Chapter II

439. Above (II.3) the Chamber considered events relating to the Mugonero Complex (paragraphs 4.4 to 4.9 and 4.12 of the Mugonero Indictment) as well as certain general issues common to the Mugonero and the Bisesero Indictments (paragraphs 4.1 to 4.3 of both Indictments). Below (II.4) follows the Chamber’s discussion of allegations against the Accused relating to the Bisesero area of Kibuye prefecture (hereinafter "Bisesero") throughout the months of April to June 1994. These events are covered by paragraph 4.10 to 4.16 of the Mugonero Indictment and paragraph 4.10 of the Bisesero Indictment. As a general rule, the events are discussed in chronological order. In some instances, incidents alleged to have occurred at the same location or in close proximity were considered together, for practical purposes.

440. The Bisesero area consists of parts of Gishyita and Gisovu communes. It follows from the evidence in the case that the Bisesero area does not have distinct borders, or that persons residing within the area do not define it uniformly. [632] The term "Bisesero" is used also to refer to Bisesero secteur or Bisesero cellule, both of which are in Gisovu commune. The main feature of the Bisesero area is its hills. There are very few level areas. The average altitude of the whole area is between 1,500 and 2,500 metres above sea level. It is a relatively wet area with several streams in the hills and rivers in the valleys. The vegetation consists of small-scale farming crops, forests, and areas of scrub. A map of the Bisesero area with sites of relevance to the present case is attached as Annex III). [633]

441. The Chamber will revert to these locations in connection with the specific events considered below. In the present context it notes that the remains of the Murambi Church (marked as number 1 on the Bisesero area map) are situated about four kilometres, or 40 minutes by car, from the Mugonero Complex, along a very rough road. The distance is only two kilometres in a straight line. From Murambi Hill, from a position of 100 metres to one side of the church, the Complex can be seen clearly. [634] Witness Baghel specified that, in 2000, the church had four outer walls, no roof, no door frame, and that weeds and scrub were growing in what once was the inside of the church. The witness estimated that the structure was five metres wide and ten metres long. [635]

442. There are another three kilometres by road from Murambi to neighbouring Gitwe Hill (number 2 on the map), about 600 metres in a straight line. [636] According to some local residents, interviewed by Witness Lucassen, Gitwe Hill lies outside the Bisesero area. [637] From Gitwe Hill, Ngoma secteur and the buildings of Mugonero Complex are visible, although not distinctly. [638]

443. The sites in this case which are most distant from the Mugonero Complex include Mubuga Primary School (number 23 on the map), which lies 10 or 12 kilometres by road from the Complex, and five kilometres in a straight line. [639] It is situated about 50 metres back from the road. [640] Two roads branching off the main Gishyita-Gisovu road lead to the school, about six kilometres down each road. Mutiti Adventist Church (number 25 on the map) is surrounded by a forest at a distance of about 50 metres. [641] Finally, Uwingabo and Muyira Hills (numbers 14 and 18, respectively) are about six kilometres in a straight line from Mugonero Complex. [642]

4.2 Overview of Alleged Events in the Bisesero Area From 16 April Through June 1994

445. The Mugonero Indictment contains one paragraph of relevance in the present context:

The Chamber observes that paragraph 4.10 of the Mugonero Indictment is covered by the more specific paragraphs 4.10 to 4.15 in the Bisesero Indictment and will focus on the latter.

446. The Chamber finds that the evidence in the present case supports the general description in the Indictment that many persons sought refuge in the Bisesero area. Most witnesses, both from the Mugonero Complex and elsewhere, testified that they arrived in Bisesero in the days following 16 April 1994. [643] It is difficult to estimate the total number of refugees. However, on the basis of the evidence, the Chamber finds that a large number of men, women and children who were predominantly Tutsi sought refuge in the area of Bisesero from April through June 1994. Some witnesses estimated the number of refugees to be in the thousands. [644] Moreover, Witnesses KK, YY, GG, HH, FF referred to dozens, hundreds, "many" or "very many" refugees at specific locations within the area of Bisesero at different points in time. [645]

447. The evidence in the present case also supports the findings that there was widespread violence in the area of Bisesero between April and June 1994, that the attacks against Tutsi occurred almost on a daily basis. Witnesses XX, II, and HH testified about daily attacks, and Witness HH stated that very few attacks did not result in loss of life. [646] Several of the witnesses testified that the number of victims of the attacks was high. [647] Based on the totality of the evidence, the Chamber finds that the majority of the victims were Tutsi. The attackers consisted of Interahamwe, gendarmes, soldiers, and civilians. The Interahamwe, gendarmes, and soldiers were usually armed with guns and wore uniforms. The civilians were usually armed with clubs, machetes, bows, arrows, spears, hoes, knives, sharpened bamboo sticks, and other traditional weapons. [648] Some of the attackers arrived in vehicles; others came on foot. [649]

448. The Chamber observes that its findings are in conformity with the conclusions in previous case law of this Tribunal. The Trial Chamber in Musema found that regular attacks occurred in the Bisesero region from 9 April 1994 until about 30 June 1994, and that thousands of Tutsi were killed, injured and maimed there. In Kayishema and Ruzindana, the Trial Chamber found that thousands were killed in the Bisesero area between April and June 1994. [650]

449. Before considering the specific Bisesero-related allegations against both Accused the Chamber will address their alibi for the relevant period. [651]

450. The Defence submits that the allegations made by Prosecution witnesses were generally vague as to time and place. The Defence further submits that while it is not possible to provide alibi evidence for the Accused to account for every hour of every day between April and July 1994, the cumulative effect of all Defence testimony concerning the whereabouts of Elizaphan and Gérard Ntakirutimana is to exclude their presence at Murambi or Bisesero. The Defence argues that it would have been impossible for either Accused to slip away unnoticed at any time between April and July 1994, travel to Bisesero and return undetected. The number of credible witnesses who saw the two Accused regularly at Mugonero during that period of time and their explicit testimonies concerning the few occasions that either Accused left Mugonero do not afford time or opportunity for the Accused to have engaged in the activities alleged. [652]

451. The Defence case is that the two Accused stayed in Gishyita from 17 April until their return to Mugonero at the end of April. Elizaphan Ntakirutimana was unwell during this period, and depressed by the events at Mugonero, over which he had no control. He never left Gishyita at all. Gérard Ntakirutimana also remained in Gishyita from 17 April, until the end of April, except on two occasions when he went on short trips to Mugonero and on one other occasion when he was approached by a soldier who commandeered his vehicle and made the Accused go with him to retrieve a body, eventually forcing the Accused to drive him and other soldiers all the way to Kibuye town. [653] Defence witnesses who lived in Gishyita during the period in question either confirmed these particular absences or stated that in their experience neither Accused left Gishyita at all (demonstrating how unusual those few absences were). Defence witnesses who made unannounced visits to Gishyita during this time testified, without exception, that both Accused were present. [654]

452. The Defence maintains that at no time while in Gishyita did any public authority or political or military figure, apart from soldiers who commandeered the hospital vehicle, visit either accused. In particular, Obed Ruzindana was not a visitor in Gishyita. The Defence denies that Royisi Nyirahakizimana testified to having regularly seen Ruzindana in Gishyita. Rather, according to the Defence, she never saw him in Gishyita but saw him passing by her house on his way to "the centre", meaning the Kabahinyuza centre. She did not "change her story", as alleged by the Prosecution. [655]

453. In this connection, the Defence submits that the purported prior statement made by Rachelle Germaine (see below) should be afforded no weight because the Prosecution did not introduce this witness in its case-in-chief, when her statement could have been tested under cross-examination. As it stands, the alleged statement by Rachelle Germaine is unverified and is unreliable hearsay. According to the Defence, the Trial Chamber has received no evidence on which to find that this statement was, in fact, made by the purported author or that it was impossible for Rachelle Germaine to be present to testify before the Chamber. The conclusion to be drawn, asserts the Defence, is that the witness, if called to testify, would have contradicted the purported prior statement. Moreover, the Prosecution had possession of the alleged statement before the commencement of trial. To enter the statement into evidence, without calling the purported author to testify before the Chamber, the Prosecution could have made an application under Rule 89, and if the application were granted, the Defence could have had the opportunity, before the commencement of its case, to prepare a full answer and defence. Instead, the Prosecution effectively re-opened its case, during the last stages of the Defence case. That the document in question was disclosed prior to trial is immaterial. At the closure of the Prosecution’s case, the Defence should be assured that the Prosecution’s case is closed, and that no new Prosecution witnesses will be called or evidence introduced. [656]

454. The Defence case is that Elizaphan Ntakirutimana spent the first period after his return to Mugonero putting the field office back in order. From 4 May onwards he went back to his former daily routine: going to his office five or six days a week between 6.00 and 7.00 a.m., returning home for breakfast, then back to his office, then back home for lunch around midday, returning to his office around 2.00 p.m., where he remained until 4.30 or 5.00 p.m. He spent evenings with his wife and often with his sons Jérôme and Gérard. Due to a chronic ailment he was obliged to take medicine at regular intervals. He left Mugonero on one or two trips to Kibuye town, and on other occasions to visit Adventist churches in Rubengera, Gihombo in Rwamatamu, Mpembe, Mubuga, and Cyangugu during May and June. Elizaphan Ntakirutimana would usually lead Sabbath services at the église mère in Ngoma, but on some Sabbaths he would preach at other churches. According to the Defence, these were the only occasions when he left Mugonero. He was never in Bisesero. The cumulative evidence provided by Elizaphan Ntakirutimana and his family members, including his wife, his sons, his daughter-in-law, his household-help Witness 16, his co-worker Witness 5, and other members of the Adventist community who were in Mugonero from April through July 1994, clearly demonstrates, according to the Defence, that Elizaphan Ntakirutimana never went to Bisesero, or near the Murambi Church, Gitwe, or Gitwe Hill during the period from May to July 1994, and that he did not commit any of the atrocities ascribed to him. [657]

455. In relation to Gérard Ntakirutimana, the Defence submits that upon returning to Mugonero and finding the hospital looted and damaged the Accused organized a clean-up which lasted approximately two weeks. Following that, around the middle of May, the hospital partially resumed operations. From then on, Gérard Ntakirutimana worked at the hospital, Monday to Saturday, maintaining a disciplined schedule which started at 7.00 a.m. when he left home for work. He would return home for lunch around noon and again go back to work at 2.00 p.m. In the evenings, after work, he would read at home and spend time with his wife and children. He was the only doctor at the hospital and was always on call. When not at work he remained home so that he could be found easily. On Sabbaths he regularly attended church at Mugonero. Some Defence witnesses testified that on occasion Gérard Ntakirutimana left Mugonero to purchase medicine, go to the market, fetch his brother, or repair the water system. Except for these very brief departures, well defined and well known to the Accused’s family and co-workers, the Accused was always at Mugonero. For instance, Witness 11 found him at Mugonero Hospital when he travelled there on an unannounced visit from Kibuye town in May. [658]

456. In short, according to the Defence, Gérard Ntakirutimana could not possibly have been in the places alleged by Prosecution witnesses, committing the crimes alleged. Not only are those allegations completely inconsistent with the life and work of the doctor, they are also wholly impossible on the evidence. He had neither motive nor opportunity. When the alibi evidence from those who lived with, worked with, were associated with, or otherwise came into contact with Gérard Ntakirutimana is read in its entirety, it follows that the Accused was, during the period from May to July, working at the clinic, or praying in church, or remaining at home, for such a proportion of the time in question that it is not credible to contemplate that he was committing the acts alleged. [659]

457. The Prosecution notes the admissions by Defence witnesses that Gérard Ntakirutimana was absent from Gishyita at various times in the two-week period after 16 April. [660] However, the Prosecution submits that Gérard Ntakirutimana was absent more often than he admitted. In support of this argument, it relies on a statement purportedly made by one Rachelle Germaine, and allegedly taken by Prosecution investigators on 28 November 1995. The Prosecution submits that Germaine, who travelled to Gishyita with the two Accused on 16 April, declared in that document: "I used to see Mr. Ruzindana come pick him up very often in Gishyita to go to a destination I did not know." [661]

458. In relation to Royisi Nyirahakizimana, wife of Elizaphan Ntakirutimana, the Prosecution argues that she appeared to be "fumbling" when she testified that no one left the CCDFP building in Gishyita for the entire two weeks she was there; yet later she changed her story and stated that Gérard Ntakirutimana and other people had, in fact, left on occasion. Again she testified that she saw Obed Ruzindana quite often at the CCDFP. Under cross-examination, she changed her story and said that she used to see him at Mugonero and not at Gishyita. In any case she does not provide a "watertight" alibi for her son for the two-week period. [662]

459. The Prosecution’s general submission in relation to the alibi for the period 17 April to the end of that month is that Gérard Ntakirutimana admittedly left Gishyita on occasion and that no Defence witness observed the two Accused for the duration of their stay in Gishyita. Therefore, their alibi evidence for the Gishyita period is "not tight". The fact that some Defence witnesses maintained that both Accused always remained in Gishyita, whereas others testified that Gérard Ntakirutimana did leave, shows that the testimony of the former witnesses is unreliable. [663]

460. The Prosecution submits that Elizaphan Ntakirutimana "could not have had much to do to keep him in Mugonero" after he returned there at the end of April. The Accused exaggerated the damage done to the field office on and after 16 April. The Prosecution thus implies that the Accused had plenty of time available to participate in the Bisesero attacks. Elizaphan Ntakirutimana also admitted that he travelled out of Mugonero on various occasions during the period from May to July 1994. So did Gérard Ntakirutimana. [664]

461. The Prosecution refers to evidence of other Defence witnesses that the two Accused periodically left Mugonero from May to July. [665] The Prosecution also notes that the various alibi witnesses were not in the presence of the two Accused except for limited periods of time; outside those times the witnesses could have only assumed that they knew the whereabouts of the two Accused. [666] Most of the witnesses did not travel with the Accused on their frequent excursions.

