THE PROSECUTOR V. AUGUSTIN DINDILIYIMANA, AUGUSTIN BIZIMUNGU, FRANÇOIS-XAVIER NZUWONEMEYE AND INNOCENT SAGAHUTU

International Criminal Tribunal for Rwanda Tribunal pénal international pour le Rwanda UNITED NATIONS NATIONS UNIES ORIGINAL: ENGLISH TRIAL CHAMBER II Before Judges: Asoka de Silva, Presiding Taghrid Hikmet Seon Ki Park Registrar: Adama Dieng Date: 17 May 2011 THE PROSECUTOR v. Augustin NDINDILIYIMANA Augustin BIZIMUNGU François-Xavier NZUWONEMEYE Innocent SAGAHUTU Case No: ICTR-00-56-T JUDGEMENT AND SENTENCE For the Prosecutor: For the Defence: Alphonse Van For Augustin Ndindiliyimana: Moussa Séfon Christopher Black & Vincent Lurquin Abubacarr Tambadou For Augustin Bizimungu: Lloyd Stickland Gilles St. Laurent & Benoît Henry Faria Rekkas For François-Xavier Nzuwonemeye: Charles Taku & Beth Lyons For Innocent Sagahutu: Fabian Segatwa & Saidou Doumbia

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................................................ 2 CHAPTER I: OVERVIEW OF THE CASE ............................................................................................. 13 1.1 INTRODUCTION ...................................................................................................................................... 13 1.1.1 Allegations Withdrawn and Acquittals Entered at the Close of the Prosecution’s Case in Chief . 13 1.1.2 Count 1: Conspiracy to Commit Genocide ................................................................................. 13 1.1.3 Counts 2 and 3: Genocide or in the Alternative Complicity in Genocide .................................... 13 1.1.3.1 Bizimungu and the Killing of Tutsi by Interahamwe in Rwankeri Secteur and Busogo Parish ................ 14 1.1.3.2 Bizimungu and the Killing of Tutsi by Interahamwe at the Ruhengeri Court of Appeal .......................... 14 1.1.3.3 Bizimungu and the Killing of Tutsi by Interahamwe at Roadblocks in EGENA ...................................... 14 1.1.3.4 Bizimungu and the Killing of Tutsi in Byangabo Neighbourhood ............................................................ 14 1.1.3.5 Bizimungu and the Killing

of Tutsi at Various Places in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri ............................................................................................................................... 15 1.1.3.6 Ndindiliyimana and the Killing of Tutsi by Gendarmes at Kansi Parish .................................................. 15 1.1.3.7 Ndindiliyimana and the Killing of Tutsi at the Nyaruhengeri Secteur Office ........................................... 16 1.1.3.8 Ndindiliyimana and the Killing of Tutsi by Gendarmes at St. André College .......................................... 16 1.1.3.9 Ndindiliyimana and the Killing of Tutsi by Gendarmes and Interahamwe at CELA ................................ 16 1.1.4 Count 4: Murder as a Crime Against Humanity ......................................................................... 16 1.1.4.1 Bizimungu and the Killing of Tutsi by Militiamen at Ruhengeri Agronomic Centre ............................... 16 1.1.4.2 Bizimungu and the Killing of Tutsi at Various Locations in Kigali and Gitarama.................................... 17 1.1.4.3 Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe at Various Locations in Butare ........................................................................................................................................................ 17 1.1.4.4

Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe in Gisenyi .................. 17 1.1.4.5 Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe in Cyangugu .............. 17 1.1.4.6 Ndindiliyimana and the Killing of Ignace Habimana and Célestine Munyanshagore in Nyaruhengeri .... 18 1.1.4.7 Ndindiliyimana and the Killing of Civilians by Interahamwe at a Gendarmerie Roadblock Near Camp Kacyiru ...................................................................................................................................................... 18 1.1.4.8 Ndindiliyimana and the Killing of Gahoki ................................................................................................ 18 1.1.4.9 Ndindiliyimana and the Killing of Aloys Niyoyita and Phocus Kananeri by Gendarmes in Kigali .......... 18 1.1.4.10 Ndindiliyimana and the Killing of Tutsi at a Roadblock in Nyamirambo............................................. 19 1.1.4.11 Nzuwonemeye and Sagahutu and the Killing of Prime Minsiter Agathe Uwilingiyimana ................... 19 1.1.4.12 Nzuwonemeye and Sagahutu and the Killing of Belgian UNAMIR Soldiers ....................................... 19 1.1.4.13 Nzuwonemeye, Sagahutu and Bizimungu and the Killing of Tutsi at the Centre Hospitalier de Kigali ..

.............................................................................................................................................................. 20 1.1.5 Count 5: Extermination as a Crime Against Humanity ............................................................... 20 1.1.6 Count 6: Rape as a Crime Against Humanity ............................................................................. 21 1.1.6.1 Bizimungu and the Rape of Tutsi by Soldiers and Interahamwe in Various Locations ............................ 21 1.1.6.2 Nzuwonemeye and Sagahutu and the Rape of Tutsi by Soldiers at the Centre Hospitalier de Kigali ...... 21 1.1.7 Counts 7: Murder as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II ................................................................................................................ 21 1.1.8 Count 8: Rape as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II .................................................................................................................................. 22 1.2 VERDICT ................................................................................................................................................ 22 1.3 SENTENCE

.............................................................................................................................................. 23 1.4 THE ACCUSED ....................................................................................................................................... 24 1.4.1 Augustin Ndindiliyimana ............................................................................................................ 24 1.4.2 Augustin Bizimungu .................................................................................................................... 25 1.4.3 François-Xavier Nzuwonemeye .................................................................................................. 26 1.4.4 Innocent Sagahutu ...................................................................................................................... 27 CHAPTER II: PRELIMINARY ISSUES ................................................................................................. 28 2.1 RULE 98BIS CHALLENGES .................................................................................................................... 28 2.1.1 Introduction ................................................................................................................................ 28 2.1.2 Allegations Withdrawn by the Prosecution at the Rule 98bis Stage

............................................ 28 2.1.3 Acquittals at the Rule 98bis Stage............................................................................................... 28 2.2 EVIDENTIARY MATTERS ....................................................................................................................... 29 2.2.1 General Principles ..................................................................................................................... 29 2.2.2 Judicial Notice ........................................................................................................................... 29 17 May 2011 2/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2.2.3 Burden and Standard of Proof .................................................................................................... 30 2.2.4 Viva Voce Evidence .................................................................................................................... 30 2.2.5 Expert Witnesses ........................................................................................................................ 31 2.2.6 Documentary Evidence ............................................................................................................... 32 2.3 DEFECTS IN THE INDICTMENT .............................................................................................................. 32 2.3.1 Introduction ................................................................................................................................ 32 2.3.2 Applicable Law .......................................................................................................................... 32 2.3.2.1 Specificity ................................................................................................................................................. 32 2.3.2.2 Exception to Specificity

............................................................................................................................ 34 2.3.2.3 Curing of Defects in an Indictment ........................................................................................................... 34 2.3.3 Alleged Defects in the Indictment Concerning the Murder of the Prime Minister and the Belgian Soldiers ................................................................................................................................... 35 2.3.3.1 Nzuwonemeye’s Submissions Regarding Count 1 .................................................................................... 36 2.3.3.2 Nzuwonemeye’s Submissions Regarding Count 4 .................................................................................... 38 2.3.3.3 Sagahutu’s Submissions Regarding Count 1 ............................................................................................. 39 2.3.4 Alleged Defects in the Indictment Concerning the Distribution of Weapons ............................... 40 2.3.4.1 Sagahutu’s Submissions Regarding Count 1 ............................................................................................. 40 2.3.4.2 The Pleading of Paragraphs 30 and 31 of the Indictment .......................................................................... 41 2.3.5 The Pleading of Paragraphs 68 and 69 of

the Indictment (Underlying Criminal Events in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri) ............................................................................... 41 2.3.5.1 The Indictment .......................................................................................................................................... 41 2.3.5.2 Prejudice to the Accused ........................................................................................................................... 42 CHAPTER III: WITNESS CREDIBILITY AND CONTEMPT OF COURT .......................................... 44 3.1 CREDIBILITY OF WITNESSES GFR, GFA AND GAP ........................................................................... 44 3.1.1 Developments Since the Witnesses Testified Before this Chamber .............................................. 44 3.1.2 Applicable Principles ................................................................................................................. 45 3.1.3 Analysis ................................................................................................................................... 45 3.1.3.1 Witness GFA’s Recantation in the Karemera et al. Trial.......................................................................... 45 3.1.3.2 Witness GFR’s Recantation in the Present Case

....................................................................................... 47 3.1.3.3 Witness GAP’s Statements in an Interview with Peter Robinson ............................................................. 49 CHAPTER IV: FACTUAL FINDINGS .................................................................................................... 50 4.1 BACKGROUND ........................................................................................................................................ 50 4.1.1 The Arusha Accords ................................................................................................................... 50 4.1.2 United Nations Assistance Mission for Rwanda (UNAMIR) ....................................................... 51 4.1.3 The Kigali Weapons Secure Area ............................................................................................... 53 4.1.4 The Rwandan Army .................................................................................................................... 54 4.1.4.1 The Reconnaissance Battalion and Other Elite Units ................................................................................ 55 4.1.5 The Rwandan Gendarmerie ........................................................................................................ 55 4.2 ALLEGATIONS OF PLANNING AND PREPARATION FOR THE GENOCIDE

............................................ 57 4.2.1 Definition of the Enemy .............................................................................................................. 57 4.2.1.1 Introduction ............................................................................................................................................... 57 4.2.1.2 Deliberations ............................................................................................................................................. 58 4.2.2 Preparation of Lists of People to be Eliminated ......................................................................... 62 4.2.3 Ndindiliyimana and the Provision of Material Support to Interahamwe ..................................... 62 4.2.3.1 Introduction ............................................................................................................................................... 62 4.2.3.2 Evidence .................................................................................................................................................... 63 4.2.3.2.1 Prosecution Evidence .......................................................................................................................... 63 4.2.3.2.2 Defence Evidence

................................................................................................................................ 65 4.2.3.3 Deliberations ............................................................................................................................................. 68 4.2.3.3.1 Ndindiliyimana’s Alleged Speech at Nyanza Stadium ........................................................................ 68 4.2.3.3.2 Ndindiliyimana’s Support for the Militia at Various Roadblocks ........................................................ 69 4.2.3.3.3 Events at Camp Kacyiru ...................................................................................................................... 70 4.2.4 Military Training and Distribution of Weapons to Interahamwe ................................................ 72 4.2.4.1 Introduction ............................................................................................................................................... 72 4.2.4.2 Evidence .................................................................................................................................................... 72 4.2.4.2.1 Prosecution Evidence .......................................................................................................................... 72 4.2.4.2.2 Defence Evidence ................................................................................................................................ 83 17 May 2011 3/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.2.4.3 Deliberations ............................................................................................................................................. 85 4.2.5 President Habyarimana’s Speech ............................................................................................... 89 4.2.6 Meetings Prior to 7 April 1994 ................................................................................................... 89 4.2.6.1 Introduction ............................................................................................................................................... 89 4.2.6.2 Evidence .................................................................................................................................................... 90 4.2.6.2.1 Prosecution Evidence .......................................................................................................................... 90 4.2.6.2.2 Defence Evidence ................................................................................................................................ 94 4.2.6.3 Notice of Charges...................................................................................................................................... 98 4.2.6.4 Deliberations

............................................................................................................................................. 98 4.2.7 Ndindiliyimana’s Alleged Opposition to the Arusha Accords and the Kigali Weapons Secure Area ................................................................................................................................. 100 4.2.7.1 Introduction ............................................................................................................................................. 100 4.2.7.2 Evidence .................................................................................................................................................. 100 4.2.7.2.1 Prosecution Evidence ........................................................................................................................ 100 4.2.7.2.2 Defence Evidence .............................................................................................................................. 102 4.2.7.3 Deliberations ........................................................................................................................................... 105 4.2.8 Concealment of Vehicles .......................................................................................................... 107 4.2.8.1 Introduction

............................................................................................................................................. 107 4.2.8.2 Evidence .................................................................................................................................................. 107 4.2.8.2.1 Prosecution Evidence ........................................................................................................................ 107 4.2.8.2.2 Defence Evidence .............................................................................................................................. 109 4.2.8.3 Deliberations ........................................................................................................................................... 111 4.2.9 Protais Mpiranya and the Obstruction of the Installation of the Transitional Government ....... 113 4.2.10 Sagahutu’s Shares in Radio Télévision Libre des Milles Collines ............................................. 114 4.2.10.1 Introduction ........................................................................................................................................ 114 4.2.10.2 Evidence ............................................................................................................................................. 114 4.2.10.2.1 Prosecution Evidence

...................................................................................................................... 114 4.2.10.2.2 Defence Evidence ............................................................................................................................ 115 4.2.10.3 Deliberations ....................................................................................................................................... 116 4.2.11 Ndindiliyimana’s Failure to Stop Radio Télévision Libre des Milles Collines Broadcasts ........ 117 4.2.11.1 Introduction ........................................................................................................................................ 117 4.2.11.2 Evidence ............................................................................................................................................. 117 4.2.11.2.1 Prosecution Evidence ...................................................................................................................... 117 4.2.11.2.2 Defence Evidence ............................................................................................................................ 118 4.2.11.3 Deliberations ....................................................................................................................................... 119 4.3 ACTS ASSOCIATED WITH GENOCIDE

................................................................................................. 120 4.3.1 The Killing of Prime Minister Agathe Uwilingiyimana and the Belgian Soldiers ...................... 120 4.3.1.1 Introduction ............................................................................................................................................. 120 4.3.1.2 Deliberations ........................................................................................................................................... 121 4.3.1.2.1 Killing of the Belgian Soldiers .......................................................................................................... 121 4.3.1.2.2 Assassination of Prime Minister Agathe Uwilingiyimana ................................................................. 121 4.3.2 Nzuwonemeye and the Events Preceding the Deaths of Prime Minister Agathe Uwilingiyimana and the Belgian Soldiers ........................................................................................................... 123 4.3.2.1 Introduction ............................................................................................................................................. 123 4.3.2.2 Evidence .................................................................................................................................................. 123

4.3.2.2.1 Prosecution Evidence ........................................................................................................................ 123 4.3.2.2.2 Defence Evidence .............................................................................................................................. 125 4.3.2.3 Deliberations ........................................................................................................................................... 126 4.3.3 Protais Mpiranya and the Assassination of Rwandan Politicians Between 7 and 11 April 1994 127 4.3.4 Distribution of Weapons to Militia in April and May 1994 ....................................................... 127 4.3.4.1 Introduction ............................................................................................................................................. 127 4.3.4.2 Evidence .................................................................................................................................................. 127 4.3.4.2.1 Prosecution Evidence ........................................................................................................................ 127 4.3.4.2.2 Defence Evidence .............................................................................................................................. 129 4.3.4.3 Deliberations

........................................................................................................................................... 131 4.3.5 President Sindikubwabo’s Speech in Butare on 19 April 1994 and Prime Minister Kambanda’s Praise of RTLM ........................................................................................................................ 133 4.3.5.1 Introduction ............................................................................................................................................. 133 4.3.5.2 Evidence .................................................................................................................................................. 134 4.3.5.3 Deliberations ........................................................................................................................................... 137 17 May 2011 4/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.3.6 The Crisis Committee and the Formation of the Interim Government ....................................... 139 4.3.6.1 Introduction ............................................................................................................................................. 139 4.3.6.2 Evidence .................................................................................................................................................. 139 4.3.6.2.1 Prosecution Evidence ........................................................................................................................ 139 4.3.6.2.2 Defence Evidence .............................................................................................................................. 143 4.3.6.3 Deliberations ........................................................................................................................................... 148 4.3.7 Ndindiliyimana’s Failure to Intervene to Stop the Killings of Members of the Belgian Detachment of UNAMIR .............................................................................................................................. 152 4.3.7.1 Introduction

............................................................................................................................................. 152 4.3.7.2 Evidence .................................................................................................................................................. 153 4.3.7.2.1 Prosecution Evidence ........................................................................................................................ 153 4.3.7.2.2 Defence Evidence .............................................................................................................................. 155 4.3.7.3 Deliberations ........................................................................................................................................... 156 4.3.8 The Killing of Opposition Politicians Between 7 and 11 April 1994 ......................................... 160 4.3.8.1 Introduction ............................................................................................................................................. 160 4.3.8.2 Evidence .................................................................................................................................................. 160 4.3.8.2.1 Prosecution Evidence ........................................................................................................................

