Semanza Judgement 15 May 2003

38. The Defence raised several arguments, described below, in an effort to challenge the jurisdiction of the Tribunal, the validity of the Indictment, and the sufficiency of the evidence supporting the Prosecution’s case, including a defence of alibi.

39. The Defence advanced the argument, previously rejected by the Appeals Chamber, that the Tribunal lacks jurisdiction because the Accused was detained in Cameroon in violation of Rule 40bis. [18] The Defence noted that the Prosecutor had justified this period of detention to the Trial Chamber and the Appeals Chamber as force majeur, a failure on the part of Cameroonian authorities to transfer the Accused quickly. [19] The Defence asserted that this issue should be reexamined because, subsequent to the Appeals Chamber’s ruling, a Cameroonian court found that the declaration of Judge Mballe, on which the Prosecutor based her argument, is a “false document in Cameroonian Courts”. [20] The Defence submitted that Judge Mballe’s declaration was therefore “null and void” and concluded that the Prosecution’s use of the declaration “vitiates everything”, requiring the immediate release of the Accused. [21]

40. The Appeals Chamber settled the issue of the violation of Rule 40bis in connection with the Accused’s detention in Cameroon pending his transfer to the Tribunal. [22] The Appeals Chamber held that the Accused’s right to be promptly charged pursuant to Rule 40bis could not have been violated because the initial indictment against the Accused had already been confirmed at the time of his transfer to the Tribunal’s Detention Facility. [23] Although the Appeals Chamber alluded to the rationale behind the Cameroonian authorities’ failure to transfer the Accused, mentioning not only the declaration of Judge Mballe but also that of U.S. Ambassador David Scheffer as well as other evidence, the Appeals Chamber’s holding is not based solely on this peripheral discussion. The Chamber therefore holds that the attempt of the Defence to reargue this settled issue based solely on the peripheral matter of the validity of Judge Mballe’s attestation is without merit.

41. The Defence raised a number of challenges to the Indictment asserting that it was vague and thus prejudiced the Accused’s ability to organize his defence. [24]

42. As the primary accusatory instrument, an indictment must contain a concise statement of the facts detailing the crime or crimes with which an accused is charged. [25] The accused also has a right to be “promptly” informed “in detail” of the nature of the charges against him. [26] The Chamber emphasises that allegations of vagueness should normally be dealt with in the pre-trial stage.^[27] The Defence has not offered any explanation for its delay in raising many of its specific challenges to the Indictment until its Closing Brief. Nonetheless, the Chamber finds that its duty to ensure the integrity of the proceedings and safeguard the rights of the Accused warrants full consideration of the arguments of the Defence. [28]

43. The Chamber emphasises that at this post-trial phase it is concerned only with defects in the Indictment that actually prejudiced the rights of the Accused. [29] The Chamber notes that the Defence failed to articulate any particular instance of prejudice.

44. The fundamental question in determining whether an indictment was pleaded with sufficient particularity is whether an accused had enough detail to prepare his defence.^[30] The indictment must state the material facts underpinning the charges, but need not elaborate on the evidence by which such material facts are to be proved.^[31] The Chamber assesses the materiality of a particular fact in the context of the alleged criminal conduct with which the accused is charged.^[32]

45. In cases where the Prosecutor alleges that an accused personally committed the criminal acts, an indictment generally must plead with particularity the identity of the victims, the time and place of the events, and the means by which the acts were committed.^[33] The specificity required to plead these kinds of facts is not necessarily as high where criminal responsibility is predicated on accomplice liability or superior responsibility. [34] The Chamber is also mindful that even when personal participation is alleged, situations may exist where the nature or scale of the alleged crimes makes it impracticable to require a high degree of specificity in the identity of victims or the dates of commission. [35]

46. The Defence argued that the Indictment failed to specify the dates of the alleged acts by using language such as: (i) “on or about” a particular date in paragraphs 3.10, 3.13, and 3.18; (ii) “between” two specific dates in paragraphs 3.7, 3.11, 3.12, 3.15, 3.16, and 3.17; (iii) “as of the beginning of 1994” in paragraph 3.8; and (iv) “as early as 1991” in paragraph 3.9. [36]

47. The Prosecutor’s use of “on or about” a particular date in paragraphs 3.10, 3.11, 3.12, 3.13, 3.18, and 3.19 did not prejudice the Accused in this case because the underlying events actually occurred on the particular dates set out in each of these paragraphs.

48. In paragraphs 3.11 and 3.12, the Chamber finds that “between” appropriately refers to two relatively narrow five to thirteen day ranges when the Accused allegedly “organized” the Musha church and Mwulire Hill massacres. Though both paragraphs also refer to the Accused “execut[ing]” the massacres during this same period, intimating personal participation and thus requiring greater specificity, each of these paragraphs clarifies any ambiguity by averring the particular date on which the Accused is alleged to have physically participated in the massacres.

49. Paragraph 3.17 refers to a specific event on a single date when the Accused allegedly instigated a particular group of men to rape and kill Tutsi women, “immediately” resulting in the commission of those criminal acts. This type of an allegation should generally be pleaded with particularity concerning the date on which it occurred. However, the Chamber finds that “between April 7 and April 30” is appropriate in this instance because Prosecution Witness VV, the sole witness, could not recall the exact date, and thus the date could not be pleaded with greater particularity. Moreover, the paragraph describes the event and the Accused’s alleged conduct in detail.

50. The Chamber finds the date ranges used in paragraphs 3.7, 3.8, and 3.9 to be problematic. Paragraph 3.7 alleges that “between 1991 and 1994” the Accused chaired meetings where he made threatening remarks toward Tutsis. Paragraph 3.8 alleges that the Accused chaired meetings where he incited and planned the killings of Tutsi civilians “as of the beginning of 1994”. Paragraph 3.9 alleges that the Accused trained and distributed weapons to Interahamwe “as early as 1991 . . . until 1994”. These paragraphs allege in a general way instances of specific conduct which, if proven, are either criminal or could be used to infer mens rea in support of a criminal conviction. The Indictment’s use of these exceedingly broad date ranges provides grossly inadequate notice of particular conduct or events, making it difficult for the Accused to prepare his defence. Though the Prosecutor is allowed a degree of latitude where the exact dates of events are not known to her, the one to four year ranges in paragraphs 3.7, 3.8, and 3.9 are not acceptable, particularly where the allegations are devoid of any other detail that might assist the Accused in identifying the events alluded to in the Indictment. Notably, these paragraphs even neglect to mention the most basic of details such as the commune where the events allegedly occurred.

51. The Chamber also finds that the date ranges used in paragraphs 3.15 and 3.16 are impermissibly vague. These paragraphs refer broadly to the Accused’s responsibility as a superior and as an accomplice to the direct perpetrators’ unspecified rapes and other acts of sexual violence which allegedly occurred in Bicumbi and Gikoro “between 6 April and 30 April”. This date range is problematic in particular because these paragraphs fail to identify any specific criminal act, particularise the location where the acts occurred, or specify the Accused’s conduct or his relationship with any known principal perpetrator.

52. The Chamber notes that the broad allegations in paragraphs 3.7, 3.8, 3.9, 3.15, and 3.16 leave the impression that the Prosecutor had not obtained any particular and specific information or evidence regarding these allegations. Under such circumstances, the Accused cannot possibly be expected to effectively prepare a defence.

53. The Defence argued that in paragraphs 3.7, 3.8, 3.9, 3.15, 3.16, and 3.19, the Indictment failed to specify the precise locations where certain violations allegedly occurred. [37]

54. As discussed above, the Chamber finds paragraphs 3.7, 3.8, 3.9, 3.15, and 3.16 impermissibly vague because they lack even the most general details about where the alleged acts took place.