462. Moreover, according to the Prosecution, many of the Defence witnesses cannot be considered reliable. [667] They were relations, close friends, or former employees of the Accused who were likely to benefit from shielding the Accused from criminal responsibility. They thus may have had a motive to give false testimony. [668] It is further submitted that the relevant locations in Bisesero were approximately 20 to 25 kilometres from Mugonero and that day trips would have more than sufficed for the Accused to reach massacre sites and return to Mugonero. [669] The Prosecution concludes that the Accused’s alibi for the period from May to July is "flawed" and "porous" and that it does not cast any doubt on the evidence of Prosecution witnesses. [670]

463. The Chamber reiterates that an accused who raises an alibi is merely denying that he or she was in a position to commit the crime with which he or she is charged. By raising the issue, an accused simply requires the Prosecution to eliminate the reasonable possibility that the alibi is true. [671]

465. Apart from Murambi, the other named locations were in Bisesero. The Chamber notes that in most cases the witnesses were not able to date their observations precisely. Witnesses GG, DD, SS, and YY appeared to be referring to one and the same incident when they testified about the removal of the roof of Murambi Church (see 4.23). It is possible that other observations by two or more witnesses concern one and the same incident, but the evidence is not sufficient for a finding on this point. If the individual observations are considered as referring to separate incidents, Gérard Ntakirutimana was allegedly seen seven times in the Bisesero area in the April-June period, Elizaphan Ntakirutimana was seen in Bisesero five times, and the two Accused were seen there together seven times. This is not counting sightings at Murambi.

466. Therefore, the question for the Chamber is whether the Accused’s alibi evidence, considered in conjunction with the Prosecution’s evidence, raises a reasonable possibility that the two Accused, or either of them, was not at Murambi or Bisesero at the times alleged, for the simple reason, as the Defence would have it, they were not at Murambi or in Bisesero at all during the relevant period.

467. The Chamber is aware of the difficulty for the Defence where the allegations against the Accused are not always precise as to date and time and where an alibi is put forth for a period as long as three months. Nevertheless the Chamber observes that there were many gaps in the Accused’s alibi, detailed below. Moreover, the Chamber does not accept much of the evidence of the alibi witnesses. All the alibi witnesses were friends or acquaintances of the Accused, and the Chamber believes that there was a degree of fabrication on the part of most of these witnesses in an endeavour to assist the Accused. The Chamber also notes that the two Accused chose to testify at the very end of the case, and thus did so with the benefit of having heard the evidence presented by the other Defence witnesses. The Chamber has taken this factor into account in considering the weight to be accorded to the evidence given by the Accused.

468. A final general observation is that some of the evidence that was introduced by the Defence referred to the whereabouts of the two Accused on specific dates. However, most of the evidence was intended to prove the Accused’s daily routine. The possible value of establishing a strict daily routine for the Accused is that any deviation from that routine would most likely be noticed by those living and working in close association with them.

469. Seven Defence witnesses (4, 32, 16, 7, 6, 12, and 5), the wife of Elizaphan Ntakirutimana, and the two Accused, provided evidence concerning the Gishyita period of the alibi.

470. Witness 4, son of a colleague of the two Accused, testified that during the Gishyita period he saw Elizaphan Ntakirutimana and Gérard Ntakirutimana "every day": "it would be a good number of times. I saw them all of the time. … We were always together." Witness 4 testified that neither Accused left the vicinity of the communal building in Gishyita before the end of April 1994. Moreover, "I saw the vehicles [of the Accused] there all of the time". The witness described the mood of Elizaphan Ntakirutimana: "I was able to notice that Pastor Ntakirutimana did not know what to do. He seemed to me to be sad." As for Gérard Ntakirutimana: "I didn’t see Gérard do anything. He sat there, not knowing what to do. In a word, I would say that he gave me the impression of a sad person who was just sitting there." [672]

471. Witness 32, son of another colleague of the two Accused, testified that during the Gishyita period he saw the two Accused every day. "We were together every day in Gishyita." "They never left that place, if my memory does not fail me." The witness also spent time with his friends: "Sometimes when we got bored sitting in one place for a long time, young as we were, we moved around, we went to the centre [of Gishyita] and we returned." Later he conceded that he simply did not know whether Gérard Ntakirutimana had ever left Gishyita during this period. [673]

472. Royisi Nyirahakizimana, wife of Elizaphan Ntakirutimana, testified that her husband, who was not in good health, did not move beyond the immediate vicinity of the communal hall for the whole of the Gishyita period. She saw him there every day: "he could sit down, read a book, or lie down". She testified that she also saw Gérard Ntakirutimana every day during the two weeks. He left Gishyita twice to get food, once alone, and the second time "in the company of pastors and their children". [674] On the first occasion, the Accused went to Ngoma to fetch milk from his father’s house: "It did not take time. The milk was ready when he got there. … He returned immediately." [675] On the second occasion, Gérard Ntakirutimana was gone approximately one hour. [676] He was also absent on a third occasion, for thirty minutes to an hour on an unspecified day "about a week after the war started", when "a soldier came and took him along in a vehicle". [677] The witness had not asked her son where he had been taken. [678]

473. Witness 16, who was Elizaphan Ntakirutimana’s housekeeper, was visited by Gérard Ntakirutimana on 18 April. He arrived between 9.00 and 9.30 a.m. in the hospital vehicle; he explained that he had come from the communal office. He instructed the witness to deliver milk and food to the communal office. He left taking some foodstuffs with him. His visit had lasted about two hours. [679] Two days after this visit, at around 10.00 a.m., Witness 16 left Elizaphan Ntakirutimana’s house with a load of milk and potatoes and headed for Gishyita. [680] There, he saw Gérard, Elizaphan and Royisi Ntakirutimana among other individuals and delivered the food and milk he add brought prior to going back to Ngoma between 1.40 and 2.00 p.m. on the same day. [681] He went back to Gishyita two days later, and then again on another occasion (or possibly two), at intervals of two days, to bring milk. [682] He gave few details concerning these subsequent visits. [683]

474. Witness 7, a Mugonero Hospital employee in 1994, testified that on 19 April she went to Gishyita’s communal office to replace her lost identity card. There she saw Gérard Ntakirutimana at the CCDFP building, in the company of Elizaphan Ntakirutimana and others. None of the persons whom she saw was armed. [684] Elizaphan Ntakirutimana seemed to be in deep thought and very sad. Witness 7 had a brief conversation with Gérard Ntakirutimana, who also looked sad; "He said what happened in Ngoma was sad, that people had been killed, that the hospital had been destroyed and looted. He said he was overwhelmed by what was happening." Witness 7 agreed to assist Gérard Ntakirutimana to make the hospital operational again. She testified that she was in the presence of the two Accused from noon until 2.00 p.m. on 19 April. Thereafter she returned to her cellule. [685]

475. Witness 6, brother of Witness 7, testified that he went to Gishyita "around the 22nd and 23rd" of April, although his testimony shows that he was not sure about the dates. He found the two Accused at the CCDFP building. His reason for going to Gishyita was, "I became curious and I wanted to go and see them. Apart from that, there’s no other reason". He heard Elizaphan Ntakirutimana speak about his church: "He was saying that in Ngoma there had been looting and people had been killed. … He was saying that there had been very few pastors left and it was possible that the Tutsi pastors had been killed or had fled. He was saying that, in our church, we had lost many of our faithful." Moreover, "the pastor as well as the other pastors who were with him were saying that we the young people should remain at home and try to sensitize the faithful and tell them not to participate in these things, that Christians who had followed the church’s teachings, we should tell whomsoever we meet that they shouldn’t participate in these things" Among the people listening was Gérard Ntakirutimana. No one was armed. Witness 6 said he had arrived in Gishyita in the afternoon and stayed for one or two hours, then returned to Ngoma. [686]

476. Witness 12 testified t hat on 15 April his parents sent him to borrow Elizaphan Ntakirutimana’s bull. [687] The witness later heard that the Accused and his family had sought refuge at the communal office in Gishyita. On "the Sabbath which followed the week during which I had gone to fetch the bull" (by inference, on 23 April), Witness 12 was sent to Elizaphan Ntakirutimana to ask about returning the animal. [688] When he got to Gishyita, around 11.00 a.m., he saw the two Accused. Elizaphan Ntakirutimana told him that he had not brought his livestock with him and that he should inform his father to keep the bull until the situation returned to normal. The witness spent about 30 minutes with Elizaphan Ntakirutimana; he did not speak with any other persons he saw there; and, having accomplished his mission, he left. [689]

477. Witness 5, a colleague of Elizaphan Ntakirutimana, testified that he went to Gishyita "on Sunday or on the following day … after the Sabbath following the Sabbath of the 16th" (by inference, 24 or 25 April 1994). He found the two Accused there. Elizaphan Ntakirutimana "said that he did not know exactly when he would be able to go back. However … in our conversation he told me that he was thinking about ways of relaunching the activities of the mission." Gérard Ntakirutimana spoke of his desire to restore hospital services. Witness 5 remained in Gishyita from around 11.30 a.m. until "the evening". [690]

478. Elizaphan Ntakirutimana testified that during the Gishyita period Gérard left Gishyita twice in the first week after their arrival. The first time, Gérard went to Ngoma with two pastors to look for provisions. The second time, he also went to Ngoma. His father remembered that, on the second occasion, he came back with two young boys whom he had found near the bodies of their mothers, and that this was a few days after their arrival in Gishyita. After this occasion, Gérard did not leave Gishyita again, according to his father. [691] The Accused maintained that he never left Gishyita or the immediate surroundings of the CCDFP building until his return to Mugonero at the end of April: "I wasn’t well; I was sad. I wasn’t capable of doing much. I was reading the Bible and I was praying." [692]

479. Gérard Ntakirutimana testified that on 17 April he remained in Gishyita. [693] The next day, 18 April 1994, "I went to Mugonero to see what the situation was like there. I took that opportunity to pass by my father’s house to collect some provisions". [694] From there the Accused allegedly drove to the hospital; "I saw dead bodies which were quite close to the parking lot on the lower side, and by these bodies I found two little boys." [695] He stated that the two children stayed with him in Gishyita for a week, approximately, during which time he became concerned about their safety: "I was told that I shouldn’t be keeping these children there because they were Tutsis." [696] And so after about a week (the Accused did not further specify the date, except to say that it was during their second week in Gishyita), he took them back to Mugonero. At another time, when the Accused was in Gishyita, he was approached by a soldier: "This was towards the end of the first week … And this was after the meal at lunchtime, and we were just in front of the CCDFP, and suddenly I saw a soldier arrive, and this was a second lieutenant. He told me, ‘Come, come with me; come with me in your vehicle’ … So we went down from the CCDFP, and when we got to the main road, which comes from Kibuye and goes to Cyangugu, I found another group of soldiers who had another vehicle … In the other vehicle there were about eight gendarmes … Some came into my vehicle, the vehicle I was driving, and then they said, ‘Let’s go’. So they pointed the direction where I should go. The other one went in front of us and he said, ‘You follow us’. … For about 15 minutes, 20 minutes, something like that. We took the road going to Gishyita, and there’s another road branching, going to Bisesero. We took that road and continued about 20 minutes, and they told me to stop, so I stopped. About six gendarmes got off the vehicle and left. I was with about two gendarmes. … After about something like 30 minutes they came back … with, I would say, a body, a dead body that was wrapped in a covering, and they loaded it on my pickup. And then we turned around, and when we got to the junction between the road which comes from Bisesero and the main road, the soldiers who were in the other vehicle got on my vehicle and told me to take them to Kibuye. With the dead body and the small group of soldiers we went to Kibuye." [697] The Accused did not specify the date of this incident or the parts of Bisesero he went through or what he saw along the way. At Kibuye town the Accused was directed to the camp of the Gendarmerie, where the gendarmes unloaded the body from his car; he then drove back to Gishyita. [698] The whole episode lasted from 1.00 to 5.00 p.m. [699] The Accused stated that he did not know why he had been approached for this mission. [700] He testified that except for the times mentioned above he was never absent from Gishyita. [701]

480. Gérard Ntakirutimana’s testimony is contradicted by Witness 4 and 32, who said that the two Accused and their vehicles never left Gishyita during the period in question. Apart from the Accused, the only other witness for the whole Gishyita period is his mother Royisi Nyirahakizimana, wife of Elizaphan Ntakirutimana. She claimed that the third time her son was absent from Gishyita was when a soldier took him away for half an hour to an hour, not four hours as testified by Gérard Ntakirutimana. The Chamber is thus presented with varying versions of the alibi giving rise to the distinct possibility that Witness 4 and 32 and Royisi Nyirahakizimana were either not aware of all of Gérard Ntakirutimana’s movements or were minimising his absences to assist his defence. The Chamber does not find Royisi Nyirahakizimana’s testimony on the two Accused’s whereabouts credible. Her claim that her husband was ill during the Gishyita period was not corroborated by Witnesses 16, 7, 6, 12, or 5, who made day-trips to Gishyita. The evidence of these witnesses does not create a reasonable possibility that the two Accused were always in Gishyita outside the times when the five witnesses visited. It is admitted, after all, that Gérard Ntakirutimana left Gishyita three times. No Defence witness accompanied the Accused on any of these outings, one of which was to Bisesero. The Chamber finds that the two Accused had the opportunity and the means to leave Gishyita during the period they lived there. The evidence does not raise a reasonable possibility that they were not at those locations in Murambi and Bisesero where Prosecution witnesses testify to having seen them in April.

481. Thirteen Defence witnesses (4, 32, 5, 22, 16, 9, 8, 25, 24, 21, 23, 7, and 6), not counting the two Accused and their close family members, gave evidence broadly covering the Mugonero period of the alibi. In addition, Witness 11 gave evidence on two specific segments of the period. This evidence is summarized and evaluated in the paragraphs that follow.