160 4.3.8.2.2 Defence Evidence .............................................................................................................................. 164 4.3.8.3 Deliberations ........................................................................................................................................... 166 4.3.9 Transfer of Gendarmes to the War Front .................................................................................. 170 4.3.9.1 Introduction ............................................................................................................................................. 170 4.3.9.2 Evidence .................................................................................................................................................. 170 4.3.9.2.1 Prosecution Evidence ........................................................................................................................ 170 4.3.9.2.2 Defence Evidence .............................................................................................................................. 171 4.3.9.3 Deliberations ........................................................................................................................................... 174 4.3.10 Issuance of Laissez-passers to Interahamwe by Ndindiliyimana ............................................... 175

4.3.10.1 Introduction ........................................................................................................................................ 175 4.3.10.2 Evidence ............................................................................................................................................. 175 4.3.10.2.1 Prosecution Evidence ...................................................................................................................... 175 4.3.10.2.2 Defence Evidence ............................................................................................................................ 176 4.3.10.3 Deliberations ....................................................................................................................................... 177 4.3.11 Ndindiliyimana’s Failure to Restore Public Order ................................................................... 178 4.3.11.1 Introduction ........................................................................................................................................ 178 4.3.11.2 Evidence ............................................................................................................................................. 179 4.3.11.2.1 Prosecution Evidence

...................................................................................................................... 179 4.3.11.2.2 Defence Evidence ............................................................................................................................ 180 4.3.11.3 Deliberations ....................................................................................................................................... 181 4.3.12 Bizimungu’s Encouragement of Ruhengeri Interahamwe.......................................................... 186 4.3.12.1 Bizimungu’s Comments to the Conseiller of Mukamira Secteur ........................................................ 186 4.3.12.1.1 Introduction ..................................................................................................................................... 186 4.3.12.1.2 Evidence .......................................................................................................................................... 186 4.3.12.1.3 Deliberations.................................................................................................................................... 186 4.3.12.2 Bizimungu’s Statements at a Meeting on the Night of 6 to 7 April 1994 ........................................... 187 4.3.12.2.1 Introduction

..................................................................................................................................... 187 4.3.12.2.2 Deliberations.................................................................................................................................... 187 4.3.12.3 Bizimungu and the Ruhengeri Meeting on 8 April 1994 .................................................................... 187 4.3.12.3.1 Introduction ..................................................................................................................................... 187 4.3.12.3.2 Evidence .......................................................................................................................................... 188 4.3.12.3.2.1 Prosecution Evidence ............................................................................................................... 188 4.3.12.3.2.2 Defence Evidence ..................................................................................................................... 188 4.3.12.3.3 Notice of Charges ............................................................................................................................ 190 4.3.12.3.4 Deliberations.................................................................................................................................... 191 4.3.12.4 Bizimungu

and the Meeting on 18 May 1994 ..................................................................................... 192 4.3.12.4.1 Introduction ..................................................................................................................................... 192 4.3.12.4.2 Deliberations.................................................................................................................................... 192 4.3.12.5 Bizimungu’s Visit to the Remera-Rukoma Hospital on 21 May 1994 ................................................ 192 4.3.12.5.1 Introduction ..................................................................................................................................... 192 4.3.12.5.2 Evidence .......................................................................................................................................... 192 4.3.12.5.2.1 Prosecution Evidence ............................................................................................................... 192 4.3.12.5.2.2 Defence Evidence ..................................................................................................................... 193 4.3.12.5.3 Deliberations.................................................................................................................................... 196 17 May 2011 5/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.3.12.6 Bizimungu’s Failure to Take Action to Stop the Killings and Restore Order ..................................... 197 4.3.12.6.1 Introduction ..................................................................................................................................... 197 4.3.12.6.2 Deliberations.................................................................................................................................... 197 4.4 GENOCIDE ............................................................................................................................................ 197 4.4.1 Bizimungu ................................................................................................................................ 197 4.4.1.1 Killing of Tutsi by Interahamwe at Rwankeri Secteur ............................................................................ 197 4.4.1.1.1 Introduction ....................................................................................................................................... 197 4.4.1.1.2 Evidence ............................................................................................................................................ 198 4.4.1.1.2.1 Prosecution Evidence

................................................................................................................. 198 4.4.1.1.2.2 Defence Evidence ....................................................................................................................... 202 4.4.1.1.3 Notice of Charges .............................................................................................................................. 206 4.4.1.1.4 Deliberations ..................................................................................................................................... 206 4.4.1.1.4.1 The Meeting at the House of Joseph Nzirorera’s Mother ........................................................... 207 4.4.1.1.4.2 Killings in Rwankeri Following the Meeting ............................................................................. 210 4.4.1.1.4.3 Killings by Soldiers from Kanombe and Bigogwe Camps at Busogo Parish ............................. 211 4.4.1.2 Killing of Tutsi by Interahamwe at Ruhengeri Court of Appeal ............................................................. 212 4.4.1.2.1 Introduction ....................................................................................................................................... 212 4.4.1.2.2 Evidence

............................................................................................................................................ 212 4.4.1.2.2.1 Prosecution Evidence ................................................................................................................. 212 4.4.1.2.2.2 Defence Evidence ....................................................................................................................... 215 4.4.1.2.3 Deliberations ..................................................................................................................................... 220 4.4.1.2.3.1 The Meeting ............................................................................................................................... 221 4.4.1.2.3.2 The Attack .................................................................................................................................. 223 4.4.1.2.3.3 Conclusion ................................................................................................................................. 228 4.4.1.3 Killing of Tutsi by Interahamwe at Roadblocks in EGENA Area ........................................................... 228 4.4.1.3.1 Evidence ............................................................................................................................................ 228 4.4.1.3.2

Deliberations ..................................................................................................................................... 229 4.4.1.4 Killing of 60 to 70 Tutsi in the Byangabo Neighbourhood ..................................................................... 229 4.4.1.4.1 Introduction ....................................................................................................................................... 229 4.4.1.4.2 Evidence ............................................................................................................................................ 230 4.4.1.4.2.1 Prosecution Evidence ................................................................................................................. 230 4.4.1.4.2.2 Defence Evidence ....................................................................................................................... 232 4.4.1.4.3 Deliberations ..................................................................................................................................... 233 4.4.1.4.3.1 Events at the Byangabo Market Square ...................................................................................... 233 4.4.1.4.3.2 Involvement of Lieutenant Mburuburengero .............................................................................. 233 4.4.1.4.3.3 Provision of Weapons and Fuel

by Soldiers ............................................................................... 234 4.4.1.5 Acts of Violence Against Tutsi by Soldiers at Various Locations in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye, and Ruhengeri, April to June 1994 ........................................................................................... 234 4.4.1.5.1 Introduction ....................................................................................................................................... 234 4.4.1.5.1.1 Improper Pleading of Crimes Allegedly Committed by Soldiers in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri ..................................................................................................................................... 235 4.4.1.5.1.2 Allegations of Serious Bodily and Mental Harm ........................................................................ 235 4.4.1.5.1.3 Allegations at Charles Lwanga Church ...................................................................................... 236 4.4.1.5.1.4 Allegations at Kabgayi Primary School ..................................................................................... 236 4.4.1.5.2 Evidence ............................................................................................................................................ 237 4.4.1.5.2.1 Charles Lwanga Church, 9 to 10

June 1994 ............................................................................... 237 4.4.1.5.2.2 Josephite Brothers Compound, 8 April 1994 and 7 June 1994 ................................................... 238 4.4.1.5.2.3 ETO-Nyanza, 11 April 1994 ...................................................................................................... 241 4.4.1.5.2.3.1 Evidence ............................................................................................................................. 241 4.4.1.5.2.4 Centre Hospitalier de Kigali ....................................................................................................... 243 4.4.1.5.2.4.1 Prosecution Evidence .......................................................................................................... 243 4.4.1.5.2.4.2 Defence Evidence ............................................................................................................... 246 4.4.1.5.2.5 Kicukiro Conseiller’s Office ...................................................................................................... 248 4.4.1.5.2.6 École des Sciences Infirmières de Kabgayi ................................................................................ 248 4.4.1.5.2.7 TRAFIPRO and the Musambira Commune Office and Dispensary ........................................... 250 4.4.1.5.3 Deliberations

..................................................................................................................................... 255 4.4.1.5.3.1 Charles Lwanga Church, 9 to 10 June 1994 ............................................................................... 255 4.4.1.5.3.2 Josephite Brothers Compound, 8 April and 7 June 1994 ............................................................ 257 4.4.1.5.3.2.1 Attack Against Tutsi Civilians at the Josephite Brothers Compound, 8 April 1994 ........... 257 4.4.1.5.3.2.2 Attack Against Tutsi Civilians at Josephite Brothers Compound, 7 June 1994 .................. 259 4.4.1.5.3.3 ETO-Nyanza .............................................................................................................................. 260 4.4.1.5.3.4 Centre Hospitalier de Kigali, April to June 1994 ....................................................................... 262 17 May 2011 6/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.4.1.5.3.5 École des Sciences Infirmières de Kabgayi ................................................................................ 266 4.4.1.5.3.6 Musambira Commune Office and Dispensary............................................................................ 267 4.4.1.5.3.7 TRAFIPRO, April and May 1994 .............................................................................................. 269 4.4.1.5.3.8 Bizimungu’s Superior Responsibility ......................................................................................... 270 4.4.1.5.3.9 Crimes in Gitarama Préfecture During April and May 1994 ...................................................... 271 4.4.1.5.3.10 Crimes at the Josephite Brothers Compound on 7 June 1994 ................................................... 272 4.4.1.5.3.11 Exhibits Tendered by the Prosecution ...................................................................................... 273 4.4.2 Ndindiliyimana ......................................................................................................................... 276 4.4.2.1 Killing of Tutsi by Gendarmes in Nyaruhengeri, Including at Kansi Parish, and the Provision of a Grenade to Interahamwe by Gendarmes at Ndindiliyimana’s Residence

................................................................. 276 4.4.2.1.1 Introduction ....................................................................................................................................... 276 4.4.2.1.2 Kansi Parish ....................................................................................................................................... 278 4.4.2.1.2.1 Evidence ..................................................................................................................................... 278 4.4.2.1.2.1.1 Prosecution Evidence .......................................................................................................... 278 4.4.2.1.2.1.2 Defence Evidence ............................................................................................................... 282 4.4.2.1.2.2 Deliberations .............................................................................................................................. 286 4.4.2.1.2.2.1 Ndindiliyimana’s Awareness of Refugees at Kansi Parish ................................................. 286 4.4.2.1.2.2.2 The Number of Tutsi Refugees at Kansi Parish .................................................................. 287 4.4.2.1.2.2.3 Date of the Attack at Kansi Parish ...................................................................................... 288

4.4.2.1.2.2.4 Involvement of Gendarmes Guarding Ndindiliyimana’s Nyaruhengeri Residence in the Attack at Kansi Parish ................................................................................................................................. 289 4.4.2.1.2.2.5 Ndindiliyimana’s Superior Responsibility .......................................................................... 290 4.4.2.1.3 Provision of Two Grenades to an Interahamwe Militiaman Called Kajuga ...................................... 291 4.4.2.1.3.1 Evidence ..................................................................................................................................... 291 4.4.2.1.3.1.1 Prosecution Evidence .......................................................................................................... 291 4.4.2.1.3.1.2 Defence Evidence ............................................................................................................... 292 4.4.2.1.3.2 Deliberations .............................................................................................................................. 292 4.4.2.1.3.2.1 Provision of Two Grenades to Kajuga ................................................................................ 293 4.4.2.1.3.2.2 Order by Gendarmes to Kill Tutsi ....................................................................................... 293

4.4.2.1.3.2.3 Kajuga’s Grenade Attack on the Secteur Office in Nyaruhengeri ....................................... 293 4.4.2.1.3.2.4 Conclusion .......................................................................................................................... 294 4.4.2.2 The Killing of Tutsi Refugees by Gendarmes at Saint André College in Nyamirambo, Kigali .............. 294 4.4.2.2.1 Introduction ....................................................................................................................................... 294 4.4.2.2.2 Evidence ............................................................................................................................................ 294 4.4.2.2.2.1 Prosecution Evidence ................................................................................................................. 295 4.4.2.2.2.2 Defence Evidence ....................................................................................................................... 298 4.4.2.2.3 Deliberations ..................................................................................................................................... 300 4.4.2.2.3.1 The Role of Gendarmes in the Killing of Tutsi Refugees at St. André College ......................... 300 4.4.2.2.3.2 Ndindiliyimana’s Superior Responsibility

................................................................................. 305 4.4.2.3 Killing of Tutsi from CELA by Gendarmes and Interahamwe ................................................................ 307 4.4.2.3.1 Introduction ....................................................................................................................................... 307 4.4.2.3.2 Evidence ............................................................................................................................................ 307 4.4.2.3.2.1 Prosecution Evidence ................................................................................................................. 307 4.4.2.3.2.2 Defence Evidence ....................................................................................................................... 309 4.4.2.3.3 Deliberations ..................................................................................................................................... 309 4.4.2.3.3.1 The Abduction and Killing of Tutsi Civilians from CELA ........................................................ 309 4.4.2.3.3.2 The Role of Gendarmes in the Events that Led to the Killing of Tutsi Civilians Abducted from CELA ...................................................................................................................................................

312 4.4.2.3.3.3 Ndindiliyimana’s Superior Responsibility ................................................................................. 313 4.5 MURDER AS A CRIME AGAINST HUMANITY ...................................................................................... 314 4.5.1 Introduction .............................................................................................................................. 314 4.5.2 Bizimungu ................................................................................................................................ 315 4.5.2.1 Killing of Four Tutsi by Militiamen at Ruhengeri Agronomic Centre .................................................... 315 4.5.2.1.1 Introduction ....................................................................................................................................... 315 4.5.2.1.2 Evidence ............................................................................................................................................ 315 4.5.2.1.2.1 Prosecution Evidence ................................................................................................................. 315 4.5.2.1.2.2 Defence Evidence ....................................................................................................................... 317 4.5.2.1.3 Deliberations

..................................................................................................................................... 319 4.5.2.2 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Butare ................................................ 321 4.5.2.2.1 Introduction ....................................................................................................................................... 321 4.5.2.2.2 Evidence ............................................................................................................................................ 321 4.5.2.2.3 Deliberations ..................................................................................................................................... 324 17 May 2011 7/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.5.2.2.3.1 Abduction and Murder of Refugees at the Butare Préfecture Office and EER .......................... 324 4.5.2.2.3.2 Rape of Female Refugees at the Butare Préfecture Office and EER .......................................... 325 4.5.2.2.3.3 Bizimungu’s Superior Responsibility ......................................................................................... 325 4.5.2.3 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Gisenyi ............................................... 327 4.5.2.3.1 Introduction ....................................................................................................................................... 327 4.5.2.3.2 Evidence ............................................................................................................................................ 327 4.5.2.3.3 Deliberations ..................................................................................................................................... 330 4.5.2.4 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Cyangugu ........................................... 331 4.5.2.4.1 Introduction ....................................................................................................................................... 331 4.5.2.4.2 Evidence

............................................................................................................................................ 332 4.5.2.4.2.1 Prosecution Evidence ................................................................................................................. 332 4.5.2.4.2.2 Defence Evidence ....................................................................................................................... 338 4.5.2.4.3 Deliberations ..................................................................................................................................... 338 4.5.2.4.3.1 Abduction and Killing of Refugees at Cyangugu Stadium ......................................................... 339 4.5.2.4.3.2 Rapes at Cyangugu Stadium ....................................................................................................... 341 4.5.2.4.3.3 Abduction and Killing of Refugees from the Nyarushishi Camp Compound ............................ 342 4.5.2.4.3.4 Bizimungu’s Superior Responsibility ......................................................................................... 342 4.5.3 Ndindiliyimana ......................................................................................................................... 343 4.5.3.1 Killing of Ignace Habimana and Célestin Munyanshagore in Nyaruhengeri

.......................................... 343 4.5.3.1.1 Introduction ....................................................................................................................................... 343 4.5.3.1.2 Evidence ............................................................................................................................................ 343 4.5.3.1.2.1 Prosecution Evidence ................................................................................................................. 343 4.5.3.1.2.2 Defence Evidence ....................................................................................................................... 348 4.5.3.1.3 Deliberations ..................................................................................................................................... 351 4.5.3.2 Killing of Civilians by Interahamwe at a Roadblock Near Camp Kacyiru ............................................. 352 4.5.3.2.1 Introduction ....................................................................................................................................... 352 4.5.3.2.2 Evidence ............................................................................................................................................ 352 4.5.3.2.3 Deliberations

..................................................................................................................................... 353 4.5.3.3 Killing of Gahoki .................................................................................................................................... 353 4.5.3.3.1 Introduction ....................................................................................................................................... 353 4.5.3.3.2 Evidence ............................................................................................................................................ 353 4.5.3.3.2.1 Prosecution Evidence ................................................................................................................. 353 4.5.3.3.2.2 Defence Evidence ....................................................................................................................... 354 4.5.3.3.3 Deliberations ..................................................................................................................................... 355 4.5.3.4 The Killing of Aloys Niyoyita and Phocus Kananeri by Gendarmes in Kigali ....................................... 356 4.5.3.4.1 Introduction ....................................................................................................................................... 356 4.5.3.4.2 Evidence

............................................................................................................................................ 356 4.5.3.4.3 Deliberations ..................................................................................................................................... 357 4.5.3.5 Killing of Tutsi by Gendarmes at a Roadblock in Nyamirambo ............................................................. 358 4.5.3.5.1 Introduction ....................................................................................................................................... 358 4.5.3.5.2 Evidence ............................................................................................................................................ 358 4.5.3.5.3 Deliberations ..................................................................................................................................... 360 4.5.4 Nzuwonemeye and Sagahutu .................................................................................................... 361 4.5.4.1 Killing of Prime Minister Agathe Uwilingiyimana ................................................................................. 361 4.5.4.1.1 Introduction ....................................................................................................................................... 361 4.5.4.1.2 Prosecution Evidence

