Ntakirutimana entered through the side door at the left of the building. Sikubwabo said that  "any Hutus who have come in here by mistake" or "Hutu women … married to Tutsis" should leave the chapel. In response, one Josiah left the chapel with his Tutsi wife and children, as did a woman leaving her children and Tutsi husband behind. (As to whether Elizaphan Ntakirutimana was in the church at this stage, the witness did not answer clearly.) [484]

345.    Witness KK testified that, following the above incident, at around 10.00 a.m., Elizaphan Ntakirutimana went up to Pastor Sebihe and said: "Give me the keys because your hour has come". Pastor Sebihe came down from the podium, threw the keys towards the Accused and then went into a small room in the chapel and closed the door behind him. Muhimana then approached Elizaphan Ntakirutimana, and the latter said: "Let’s start with this one first so that he can be seen as an example." The Accused and Muhimana then knocked on the door of the room where Pastor Sebihe was, but he refused to open. So they forced the door "with the guns that they had; the door broke down, so they brought out Pastor Sebihe to … where pastors normally stand when they preach at the altar". Witness KK conceded that he had told investigators that Muhimana was the one who broke down the door with the butt of his gun, affirming this later in his testimony: "It was Mika who was carrying a gun, and he is the one who hit the door". He maintained that, nevertheless, Muhimana and Elizaphan Ntakirutimana were "standing together" at the time the door was forced open. Witness KK was able to see all this and hear what was said from his seat in the first pew of the church; he was thus "quite close" to Elizaphan Ntakirutimana, Muhimana, and Pastor Sebihe. [485]

346.    According to Witness KK the Accused then left the chapel through a side door while Muhimana exited through the main door. [486] Witness KK heard Muhimana tell Sikubwabo: "I think that we need to start"; and Sikubwabo then told the attackers surrounding the area to "start to work and to work hard so that no one escapes". From his position by the door of the chapel, Witness KK heard Elizaphan Ntakirutimana, who was outside, tell Gérard Ntakirutimana to "go up so that those who are in the hospital cannot flee or get away". Witness KK explained why he had not given this information before to the investigators: "They wanted to know if I had seen Ntakirutimana. They didn’t ask me anything about Gérard." [487]

347.    The attack at the chapel proceeded, according to the witness, with attackers throwing grenades and firing shots at the doors of the chapel; they then entered the chapel and shot at people inside, including Witness KK, who took a bullet in the arm. The witness smeared himself with blood so as to make the attackers believe he was dead. After the shooting ceased, assailants armed with traditional weapons "finished off the wounded and they clubbed the children". The witness said that the attack continued throughout the day, and that gunshots could be heard until after nightfall, at which time the attackers said: "Let’s leave. We will come back tomorrow to finish off those who are not yet dead." Witness KK testified that he left the chapel during the night of the attack. [488]

Other Witnesses

348.    Witness DD testified that as soon as the killings began on the Sabbath morning, "we ran … towards the church, and it’s there that I saw Kagaba and Mathias. Mathias was making Mbarubukeye … a Hutu, and who was married to a Tutsi woman … as well as his children and his wife … come out". Because Mbarubukeye’s wife was Tutsi, he was refusing to leave the school chapel. Nonetheless, according to the witness, Mbarubukeye and his family eventually left. "It was also at that time that a woman from Mpemba was brought out. … She had Hutu children. I believe her husband was Hutu. … That man wasn’t living in Rwanda at the time". [489] Later, Witness DD said: "I did not go close to the church. I saw the killers at work. They were killing people, getting people out of the church, and I changed directions and I went elsewhere." [490]

349.    Witness YY testified as to a number of Hutu women who, along with members of their families and other refugees, sought refuge at the ESI Chapel after the attack had commenced. He witnessed the following event, which he timed to between 2.00 and 3.00 p.m.: "When the refugees got into the various buildings, the bourgmestre of the commune, Mr. Sikubwabo, came. He stopped at the entrance of the chapel and said that if there is a Hutu in this building, he should come out. … I knew seven women who all came out, with the exception of one of them who refused to come out, saying that if her husband and her children were going to be killed, she was going to die with them." According to Witness YY, the six Hutu women who finally left the chapel left their children behind because, being of Tutsi fathers, they were considered Tutsi and would have been killed on the spot by the attackers. The witness, who was not inside the chapel at the time, added that he had not actually heard Sikubwabo issue the instruction to the Hutu refugees inside the chapel: "I could not hear him because I could not get closer to him. If I had tried to do so, he would have killed me." The witness did not see the alleged attack on the chapel take place. [491]

