3.         Allegations Relating to the Mugonero Indictment

3.1       Introduction

64.      As mentioned, the Mugonero Indictment deals mainly with events that occurred at the Mugonero Complex on 16 April 1994. The Complex was run by the Seventh Day Adventist Association and was situated in Ngoma secteur, Gishyita commune, Kibuye prefecture. In 1994, the main buildings in the Complex were a nursing school (usually referred to as the "école des infirmières or ESI), a chapel used by students and staff of the school, the office of the President of the West Rwanda Association ("the field office"), and the hospital. [64] Within the Complex in 1994 there were also residential buildings, including the residence of Gérard Ntakirutimana, which was situated near the main entrance to the Complex, opposite the field office.

65.      In April 1994, the hospital consisted of several buildings, including the main hospital building, the main pharmacy, a building containing a dispensary and consultation rooms, a building which housed single employees, a building used as a ward for patients with infectious diseases and as a storage area, a building where the patients with infectious diseases were admitted, a boys’ dormitory under the responsibility of the nursing school, and an administrative block. Between these buildings were lawns.

66.      The main hospital building was a two-storey structure. The lower floor included the delivery room, the maternity room, and two surgical theatres. A consultation room used by Gérard Ntakirutimana was on the upper floor.

67.      About one kilometre to the north of the Complex was the main Ngoma Adventist Church. Approximately two kilometres south of the Complex was the Esapan Secondary School. The school was established by Adventist parents living in the Ngoma area.

68.      Below follow the relevant paragraphs of the Mugonero Indictment. They are almost identical to the equivalent paragraphs in the Bisesero Indictment concerning the events in the Mugonero Complex, and the numbering of the paragraphs is the same. Differences, if any, are indicated. The two Indictments are appended to the Judgement.

3.2       Overview of Events from 6 to 15 April 1994

4.1 During the events referred to in this Indictment, Rwanda was divided into eleven Prefectures, one of which was Kibuye. [Each Prefecture was governed by a Prefect. The Prefectures were further divided into communes, each of which was governed by a Burgomaster. The Burgomaster was the representative of the executive power in the communes and was in charge of the governmental functions within the commune.] [65]

4.2 During the events referred to in the Indictment, Tutsis were identified as members of an ethnic or racial group.

4.3 On April 6, 1994, the plane transporting President Juvenal Habyarimana of Rwanda crashed on its approach to Kigali airport, Rwanda. Attacks and murders of civilians began soon thereafter throughout Rwanda. [66]

4.4 During the month of April 1994, a large number of men, women and children from various places sought shelter from the attacks, which were taking place throughout Kibuye Prefecture. Many assembled inside Mugonero Complex, which consisted of several buildings, including a church, an infirmary and a hospital (hereinafter referred to as "the Mugonero Complex"). The majority of these men, women and children were Tutsi and were unarmed. [67]

69.      On 6 April 1994, President Juvénal Habyarimana of Rwanda was killed when the plane in which he was traveling was shot down over Kigali. Radio broadcasts informed the population of Kibuye of the death of the President on 7 April and requested that people stay at home. Witness FF and Gérard Ntakirutimana recalled incidents of soldiers in the streets beating people who did not remain at home. The security situation deteriorated as houses in the area were burnt down or their roofs removed. [68] Both Witness 8 and Witness 6 testified to sleeping outdoors for fear of attacks on houses.

70.      Over the next few days the violence in Kibuye escalated. Royisi Ntakirutimana gave evidence that there were disturbances in the commune of Rwamatamu during which houses were burnt, Witness XX testified that people were killed in Rwamatamu, Witness CC reported killing in the Bisesero secteur, and Witness FF heard reports of people being killed in Gishyita, Gisovu, and Rwamatamu communes. On 9 April there was an attack at the house of Jean Nkuranga, director of the ESI Nursing School, during which a night-watchman was killed. [69]

71.      Around 9 April, refugees from the surrounding areas began to arrive at the Complex. Estimates provided by the witnesses as to the number of refugees vary considerably. Witness 32 testified that on 9 April about 100 persons had arrived. Witness 7 indicated between 100 and 200 refugees were there by 11 April, and Ann Nzahumunyurwa testified that on this date, between 200 and 300 refugees had sought refuge at the Complex. Gérard Ntakirutimana stated that on 12 April about 1,300 people had gathered there. Witness PP did not provide an estimate but said that "the buildings of the hospital were full of people. The surrounding bushes or woods were filled with people. The church, itself, was full." Witness 5 stated that by 14 April there were 2,000 refugees at the Complex, Witness FF testified that there were 5,000 refugees not including the wounded, Witness HH put the number at approximately 5,000 to 6,000, and Witness KK gave a number of 6,000. Witness MM said that there were between 8,000 and 12,000 refugees at the Complex, and Witnesses YY and XX estimated the number to be 50,000.

72.      On 10 April, Oscar Giordano, the director of Mugonero Hospital, and his wife Eugenie Giordano left Mugonero with a United Nations escort. [70] Over the next few days increasing numbers of injured were received at the hospital. [71] Most of these patients were young males, who were suffering from wounds caused by bladed weapons. [72] Also on 10 April, at least two gendarmes arrived at the Complex and remained there. [73] Most of the witnesses testified they believed, at that time, that the gendarmes were at the Complex to protect them. [74] Over the next few days many members of the staff at the field office, the ESI, and the hospital stopped coming to work. [75]

73.      Several witnesses testified about an event which occurred on or around 13 April when a mob attempted to attack the Complex but was repelled. The attackers consisted of approximately 200 people who came from the direction of the trading centre armed with traditional weapons. [76] Several witnesses testified that one of the attackers was injured when the attack was repelled. [77]

74.      The Chamber notes that the information contained in paragraph 4.1 of both Indictments on Rwandan administrative structures was admitted by the Defence. The Chamber also accepts, on the basis of previous Tribunal findings, that bourgmestres were the representatives of executive power and in charge of governmental functions in the commune. [78]

75.      In relation to paragraph 4.2 of both Indictments the Chamber has already found no relevant disagreement between the parties that, in 1994 in Rwanda, Tutsi were perceived as members of an ethnic group. [79]

76.      The Chamber takes note that the Defence admitted the first sentence of paragraph 4.3 of the Indictments (the shooting down of the plane). Based on the evidence summarized above and previous judgements, the Chamber also accepts that murders of civilians began soon after the plane crash, including in the area of Kibuye prefecture.

77.      The evidence in the present case also supports the finding that a large number of men, women and children sought shelter from the attacks, and that "many" assembled at the Mugonero Complex (paragraph 4.4 of both Indictments). The Chamber does not consider it necessary to decide on the exact number. However, based on the evidence the number was many hundreds, even thousands, of people. The evidence suggests that the great majority of refugees at the Complex were Tutsi, but that they were not exclusively so. Witnesses YY, PP, and XX mentioned the presence of Hutu wives of Tutsi men. Witnesses YY and HH referred to two Hutu families being at the Complex prior to the attack of 16 April. Witnesses XX and FF recognised a small number of Hutu, including Hutu men with Tutsi wives. Witnesses FF and HH allowed that other Hutu refugees may have been present in addition to those they recognized. Witness GG knew of only one Hutu refugee at the Complex. Consequently, the Chamber finds in conformity with paragraph 4.4 of the Indictments that the majority of the men, women and children at the Complex were Tutsi. It follows from the evidence in the present case that the majority were unarmed; see in particular 3.8 and 3.9 below.