55. Considering witness and victim protection concerns, the Chamber finds that the Indictment alleges sufficient detail concerning the murders alleged in paragraph 3.19. [38] The Chamber notes that the “particular house in Bicumbi Commune” was that of protected Prosecution Witness VAM’s son and further identification could have disclosed the identity of Witness VAM. Upon the disclosure of the witness’s personal details to the Accused consistent with the witness protection order, the Defence would have had adequate notice of the location of the underlying crimes.

56. The Defence challenged the Prosecution’s failure to disclose the identity of Victims A through H and J in paragraphs 3.17 through 3.19 of the Indictment. [39]

57. Taking into account witness protection concerns, the Chamber finds that the Prosecutor adequately identified Victims A and B in paragraph 3.17 as well as Victims D through H and J in paragraph 3.19. The Chamber notes that Victim A is protected Prosecution Witness VV whose cousin is Victim B. The Chamber further notes that Victims D through H and J are the family members and neighbours of protected Prosecution Witness VAM. Therefore, the identification of these victims in the Indictment would have disclosed the identities of protected witnesses. The Chamber notes that the disclosure to the Defence of the particulars of Prosecution Witnesses VV and VAM pursuant to the witness protection order provided adequate identification of the victims in these paragraphs in sufficient time to prepare a defence.

58. The Chamber finds that the Prosecutor’s use of the pseudonym “Victim C” in paragraph 3.18 is inappropriate, particularly because there is no apparent victim or witness protection concern justifying the use of a pseudonym as opposed to the victim’s name. The Chamber, however, cannot identify any particular prejudice flowing from this lack of specificity. The Chamber notes that this paragraph specifically alleges that the Accused cut the victim’s arms during an interrogation in Musha sector on 13 April 1994. The Defence notably did not find either the date or location of this act vague. In light of the particularity with which the event was pleaded, the identity of Victim C became readily apparent to the Defence when Prosecution Witness VA, who testified about this event, disclosed the victim’s name in her written statement and during her testimony on 7 March 2001.

59. The Defence argued that the Indictment was vague because it failed to specify the role played by the Accused in the alleged violations of the Statute, and instead alleged for each count that the Accused engaged in one or all possible forms of participation that might give rise to criminal responsibility. [40] The Chamber notes that it is vague to plead all possible forms of criminal responsibility in the Indictment for each criminal act charged to an accused unless the Prosecutor actually intends to prove each of the forms of responsibility. [41] The Chamber notes that the ambiguity which exists in this charging strategy may be cured where the paragraphs referenced in each count of an indictment provide greater detail concerning the accused’s participation. In this case, each paragraph of the Indictment provides further specificity concerning the Accused’s conduct, indicating, for example, whether he allegedly personally participated in a massacre. Moreover, the Chamber cannot identify any possible prejudice to the Accused. In light of the potential for ambiguity, the Chamber emphasises that the Prosecutor should not plead what she does not intend to prove. [42]

60. The Defence asserted that the vague and speculative nature of the Indictment is aggravated by the fact that the Accused was cumulatively charged with multiple crimes for conduct arising out of a single incident. [43] The Defence also submitted that it is inadmissible in law for an indictment to charge the same acts as genocide, crimes against humanity, and violations of Common Article 3 and Additional Protocol II. [44] Moreover, the Defence argued that it was impermissible to simultaneously charge an individual for both genocide and complicity to commit genocide. [45] The Chamber finds that these arguments lack merit and emphasises that the Appeals Chamber has confirmed the propriety of charging cumulatively. [46]

61. The Chamber finds that paragraphs 3.7, 3.8, 3.9, 3.15, and 3.16 of the Indictment are impermissibly vague and that for this reason they prejudiced the Accused’s ability to prepare his defence. The Chamber therefore will not consider these paragraphs in its factual or legal findings. Consequently, the Chamber cannot enter a conviction for direct and public incitement to commit genocide (Count 2), which is based solely on paragraphs 3.7 and 3.8, and rape as a crime against humanity (Count 8), which is based solely on paragraphs 3.15 and 3.16.

62. The Defence’s remaining arguments concerning the lack of precision of the Indictment with respect to dates, locations, identities of witnesses, and forms of participation as well as cumulative charging lack merit for the reasons set forth above.

63. The Defence submitted that the Prosecution failed to introduce evidence that genocide was committed in Bicumbi and Gikoro communes. [47] The Defence argued that the Prosecution never presented proof that civilian Tutsis were targeted and killed as alleged in paragraphs 3.3 and 3.4.2 of the Indictment. [48] In support of this claim, the Defence argued that the evidence revealed that both Hutus and Tutsis were killed without any distinction. [49] The Defence supported this argument with reference to the report of United Nations Special Rapporteur Degni Ségui, the testimonies of Witnesses VD, VF, VAO, MTP, BP, BZ, and Ndengejeho, and the report of Lecomte and Vorhauer. [50] The Defence also asserted that the Prosecution never clearly identified the authors of the crimes, and asserted that Special Rapporteur Degni Ségui’s report indicated that the RPF massacred Hutus and Tutsis at the Church of Saint Paul of Kigali. [51]

64. In addition, the Defence argued that the Prosecution failed to introduce evidence that there was a premeditated planning for the crimes that occurred, rather than a spontaneous reaction to President Habyarimana’s death. [52] The Defence asserted also that the Prosecution did not introduce proof of the Accused’s intent to commit genocide.

65. The Chamber will address whether the Prosecution established that genocide occurred in Bicumbi and Gikoro in its factual and legal findings.

66. The Defence argued that the Prosecution never established the existence of a non-international armed conflict in Rwanda. [53] Rather, the Defence argued that “monumental” evidence reflected the existence of an international armed conflict involving Uganda. [54]

67. The Defence also argued that the Prosecution never introduced evidence that the alleged crimes that occurred in Bicumbi and Gikoro had a nexus to an internal armed conflict or that the Accused would have intended the attacks that occurred in those localities to form part of a non-international armed conflict in Rwanda. [55]

68. The Defence asserted that the failure to introduce evidence of a nexus between the civilian deaths and an internal armed conflict requires the dismissal of the counts related to both Article 3 (crimes against humanity) and Article 4 (serious violations of Common Article 3 and Additional Protocol II) of the Statute. [56]

69. The Defence also submitted that the counts related to crimes against humanity should be dismissed because the Prosecution had alleged in the Indictment that these acts were committed to advance a war effort. The Defence asserted that the Prosecution had not proven the existence of this war effort. [57] The Defence also noted that the Prosecution failed to prove that there was a widespread or systematic attack or that the Accused had knowledge of a widespread or systematic attack. [58]

71. The Defence asserted that the Accused could not be criminally responsible for the criminal acts of the Interahamwe or other government agents because he held no administrative or military position within the Rwandan government or within the Interahamwe militia that would have allowed him to either plan, order, or be informed of the preparations of the crimes alleged in the Indictment. [59] The Defence also concluded that the Tribunal therefore lacked personal jurisdiction. [60]

72. The Tribunal has personal jurisdiction over the Accused pursuant to Articles 1, 5, and 8 of the Statute because he is a natural person alleged to have committed crimes on the territory of Rwanda within the Tribunal’s temporal and subject matter jurisdiction. The question of whether the Accused is criminally responsible as a superior is a mixed question of fact and law that goes solely to the issue of criminal responsibility rather than jurisdiction. The Chamber will consider whether a superior-subordinate relationship existed between the Accused and others in its subsequent findings.