350.    Another witness, Witness SS, testified that, having realized that stones were not effective against the attackers, he decided to run away. He testified that he tried to enter the ESI Chapel but saw that people were being killed there too. He changed direction and fled into a forest. [492]

351.    After having reviewed the evidence, the Chamber observes that Witnesses KK, DD and YY all testified about attempts to evacuate Hutu from the chapel. Witnesses KK and YY said that Sikubwabo instructed Hutu persons to leave the chapel (the former witness timing the incident to the morning, the latter to the afternoon). Witness DD said that Enos Kagaba and Mathias Ngirinshuti did the same. The Chamber accepts this evidence.

352.    Regarding the role of the two Accused, the Chamber notes that only Witness KK testified that he saw both the Accused at the ESI Chapel on 16 April. The Chamber does not regard it as significant that neither Witness YY nor Witness DD mentioned either Accused in connection with the chapel. These two witnesses testified that they were passing by the chapel or observing from a distance. Witness KK, on the other hand, testified that he was inside the chapel and that he had a good view of the events which he described. The Chamber’s finding as to the presence of the two Accused therefore depends on Witness KK’s testimony alone.

353.    Before addressing Witness KK’s evidence, the Chamber observes that Witness YY’s testimony does not correspond to his written statement of 25 October 1999, which contains the following passages:

We tried to defend ourselves but we were defeated and many people were immediately killed. Some people r[a]n into the hospital rooms and others went in the church. Sikubwabo came into the church and said, if there is any Hutu, he should come out of the church. Some women who were married to Tutsi men and housemaids who were working to Tutsi hospital staffs [sic] came out. There after they thr[e]w grenades into the church. Those who survived were killed by machetes. I survived because I hi[d] under dead bodies. The church was full of refugees, about four thousand in all.

Late in the night, I went out of the church. I passed near the hospital I heard my father calling me. He was seriously injured. I met few survivors who helped me to carry him to Bisesero hills. …

354.    This statement appears to locate the witness inside the church, attributes his survival to his having hid under dead bodies, presumably inside the church, and suggests that he remained in that position until nightfall when he left the church, heading in the direction of the hospital where he found his father. However, Witness YY testified that he
himself was not inside the chapel at the time, and he did not actually hear Sikubwabo issue the instruction to the Hutu refugees inside the chapel. Nor did the witness see the alleged attack on the chapel take place. Witness YY testified that "from the time when they attacked in the morning up to the time when I ran to go and seek refuge at the hospital … I continually saw Gérard Ntakirutimana". The witness indicated this period of observation of the Accused as extending from 9.00 a.m. to 2 or 3 p.m. [493] "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." [494]

355.    All this suggests that Witness YY was not in any church and was not hiding under any dead bodies. Rather he was out in the open, hiding behind trees, and stoning the attackers when he could. Witness YY testified that after passing by the chapel, he sought refuge in the hospital: "It is the main building of the hospital I’m referring to, but it was in a small room below, near the theatre." [495] "We stayed in the small room which I referred to. The attackers continued to kill and at one point in time they got to the room where we were. They tried to open the door, but we prevented them from doing so. And they attacked us with tear gas, but we survived. They even tried to shoot below the door and one of the men who was with us was shot [in] the ankle, but we stayed inside the room, and during the night the attackers left." [496] Thus, according to this account, Witness YY remained with another five refugees in a locked room in the hospital basement from about 2 or 3 p.m. until about 10 or 11 p.m. [497] Again, this account does not correspond with the assertion in his written statement that he survived by hiding under dead bodies.