3.3       Appeals to Tutsi to Seek Refuge at the Mugonero Complex

4.5 Many of those men, women and children who sought refuge in the Mugonero Complex did so because Elizaphan Ntakirutimana instructed them to go there.

3.3.1    Prosecution

78.      The Prosecution’s case is that in the days following the outbreak of attacks, Elizaphan Ntakirutimana raised the hopes of refugees who had gathered at the Mugonero Complex by assuring them that security at the Complex would be enhanced. He procured gendarmes from Kibuye town ostensibly to guard the refugees. The presence of gendarmes at the Complex was significant in convincing Tutsi to accept refuge there. The Prosecution relies for this proposition on the evidence of Witnesses MM, SS, and FF, and further submits that the evidence of Witness HH that he saw the gendarmes who formerly guarded the Complex take part in the attack on 16 April bolsters the Prosecution’s case. [80]

79.      In particular, following the arrival of gendarmes at the Complex, Elizaphan Ntakirutimana summoned back to Mugonero several staff members of the association who had gone into hiding elsewhere, promising them security. Four Tutsi staff who foresaw the danger and decided not to remain at the Complex were Jean Nkuranga (Director of the Nursing School), Ezekiel Ruhigisha (Head of Maintenance at the Nursing School), Seth Sebihe (a Pastor attached to the Nursing School), and Issacar Kajongi (the Hospital Treasurer). They all left Mugonero because they knew that as educated Tutsi they would be prime targets. Elizaphan Ntakirutimana, having noticed their absence, sent messengers to ask them to return, disclaiming any responsibility for their welfare outside the Complex. These four Tutsi returned and were later killed. [81]

3.3.2    Defence

80.      The Defence submits that the testimony of all witnesses, both for the Prosecution and the Defence, shows that people sought refuge at the Complex as they had in past times of violence. There was no testimony that the Accused encouraged Tutsi or Hutu to flock to Mugonero. All the evidence shows that both Hutu and Tutsi sought refuge at the Complex in the first days and none needed to be encouraged. [82]

81.      The Defence underscores Elizaphan Ntakirutimana’s concern for the safety of his Tutsi colleagues. On 15 April, Elizaphan Ntakirutimana went to the Complex to find his treasurer Kajongi. He warned him that security had seriously deteriorated and that he should alert all pastors and, through them, the people. At the Complex he found Kajongi’s wife. Witness FF claimed that the Accused asked Kajongi’s wife to summon him to the Complex. The Defence rejects her interpretation. Elizaphan Ntakirutimana went to the Complex on 15 April because he wanted the pastors to know he thought the Complex was no longer safe and that all who could find a safer place should flee. [83]

82.      The Defence denies that the Director of the Nursing School, Jean Nkuranga, returned to the Complex upon the advice of Elizaphan Ntakirutimana. [84] Witness MM testified that Nkuranga returned to the Complex by 12 April. The Defence suggests that this is a fabrication to cast Elizaphan Ntakirutimana in a poor light. The Accused and Nkuranga were in fact close friends and worked together in the same office. His wife and children were taken to Gisovu by Gérard Ntakirutimana for safety. The Defence argues that the Prosecution’s thesis is inconsistent. Having failed to provide evidence that hordes of refugees were lured to the Complex by the Accused, the Prosecution falls back on the evidence of Witness VV, who testified that Elizaphan Ntakirutimana sent envoys to bring Nkuranga back on 14 April. However the testimony of Witness VV cannot be reconciled with the accounts of Witnesses MM and HH. [85]

3.3.3    Discussion

83.      The question at issue is whether "many … men, women and children" took refuge at the Complex because they were "instructed" to do so by Elizaphan Ntakirutimana.

84.      The Prosecution’s evidence suggests that most persons who sought refuge at the Mugonero Complex in the days after 6 April 1994 did so because they believed that at the Complex they would be relatively safe; [86] because they had taken refuge there on past occasions of unrest; [87] because relatives already at the Complex assured them that it was safe to join them; [88] or because they did not know what else to do at the time. [89]

85.      Witness MM was the only witness to allege that gendarmes stationed at the Complex inquired after and went looking for certain persons "who held important positions in the hospital". [90] There was no suggestion by the witness that Elizaphan Ntakirutimana instructed the gendarmes to look for those individuals. There was a small number of gendarmes at the Complex during the period 7 to 15 April. According to Witnesses FF, HH, KK, and YY, there were three; according to GG, two; MM did not specify the number. The gendarmes said that they had come to ensure security at the Complex. They were given food and other provisions by hospital staff.

86.      Only Witness SS provided evidence of a connection between the Accused and the gendarmes. The witness testified that while at first there was no security at the Complex, on an unspecified date he saw Elizaphan Ntakirutimana bring two gendarmes on the back of his pickup. Witness FF allegedly overheard the Accused say that he would ask for more "soldiers" to be brought to the Complex to reinforce those who were already there. There is little evidence that the refugees felt threatened or otherwise oppressed by the presence of the gendarmes. Witnesses FF, SS, and HH indicated that the gendarmes were well received by the refugees. Only Witness KK presented any evidence of a sinister role for the gendarmes prior to 16 April, namely their alleged attendance at a meeting on 13 April, which involved Gérard Ntakirutimana and communal officials, after which the gendarmes asked refugees to hand over their traditional weapons. There is some evidence to indicate that there were security breaches at the Complex in the days prior to 16 April (see 3.2). Witness YY said that around 14 April the refugees were attacked by a group of civilians led by Mika Muhimana, Charles Sikubwabo, and Gisambo. They were repelled by the gendarmes who shot in their direction. Some confirmation of this incident was offered by Witness XX and perhaps also by Witness FF, but Witness KK denied the incident. Witness HH described an attack (possibly the same one) in which about 200 assailants attempted to attack the Complex on 14 or 15 April, but he said that no fighting resulted.

87.      The Chamber does not find sufficient basis to conclude that the gendarmes were used by the Accused to lure Tutsi to the Complex. However, other evidence indicates that half a dozen or so Tutsi persons sought refuge at the Complex upon the advice of the Accused.

88.      Witness HH testified that Elizaphan Ntakirutimana at one point inquired after persons not present at the Complex. The Accused told the witness and others to find the absent persons and tell them to assemble at the Complex. "And he told us that: ‘I think the best thing for those people would be for them to come here instead of staying in their homes or elsewhere, because … they might be harmed, and if anything happens to them when they’re outside this complex then I would not be responsible for that’." [91] Witness HH testified that he passed Elizaphan Ntakirutimana’s message on to Jean Nkuranga and Josué Rubambana. The same message was, according to the witness, conveyed by a different (unidentified) messenger to two other persons, Issacar Kajongi and his younger brother Ezekiel Ruhigisha. The latter two were already at the Complex when Witness HH returned (on 12 or 13 April) with Nkuranga and Rubambana. [92]

89.      Witness VV, who some time after 6 April had taken refuge at Gitwe Hill, testified that she was present when a Tutsi person named Segikware, accompanied by two young Tutsi men, one named Rubambana (who, according to the witness, was Nkuranga’s younger brother) and the other having the first name of Witness HH, came on behalf of Elizaphan Ntakirutimana to ask Nkuranga and Ruhigisha to return to the Complex where their safety could be ensured. Nkuranga and Ruhigisha duly left Gitwe Hill for the Complex. [93] Witness VV’s account differs from that of Witness HH in some respects, in particular from the latter’s claim that he delivered the Accused’s message to Nkuranga and Rubambana, not Nkuranga and Ruhigisha.