........................................................................................................................ 361 4.5.4.1.3 Defence Evidence .............................................................................................................................. 370 4.5.4.1.3.1 Nzuwonemeye Defence Witnesses ............................................................................................. 370 4.5.4.1.3.2 Sagahutu Defence Witnesses ...................................................................................................... 380 4.5.4.1.4 Deliberations ..................................................................................................................................... 382 4.5.4.1.4.1 Order by Nzuwonemeye and Sagahutu to Deploy RECCE Armoured Vehicles to the Residence ... ................................................................................................................................................... 382 4.5.4.1.4.2 Involvement of RECCE Battalion Soldiers in the Attack at the Residence ................................ 384 4.5.4.2 Killing of Belgian UNAMIR Soldiers ..................................................................................................... 390 4.5.4.2.1 Introduction

....................................................................................................................................... 390 4.5.4.2.2 Evidence ............................................................................................................................................ 391 4.5.4.2.2.1 Prosecution Evidence ................................................................................................................. 391 4.5.4.2.2.2 Defence Evidence ....................................................................................................................... 398 4.5.4.2.2.2.1 Nzuwonemeye Defence Evidence ....................................................................................... 398 4.5.4.2.2.2.2 Sagahutu Defence Evidence ................................................................................................ 412 4.5.4.2.3 Deliberations ..................................................................................................................................... 419 4.5.4.2.3.1 Introduction ................................................................................................................................ 419 17 May 2011 8/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 4.5.4.2.3.2 Participation of RECCE Battalion Soldiers in the Attack .......................................................... 420 4.5.4.2.3.3 Superior Responsibility of Nzuwonemeye and Sagahutu ........................................................... 424 4.6 EXTERMINATION AS A CRIME AGAINST HUMANITY ........................................................................ 428 4.7 RAPE AS A CRIME AGAINST HUMANITY ............................................................................................ 428 4.8 MURDER AS A VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II ............................................................................................................................... 429 4.8.1 Introduction .............................................................................................................................. 429 4.8.2 Allegations Considered in the Chamber’s Factual Findings for Genocide and Crimes Against Humanity ................................................................................................................................. 430 4.8.3 Responsibility of Nzuwonemeye and Sagahutu under Article 6(1) for the Killings of the Belgian Soldiers

................................................................................................................................. 430 4.9 RAPE AS A VIOLATION OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II ............................................................................................................................... 431 CHAPTER V: LEGAL FINDINGS ........................................................................................................ 432 5.1 LEGAL PRINCIPLES ............................................................................................................................. 432 5.1.1 Direct Responsibility Under Article 6(1) .................................................................................. 432 5.1.2 Superior Responsibility Under Article 6(3) ............................................................................... 433 5.2 AUGUSTIN NDINDILIYIMANA’S SUPERIOR RESPONSIBILITY ........................................................... 434 5.2.1 Authority: General Considerations ........................................................................................... 434 5.2.2 De Jure Authority ..................................................................................................................... 434 5.2.3 De Facto Authority

................................................................................................................... 437 5.2.3.1 Gendarmes Deployed to Assist the Army in Combat .............................................................................. 437 5.2.3.2 Gendarmes Not Deployed to Assist the Army in Combat ....................................................................... 438 5.2.4 Superior – Subordinate Relationship ........................................................................................ 441 5.2.5 Knowledge ............................................................................................................................... 441 5.2.6 Failure to Punish ...................................................................................................................... 442 5.3 AUGUSTIN BIZIMUNGU’S SUPERIOR RESPONSIBILITY ..................................................................... 442 5.3.1 Authority : General Observations ............................................................................................. 442 5.3.2 Retroactive Command Responsibility ....................................................................................... 443 5.3.3 De Jure Authority ..................................................................................................................... 444 5.3.4 De Facto Authority

................................................................................................................... 445 5.3.5 Superior–Subordinate Relationship .......................................................................................... 448 5.3.6 Knowledge ............................................................................................................................... 449 5.3.7 Failure to Prevent Crimes or Punish the Perpetrators.............................................................. 450 5.4 FRANÇOIS-XAVIER NZUWONEMEYE’S SUPERIOR RESPONSIBILITY ............................................... 454 5.4.1 Authority: General Considerations ........................................................................................... 454 5.4.2 De Jure Authority ..................................................................................................................... 455 5.4.3 De Facto Authority ................................................................................................................... 455 5.4.4 Superior – Subordinate Relationship ........................................................................................ 456 5.4.5 Knowledge ............................................................................................................................... 456 5.4.6 Failure to Prevent or Punish

.................................................................................................... 457 5.5 INNOCENT SAGAHUTU’S SUPERIOR RESPONSIBILITY ...................................................................... 458 5.5.1 Authority: General Considerations ........................................................................................... 458 5.5.2 De Jure Authority ..................................................................................................................... 458 5.5.3 De Facto Authority ................................................................................................................... 458 5.5.4 Superior – Subordinate Relationship ........................................................................................ 459 5.5.5 Knowledge ............................................................................................................................... 459 5.5.6 Failure to Prevent or Punish .................................................................................................... 460 5.6 CUMULATIVE CONVICTIONS .............................................................................................................. 460 5.6.1 Introduction .............................................................................................................................. 460 5.6.2 Murder as a Crime

Against Humanity and Extermination as a Crime Against Humanity ......... 461 5.6.3 Genocide and Extermination as a Crime Against Humanity ..................................................... 461 5.6.4 War Crimes and Crimes Against Humanity .............................................................................. 461 5.6.5 War Crimes and Genocide ....................................................................................................... 462 5.7 COUNT 1: CONSPIRACY TO COMMIT GENOCIDE .............................................................................. 462 5.7.1 Introduction .............................................................................................................................. 462 17 May 2011 9/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 5.7.2 Law ................................................................................................................................. 463 5.7.3 Deliberations ............................................................................................................................ 464 5.7.3.1 The Enemy Commission Document ........................................................................................................ 464 5.7.3.2 Provision of Military Training and Distribution of Weapons to Militia .................................................. 465 5.7.3.3 Meetings to Devise Strategies for Exterminating Tutsi ........................................................................... 465 5.7.3.4 Opposition to the Successful Implementation of the Arusha Accords .................................................... 465 5.7.3.5 Transfer of Gendarmerie Unit Commanders Opposed to the Massacres ................................................ 466 5.7.3.6 Formation of the Crisis Committee, the Interim Government and Killing of “Moderate” Political Leaders and Belgian UNAMIR Peacekeepers ........................................................................................................................ 466 5.7.3.7 Allegations Related to Radio Télévision Libre de Milles Collines

.......................................................... 466 5.7.3.8 The Killing of the Prime Minister and Belgian UNAMIR Soldiers ........................................................ 467 5.7.3.9 Augustin Bizimungu’s Anti-Tutsi Remarks and Conduct ....................................................................... 467 5.7.4 Conclusion ............................................................................................................................... 468 5.8 COUNTS 2 AND 3: GENOCIDE AND COMPLICITY IN GENOCIDE ....................................................... 468 5.8.1 Introduction .............................................................................................................................. 468 5.8.2 Law ................................................................................................................................. 469 5.8.3 Deliberations ............................................................................................................................ 470 5.8.3.1 Massacres in Nyaruhengeri: Kansi Parish, 20, 21 and 22 April .............................................................. 470 5.8.3.2 Massacres in Kigali: St. André College, 13 April 1994 .......................................................................... 471 5.8.4 Conclusion: Count 2

................................................................................................................. 471 5.8.5 Conclusion: Count 3 ................................................................................................................. 471 5.9 COUNTS 4, 5 AND 6: CRIMES AGAINST HUMANITY ........................................................................... 471 5.9.1 Introduction .............................................................................................................................. 471 5.9.2 Widespread or Systematic Attack .............................................................................................. 472 5.9.3 Count 4: Murder ...................................................................................................................... 473 5.9.3.1 Introduction ............................................................................................................................................. 473 5.9.3.2 Law ......................................................................................................................................................... 473 5.9.3.3 Deliberations ........................................................................................................................................... 473 5.9.3.3.1 Killing of Prime Minister Agathe Uwilingiyimana

........................................................................... 473 5.9.3.3.2 Killing of the Belgian Soldiers .......................................................................................................... 473 5.9.3.3.3 Killing at the Josephite Brothers Compound ..................................................................................... 474 5.9.3.3.4 Killings at the Préfecture Office and Episcopal Church of Rwanda in Butare .................................. 475 5.9.3.3.5 Killings at Cyangugu Stadium ........................................................................................................... 475 5.9.3.4 Conclusion .............................................................................................................................................. 475 5.9.3.4.1 Bizimungu ......................................................................................................................................... 475 5.9.3.4.2 Nzuwonemeye ................................................................................................................................... 475 5.9.3.4.3 Sagahutu ............................................................................................................................................ 475 5.9.4 Count 5: Extermination

............................................................................................................ 476 5.9.4.1 Introduction ............................................................................................................................................. 476 5.9.4.2 Law ......................................................................................................................................................... 476 5.9.4.3 Deliberations ........................................................................................................................................... 476 5.9.4.3.1 Killings at Kansi Parish ..................................................................................................................... 476 5.9.4.3.2 Killings at the Josephite Brothers Compound in Kigali ..................................................................... 477 5.9.4.3.3 Killings in Butare .............................................................................................................................. 477 5.9.4.4 Conclusion .............................................................................................................................................. 478 5.9.4.4.1 Ndindiliyimana .................................................................................................................................. 478

5.9.4.4.2 Bizimungu ......................................................................................................................................... 478 5.9.5 Count 6: Rape .......................................................................................................................... 478 5.9.5.1 Introduction ............................................................................................................................................. 478 5.9.5.2 Law ......................................................................................................................................................... 478 5.9.5.3 Deliberations ........................................................................................................................................... 478 5.9.5.4 Conclusion .............................................................................................................................................. 479 5.9.5.4.1 Bizimungu ......................................................................................................................................... 479 5.10 COUNTS 7 AND 8: VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA CONVENTIONS AND OF ADDITIONAL PROTOCOL II ............................................................................................................................... 479 5.10.1 Introduction

.............................................................................................................................. 479 5.10.2 Law ................................................................................................................................. 479 5.10.2.1 Threshold Requirements ..................................................................................................................... 479 5.10.2.1.1 Non-International Armed Conflict ................................................................................................... 479 5.10.2.1.2 Nexus Between the Alleged Violation and the Armed Conflict ...................................................... 480 17 May 2011 10/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 5.10.2.1.3 Victims Not Taking a Direct Part in Hostilities ............................................................................... 482 5.10.3 Count 7: Murder as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II .............................................................................................................. 482 5.10.3.1 Introduction ........................................................................................................................................ 482 5.10.3.2 Law ..................................................................................................................................................... 482 5.10.3.3 Deliberations ....................................................................................................................................... 483 5.10.3.4 Conclusions ........................................................................................................................................ 484 5.10.3.4.1 Ndindiliyimana ................................................................................................................................ 484 5.10.3.4.2 Bizimungu

....................................................................................................................................... 484 5.10.3.4.3 Nzuwonemeye ................................................................................................................................. 484 5.10.3.4.4 Sagahutu .......................................................................................................................................... 484 5.10.4 Count 8: Rape as a Violation of Article 3 Article 3 common to the Geneva Conventions and Additional Protocol II .............................................................................................................. 485 5.10.4.1 Introduction ........................................................................................................................................ 485 5.10.4.2 Law ..................................................................................................................................................... 485 5.10.4.3 Deliberations ....................................................................................................................................... 485 5.10.4.4 Conclusions ........................................................................................................................................ 485 5.10.4.4.1 Bizimungu

....................................................................................................................................... 485 CHAPTER VI: VERDICT ..................................................................................................................... 486 CHAPTER VII: SENTENCING ............................................................................................................. 488 7.1 INTRODUCTION .................................................................................................................................... 488 7.2 SUBMISSIONS ....................................................................................................................................... 488 7.2.1 Prosecution .............................................................................................................................. 488 7.2.1.1 Bizimungu ............................................................................................................................................... 488 7.2.1.2 Ndindiliyimana ....................................................................................................................................... 488 7.2.1.3 Nzuwonemeye ......................................................................................................................................... 489 7.2.1.4 Sagahutu

.................................................................................................................................................. 489 7.2.2 Defence ................................................................................................................................. 489 7.2.2.1 Bizimungu ............................................................................................................................................... 489 7.2.2.2 Ndindiliyimana ....................................................................................................................................... 490 7.2.2.3 Nzuwonemeye ......................................................................................................................................... 490 7.2.2.4 Sagahutu .................................................................................................................................................. 490 7.3 DELIBERATIONS .................................................................................................................................. 491 7.3.1 Bizimungu ................................................................................................................................ 491 7.3.1.1 Gravity of Offences

................................................................................................................................. 491 7.3.1.2 Aggravating Factors ................................................................................................................................ 492 7.3.1.3 Mitigating Factors ................................................................................................................................... 492 7.3.1.4 Sentencing Consideration ........................................................................................................................ 493 7.3.2 Ndindiliyimana ......................................................................................................................... 493 7.3.2.1 Gravity of Offences ................................................................................................................................. 493 7.3.2.2 Aggravating Factors ................................................................................................................................ 494 7.3.2.3 Mitigating Factors ................................................................................................................................... 494 7.3.2.3.1 Prosecutorial Conduct Towards Ndindiliyimana ............................................................................... 495 7.3.2.3.2

Ndindiliyimana’s Control Over the Gendarmes ................................................................................ 496 7.3.2.3.3 Evidence that Ndindiliyimana was a Political Moderate Who Supported the Arusha Accords and Cooperated with UNAMIR .................................................................................................................................. 496 7.3.2.3.4 Evidence that Ndindiliyimana was Sidelined and Threatened ........................................................... 502 7.3.2.3.5 Evidence of Ndindiliyimana’s Efforts to Save Tutsi and Prevent or Punish Killings ........................ 505 7.3.2.4 Sentencing Consideration ........................................................................................................................ 506 7.3.3 Nzuwonemeye ........................................................................................................................... 507 7.3.3.1 Gravity of Offences ................................................................................................................................. 507 7.3.3.2 Aggravating Factors ................................................................................................................................ 507 7.3.3.3 Mitigating Factors

................................................................................................................................... 508 7.3.3.4 Sentencing Consideration ........................................................................................................................ 509 7.3.4 Sagahutu ................................................................................................................................. 509 7.3.4.1 Gravity of Offences ................................................................................................................................. 509 7.3.4.2 Aggravating Factors ................................................................................................................................ 510 7.3.4.3 Mitigating Factors ................................................................................................................................... 510 7.3.4.4 Sentencing Consideration ........................................................................................................................ 511 17 May 2011 11/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 7.4 CONCLUSION ....................................................................................................................................... 512 7.4.1 Consequential Order ................................................................................................................ 512 PARTIALLY DISSENTING OPINION OF JUDGE PARK .................................................................. 514 ANNEX A: PROCEDURAL HISTORY ................................................................................................. 517 1) THE TRIBUNAL AND ITS JURISDICTION ............................................................................................. 517 2) PRE-TRIAL PHASE ............................................................................................................................... 517 3) ARRESTS AND INITIAL APPEARANCES OF THE ACCUSED ................................................................. 518 a) Ndindiliyimana ......................................................................................................................... 518 b) Bizimungu ................................................................................................................................ 518 c) Nzuwonemeye

.......................................................................................................................... 518 d) Sagahutu ................................................................................................................................. 518 4) OTHER PRE-TRIAL PROCEEDINGS .................................................................................................... 518 5) THE INDICTMENT OF 23 AUGUST 2004 .............................................................................................. 521 a) Ndindiliyimana ......................................................................................................................... 521 b) Bizimungu ................................................................................................................................ 521 c) Nzuwonemeye .......................................................................................................................... 522 d) Sagahutu ................................................................................................................................. 522 6) TRIAL PHASE ....................................................................................................................................... 522 7) FURTHER PROCEEDINGS

.................................................................................................................... 540 ANNEX B: CITED MATERIALS AND DEFINED TERMS ................................................................. 541 A) JURISPRUDENCE .................................................................................................................................. 541 i) ICTR ................................................................................................................................. 541 ii) ICTY ................................................................................................................................. 560 iii) Special Court for Sierra Leone ................................................................................................. 563 B) DEFINED TERMS AND ABBREVIATIONS ............................................................................................. 563 ANNEX C: INDICTMENT .................................................................................................................... 568 ANNEX D: LIST OF PSEUDONYMS—STRICTLY CONFIDENTIAL ............................................... 569 17 May 2011 12/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER I: Overview of the Case 1.1 Introduction 1. This case concerns the role of four members of the Rwandan Army and Gendarmerie nationale in the events in Rwanda between 6 April and 17 July 1994. These individuals are: Major General Augustin Ndindiliyimana, Chief of Staff of the Gendarmerie nationale; Major General Augustin Bizimungu, Commander of Operations for Ruhengeri secteur and Chief of Staff of the Rwandan Army after 19 April 1994; Major François-Xavier Nzuwonemeye, Commander of the elite Reconnaissance (RECCE) Battalion; and Captain Innocent Sagahutu, Commander of Squadron A of the RECCE Battalion.

2. In this overview, the Chamber will provide a brief account of each allegation in the Indictment,1 along with a synopsis of its findings in relation to each allegation. The full reasoning underlying the Chamber’s findings is set out in Chapters IV and V of the Judgement. 1.1.1 Allegations Withdrawn and Acquittals Entered at the Close of the Prosecution’s Case in Chief 3. At the close of the Prosecution’s case in chief, the Prosecution withdrew a number of allegations described in various paragraphs of the Indictment and subject to acquittals by the Chamber. These withdrawn allegations are contained in paragraphs 71, 72, 79, 92, 94, 95, 97 and 98 of the Indictment. The Chamber also entered an acquittal for paragraph 66, which the Prosecution did not willingly withdraw. The Prosecution failed to lead evidence on a number of paragraphs, including some of the events relating to paragraphs 51, 54, 55, 56, 57, 58, 80 and 85. The Chamber therefore did not consider any of the incidents in these paragraphs in its verdict. These matters are detailed in Chapter II of the Judgement. 1.1.2 Count 1: Conspiracy to Commit Genocide 4. The Indictment alleges that the four Accused conspired among themselves and with other high-ranking Hutu civilian and military authorities to commit genocide against Tutsi. In response, all Accused reject the allegation that they conspired to commit genocide. Nzuwonemeye, in addition, submits that the Indictment failed to plead with the requisite specificity the allegations of conspiracy proffered against him.