482. Witness 4 testified that after returning from Gishyita he observed the hospital staff re-establish the hospital services and that he stayed at Mugonero, without ever leaving the place, until he fled to Zaire in mid-July 1994. [702] He testified that during that period he saw the two Accused "all of the time … I only saw them at their place of work, when I walked around, when I went to the hospital; for example, I often saw Gérard at the hospital. And the same was true when I went to the field office. I saw the Pastor, especially since I lived in the vicinity." [703] As for Gérard Ntakirutimana, "I used to see him both in the morning and in the afternoon … Almost every day of the week." [704] Also, "I took a walk all the time. When I reached the hospital I would see the doctor." [705] Also, "there was not a single day which went by without me seeing him." [706] Witness 4 saw the Accused, for example, "in the consultation room"; however, the witness added, "I do not recall where the room was located" and, "I only passed through. I did not pay attention to that kind of detail." [707] On the Sabbath the witness would see the two Accused at the Ngoma Church. [708] The witness later clarified that he had not attended church on every Sabbath during this period: "I went … about three times a month. … it would mean that during that period I went to church six to seven times." [709] Nevertheless, even on those occasions when he did not attend, he would see the two Accused return from church, for he lived close to Gérard Ntakirutimana’s house throughout the May-July 1994 period. [710] Witness 4 said he never saw either Accused armed with a weapon or in the company of armed men. [711]

483. In the Chamber’s opinion, Witness 4’s claim that he saw the two Accused all of the time is improbably exaggerated. The witness did not provide a plausible explanation about why he spent as much time as he claims walking in the grounds of the Complex, noticing the Accused’s presence many times each day. His account was lacking in detail.

484. Witness 32 testified that when he returned to Mugonero at the end of April he took part in the clean-up of the hospital, which commenced after about three days and lasted about two weeks. [712] "I would go there every day except on Saturdays. … In the morning I would arrive at eight … Each time that I went to participate in the hospital’s clean-up operation I would see Dr. Gérard. … During this period of time … we’d clean up the hospital until about noon and then we would go home … when we were told we could leave, sometimes he would leave before me, sometimes he would leave after me. … It wasn’t always the same". [713] After cleaning had been completed, by mid-May, ten to 20 employees returned to work and limited services resumed. [714] There were few patients compared with earlier times: "The dispensary wouldn’t have more than 20 patients, and to that you would add approximately five inpatients." [715] Surgery cases were sent to Kibuye town. [716] Witness 32 described his dayshift hours: "I would go to work at 7:00 and … I would, first of all, go to prayers." The witness would always see Gérard Ntakirutimana at morning prayers. [717] "After prayers I would go to my department [then] I would go for lunch at noon and come back at 2 p.m. I worked from 2 p.m. to 4:30 p.m. and at 4:30 p.m. someone was to come and replace us." [718] "I would say that Dr. Gérard worked day and night. By that I mean, he was working every day from 7 o’clock and he would go for lunch at noon to return at 2 p.m. And if there was a problem during the night, it was Dr. Gérard who would be called upon because he was the only one." [719] Even when Witness 32 was on night shift, and did not see the Accused during the day, the witness knew that Gérard Ntakirutimana had been at work that day because he recognized the Accused’s handwriting on the patient treatment sheets. [720] However, the witness did also have regular days off, when he would not go to the hospital. [721] And he did not rule out that Gérard Ntakirutimana had travelled to Kibuye town during the period between May and July 1994 to acquire medicines. [722] During this period he also saw Elizaphan Ntakirutimana at church or at the field office. [723] The witness stated that he never saw either Accused carrying arms or associating with armed men. [724]

485. The Chamber finds Witness 32’s evidence also to be exaggerated, and therefore unreliable. In any case it is clear from the witness’s testimony that there were large chunks of time when he did not see the Accused, for example, when he was on night shift or off work. The Chamber notes its earlier observation that Witness 4 and 32 are overzealous in minimizing the absence of the Accused.

486. Witness 5 testified that Elizaphan Ntakirutimana’s first day back at work after the Gishyita period was 2 May and that, "[t]he pastor was always there, every day." [725] "According to our timetable at the field, we would work five days a week, apart from public holidays or on the Sabbath day, and on Sundays we didn’t work either." [726] In May-July, Elizaphan Ntakirutimana would "sometimes … go to visit other churches, sometimes also he would go to attend meetings, and since it was difficult to obtain fuel, sometimes he would go to fetch petrol from Kibuye and he would come back. Other times he would go and preach on the Sabbath day." [727] He estimated "that it was eight days altogether in total when he wasn’t at Ngoma … from the second of May until the time we fled" and "we can add to these eight days the Sabbath days on which he went to preach elsewhere". [728] Witness 5 would also see Gérard Ntakirutimana during May-July: "I would see him at times pass at the hospital, sometimes I would see him go to work, but … most of the times that I saw him was when he came to pray at the church." [729] The witness claimed to have seen him on nine Sabbaths during that period. [730]

487. The Chamber notes that it is clear from Witness 5’s testimony that Elizaphan Ntakirutimana left the Mugonero vicinity on numerous occasions during the Mugonero period. Only once did Witness 5 accompany the Accused. The witness did not provide a concrete alibi for Gérard Ntakirutimana.

488. Witness 22, wife of Witness 5, returned to Mugonero in the first week of May. She testified to seeing Gérard Ntakirutimana at church "on all the Sabbath days." She added that, on one Sabbath the Accused called on the congregation to return property taken from the church and to assist him with the cleanup of the hospital. [731] "I would also see the pastor at the church, but I wouldn’t see him on all the Sabbath days because pastors had programs of preaching elsewhere, and when he had travelled he wouldn’t come to pray there. But when he came to pray at the parent church, I would see him." [732] The witness would see the two Accused on various other occasions. Concerning Gérard Ntakirutimana, "I wouldn’t say that I spoke with him after what happened at Mugonero. We didn’t have time to chat or discuss, but I would see him at home. I would see him when he went from his home to go to work." [733] Witness 22’s observations of Gérard Ntakirutimana were not regular. "Sometimes there would be weeks … which went by without me seeing him." [734] Her observations of Elizaphan Ntakirutimana were not precise as to time. For example: "the pastor would come from time to time to go round the school [where the witness worked] and the chapel. Other days he would come and greet the teachers and he would go in. And I would also see him from time to time at the office when I went to see my husband." [735] The witness testified that she had never seen either Accused in possession of a weapon or associating with armed men, nor had she heard such a thing said about them. [736]

489. Witness 22 does not significantly contribute to the Accused’s alibi for the Mugonero period. She admitted that Elizaphan Ntakirutimana traveled, and that he was not always present at Sabbath services. It appears she saw Gérard Ntakirutimana only very irregularly.

490. Witness 16 testified that upon his return to Mugonero Elizaphan Ntakirutimana took up his former routine. However, the witness did indicate variations: "he would come home for lunch except on days when he went out … to far-away areas for meetings as part of his church activities". [737] "And before leaving in the morning he would tell us not to wait for him for lunch because he would be travelling to far-away areas as part of his religious duties." [738] Also, "[o]n some of the Sabbath days he would go to the Ngoma Church. On other days of the Sabbath he would go to other churches located in the Ngoma area". [739] Moreover, the witness would regularly visit his parents for brief periods, during which he would be absent from Elizaphan Ntakirutimana’s house. [740] Witness 16 testified that he would see Gérard Ntakirutimana three or four times a week. "He used to come to the house. … In the afternoons on the Sabbath he would come and eat with members of the family. On other occasions I would see him when I went to their home". [741] (Later the witness also stated that Gérard Ntakirutimana would overnight at his father’s house on "many nights". [742] ) The witness knew of no weapons in his employer’s house and did not see Elizaphan Gérard Ntakirutimana with any kind of weapon. [743]

491. The Chamber notes that Witness 16 referred to Elizaphan Ntakirutimana’s travels to "far-away areas". The witness did not accompany the Accused on his travels. He saw Gérard Ntakirutimana periodically. The Chamber does not find that Witness 16’s evidence amounts to a strong alibi for the Mugonero period.

492. Witness 9, a student in 1994, testified that he would take his father’s herd out to pasture in the neighbourhood of his house, which was outside the Complex, from the end of April until early July. He did not claim to have seen the two Accused in the course of cleaning activities. However, during the period from May to July, he went to church four times, for prayers from 8:30 to midday, beginning with the first Sabbath in May. He saw the two Accused and their families at church on those occasions. [744]

493. Witness 8, a relative of the Ntakirutimana family, testified that, at the start of the second week of May, she moved into Gérard Ntakirutimana’s house, to take care of his children. [745] She remained there until July. [746] She provided an account of the daily routine in the household, of church services, Bible studies and work and meal times. [747] Gérard Ntakirutimana’s daily work schedule, according to Witness 8, was that he would leave for work between 7.00 and 8.00 a.m. every day except Saturday. [748] He returned home for lunch at noon or 1.00 p.m. and went back to work at 2.00 p.m. [749] He would finish work and be home by 4.30 p.m. "every day". He would never go out at night. [750] The witness testified that Gérard Ntakirutimana did not own a gun and she had never seen him carrying one. [751] She testified that she saw Elizaphan Ntakirutimana from time to time. [752]

494. The Chamber believes that Witness 8’s evidence does not advance the alibi outside the times she observed the Accused. She was categorical that Gérard Ntakirutimana never left the house at night. Yet Witness 32 stated that Gérard Ntakirutimana was on night call at the hospital. Her evidence in this regard was also contradicted by Witness 24. Even if Gérard Ntakirutimana did abide by the daily timetable described by Witness 8, she only assumed that the Accused was at work during the hours when he was not at home.

495. Witness 25 testified that one afternoon in the first week of May 1994, when his daughter was ill, the witness went to Mugonero Hospital. (Later in his testimony the witness said: "or, otherwise it would be at the end of April. I don’t really remember very well what time of year it was".) Gérard Ntakirutimana gave the witness medicine, which he obtained from his house. He did not ask the witness for money. Witness 25 also met Elizaphan Ntakirutimana, who was driving a vehicle. They had a conversation: "The last thing he told me is as follows: he said only God can save us." In addition to this encounter with the two Accused in the first week of May, Witness 25 saw Gérard and Elizaphan Ntakirutimana at other times in May-July, but provided scant details concerning these meetings. [753] He added: "I have never, never in all my life seen Pastor Ntakirutimana or his son Gérard carrying anything that can be described as a weapon". [754] Witness 25’s sightings do not exclude the possibility of the Accused’s presence outside Mugonero as alleged by Prosecution witnesses.

496. Witness 24, daughter of a colleague of the two Accused, testified that she returned to Mugonero "during the first week of May. Witness 24 testified to seeing both Accused during the period of May to July. While at Gloria’s house, she often saw Gérard Ntakirutimana going to, or returning from work, "and sometimes he visited us at home. And I saw him in the evening when he came and conversed with my father and others." [755] She claimed to have seen both Accused "each time that I went to church" during the period from May to July, claiming that she went to church every Sabbath without fail. [756] In summary, she testified that on average she would see Elizaphan Ntakirutimana five times a week and Gérard Ntakirutimana six times a week over the period in question. [757] According to the witness, neither Accused ever left the area of Mugonero: "I did not hear it said on any occasion during any day that they were not there." [758]

497. The Chamber finds Witness 24’s evidence to be exaggerated and unreliable. It is contradicted by other Defence evidence, for instance Jerôme Nataki’s evidence, that Elizaphan Ntakirutimana was not present at every Sabbath service conducted in Mugonero during the period, as well as Witness 8’s evidence that Gérard Ntakirutimana was home at 4.30 p.m every day and never went out at night.

498. Witness 21, son of a colleague of the two Accused, testified that he returned to Mugonero in early May. [759] He moved into Gloria’s house, which was located near the house of Gérard Ntakirutimana and was close to the field office. During the ensuing two-week period, he would see Dr. Gérard every morning when he was going to work, and when he went back home for lunch in the afternoon, and in the evening. He would also see Elizaphan Ntakirutimana at the field office or as the Accused went to, or returned from work, as well as at church on the Sabbath. [760] From the middle of May until the beginning of June the witness lived at the house of Enos Kagaba, where he began minding his father’s cattle. [761] The witness indicated that he would see both Accused when grazing the cattle. [762] However, he provided few details about the circumstances in which he saw them. [763] In the beginning of June, Witness 21 moved for a third time to a house "very close to the hospital" and remained there until he left the country in mid-July. [764] Also at that time the witness returned to school at Esapan, leaving his house at 7.00 a.m. and returning from school at 5.00 p.m. (The school was thirty minutes’ walk from Mugonero.) He would return to Mugonero for lunch. [765] When walking to school he "could either take the road that went close by the hospital; otherwise … the one which went below the hospital". He would see "Dr. Gérard where we lived in the white people’s quarters. I would see him when he was going to work or coming back home." From mid-May to mid-July he would see both Accused at church on the Sabbath. [766] He added that even on those Saturdays when he did not attend church he sometimes saw both Accused "when they came out of the church". [767] "When I was grazing the herd close by the church or in the surroundings of the church I could see them, because … I would be close by the path that they would follow … when they came back from church". [768] From early May until mid-July the witness would see Gérard Ntakirutimana about five days per week, including on the Sabbath, and on those days he would sometimes see the Accused more than once a day. During the same period he would see Elizaphan Ntakirutimana an average of three days per week, and "sometimes … three times a day". [769] He would see him at the field office, at the church, and at the mill which was "in front of his [the Accused’s] house". [770] The witness testified that he never saw either Accused leave Mugonero. Nor did he see either of them with weapons or in the company of soldiers or armed persons. He also did not see any armed persons heading for the Bisesero area or any wounded being brought to the Complex. [771]

499. The Chamber finds Witness 21’s evidence to be exaggerated and unreliable.

500. Witness 23, son of a colleague of the two Accused, testified that, beginning in early June, he taught at the ESI Nursing School for three weeks, two days per week, from 8.00 a.m. to noon; but he could not recall on which weekdays he taught. [772] From mid-May to July, he would visit the hospital four to five times a week. [773] This he would do even on days when he was not teaching, because "it was a place I loved to go". [774] He would go to the "old dispensary" of the hospital to play table tennis. [775] He would visit Gérard Ntakirutimana and various hospital employees, including a relative. [776] Gérard Ntakirutimana was at the hospital and was working most of the time when the witness went to the hospital. [777] He would speak to the Accused about the condition of the hospital and the difficulties in treating patients. The witness attended Sabbath services at the église mère three times between mid-May and mid-July and saw Gérard and Elizaphan Ntakirutimana on all three occasions. He would visit Gérard Ntakirutimana at home and come across the Accused "on the road". He also saw Elizaphan Ntakirutimana and spoke with him on various occasions between mid-May and July. He claimed never to have seen either Accused go to Bisesero nor to have heard of them going to Bisesero. [778]

501. The Chamber finds Witness 23’s evidence to be exaggerated and unreliable. He gave no plausible explanation why he would visit the hospital with such frequency and provided no account of the times when the Accused themselves acknowledged leaving Mugonero.