90.      According to Witness FF, the person who brought Issacar Kajongi to the Complex was Kajongi’s wife. The witness testified that she was in the company of Kajongi’s wife on 15 April when Elizaphan Ntakirutimana asked Kajongi’s wife to go and fetch her husband who apparently was hiding in Witness FF’s house. On receiving the Accused’s message, Kajongi joined the other refugees at the Complex. [94]

91.      Witness MM testified that Kajongi was one of four persons who came to the Complex on Elizaphan Ntakirutimana’s advice. The other three included Charles Ukobizaba and Witness MM’s older brother. [95] The witness claimed, more generally, that "it was mostly Gérard Ntakirutimana and Pastor Ntakirutimana who would send messages to people who had sought refuge in the hills. These were messages which were mostly destined for those who worked in the hospital. They were being asked to come back to the hospital, that the hospital was under guard, that the place was safe." [96]

92.      Of other witnesses testifying on this matter, Witness KK said that one Segikware had mentioned to him that Elizaphan Ntakirutimana had asked him to bring Nkuranga and Ruhigisha to the Complex, where there was better security. [97] (This accords at a basic level with Witness VV’s account.) A similar account was given by Witness DD, who testified that the messengers had been Segikware and a person whose first name was that of Witness HH. He added that "it was necessary to go and call Ruhigisha and Nkuranga because, according to Pastor Ntakirutimana, there was security at the Mugonero Complex and that these two people could, therefore, come back". [98] Witness DD did not clarify how he had obtained this information. Witness YY testified merely that Elizaphan Ntakirutimana had sent a message with Segikware to unspecified persons in Bisesero asking them to return. [99]

93.      In summary, taking the Prosecution’s evidence at face value, it would seem that five men (Nkuranga, Rubambana, Kajongi, Ruhigisha, and Ukobizaba) and perhaps a few other persons, who were left unnamed by Witnesses MM and YY, went to the Complex upon Elizaphan Ntakirutimana’s advice. It should be noted that hundreds of refugees had assembled at the Complex by 16 April (see 3.2 above). There is no doubt from the evidence that the Complex was considered a relatively safe place in the days after 6 April; as Witness MM testified: "I can say there was some kind of safety. I made my father and even my mother come. And I’m the one who brought these individuals". [100]

94.      In view of the above, the Prosecution’s evidence does not support the allegation that "many" men, women, and children took refuge at Mugonero Complex prior to 16 April pursuant to "instructions" of the Accused. There are no women or children among the five named individuals referred to above, all of whom were employees at the Complex (and the Esapan School). [101] It appears that they were encouraged by Elizaphan Ntakirutimana to return there for their own safety, rather than "instructed". It therefore follows that paragraph 4.5 of the Indictments has not been substantiated.

95.      In view of the Prosecution’s submissions, the Chamber also observes that the evidence does not support a finding that Elizaphan Ntakirutimana wanted those persons to return to the Complex so that they would be killed. There is no evidence that the Accused participated in meetings with persons who were seen during the attack of 16 April. It is also recalled that the Prosecution conceded during its closing arguments that there was no evidence that either Accused had exercised any political activity or had any political affiliation (see 6.1.4 and 6.1.5 below). The Chamber also observes that a letter of 15 April written by the refugees to Elizaphan Ntakirutimana (see below 3.8) supports the view that at this juncture the refugees were unaware of any previous activity that might link the Accused to any planning or conspiracy. The letter contained a request for help and was written in a tone of great respect. Finally, the Chamber observes that there is no evidence that the refugees were prevented from leaving the Complex (see discussion under 3.4.3 below).

3.4       Separation of Tutsi from Other Individuals at the Complex

4.6 After the men, women and children gathered in the Mugonero Complex, Gérard Ntakirutimana and others separated the Tutsi individuals from the others. Those who were not Tutsi were allowed to leave the Mugonero Complex.

3.4.1        Prosecution

96.      The Prosecution submits that in preparation for the attack on 16 April 1994, Elizaphan and Gérard Ntakirutimana attempted to confine all the refugees scattered in and around the various buildings of the Complex to the main Ngoma Adventist Church. Preparatory acts from 11 April included the attempt to disarm any refugees who happened to have weapons in their possession. [102]

97.      According to the Prosecution, the separation of Tutsi from other individuals took several forms. On or about 11 April, senior Hutu employees evacuated their families to Gisovu, and in the following days other Hutu employees moved to houses belonging to the Esapan School, which were situated outside the Complex. Moreover, Elizaphan and Gérard Ntakirutimana consistently discriminated between Hutu and Tutsi and only protected Hutu persons or Tutsi women married to Hutu men or to foreigners. According to the Prosecution, there is no evidence of protection afforded to any Tutsi pastor at the Complex or to other Tutsi employees of the association or the hospital. [103]

98.      The Prosecution further argues that in furtherance of the preparation for the attack on Tutsi refugees at the Complex, non-Tutsi patients at the Mugonero Hospital were discharged by Gérard Ntakirutimana during the period 11 to 15 April. On 15 April, the Accused ordered the separation of Tutsi and non-Tutsi patients and thereafter ordered the confinement of Tutsi patients to the basement of the hospital. Information on ethnicity in the medical files facilitated the separation of Tutsi from other individuals. It is the Prosecution’s case that no non-Tutsi patient remained at the hospital by the time of the attack on 16 April. The patients and nurses who remained at the hospital after 14 April were all Tutsi. [104]

3.4.2    Defence

99.      The Defence denies that the Accused attempted to confine Tutsi persons to the main Ngoma Adventist Church or to the hospital’s basement. It is submitted that Gérard Ntakirutimana never separated patients or otherwise discriminated on the basis of ethnicity. The Accused continued to treat patients at Mugonero Hospital until 14 April. He behaved at all times in accord with his character and vocation. He had spent the year prior to April 1994 working in an area with a large Tutsi population, treating mostly Tutsi patients, and working with mostly Tutsi staff. Gérard Ntakirutimana testified that throughout the period patients were being treated and were discharged on the basis of their medical condition and not for any other reason. Fearing for his safety after having been warned by a gendarme, Gérard Ntakirutimana left the hospital on the afternoon of 14 April and did not return the next day.

100.  The Defence submits that Witnesses FF and XX testified that there were both Hutu and Tutsi patients at the hospital on 15 April. There were families of mixed ethnicity at the Complex, according to some of the evidence, up until 16 April. Ethnicity was not recorded in hospital files. [105]

3.4.3    Discussion

101.  Paragraph 4.6 of both Indictments contains two sentences, the first alleging separation of Tutsi from other individuals, the second providing that non-Tutsi were allowed to leave. The second sentence could imply that Tutsi were not allowed to leave the Complex. The Chamber has not found sufficient evidence for such a proposition. Witness testimonies suggest that the refugees were not confined to the Complex, other than by the dangerous circumstances prevailing on the outside. Witness MM maintained that the refugees had to obtain the gendarmes’ permission before leaving the Complex, but he said that this was out of a concern to protect the refugees. [106] Similarly, although Witness KK said that the refugees were "not allowed" to leave, he then explained that what prevented the refugees from leaving was the widespread violence outside the Complex. [107] Witness SS said that although at first he could come and go from the Complex, fear subsequently kept him from going out. He added that no gendarme ever prevented him from leaving. [108] Witnesses GG, YY, and HH periodically left the Complex to search for food, to graze cattle, or for other reasons. [109] Therefore, the evidence does not support the Prosecution’s assertions that the refugees were not allowed to leave the Complex, or that Elizaphan and Gérard Ntakirutimana were responsible for their confinement.