73. The Defence raised a number of challenges to the credibility of the Prosecution’s witnesses and to the sufficiency of the evidence supporting the Prosecution’s case with respect to each count in the Indictment. In addition, the Defence asserted that material contradictions in the testimony of Prosecution witnesses involving times, dates, and locations preclude the Chamber from entering a conviction. [61] According to the Defence, the Indictment and Prosecution witnesses assert that the Accused simultaneously participated in massacres at numerous locations. [62] The Defence submitted several examples of the alleged internal inconsistencies in the Prosecutor’s case as well as conflicts between that case and the Accused’s alibi.

75. At trial the Defence advanced an alibi to establish that the Accused could not have committed the acts alleged in the Indictment. The Chamber notes that the Accused’s alibi involves a continuous narrative that spans the period of the crimes alleged in the Indictment. Therefore, to preserve the integrity of the alibi, the salient testimony including the Prosecutor’s rebuttal of the alibi and an assessment of its credibility and reliability are set forth below.

76. The Chamber will fully consider the evidence of the Accused’s alibi when determining whether the Prosecutor has proved the Accused’s guilt beyond a reasonable doubt.

77. The Chamber recalls that the Defence presented its evidence supporting the Accused’s alibi without providing the advance notice prescribed in Rule 67(A), though the Defence indicated that it was aware of the alibi from the very beginning of the case. [63] The Defence explained that it had failed to give notice because the Accused needed to ask his family to search his personal items for “medical bills, petrol bills, or documents related to transportation.” [64] The Defence asserted that without this corroborating proof, it was not “legally” in a position to disclose the alibi. [65] The Defence thus opted to proceed under Rule 67(B) and “allow the Prosecutor to criticise [its] position.” [66] The Chamber permitted the Defence to present the Accused’s alibi based on Rule 67(B) and then allowed the Prosecutor to present rebuttal evidence limited exclusively to the alibi.

78. In its closing argument, the Prosecutor highlighted that the Defence had at least six opportunities during the proceedings to provide notice of its intent to assert an alibi, but failed on each occasion. [67] Based on the repeated failure of the Defence to give advance notice, the Prosecution urged the Chamber to draw adverse inferences against the Accused. [68]

79. The Defence asserted, however, that the Prosecution had some notice of its alibi in the form of (i) a procès-verbal taken in Cameroon in which the Accused indicated that he fled his residence on 8 April 1994, [69] and (ii) the request of the Defence to the Prosecution to disclose names of the RPF members illegally occupying the Accused’s home since 9 April 1994. [70]

80. The Chamber recalls its earlier finding that the Defence failed to give notice of its intent to enter the alibi defence as required by Rule 67(A)(ii)(a). [71] In addition, the Chamber has taken due note of the Defence’s assertions that the Accused gave notice of his alibi in the form of the Cameroonian procès-verbal taken after his arrest and the Defence’s request for disclosures concerning the occupation of the Accused’s home in Gahengeri. The Chamber finds that such notice does not satisfy the requirements plainly set forth in Rule 67(A)(ii)(a). Neither of the documents indicates “the place or places at which the accused claims to have been present at the time of the alleged crime”. [72] These documents provide only a cryptic indication that the Accused was not at his home, without any reference as to where he was at any particular time.

81. The Chamber also is not convinced by the asserted explanation of the Defence for failing to give proper notice based on its lack of and search for corroborating physical evidence, none of which was ever produced. Rule 67 does not require an accused to disclose the extent and nature of the underlying proof of his alibi prior to the trial. [73]

82. Notwithstanding the non-compliance of the Defence with the provisions of Rule 67(A)(ii)(a), the Trial Chamber emphasises that it fully considered the Accused’s alibi in light of Rule 67(B). However, where, as in this case, the Defence fails to show good cause for its failure to act in accordance with Rule 67(A)(ii)(a), the Chamber may take into account this failure when weighing the credibility of the alibi defence. [74]

83. The Defence in its closing arguments and in its Closing Brief asserted that the Accused remained at his home in Gahengeri from 28 March 1994 until 8 April 1994 in observation of the traditional period of mourning after an unknown assailant killed his daughter Nyinwumubyeyi Marie-Mère de Dieu (“Mubyeyi”) on 28 March 1994. [75] The Defence explained that Mubyeyi was buried the next day and that the mourning period was set to end on 9 April 1994. [76] The Defence submitted that the Accused and his family remained at their home during the mourning period, according to Rwandan tradition, until they were forced to flee the region when their home came under attack on the night of 8 April 1994. [77]

84. The Accused testified that his daughter Mubyeyi was killed by a bullet fired over the wall of his residential compound at around 5:30 p.m. in the evening. [78] The Accused could not recall the date, but stated that she was killed on 26 or 27 March 1994. [79] He later testified that Mubyeyi died on either 27 or 28 March and that she was buried on 4 April 1994. [80] The Accused explained that after his daughter’s death, he and his family remained at their home in Gahengeri in observation of the traditional period of mourning and received guests. [81] The Accused indicated that he was observing the mourning period as late as 8 April 1994. [82]

85. Defence Witness PFM indicated that she was at the Accused’s home when Mubyeyi was killed. [83] The witness did not recall the exact date of Mubyeyi’s death, but testified that someone had fired into the garden from outside the wall of the compound and killed her between 7:00 and 8:00 p.m., sometime between 20 and 30 March 1994. [84] Witness PFM believed that Mubyeyi had been killed by the RPF whose elements, according to her, had infiltrated the area. [85] Witness PFM testified that the Accused and his family were preparing to end the mourning period when the president died and that the period was to end on 9 April 1994. [86]

86. Witness PFM testified that she saw the Accused on 6 April 1994 when he informed her that the President of Rwanda had been killed. [87] Witness PFM also stated that she saw the Accused on the morning of 7 April 1994, and stated that he was visibly sad at the death of the president and that he was smoking a cigarette. [88] The witness testified that she then spent most of her time on 7 April 1994 praying in the chapel located in the upper part of the Accused’s compound with the Accused’s wife and older children. [89] The witness stated that she spent part of 8 April 1994 hiding under a bed because of intense shooting she heard outside the Accused’s compound. [90] Witness PFM testified that she saw the Accused in the living room of his house in the evening of 8 April 1994: (i) between 7:00 and 8:00 p.m., speaking with a man whom she did not know; (ii) “later on”, as the Accused continued to drink beer with the man and Bizuru, a neighbour, who had just arrived; and (iii) around 11:00 p.m., when she fled the compound with the Accused and his family. [91]

87. Witness PFM attested that after 6 April 1994, the Accused “never” left his compound on foot and noted that his vehicle was “always” in the garage. [92] She explained that she would have seen him leave because the windows of the chapel in the main house in the Accused’s compound and of her room in the compound faced the garage and that if the Accused had left his room, he would also have passed by the chapel in the main house. [93]

88. Defence Witness KNU testified that she stayed at the Accused’s home in Gahengeri from 2 until 8 April 1994 when she fled with the Accused and his family. [94] She testified that she was invited to the Accused’s home by one of his children to assist in preparations for the end of the mourning period. [95] The witness testified that she did not know the exact date or cause of Mubyeyi’s death and could only state that she died in the month of March during the school exam period before the Easter holiday. [96]