5. The Chamber has limited its findings to a determination of whether the four Accused in this trial conspired to commit genocide against Tutsi based on the facts alleged in the Indictment. In so doing, the Chamber finds that the Prosecution failed to prove that the Accused engaged in a conspiracy to commit genocide. 1.1.3 Counts 2 and 3: Genocide or in the Alternative Complicity in Genocide 6. The Indictment alleges that Ndindiliyimana and Bizimungu are responsible as direct perpetrators and superiors for genocide against the Tutsi population of Rwanda. In the alternative, the Indictment alleges that Ndindiliyimana and Bizimungu were complicit in genocide. 1 In this Judgement, the Indictment refers to the Prosecution’s Amended Indictment of 23 August 2004. 17 May 2011 13/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.3.1 Bizimungu and the Killing of Tutsi by Interahamwe in Rwankeri Secteur and Busogo Parish 7. The Indictment alleges that on 7 April 1994, Bizimungu attended a meeting of prominent members of the Ruhengeri community, where he stated that Tutsi should be killed. It is alleged that following the meeting, local militiamen and soldiers under Bizimungu’s command killed Tutsi in Rwankeri secteur and at Busogo Parish.

8. The Chamber finds that Bizimungu attended the 7 April 1994 meeting alluded to in the Indictment and that he made remarks calling for the killing of Tutsi in Ruhengeri. The Chamber further finds that widespread killings began after the meeting. The Chamber has concluded that Bizimungu’s remarks contributed significantly to the killings by Interahamwe in Rwankeri secteur. As for the events at Busogo Parish, the Chamber finds that the Prosecution has failed to prove that Bizimungu’s remarks had any effect on the assailants who killed Tutsi civilians at the parish. 1.1.3.2 Bizimungu and the Killing of Tutsi by Interahamwe at the Ruhengeri Court of Appeal 9. The Indictment alleges that Bizimungu and the sous-préfet of Ruhengeri met with members of the Interahamwe on or about 8 April 1994 and urged them to kill the Tutsi refugees at the Ruhengeri Court of Appeal. The Indictment further alleges that on or about 14 April 1994, Bizimungu, who was situated at a location close to the Ruhengeri Court of Appeal, signalled for the Interahamwe to attack the refugees there. This resulted in the deaths of more than 100 Tutsi.

10. The Chamber finds that more than 100 Tutsi refugees were killed by Interahamwe at the Ruhengeri Court of Appeal. However, the evidence adduced by the Prosecution fails to reliably implicate Bizimungu in those crimes. 1.1.3.3 Bizimungu and the Killing of Tutsi by Interahamwe at Roadblocks in EGENA 11. The Indictment alleges that on 16 June 1994, Bizimungu held a meeting with members of the Interahamwe at EGENA Camp at which he ordered Interahamwe militiamen to establish roadblocks in order to intercept Tutsi fleeing from the areas affected by the war. The Indictment further alleges that a large number of Tutsi and Hutu misidentified as Tutsi were killed at a roadblock at EGENA Camp as a result of Bizimungu’s instructions to the militia at that meeting.

12. The Chamber finds that the Prosecution failed to prove that Bizimungu held a meeting with militiamen at EGENA Camp and that a large number of Tutsi and Hutu misidentified as Tutsi were killed at a roadblock erected near EGENA Camp. 1.1.3.4 Bizimungu and the Killing of Tutsi in Byangabo Neighbourhood 13. The Indictment alleges that Lieutenant Mburuburengero, a subordinate of Bizimungu, ordered Interahamwe militiamen to exterminate Tutsi in Ruhengeri. The Indictment further alleges that as a result of Mburuburengero’s order, and using weapons and fuel provided by soldiers, 60 to 70 Tutsi were killed in the morning in Byangabo neighbourhood after their houses had been set aflame in order to flush them out. 17 May 2011 14/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 14. The Chamber is not satisfied that Lieutenant Mburuburengero gave orders to militiamen that precipitated the killings at Byangabo neighbourhood on 7 April 1994. The Chamber is also not satisfied that soldiers provided weapons and fuel that contributed to the killings in Byangabo. The Prosecution therefore failed to prove this allegation beyond reasonable doubt. 1.1.3.5 Bizimungu and the Killing of Tutsi at Various Places in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri 15. The Indictment alleges that between mid-April and late-June 1994, soldiers under Bizimungu’s command killed and caused serious bodily and mental harm to Tutsi at various locations in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri.

16. The Chamber finds that the Prosecution has proved beyond reasonable doubt that Rwandan Army soldiers killed and caused serious bodily and mental harm to Tutsi at the Josephite Brothers compound, École Technique Officielle (“ETO”) and Nyanza Hill, the Musambira commune office and dispensary, École des Sciences Infirmières de Kabgayi (“ESI”)2 and the TRAFIPRO Centre (“TRAFIPRO”). The Chamber finds Bizimungu guilty of failing to prevent or punish the perpetrators of the crimes committed at the Josephite Brothers compound on 7 June and at the Musambira commune office and dispensary, ESI and TRAFIPRO during April and May 1994. However, the Chamber finds that Bizimungu is not criminally responsible for the participation of soldiers in crimes at the Josephite Brothers on 8 April and at ETO-Nyanza because those events took place before Bizimungu assumed his position as Chief of Staff of the Rwandan Army.

17. The Chamber finds that the Prosecution has failed to prove beyond reasonable doubt Bizimungu’s culpability for the remaining allegations. 1.1.3.6 Ndindiliyimana and the Killing of Tutsi by Gendarmes at Kansi Parish 18. The Indictment alleges that between 20 and 22 April 1994, gendarmes who were assigned to guard Ndindiliyimana’s house in Nyaruhengeri provided weapons and fuel to Interahamwe militiamen to kill Tutsi at Kansi Parish.

19. The Chamber finds that thousands of Tutsi civilians had sought refuge at Kansi Parish in the days before 20 April. The Chamber also accepts that a large number of those refugees were subsequently killed. The Chamber finds that the gendarmes stationed at Ndindiliyimana’s house not only provided fuel and weapons to militia at Kansi Parish, but also directly participated in the killing of Tutsi refugees at the parish. The Chamber is satisfied that Ndindiliyimana had knowledge of the role of these gendarmes in the killings, but did not take measures to punish them. The Chamber therefore finds Ndindiliyimana criminally responsible as a superior for these crimes. 2 In this Judgement, the École des Sciences Infirmières de Kabgayi (ESI) includes the Kabgayi Primary School referred to in the Indictment. 17 May 2011 15/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.3.7 Ndindiliyimana and the Killing of Tutsi at the Nyaruhengeri Secteur Office 20. The Indictment alleges that gendarmes guarding Ndindiliyimana’s residence in Nyaruhengeri provided two grenades to an Interahamwe militiaman named Kajuga, and that those grenades were subsequently used to seriously injure Tutsi refugees at the Nyaruhengeri secteur office.

21. The Chamber finds that this allegation has not been proved beyond reasonable doubt. 1.1.3.8 Ndindiliyimana and the Killing of Tutsi by Gendarmes at St. André College 22. The Indictment alleges that on or about 13 April 1994, gendarmes from the Nyamirambo brigade in collaboration with Interahamwe killed Tutsi men who had sought refuge at St. André College in Kigali. The Chamber finds that the Prosecution has proved beyond reasonable doubt that gendarmes based at Nyamirambo brigade participated in the killing of Tutsi civilians at St. André College.

23. The Chamber is also satisfied that Ndindiliyimana had reason to know that gendarmes under his command had committed these crimes and that he did not take any action to punish them. Accordingly, the Chamber finds Ndindiliyimana criminally responsible as a superior for these killings. 1.1.3.9 Ndindiliyimana and the Killing of Tutsi by Gendarmes and Interahamwe at CELA 24. The Indictment alleges that on or about 22 April, gendarmes removed approximately 60 Tutsi refugees from CELA and brought them to the gendarmerie’s Camp Muhima, where they were handed over to Interahamwe who subsequently killed them.

25. The Chamber, Judge Park dissenting, finds that the Prosecution did not adduce sufficient evidence to prove beyond reasonable doubt that Ndindiliyimana knew or had reason to know of the role of gendarmes in these events. Therefore, the Chamber does not find him culpable as a superior for these crimes. 1.1.4 Count 4: Murder as a Crime Against Humanity 26. The Indictment alleges that Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu are responsible as direct perpetrators and superiors for murder as a crime against humanity. 1.1.4.1 Bizimungu and the Killing of Tutsi by Militiamen at Ruhengeri Agronomic Centre 27. The Indictment alleges that at some point between 11 and 14 April 1994, Bizimungu brought four bound Tutsi to a roadblock at the Ruhengeri Agronomic Centre and ordered Interahamwe militiamen there to kill them.

28. The Chamber notes that one of the witnesses who testified in relation to this allegation recanted his testimony before another ICTR Trial Chamber. Consequently, the Chamber has disregarded his evidence. Upon consideration of the remaining evidence, the Chamber is not satisfied that this allegation has been proved beyond reasonable doubt. 17 May 2011 16/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.4.2 Bizimungu and the Killing of Tutsi at Various Locations in Kigali and Gitarama 29. The Indictment alleges that Bizimungu’s conduct at various locations in Kigali and Gitarama amounted not only to genocide, as detailed above, but also to murder and extermination as crimes against humanity.

30. In support of this allegation, the Prosecution relies on the same evidence that it presented in support of the allegation of genocide based on the killings of Tutsi at these locations. Accordingly, the Chamber makes the same factual findings as it did when considering these killings in relation to the crime of genocide. This leads the Chamber to find Bizimungu guilty of murder as a crime against humanity for the killings at the Josephite Brothers compound on 7 June and the killings at the Musambira commune office and dispensary, ESI and TRAFIPRO during April and May 1994. It finds Bizimungu not guilty for murder as a crime against humanity in relation to the charges at ETO-Nyanza, Centre Hospitalier de Kigali (“CHK”) and Charles Lwanga Church. 1.1.4.3 Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe at Various Locations in Butare 31. The Indictment alleges that after 19 April 1994, soldiers of the Rwandan Army under the command of Bizimungu killed many Tutsi at the préfecture office, Episcopal Church of Rwanda (“EER”), Gishamvu Church and Nyumba Parish in Butare.

32. The Chamber notes that the Prosecution presented no evidence in support of the events at Gishamvu Church and Nyumba Parish. In relation to the events at the préfecture office and EER, the Chamber is satisfied that soldiers under Bizimungu’s command abducted and killed Tutsi refugees at these locations. The Chamber further finds that Bizimungu knew or had reason to know of the role of Rwandan Army soldiers in these crimes, but did not take measures to prevent or punish them. The Chamber therefore finds him guilty as a superior for these crimes. 1.1.4.4 Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe in Gisenyi 33. The Indictment alleges that on 7 April 1994, Anatole Nsengiyumva, a subordinate of Bizimungu, ordered soldiers, militiamen and local leaders at a military camp to kill all Tutsi and RPF accomplices and then to distribute rifles and grenades to militiamen. The Indictment further alleges that between April and July 1994, militiamen in Gisenyi abducted and killed Tutsi and moderate Hutu on the orders of Nsengiyumva.

34. The Chamber finds that the evidence in relation to these crimes is insufficient to sustain a finding of guilt against Bizimungu. 1.1.4.5 Bizimungu and the Abduction and Killing of Tutsi by Soldiers and Interahamwe in Cyangugu 35. The Indictment alleges that in April and May 1994, Interahamwe and soldiers under the command of Bizimungu abducted and killed Tutsi refugees from Kamarampaka Stadium in Cyangugu (“Cyangugu Stadium”) and Camp Nyarushishi in Cyangugu préfecture. 17 May 2011 17/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 36. The Chamber finds that male Tutsi refugees at the stadium were identified and removed from the stadium and subsequently killed by soldiers and Interahamwe. The Chamber further finds that Bizimungu knew or had reason to know of these crimes. Accordingly, the Chamber finds Bizimungu criminally responsible for killings committed by soldiers at Cyangugu Stadium. However, the Chamber finds that the Prosecution evidence is insufficient to conclude that soldiers were implicated in killings of Tutsi men at Camp Nyarushishi. 1.1.4.6 Ndindiliyimana and the Killing of Ignace Habimana and Célestine Munyanshagore in Nyaruhengeri 37. The Indictment alleges that on 5 May 1994, Ndindiliyimana ordered a group of Interahamwe in Nyaruhengeri to kill two Tutsi men named Ignace Habimana and Célestine Munyanshagore.

38. The Chamber finds that there were significant inconsistencies within the Prosecution evidence. Accordingly, the Chamber is not satisfied that this allegation has been proved beyond reasonable doubt. 1.1.4.7 Ndindiliyimana and the Killing of Civilians by Interahamwe at a Gendarmerie Roadblock Near Camp Kacyiru 39. The Indictment alleges that during April 1994, at a roadblock near the Gendarmerie Headquarters at Camp Kacyiru, Interahamwe supervised by two gendarmes from Camp Kacyiru killed several Tutsi as well as some Hutu.

40. The Chamber is not persuaded that gendarmes from Kacyiru were involved in operating the roadblock in question or that they were implicated in the crimes that may have been committed at that roadblock. Consequently, the Chamber does not find Ndindiliyimana criminally responsible for this allegation. 1.1.4.8 Ndindiliyimana and the Killing of Gahoki 41. The Indictment alleges that in late April 1994, gendarmes stationed at Ndindiliyimana’s house in Nyaruhengeri killed a Tutsi named Gahoki and took his motorcycle for their use.

42. The Chamber finds that the Prosecution has failed to adduce sufficient evidence to prove beyond reasonable doubt that Ndindiliyimana was implicated in the killing of Gahoki. The Chamber therefore finds Ndindiliyimana not guilty in respect to this allegation. 1.1.4.9 Ndindiliyimana and the Killing of Aloys Niyoyita and Phocus Kananeri by Gendarmes in Kigali 43. The Indictment alleges that in early May 1994, gendarmes killed Aloys Niyoyita, a member of the Liberal Party, and Phocus Kananeri. Both of the victims were Tutsi.

44. The Chamber finds that the Prosecution has not established beyond reasonable doubt that gendarmes were responsible for the killings of Niyoyita and Kananeri. The Chamber accordingly finds Ndindiliyimana not guilty of these murders. 17 May 2011 18/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.4.10 Ndindiliyimana and the Killing of Tutsi at a Roadblock in Nyamirambo 45. The Indictment alleges that in April 1994, gendarmes operated a roadblock in Nyamirambo secteur at which Tutsi were stopped and summarily executed. The Chamber is not persuaded by the evidence implicating gendarmes in these crimes and therefore does not find Ndindiliyimana criminally responsible for this allegation. 1.1.4.11 Nzuwonemeye and Sagahutu and the Killing of Prime Minsiter Agathe Uwilingiyimana 46. The Indictment alleges that members of the RECCE Battalion under the command of Nzuwonemeye and Sagahutu, acting in collaboration with soldiers of the Presidential Guard, tortured and killed the Prime Minister, Agathe Uwilingiyimana, in her residence in Kigali on 7 April 1994. The Indictment further alleges that soldiers killed three members of the Prime Minister’s entourage, including her husband.

47. The Chamber heard a significant number of Prosecution and Defence witnesses concerning the death of Prime Minister Agathe Uwilingiyimana. The Chamber finds that RECCE Battalion members participated in the killing of the Prime Minister on 7 April 1994. The Chamber further finds that Nzuwonemeye and Sagahutu maintained regular communication with their subordinates at the residence of the Prime Minister as the attack unfolded, sending them supplies and issuing operational instructions. The Chamber is therefore satsified that the Prosecution has proved beyond reasonable doubt that Nzuwonemeye and Sagahutu ordered and aided and abetted the killing of the Prime Minister. 1.1.4.12 Nzuwonemeye and Sagahutu and the Killing of Belgian UNAMIR Soldiers 48. The Indictment alleges that members of the RECCE Battalion under the command of Nzuwonemeye and Sagahutu participated in the abduction of ten Belgian soldiers attached to the United Nations Assistance Mission for Rwanda (“UNAMIR”) on 7 April 1994 from the residence of Prime Minister Agathe Uwilingiyimana. The Indictment further alleges that these peacekeepers were disarmed and taken to Camp Kigali, where they were brutally killed by soldiers of the RECCE Battalion, the Presidential Guard and the Music Company.

49. The Chamber heard credible and concordant evidence establishing that soldiers under the command of Nzuwonemeye and Sagahutu were implicated in the killings of ten Belgian UNAMIR soldiers at Camp Kigali. The Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that Nzuwonemeye ordered the abduction and killing of the Belgian soldiers. However, the Chamber finds that Nzuwonemeye had reason to know of the involvement of his subordinates in these killings. The Chamber finds Nzuwonemeye guilty as a superior for failing to punish these crimes.