102.  The Prosecution has argued that there were several forms of separation. The Chamber will address each form independently. It also observes that paragraph 4.6 of both Indictments refers to "Gérard Ntakirutimana and others", whereas Elizaphan Ntakirutimana is not mentioned.

(a)       Attempted Confinement in the Ngoma Adventist Church

103.  The Prosecution contends that the two Accused attempted to confine the Tutsi in the Ngoma Adventist Church, also referred to as the parent church ("église mère"), and relies on the testimonies of Witnesses MM, HH, and KK to prove this contention.

Witness MM

104.  Witness MM said that between 12 and 16 April, "we were constantly asked to move, and we saw that it was becoming more persistent as time went by". [110] He testified that Gérard Ntakirutimana and Mathias Ngirinshuti, the chief of personnel at the hospital, would often come to the hospital and behave as if they were in charge of it. They asked him and other refugees "on several occasions" to leave the hospital and go to the main Church, because the hospital was meant for treating patients. [111]   Witness MM gave two reasons why he and the other refugees refused to go to the main church. He said they believed that transferring them from the hospital to another area was one way of concentrating them in one place and this was dangerous. Secondly, they did not want to leave a place with several buildings and plenty of space, and where there were basic utilities, such as water and electricity, for a smaller place where their survival would have been more difficult. [112] Instead, the refugees "accepted" to move from the first floor to the ground floor. [113] The witness said that "it was Gérard, that is the management of the hospital, that decided to close [the first] floor". [114] (See (c) below about this allegation.)

Witness HH

105.  Witness HH said that between 12 and 14 April, Gérard Ntakirutimana asked refugees at the Complex "several times" to leave the hospital area and go to the Adventist church twenty minutes’ walk away. According to the witness, the reason the Accused gave was that the refugees’ livestock were "soiling the hospital". [115] The refugees refused to go to the church: "We could see that killers had come and stopped near the church, but did not go further because there were not many of them." The refugees did not obey because they felt safer at the Complex. Because of the isolation of the main church, they "decided to remain at the complex because we felt safe there and administrators of the complex were there". [116] The Chamber notes that in his written statement of 2 April 1996 the witness explained to investigators that Gérard Ntakirutimana asked the refugees to leave the hospital on 11 April.

Witness KK

106.  Witness KK claimed that on 14 April he recognized Elizaphan and Gérard Ntakirutimana among the people who came to tell the refugees to leave the Complex.  According to the witness, Gérard Ntakirutimana said: "Leave this place. Go to the church on the other side". Ngoma Adventist Church was ten minutes’ walk away. [117]   No reason was given. [118]   Witness KK told investigators that Gérard Ntakirutimana wanted the refugees to leave because they interfered with his work, but in his testimony the witness did not confirm this. "Even if he sent away the refugees, it was not because he wanted to continue his work. Because where he was working, where the patients were, there were no refugees." [119] The witness said that no refugee followed the instruction because the Ngoma Church was too cold and not big enough to accommodate all of them. [120]

Other Witnesses

107.  Three other witnesses also provided relevant evidence. Witness XX did not personally hear Gérard Ntakirutimana request the refugees to leave the hospital and go to the église mère, but she said that this was what "went around amongst the refugees". [121] Defence Witness 7, however, was not aware that Gérard Ntakirutimana had ever told Tutsi patients or refugees to relocate from the hospital to the main church, or to any church. [122] She left her post at Mugonero Hospital on 11 April 1994 and did not return until May 1994. [123] Defence Witness 32 testified that "Dr. Gérard asked nobody to leave the hospital. Each person left the hospital of their own volition." Witness 32 stopped going to work on 12 April. [124]

108.  The Chamber observes that Gérard Ntakirutimana denied ever having asked anyone to leave the hospital. [125] However, as mentioned above, three Prosecution witnesses testified that they heard him ask the refugees to move to the main church outside the Complex. According to Witnesses MM and HH, the Accused gave as reasons that the hospital was meant for treating patients and that the livestock of the refugees was soiling the hospital. The reason mentioned by Witness HH is in conformity with his written statement to investigators of 2 April 1996. Witness KK testified that Gérard Ntakirutimana gave no explanation. The Chamber notes, however, that in his written statement of 15 November 1999, Witness KK recalled that the Accused said that he needed the hospital to be vacated for him to continue his work. The Chamber sees no reason to doubt that this was Witness KK’s explanation to the investigators. The Chamber finds that Gérard Ntakirutimana did request the refugees to leave for the Ngoma Church.

109.  According to the witnesses, Gérard Ntakirutimana made such requests sometime during the period between 12 to 16 April. It follows from the overview provided above (see 3.2) that during this period the large number of refugees at the Complex increased from approximately 1,300 to an even greater number of persons. Several buildings were full, including the hospital and the church. Under these circumstances the reasons given by the Accused for moving the refugees out of the Complex are plausible. However, the Prosecution’s case is that these requests were made for the purpose of separating the Tutsi from the Hutu with a view to preparing for the attack of 16 April. The Chamber cannot make this inference on the existing evidence. The Chamber also observes that its findings in relation to the Prosecution’s other allegations regarding paragraph 4.6 of both Indictments do not support the Prosecution’s contention.

110.  As stated above, Elizaphan Ntakirutimana is not mentioned in paragraph 4.6 of the Indictments. In its Closing Brief the Prosecution argues that Elizaphan Ntakirutimana also requested that the refugees move to the église mère. The Chamber notes that there is no evidentiary basis for this allegation.

(b)       Evacuation and Selective Protection

111.  The Prosecution argues that on or about 11 April, senior Hutu employees at the Complex, including Gérard Ntakirutimana, Mathias Ngirinshuti, Defence Witness 5 and others evacuated their families to Gisovu. The Chamber notes that this is not in dispute between the parties. Ann Nzahumunyurwa, wife of Gérard Ntakirutimana, testified that she was informed that the security situation at Gisovu was still acceptable, and on 11 April, around 5 p.m., Gérard Ntakirutimana drove her, their children, and a number of other persons, including Mathias Ngirinshuti and Witness 5, to Gisovu. Gérard Ntakirutimana did not stay in Gisovu but returned to Mugonero the same day. [126] He testified that on 11 April he took his family to Gisovu, believing that it would be more secure. Among the persons he took along were Ngirinshuti and Ngirinshuti’s family; he left them at the house of the bourgmestre of Gisovu, Ndimbati. [127] He also took along the wife of Jean Nkuranga, who was a Tutsi, and her three children. The Accused acknowledged that on the way to Gisovu he had been stopped at a roadblock where Ndimbati had asked him: "I hope you have not brought any Inkotanyi into the commune". [128]