502. Witness 7 testified that at the end of April she saw the two Accused and others returning in vehicles from Gishyita to the Complex. Also, at the end of that month the witness attended a Sabbath service at the Mugonero Adventist Church, at which Gérard Ntakirutimana spoke: "he told the population that what had happened was abominable and should not be repeated. He urged everyone who had hospital property, whether they had bought it or taken it, they should return it." [779] Witness 7 assisted in the hospital clean-up operations in the second week of May. During this restoration period, the witness would go to work in the morning and return home at noon or 1.00 p.m. She would see Gérard Ntakirutimana at the hospital every day. [780] Once the hospital re-opened and it was functioning, Witness 7 worked at the hospital six days per week, from mid-May until July. She would set off to work at 7.30 a.m., take a break at noon, return to work at 2.00 p.m., and finish her shift at 4.30 or 5.00 p.m. [781] She testified that from mid-May onwards there were prayer sessions every day at the hospital before work. About 30 to 40 persons attended, including, "quite often", Gérard Ntakirutimana. [782] During this period, according to the witness, the hospital would receive between 15 and 40 patients a day. Depending on their condition, some of the patients would be sent to see the Accused. From her office she could see the corridor leading to the office where the Accused would see his patients. [783] The witness claimed to have been aware of the Accused’s presence at the hospital during working hours and also to have known when he was absent. [784] "He left on one occasion … and he told us that he was going to the health office in order to ask for medical assistance. At another time he went to retrieve medication which the members of the population were selling at the Mugonero market. He also left another time and on that occasion I went with him. And he went to fetch money that BORNEFONDEN owed the hospital." [785] "I think that he was absent from the hospital … fewer than six times altogether, including the times I have already mentioned." [786] She never saw Gérard Ntakirutimana armed or associating with armed men. [787] As for Elizaphan Ntakirutimana, she saw him "almost every day" in the Field office during the period from May to July. [788] "Every day, each time that I went to work or when I came back from work I would pass by … the pastor’s office", and that is where she would see him. [789] She heard him preach at the église mère in Ngoma, [790] Gérard Ntakirutimana attended these services. Sabbath services would run from 8.00 a.m. to 1.00 or 2.00 p.m. [791] The witness never saw Elizaphan Ntakirutimana carrying arms or in the company of armed men. [792]

503. Witness 7 noted Gérard Ntakirutimana’s absence from the hospital "fewer than six times altogether". The witness accompanied the Accused on only one trip away from the hospital. The Chamber does not believe the witness’s testimony that the Accused was present at the hospital at all other times during working hours, or that the witness saw Elizaphan Ntakirutimana at the field office every day.

504. Witness 6 testified that he visited Mugonero Hospital on the first day it resumed operations, in the second half of May. "I remember that on the first day that I went back … I went to clean the pharmacy". [793] He was taken there by Gérard Ntakirutimana and would continue to see the Accused on those days (not specified) when the witness was engaged in cleaning the pharmacy. [794] A few days later, on a Wednesday, the Accused asked the witness to accompany him to a place known as Muramba to visit a person who reputedly sold medicines stolen from the hospital. [795] They did not find anything there, and went to Mugonero market: "There is some medication that we found there … We were looking for antibiotics and antimalarial tablets". [796] Witness 6 testified that he remained unemployed during the period from May to July. "At least three times a week" he would pass by the hospital to request work or to visit people he knew. On those days he would see Gérard Ntakirutimana going about his tasks at the hospital: "I said that I would see him, but that doesn’t mean that I would see him each time I went to the hospital. … most of the times when I went to the hospital I would see him. As for the workload of hospital staff: "There was a great deal of work to be done, and when I went to the hospital it wasn’t always possible for me to see the employees I was looking for. One could see many patients who were waiting to go into the consulting room … to be seen by [Gérard Ntakirutimana]." [797] The witness also had occasion to visit the field office where he assisted Kagaba, the nursing school director, to reorganize his office and school files; there he saw Elizaphan Ntakirutimana. [798] On several occasions he heard sounds of fighting from the direction of Bisesero. [799] He testified that he did not see or hear of either Accused going to Bisesero during the period from May to July. [800] Nor did he see or hear of their owning or carrying any kind of weapon or their mixing with armed men. [801]

505. Witness 6 testifies to seeing Gérard Ntakirutimana go about his tasks at the hospital on those days he saw him. The Chamber finds that his evidence does not significantly contribute to Elizaphan Ntakirutimana’s and Gérard Ntakirutimana’s alibi for the period.

506. The above-mentioned witnesses addressed the Mugonero period as a whole. In addition to their evidence, Witness 11, who was a senior health administrator in Kibuye prefecture in 1994, testified that he attended a meeting in Kibuye town on 3 May at "around 11 a.m., midday". The chairperson of the meeting was Prime Minister Kambanda. Gérard Ntakirutimana was present. [802] After the meeting, the witness and the Accused spoke for only a few minutes because people were waiting for the Accused to go back to Mugonero. Regarding the purpose of the meeting, the witness said: "The people were reminded how they should behave, they were not to tear one another apart, and that our enemy was not the Tutsi or the Hutu; rather, our enemy was the RPF collaborator." [803] Witness 11 testified to having met with the Accused again two or three weeks later: "He had come to talk to me about difficulties that he was facing … especially with regard to the equipment which had been stolen." The witness gave the Accused a microscope and sterilization materials. "I promised him that I would go and see him in the coming days to provide him with further assistance." [804] Witness 11 did so "ten or so days" later. [805] He maintained in his testimony that the date was sometime in May, at "the end of the second week or at the beginning of the third week." [806] "I took ten beds and ten mattresses, as well as medication … I did this because he had been courageous enough to want to have the hospital resume its operation in these difficult times." [807] The witness arrived at Mugonero Hospital around noon; Gérard Ntakirutimana, wearing a doctor’s coat and stethoscope, came out to greet him. They offloaded the provisions and the witness, who was in a hurry, returned "immediately" to Kibuye town. [808]

507. The evidence presented by Witness 11 establishes an alibi for Gérard Ntakirutimana for three to four hours on 3 May and corroborates Gérard Ntakirutimana’s testimony with regard to his efforts to restore the Hospital.

508. The Chamber will now turn to the evidence provided by Elizaphan and Gérard Ntakirutimana and their close family members about the whereabouts of the Accused during the Mugonero period. As stated above, the fact that both Accused chose to testify last in their defence has been taken into account by the Chamber when considering the weight of their evidence.

509. Witness Nataki, brother of Gérard Ntakirutimana, testified that he arrived in Mugonero around 10 May, brought by Gérard Ntakirutimana from Gikongoro. [809] He moved into his father’s house, where he remained until mid-July. [810] The house was located in the commercial centre of Ngoma, about 500 meters from where Gérard Ntakirutimana lived. [811] He saw his father at home on 10 May. [812] He further described Elizaphan Ntakirutimana’s daily activities and routine during the period from May to July. He testified to seeing his father "in the morning when he was leaving, and … [at] his place of work not everyday, but … very often around 11, 12". [813] Moreover, "almost everyday, I would go to the hospital to see my brother who was working over there and … sometimes go to my father’s office". [814] These were not pre-arranged or announced visits, for there was no telephone; he never found his father absent from his office. [815] On the Sabbath, Elizaphan Ntakirutimana preached "at church at Mugonero, but he was most of the time going in the churches surrounding Mugonero". [816] The witness’s father had a Toyota pickup which he "always" left at home on weekdays. He used the vehicle "mostly on Saturdays because he would go to the surrounding churches with other pastors to preach". [817] He visited the parishes of "Kigarama, Gishyita, [and] the surrounding parishes around Ngoma" (the witness could not recall the names of other parishes, or the number of parishes in the area). He testified that on those occasions his father left "around eight, nine in the morning" and returned "in the afternoon, like four, five". He estimated that his father spent a total of only two or three Saturdays in Mugonero between May and July. [818] On two occasions at the end of May or the beginning of June, the witness accompanied his father to Kibuye town to run errands. [819] Regarding Gérard Ntakirutimana, Witness Nataki "was seeing him everyday" during daytime at unannounced visits. [820] The witness testified that Gérard Ntakirutimana was always at the clinic on such occasions. [821] Sometimes the witness would have lunch with his brother or help him with clean-up activities. Gérard Ntakirutimana worked six days a week and attended church with his father on Saturdays. Witness Nataki testified that Gérard Ntakirutimana generally walked between home and work but occasionally used the hospital vehicle. The witness said that his brother, when treating patients with serious injuries, "would mostly try to stabilize them and take them to Kibuye". [822] The Accused transported the patients to town in a pickup. [823] Witness Nataki could not remember the number of such trips. [824] One day between mid-May and June, the witness accompanied his brother in the hospital vehicle to Kibuye town to collect medical supplies that the Red Cross was distributing. [825] He testified that he heard gunshots in Bisesero in May but did not know who were involved in the shooting. [826] He "never saw or heard" either Accused going into Bisesero in May-July. [827] He said that, as far as he knew, during the period from May to July, neither Accused owned a gun, and he had never seen either of them with a gun. Moreover, no one carrying arms ever visited Gérard Ntakirutimana, and his brother was never in the company of armed individuals. The witness had never seen either Accused attend any meetings with armed men. [828]

510. In the Chamber’s view, Witness Nataki went to great lengths to cast his father and brother in the best light. He was guarded and evasive on many matters. For example, the Chamber finds it difficult to believe that the witness knew nothing about who were involved in the shooting heard coming from the direction of Bisesero. The Chamber notes Witness Nataki’s testimony that his father was absent from Mugonero every Saturday except two or three, between May and July. The witness did not accompany his father on these trips. It is also evident from Witness Nataki’s testimony that his brother Gérard travelled on numerous occasions out of Mugonero and that the witness was not always aware of his brother’s destination (though he assumed it was Kibuye town). The witness’s testimony, therefore, does not provide an alibi for the times that Elizaphan Ntakirutimana and Gérard Ntakirutimana travelled out of Mugonero.

511. Royisi Nyirahakizimana testified that her husband, Elizaphan Ntakirutimana, remained at home on the first day of their return to Mugonero, as he had been feeling ill for some time. [829]

512. Once, in May, according to the witness, her husband travelled to Gihombo in Rwamatamu "to go and see what the situation was like there". He returned the same day. [830] The witness saw Elizaphan Ntakirutimana several times a day in May; when he left for work at 7.00 a.m.; when "he would come back to the house at around 8:00 in order to take some tea" and his medicine; at midday when he came home for lunch and rest before returning to the office at 2.00 p.m.; and when he finally returned home at 4.00 p.m. [831] She stated that Elizaphan Ntakirutimana returned home after church and remain there for the rest of the day. He "wouldn’t go anywhere on the Sabbath day, unless he was invited to a church in order to preach". [832] The witness testified that, except for two occasions, she saw her husband every day in June and July, as he followed his daily schedule, as described above for the month of May. On both occasions, the Accused left Mugonero with colleagues, to preach in other areas. On the first occasion, he travelled to Rubengera approximately in the middle of June. On the second occasion, in the first week of July, he went to Cyangugu where he spent the night. [833] The trips to Rwamatamu and Rubengera were on Saturdays, and to Cyangugu, on a workday. "Apart form those three trips, I do not think that he went far from the complex." And, with greater certainty: "I also know, myself that he never left the area apart from the occasions of trips that I mentioned". The witness said that Elizaphan Ntakirutimana’s practice was to inform her if he was about to travel. She had never seen the Accused return home looking as if he had been in the bush. [834]

513. The Chamber notes that the evidence presented by the Defence, considered above, suggests that Elizaphan Ntakirutimana left Mugonero during the Mugonero period many more times than his wife allowed in her testimony. It is noted, from her own evidence, that Elizaphan Ntakirutimana had not told her of his trip to Gishyita before he undertook the travel.

514. As for Gérard Ntakirutimana, Witness Nyirahakizimana testified that, starting from the last days of April, she saw him at his home "early in the morning or late after work … otherwise, I would see him before he would go to the hospital". [835] She testified that her son’s house was a 15-minute walk from her home. [836] During May she would see the Accused when she passed by his house, "when I went to the church very early in the mornings, and I would see him when I came back from the church at around seven … already dressed and … going to the hospital". [837] In May she attended church twice a week, on Thursdays and Saturdays. [838] She saw Gérard Ntakirutimana on the Sabbath for one hour of church service in the morning. His son came to her house on the Sabbath at around 2.00 p.m. to share a meal. [839] The witness also went to her son’s house approximately twice a week to visit or to collect vegetables. [840] Gérard Ntakirutimana stopped by her house twice a week in May. The witness also saw him on two unspecified days in May, when he went to pick up his children from her home. [841] He also came to her house two or three times in June to see his brother Jérôme. [842] The witness never went to Mugonero Hospital after returning from Gishyita, and therefore did not see Gérard Ntakirutimana at work. [843] She stated that the Accused left Mugonero once in June for "about an hour" with Jérôme and a plumber to repair water pipes. [844] The witness also referred to an occasion when he travelled with Jérôme to Kibuye town. She could not recall the precise date except that it was in June or July. [845] She testified that no one ever suggested to her that Gérard Ntakirutimana participated in violent acts. [846]

515. The Chamber notes that Royisi Nyirahakizimana appears to have had little direct knowledge of Gérard Ntakirutimana’s whereabouts, except when they met at their respective homes or at church. It is also noted that Gérard Ntakirutimana did not work on Saturdays and could not have been dressed to go to the hospital as assumed by his mother (see preceding paragraph).