89. Witness KNU testified that the Accused and his family remained at home from 6 April 1994 until the night of 8 April 1994, when they fled. [97] The witness acknowledged, however, that she did not see the Accused at all times throughout that forty-eight hour period and that she did not keep track of the Accused’s whereabouts. [98] The witness testified that she saw the Accused smoking on the morning of 7 April 1994 and noted that he appeared sad. [99] The witness also recalled one other unspecified occasion when she saw him in the sitting room of the house. [100] Witness KNU stated that she spent part of the day on 8 April 1994 praying in the children’s chapel in the building on the south part of the compound and then went to bed around 8:00 or 9:00 pm. [101] Witness KNU also explained that while she was at the Accused’s residence, she stayed in the house on the south part of the compound while the Accused stayed in the house on the north end. [102] The witness testified that she visited the Accused’s home regularly on various holidays and that she was very fond of him. [103]

90. Defence Witness MLZ testified that he was a frequent visitor at the Accused’s home and a friend of his children. [104] He stated that he was aware that the Accused had lost his daughter Mubyeyi and that he noticed an atmosphere of mourning when he arrived at the Accused’s home on 8 April 1994 around noon. [105] Witness MLZ stated that he saw the Accused once on 8 April 1994, around 4:00 p.m. [106]

91. The Chamber finds that the close personal relationships that Witnesses PFM, KNU, and MLZ had with the Accused and his family call into question their credibility. In this regard the Chamber highlights their exaggerated assertions that the Accused remained consistently at home, whereas the Accused was seen by these witnesses at his home on only a handful of brief occasions during the relevant period.

92. The Chamber emphasises that Witnesses PFM, KNU, and MLZ attest only to six brief sightings of the Accused at his home in Gahengeri between 6 and 8 April 1994: (a) in the evening of 6 April (PFM); (b) in the morning of 7 April (KNU, PFM); (c) at 4:00 p.m. on 8 April (MLZ); (d) around 7:00 p.m. or 8:00 p.m. on 8 April (PFM); (e) around 11:00 p.m. on 8 April (KNU, PFM); and (f) on one unspecified occasion (KNU). Other than those sightings, Witnesses KNU, PFM, and MLZ, who arrived only on 8 April 1994, claim to have spent most of their time outside the presence of the Accused in either the children’s south residence, one of the two chapels, or hiding under their beds. Furthermore, though PFM asserted that she would have seen the Accused leave the house from either the chapel or a bedroom, the Chamber recalls that on 7 April 1994 the witness was focused on prayer in the chapel, and on 8 April 1994 she hid under a bed. Therefore, the Chamber does not find that Witnesses KNU, PFM, and MLZ provide reliable testimony for the proposition that the Accused remained at home at all times from 6 to 8 April 1994.

93. The Chamber also does not find that the mourning of Mubyeyi’s death reliably corroborates the proposition that the Accused remained consistently at home between 6 and 8 April 1994. The Chamber emphasises that the record is not sufficiently specific about the scope and nature of Rwandan mourning traditions.

94. The Defence asserted that at various times on 7 and 8 April 1994, the Accused’s home in Gahengeri was threatened by intense gunfire. [107] The Defence submitted that in the face of this attack, the Accused and his family fled their home around 11:00 p.m. on the night of 8 April 1994 with the assistance of a neighbour called Bizuru, who was an APEGA driver, and sought refuge that night in Nzige. [108]

95. The Accused testified that on 7 April 1994 he heard gunfire for about forty minutes between 3:00 and 4:00 p.m., which intensified on 8 April 1994 and lasted about four hours until 6:00 p.m. [109] The Accused noted that his neighbours informed him that the shots he heard were fired by white people travelling on the Gihumuza road in vehicles bearing UNAMIR inscription. [110]

96. The Accused testified that around 10:30 p.m. on 8 April 1994, he was at home speaking with his neighbour Bizuru when a security guard informed him that his home was under attack. [111] The Accused stated that his children were awakened and that around 11:00 p.m. the family fled the compound to go to Nzige in his white Audi, which he drove, and a white pick-up truck, driven by Bizuru. [112] The Accused explained that the assailants fired shots at them as they left the compound with their lights off. [113] The Accused also testified that he learned after fleeing that a female member of the RPF who had defected from the gendarmerie was among those who directed the attacks against his residence and that the RPF had sent her on a mission to kill him. [114]

97. Defence Witness KNU testified that on 8 April 1994, the Accused’s household servants awakened her and the other children around 11:00 p.m. and informed them that RPF elements and Tutsis from Kajevuba and Runyinya armed with traditional weapons and guns had encircled the compound. [115] The witness stated that she and other members of the household then fled the compound to Nzige in a white pick-up truck driven by Bizuru and a white Audi driven by the Accused. [116] She noted that “[they] could not see properly” in the fog and rain because their vehicle lights were off and the only light came from the lights on the fence of the compound. [117] The witness explained, nonetheless, that from the back of the pick-up truck, she could see a group of people standing behind the fence armed with guns and what looked like spears. [118]

98. Defence Witness PFM testified that she heard gunfire for a brief period in the evening of 7 April 1994 and that on 8 April 1994, the gunfire was different and more intense, lasting all day. [119] She noted that at around 10:30 or 11:00 p.m., a household servant came to the chapel in the house on the lower part of the compound and informed the witness that he had seen armed men and soldiers from Runyinya nearby, running toward the house. [120] Witness PFM stated that she then personally informed the Accused and his wife that the compound was under attack and that it was necessary to flee. [121] She explained that the Accused’s wife gathered the sleeping children and that they fled the compound in the back of Bizuru’s white truck and in the Accused’s Audi. The witness stated that she heard a few gunshots about five seconds after the vehicles left the gate with their lights off. [122] The witness noted that they then spent the night in Nzige. [123]

99. Defence Witness MLZ testified that he came to the Accused’s compound on 8 April 1994 around noon seeking safety from the gunfire in the vicinity. [124] He explained that he entered the Accused’s compound through a door normally left unlocked while bullets were flying overhead. [125] The witness testified that he spent the evening chatting with the other children and went to bed at around 7:00 p.m. [126] The witness testified that he did not hear anything throughout the evening, but noted that the servants told him the next morning that the Accused and his family had fled during the night at around 11:00 p.m. [127] The witness testified that he left the Accused’s home in the morning of 10 April 1994 and that the situation at that time seemed calm. [128] Witness MLZ then stayed in a neighbouring home until 13 April 1994 when he saw the RPF come from Gikoro commune and saw the torching of the Accused’s home. [129]

100. Defence Witness DCN, who lived in Gahengeri near the Accused, [130] testified that on 7 April 1994 he heard sustained gunfire emanating from the Gihumuza forest close to the Accused’s residence and, according to what people said, fighting had erupted between commune police officers and RPF infiltrators. [131] The witness explained that he fled Bicumbi, like most of the population, on 19 April 1994 when the RPF took control of the commune between 18 and 20 April 1994. [132] Witness DCN stated that when he fled, he passed through Nzige, Karenge, and Bugesera, and explained that people were saying that the Accused must have fled on 8 or 9 April 1994 when his home was torched and that they did not know where he was. [133]

101. Defence Witness MV testified that she heard from the Accused’s neighbours that the Accused fled Bicumbi on 9 April 1994, noting that because the Accused was “well loved” in the commune, whatever happened to him was public knowledge. [134]

102. Defence Witness BGN2, who was from Bicumbi, testified that he heard from other refugees that the Accused fled two days after the president was killed when the RPF, led in part by a woman who had defected from the gendarmerie, surrounded and attacked his home in Gahengeri. [135] The witness explained that the RPF wanted to kill the Accused because he was an important and popular person who had refused to join their ranks. [136]

103. Defence Witness Nyetera testified that the Accused and his family fled Bicumbi on 8 April 1994 based on his own personal investigations conducted in Belgium and what he heard from people who saw the family flee to Gitarama. [137]