112.  Another Defence witness, Witness 24, went to Gisovu on 10 April. [129] Several other people arrived in the course of the next three days, including the wives and children of pastors Gakwerere and Ushizimpumu, Defence Witnesses 5 and 21, and Enos Kagaba. [130] Witness 24 testified also to the arrival of a child named Emmanuel, son of Jean Nkuranga and Clémentine, on 12 April. [131] The witness was told by a person with whom she was staying in Gisovu, that it was Gérard Ntakirutimana’s wife who had brought the child Emmanuel to Gisovu. [132] Other Defence witnesses testifying about the trip to Gisovu were Witness 5, [133] Witness 22 (the wife of Witness 5), [134] and Witness 21. [135]

113.  In its Closing Brief the Prosecution argues that Hutu were provided shelter in houses outside the Complex. Reference is made to Witness SS, who allegedly observed Elizaphan Ntakirutimana and "Rusudoka" (Pastor Gakwerere’s nickname) heading for the Esapan School at the time when the witness had become aware that all Hutu pastors had gone to seek refuge at that location. [136] The Prosecution also submitted that from 11 April, Witness 5 moved into a house belonging to the Esapan School, and that Witness 32, also a Hutu, stayed in that house with other Hutu from 12 April. The Prosecution pointed out that this house was close to Elizaphan Ntakirutimana’s residence. Furthermore, the Prosecution referred to the Tutsi wife and children of Pastor Issacar Ntakirutimana, a Hutu not related to the Accused, who were provided shelter by Elizaphan Ntakirutimana at the Complex. In the Prosecution’s view, the fact that the Accused protected only Hutu and Tutsi married to Hutu is particularly evidenced by the fact that on 16 April the group in Elizaphan and Gérard Ntakirutimana’s vehicles heading for Gishyita was uniquely Hutu. The Prosecution claims that Rachel Germaine - according to the Defence a Tutsi - was in fact Belgian. The Chamber notes Royisi Ntakirutimana’s explanation that "[t]here were no Tutsi. Those who went with us were those who were close to us". She later added she did not know the ethnicity of Rachel Germaine: "she could have been Tutsi but she was of mixed race". [137]

114.  In addition to the evidence referred to by the Prosecution in its Closing Brief, the Chamber recalls that Witness HH mentioned two events involving two Hutu refugees whom Gérard Ntakirutimana advised to leave. One event related to Gakwerere, a preacher. The Accused arrived, accompanied by Mathias Ngirinshuti who was responsible for personnel at the Complex and was related to Nbarubukeye. [138] The Accused "told the Hutus to leave this place because they did not share the same problems as the other refugees". [139] The witness said that Gakwerere accepted this and left, after having stayed only one night at the Complex. This episode occurred before 14 April. The second incident involved Nbarubukeye, who, according to the witness, was either a preacher or a teacher. Witness HH explained that Nbarubukeye stayed until the morning of 16 April: "[W]hen Mathias and Gérard came and asked him to leave, they had given him conditions; namely, that he should leave his [Tutsi] wife" behind. The witness did not say how he obtained this information. He said that Nbarubukeye left with his wife at about 9.30 a.m., after Mathias Ngirinshuti came to him and said: "This time you must get out because things are getting difficult." Ngirinshuti told Nbarubukeye that he could take his wife with him "and she could die elsewhere". [140]

115.  Witness YY testified that Elizaphan Ntakirutimana advised two Hutu families to leave the Complex. In the first instance, the Accused told pastor Gakwerere, his wife and children, who were all Hutu, to leave the Complex prior to the attack. [141] According to the witness, Gakwerere left the Complex "at least two or three days before" 16 April 1994: "He was somewhere in the complex at the hospital. We saw Ntakirutimana approach. They spoke and then we saw Pastor Gakwerere leave together with his family." [142] The witness testified that he did not hear the conversation. The second episode mentioned by the witness was when Elizaphan Ntakirutimana gave the same advice to a Hutu woman and her children. Witness YY said that he saw Elizaphan Ntakirutimana approach the woman who then left the Complex. Again, he did not overhear the discussion they had. [143]

116.  On the basis of the evidence summarized above, the Chamber finds that some senior Hutu employees, including Gérard Ntakirutimana, evacuated their families from the Complex a few days before 16 April. The Prosecution claims that this particular evacuation shows how Gérard Ntakirutimana, by removing Hutu persons from the Complex, effectively separated Tutsi individuals from others. However, the Accused also took on board Clémentine, a Tutsi woman married to Jean Nkuranga (a Tutsi who was director at the ESI Nursing School), and her three children. In view of this particular evacuation, the Chamber does not find support for the Prosecution’s allegation.

117.  The submission that Gérard Ntakirutimana advised Hutu personnel to leave is supported by the testimony of Witness HH, who testified that Mathias Ngirinshuti and Gérard Ntakirutimana approached Gakwerere and Nbarubukeye about leaving. Taken at face value, these incidents, as described by the witness, do not provide sufficient basis for concluding that the aim of the Accused was to separate the Hutu from the Tutsi as part of the preparations for the attack. According to the witness, Nbarubukeye was first asked to leave his Tutsi wife behind. Witness HH did not say how he learned this information. Later Nbarubukeye was allowed to take his wife with him. The remark that "she could die elsewhere" was allegedly uttered by Ngirinshuti, not by Gérard Ntakirutimana, and at a time when there is no evidence that the Accused was present.

118.  In its Closing Brief the Prosecution submitted that Elizaphan Ntakirutimana provided shelter to various Hutu. As stated above, the Accused is not mentioned in paragraph 4.6 of either Indictment. But, in view of the submissions, the Chamber notes that there is no evidence that he made arrangements for Witnesses 5 and 32 to move into the house in his neighbourhood belonging to the Esapan School. The assistance to the family of Pastor Issacar Ntakirutimana was of benefit to a Tutsi woman, albeit married to a Hutu, and does not give a basis for general conclusions of selective protection. As for the advice which, according to Witness YY, Elizaphan Ntakirutimana gave to pastor Gakwerere and to a Hutu woman with children, the Chamber observes that the witness did not overhear the conversations.

119.  According to the Prosecution, preparations for the attack did not include only the separation of Tutsi from other individuals but also attempts to disarm any refugees who had weapons in their possession. The Prosecution refers to Witness KK, who testified that gendarmes guarding the Complex informed him of a meeting that took place in the main Ngoma Adventist Church on 13 April. Gérard Ntakirutimana, bourgmestre Charles Sikubwabo, and the Conseiller of Gishyita (Mika Muhimana) and of Ngoma (Abel Bahunde) were among the leaders at the meeting. Following the meeting, the gendarmes gathered the refugees and told them to hand over their traditional weapons. [144]

120.  The Chamber observes that Witness KK, who was then 16 years old, did not attend the meeting of 13 April. He testified that he saw Charles Sikubwabo and Gérard Ntakirutimana going to the meeting, but his knowledge about their discussions came from the gendarmes. Consequently, this part of Witness KK’s testimony is hearsay. Witness YY testified that around 13 April he saw Gérard Ntakirutimana and the bourgmestre heading for a meeting at the main Mugonero Adventist Church; following the meeting, traditional weapons were collected from the refugees at the Complex by the gendarmes. [145] The witness did not receive any information from the gendarmes about the substance of the meeting, but the Chamber notes that Witness YY’s testimony corroborates the observation made by Witness KK. However, the evidence provided by these two witnesses is not directly related to the issue of evacuation and selective protection of the refugees. The Chamber sees no need to make a finding at his point but notes these two testimonies as part of the general context in the days preceding the attack on 16 April.