516. Ann Nzahumunyurwa, the wife of Gérard Ntakirutimana, testified that on the day after their return to Mugonero, "a meeting was announced on the radio. It was scheduled to take place in Kibuye, and everybody who could make it to the place was invited." [847] Elizaphan Ntakirutimana and her husband both attended the meeting, according to the witness. [848] They returned from the meeting at around 3.00 p.m. on the same day. [849] On the first Sabbath of the month of May (which the witness agreed would have been 7 May), her husband made an appeal to church-goers to assist him in cleaning up the hospital. [850] During the clean-up period, which continued until the middle of May, Gérard Ntakirutimana was present at the hospital six days per week. From the middle of May "the hospital was functioning more or less as a dispensary". [851] The witness described Gérard Ntakirutimana’s routine from the middle of May onwards. [852]

517. Ann Nzahumunyurwa described her own work schedule for the period. She continued to work four days per week at the Esapan Secondary School, leaving home around 10.00 a.m., returning for lunch, then working again at Esapan until 5.30 p.m. [853] From time to time, during the period from May to July, Gérard Ntakirutimana would leave the hospital to acquire equipment and medicines. [854] The Accused regularly visited the market, which reopened about a week after his return to Mugonero. [855] The witness estimated that her husband went there twice in May and twice in June. [856] The Accused also travelled to Kibuye town at the end of May or the beginning of June, and to Cyangugu with Elizaphan Ntakirutimana in June, to acquire medicine, according to the witness. [857] Gérard Ntakirutimana left Mugonero also around the end of May to bring his brother Jérôme from Gikongoro. [858]

518. As for her father-in-law, Witness Nzahumunyurwa claimed to have seen him "each time he was going to work" during the period from May to July. [859] She claimed to have seen Elizaphan Ntakirutimana also every Sabbath during the same period at the Ngoma église mère. [860] "After the service on Sabbath day sometimes we…. went to visit Dr. Gérard’s parents." [861] The witness added that her husband never owned or carried a gun, and she had never seen her husband associate with armed men. [862]

519. As was the case with other Defence witnesses, Ann Nzahumunyurwa sought to establish that the daily life of the two Accused conformed to an unchanging pattern of work and church which unfolded according to a precise timetable. But also like other witnesses, Ann Nzahumunyurwa referred to exceptions to and deviations from the pattern. The Chamber observes that the cumulative effect of exceptions and deviations is such that finally the Accused’s alibi for the Mugonero period comes down to the following proposition: the two Accused were at their respective workplaces on weekdays, and at church on the Sabbath -- except when they were not. This does not amount to much of an alibi. In any case, Ann Nzahumunyurwa, on her own account, worked almost full-time at Esapan Secondary School, which was some distance from the Complex, for much of the Mugonero period, so she could have had little direct knowledge of the day-time activities of the two Accused. Moreover, other Defence witnesses contradict her contention that Elizaphan Ntakirutimana was in Mugonero every Sabbath during the period.

521. Elizaphan Ntakirutimana testified that the group that had sought shelter in Gishyita returned to Mugonero at around 10 a.m. on a day towards the end of April. On the day of his return, between 11.00 and 11.30 a.m., the Accused went to his office, which he found destroyed, then returned to his house, where he remained for the rest of the day. [863] He preached at the église mère on the last Sabbath of the month, i.e. on 30 April. [864] In the following week and a half, the Accused worked to refurbish the field office and collected and refiled scattered documents. [865] After 3 May, "I started to go back to work regularly … I would leave the house at 6:00 or 7:00 in the morning and when I got to the office. I would read my bible and I would pray alone. At 7 o’clock, the other workers would get to their offices, we would pray together. … I looked out for a mason and a carpenter so that they could come and repair the doors, the shelves. … At midday, I would go back to the house and I had medicines with me in my coat pocket. So, I would take my lunch, I would rest for some time, then I would go back to work." [866] "As I worked, I planned my activities, my visits to the districts. I would plan how I would collect money within the unions so that we could purchase furniture." The Accused would leave the field office in the afternoon between 4.30 and 5.00 p.m. He claimed he would work six days per week, from Sunday to Friday. [867]

522. While Elizaphan Ntakirutimana claimed to have been sick during the Gishyita and Mugonero periods, there is very little evidence to support this view. The Accused did not name his ailment. The Chamber observes that whatever the condition he might have had, it did not seem to prevent him, according to his own account, from going to work six times per week, or traveling to places outside Mugonero.

523. Elizaphan Ntakirutimana testified also in support of his co-Accused. He claimed to have seen Gérard Ntakirutimana very often between the end of April and mid-July: "I used to see him all the time when I was in the offices of the department heads or in front of the threshold of the office; I used to see him go to work or go back home. Sometimes he would come to the house in order to visit us. Sometimes his wife would prepare food and would bring the food home and all of us would share the meal." [868]

524. Elizaphan Ntakirutimana further testified that during the Mugonero period he would usually lead Sabbath services at the église mère in Ngoma. "Normally, [church services] would begin at 8 a.m. and we would finish at noon." [869] Sometime in May or June, the Accused went to Rubengera to visit a Seventh-Day Adventist Church and School. [870] On 3 May, the Accused, his son Gérard, and (possibly) Enos Kagaba, went to a meeting in Kibuye town, held at the office of the prefecture and attended by civil and political leaders in the area. The Accused left after about an hour because the balance of the meeting was restricted to government officials. [871] "Towards the end of May", the Accused, with Gérard Ntakirutimana, "went to Cyangugu to see … whether … pastor [Joseph Rukirumirami] was still alive. … I found him alive and I met other pastors there, too. I asked them about news from the native areas … I spent the night there and I came back the next morning." He also preached on that occasion and spoke "with leaders … about the new policies to be adopted." One morning in June, Elizaphan Ntakirutimana paid a short visit to Nyakanyinya Primary School, in Gihombo Hill, Rwamatamu commune, 17 kilometres from Mugonero, "to ask whether there were still orphans or workers who were still alive. … they responded in the negative. So, I went to [Abel Furere, the assistant bourgmestre]. He told me that he didn’t know either. I was in the company of Kagoyire … At noon, I was already back at Mugonero." [872] Towards the end of June, the Accused went for a second time to Cyangugu, with Pastor Gakwerere. There, he met with the SDA head of Weyeye district and the leaders he had seen during his last visit. The purpose of this trip was to enquire about the fate of pastors who had disappeared. He spent the night at the Inyenyeru Hotel in Cyangugu and returned to Ngoma the next day. In the beginning of July, Elizaphan Ntakirutimana departed Mugonero again in the company of Kagoyire, who had sought refuge at his home, to visit Mubuga Church in the Mpembe district, located approximately at 11 kilometres from Mugonero. His objective was to see whether Eram Nturagarira, whom he had appointed head of the SDA district that year, was still alive. "I did not find anyone alive in that place. … It had not been a prayer day. … it did not take me the whole day". [873] The Accused mentioned also going to "Mpembe which is about seven kilometres from Ngoma", where he preached either at the end of June or the beginning of July. He had gone there in the company, again, of Kagoyire who preached that day too. They left Mugonero at 8.00 a.m. and were back at around 1.00 p.m. [874]

525. The testimony of Elizaphan Ntakirutimana confirms the testimony of a number of other Defence witnesses, namely, that he was frequently absent from Mugonero during the Mugonero period of the alibi.

526. The last Defence witness, Gérard Ntakirutimana, described the state of the hospital upon his return from Gishyita: "I went to the hospital, and they had taken practically everything. It was … desolation. … they had destroyed almost all the buildings: the dispensary, the main building, the basement … [Windows] had been broken. There was no mattress remaining at the hospital. Everything that people could take with them easily … was taken away." [875] He began to restore the hospital: "I asked people who came to pray at the church to come and help us by cleaning the hospital … It was in the main church. I also made announcements that were posted up in places where many people could see them asking people to bring back stolen equipment". [876] "The clean-up of the hospital started at the beginning of the month of May and it continued, and towards the middle of the month of May we could receive patients at the dispensary, and then gradually we were able to organise a maternity wing". During this period, "I was there every day, except on one occasion when I went to Gikongoro in order to bring my younger brother, but most times I was there. From Monday to Friday I was there. … On Sundays … I was at my house. … in particular, I tried to repair my car that had been damaged." [877] Regular working hours were restored, the working day beginning with early prayers led by Pastor Ushizimpumu. However, during the period from May to July, "I was the only doctor there. I was always on call." And so, "after my work, I would go back home and I would stay at home with my wife. I had to be … at home so that anybody who needed me could find me there easily." [878]

527. Gérard Ntakirutimana further testified that in this period the hospital did not have drivers for the vehicles; "for example, if there was a case that needed surgery, I could not perform surgery. If there was a need for a Caesarean operation, I had to refer the case to Kibuye, and I had to, personally, drive the person to Kibuye". (He did not indicate how many times he had driven patients to Kibuye town.) Patients received at the hospital once operations resumed "were patients who had malaria, gastric problems, respiratory diseases, which were the normal diseases, except that at times we would also receive people who had been attacked". There were few hospital staff during the period from May to July. Besides the Accused, there were four nurses (compared with 15 nurses before) and some support staff. As to the number of patients received, he declared, "[A]t the beginning … we had very few patients. But towards the end, the number of patients increased. So I could say that, on average, we could receive 20, 30 patients a day." [879]

528. Gérard Ntakirutimana would attend church at Mugonero every Sabbath with Elizaphan Ntakirutimana – although the latter would at times "go to other churches which were near Mugonero". [880] He testified that he attended a meeting in Kibuye town on 3 May: "it was announced that representatives of departments, be they private, public or religious, should be there at the meeting. That is how I came to be able to go there with my father" – and with Enos Kagaba. The Accused departed Kibuye town after one or one and a half hours, while the meeting was still underway. [881] He testified, "[T]owards the middle of the month of May when the Mugonero market was reopened, I went there to buy medicine and then I was able to go to Kibuye in order to inform the health authorities there of the situation and the problems that we faced at Mugonero, and I asked them for assistance". [882] Gérard Ntakirutimana said he went to Cyangugu towards the end of June to acquire medicine; he spent a night there and returned to Mugonero the following day. [883]

529. The Chamber has considered all the alibi evidence introduced by the Defence, both witness-by-witness and as a whole. The Chamber has strong doubts about the sincerity of many Defence witnesses, who presented an implausibly sanitized account of the times, with life at Mugonero existing in a kind of vacuum, isolated from the events in Bisesero except for the occasional report of gunfire which disturbed the local peace. The Accused, their families, and friends apparently resumed the normalcy of their pre-April lives, going and coming from work at fixed hours, attending church regularly, never seeing or associating with any armed men, and almost never interacting with the governmental authorities, despite the massive attack at the Complex on 16 April, the subsequent fighting in the neighbouring district of Bisesero, the overall breakdown of law and order and the fact that Rwanda was at war.

530. In the end, the Chamber need only consider whether the alibi evidence creates a reasonable possibility that the Accused were not at locations at Murambi and Bisesero at certain times alleged by Prosecution witnesses, as summarized at the beginning of this discussion. The Chamber finds that no such reasonable possibility has been established. During the period in question, both Accused frequently travelled – in each other’s company, alone, or in the company of others – to destinations outside of Mugonero, about which there is little direct evidence other than the words of the Accused.

531. This event is not mentioned in the Prosecution Closing Brief, but was addressed in oral submissions. Witness GG testified that on Sunday, 17 April 1994, he saw Gérard Ntakirutimana among a group of attackers chasing Tutsi refugees down Murambi Hill. The Accused shot at Tutsi refugees with a firearm and killed Ignace Rugwizangoga. The Prosecution acknowledges that this incident was not mentioned in any of Witness GG’s prior statements but argues that the Tribunal places greater weight on in-court testimony than on prior statements. Under the circumstances, it is reasonable that investigators did not ask the witness about this incident. [884]

532. The Defence objects to the late notice of this allegation and argues that the shooting of Ignace Rugwizangoga was never referred to in Witness GG’s three prior statements. His evidence in this respect is uncorroborated. According to the Defence, the testimony of the witness was incredible and untruthful, as shown in Kayishema and Ruzindana. Further, Witness GG’s evidence was fabricated as part of a political campaign orchestrated against the Accused. [885] The Defence recalls that, prior to Witness GG’s cross-examination in the present case, it had moved for the striking of his testimony in its entirety but the motion was dismissed by the Chamber. [886]

533. The Chamber observes that during the examination-in-chief Witness GG testified about the removal of the roof at Murambi Church at the end of April (4.23 below) but did not mention the shooting of Ignace Rugwizangoga. Asked by the Prosecution whether he saw any of the Accused again in that area after the removal of the church roof the witness answered in the negative. [887] During cross-examination the witness confirmed that after 16 April he only saw Gérard Ntakirutimana on three occasions, once at Murambi, once at Mubuga and once at Muyira. Counsel for the Defence then put to Witness GG that he had never seen the Accused shoot someone named "Ignace". The witness answered that he saw Gérard Ntakirutimana shoot Ignace Rugwizangoga in Murambi on Sunday 17 April 1994, the day after the attack at the Complex. The witness was with others who left Mugonero Hospital at night and went to Murambi together. On the following day, Gérard Ntakirutimana came with some Interahamwe and chased them down Murambi hill. When Ignace Rugwizangoga tried to hide in the bush, Gérard Ntakirutimana tried to stop him and made him go backwards into a small forest, where he shot and killed him. [888]

534. The Chamber notes that the shooting of Ignace Rugwizangoga came into evidence because the Defence referred to a certain "Ignace" during its cross-examination. This individual was mentioned in Annex B of the Pre-trial Brief as part of Witness GG’s anticipated testimony (see 2.4). Under these circumstances, the Defence cannot complain of insufficient notice of the event.

535. The Chamber considers Witness GG as generally credible and rejects the Defence arguments relating to his testimony in Kayishema and Ruzindana. It also rejects the argument that the witness was part of a political campaign (see Discussion at paras. 233-238 under 3.8.3.(c) and II.7). In the Chamber’s view, his credibility is not affected by the fact that he only mentioned the shooting of Ignace Rugwizangoga during cross-examination. The examination-in-chief focused on the removal of the Murambi Church roof, an event which took place later, and the witness explained that he had forgotten the shooting. However, the Chamber notes that the evidence of Gérard Ntakirutimana’s alleged killing of Ignace Rugwizangoga was not led by the Prosecution and contained limited details about the conditions of observation during the alleged shooting and killing. Consequently, the Chamber is not satisfied beyond a reasonable doubt that on 17 April 1994 in Murambi, Gérard Ntakirutimana shot and killed Ignace Rugwizangoga.