104. Defence Witness SAP testified, without recalling the date, that from Kabuga he could see flames in Bicumbi and that people fleeing from Bicumbi told him that the Accused’s home had been torched. [138] The witness noted that some people were saying that the Accused had fled while others were saying he had died. [139] The witness later confirmed his prior written statement, in which he had stated that the Accused had fled after the death of the president. [140]

105. Prosecution Rebuttal Witness XXK testified that everyone in Gahengeri, including the Accused, fled on 18 or 19 April 1994. [141] The witness, who identified the Accused in court, explained that she lived near the Accused and was a family friend. [142] She explained that in the early morning of 18 or 19 April 1994, Bizuru, whom she knew well, stopped by her home and told her he was leaving with the Accused’s family. [143] The witness noted that she did not personally see the Accused leave at this time. [144] Witness XXK testified that she fled later that day around 5:30 p.m., but did not know at the time that Bizuru was dead. [145] She explained that she later learned in a refugee camp that Bizuru died somewhere in Nzige secteur between 19 and 21 April 1994 as he returned to collect his family. [146] The witness highlighted that she saw the remains of his burned vehicle in Nzige after returning from exile. [147] The witness also stated that the day after she fled, she again passed by the Accused’s home on her way to the Rwamagana refugee camp and saw that it had been set on fire. [148]

106. Prosecution Expert Witness André Guichaoua opined in his rebuttal testimony that according to his sources, the Accused remained in Bicumbi beyond 9 April 1994 and that his flight from Gahengeri likely corresponded to the RPF’s offensive there on 19 or 20 April 1994.^[149]

107. The Chamber does not find the accounts of Witnesses KNU and PFM concerning the attack on the Accused’s home to be credible or reliable. In addition to their close personal relationships with the Accused, the Chamber also notes their exaggerated accounts of the attack. Moreover, the Chamber notes that MLZ, who was allegedly in the house with KNU and PFM at the time, heard nothing of what would presumably have been a significant attack lending an air of incredibility and internal inconsistency to the Defence’s proposition.

108. The Chamber also finds that testimonies of Defence Witnesses DCN, MV, BGN2, and Nyetera are not reliable because they consist solely of vague assertions gleaned from other people, lacking even the slightest indicia that their unidentified sources had any first hand knowledge. The Chamber also notes that Defence Witness DCN’s friendship with the Accused’s children and his past collaboration with the Accused in MRND youth recruitment undermine his credibility. The Chamber, nonetheless, finds that Defence Witness DCN’s detailed first-hand account of his flight from the RPF advance in Bicumbi around 19 April 1994 is credible and reliable. The Chamber also notes the consistency of his account with that of Prosecution Rebuttal Witness XXK.

109. The Chamber does not find the testimony of Witness SAP concerning the date of the Accused’s flight and the torching of his house to be reliable, noting that it is based primarily on the sighting of flames somewhere in Bicumbi from Kabuga and on vague, conflicting accounts from unidentified people fleeing from Bicumbi. The Chamber also recalls that though the witness claimed to have known the Accused since 1978, he did not recognize the Accused in court, until after the Defence counsel suggested that the Accused looked younger after being in detention. [150]

110. The Chamber recalls that Prosecution Expert Witness Guichaoua was called to testify concerning the Accused’s ascent to power in Bicumbi and the nature of his authority in the commune, and not as a fact witness concerning the Accused’s whereabouts or the RPF offensive. Therefore, the Chamber does not find his testimony particularly reliable concerning the Accused’s presence in Bicumbi during the relevant time.

111. The Chamber finds the detailed testimony of Prosecution Rebuttal Witness XXK concerning Bizuru’s actions on 18 or 19 April 1994 to be reliable and credible, particularly because of her first-hand knowledge. The Chamber also notes the consistency between Witness XXK’s and Defence Witness DCN’s accounts of when the residents of Bicumbi fled the RPF advance. The Chamber also fully notes the suggestion of the Defence that Witness XXK’s present marital circumstances may result in her bias. Even if true, the Chamber does not find this to impugn her credibility, recalling that the witness clearly held the Accused in high esteem as evidenced by her desire to greet him in court and by her respectful references to him while testifying. [151]

112. The Defence submitted that after spending the night in Nzige, the Accused telephoned Kanombe Camp in Kigali from the commune office to ask for protection and that he was urged to flee the region. [152] The Defence asserted that the Accused’s presence for several hours at the commune office is confirmed by several witnesses and an audio recording made of his call to Kanombe Camp, entered into evidence as Exhibit P11. [153]

113. The Accused testified that on the morning of 9 April 1994, he went to the commune office in Nzige at around 7:00 a.m. to make a few telephone calls and that he was later joined by some members of his family. [154] The Accused stated that he telephoned Kanombe Camp from the commune office to explain what had happened the night before, but the camp commander was unavailable, and the Accused was advised to leave the area immediately to save his life. [155] The Accused noted that when he went to the commune office, Bizuru left Nzige to collect his family and that while at the commune office making telephone calls, he learned that Bizuru had been killed and that Bizuru’s vehicle was burned. [156] The Accused stated that after learning this news, he left the commune between 11:00 a.m. and 12:00 noon and took the Bugesera road to the home of one of his friends in Ruhango, Gitarama prefecture, arriving there around 11:00 p.m. [157]

114. The transcript of the intercepted conversation between the Accused and Camp Kanombe reflects that the Accused “just met” the Bourgmestre of Giti who “fled to Gikoro commune” because the “Inkotanyi” were in Rutare.^[158]

115. Defence Witness PFM testified that on the morning of 9 April 1994, Bizuru left Nzige to return to his home, located near the Accused’s compound, notwithstanding the Accused’s attempts to dissuade him because of reports from their household staff that assailants had taken over the neighbourhood. [159] Witness PFM stated that after Bizuru left, the Accused’s family went to the commune office and that about thirty minutes later people from Kanzige came running to inform them that Bizuru had just been killed and his vehicle burned. [160] The witness noted that upon hearing this news, the Accused then entered the commune office to telephone Kigali to ask for protection. [161] The witness stated that the Accused returned from the office five minutes later and explained that there was no way to protect them because “assailants were everywhere along the road they had to use.” [162] The witness testified that they then fled Nzige and arrived at the home of the Accused’s friend in Ruhango, Gitarama, late that night. [163] The witness explained that on their way to Ruhango they took the road to Muhure, passing through Karenge, crossing the Nyankariro bridge, and continued on their way, stopping briefly at the Bugesera market so the young children could eat. [164] The witness also noted that they took the road to Muhure because they did not believe that the assailants who had come from Rwamagana and Gikoro near Byumba, had arrived in that region yet. [165]

116. Defence Witness KNU testified that on the morning of 9 April 1994, the Accused sent Bizuru back to the Accused’s home to retrieve some items. [166] She stated that she and the others had accompanied the Accused to the commune office, but that they remained outside in the compound while the Accused went alone into the office to make a phone call. [167] She explained that the Accused telephoned Kanombe Camp in Kigali because he had just learned that Bizuru had been burned in his vehicle. [168] The witness explained that she accompanied the Accused and his family as they left the commune office around noon in the Accused’s Audi and a pick-up truck. [169] The witness noted that they arrived at the house of a friend of the Accused in Ruhango, Gitarama between 11:00 p.m. and 1:00 a.m. that night. [170]

117. Defence Witness CBN, who identified the Accused in court, stated in her written declaration, which was admitted into evidence, that she saw the Accused at the commune office in Nzige for about three hours on the morning of 9 April 1994, that the Accused explained that he was fleeing with his family to Gitarama, and that he was not able to get in touch with Kigali in order to request soldiers to protect him. [171]

118. The Chamber notes that in contrast to the Accused’s testimony, the transcript of the intercepted telephone call, which the Defence acknowledged is between the Accused and Camp Kanombe, does not indicate that the RPF had just attacked the Accused’s home, that the Accused had to flee his home, or that someone from the camp urged the Accused to flee Nzige. Instead, the transcript reflects that the Accused “just met” the Bourgmestre of Giti who “fled to the Gikoro commune” because the Inkotanyi were in Rutare.^[172] The transcript is inconsistent with the Accused’s testimony and therefore undermines the credibility and reliability of the Accused’s testimony concerning the attack on his house and his flight.