(c)        Discharge of Non-Tutsi Patients

121.  The Prosecution argues that in furtherance of preparations for the attack at the Complex Gérard Ntakirutimana discharged non-Tutsi patients from the Mugonero Hospital, separated Tutsi from non-Tutsi patients, and ordered the confinement of Tutsi patients to the basement of the hospital. In its Closing Brief, the Prosecution referred to the testimonies of Witnesses FF, DD, and XX. Accordingly, the Chamber will first summarize their evidence.

Witness FF

122.  Witness FF testified that Hutu patients began to leave the hospital on 7 April and continued to leave until 15 April. [146] She testified that from 7 April onwards, Gérard Ntakirutimana gradually discharged Hutu patients without explaining why he was doing so. On 15 April, the witness heard the Accused say "openly" that all Hutu patients should leave. [147] She testified that Gérard Ntakirutimana and the chief of personnel, Mathias Ngirinshuti, "visited the patients on the basis of their medical records. They asked the Hutus to leave and gave them medicines to take ... home." The witness stated that as of 15 April there were more than 70 patients at Mugonero Hospital, of whom there were "more than 20" Hutu and "a bit more than 50" Tutsi. The last group of Hutu patients, numbering more than twenty, left on 15 April. [148] Witness FF said that all Hutu patients were able to leave because they "could move about and they could go home, and they took with them the medicine that they needed". [149] Mathias Ngirinshuti and Gérard Ntakirutimana then directed that the remaining patients be moved to the ground floor on or after 15 April (see below).

Witness DD

123.  Witness DD, who knew Gérard Ntakirutimana, [150] saw him around 14 April at Mugonero Hospital. The witness was in the hospital’s courtyard. He heard the Accused speak: "There were many ill patients, and he said that the Hutus who were ill, as well as the Zaireans, should leave the hospital and go home." The witness estimated that about 30 patients then left. He knew that the Rwandan citizens who left were Hutu, just by looking at them. [151] The witness was asked why Gérard Ntakirutimana should make such an announcement in the courtyard: "All the patients in the hospital were not seriously ill. Some of them were out in the courtyard, and he spoke to those ones. And he said if amongst them there were Hutu patients, they could go home." [152]

Witness XX

124.  Witness XX said she had known Gérard Ntakirutimana since 1993 when he came to Mugonero Hospital as a physician. [153] She testified that as of 9 April there were Hutu and Tutsi as well as Zairean patients at the hospital. She was not certain about the proportion of Tutsi patients to Hutu patients, but believed that the majority of patients were Tutsi: "During that period, the number of Tutsi patients increased because we received wounded people from the areas where the killings had started." She heard it said that Gérard Ntakirutimana made an "announcement", possibly between 10 and 12 April, that all Hutu and foreigners should leave the hospital: "[P]eople came and told us that Dr. Gérard had said that all the Hutus and strangers should leave, and they told me that since an announcement like that one had been made, it meant that something abnormal would happen, something nobody thought about". [154] She added that following the announcement, "the number of patients in the hospital reduced remarkably", and that the remaining patients were put into one building, whereas usually they had occupied two buildings. She testified that "around the 15th of April there were neither Hutus nor foreigners or strangers at the hospital". [155]

125.  Like Witnesses FF, DD and XX, Witness MM testified that in the week following 9 April, all Hutu patients left the hospital. [156]

126.  The Defence disputes the allegations against Gérard Ntakirutimana. Witness 7 stated that she was not aware that Gérard Ntakirutimana had ever attempted to separate Hutu patients from Tutsi patients, or Hutu refugees from Tutsi refugees. Nor was she aware that the Accused had ever told Hutu patients to leave the hospital during this period. [157] The testimony of Defence Witness 32 was that she "never heard Dr. Gérard asking people to leave the hospital, be they patients or employees." [158]

127.  In relation to Witness FF, the Defence argues in its Closing Brief that she offered no significant or credible testimony of a criminal act committed by either Accused. [159] The Chamber is of the view that her account of the conditions at the Complex prior to the attack on 16 April and of her experiences on this day was consistent. She did not appear evasive during cross-examination. She had previously given five statements to investigators, of which four related to the present case. [160] Her testimony was generally in conformity with her previous statements to investigators (see below).

128.  As part of its arguments against Witness FF’s credibility, the Defence submits that the witness did not claim in any of her previous statements to have seen Elizaphan or Gérard Ntakirutimana at the Complex on 16 April. The Chamber does not consider this significant in the present context but notes that this follows also from her testimony. The Defence also argues that Witness FF’s credibility is weakened because she gave different versions about which vehicles she observed on 16 April. The Chamber disagrees. In her first three statements, the witness claimed to have seen vehicles belonging to Elizaphan Ntakirutimana, Gérard Ntakirutimana and the hospital. In her fourth statement, she said that the vehicles belonged to the hospital, Gérard Ntakirutimana and a businessman named Antoine. According to her testimony, she observed the car of Elizaphan Ntakirutimana, a white pickup belonging to the hospital which "Gérard had taken", and a vehicle belonging to a businessman, which "Ruzindana had taken". The Chamber does not consider these differences significant. The Chamber observes that it follows from three of her statements and her testimony that she saw the vehicles of the two Accused conveying attackers on the morning of 16 April, but that she saw neither of them in person on that date. [161]

129.  The Defence submits that Witness FF was part of a "campaign", allegedly orchestrated by Assiel Kabera, the prefect of Kibuye in 1995, against the two Accused (see generally below, II.7). The Chamber does not consider this argument to be convincing. It is true that Witness FF appeared in a video, probably filmed sometime in April 1995, which shows coffins in the chapel and contains allegations against the Accused. However the witness denied ever having discussed the events of 1994 with Kabera, and explained that the film was created by the sub-prefect of Ngoma. The fact that she was interviewed as one of those who experienced the attack on 16 April for a film made in connection with the burial of bodies does not undermine her credibility. Furthermore, neither the fact that Witness FF was interviewed by African Rights nor the substance of her statements to that human rights organization supports the Defence contention that she was part of a campaign against the Accused.

130.  The Defence also emphasizes that Witness FF’s credibility is doubtful because she has over the years inflated the role played by Gérard Ntakirutimana in the attacks in Bisesero. This claim will be considered in connection with the specific events in Bisesero. In the Chamber’s view the witness’s account of the events in Bisesero does not affect her credibility concerning the discharge of Tutsi patients in the days before 16 April.

131.  In relation to Witness XX, the Defence argues that her claims concerning Elizaphan and Gérard Ntakirutimana were minor, vague and not believable. [162] The Chamber notes that the witness made two statements to investigators, dated 14 November 1995 and 24 October 1999, respectively. In the present context it will focus on her evidence concerning the Mugonero Complex. The Chamber notes that her testimony about Gérard Ntakirutimana’s announcement that all Hutu and foreign patients should go home is hearsay. The episode is also reflected in her first prior statement: "All the patients were crammed in the basement of the main building, both Hutu and Tutsi, but the Hutu were asked to leave around 12 April." Gérard Ntakirutimana’s name is not explicitly mentioned, but her brief statement contains several references to him as a prominent figure at the hospital during the events in 1994, and the Chamber does not consider this omission significant. During the second interview, the witness did not mention the announcement but said that "influential personalities evacuated their families because they knew" that the refugees at the Complex would be massacred. The Chamber concludes that Witness XX’s statements and testimony are consistent on this point.