4.5 Murambi Hill on 18 April and Gitwe Hill after 19 April, Possibly May 1994 (Witness FF)

536. In its Closing Brief the Prosecution recalls briefly that Witness FF sought refuge at Murambi Hill on 18 April and at Gitwe Hill on 19 April 1994. Its oral submissions focused on the witness’s subsequent observations of Gérard Ntakirutimana at Gitwe Hill and her credibility. [889]

537. The Defence contends generally that Witness FF is a participant in political campaign against both Accused and that her testimony was not credible. This specific event was not included in her first written statement or in her testimony in Musema. Only her second statement mentions any role by Gérard Ntakirutimana in Bisesero. According to her third statement the incident took place in June, whereas she testified that it occurred in May. The Defence submits that the witness’s testimony about Gitwe Hill was manufactured as it is improbable that the refugees would have acted as she claimed and exposed themselves to gunfire. Her version reveals an animus towards Gérard Ntakirutimana. [890]

538. Witness FF testified that around 18 April 1994, quite late in the morning, but before noon, she and other refugees were attacked at Murambi Hill by, amongst others, Gérard Ntakirutimana. He was accompanied by Mathias Ngirinshuti. The Accused arrived in the hospital vehicle, from which he alighted and walked towards a group of Interahamwe. The witness was a short distance away, hiding in a bush close to a water source. Gérard Ntakirutimana was wearing shorts and a long coat, and he was carrying a gun, strapped to his shoulder. Gérard Ntakirutimana, Mathias Ngirinshuti, and the many Interahamwe accompanying them, ran after Tutsi who were on the hill. The witness could hear gunshots, but could not identify the persons firing the guns. The witness remained in hiding until 4.00 p.m., when the attackers left. [891] It was suggested to her that the location of the water source she referred to was not at Murambi Hill but at Ruronzi. She clarified that these two areas were in the same place and that she meant the area of Murambi, which comprises Ruronzi. [892]

539. The following day, on 19 April 1994, Witness FF went to Gitwe Hill where she encountered another group of Tutsi refugees, some of whom were Mugonero Hospital employees who had survived the killings at the Complex. One day in April or possibly May 1994, Witness FF saw Gérard Ntakirutimana amongst attackers at Gitwe Hill. The witness said that he was using the vehicle that he normally drove. At the time of the attack, the witness and other refugees were higher up the hill than the Accused and the attackers. The former hospital employees called him and asked him: "You, the son of a pastor, you are associating with these killers?" Gérard Ntakirutimana said: "Stop; stop where you are and I am going to prove to you that I am the son of a pastor.". He then started to shoot at them. They ran and went around the hill. [893] Witness FF claimed to have been together with the person who said this to the Accused. The Accused was not the only one who had a gun; many other people were shooting. She could not identify who were shot as many people were shooting at the time. [894] Witness FF explained that she said in her statement of 10 April 1996 that she could not describe the attack because they were being attacked by different persons from different communes. [895] She could not be specific about the date of the Gitwe Hill attack, placing it sometime in April or May. [896] About the discrepancy between her testimony and her statement dated 15 November 1999, where she stated that the incident took place in June, she said that this was not what she told the investigators. [897]

540. The Chamber notes that the Indictment alleges that attacks were carried out in the area of Bisesero, wherein Murambi and Gitwe Hills are located, thereby putting the Defence on notice of these allegations. Moreover, it follows from the summary in Annex B that Witness FF observed several attacks between April and June 1994 in the hills of Bisesero, including in Murambi and Gitwe Hills where she saw Gérard Ntakirutimana. Some indications were also given in her written statements. In court, the witness was able to provide some details when asked questions but could not provide the date of her observation at Gitwe Hill. The Chamber considers that the Defence received sufficient notice of the allegation (see 2.4).

541. The Chamber has no basis to conclude that other witnesses testified about the two specific sightings of Gérard Ntakirutimana at Murambi and Gitwe Hills. Witness FF’s testimony is therefore uncorroborated. The Chamber found her credible in relation to events at the Mugonero Complex (see 3.4.3 (c) at paras. 127-130). In relation to Bisesero, the Chamber notes that already her first written statement of 10 October 1995 included Dr. Gérard among attackers in Bisesero ("I saw Dr. Gérard Ntakirutimana in the hills also.") Her second, third and fourth statements were more explicit. [898] Consequently, from October 1995 and in her testimony the witness has consistently stated that Gérard Ntakirutimana participated in Bisesero attacks and shot at people.

542. In the Chamber’s view, the information about Bisesero in Witness FF’s written statements and in her testimony does not indicate that she formed part of a campaign to ensure his conviction. On some occasions, the witness avoided incriminating him because she was uncertain as to whether she had sufficient basis to involve him. She appeared credible in the courtroom. The Chamber accepts her account of the remarks uttered by a refugee when he observed the son of a pastor among the attackers. Her explanations of minor differences between her testimony and her previous statements appeared plausible. [899] Consequently, the Chamber accepts Witness FF’s testimony about events in Bisesero.

543. The Chamber finds that on or about 18 April 1994 Gérard Ntakirutimana was with Interahamwe in Murambi Hill pursuing and attacking Tutsi refugees. The Chamber, also finds that in the last part of April or possibly in May, Gérard Ntakirutimana was with attackers in Gitwe Hill where he shot at refugees.

544. The Prosecution relies on Witness KK, who testified that a number of days after 17 April 1994 he saw Elizaphan and Gérard Ntakirutimana driving their vehicles in a convoy near Gitwe Hill. The vehicles transported attackers, who attacked Tutsi refugees. In its oral submissions the Prosecution argued that Witness KK was credible and that lack of references to Gérard Ntakirutimana in the witness’s written statement to investigators was of no significance. [900]

545. The Defence argues generally that Witness KK’s testimony was fabricated as part of a politically motivated campaign against the Accused. In relation to this specific event the Defence submits that his prior written statement does not mention that Gérard Ntakirutimana was present at any attack at Gitwe Hill. [901]

546. Witness KK testified that he arrived at Gitwe Hill early in the morning of 17 April 1994. He remained there for a "few days". The witness observed a daytime attack which occurred "a number of days" after his arrival in the area but it was "not yet the end of the month of April". He saw Elizaphan Ntakirutimana driving his Toyota Hilux; the hospital vehicle, a white Toyota, driven by Gérard Ntakirutimana; a Toyota owned by a Gishyita trader, driven by Ruzindana; and the Gishyita commune vehicle, driven by Charles Sikubwabo. The cars went up towards Murambi and parked about 100 metres from where Witness KK and the other refugees were. The witness said that all the vehicles were transporting Interahamwe and soldiers carrying guns, except for the communal vehicle which was transporting armed police officers and Interahamwe. He noticed that Elizaphan Ntakirutimana was wearing a black suit and was not carrying a weapon; Gérard Ntakirutimana was wearing white shorts, a white T-shirt, and a white hat, and was carrying a "big SMG gun". After the cars parked, "the occupants … continued to trek towards where we were". The attackers "surrounded us and started shooting on the men and women". This was before noon; the shooting intensified at around 12.30 p.m. It lasted for about three hours. At around 6.00 p.m., the witness saw the cars, with the attackers on board, leaving. [902] Questioned as to the lack of reference in his written statement to an incident at Murambi Hill involving Gérard Ntakirutimana, the witness responded: "That question was not put to me". [903]

547. Regarding the issue whether the Defence was given sufficient notice the Chamber recalls that the Bisesero Indictment does not mention this event specifically but states generally that the two Accused participated in attacks in the area of Bisesero during the months of April through June "almost on a daily basis" (see 2.4). According to the Prosecution’s Pre-trial Brief, Witness KK "saw pastor Ntakirutimana, Dr Gérard and Sikubwabo at the hills, in the company of attackers, almost daily." Witness KK’s only written statement to investigators, dated 15 November 1999, contains an explicit reference to an event at Kabatwa Hill (see 4.13) and a general statement that attackers, including the two Accused, would come to "the hills" every day. Gitwe Hill is not specifically referred to. However, the Defence knew before the trial started that Witness KK would allege that the Accused participated in several attacks. During his testimony the witness indicated the time and location of the attack at Gitwe Hill but he could only provide limited details. The Chamber has no information that the Prosecution was in possession of the information concerning the incident at Gitwe Hill before the trial started. In the Chamber’s view, this is an example where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity and considers that the Defence received sufficient notice.

548. Turning to the reliability of Witness KK’s testimony, the Chamber is convinced that he observed the attack at Gitwe Hill and the cars he mentioned. The question at issue is the identification of the two Accused. He explained that he observed them from his hiding place about 100 metres from where the cars were parked. Even if it is quite possible to recognize persons at such a distance there is a need to exercise caution, in particular because Witness KK’s testimony is uncorroborated. [904] Apart from the fact that it was broad daylight, there is no information about the conditions of observation, whether the witness had a clear line of sight, etc. The Chamber notes that he was able to describe the clothing of the two persons he described but this is not in itself sufficient. Later in his testimony, he stated that the attackers trekked towards him and that they surrounded them. However, it does not follow from the testimony that he observed the two Accused at a closer distance than 100 meters. He did not claim to have seen either of the Accused shooting at the refugees and did not otherwise specify the role that the Accused played in the attack after the vehicles had arrived. Lack of particulars such as these leaves room for doubt. The Chamber finds that the Prosecution has not proved beyond a reasonable doubt that Witness KK saw Elizaphan Ntakirutimana and Gérard Ntakirutimana during the attack at Gitwe Hill.

549. The Chamber adds that this finding does not affect the general credibility of Witness KK, which is also discussed elsewhere (see 3.8.3 (c) paras. 261-267, 3.11.3, 4.13.3 and 4.6.3). In particular, the Chamber does not consider it significant that he did not mention the specific attack at Gitwe Hill to the investigators. It follows generally from his written statement that the witness observed numerous attacks in the Bisesero area and that he saw Elizaphan and Gérard Ntakirutimana on many occasions. [905]

550. The testimony of Witness HH concerning the two Accused’s alleged role at Gitwe Primary School is not mentioned in the Prosecution’s Closing Brief, which contains only a brief reference to the witness spending the nights at the school together with other refugees. Its oral submissions contained no reference to this school. However, the Prosecution emphasized that it stands by everything the Prosecution witnesses have said and that everything that is in the transcripts is part of its case, irrespective of whether an event has been mentioned in its Closing Brief or oral submissions, which only include a selection of the evidence. [906]

551. The Defence submits, in general, that Witness HH is not credible and that his testimony against the Accused is part of a political campaign mounted against them. His credibility is affected in relation to all Bisesero and Murambi related allegations. In respect of the alleged attack at Gitwe, the Defence submits that it is not credible that, more than six years after the events, the witness could specify the name of a victim allegedly shot by Gérard Ntakirutimana, namely Esdras who was the son of pastor Munyandinda. The witness’ prior statement to investigators contradicts this allegation. Witness HH’s testimony is uncorroborated. [907]

552. Witness HH arrived at Gitwe hill in the morning of 17 April and stayed there until the end of May. Refugees would overnight in the classrooms of Gitwe primary school, located at the lower part of the hill; at other times they hid in the forests. Some refugees stayed with local inhabitants. Witness HH claimed to have seen the two Accused at Gitwe Hill on an unspecified day towards the end of April or beginning of May. There were many refugees at the school at the time. The two Accused came from the direction of Murambi Hill. They did not drive all the way to the school, rather they parked their cars in a valley which the witness could not see, and ascended on foot. [908] Other attackers involved in this incident came from the secteurs of Muramba, Mpembe, and Gishyita, and from Gisovu commune. The witness recognized the following persons: Sebahire, a policeman from Gisovu; Musema, director of a factory; Ernest, a teacher; the presiding judge of the Gishyita court; Amiel Nyirnkindi; and Ngerageze, the assistant bourgmestre. [909]

553. The witness testified that when he and the other refugees saw the attackers approach, they left the school, ascended the hill, and prepared themselves for the attack. The attackers were carrying clubs, machetes, and other traditional weapons; some were carrying firearms. The refugees threw stones and parts of trees at them; a few of the refugees had spears and sickles. In the course of fighting, the refugees were driven further up the hill; "eventually, they removed us from that place". [910] Gérard Ntakirutimana was among the advancing attackers. [911] Elizaphan Ntakirutimana "was far behind the others". The witness did not claim to have seen the latter reach the location of the fighting, nor did he see him kill anybody. [912]

554. Witness HH alleged that Gérard Ntakirutimana shot one Esdras, a Tutsi aged 35 to 40 years, who worked at a nutritional centre and whose father was Pastor Munyandinda. [913] He did not know Esdras’s surname. The incident occurred sometime before 1.00 p.m. The witness said that Gérard Ntakirutimana had used a "big gun", larger than the gun he had seen him use at the Mugonero Complex. Witness HH was above a cliff, about eight to ten metres from Gérard Ntakirutimana and less than four metres from Esdras. The witness said that when the Accused shot Esdras, they were facing each other and there was a distance of eight to ten metres between them. [914] The refugees were still fighting the attackers, and not yet fleeing. When Esdras was shot, he had been throwing stones. The witness could not state how many shots had been fired by the Accused at Esdras. Upon seeing Esdras fall, Witness HH ran away. "All of us fled and he [Gérard Ntakirutimana] continued firing at us". There were other people in the vicinity at the time, but it would have been "impossible for anybody else to shoot him [Esdras] without me seeing him". [915]

555. Witness HH explained the absence of reference to the killing of Esdras in his written statement of 2 April 1996 and his reconfirmation statement of 25 July 2001: "I know that I spoke about Esdras. However, I’m not sure whether I mentioned that name in the first or the second statement. … it should be pointed out that the statements may vary depending on the questions put to me." [916] The witness also said: "It is also possible that such a question was put to me, but I was taken by surprise to the point that I did not give such information." [917]

556. The Chamber observes that Witness HH did not see Elizaphan Ntakirutimana participate in the attack. His only observation of the Accused was before the attack was underway. The witness merely explained that the Accused was "far behind" the attackers. There is no information about the distance between the witness and the Accused, whether he had a clear line of sight, etc. This testimony is uncorroborated. Consequently, the Chamber does not find that the Prosecution has established beyond a reasonable doubt that Elizaphan Ntakirutimana was present during this attack in the vicinity of Gitwe Primary School. This finding does not reduce the credibility of Witness HH. [918]

557. Regarding the issue whether Gérard Ntakirutimana was given sufficient notice, the Chamber recalls that the Bisesero Indictment does not mention this event specifically but states generally that the two Accused participated in almost daily attacks in the area of Bisesero during the months of April through June (see 2.4). The summary of Witness HH’s testimony in Annex B of the Pre-trial Brief does not refer to this event at Gitwe Hill. However, Witness HH’s written statement to investigators, dated 2 April 1996, contains a reference to three attacks at Gitwe after 20 April 1994 and gives a description of the same attack as the one testified to by the witness during the trial. According to the statement, Gérard Ntakirutimana had a gun in his hand during the attack, and he was among the persons in Gitwe "who chased after us to kill us". This statement was disclosed to the Defence on 10 April 2000 and on 29 August 2000 in redacted and unredacted form respectively.