50. The Chamber finds that Sagahutu ordered RECCE Battalion soldiers to put down the resistance led by the surviving Belgian soldiers in the UNAMIR building at Camp Kigali. Furthermore, the Chamber finds that a multiple grenade launcher used in the attack came from Sagahutu’s office and that Sagahutu was aware that it was to be used to attack the UNAMIR soldiers. The Chamber finds Sagahutu guilty as a superior for failing to prevent or punish these crimes. 17 May 2011 19/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.4.13 Nzuwonemeye, Sagahutu and Bizimungu and the Killing of Tutsi at the Centre Hospitalier de Kigali 51. The Indictment alleges that throughout the months of April, May and June 1994, soldiers of the RECCE Battalion under the command of Nzuwonemeye and Sagahutu killed Tutsi civilians at CHK.

52. The Chamber finds that the Prosecution did not present sufficient evidence to find that soldiers of the Rwandan Army, including the RECCE Battalion, took part in killings of Tutsi civilians at CHK. Consequently, the Chamber cannot hold Bizimungu, Nzuwonemeye and Sagahutu responsible as superiors for killings at CHK. 1.1.5 Count 5: Extermination as a Crime Against Humanity 53. Count 5 of the Indictment charges Ndindiliyimana and Bizimungu with extermination as a crime against humanity for killings also charged as genocide and murder as a crime against humanity. The jurisprudence of the International Tribunals permits cumulative convictions for both genocide and extermination, as both crimes contain materially distinct elements. However, the Chamber cannot enter convictions for both extermination and murder as crimes against humanity because the element of murder is subsumed within the crime of extermination. Therefore, where the Chamber finds the existence of extermination as a crime against humanity, it must acquit on the count of murder as a crime against humanity, as the latter is a lesser offence subsumed within the former.

54. The Chamber recalls that the Prosecution failed to prove beyond reasonable doubt the culpability of the Accused for killings at a number of locations. Therefore, the Chamber will only consider the killings of Tutsi civilians at Kansi Parish between 20 and 22 April 1994, at the Josephite Brothers compound on 7 April 1994, and at the préfecture office and EER in Butare after 19 April 1994 in relation to the charge of extermination.

55. With regard to the killings at Kansi Parish, the Chamber finds that the Prosecution has proved beyond reasonable doubt that the killings resulted in the deaths of a large number of civilians. The evidence therefore supports the Prosecution’s charge of extermination as a crime against humanity. As the Chamber cannot enter cumulative convictions for murder and extermination based on the same facts, the Chamber only enters a conviction for extermination against Ndindiliyimana for the killings at Kansi Parish.

56. With regard to the killings at the Josephite Brothers compound on 7 June, the Chamber finds that the evidence establishes that a large number of civilians were killed. The evidence therefore supports the Prosecution’s charge of extermination as a crime against humanity. As the Chamber cannot enter cumulative convictions for murder and extermination based on the same facts, the Chamber only enters a conviction for extermination against Bizimungu for the killings at the Josephite Brothers compound.

57. With regard to the killings at the préfecture office and EER in Butare, the Prosecution presented evidence of the killings of a relatively small number of Tutsi men. The Chamber finds that the evidence adduced by the Prosecution does not satisfy the scale required for extermination as a crime against humanity. Therefore, the Chamber does not find Bizimungu criminally responsible for extermination for the killings at the préfecture office and EER in Butare. 17 May 2011 20/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.1.6 Count 6: Rape as a Crime Against Humanity 1.1.6.1 Bizimungu and the Rape of Tutsi by Soldiers and Interahamwe in Various Locations 58. The Indictment alleges that Rwandan Army soldiers raped Tutsi women at the Kicukiro conseiller’s office and CHK in Kigali, as well as at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama, at the préfecture office, EER, Gishamvu Church and Nyumba Parish in Butare, and at Cyangugu Stadium.

59. The Chamber finds that soldiers raped women at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama, at the préfecture office and EER in Butare, and at Cyangugu Stadium. The Chamber also finds that Bizimungu knew or had reason to know of the rapes committed at these locations, and finds him criminally responsible as a superior for these crimes. The Chamber finds Bizimungu not guilty of the remaining rape charges. 1.1.6.2 Nzuwonemeye and Sagahutu and the Rape of Tutsi by Soldiers at the Centre Hospitalier de Kigali 60. The Indictment alleges that soldiers of the RECCE Battalion under the command of Nzuwonemeye and Sagahutu raped Tutsi women at CHK between the months of April and June 1994.

61. The Chamber finds that the Prosecution has not proved beyond reasonable doubt that soldiers of the Rwandan Army committed rapes against Tutsi women at CHK. The Chamber therefore finds Nzuwonemeye and Sagahutu not guilty for the rapes committed at CHK. 1.1.7 Counts 7: Murder as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II 62. The Indictment alleges that the four Accused are criminally responsible for murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. In support of these war crimes charges, the Prosecution relies on allegations pleaded in relation to genocide and murder as a crime against humanity.

63. The Chamber recalls that the jurisprudence of the Tribunal establishes that war crimes contain a materially distinct element from both genocide and crimes against humanity and that they protect different interests. As such, cumulative convictions can be entered where the evidence also sustains the additional, distinct element necessary for war crimes, namely the nexus between the crime and an armed conflict. The Chamber has taken judicial notice of the existence of a non-international armed conflict in Rwanda between 7 April and 17 July 1994. The Chamber has previously found that the Prosecution failed to establish beyond reasonable doubt the responsibility of the Accused for the killings at EGENA, Charles Lwanga Church, CHK, ETO-Nyanza Hill, Gisenyi, CELA and the Nyamirambo roadblock. Accordingly, the Chamber does not find the Accused responsible for war crimes with respect to these allegations.

64. The Chamber has previously found Ndindiliyimana responsible as a superior for the killings at St. André College; Bizimungu responsible as a superior for the killings at the Josephite Brothers compound in Kigali on 7 June and the killings at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama; Nzuwonemeye and Sagahutu 17 May 2011 21/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T responsible as direct perpetrators for the killing of Prime Minister Agathe Uwilingiyimana; and Nzuwonemeye and Sagahutu responsible superiors for the killings of the Belgian soldiers in Kigali.

65. Accordingly, the Chamber finds Ndindiliyimana guilty as a superior of murder as a war crime for failing to punish the killings at St. André College; Bizimungu guilty as a superior of murder as a war crime for failing to prevent or punish the killings at the Josephite Brothers compound on 7 June and at the Musambira commune office and dispensary, ESI and TRAFIPRO during April and May 1994; Nzuwonemeye and Sagahutu guilty of murder as a war crime for ordering and aiding and abetting the killing of Prime Minister Uwilingiyamana; and Nzuwonemeye guilty as a superior of murder as a war crime for failing to punish the killings of the Belgian soldiers. In addition, in line with the charge under Count 7 of the Indictment, the Chamber finds Sagahutu guilty of murder as a war crime for ordering and aiding and abetting the killings of the Belgian soldiers. 1.1.8 Count 8: Rape as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II 66. The Indictment alleges that Bizimungu, Nzuwonemeye and Sagahutu are criminally responsible for rape as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. In support of these war crimes charges, the Prosecution relies on allegations pleaded in relation to genocide and rape as a crime against humanity.

67. In line with its findings for genocide and crimes against humanity, in relation to war crimes the Chamber finds Bizimungu responsible as a superior for rapes at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama, at the préfecture office and EER in Butare, and at Cyangugu Stadium. For reasons previously given, the Chamber finds Bizimungu not guilty with respect to the remaining rape allegations.

68. The Chamber finds Nzuwonemeye and Sagahutu not guilty of the rapes committed at CHK for the reasons given above. 1.2 Verdict 69. In arriving at its verdict, the Chamber has carefully considered the testimony of the witnesses, the evidence admitted into the record and the arguments of the parties. Having considered the evidence in its totality, the Chamber enters the following verdict against Augustin Ndindiliyimana, Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu.

70. The Chamber has found Ndindiliyimana responsible as a superior for failing to punish the killings of Tutsi at Kansi Parish in Nyaruhengeri between 20 and 22 April 1994 and the killings of Tutsi at St. André College in Kigali on or about 13 April 1994. The Chamber does not find Ndindiliyimana responsible for the remaining charges in the Indictment.

71. The Chamber therefore finds Ndindiliyimana guilty of genocide (Count 2), murder as a crime against humanity (Count 4), extermination as a crime against humanity (Count 5) and murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7). 17 May 2011 22/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 72. The Chamber has found Bizimungu responsible for aiding and abetting the killings of Tutsi in Rwankeri secteur. The Chamber has also found Bizimungu responsible as a superior for failing to prevent or punish the killings of Tutsi at the Josephite Brothers compound in Kigali on 7 June 1994, the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama during April and May 1994, the préfecture office and EER in Butare after 19 April 1994, and Cyangugu Stadium during April and May 1994. In addition, the Chamber has found Bizimungu responsible as a superior for failing to prevent or punish the rapes of women at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama during April and May 1994, the préfecture office and EER in Butare after 19 April 1994, and Cyangugu Stadium during April and May 1994. The Chamber does not find Bizimungu responsible for the remaining charges in the Indictment.

73. The Chamber therefore finds Bizimungu guilty of genocide (Count 2), murder as a crime against humanity (Count 4), extermination as a crime against humanity (Count 5), rape as a crime against humanity (Count 6), murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7), and rape as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 8).

74. The Chamber has found François-Xavier Nzuwonemeye responsible for ordering and aiding and abetting the killing of Prime Minister Agathe Uwilingiyamana. In addition, the Chamber has found Nzuwonemeye responsible as a superior for failing to punish the killings of the Belgian UNAMIR soldiers on 7 April 1994. The Chamber does not find Nzuwonemeye responsible for the remaining charges in the Indictment.

75. The Chamber therefore finds François-Xavier Nzuwonemeye guilty of murder as a crime against humanity (Count 4) and murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7).

76. The Chamber has found Innocent Sagahutu responsible for ordering and aiding and abetting the killings of Prime Minister Agathe Uwilingiyamana and the Belgian UNAMIR soldiers on 7 April 1994. The Chamber does not find Sagahutu responsible for the remaining charges in the Indictment.

77. The Chamber therefore finds Innocent Sagahutu guilty of murder as a crime against humanity (Count 4) and murder as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7). 1.3 Sentence 78. The Chamber has considered a number of factors in arriving at a unique sentence for each of the four Accused, including the gravity of the crimes committed as well as the aggravating and mitigating factors as argued by the Parties. The Chamber is entitled to enter a single sentence where the crimes charged constitute a single set of crimes in a specified geographic area and time frame. Accordingly, the Chamber exercises its discretion and will impose a single, universal sentence for each of the Accused.

79. In light of the gravity of the crimes committed by each of the Accused and the particular aggravating and mitigating circumstances of each case, the Chamber sentences Augustin Ndindiliyimana to time served since he was arrested in Belgium on 29 January 17 May 2011 23/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2000; Augustin Bizimungu to 30 years imprisonment; François-Xavier Nzuwonemeye to 20 years imprisonment and Innocent Sagahutu to 20 years imprisonment.

80. Bizimungu, Nzuwonemeye and Sagahutu shall remain in the custody of the Tribunal pending their transfer to the States in which they will serve their sentence. Ndindiliyimana shall be immediately released. The Chamber requests that the Registry make the necessary arrangements. 1.4 The Accused 1.4.1 Augustin Ndindiliyimana 81. Augustin Ndindiliyimana was born in 19433 and raised in Nyaruhengeri commune, Butare préfecture, Rwanda.4 Ndindiliyimana joined the military in 1966, enrolling in the military academy from which he graduated in 1968. Between 1971 and 1974, he attended the war college in Brussels to complete two separate courses of study.5 82. Upon his return from Belgium in 1974, Ndindiliyimana was posted to the basic training centre in Kanombe, Kigali. While stationed at Kanombe in 1975, he helped establish the Para Commando Battalion and served as the unit’s director of intelligence and training.6 In 1977, Ndindiliyimana was transferred to the École Supérieure Militaire (ESM), where he taught courses on platoon leadership, general staff techniques, tactics and revolutionary warfare, and additionally commanded a group of trainees.7 Two years later, Ndindiliyimana was transferred to the Staff Headquarters of the Rwandan Army. As Chief of Personnel of the General Staff between 1979 and 1982, Ndindiliyimana was responsible for recruiting senior, junior and non-commissioned

officers as well as enlisted soldiers.8 83. In February 1982, Ndindiliyimana was appointed Minister of Youth and Sports.9 Concurrent to his ministerial duties, Ndindiliyimana maintained his military commission, rising through the ranks of the Rwandan Army first to Commander, then Lieutenant Colonel and finally full Colonel.10 In 1990, he was appointed Minister of Transport and Communication.11 In 1991, Ndindiliyimana was appointed Minister in the President’s Office for Defence and Security Issues.12 From December 1991 to April 1992, Ndindiliyimana served as Minister of Defence.13 In 1992, he was elected President of the Rwandan Olympic Committee,14 and he remained active in the committee until March 1994.15 3 Indictment, para. 4. 4 T. 16 June 2008, p. 3. 5 T. 16 June 2008, p. 2. 6 T. 16 June 2008, p. 2. 7 T. 16 June 2008, p. 2-3. 8 T. 16 June 2008, p. 3. 9 T. 16 June 2008, pp. 3, 12, 14. 10 T. 16 June 2008, p. 31. 11 T. 16 June 2008, pp. 3, 19-20. 12 T. 16 June 2008, pp. 3, 25-27. 13 T. 16 June 2008, pp. 28-29. 14 T. 16 June 2008, p. 15. 15 T. 16 June 2008, p. 15. 17 May 2011 24/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 84. In June 1992, Ndindiliyimana was appointed Chief of Staff of the Gendarmerie.16 Beyond commanding all Rwandan gendarmes, Ndindiliyimana rebuilt the organisation’s command structure,17 reviewed the Gendarmerie’s capacity and completed a report on the integration of the RPF into the Gendarmerie in June 1993.18 On 1 January 1994, Ndindiliyimana was promoted to the rank of Major General under the provisions of the Arusha Accords.19 85. In the morning of 7 April 1994, Ndindiliyimana became a member of the Crisis Committee.20 The Crisis Committee, which was composed of a number of senior leaders of the Rwandan Armed Forces, ceased to exist when a civilian government was formed on 9 April. The nature of the Crisis Committee and Ndindiliyimana’s role are points of contention between the parties, and are discussed in detail in the factual findings.

86. On 5 June 1994, Ndindiliyimana was replaced as Chief of Staff of the Gendarmerie and appointed ambassador to Germany.21 On 17 June 1994, he left Rwanda for Zaire,22 eventually arriving in Belgium on 1 or 2 July 1994.23 87. Augustin Ndindiliyimana was arrested in Belgium on 28 January 2000.24 1.4.2 Augustin Bizimungu 88. Augustin Bizimungu was born on 28 August 195225 in Mukarange commune, Byumba préfecture, Rwanda.26 Bizimungu received a diploma in modern humanities in Ruhengeri before studying at ESM between 1972 and 1974.27 89. After completing his studies at ESM, Bizimungu was commissioned as a Second Lieutenant and sent to the commando training school in Bigogwe for a month of specialised instruction.28 Between August 1974 and January 1975, Bizimungu attended the commando training centre in Marche les Dames.29 Between March and June 1975, he attended another commando training course at Bigogwe, after which he became an instructor at the centre.30 While an instructor at Bigogwe, he was promoted to Lieutenant in 1977 and then to Captain in 1980.31 In 1982, Bizimungu attended the Royal Defence Institute in Belgium, from which 16 T. 16 June 2008, p. 39. 17 T. 16 June 2008, pp. 41-42. 18 T. 16 June 2008, pp. 42-47. 19 T. 16 June 2009, p. 1. 20 T. 20 June 2008, p. 64. 21 T. 18 June 2008, pp. 68-69. 22 T. 18 June 2008, p. 71. 23 T. 18 June 2008, p. 72. 24 Prosecution Closing Brief, para. 51. 25 Indictment, para. 1. 26 T. 4 December 2007, p. 2. 27 T. 4 December 2007, p. 3. 28 T. 4 December 2007, p. 3. 29 T. 4 December 2007, pp. 3-4. 30 T. 4 December 2007, p. 4. 31 T. 4 December 2007, p. 5. 17 May 2011 25/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T he graduated in 1984 with a diploma in chief of staff studies.32 While in Belgium, he was promoted to the rank of Major.33 90. In 1984, Bizimungu was appointed S-2 and S-3 Officer of the Para Commando Battalion at Kanombe.34 In January 1985, he was transferred to Gako and appointed to become the commander of the Bugesera training centre.35 In March 1988, Bizimungu was appointed commander of the Ruhengeri Para Commando Battalion and promoted to the rank of Lieutenant Colonel in 1991.36 In December 1993, Bizimungu was promoted to full Colonel and the following month, January 1994, he was appointed commander of military operations for the Ruhengeri secteur.37 During this period, he participated in a Ministry of Defence appraisal of the Rwandan Army.38 On 16 April 1994, Bizimungu was simultaneously appointed Chief of Staff of the Rwandan Army and promoted to the rank of Major General.39 Bizimungu took up his post as Chief of Staff on 19 April 1994.40 91. Augustin Bizimungu was arrested in August 2002 in Angola.41 1.4.3 François-Xavier Nzuwonemeye 92. François-Xavier Nzuwonemeye was born on 30 August 195542 in Ruli, Musasa commune, Kigali, Rwanda.43 In 1975, he enrolled in ESM.44 Upon graduating in 1978, Nzuwonemeye was assigned to the Para Commando Battalion in Kanombe, where he served first as a platoon