132.  In conformity with her previous statements, Witness XX testified that she did not see either Elizaphan or Gérard Ntakirutimana on 16 April. [163] Her testimony concerning the leading role of Gérard Ntakirutimana at the hospital was also consistent with past statements. More specifically, she said that word went around among the refugees that he had asked them to leave the hospital and go to the Ngoma Adventist Church. [164] This hearsay evidence is corroborated by other witnesses (see above). Her testimony that there were about 50,000 refugees at the Complex is inflated but she explained that this figure was only "an approximate one". [165] The Chamber accepts her explanation and observes that the witness was clearly in distress when recounting her experience. The Chamber disagrees with the Defence that Witness XX’s credibility is weakened by the testimony of Witness YY, providing the same estimated number of refugees. The evidence given by the two witnesses differed in some respects, precluding a possible inference of collusion. The Chamber considers Witness XX’s testimony concerning the Mugonero Complex to be credible irrespective of her testimony relating to Bisesero.

133.  Turning now to Witness DD, the Defence argues that the radical changes in his testimony, compared to his statement of 11 November 1999 to investigators and his reconfirmation statements of 28 July and 22 October 2001, render his evidence unbelievable. [166] The Chamber will also discuss the credibility of the witness elsewhere. In the present context, the Chamber observes that the alleged announcement to discharge Hutu patients was not included in any of his previous statements. When questioned about this issue, the witness answered that he had spoken about the announcement, but that the investigators "forgot to mention it" in his statement. [167] Having observed Witness DD in court, where he was extensively questioned about the announcement, the Chamber accepts that this may have been omitted during the recording of the interview, and further observes that the witness cannot read. Several minor differences between his written statement and his testimony indicate that communication between the witness and the investigators was not optimal. [168] The Chamber also notes that Witness DD’s testimony about the announcement corresponds to testimonies given by other witnesses.

134.  On the basis of these testimonies and having considered the submissions of the Defence, the Chamber finds that Witnesses FF and DD heard Gérard Ntakirutimana say that the Hutu patients should leave the hospital. The evidence suggests that this was done in connection with visits to the patients (Witness FF) and in the courtyard in relation to patients that were gathered there (Witness DD). The witnesses provided a similar estimate of the number of Hutu patients who left following the announcement. This direct evidence is corroborated by Witness XX, who did not hear the Accused make any announcement, but who learnt of it from others. The testimony of Witness MM that, in the week following 9 April, all Hutu patients left the hospital is consistent with the Chamber’s finding. The evidence suggests that Gérard Ntakirutimana’s announcements were made between 10 and 13 April, as there were no more Hutu or foreign patients left at the hospital after that date. It is true that Defence Witnesses 7 and 32 testified that there had been no separation of patients on the basis of ethnicity, but it is to be observed that these witnesses stopped reporting to work at the hospital as early as 11 and 12 April, respectively. [169]

135.  The Chamber does not find it necessary to determine whether the ethnicity of patients was recorded in their files in order to reach the conclusion above.

136.  On the basis of evidence provided by Witness FF, the Prosecution also argues that Gérard Ntakirutimana and other officials at the hospital closed down some of the hospital rooms and "crowded" (or "confined") the patients into the basement of the two-storey building. The Chamber notes that the evidence in this respect is limited. There is no indication that any person was prevented from leaving the hospital basement or any other part of the Complex (see above). The Chamber also recalls Witness MM’s testimony that the refugees agreed to move to the ground floor of the hospital (above). Accordingly, the Chamber is not in a position to make any finding in this respect.

cont ...


[64] Most of the information in this section comes from Exhibit P2, Sketch A, B and C, and Part IV: Transcripts of video of 7 November 2000; T. 18 and 19 September 2001 (investigator Tony Lucassen); and T. 9 May 2002 (Gérard Ntakirutimana).

[65] The words in brackets do not appear in para. 4.1 of the Bisesero Indictment.

[66] Para. 4.3 of the Bisesero Indictment refers to “killings” instead of “murders” in the second sentence.

[67] Para. 4.4 of the Bisesero Indictment contains some insignificant differences.

[68] T. 20 September 2001 p. 119; T. 19 September 2001 p. 43; T. 14 February 2002 p. 72.

[69] T. 25 April 2002 pp. 58, 146; T. 26 April 2002 pp. 4-5; T. 2 May 2002 p. 46; T. 2 May 2002 pp. 47-48; T. 11 April 2002 pp. 104-105; T. 11 April 2002 p. 105; T. 9 May 2002 pp. 40-42; T. 24 April 2002 pp. 30, 61, 191; T. 6 May 2002 pp. 118-119.

[70] T. 6 May 2002 p. 116.

[71] T. 22 October 2001 p. 8; T. 1 October 2001 p. 8; T. 17 April 2002 p. 28.

[72] T. 9 May 2002 pp. 58, 84-87.

[73] T. 9 May 2002 p. 51; T. 6 May 2002 pp. 124-125.

[74] T. 28 September 2001 p. 11; T. 1 October 2001 p. 79; T. 30 October 2001 p. 80; T. 25 September 2001 p. 97; T. 26 September 2001 p. 78; T. 27 September 2001 p. 143. Witnesses GG (T. 20 September 2001 p. 130) and KK (T. 3 October 2001 pp. 89-90) both testified that they did not believe that the gendarmes were at the Complex to protect them.

[75] T. 6 May 2002 p. 133; T. 16 April 2002 pp. 99-100, 113; T. 17 April 2002 p. 29.

[76] T. 26 September 2001 p. 13; T. 27 September 2001 pp. 1-2, 5-6.

[77] T. 2 October 2001 p. 61; T. 2 October 2001 p. 61; T. 24 April 2002 p. 75, 77-79; T. 9 May 2002 pp. 71-73; T. 10 May 2002 p. 34.

[78] See for instance Akayesu (TC) paras. 54 and 77 and Bagilishema (TC) para. 228.

[79] Decision of 22 November 2001 on the Prosecution’s motion for judicial notice of adjudicated facts, paras. 11-13, 50.

[80] Prosecution Closing Brief paras. 49-68.

[81] Id. paras. 69-92; T. 21 August 2002 p. 148.

[82] Defence Closing Brief p. 22; T. 22 August 2002 p. 3.

[83] Defence Closing Brief p. 204.

[84] T. 22 August 2002 p. 3.

[85] Id. pp. 31-32.

[86] Witness FF, T. 1 October 2001 pp. 2, 96; Witness GG, T. 20 September 2001 pp. 120-121, T. 24 September 2001 p. 91; Witness HH, T. 25 September 2001 p. 91; T. 26 September 2001 p. 75, T. 27 September 2001 pp. 99-100; Witness XX, T. 19 October 2001 p. 13.

[87] Witness MM, T. 19 September 2001 pp. 44-45, T. 29 September 2001 p. 27; Witness HH, T. 25 September 2001 pp. 140-141; Witness PP, T. 5 October 2001 pp. 64-65, 99-100, 105; Witness SS, T. 31 October 2001 p. 41.