119. The Chamber also notes that the credibility and reliability of Defence Witness CBN’s statement is rendered questionable by her lengthy working relationship with the Accused.

120. The Chamber recalls its finding that the testimony of Prosecution Rebuttal Witness XXK, which indicates that Bizuru was alive as late as 18 or 19 April 1994, is reliable and credible.

121. The Accused testified that on 18 April 1994, he left Ruhango and relocated to Murambi centre in Gitarama town because he had been spending a lot of money on petrol travelling sixty kilometres daily between the two areas to check on his business of selling potatoes and transporting them between Gisenyi and Ruhengeri. [173] The Accused explained that while he lived in Murambi, he continued to look after his business. [174] The Accused stated that on 15 May 1994, the Inkotanyi advance forced him to flee from Murambi to Gisenyi where he remained until crossing into Goma, Zaire, on 17 July 1994. [175]

122. Defence Witness PFM testified that on the morning of 10 April 1994, she accompanied the Accused to Gitarama town where he made a call to Gisenyi around 9:00 or 10:00 a.m. to order the return of his trucks to Gitarama for the transport of potatoes. [176] The witness indicated that from 10 April 1994 until fleeing to Gisenyi on 20 May 1994 she accompanied the Accused every day to Gitarama town and remained in the market with him each day while the trucks were unloaded and the potatoes were sold. [177] The witness explained that she always accompanied the Accused while they were in Gitarama looking after the trucks and that he did not leave her “alone at any occasion except when he went to the bathroom.” [178] The witness noted that she accompanied the Accused to Gisenyi and again when he fled to Goma, Zaire. [179]

123. Defence Witness KNU testified that she remained with the Accused and his family in Ruhango, Gitarama, from 9 until 12 April 1994 and that she did not see the Accused again after that date. [180]

124. Defence Witness CYS testified that he stayed with the Accused and his family at the home of the Accused’s friend in Ruhango, Gitarama, from 9 until 18 April 1994. [181] The witness noted that during his stay the Accused mainly remained in his room, but that he occasionally went to Gitarama town with his children to look after his trucks. [182] The witness testified that he accompanied the Accused to Gitarama town when he left Ruhango on 18 April 1994, [183] and that he saw the Accused again in Gisenyi, fleeing to Zaire. [184] Witness CYS noted his own involvement in a trading business between Kigali and Gitarama, which the witness did not abandon even during the war, and that he transported potatoes between Gisenyi and Kibuye, which required him to periodically go to Gisenyi on business. [185]

125. Defence Witness CYM3 testified that he saw the Accused, whom he identified in court, on 11 April 1994 standing next to his vehicle near the Gitarama market. [186] The witness indicated that he recognized the Accused because in Rwanda the name of the owner is written on the side of his vehicle. [187] The witness also saw the Accused on 13 July 1994 in Gisenyi and 18 July 1994 in Goma, Zaire. [188]

126. Defence Witness SAM testified that he spoke with the Accused in Ruhango market around 9:00 a.m. on 12 April 1994. [189] The witness stated that the Accused recounted his flight on 8 April 1994 and noted that he was staying with a friend in Ruhango. [190] The witness noted that he also saw the Accused in Gitarama on 20 April 1994. [191]

127. Defence Witness TDB testified that he heard that the Accused’s house was destroyed a few days after the death of the president. [192] The witness also explained that the RPF attacked his own home near Musha church on the night of 13 April 1994, killing his wife and daughter and that that night he fled to Ruhango, Gitarama, where he saw the Accused on 14 April 1994. [193] The witness explained that he had past professional contacts with the Accused, but noted that he was not the Accused’s friend. [194]

128. In addition, other Defence witnesses testified that they saw the Accused in Gitarama on 25 April 1994 (SAP), [195] at the beginning of May 1994 (SDN1), [196] and on 12 May 1994 (BGN2). [197]

129. Prosecution Rebuttal Witness DCH stated that he met the Accused between 8 and 12 April 1994 at a roadblock near the Kabuga mosque, about two kilometres from the Bicumbi commune border on the road from Kigali to Kibungo or Rwamagana.^[198] Witness DCH also testified that on 14 April 1994 the Accused came to Kabuga and asked for reinforcements for an attack on refugees at Ruhanga church in Gikoro.^[199] The witness confirmed that the Accused was among the attackers at Ruhanga church in Gikoro on 16 April 1994.^[200]

130. The Chamber is primarily concerned with the reliability and credibility of Defence Witnesses PFM, KNU, CYS, SAM, CYM3, and TDB because each provided a first-hand account placing the Accused in Gitarama prefecture during the relevant period when the Prosecutor alleged that he was committing crimes in Bicumbi.

131. The Chamber finds that Defence Witness PFM’s exaggerated account of never leaving the Accused’s side except when he was in the bathroom lacks credibility and further reflects the inherent bias in her testimony flowing from her close relationship to the Accused.

132. The Chamber finds that Witness CYS’s testimony does not reliably account for the Accused’s consistent presence in Gitarama prefecture between 9 and 18 April 1994. The Chamber notes that during the period when the Accused allegedly remained in Ruhanga, the witness was periodically in Gisenyi looking after his own potato transport business. In addition, though the witness stated that the Accused frequently travelled to Gitarama town, the Chamber notes that the witness can only attest to the Accused actually travelling to Gitarama town on 18 April 1994 when the witness allegedly accompanied him. The Chamber also finds that the friendship between Witness CYS, his family, and the Accused may call into question his credibility. Furthermore, the Chamber notes that CYS stated that the Accused spent most of his time in his room whereas the testimony of the Accused and PFM reflect that the Accused spent a significant portion of every day in Gitarama town.

133. The Chamber notes that Defence Witness TDB’s identification of the Accused in Gitarama town on 14 April 1994 appears credible and reliable because it is an unbiased first hand account. The Chamber notes, however, that from the witness’s testimony it is not able to reliably determine if the attack on the witness’s home on 13 April 1994 was conducted by the RPF.

134. The Chamber does not find Witness CYM3’s sighting of the Accused in Gitarama market on 11 April 1994 particularly credible or reliable because the identification is based primarily on seeing a car with the Accused’s name written on its side.

135. The Chamber finds that Witness SAM’s relationship with the Accused as a neighbour and frequent visitor to his home calls into question the credibility of the testimony of his discussions with the Accused on 12 and 20 April 1994.

136. The Chamber notes that Witness KNU did not provide any detailed testimony concerning the Accused’s presence in Gitarama.