558. Consequently, the Defence knew well before the commencement of the trial that Witness HH would allege that, about the end of April 1994, Gérard Ntakirutimana participated in an attack at Gitwe Hill where people were killed. During his testimony the witness was not able to provide more precise information about the location and time of the attack. The important new element was his reference to a specific victim, Esdras. This information was not available to the Prosecution before the witness gave his testimony. Under these circumstances, the Chamber finds it difficult to disregard the evidence about Gérard Ntakirutimana’s participation in the attack. There was no transformation of the Prosecution’s case. In the Chamber’s view, this is an example of a situation where the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of the victims and the dates of the commission of the crime. Consequently, the Chamber considers that the Defence received sufficient notice of Gérard Ntakirutimana’s participation in the attack and that it is not precluded from finding that he killed one particular individual if the evidence is considered credible.

559. The Chamber considers Witness HH as generally credible (see 3.8.3 (c) paras 253-260, 3.11.3 paras. 370-373, 3.14.3 and 4.21.3) and does not accept the Defence submission that he formed part of a campaign against the Accused. In the present context, the Chamber accepts that Witness HH saw Gérard Ntakirutimana participate in the attack. The witness observed him at a short distance and in broad daylight. His testimony was in conformity with his statement of 2 April 1996, two years after the event. As for the shooting and killing of Esdras, the Chamber is aware that the statement contains the formulation that "it was difficult to see who killed who". However, this general sentence follows immediately after a passage specifically about the Accused, who "was among the persons who chased after us to kill us". This is in conformity with his testimony. Consequently, the Chamber finds that during the attack Gérard Ntakirutimana shot and killed one Esdras.

560. The Prosecution’s Closing Brief does not refer to Witness DD’s testimony about Gérard Ntakirutimana’s alleged role during an attack at Gitwe Hill in the first half of May 1994. In its oral submissions the Prosecution mentioned this event, which includes the killing of two persons, as an example of evidence which was part and parcel of the Indictment and could be relied upon at trial notwithstanding the Appeals Chamber’s finding in Kupreskic. [919]

561. The Defence opposes the lack of notice of these allegations and notes that this issue was raised at trial, only one day after the Prosecution disclosed Witness DD’s reconfirmation statement of 22 October 2001 containing the new allegations.

562. According to the Defence, Witness DD is not credible. The radical changes in the three written statements given before his testimony makes it unbelievable. Particularly striking were the variations concerning his allegations, not mentioned in the first statement, that his wife, children, uncle and a child were killed at Mubuga Primary School, first by one Accused, then by the other. In relation to the present event, the Defence submits that the Chamber should not rely on his evidence that Gérard Ntakirutimana killed two persons at Gitwe hill, an allegation which was not mentioned in his first statement. [920]

563. Witness DD referred to an attack in the vicinity of Gitwe Primary School in the beginning of May and in any case before 15 May 1994. He testified that he saw Gérard Ntakirutimana in the company of many persons "armed with machetes, clubs and who were doing their job". The Accused was leading the attack "because he was … physically in front of the others". He was the only one with a gun. [921] He was wearing white shorts. [922] Witness DD alleged that the Accused shot at one Pastor Munyandinda, a Tutsi. "Munyandinda was in front of him. He was certainly not far from him. And he was the very first person that he dealt with". Munyandinda was going up the hill when he encountered the Accused, who was heading down. Munyandinda’s daughter, Erina, who was proximate to her father, was allegedly also "attacked" by the Accused (the witness did not specify what was done to Erina). [923] The witness claimed to have observed these events from a distance of about six metres. He did not know if Gérard Ntakirutimana had attacked anyone else that day. He fled, later returning to the scene of the attack, where he found many dead. [924]

564. Neither the Indictment nor the Prosecution’s Pre-trial Brief make reference to the alleged attack at Gitwe school or the assault on Pastor Munyandinda and his daughter Erina. Annex B of the Pre-trial Brief, in summarizing Witness DD’s expected evidence, states only that the witness sought refuge at the Gitwe Adventist Church, where he allegedly saw Elizaphan Ntakirutimana direct the removal of the church’s roof. There is no mention of Gérard Ntakirutimana in connection with Bisesero. This is true also of the witness’s statement of 11 November 1999. The only place where the relevant in-court allegation is forecast is in Witness DD’s reconfirmation statement of 28 July 2001. There he claims to have seen Gérard Ntakirutimana, in the vicinity of Gitwe Primary School, shoot and kill Pastor Munyandinda and his daughter. [925] This statement was disclosed to the Defence on 16 September 2001.

565. The Chamber observes that when the Prosecution received the reconfirmation statement of 28 July 2001 it had available new information about a specific event involving two identified victims at a specific location. The trial started on 18 September 2001. Consequently, the Prosecution was in a position to provide details by filing a motion for the amendment of the Indictment, which is the primary accusatory instrument (see generally 2.4). Moreover, Annex B of the Pre-trial Brief, which was filed on 15 August 2001, approximately three weeks after the reconfirmation statement was taken, makes no reference to Witness DD’s allegations concerning Gitwe Primary School, even though that statement not only reconfirmed but also supplemented the earlier statement of 11 November 1999, in which there was no mention of Gérard Ntakirutimana in the area of Bisesero. Finally, the Chamber notes that the allegations in question were absent also from the Prosecution’s opening statement. Under these circumstances, the Chamber does not find that Gérard Ntakirutimana received sufficient notice about the allegations against him relating to an attack in early May 1994 in the vicinity of Gitwe Primary School.

566. The Prosecution did not refer specifically to Witness XX’s allegation in its Closing Brief or oral submission but stated generally that it stands by the testimonies of the Prosecution witnesses. [926]

567. The Defence submits that Witness XX’s claims concerning the two Accused are minor, vague and not believable. She did not see them at the Mugonero Complex on 16 April 1994 and her testimony about them at Bisesero is negligible, if believed. She formed part of the campaign against the Accused. There were several inconsistencies between her prior statements and her testimony at trial. Of all the witnesses who testified, she evidenced the effects of trauma most dramatically. According to the Defence, this makes the reliability of her evidence very difficult to evaluate. Her observation of the Accused from the hill opposite Gitwe Hill is not reliable. [927]

568. Witness XX testified that, one morning in the middle of May 1994, she observed both Accused among attackers at the occasion of one of the most serious attacks she had survived in Bisesero. At the time of the sighting, she was at the top of a hill opposite Gitwe Hill with other Tutsi refugees. As was usual, they stood there to see where attackers were coming from. At around 8.00 a.m. that morning, she saw from a distance both Accused, on the road, alight from the vehicle they had come in. The Accused were with a group of many attackers who had been brought in many vehicles or had come on foot. Among them were many Interahamwes. The witness recognised one Ngabonzima and "other regional authorities", such as conseiller Mika Muhimana and bourgmestre Charles Sikubwabo. Among the vehicles, she recognized the white hospital pick-up with large black lettering on the side, in which, she specified, Gérard Ntakirutimana "usually came to the attacks with". She also saw the vehicle which belonged to a trader which had been seized by the attackers.

569. As far as Witness XX could tell, Élizaphan Ntakirutimana was not armed, but Gérard Ntakirutimana was carrying a long gun on his shoulder. She specified that all the other attackers were armed and that all the "important" persons were carrying guns. The attackers were holding a kind of meeting prior to the attack. The witness observed that scene for 1 to 5 minutes prior to hiding in a marshy area immediately after hearing the first gunshots. She remained in hiding during the rest of the attack, which ended at about 5.00 p.m that day. [928]

570. The Chamber is convinced that Witness XX is a survivor who witnessed several attacks in the Bisesero area. It also accepts that one morning in the middle of May 1994 she observed vehicles arriving with attackers. The crucial question is the reliability of the witness’s alleged observation of the two Accused. It follows from her testimony that she did not see them during the attack but only in connection with the arrival of the vehicles. The witness estimated the distance to be "not very far" and "quite close"; it was a distance at which it was possible to recognize a person. Asked to be more precise she said that "as the crows flies it would be about one kilometre" or 1,000 meters.

571. The Chamber is aware that because of the density of hills in the area of Bisesero it may be possible to observe events at another hill. It also realizes that Witness XX did not purport to give precise information about the distance between her and the two Accused. However, her estimate of about one kilometer creates a doubt as to the reliability of her observation, even if she knew Elizaphan and Gérard Ntakirutimana well. She could not describe their clothes but recalled that Gérard Ntakirutimana had a long gun. This is a not a distinctive feature as several persons had weapons during the attack. Moreover, it is not quite clear for how long she was able to observe the persons involved. The witness testimony, that it was "for approximately between one to five minutes", appears vague. Her observation was made under stressful conditions, immediately before an attack, and she had already experienced many attacks. Her testimony concerning this event is uncorroborated. Under these circumstances the Chamber does not find, beyond a reasonable doubt, that the Witness XX observed the two Accused at Gitwe Hill in the middle of May 1994.

572. The Chamber adds that its finding is based on doubts about Witness XX’s ability to recognize the two Accused at the indicated distance and does not affect her overall credibility, which is discussed elsewhere.

573. The Prosecution relies on the testimony of Witness SS, who stated that he saw Elizaphan Ntakirutimana among attackers at Murambi Hill between May and June 1994. The Prosecution’s Closing Brief and oral submissions do not refer to this event.

574. As mentioned previously, the Defence disputes the general credibility of Witness SS. This specific event at Murambi Hill is not mentioned in the Defence Closing Brief or in its oral submissions. [929] However, it follows from the cross-examination of Witness SS that the Defence disputes also this part of his testimony (see below).

575. Witness SS declared that he saw Élizaphan Ntakirutimana between May and June 1994, at Murambi Hill. The witness was among a group of Tutsi refugees on the run. They realized that the road was blocked and decided to head for Lake Kivu to "commit suicide". While the group was about to cross a road in the Murambi area, the witness saw Élizaphan Ntakirutimana’s vehicle at a distance of eight metres. According to the witness, the Accused saw their group, stopped his vehicle and alighted. Witness SS saw him clearly. There were many attackers with him, some carrying guns and others armed with machetes. They started chasing the Tutsi refugees while singing songs in Kinyarwanda about exterminating the Tutsi. After about a minute, as the witness was fleeing, he turned around. He was still very close to the road. He saw Élizaphan Ntakirutimana standing close to his vehicle parked beside the road. He was able to see his face. Among the attackers that day, he recognised, besides the Accused, one Samuel, whom he described as a Hutu and the son of one Serinda. At one point, the attackers started shooting on the fleeing refugees. The witness heard a number of them cry out. He saw the attackers go up to them and strike them with machetes. There were cries and victims died. The witness hid in a valley and did not see Elizaphan Ntakirutimana during that attack. However, he heard attackers nearby saying that Pastor Ntakirutimana had said that God had ordered that the Tutsi should be killed and exterminated. [930]

576. The Chamber notes that this particular event is not mentioned in the Indictment or in the Pre-trial Brief. However, the summary of Witness SS’s testimony in Annex B to the Brief, filed on 15 August 2000, contains a reference to this event. The Chamber notes that the event was also described in his statement to investigators of 18 December 2000. It is the view of the Chamber that the Defence had sufficient notice of this allegation.

577. As mentioned above, the Chamber found Witness SS to be generally credible. [931] The observational conditions were good. It was daylight, the witness first saw the Accused parking his car while and alight from it. The Accused stood approximately eight meters away from him. From that distance the witness also saw a group of armed individuals alight from Elizaphan Ntakirutimana’s vehicle, thus leaving no doubt as to his involvement in the transportation of these attackers. The Chamber also observes that the witness heard the attackers, who had been transported by the Accused, sang songs about exterminating the Tutsi while chasing the group of refugees. The witness then caught sight of the Accused standing by his car about a minute after he started running to escape the attackers who were by then chasing him and other refugees, while looking back at them when he was still close to the road. The witness saw the Accused’s face. The Chamber observes that Witness SS, who was a student at the ESI Nursing School, knew the Accused. [932]

578. During cross-examination, the Defence put to Witness SS that, although he declared that he was close-by the road where Elizaphan Ntakirutimana parked his vehicle, he did not hear the vehicle approaching. The witness replied that this was because he was walking amidst a thick banana plantation, on dry banana tree leaves, the noise of his steps covering that of the car. The Chamber accepts this account as well as his explanation that he did not mention this fact during the Prosecution’s direct examination because that question was not put to him. [933] However, the Chamber does not rely on the witness’s account that Elizaphan Ntakirutimana had uttered words to the effect that God ordered that the Tutsi should be killed and exterminated. The witness did not hear the Accused make such a remark.

579. The testimony of Witness SS is uncorroborated. However, he appeared consistent throughout his testimony about this event, which was in conformity with his statement to investigators of 18 December 2000. The fact that this statement was given more than six years after the events does not reduce his credibility. Consequently, the Chamber finds that one day in May or June 1994, Elizaphan Ntakirutimana transported armed attackers who were chasing Tutsi survivors at Murambi Hill.