leader and later as company commander.45 93. In 1979, Nzuwonemeye was sent to North Korea, where he completed courses in intelligence, security and protection.46 The following year, he was transferred to the General Staff of the Rwandan Army, where he worked as an officer in the G-2 division. Within the G- 2, he led the internal security apparatus of the army and taught courses in accounting.47 The following year, in 1981, he was promoted to Lieutenant.48 While on the General Staff, Nzuwonemeye completed further advanced studies in deciphering in Paris in 1983, military administration in Brussels in 1986 and a second course in military administration (“BAM”) in 1988, and a study tour of the United States, including the Pentagon.49 In 1984 he was promoted to Captain, in 1987 to Major and in 1990 to Full Major.50 32 T. 4 December 2007, p. 4. 33 T. 4 December 2007, p. 5. 34 T. 4 December 2007, p. 4. 35 T. 4 December 2007, pp. 4-5. 36 T. 4 December 2007, p. 5. 37 T. 4 December 2007, p. 5. 38 T. 4 December 2007, p. 5. 39 T. 4 December 2007, p. 5. 40 T. 13 December 2007, p. 4. 41 T. 6 December 2007, p. 46; T. 11 December 2007, p. 60. 42 Indictment, para. 7. 43 T. 6 October 2008, p. 2. 44 T. 6 October 2008, p. 2. 45 T. 6 October 2008, p. 3. 46 T. 6 October 2008, p. 2. 47 T. 6 October 2008, p. 3. 48 T. 6 October 2008, p. 4. 49 T. 6 October 2008, p. 2. 50 T. 6 October 2008, p. 4. 17 May 2011 26/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 94. In October 1990, Nzuwonemeye was transferred to the G-3 office and assumed command of the secretariat of operations.51 In 1991, he was appointed commander of the 42nd Battalion in Gisenyi, and in January 1993 the commander of the 94th Battalion.52 In November 1993, Nzuwonemeye was appointed commander of the RECCE Battalion, which he led until July 1994.53 95. François-Xavier Nzuwonemeye was arrested in France on 15 February 2000.54 1.4.4 Innocent Sagahutu 96. Innocent Sagahutu was born in 1962 in Gisuma commune, Cyangugu préfecture, Rwanda.55 In 1981, Sagahutu enrolled in ESM.56 Upon graduating in 1985, he received his commission as a Second Lieutenant and was assigned to the Gendarmerie in Gikongoro.57 In 1987, Sagahutu was transferred to the Reconnaissance squad of the army, serving as a platoon commander.58 During his posting to the Reconnaissance squad, he completed cavalry and junior officer courses.59 In 1990, the Reconnaissance squad was enlarged to a battalion size, and Sagahutu commanded Squadron A from 1990 until July 1994.60 After the defeat of the Rwandan Armed Forces and the assumption of power by the RPF in July 1994, Sagahutu fled to Zaire.61 97. Innocent Sagahutu was arrested in Denmark on 15 February 2000.62 51 T. 6 October 2008, p. 3. 52 T. 6 October 2008, p. 3. 53 T. 6 October 2008, p. 3. 54 Prosecution Closing Brief, para. 54. 55 T. 1 December 2008, p. 1. 56 T. 1 December 2008, p. 2. 57 T. 1 December 2008, p. 2. 58 T. 1 December 2008, p. 2. 59 T. 1 December 2008, p. 2. 60 T. 1 December 2008, p. 5; Prosecution Closing Brief, para. 56. 61 T. 1 December 2008, p. 37. 62 Prosecution Closing Brief, para. 57. 17 May 2011 27/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER II: PRELIMINARY ISSUES 1.5 Rule 98bis Challenges 1.5.1 Introduction 98. Under Rule 98bis of the Statute, the Trial Chamber shall enter a judgement of acquittal for counts where the evidence is insufficient to sustain a conviction at the close of the Prosecution’s case in chief.63 In order to survive a Rule 98bis challenge, the Prosecution’s evidence must be sufficient to allow a reasonable trier of fact to find the accused guilty beyond reasonable doubt of the crime charged at the conclusion of the trial.64 Therefore, the relevant question is not whether the Trial Chamber would enter a conviction on the basis of the Prosecution evidence at the close of its case in chief, but whether it could if the evidence was believed.65 In order to enter a judgement of acquittal, the Trial Chamber must therefore find that there is no evidence of probative value in support of the allegation.66 99. In evaluating the evidence in response to a Rule 98bis challenge, the Trial Chamber recalls that it need not evaluate the evidence in relation to specific facts alleged in challenged paragraphs of the Indictment. Rather, the Trial Chamber determines the sufficiency of the Prosecution’s evidence in relation to particular counts of the Indictment.67 An accused may therefore be acquitted of specific counts, but not of a particular set of facts alleged in the Indictment.

100. The Prosecution may, however, request the withdrawal of specific paragraphs of the Indictment. In that case, the Defence is not required to present evidence responding to paragraphs of the Indictment withdrawn by the Prosecution at the Rule 98bis stage.68 1.5.2 Allegations Withdrawn by the Prosecution at the Rule 98bis Stage 101. At the close of its case in chief, the Prosecution withdrew paragraphs 71, 72, 92, 94, 95, 97 and 98 of the Indictment concerning Ndindiliyimana, as it had not led any evidence to support the allegations in those paragraphs.69 The Prosecution also withdrew paragraph 79 concerning Bizimungu for the same reason.70 The Chamber accepted the Prosecution’s submission and held that neither Ndindiliyimana nor Bizimungu was required to lead evidence in response to the allegations contained in those paragraphs.71 1.5.3 Acquittals at the Rule 98bis Stage 102. In addition to the withdrawn paragraphs, the Defence successfully challenged several counts in the Indictment. In response to the parties’ submissions, the Chamber entered a judgement of acquittal for complicity in genocide (Count 3) against Ndindiliyimana, as the 63 Rule 98bis of the Rules of Procedure and Evidence ("Rules"). 64 Ndindiliyimana Defence Motions Decision, para. 6. 65 Ndindiliyimana Defence Motions Decision, para. 6. 66 Ndindiliyimana Defence Motions Decision, para. 6. 67 Ndindiliyimana Defence Motions Decision, paras. 9-10. 68 Ndindiliyimana Defence Motions Decision, para. 10. 69 Ndindiliyimana Defence Motions Decision, para. 11. 70 Ndindiliyimana Defence Motions Decision, para. 11. 71 Ndindiliyimana Defence Motions Decision, para. 11. 17 May 2011 28/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution had previously withdrawn pargraphs 71 and 72 of the Indictment, which provided the sole factual basis for that count.72 103. The Chamber similarly entered a judgement of acquittal for murder as a war crime (Count 7) against Ndindiliyimana under Article 6(1) of the Statute, as the Prosecution had withdrawn paragraph 92 of the Indictment, which provided the sole factual basis for that count.73 However, the Chamber denied the Defence motion to also acquit under Article 6(3) of the Statute, as the evidence adduced in support of the charge of murder as a crime against humanity was sufficient to maintain the war crimes charge for superior responsibility.74 1.6 Evidentiary Matters 1.6.1 General Principles 104. The Trial Chamber must consider each piece of evidence in light of the totality of the evidence admitted at trial. In doing so, it must duly consider and give appropriate weight to all the evidence. It is not obligated to expressly refer to all evidence in the Judgement. The evidence before the Trial Chamber is assessed in accordance with the Statute, the Rules and the jurisprudence of the Tribunal. When no guidance can be found in these sources, the Chamber decides matters of evidence in such a way that best favours a fair determination of the case in accordance with the spirit of the

Statute and general principles of law.75 1.6.2 Judicial Notice 105. The Tribunal was established in the aftermath of the Rwandan genocide in 1994. Since then the Tribunal has heard extensive factual and legal analysis of the genocide, the armed conflict between the RPF and the Rwandan Armed Forces, and the historical context of the events occurring between April and July 1994. Rule 94 of the Rules permits the Trial Chamber to take judicial notice of “facts of common knowledge” that “are not reasonably subject to dispute”.76 Given the ICTR’s substantial jurisprudence surrounding the period between 1990 and July 1994, the Chamber takes judicial notice of the existence of genocide against the Tutsi of Rwanda,77 the widespread and systematic killing of Tutsi and Hutu civilians,78 and of a non-international armed conflict during the period covered by the Indictment against the accused and, where relevant, during the period preceding it.79 106. Although the Chamber takes judicial notice of certain facts that are beyond dispute, it recalls that in doing so it cannot relieve the Prosecution of its burden to prove its case beyond reasonable doubt.80 Judicially noticed facts merely establish another method by which the Prosecution can prove its case; they do not prove the case itself. Likewise, the taking of judicial notice does not shift the Prosecution’s burden to the Accused.81

Therefore, in taking 72 Ndindiliyimana Defence Motions Decision, para. 28. 73 Ndindiliyimana Defence Motions Decision, para. 42. 74 Ndindiliyimana Defence Motions Decision, para. 43. 75 Rule 89(B) of the Rules. 76 Semanza Appeal Judgement, para. 194. 77 Karemera Interlocutory Appeal on Judicial Notice, para. 35; Zigiranyirazo Trial Judgement, para. 10; Rwamakuba Trial Judgement, para. 2. 78 Seromba Trial Judgement, para. 4. 79 Semanza Trial Judgement, paras. 192, 198; Ntagerura et al. Trial Judgement, para. 74. 80 Semanza Trial Judgement, paras 191-192; Rwamakuba Trial Judgement, para. 2. 81 Semanza Trial Judgement, para. 191. 17 May 2011 29/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T judicial note of indisputable facts that do not directly implicate the Accused, the Chamber notes that it does not arrive at its ultimate verdict on the basis of these judicially noticed facts.82 The Chamber’s legal findings are based solely on those facts adduced at trial and subjected to examination and rebuttal by the Defence. 1.6.3 Burden and Standard of Proof 107. Pursuant to Article 20(3) of the Statute, the accused are presumed innocent until proven guilty. This presumption places the burden of establishing the guilt of the accused on the Prosecution, a burden it retains throughout the entire trial. A finding of guilt may be reached only when a majority of the Trial Chamber is satisfied that guilt has been proved beyond reasonable doubt.83 The burden of proof applies to all facts presented at trial, every element of the crimes charged and each mode of liability.84 108. In reaching its findings regarding the allegations pleaded in the Indictment, the Chamber may draw inferences from circumstantial evidence.85 As the Appeals Chamber has held, when relying on circumstantial evidence, “the required standard of proof – beyond reasonable doubt – necessitates that the accused can be found guilty on the basis of circumstantial evidence only where this is the sole possible reasonable inference from the

available evidence.”86 The Trial Chamber’s ability to draw inferences does not relieve the Prosecution of the burden of proving each element of the crime charged in the Indictment beyond reasonable doubt.87 109. While the Defence does not have to adduce rebuttal evidence to the Prosecution case, the Prosecution will fail to discharge its burden of proof if the Defence presents evidence that raises a reasonable doubt in regard to the Prosecution case.88 The Chamber’s refusal to believe or rely upon Defence evidence does not automatically amount to a guilty verdict. The Chamber must still determine whether the evidence accepted at trial establishes the accused’s guilt beyond reasonable doubt.89 1.6.4 Viva Voce Evidence 110. There is a general preference for viva voce evidence by witnesses in court.90 In order to evaluate the testimony of a particular witness, the Trial Chamber considers various factors, including “the witness’s demeanour in court, his role in the events in question, the plausibility and clarity of his testimony, whether there are contradictions or inconsistencies in his successive statements or between his testimony and other evidence, any prior examples of 82 Semanza Trial Judgement, paras 191-192; Seromba Trial Judgement, para. 5. 83 Rule 87(A) of the Rules. 84 Ntagerura et al. Appeal Judgement, paras. 170, 174-175; Martić Appeal Judgement, para. 55; Halilovic

Appeal Judgement, para. 125; Popović et al. Trial Judgement, para. 9. 85 Muhimana Appeal Judgement, para. 49; Gacumbitsi Appeal Judgement, para. 72. 86 Ntagerura et al. Appeal Judgement, para. 399; Seromba Appeal Judgement, para. 221. 87 Gacumbitsi Appeal Judgement, para. 41; Rwamakuba Trial Judgement, para. 37. 88 Rukundo Trial Judgement, para. 37. 89 Rukundo Trial Judgement, paras. 36-37; Nchamihigo Appeal Judgement; Nchamihigo Trial Judgement, para. 13; Kayishema and Ruzindana Appeal Judgement, para. 117; Niyitegeka Appeal Judgement, paras. 60-61. 90 Simba Appeal Judgement, para. 103; Rutaganda Appeal Judgement, para. 33. 17 May 2011 30/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T false testimony, any motivation to lie, and the witness’s responses during cross- examination.”91 111. The Chamber recognises that a significant period of time has elapsed between the events alleged in the Indictment and the testimonies given in court. Therefore, the lack of precision or minor discrepancies between the evidence of different witnesses, or between the testimony of a particular witness and a prior statement, does not necessarily discredit the evidence of a witness.92 While such issues do call for cautious consideration, there is no automatic bar on relying upon such evidence. Where the Trial Chamber refuses to accept certain evidence given by a witness, it may nonetheless accept and rely on other parts of the testimony deemed to be reliable and credible.93 112. The Chamber also recalls that the testimony of a single witness on a material fact does not, as a matter of law, require corroboration.94 However, where a single witness gives testimony concerning a particular incident, the Chamber recalls that it must act with particular care before accepting such evidence on its own when making a finding of guilt.95 113. Similarly, while direct evidence is preferred, hearsay evidence is not per se inadmissible before the Trial Chamber as long as it is probative of an issue in the case.96 However,

the Trial Chamber has the discretion to treat such hearsay evidence with caution, depending on the circumstances of the case.97 In certain circumstances, extraneous factors may require the use of corroborating evidence in support of hearsay testimony.98 114. The Trial Chamber also considers the individual circumstances of the witness, including his or her role in the events in question, his or her relationship with the accused and whether the witness has an underlying motive to give a certain version of the events. 1.6.5 Expert Witnesses 115. The Chamber is cognisant of the important role that an expert witness can play in “provid[ing] specialised knowledge that may assist the fact finder to understand the evidence presented.”99 For this reason, Trial Chambers have afforded expert witnesses wide latitude to present probative information about which they do not have firsthand knowledge.100 116. When assessing and weighing the evidence of an expert witness, the Trial Chamber considers factors such as the professional competence of the expert, the positions held by the expert, the scope of his or her expertise, the methodologies used in preparing evidence, the 91 Media Appeal Judgement, para. 194; Kamuhanda Appeal Judgement, paras. 179, 181; Zigiranyirazo Trial Judgement, para. 90; Bikindi Trial Judgement, para. 31. 92 Nchamihigo Trial Judgement, para. 15. 93 Seromba Appeal

Judgement, para. 110; Simba Appeal Judgement, para. 212. 94 Muvunyi Appeal Judgement, para. 128; Seromba Appeal Judgement, para. 79; Media Appeal Judgement, para. 652; Muhimana Appeal Judgement, paras. 101, 120. 95 Zigiranyirazo Trial Judgement, para. 92; Bikindi Trial Judgement, para. 33; Popović et al. Trial Judgement, para. 13. 96 Media Appeal Judgement, para. 509; Gacumbitsi Appeal Judgement, para. 115. 97 Rutaganda Appeal Judgement, paras. 275-276. 98 Rule 89 of the Rules; Muvunyi Trial Judgement, paras. 12-13; Rukundo Trial Judgement, para. 39; Rutaganda Appeal Judgement, para. 34. 99 Simba Trial Judgement, para. 174; Media Appeal, para. 198. 100 Semanza Appeal Judgement, para. 303. 17 May 2011 31/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T credibility of the findings made in light of these factors and other evidence, and the relevance and reliability of the evidence in relation to the case as a whole.101 1.6.6 Documentary Evidence 117. In order to properly assess the allegations before it, the Trial Chamber relies upon documentary evidence proffered by the parties. Documentary evidence can provide valuable corroboration of witness testimony or supplement valuable information where oral evidence is insufficient. However, documentary evidence is not, as a matter of law, preferable to viva voce testimony.102 In evaluating and weighing the evidence, the Trial Chamber looks particularly at factors such as authenticity and proof of authorship.103 1.7 Defects in the Indictment 1.7.1 Introduction 118. The Chamber notes that certain paragraphs in the Indictment share a common deficiency and raise issues relevant to the proper pleading of the Indictment. The Chamber deems it expedient to deal with these paragraphs as a preliminary issue. 1.7.2 Applicable Law 1.7.2.1 Specificity 119. It is well established that the Prosecution must know its case before proceeding to trial and cannot mould the case against the accused in the course of the trial depending on how the evidence unfolds.104 120. Pursuant to Article 20(4) of the Statute, an accused must be

informed of the “nature and cause” of the charges against him or her. This has been interpreted to oblige the Prosecution to plead in an indictment the precise legal qualification of the offence as well as the material facts underlying it. In assessing whether the Prosecution has fulfilled this obligation, paragraphs in an indictment should not be read in isolation but rather should be considered in the context of the other paragraphs.105 121. In order to guarantee a fair trial, the Prosecution must plead material facts underpinning the charges against an accused in the indictment with a sufficient degree of specificity. This is to ensure that the accused is on notice of the allegations such that he or she can prepare a defence and is not otherwise prejudiced.106 101 Semanza Appeal Judgement, para. 303; Zigiranyirazo Trial Judgement, para. 93; Blagojević and Jokić Trial Judgement, para. 27; Simić Appeal Judgement, para. 28. 102 Simba Appeal Judgement, para. 132. 103 Zigiranyirazo Trial Judgement, para. 94; Bikindi Trial Judgement, para. 37. 104 Muvunyi Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27, Ntakirutimana Appeal Judgement, para.