137. The Chamber does not find the Prosecution Rebuttal Witness DCH’s testimony reliable or credible concerning the Accused’s activities during the relevant events. In particular, while the witness places the Accused at the Ruhanga church massacre in Gikoro between 14 and 17 April 1994, the Chamber recalls that this is inconsistent with the evidence proffered by Prosecution witnesses in the case in chief suggesting that the massacre occurred on 10 April 1994. Furthermore, though the witness claimed to be well acquainted with the Accused and characterized him as his “boss”, the Chamber highlights that in the witness’s guilty plea before the Rwandan courts, he implicated a number of his accomplices while notably failing to mention the Accused.

138. The Defence also asserted as part of the alibi that it would have been physically impossible for the Accused to participate in the acts or be at the sites as alleged in the Indictment. The Defence submitted that in the aftermath of the attack on the president’s plane it was difficult to move around in the entire territory of Rwanda. [201] The Defence attempted to corroborate this assertion by pointing to the testimony of several witnesses who attested that they did not see the Accused at the massacre sites. [202]

139. Defence Expert Witness Pascal Ndengejeho testified that it would have been impossible for the Accused to travel from Gahengeri to Gikoro because, even before President Habyarimana’s plane was shot down, the RPF had completely taken over the area. [203] The Accused also explained that the RPF occupied the entire area, making it impossible to travel. [204] Furthermore, Defence Witness ZC testified that the Accused could never have set foot in Ruhanga in Gikoro commune in April 1994 because he would have had to pass through nearby Rugende where he had enemies who were “ready to attack him using sharp objects”. [205]

140. Prosecution Expert Witness André Guichaoua testified in rebuttal that during April and May 1994 many dignitaries and political and military authorities travelled between Murambi, Gitarama, and Kigali each day and that, therefore, the Accused could have easily spent the nights in Murambi and have travelled to Bicumbi during the days.^[206]

141. Prosecution Rebuttal Witness DCH, a state employed bus driver, testified that beginning on 20 April 1994, he transported people six times a day from Kigali to Gitarama, covering the distance in one hour.^[207]

142. The Chamber does not find the testimony of Defence Expert Witness Ndengejeho, concerning the location of the RPF in Gikoro commune to be reliable because his information appears to be based principally on unidentified sources and on the account of a professor who avoided Gikoro because he was told by someone that the RPF controlled the area.

143. The Chamber finds Defence Witness ZC’s testimony that the Accused had enemies in Rugende credible, but does not find it reliable for the proposition that these enemies would have prevented his passage through the place in a vehicle.

144. The Chamber finds Prosecution Expert Witness Guichaoua’s general testimony concerning the ability of officials to travel between Gitarama and Kigali reliable, but does not accept the extension of this testimony to cover the ability of the Accused to travel from Kigali to Bicumbi and Gikoro.

145. The Chamber finds Prosecution Rebuttal Witness DCH’s testimony about transporting people from Kigali to Gitarama credible and reliable, but also does not accept the extension of this testimony to cover the ability of the Accused to travel from Kigali to Bicumbi and Gikoro.

146. The Chamber will consider whether evidence reflects that it was impossible for the Accused to move around his locality in its factual findings.

147. The Chamber has carefully considered the evidence submitted in support of the Accused’s alibi and recalls that a significant portion of the evidence is incredible and unreliable. Moreover, in the opinion of the Chamber, the claim by the Defence that it was aware of the alibi from the beginning of the case, but decided, without good cause, not to give notice of it, suggests that the Accused’s alibi was an afterthought.

148. The Chamber emphasises that the failure of the Defence to submit credible and reliable evidence concerning the Accused’s alibi in no way undermines the presumption of his innocence. The Prosecutor alone bears the burden of proving the Accused’s guilt beyond a reasonable doubt, despite the existence of the alibi. Accordingly, the Chamber will fully consider the evidence of the alibi in making its findings about whether the Prosecutor proved beyond a reasonable doubt the Accused’s involvement in the alleged crimes.

[18] T. 18 June 2002 pp. 94-96; Conclusions de la défense après la clôture des débats suite à la décision de la 3ème Chambre en date du 2 Mai 2002, filed 12 June 2002, [“Defence Closing Brief”] pp. 7-8.

[19] T. 18 June 2002 p. 94; Defence Closing Brief p. 7.

[20] T. 18 June 2002 p. 95; Defence Closing Brief p. 7.

[21] T. 18 June 2002 pp. 95-96; Defence Closing Brief p. 8.

[22] Semanza v. Prosecutor, Case No. ICTR-97-20-A, Decision, AC, 31 May 2000, paras. 91-104.

[23] Semanza, Decision, AC, 31 May 2000, para. 100.

[24] Defence Closing Brief pp. 16-19.

[27] Kupreskic, Judgement, AC, para. 79. See also Rule 72(F).

[28] Kupreskic, Judgement, AC, para. 79. See also Kayishema and Ruzindana, Judgement, AC, paras. 95, 97; Ntakirutimana, Judgement, TC, para. 52.

[29] Kupreskic, Judgement, AC, paras. 115-125 (undertaking prejudice analysis for vagueness allegations raised in the post-trial phase).

[30] Kupreskic, Judgement, AC, para. 88.

[31] Kupreskic, Judgement, AC, para. 88.

[32] Kupreskic, Judgement, AC, para. 89.

[33] Kupreskic, Judgement, AC, para. 89.

[34] See Brdjanin and Talic, Case No. IT-99-36, Decision on Objections by Momir Talic to the Form of the Amended Indictment, TC, 20 February 2001, paras. 18-20.

[35] Kupreskic, Judgement, AC, para. 89.

[36] Defence Closing Brief p. 16. Though the Defence complained about the use of “on or about” only in paragraphs 3.10, 3.13, and 3.18, the Chamber notes that this phrase is also in paragraph 3.11, 3.12, and 3.19.

[37] Defence Closing Brief p. 18.

[38] See generally Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision on the Prosecution Motion for Protection of Witnesses, TC, 10 December 1998.

[39] Defence Closing Brief pp. 21-23.

[40] Defence Closing Brief p. 19.

[41] Brdjanin and Talic, Case No. IT-99-36, Decision on Form of Further Amended Indictment and Prosecution Application to Amend, TC, 26 June 2001, para. 8; Brdjanin and Talic, Case No. IT-99-36, Decision on Objections by Momir Talic to the Form of the Amended Indictment, TC, 20 February 2001, para. 11.

[42] Brdjanin and Talic, Case No. IT-99-36, Decision on Objections by Momir Talic to the Form of the Amended Indictment, TC, 20 February 2001, para. 11.

[43] Defence Closing Brief pp. 19-21, 73, 74.

[44] Defence Closing Brief p. 19.

[45] Defence Closing Brief p. 73.

[46] Musema, Judgement, AC, para. 369. See also Bagilishema, Judgement, TC, paras. 108-109; Kunarac, Judgement, AC, para. 167; Celebici, Judgement, AC, para. 400.

[47] Defence Closing Brief pp. 75, 77.

[48] Defence Closing Brief pp. 8-9, 78.

[51] Defence Closing Brief pp. 9, 11. The Chamber notes that what occurred at the Church of St. Paul of Kigali is not relevant to this case.

[52] Defence Closing Brief p. 11.

[53] Defence Closing Brief pp. 12, 15.

[54] Defence Closing Brief pp. 123, 124, 125.

[55] Defence Closing Brief p. 12.

[56] Defence Closing Brief pp. 14, 16, 45.

[57] Defence Closing Brief pp.15-16, 116.

[58] Defence Closing Brief p. 124.

[59] Defence Closing Brief p. 23.

[60] Defence Closing Brief pp. 32-33.

[61] See Defence Closing Brief p. 94.

[62] See Defence Closing Brief pp. 34-35.

[68] T. 17 June 2002 pp. 105-109.