580. It is the Prosecution’s case that Witness FF saw Gérard Ntakirutimana transport attackers in the hospital vehicle along the road that runs from Mugonero Hospital through Kidashya Hills to Gisovu. When he saw Tutsi refugees he stopped the vehicle to chase and shoot at them. In the Prosecution’s view the witness is credible even if she did not mention this specific attack in any of her previous statements to investigators. [934]

581. The Defence disputes the general credibility of Witness FF and argues that she was part of a propaganda campaign against both Accused. In relation to this event the Defence points out that it was not included in any of her statements and that she had not mentioned being at Kidashya Hill when she testified in Musema. [935]

582. Witness FF testified that she remained in Murambi and Gitwe for about two days but did not remember the month in which she arrived in the Bisesero hills. [936] Before arriving in Bisesero, sometime between April and June 1994, she saw Gérard Ntakirutimana at Kidashya Hill, Gitabura secteur, where there were many people seeking refuge on all the different hills. From Kidashya Hill, she saw Gérard Ntakirutimana’s vehicle ascending the road leading to Mugonero Hospital and Gisovu through Kidashya Hill. She saw him carrying a gun. Among other persons in the company of the Accused the witness recognised Mathias Ngirinshuti, chief of personnel at the Mugonero Hospital, and one Ndayisaba, who was inspector at Mugonero Primary School. The Interahamwe peasants were armed with spears, machetes, clubs, sharpened bamboo sticks and firearms. Whenever they saw a group of Tutsi, they would stop the vehicle, and would chase the Tutsi and shoot at them. She explained that the hills were close enough to each other so that she could recognize him on the next hill. According to the witness, Gérard Ntakirutimana was dressed in a long coat and shorts. [937]

583. The Chamber notes that the Indictment alleges that Gérard Ntakirutimana participated in attacks in the area of Bisesero, in which Kidashya Hill is located. That hill is not explicitly mentioned in the Indictment, in the Pre-trial Brief or in the summary of Witness FF’s evidence in the annex to that Brief. Four of Witness FF’s five statements to investigators placed Gérard Ntakirutimana in Bisesero, participating in attacks. The precise reference to Kidashya Hill appeared in Witness FF’s testimony and was not available to the Prosecution before the trial started. The Chamber finds that Defence had sufficient notice of the allegation in view of the sheer scale of killings in the hills of Bisesero.

584. The Chamber considers Witness FF generally credible. In relation to the present event, she was able to describe the clothes of Gérard Ntakirutimana and identify two persons with whom he arrived. She was not able to give precise information about distance between her and the Accused but stressed that she was at a distance such that one would be able to recognize individuals. They were in an area of small hills where it was possible to recognize persons on a neighbouring hill. Witness FF’s testimony is plausible to the Chamber.

585. It is true, as argued by the Defence, that Witness FF did not mention Kidashya Hill specifically in any of her prior written statements. [938] However, as mentioned above she told investigators in four of her statements that she saw Gérard Ntakirutimana on several occasions in Bisesero. The Chamber considers her identification of Kidashya Hill as a result of more extensive and precise questioning during her testimony. The fact that she said in one of her statements that it was difficult for her to describe one specific attack in Bisesero does not affect her credibility. The witness explained that the investigators did not ask her specifically about the location of the attack.

586. Consequently, the Chamber finds that sometime between April and June 1994, Gérard Ntakirutimana was in Kidashya Hill transporting armed attackers, and that he participated in chasing and shooting at Tutsi refugees in the hills.

[632] See, in particular, T. 18 September 2001 pp. 234, 251.

[633] See map was provided as Prosecution Exhibit P7, see Part I, Map of the Bisesero Area (1988). Most of the information in this para.comes from Prosecution Witness Tony Lucassen, ICTR investigator, see T. 18 September 2001 pp. 234-248, 255, 257; T. 19 September 2001 pp. 23-24, 29-30.

[634] T. 18 September 2001 pp. 90-92, 138.

[638] T. 18 September 2001 pp. 150, 237; T. 19 September pp. 17, 23.

[640] T. 18 September 2001 p. 260; T. 19 September 2001 pp. 25-26.

[643] T. 19 September 2001 p. 120; T. 20 September 2001 pp. 149-150; T. 26 September 2001 p. 29; T. 2 October 2001 p. 32; T. 4 October 2001 pp. 4-5; T. 22 October 2001 pp. 37-38; T. 23 October 2001 p. 120; T. 30 October 2001 p. 122.

[644] Witnesses XX and Witnesses FF even mentioned the number of 30,000 and 50,000, respectively, see T. 22 October 2001 p. 12 and T. 28 September 2001 p. 71.

[645] T. 4 October 2001 pp. 16, 18; T. 3 October 2001 p. 16; T. 25 September 2001 pp. 6, 13; T. 26 September 2001 p. 30; T. 28 September 2001 pp. 66, 69, 71.

[646] T. 22 October 2001 pp. 38, 41-42, 108; T. 26 September 2001 pp. 49-50.

[647] Bisesero survivors testified upon attacks which claimed “many” lives of refugees at Gitwe Primary School in early May 1994 (DD, T. 23 October 2001 p. 138), at Mubuga Primary School at the end of June 1994 (SS, T. 30 October 2001 pp. 140-142); at Rwiramba, nearby Muyira Hill, in mid-May 1994 (GG, T. 24 September 2001 p. 30); at Muyira Hill on an unspecified day (FF, T. 28 September 2001 p. 73), during night attacks against houses in Bisesero where Tutsi refugees were seeking shelter (YY, T. 2 October 2001 pp. 102, 104). Asked whether he saw the bodies of the refugees who died during an attack at Muyira Hill, Witness YY specified that they looked like “grass on the hills” (T. 2 October 2001 p. 53, read in the light of T. in French at p. 63: “lorsqu'on regardait les corps, on semblait regarder les herbes sur la colline, dans la brousse”).

[648] T. 26 September 2001 pp. 34, 42, 58; T. 28 September 2001 pp. 66-67; T. 4 October 2001 pp. 8-10; T. 22 October 2001 pp. 18-20; T. 30 October 2001 p. 132.

[649] T. 26 September 2001 p. 31; T. 4 October 2001 pp. 8-10; T. 22 October 2001 p. 14.

[650] Kayishema and Ruzindana (TC) para. 471; Musema (TC) para. 363.

[651] See, on the context and general allegations, Prosecution Closing Brief at pp. 86-90.

[660] See generally Prosecution’s Closing Brief paras. 563-589.

[664] Id. paras. 541, 594-598, 604, 608, 612, 614.

[665] Id. paras. 618, 620, 626, 629, 631, 650, 651, 691, 696-699, 714-723, 727, 732.

[666] Id. paras. 619, 621, 632, 636, 639, 667, 670, 730, 735, 749.

[667] Id. paras. 633, 648, 660, 737-739, 745,754

[670] Id. para. 622; T. 21 August 2002 pp. 93-97 and 137-146.

[671] See, for example, Kunarac (TC) paras. 463, 625; Kayishema and Ruzindana (AC) para. 106; Musema (TC) para. 200; Vasiljevic (TC) para. 15.

[673] T. 16 April 2002 pp. 126-127, 133; T. 17 April 2002 p. 71-74.

[679] T. 13 February 2002 pp. 152-153; T. 14 February 2002 pp. 33-37, 56.

[680] T. 13 February 2002 pp. 154-155; T. 14 February 2002 p. 40.

[682] Id. p. 163; T. 14 February 2002 p. 40

[684] T. 12 February 2002 pp. 43-48, 61, 63, 216-218.

[686] T. 24 April 2002 pp. 102-103, 107-112; T. 25 April 2002 pp. 25.

[687] T. 13 February 2002 pp. 24-34, 60-68.

[689] Id. pp. 42-47; Defence exhibit 1D16.

[695] Id. pp. 118-119; T. 10 May 2002 pp. 84-85.

[700] Id. p. 135; T. 10 May 2002 pp. 86-88.

[701] T. 9 May 2002 p. 138; T. 10 May 2002 pp. 88-89.

[702] T. 7 February 2002 pp. 94, 100-101; T. 8 February 2002 p. 65.

[710] Id. pp. 38-43, 87-88; Prosecution exhibits P35 and P36.

[713] Id. pp. 142-143; T. 17 April 2002 p. 33.

[715] Id. p. 151; T. 17 April 2002 pp. 42-43, 60-61.

[716] T. 16 April 2002 p. 152; T. 17 April 2002 pp. 81-83.

[719] Id. p. 150; T. 17 April 2002 pp. 40-42.

[728] Id. pp. 133-134; T. 3 May 2002 p. 62.

[731] T. 30 April 2002 pp. 167-168, 172-173.

[734] Id. p. 181; (“je ne le voyais qu’une seule fois par semaine, ou même, quelquefois, il y a des semaines qui se passaient sans que je ne l’ai vu”; p. 196).

[737] T. 13 February 2002 p. 168; see also Id. p. 167.

[738] Id. pp. 173-174; T. 14 February 2002 pp. 47-48.

[741] T. 13 February 2002 p. 172; see also T. 14 February 2002 pp. 44-45.

[744] T. 29 April 2002 pp. 29-32, 36, 39-40; T. 30 April 2002 p. 48, Defence exhibit 2D36.

[747] T. 14 February2002 pp. 81, 83-86, 151, 153, 171.

[755] T. 25 April 2002 pp. 88, 110-113, 157.

[759] T. 23 April 2002 pp. 91-92, 95-96, 108, 120.

[771] Id. pp. 129-131, 171-173; T. 24 April 2002 pp. 18-19.

[772] T. 22 April 2002 pp. 87-88, 118-119, 125.

[776] Id. pp. 70-73; Defence exhibits 2D40, 2D34.

[796] Id. p. 131; see also Id. pp. 129-130.

[798] Id. pp. 143-145; T. 25 April 2002 p. 17.

[820] Id. p. 170, 255; T. 6 February 2002 p. 18.

[848] Id. pp. 2-3; T. 15 April 2002 p. 18.

[850] T. 11 April 2002 pp. 156-158, 162-163.

[852] Id. pp. 170-171, 172-174, T.12 April 2002 pp 19-20.

[857] T. 11 April 2002 pp. 156-158, 175; T. 15 April 2002 pp. 17-18.

[861] Id. p. 12; T. 15 April 2002 pp. 20-23.

[871] Id. pp. 33, 34, 144, 145; T. 8 May 2002 pp. 32-36.

[885] Defence Closing Brief pp. pp. 91-98, in particular p. 96; T. 22 August 2002 pp. 155-157.

[889] Prosecution Closing Brief paras. 310 and 323; T. 21 August 2002 pp. 104-111.

[890] Defence Closing Brief pp. 55-63, in particular pp. 60-61.

[893] T. 28 September 2001 pp. 56-60; T. 1 October 2001 pp. 45-48.

[898] According to Witness FF’s second statement of 14 November 1995, Gérard Ntakirutimana “had a gun and was shooting people from the top of a hill” in the company of, among others, Mathias Ngirinshuti. The witness “saw him several times”. It follows from her third statement of 10 April 1996 that she saw Gérard Ntakirutimana in “several attacks in Bisesero. He was always armed with a rifle and in company with Mathias Ngirinshuti”, and she saw him in “one attack actually shooting at people”. The fourth statement of 21 October 1999, which provides most details, refers to two Bisesero events, one in Murambi and one close to “spring of water” near Gitwe Primary School Gitwe (including the exchange between the Accused and the refugees about him being the son of a pastor).

[899] See, for instance, above about her fourth statement, which dated the Gitwe Hill event to June and her explanation of why in her third statement she said that she could not describe one specific attack.

[900] T. 21 August 2002 pp. 111-112. The event was not included in the Prosecution’s Closing Brief.

[901] Defence Closing Brief pp. 144-153, in particular p. 151.

[904] See generally Kupreskic (AC) paras. 33-41.

[905] The statement contains the following general formulation: “Every day the Interahamwe would come to the hills around 7 a.m. or 8 a.m. Our daily routine was to run from hill to hill to avoid being captured. Those that were caught were killed immediately. Mika Muhimana, Charles Sikubwabo , Pastor Ntakirutimana and Dr. Ntakirutimana would come with the attackers every day.” (The quotation has been aligned to the writing style in this Judgement.)

[906] Prosecution Closing Brief para. 313 ; T. 21 August 2002 pp. 134-135.

[907] Defence Closing Brief pp. 75-86, in particular p. 83.

[908] T. 26 September 2001 pp. 28-30, 44-45.

[909] T. 26 September 2001 p. 31; T. 27 September 2001 p. 61.

[918] The Chamber has noted that Witness HH’s statements of 2 April 1996 contains the following formulation: “In Bisesero, I did not see pastor Ntakirutimana among the group of attackers from Ngoma.” In his statement of 25 July 2001 and in court the witness denied that he had ever said that. In the Chamber’s view, this has no significance in relation to the present event. It follows from the statement of 2 April 1996 that Elizaphan Ntakirutimana “was also present in Gitwe” and held something in his hand which “resembled a gun. I did not see him kill, but I believe that his role was to look for people’s hiding places and to show them to the killers”.

[919] T. 22 August 2002 p. 137. The allegation of the killings first appeared in Witness DD’s reconfirmation statement of 28 July 2001 (see below).

[920] Defence Closing Brief pp. 133-138, in particular p. 137, see also p. 83.

[922] Id. p. 135; T. 24 October 2001 pp. 80-81, T. 25 October 2001 p. 91.

[923] T. 23 October 2001 p. 132, 134, 136-137; T. 25 October 2001 p. 91.

[925] The relevant para. reads: “I want to add to my statement that one day, I was about 75 meters up from Gitwe Primary School on Gitwe Hill. From there I saw Doctor Gérard near a dead tree at about the same height. I saw that he shot and killed Pastor Munyandinda, who was close to me. I also saw that Doctor Gérard shot and killed Munyandinda’s daughter, a girl called Erina. Erina was shot a little bit down from me on the hill. Many more people were shot by Doctor Gérard on that day, but I cannot recall their names. I fled and could see no more.”

[927] Defense Closing Brief pp. 70-75, in particular pp. 73-74, see also p. 15.

[928] T. 22 October 2001 pp. 9-22; 33-44; 73-76; 83-86 and 92.

[930] T. 30 October 2001 pp. 126-133; T. 31 October 2001 pp. 118-124.

[931] See, in particular, 3.8.3 (c), 3.12.3, 4.10.3, 4.16.3, 4.20.3.

[932] See also T. 30 October 2001 pp. 143-144.

[934] Prosecutor’s Closing Brief paras. 323-234.

[935] Defence Closing Brief pp. 55-63, in particular pp. 61-62.