[88] Witness PP, T. 8 October 2001 pp. 5, 98.

[89] Witness DD, T. 24 October 2001 pp. 17, 24-25, 92-93.

[90] T. 20 September 2001 pp. 61-65.

[91] T. 25 September 2001 pp. 98-99; T. 27 September 2001 pp. 140-141.

[92] T. 25 September 2001 pp. 100-102, 105-106; T. 26 September 2001 pp. 79-80; T. 27 September 2001 pp. 99-101, 148.

[93] T. 4 October 2001 pp. 87-90.

[94] T. 28 September 2001 pp. 14-15, 19-20; T. 1 October 2001 pp. 84, 87, 95.

[95] T. 20 September 2001 pp. 93-95; T. 19 September p. 48.

[96] T. 19 September 2001 pp. 47-48.

[97] T. 4 October 2001 pp. 52-53, 55.

[98] T. 23 October 2001 pp. 139-140.

[99] T. 3 October 2001 p. 57.

[100] T. 20 September 2001 p. 64.

[101] With regard to the Esapan School, see para. 67 above.

[102] Prosecution Closing Brief paras. 97-106.

[103] Id. para. 107-118.

[104] Id. para. 119-134.

[105] Defence Closing Brief pp. 199-200; T. 22 August 2002 p. 40.

[106] T. 20 September 2001 p. 102.

[107] T. 4 October 2001 pp. 54, 60.

[108] T. 30 October 2001 p. 82.

[109] T. 20 September 2001 p. 123 (GG); T. 1 October 2001 p. 133 (YY); T. 25 September 2001 pp. 114-117 (HH).

[110] T. 19 September 2001 p. 60.

[111] T. 19 September 2001 p. 50; T. 20 September 2001 pp. 55-58.

[112] T. 19 September 2001 p. 59.

[113] Id. p. 52; T. 20 September 2001 pp. 43-47.

[114] T. 19 September 2001 p. 57.

[115] T. 25 September 2001 pp. 92-94; T. 26 September 2001 pp. 72-73; T. 27 September 2001 pp. 92 and 141.

[116] T. 25 September 2001 p. 96; T. 26 September 2001 p. 77.

[117] T. 3 October 2001 pp. 94-96; T. 4 October 2001 p. 58.

[118] T. 5 October 2001 p. 50.

[119] T. 4 October 2001 pp. 56-57.

[120] T. 3 October 2001 pp. 96-97.

[121] T. 22 October 2001 p. 51.

[122] T. 12 February 2002 p. 15.

[123] Id. pp. 13-14.

[124] T. 16 April 2002 p. 88.

[125] T. 9 May 2002 p. 106.

[126] T. 11 April 2002 pp. 119-123, 128, 131; T. 12 April 2002 pp. 65-73.

[127] T. 9 May 2002 pp. 58-64; T. 10 May 2002 pp. 123-124.

[128] T. 10 May 2002 p. 4.

[129] Defence exhibit 1D30.

[130] Defence exhibit 1D31; T. 25 April 2002 pp. 101-102.

[131] T. 25 April 2002 pp. 73-74.

[132] Id. pp. 78-79.

[133] T. 2 May 2002 pp. 67-76; T. 3 May 2002 pp. 20-23; Defence exhibit 1D44.

[134] T. 30 April 2002 pp. 154-159; 211-212.

[135] T. 23 April 2002 pp. 71-77; Defence exhibit 1D25.

[136] T. 31 October 2001 p. 101.

[137] T. 10 April 2002 p. 170; T. 11 April 2002 p. 3.

[138] T. 25 September 2001 p. 112.

[139] T. 25 September 2001 p. 108; T. 26 September 2001 pp. 83-84.

[140] T. 25 September 2001 pp. 107-111.

[141] T. 2 October 2001 pp. 8-9.

[142] T. 2 October 2001 pp. 15-16; T. 3 October 2001 pp. 58-59.

[143] T. 2 October 2001 pp. 16-19.

[144] T. 3 October 2001 pp. 90-94. Witness KK’s statement of 15 April 1999 was more extensive on this point than the testimony.

[145] T. 3 October pp. 90-94.

[146] T. 1 October 2001 p. 74.

[147] T. 28 September 2001 p. 33; T. 1 October 2001 pp. 74-75.

[148] T. 28 September 2001 pp. 23, 29, 33-35.

[149] T. 1 October 2001 p. 105.

[150] T. 24 October 2001 pp. 3-5.

[151] T. 23 October 2001 pp. 97-101.

[152] T. 24 October 2001 p. 29.

[153] T. 19 October 2001 p. 8.

[154] French version reads : “Et, ils m’ont dit que, comme une telle annonce avait été faite, c’est qu’une chose anormale allait se passer à l’hôpital – une chose à laquelle personne n’avait pensé.” (T. 22 October 2001 p. 7)

[155] T. 22 October 2001 pp. 5-8.

[156] T. 20 September 2001 p. 46.

[157] T. 12 February 2002 pp. 12-13, 166-167.

[158] T. 16 April 2002 p. 89.

[159] Defence Closing Brief pp. 55-63.

[160] The first statement of 10 October 1995, is a general account of events at the Complex and Bisesero. The second, dated 14 November 1995, consists of responses to questions about Gérard Ntakirutimana. The third declaration of 10 April 1996 gives a description of the events at the Complex and in Bisesero. The fourth statement, signed on 21 October 1999, begins with the witness declaring that she had not been asked about rape or sexual offences in previous interviews. However, the interview provided no such information but contains another account of the Complex and Bisesero events. The fifth statement, dated 14 November 1998, relates to Alfred Musema and makes no reference to either Accused in the present case.

[161] The Defence states that in a video filmed probably in April 1995 Witness FF stated: “Some of the vehicles belonged to the hospital. The other one was his [the Pastor’s] car.” See exhibit 1D41A and Defence Closing Brief p. 58. The Chamber does not consider this formulation as a discrepancy. 

[162] Defence Closing Brief pp. 70-75.

[163] T. 22 October 2001 p. 40. According to her statement of 14 November 1995, she saw Obed Ruzindana who “was obviously the leader”. She also observed the vehicles of Gérard Ntakirutimana, “his father and one belonging to the hospital”. This version is in conformity with the testimony of other witnesses (see 3.8.3 (d) and (e)). It should be noted that the French version, which was signed by the witness, is slightly different from the English translation: “J’ai vu en outre 3 vehicules, celui de Geral[d] Ntakirutimana, celui de son pere et celui de l’hopital” (italics added). The statement of 24 October 1999 refers to “several vehicles”.

[164] T. 22 October 2001 p. 51.

[165] Id. p. 92.

[166] Defence Closing Brief pp. 133-138.

[167] T. 24 October p. 25.

[168] See, for instance, the formulation that “there were many white men” in his first statement, third para., compared to his testimony (T. 24 October 2001 pp. 18-19); statement, fifth para.: “I decided to run to the church, which I found closed, then I proceeded to the surgical ward”, compared to T. 24 October 2001 pp. 38-41; statement, fifth para.: “I was standing in front of Mugonero nursing school”, compared to T. 24 October 2001 pp. 34-35; statement, sixth para.: “We were hiding in one of the surgical wardrooms” compared to T. 24 October 2001 pp. 69-72.

[169] T. 12 February 2002 pp. 13-14; T. 16 April 2002 pp. 85-87.