[69] T. 18 February 2002 pp. 101-102.

[70] Defence Closing Brief pp. 46-47.

[71] Prosecutor v. Semanza, Case No. ICTR-97-20-I, Decision on the Prosecutor’s Motion for Leave to Call Rebuttal Evidence and the Prosecutor’s Supplementary Motion for Leave to Call Rebuttal Evidence, TC, 27 March 2002, para. 10.

[72] Rule 67(A)(ii)(a) (emphasis added).

[73] Kayishema and Ruzindana, Judgement, AC, para. 112 (“[i]f the Defence is not in a position to produce evidence of the accused’s whereabouts, it is, nevertheless, at liberty to disclose to the Prosecutor, and then produce before the Trial Chamber, all evidentiary material likely to raise doubts as to the accused’s responsibility for the crimes charged”).

[74] Kayishema and Ruzindana, Judgement, TC, para. 237, aff’d Kayishema and Ruzindana, Judgement, AC, para. 117. See also Rutaganda, Judgement, TC, para. 298.

[75] Defence Closing Brief p. 33. The Chamber notes that the Accused’s daughter was referred to by the Prosecutor, the Defence, and Defence witnesses interchangeably as “Mubyeyi”, “Umubyeyi”, or “Marie-Mère de Dieu”.

[76] Defence Closing Brief p. 33. The Chamber notes that no witness testified, as the Defence submits, that Mubyeyi’s burial was 29 March. This submission contradicts the Accused’s testimony that she was buried on 4 April. T. 28 February 2002 pp. 114-115.

[77] Defence Closing Brief p. 33.

[79] T. 18 February 2002 pp. 49, 50.

[80] T. 28 February 2002 pp. 114-115.

[81] T. 18 February 2002 pp. 49-50.

[82] T. 18 February 2002 p. 125; T. 18 February 2002 p. 141 (French).

[83] T. 13 November 2001 pp. 63, 75-76.

[84] T. 13 November 2001 pp. 75, 76, 77.

[85] T. 13 November 2001 p. 77; T. 14 November 2001 p. 3.

[86] T. 14 November 2001 pp. 34, 75; T. 14 November 2001 pp. 38, 83 (French).

[87] T. 13 November 2001 pp. 43-44.

[89] T. 13 November 2001 pp. 45-46.

[91] T. 13 November 2001 pp. 47-48.

[94] T. 12 November 2001 pp. 22, 57-59, 65, 71.

[95] T. 12 November 2001 p. 47; T. 12 November 2001 pp. 52-53 (French) («Elle m’avait demandé d’aller les assister pour préparer la célébration de fête de fin . . . de levée de deuil»).

[97] T. 12 November 2001 pp. 22, 23, 26-27, 66-69, 71, 74.

[98] T. 12 November 2001 p. 68; T. 13 November 2001 p. 6.

[101] T. 12 November 2001 pp. 27, 28, 29.

[102] T. 12 November 2001 pp. 26, 83, 85.

[103] T. 12 November 2001 pp. 50, 61.

[105] T. 26 October 2001 pp. 29-30, 32.

[106] T. 26 October 2001 pp. 21, 24.

[107] Defence Closing Brief p. 34.

[108] Defence Closing Brief pp. 37-38.

[109] T. 18 February 2002 pp. 52, 54, 55, 56.

[110] T. 18 February 2002 pp. 55, 56.

[112] T. 18 February 2002 pp. 57, 58; T. 21 February 2002 p. 107.

[114] T. 19 February 2002 pp. 112-113.

[115] T. 12 November 2001 pp. 29, 30.

[116] T. 12 November 2001 pp. 33-34.

[119] T. 13 November 2001 pp. 46, 47.

[120] T. 13 November 2001 pp. 48-49.

[122] T. 13 November 2001 pp. 49-50.

[124] T. 26 October 2001 pp. 19-21, 22.

[125] T. 26 October 2001 pp. 20-21.

[127] T. 26 October 2001 pp. 40, 41.

[128] T. 26 October 2001 pp. 44, 45.

[129] T. 26 October 2001 pp. 46, 47.

[130] T. 22 October 2001 pp. 31, 35.

[131] T. 22 October 2001 pp. 24, 25, 35, 36.

[132] T. 22 October 2001 pp. 25, 76.

[133] T. 22 October 2001 pp. 56, 57.

[134] T. 22 October 2001 pp. 132, 133, 134.

[135] T. 27 November 2001 pp. 84, 85, 92-93.

[137] T. 11 February 2002 pp. 53, 90, 119, 120.

[138] T. 23 October 2001 pp. 115, 116.

[139] T. 23 October 2001 pp. 115, 116.

[140] T. 23 October 2001 pp. 127, 128, 129.

[141] T. 23 April 2002 pp. 18, 113.

[142] T. 23 April 2002 pp. 16, 17, 19-20, 55, 57-58.

[143] T. 23 April 2002 pp. 12, 18, 48, 49, 50, 51, 52.

[144] T. 23 April 2002 pp. 51, 52.

[146] T. 23 April 2002 pp. 36, 53-54, 76-77, 112.

[147] T. 23 April 2002 pp. 35, 36, 41, 46-47, 53-54, 55, 56.

[148] T. 23 April 2002 pp. 96, 97.

[152] Defence Closing Brief pp. 35, 36.

[153] Defence Closing Brief pp. 37, 38.

[154] T. 18 February 2002 p. 71; T. 21 February 2002 pp. 77, 78, 81, 82, 83.

[155] T. 18 February 2002 pp. 71, 75; T. 21 February 2002 pp. 79, 80, 81.

[156] T. 18 February 2002 pp. 71, 72; T. 21 February 2002 pp. 79, 108, 109, 110.

[157] T. 18 February 2002 pp. 84, 88; T. 21 February 2002 pp. 75, 79, 110.

[159] T. 13 November 2001 pp. 50, 51.

[163] T. 13 November 2001 pp. 52-54.

[164] T. 13 November 2001 pp. 52-54.

[166] T. 12 November 2001 pp. 38-39.

[167] T. 12 November 2001 pp. 36, 37, 116.

[168] T. 12 November 2001 pp. 116, 121.

[171] T. 31 October 2001 pp. 76, 77, 82, 85, 86; Exhibit D 21 pp. 4-5. See supra note 17.

[173] T. 18 February 2002 pp. 90, 91, 92, 96; T. 27 February 2002 pp. 62, 63.

[175] T. 18 February 2002 pp. 95, 96.

[176] T. 13 November 2001 pp. 55, 56.

[177] T. 13 November 2001 pp. 56, 61.

[179] T. 13 November 2001 pp. 61-62.

[180] T. 13 November 2001 pp. 8, 9.

[181] T. 26 November 2001 pp. 62, 63, 69.

[182] T. 26 November 2001 pp. 63, 64.

[184] T. 26 November 2001 pp. 64-65.

[185] T. 27 November 2001 pp. 15, 16, 49.

[186] T. 5 November 2001 pp. 17, 41, 42, 43, 130.

[189] T. 8 October 2001 pp. 61, 88.

[192] T. 4 October 2001 pp. 64, 65.

[193] T. 4 October 2001 pp. 65, 66.

[198] T. 15 April 2002 pp. 67, 86-89.

[200] T. 15 April 2002 pp. 138, 139.

[201] Defence Closing Brief p. 34.

[202] Defence Closing Brief p. 35.

[203] T. 30 January 2002 pp. 110-114.

[205] T. 6 November 2001 pp. 41, 55; Defence Closing Brief p. 34.

[206] T. 22 April 2002 pp. 20-22.