26. See also Kvočka et al. Appeal Judgement, para. 30; Niyitegeka Appeal Judgement, para. 194; Kupreškić et al. Appeal Judgement, para. 92. 105 Ntagerura et al. Appeal Judgement, paras. 29-30 106 Articles 17(4) and 18(4) of the ICTR and ICTY Statutes, respectively, provide: “Upon a determination that a prima facie case exists, the Prosecutor shall prepare an indictment containing a concise statement of the facts and the crime or crimes with which the accused is charged under the Statute”. Rule 47(C) of the ICTR and 17 May 2011 32/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 122. The question of whether material facts are pleaded with the required degree of specificity depends on the context of the particular case.107 An indictment has, for example, been found defective on the basis that it refers to broad date ranges,108 the places where the crimes are alleged to have occurred are only generally indicated and the victims are only generally identified.109 The Chamber further notes that the required degree of specificity varies according to the form of participation alleged against an accused.110 123. Where direct participation is alleged pursuant to Article 6(1) of the Statute, the Prosecution must fully adhere to its obligation to provide particulars in the indictment.111 This includes specifying “the identity of the victim, the time and place of the events and the means by which the acts were committed.”112 If the Prosecution alleges that the accused planned, instigated, ordered, or aided and abetted in the planning, preparation or execution of the alleged crimes, it is required to identify the “particular acts” or “the particular course of conduct” on the part of the accused that form the basis for the charges in question.113 124. Where the Prosecution relies on a theory of joint criminal enterprise, the Prosecution must specifically plead this mode of responsibility in

the indictment; failure to do so will result in a defective indictment.114 The Prosecution should plead the purpose of the enterprise, the identity of the participants, the nature of the accused’s participation in the enterprise, and the period of the enterprise.115 The indictment should also clearly indicate which form of joint criminal enterprise is being alleged.116 125. Where superior responsibility is alleged pursuant to Article 6(3) of the Statute, the specificity requirement is less stringent. This does not, however, obviate the Prosecution’s ICTY RPE states: “The indictment shall set forth the name and particulars of the suspect, and a concise statement of the facts of the case and of the crime with which the suspect is charged”. The ICTY and the ICTR have interpreted the obligation of the Prosecution to set out a concise statement of the facts in the light of the provisions concerning the rights of the accused. Article 20(2) of the Statutes of the ICTY and the ICTR provides that: “In the determination of charges against him, the accused shall be entitled to a fair and public hearing”. Article 20(4) provides that: “In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: (a) to be informed promptly and in detail in a language which he understands of the

nature and cause of the charge against him; (b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing”. See Krnojelac Appeal Judgement, para. 130; Ntagerura et al. Trial Judgement, para. 29; Kvoćka Form of the Indictment Decision, para. 14. 107 Kupreškić et al. Appeal Judgement, para. 89. 108 However, the Chamber recalls that “a broad date range, in and of itself, does not invalidate a paragraph of an indictment” and that at times “the sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity in such matters as the identity of victims and the dates of the commission of the crimes.” See Muvunyi Appeal Judgement, para. 59. 109 Kvočka et al. Appeal Judgement, para. 31. 110 Krnojelac Form of the Indictment Decision, para. 18. 111 Brđanin Form of the Indictment Decision, para. 22. 112 Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntagerura et al. Appeal Judgement, para. 23; Ntakirutimana Appeal Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para.

89. See also Ndindabahizi Appeal Judgement, para. 16. 113 Ntagerura et al. Appeal Judgement, para. 25. 114 Ntagerura et al. Appeal Judgement, para. 24; Kvočka et al. Appeal Judgement, para. 42. 115 Simic Appeal Judgement, para. 22; Simba Appeal Judgement, para. 63; Ntagerura et al. Appeal Judgement, para. 27; Kvočka et al. Appeal Judgement, para. 31. 116 Simba Appeal Judgement, para. 63; Ntagerura et al. Appeal Judgement, para. 24. 17 May 2011 33/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T obligation to particularise the underlying criminal events for which it seeks to hold the accused responsible.117 126. Accordingly, where superior responsibility is alleged, the Prosecution should plead the following material facts: (1) the relationship of the accused to his subordinates; (2) the acts and crimes of his alleged subordinates; (3) the criminal conduct of the accused by which he may be found to have known or had reason to know that the crimes were about to be committed or had been committed by his subordinates;118 and (4) the conduct of the accused by which he may be found to have failed to take the necessary and reasonable measures to prevent the crimes or to punish his subordinates thereafter.119 Therefore, these are material facts which must be pleaded with a sufficient degree of specificity.120 127. A failure to adhere to these principles and a failure to properly plead the material facts in an indictment with sufficient specificity constitutes a material defect in an indictment.121 1.7.2.2 Exception to Specificity 128. The pleading principles that apply to indictments in international criminal tribunals differ from those in domestic jurisdictions because of the nature and scale of the crimes when compared with those in domestic jurisdictions. For this reason, there is a narrow

exception to the specificity requirement for indictments at international criminal tribunals. In some cases, the widespread nature and sheer scale of the alleged crimes make it unnecessary and impracticable to require a high degree of specificity.122 129. However, this exception must be balanced with the accused’s right to be informed in detail about the nature and cause of the charges against him and should be assessed on a case by case basis. 1.7.2.3 Curing of Defects in an Indictment 130. In the ordinary course of proceedings, a challenge to the form of an indictment should be made at a relatively early stage of proceedings and usually at the pre-trial stage. An accused, therefore, is in the ordinary course of events expected to challenge the form of an 117 Ntagerura et al. Appeal Judgement, para. 35 118 A superior need not necessarily know the exact identity of his or her subordinates who perpetrate crimes in order to incur liability under Article 6(3) of the Statute. The Appeals Chamber has held that an accused is sufficiently informed of his subordinates where they are identified as coming from a particular camp and under the Accused’s authority. It has also held that physical perpetrators of crimes can be identified by category in relation to a particular crime site. See Muvunyi Appeal Judgement, paras. 55-56; Ntagerura et al. Appeal Judgement, paras. 140, 141, 153;

Blagojević and Jokić Appeal Judgement, para. 287; and Simba Appeal Judgement, paras. 71-72 (concerning identification of other members of a joint criminal enterprise), quoting Simba Trial Judgement, para. 393. 119 Muvunyi Appeal Judgement, para. 19. 120 Krnojelac Form of the Indictment Decision, para. 18; Ntagerura et al. Trial Judgement, para. 35. 121 Ntagerura et al. Appeal Judgement, para. 22 (“If an accused is not properly notified of the material facts of his alleged criminal activity until the Prosecution files its Pre-Trial Brief or until the trial itself, it will be difficult for his Defence to conduct a meaningful investigation prior to the commencement of the trial. The question of whether an indictment is pleaded with sufficient particularity is therefore dependent upon whether it sets out the material facts of the Prosecution case with enough detail to inform an accused clearly of the charges against him so that he may prepare his defence. An indictment which fails to plead material facts in sufficient detail is defective”). 122 Kvoćka Form of the Indictment Decision, para. 17. 17 May 2011 34/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T indictment prior to the rendering of judgement or, at the very least, to challenge the admissibility of evidence of material facts not pleaded in an indictment by interposing a specific objection at the time the evidence is introduced.123 An accused’s failure to make specific challenges to the form of an indictment during the course of the trial or to challenge the admissibility of evidence of material facts not pleaded in the indictment does not, however, preclude the Trial Chamber from assessing an indictment at the post-trial phase.

131. When assessing an indictment at the post-trial phase, the primary concern for the Chamber is whether defects in the indictment materially prejudiced the accused.124 In this regard, the Chamber may find that any prejudice that may have been caused by a defective indictment was cured by timely, clear and consistent information provided to the accused by the Prosecution.125 The timing of such communications, the importance of the information to the ability of the accused to prepare his defence and the impact of the newly-disclosed material facts on the Prosecution’s case are some of the relevant factors that the Chamber may consider in determining whether a defect in the indictment has been cured.126 1.7.3 Alleged Defects in the Indictment Concerning the Murder of the Prime Minister and the Belgian Soldiers 132. The Indictment alleges that Nzuwonemeye and Sagahutu are criminally responsible for the murders of Prime Minister Agathe Uwilingiyimana, members of her entourage and the Belgian UNAMIR soldiers under Count 1 and Count 4. Nzuwonemeye and Sagahutu submit that the following paragraphs of the Indictment are defective: Count 1, Conspiracy to Commit Genocide, paragraph 38: On 7 April 1994, in Kigali, elements of the Reconnaissance Battalion commanded by François-Xavier Nzuwonemeye and Innocent Sagahutu, in concert with elements of the Presidential Guard commanded by Protais

Mpiranya, killed the Prime Minister of the Transitional Government, Agatha [sic] Uwilingiyimana, and the ten Belgian UNAMIR soldiers who had been assigned to escort her. The Prime Minister had intended to go to the radio station to address the nation and forewarn the various protagonists about engaging in excesses and to make an appeal for calm. Those murders, and others, annihilated several obstacles that stood in the way of the genocide. Count 4, Crimes Against Humanity (Murder), paragraphs 103 and 105, respectively: During the morning of 7 April 1994, elements of the Reconnaissance battalion under the command of François-Xavier Nzuwonemeye and led by Innocent Sagahutu, acting in concert with members of the Presidential Guard and Interahamwe 123 Niyitegeka Appeal Judgement, para. 199. 124 Ntagerura et al. Appeal Judgement, para.

30. See also Niyitegeka Trial Judgement, para. 196 (On appeal, “the question is whether the error of trying the accused on a defective indictment ‘invalidated the decision’ and warrants the Appeals Chamber’s intervention”). 125 Kupreškić et al. Appeal Judgement, para. 114 (“The Appeals Chamber, however, does not exclude the possibility that, in some instances, a defective indictment can be cured if the Prosecution provides the accused with timely, clear and consistent information detailing the factual basis underpinning the charges against him or her. Nevertheless, in light of the factual and legal complexities normally associated with the crimes within the jurisdiction of this Tribunal, there can only be a limited number of cases that fall within that category.”). See also Ntakirutimana Appeal Judgement, para. 27. 126 Bagosora et al. Trial Judgement, para. 29, citing to Niyitegeka Appeal Judgement, para. 197. 17 May 2011 35/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T militiamen hunted down, tortured and killed Prime Minister Agathe Uwilingiyimana. They also killed three members of the Prime Minister’s entourage, including her husband…. During the morning of 7 April 1994, ten UNAMIR Belgian peacekeepers were arrested at the residence of Agathe Uwilingiyimana by soldiers from the Reconnaissance battalion under the command of François-Xavier Nzuwonemeye and led by Innocent Sagahutu, assisted by their colleagues from the Presidential Guard. After being disarmed, the Belgian peacekeepers were led to Kigali Camp where they were horribly killed and mutilated by an unleashed horde composed of soldiers from the Reconnaissance Battalion, the Presidential Guard and the Music Company. 1.7.3.1 Nzuwonemeye’s Submissions Regarding Count 1 133. In his Closing Brief, Nzuwonemeye argues that the pleading under Count 1 is defective because the Indictment fails to plead the actus reus of conspiracy. Specifically, it is submitted that “allegation[s] of murders can not legally support an allegation of conspiracy” because “[t]he actus reus of conspiracy is the element of agreement, not the acts which result from the agreement”.127 134. The Chamber recalls that the elements of conspiracy to commit genocide are: (1) an agreement between two or more persons to commit the crime of

genocide;128 and (2) the intent required for the crime of genocide. While the agreement to commit genocide is “the defining element of the crime of conspiracy”,129 it need not be a formal or express agreement. An agreement may be “inferred from the coordinated actions by individuals who have a common purpose and are acting within a unified framework.”130 135. Having considered the Indictment and the Pre-Trial Brief,131 the Chamber finds that Nzuwonemeye’s complaint in relation to the pleading of Count 1 is without merit. Paragraph 22 of the Indictment clearly states that the Accused acting in concert with others are alleged to have “decided and executed a common scheme … to destroy, in whole or in part, the Tutsi ethnic group …. [and that the Accused] in concert with the other actors mentioned … planned, incited, ordered, committed, or otherwise aided and abetted the planning, preparation or execution of the planned extermination of the Tutsi ethnic group.” The Chamber finds that this paragraph correctly pleads the actus reus required for the crime of conspiracy. Furthermore, the Chamber rejects Nzuwonemeye’s submission that “murders can not legally support an allegation of conspiracy”. The Chamber has considered the Indictment in its entirety.132 Having done so, the Chamber finds that the Indictment does not rely on allegations of murder to “legally support” the allegation of

conspiracy. On the contrary, the Indictment clearly alleges that the murders of Prime Minister Agathe Uwilingiyimana, 127 Nzuwonemeye Closing Brief, para. 489 (emphasis omitted). See also Nzuwonemeye Closing Brief, para. 271. 128 Musema Trial Judgement, para. 191; Media Trial Judgement, paras. 1041-1042. The Chamber notes that more recent Appeals Chamber pronouncements on conspiracy can be found in the Media Appeal Judgement, para.

894. See also Bagosora et al. Trial Judgement, para. 2087. 129 Media Trial Judgement, para. 1042. 130 Media Trial Judgement, para. 1047. 131 Ndindiliyimana et al. Prosecutor’s Pre-Trial Brief Pursuant to Rule 73bis of the Rules of Procedure and Evidence. 132 In particular, the Chamber notes that paragraph 38 of the Indictment alleges that the murders of the Prime Minister and the Belgian soldiers were carried out in support of a common purpose to “annihilate several obstacles that stood in the way of the genocide.” 17 May 2011 36/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T members of her entourage and the Belgian UNAMIR soldiers are evidence of an agreement and of the conspiracy charged under Count 1. The Prosecution’s allegations concerning the killings of the Prime Minister and the Belgian soldiers are therefore a factual basis for the inference that Nzuwonemeye together with other individuals listed in paragraph 22 of the Indictment were part of a conspiracy to commit genocide against Tutsi.

136. The Pre-Trial Brief further supports this conclusion. Part I of the Pre-Trial Brief, entitled “Factual Allegations”, alleges that the four Accused, among others, “were ringleaders of [an] ill-fated venture”133 intended to “rid Rwanda of its Tutsi population and Hutu dissenters”.134 It then lists the killing of the Prime Minister and the Belgian soldiers as crimes that were a part of this plan.135 137. Moreover, the section of the Pre-Trial Brief that describes the allegations under Count 1 relating to Nzuwonemeye states that the allegations are based on an agreement to commit genocide, and that the killings of the Prime Minister and the Belgian soldiers were a part of that agreement. The relevant paragraphs are as follows: [François-Xavier Nzuwonemeye/Innocent Sagahutu] participated in an unequivocal and determinable manner in the plan prepared and executed by the Hutu ruling class to exterminate the Tutsi population of Rwanda.136 On 7 April 1994, in Kigali, soldiers of the Reconnaissance Battalion commanded by François-Xavier Nzuwonemeye, in concert with elements of the Presidential Guard, killed the Prime Minister Agathe Uwilingiyimana and the ten Belgian UNAMIR soldiers who had been assigned to escort her. The Prime Minister had intended to go to the radio station to address the nation and forewarn the various protagonists about engaging in excesses and to make an

appeal for calm. Those murders, and others, annihilated several obstacles that stood in the way of the genocide.137 On 7 April 1994, in Kigali, elements of the Reconnaissance Battalion, commanded by Innocent Sagahutu, and acting on his instructions, in concert with elements of the Presidential Guard, killed the Prime Minister Agathe Uwilingiyimana and the ten Belgian UNAMIR soldiers who had been assigned to escort her. The Prime Minister had intended to go to the radio station to address the nation and forewarn the various protagonists about engaging in excesses and to make an appeal for calm. Those murders, and others, annihilated several obstacles that stood in the way of the genocide.138 138. The Chamber therefore finds that Nzuwonemeye had sufficient notice of the allegations pleaded in paragraphs 22 and 38 of the Indictment. 133 Pre-Trial Brief, para. 24. 134 Pre-Trial Brief, para. 23. 135 Pre-Trial Brief, paras. 28-29. 136 Pre-Trial Brief, paras. 106, 125. 137 Pre-Trial Brief, para. 111. 138 Pre-Trial Brief, para. 127. 17 May 2011 37/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.7.3.2 Nzuwonemeye’s Submissions Regarding Count 4 139. In regard to Count 4, Nzuwonemeye argues that the pleading is defective because it fails to identify the nexus between, on the one hand, the killing of the Prime Minister and the three members of her entourage and, on the other hand, “widespread or systematic attacks against a civilian population.”139 140. The Chamber is not satisfied that this failure to draw the connection between the murder of Prime Minister Agathe Uwilingiyimana and the widespread or systematic attack against a civilian population renders the Indictment defective in light of the Appeals Chamber’s decision in Karemera et al., which allowed for judicial notice to be taken of the existence of a widespread or systematic attack against a civilian population based on Tutsi ethnic identification in Rwanda during the time period covered by the Indictment.140 Following this decision, it has become a common practice to plead allegations of crimes against humanity in the same manner that the Prosecution has done in this case. It suffices to plead the chapeau elements of the crime in relation to specific persons rather than specific factual allegations in addition to the chapeau.141 For these reasons, the Chamber does not find the Indictment to be defective in this regard.