356.    Witness YY was asked to explain why, in his October 1999 statement, he said that he had sought refuge in the church and not the hospital. He answered: "I would say that the person who took down the statement was mistaken because I said I ran past there but I didn’t go in because the attackers were there; I continued and I went and sought refuge inside the hospital." [498] Referring to those who took his statement: "there is a confusion between the church and the hospital. I was talking about the hospital and they put down the church". [499] He later added that his written statement, which was brought to him for signature in early December 1999, had not been read back to him. [500] He also said: "If there is a passage in Kinyarwanda saying that that is a complete and truthful statement, I signed it because I trusted them. I didn’t think that they would change what I said." [501] However, as the witness admitted in cross-examination, he also signed every page of the written statement. And under a section at the end of the document headed "Interpreter Certification", there appears a signed declaration by the interpreter stating: "I have orally translated the above statement from the [E]nglish language into the [K]inyarwanda language in the presence of [Witness YY] who assured me that he/she had heard and understood my translation …".

357.    The Chamber is not entirely satisfied with the explanation given by Witness YY about this material inconsistency and notes this as part of its general assessment of this Witness. [502] This does not have any impact on its findings in the present section, as Witness YY did not see the Accused at the ESI Chapel. However, the Chamber notes this discrepancy as part of its general assessment of Witness YY’s credibility.

358.    Turning now to Witness KK, who claimed to have seen Elizaphan Ntakirutimana at the ESI Chapel at 10.00 a.m., the Chamber notes the Prosecution’s submission that the witness must have been mistaken as to the time, because at that point the attack at the Complex had already begun, and the Prosecution does not allege that Elizaphan Ntakirutimana participated in the attack. The Prosecution therefore submits that Witness KK was describing an incident that occurred at 9.00 a.m.

359.    In his testimony, Witness KK was not asked to describe the attack. The focus was on his sightings of the vehicles, which arrived with attackers, see 3.8.3 (d) above. The Chamber recalls the witness’s testimony that around 8.30 a.m. he was near the ESI Nursing School when he saw a convoy of cars moving along a road, at an unspecified distance. Witness KK was then invited to describe the alleged events at the chapel, set out above, starting with the assertion that he arrived at the chapel at around 9.00 or 9.30 a.m. Moreover, in his statement of 15 November 1999, Witness KK declared:

When they surrounded the Mugonero Complex on the 16th April 1994 they were chanting a song, "We are the Hutu we are here. Let us exterminate them." The attackers started shooting at us when they reached Pastor Ntakirutimana’s office. We went to meet them and tried to push them back by throwing stones. We pushed the attackers back twice but on the third occasion they used machine guns and many of us were killed. When we saw that many were killed we decided to fall back. Many were killed instantly and those that weren’t were finished off by the civilian population with their machetes. We tried to defend ourselves but we were not successful. We took refuge in the ESI Church.

360.    The statement then continues with the incident inside the chapel, which was testified to and is summarized above. It is clear from the November 1999 statement that Witness KK fled to the ESI Chapel to take cover from an attack that was already well underway. Under these circumstances, the evidence suggests that the events in the chapel clearly took place after 9.00 a.m. and does not support the Prosecution’s theory that the witness was wrong about the time. The witness testified that it was half an hour to an hour after reaching the chapel that he saw Elizaphan Ntakirutimana enter the building (see above). Witness KK was the only witness to claim that he saw him after the attack at the Complex had commenced. Moreover, there is no evidence, apart from Witness KK’s testimony, placing Elizaphan Ntakirutimana in the proximity of the chapel at any time during the morning of 16 April, see generally 3.8.3 (d). The problem with the exact timing, combined with the lack of corroboration, call for extreme caution. Therefore, the Chamber is not in a position to find beyond a reasonable doubt that Elizaphan Ntakirutimana was involved in the episode at the ESI Chapel. 

361.    Finally, while in his statement Witness KK declared that "I saw Pastor Ntakirutimana and Dr. Ntakirutimana come to the small side door at the front left-hand side of the Church", in his testimony the witness alleged that he had heard Elizaphan Ntakirutimana, who was outside the chapel, tell Gérard Ntakirutimana to head for the hospital "so that those [there] cannot flee or get away". The witness did not claim, in the course of his testimony, to have seen Gérard Ntakirutimana at the chapel, so it is not clear to the Chamber on what basis the witness assumed that Elizaphan Ntakirutimana was directing the alleged statement to his son. In these circumstances, the Chamber declines to find Gérard Ntakirutimana present at the ESI Chapel prior to the attack there.

cont....