141. Nzuwonemeye also argues that the pleading of Count 4 is defective in relation to the killing of the Prime Minister’s husband and entourage, although the exact reason for this submission is not specified.142 The Chamber assumes that this submission is based on the non-identification of members of the Prime Minister’s entourage. Paragraph 103 of the Indictment specifies that the unidentified victims were members of the Prime Minister’s entourage, and the summary of Witness DT’s evidence annexed to the Pre-Trial Brief states that the victims were persons who were in her home.143 The Chamber finds that these qualifiers provided Nzuwonemeye with sufficient information to prepare his defence in that he knew that the victims were connected to the Prime Minister and that they were persons who were present in her home.

142. Further, Nzuwonemeye submits that Count 4 is defective because he is alleged to be responsible under both Article 6(1) and Article 6(3) of the Statute, but there are no allegations in reference to Article 6(1) and the Prosecution did not distinguish which acts support each form of participation.144 The Chamber rejects both of Nzuwonemeye’s arguments. Paragraph 78 of the Indictment specifies which crimes are attributed to each mode of liability, including allegations in reference to Article 6(1), and this information is reiterated in the Pre-Trial Brief in paragraphs 114 to 116 for the charges against Nzuwonemeye and paragraphs 130 to 132 for the charges against Sagahutu. 139 Nzuwonemeye Closing Brief, para. 485. 140 Karemera Interlocutory Appeal on Judicial Notice, para. 29. 141 See Gatete Indictment, paras. 30, 33, 39. 142 Nzuwonemeye Closing Brief, para. 492. 143 Pre-Trial Brief Annexure IV, pp. 125-126 (“Witness will testify that the Presidential Guard soldiers and the reinforcement of soldiers from Kanombe were involved in the killing of Prime Minister Agathe and her family among others in her house on 7 April 1994…”). 144 Nzuwonemeye Closing Brief, para. 593. 17 May 2011 38/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.7.3.3 Sagahutu’s Submissions Regarding Count 1 143. The Chamber notes that in his Closing Brief, Sagahutu argues that the pleading in Count 1 alleging that he was involved with others in a conspiracy to commit genocide is defective in relation to the killings of the Prime Minister and the Belgian soldiers because it is unclear “what the Prosecution intends to prove: that as a soldier, he followed orders and thus he himself gave some; but it is not known from who he is alleged to have received his orders, nor when: in the evening of 6 April or in the morning of 7 April; or even if he were a soldier he would have, all the same, taken the initiative of this crime with his Co-Accused, but their state of mind is not described anywhere.”145 The Chamber finds Sagahutu’s complaint in relation to the pleading of Count 1 to be without merit. Paragraph 38 of the Indictment alleges clearly that soldiers of the RECCE Battalion led by Sagahutu, acting together with soldiers of the Presidential Guard commanded by Mpiranya, killed the Prime Minister. Sagahutu’s conduct is alleged to have been an effectuation of a conspiracy to commit genocide against Tutsi, as alleged in paragraph 22 of the Indictment. The Prosecution case is that Sagahutu’s conduct pleaded in paragraph 38 yields the inference that he was party to a conspiracy to commit genocide pleaded in paragraph 22. The Chamber is therefore satisfied that the pleading of paragraph 38 does not suffer from material defects and that it adequately pleads Sagahutu’s participation in these allegations.

144. The Chamber’s conclusion is supported by a reading of the Indictment in its entirety. These criminal allegations are also listed under Count 4 of the Indictment. Under Count 4, paragraphs 103 and 105 state that at the time of the killings, the RECCE Battalion was “under the command of François-Xavier Nzuwonemeye and led by Innocent Sagahutu.”146 Furthermore, paragraph 104 alleges that Sagahutu was in radio contact with Nzuwonemeye prior to the murder of the Prime Minister, and paragraph 107 alleges that Sagahutu gave orders concerning the arrest of the Belgian soldiers and the killing of the Prime Minister to Sergeant Major Bizimungu. The Chamber does not find the pleading of paragraphs 104 and 107 to be defective.

145. A review of the Pre-Trial Brief also lends support to the Chamber’s finding. Paragraphs 111 and 127 of the Pre-Trial Brief, both of which detail the specific allegations under Count 1, state that Nzuwonemeye was the commander and superior of the soldiers implicated in the killings of the Prime Minister and the Belgian soldiers, and that Sagahutu was likewise in command but also carried out Nzuwonemeye’s orders: On 7 April 1994, in Kigali, soldiers of the Reconnaissance Battalion commanded by François-Xavier Nzuwonemeye, in concert with elements of the Presidential Guard, killed the Prime Minister Agathe Uwilingiyimana and the ten Belgian UNAMIR soldiers who had been assigned to escort her.147 On 7 April 1994, in Kigali, elements of the Reconnaissance Battalion, commanded by Innocent Sagahutu and acting on his instructions, in concert with elements of the Presidential Guard, killed Prime Minister Agathe Uwilingiyimana and the ten Belgian UNAMIR soldiers who had been assigned to escort her.148 145 Sagahutu Closing Brief, para. 606. 146 Indictment, paras. 103, 105. 147 Pre-Trial Brief, para. 111 (emphasis added). 148 Pre-Trial Brief, para. 127 (emphasis added). 17 May 2011 39/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 146. The summaries of the testimony expected from Prosecution witnesses, which are annexed to the Pre-Trial Brief, also detail the role of Sagahutu in the killing of the Prime Minister. Witness ALN’s summary states that in the morning of 7 April 1994, Nzuwonemeye ordered Sagahutu to kill the Prime Minister;149 Witness DAK’s summary states that Sagahutu acted in concert with military headquarters in the murder of the Prime Minister;150 Witness HP’s summary states that Sagahutu gave the order for the Prime Minister’s murder;151 and Witness DA’s summary states that Sagahutu and Nzuwonemeye were accomplices to her murder.152 147. It is clear from these different statements that the Prosecution is alleging that Sagahutu gave orders in relation to both criminal events. The statements provided Sagahutu with notice of evidence that he made unilateral orders and in other cases that the original order came from Nzuwonemeye. Sagahutu’s argument that the Indictment is defective is therefore without merit as Sagahutu had sufficient information concerning the allegations to properly prepare his defence. 1.7.4 Alleged Defects in the Indictment Concerning the Distribution of Weapons 1.7.4.1 Sagahutu’s Submissions Regarding Count 1 148. In his Closing Brief, Sagahutu argues that paragraph 41 of the Indictment is

defective.153 Paragraph 41 states: In Kigali, in April and May 1994, Innocent Sagahutu and Protais Mpiranya distributed weapons on several occasions to fanaticized militiamen, whose criminal activities were well known to them, while asking them to persevere in the undertaking to exterminate the Rwandan Tutsi. Sagahutu submits that the “the Indictment is silent on where this allegedly took place in Kigali, and when in April and May”.154 149. The Chamber considers the date range of “April and May 1994” to be sufficiently precise given the nature of the Prosecution’s allegation that Sagahutu distributed weapons on “several occasions” during this period. The Chamber finds the allegation in paragraph 41 to be somewhat vague in regard to the location of the alleged weapons distribution.

150. The Chamber notes that the summary of Witness DA’s testimony annexed to the Pre- Trial Brief states that the witness intended to testify “that Captain Sagahutu distributed weapons to the Interahamwe at roadblocks within Kigali and encouraged them to kill the Tutsis with the weapons … in 1994.”155 The Chamber finds that this provided Sagahutu with 149 Pre-Trial Brief, p. 97. 150 Pre-Trial Brief, p. 103. 151 Pre-Trial Brief, p. 120. 152 Pre-Trial Brief, p. 124. 153 Paragraph 607 of Sagahutu’s Closing Brief incorrectly states, “Innocent Sagahutu is also charged with weapons distribution on several occasions in Kigali, in April and May 1994, together with Protais Mpiranya, to militiamen, whose criminal activities were well known to them; he is alleged to have requested them to persevere in the enterprise of exterminating the Rwandan Tutsi (para. 39)”. The Chamber notes that Sagahutu’s reference to paragraph 39 is incorrect and that the allegation referred to is in fact contained in paragraph 41 of the Indictment. 154 Sagahutu Closing Brief, para. 608. 155 Pre-Trial Brief, p. 124. 17 May 2011 40/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T clear notice that the location of the crimes alleged in paragraph 41 of the Indictment was roadblocks within Kigali. As a result, Sagahutu was not materially prejudiced by the vague nature of this allegation in the Indictment. 1.7.4.2 The Pleading of Paragraphs 30 and 31 of the Indictment 151. Paragraph 30 of the Indictment alleges that in January 1993, Bizimungu, in his capacity as commander of Ruhengeri Operational Sector, addressed his troops and stated that the enemy was known and that the enemy was the Tutsi, thereby echoing the doctrine professed by senior officers in the army.156 Paragraph 31 of the Indictment alleges that in February 1994, Bizimungu reiterated the statement set out in paragraph 30 when he declared that “if the RPF attacked Rwanda again, he did not want to see one Tutsi alive in his sector of operations.” 152. The Chamber notes that these allegations do not specify the location of Bizimungu’s alleged speech, nor do they provide any details about the troops Bizimungu allegedly addressed. Consequently, the Chamber finds paragraphs 30 and 31 to be impermissibly broad, ambiguous and vague.

153. The Chamber notes that the Pre-Trial Brief does add to the Indictment insofar as it mentions the location as Ruhengeri.157 However, the Chamber considers that this in itself is insufficient to cure the ambiguous nature of these charges. The Chamber therefore finds paragraphs 30 and 31 of the Indictment to be defective and without cure. Consequently, the Chamber dismisses these charges against Bizimungu. 1.7.5 The Pleading of Paragraphs 68 and 69 of the Indictment (Underlying Criminal Events in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri) 1.7.5.1 The Indictment 154. Paragraphs 68 and 69 charging genocide or complicity in genocide in the alternative allege, inter alia, that soldiers under the command of Bizimungu “committed murders and caused serious bodily or mental harm to many Tutsis.”158 155. The Prosecution submits that “such acts of violence were observed” in various locations and that Bizimungu is criminally responsible pursuant to Article 6(3) of the Statute because “he knew or had reason to know ... that his subordinates were about to commit or had committed such acts of violence [and] ... did not take any of the reasonable steps to prevent the said crimes [or] ... punish the perpetrators [thereafter].”159 156. Specifically, paragraphs 68 and 69 provide: Finally from mid-April to late June 1994, while Augustin Bizimungu was exercising his functions as Chief of Staff of the Rwandan Army, soldiers under his command, committed murders and caused serious bodily or mental harm to many Tutsi, with the 156 Indictment, para. 30. 157 Pre-Trial Brief, para. 44. 158 Indictment, paras. 61-62, 73-75. 159 Indictment, paras. 61 and 75. 17 May 2011 41/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T intent to destroy, in whole or in part, the Tutsi ethnic group in …Gisenyi, Cyangugu, Kibuye and Ruhengeri. Such acts of violence were specifically observed … in Butare … Gisenyi, Kibuye and Ruhengeri, during the months of April, May and June.

157. Contrary to other locations pleaded in paragraphs 68 and 69, the Chamber finds that the pleading of material facts in respect of Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri is impermissibly broad, ambiguous and vague.

158. In relation to crimes alleged in Cyangugu, paragraph 68 of the Indictment identifies Cyangugu as one of the préfectures in which soldiers under Bizimungu’s command allegedly committed murders and caused serious bodily or mental harm to Tutsi. However, neither paragraph 68 nor paragraph 69 provides further details of the alleged crime site in Cyangugu or the dates on which the crimes are alleged to have occurred in this préfecture. The Chamber finds that paragraph 68 lacks specificity in respect of crimes allegedly committed in Cyangugu. This had the effect of failing to put Bizimungu on notice of the material facts of his alleged criminal conduct.

159. In relation to crimes alleged in Butare, Gisenyi, Kibuye and Ruhengeri, the Indictment is vague because within the broad three month date range set out in paragraph 69, the Prosecution failed to sufficiently particularise and adequately specify the exact locations at which crimes were alleged to have been committed and observed.

160. The effect of such vagueness is that an objective reader of the Indictment would not be able to decipher where exactly the alleged crimes were observed in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri, and consequently what were the nature and circumstances of the crimes alleged at these locations. Therefore, it could not be said that Bizimungu had notice of the specific criminal incidents at these locations for which he should have taken preventive or disciplinary action.

161. Consequently, the Chamber finds paragraphs 68 and 69 defective to the extent that the general allegations in respect of crimes alleged in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri did not suffice to put Bizimungu on notice of the material facts of his criminal conduct.

162. The Chamber will now consider whether Bizimungu was nevertheless accorded a fair trial, whether the defect in the Indictment caused prejudice to Bizimungu and whether the defect was cured. 1.7.5.2 Prejudice to the Accused 163. The Chamber recalls that the Indictment is the only accusatory instrument and that it is only under limited circumstances that a defective indictment can be cured. For this purpose, the Chamber has reviewed the Indictment in its entirety and finds that there are no other paragraphs in the Indictment that clarify or provide further details of the facts underpinning the allegations of genocide in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri set out in paragraphs 68 and 69.

164. The Chamber has carefully reviewed the Pre-Trial Brief, the Prosecution’s opening speech delivered on 20 September 2004 and the Indictment in its entirety. In none of these 17 May 2011 42/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T documents did the Prosecution indicate that it intended to rely on the facts set out in other paragraphs of the Indictment, and the evidence adduced to prove those facts, in order to establish Bizimungu’s responsibility pursuant to Article 6(3) for genocide (or complicity in genocide in the alternative) in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri. Therefore, the Pre-Trial Brief and opening speech did not cure the defect in paragraphs 68 and 69 of the Indictment by providing clear notice to Bizimungu of the material facts underpinning the crimes alleged at these locations.

165. On the contrary, the Chamber finds that paragraph 332 of the Pre-Trial Brief, which provides that “[t]he Accused have been cumulatively charged on the basis of the same set of facts, save for genocide and complicity in genocide” (emphasis added), had the opposite effect of providing such notice.

166. Consequently, the Chamber finds that there was simply no way for Bizimungu to have known that the Prosecution intended to rely on the facts specified in other paragraphs of the Indictment, and the evidence adduced to prove those facts, in order to establish his criminal responsibility under Article 6(3) for genocide in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri, as alleged in paragraphs 68 and 69.

167. Two further factors militate against the Prosecution’s attempt to rely post-trial on the facts set out in other paragraphs of the Indictment, and the evidence adduced to prove those facts, in order to establish Bizimungu’s responsibility for genocide in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri. First, aside from paragraphs 68 and 69, there are no other paragraphs in the Indictment that contain references to crimes committed in Kibuye. Second, the Trial Chamber finds the manner in which the Prosecution pleaded crimes in other locations in paragraphs 68 and 69 revealing. Crimes alleged in these other locations were pleaded with far greater precision and specificity.160 The Chamber finds no good reason why the Prosecution failed to plead crimes alleged in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri in a similar manner, or at the very least to refer to those other paragraphs of the Indictment that provide further facts in regard to the crimes at these locations.

168. The Chamber finds that the defects in paragraphs 68 and 69 in respect of crimes alleged in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri were not cured and caused material prejudice to Bizimungu. Therefore, the Chamber will not make any factual findings in respect of these locations when assessing the allegations of genocide in these paragraphs. 160 Indictment, para. 69 (“Such acts of violence were specifically observed at Charles Lwanga Church on 8 and 10 June 1994; at the Josephite Brothers compound, on 8 April and 7 June 1994; at ETO-Nyanza, on 11 April 1994; at the Centre Hospitalier de Kigali, during the months of April, May and June 1994; at the Kicukiro conseiller's office, during the months of April and May 1994; at Kabgayi Primary School, from April to June 1994; at the Musambira commune office and Dispensary, in April and May 1994; at TRAFIPRO, in April and May 1994.”). 17 May 2011 43/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER III: WITNESS CREDIBILITY AND CONTEMPT OF COURT 1.1 Credibility of Witnesses GFR, GFA and GAP 169. Prosecution Witnesses GFA and GAP gave evidence relating to the involvement of Bizimungu in various events in and around Ruhengeri préfecture. Those events include the training and arming of the Interahamwe,161 meetings and speeches by Bizimungu in Ruhengeri,162 the killing of Tutsi by Interahamwe in Rwankeri secteur and by soldiers at Busugo Parish,163 the Court of Appeal massacre,164 the killing of Tutsi by Interahamwe at roadblocks in EGENA,165 the killing of Tutsi by soldiers in Ruhengeri,166 and the killing of Tutsi by Interahamwe at the ISAE Busugo roadblock in Ruhengeri.167 170. Prosecution Witness GFR gave evidence relating to the involvement of Ndindiliyimana in the murder of Célestin Munyanshagore and Ignace Habimana,168 as well as the murder of a Tutsi tradesman named Gashugi (a.k.a. Gahoki/Gasoki),169 in Nyaruhengeri commune, Butare préfecture. 1.1.1 Developments Since the Witnesses Testified Before this Chamber 171. Following their testimony before this Chamber, certain incidents took place that might impact upon the credibility of these witnesses’ evidence. First, in April 2008, Witness GFA was recalled in the Karemera et al. trial. During his testimony, Witness GFA recanted almost all

of his prior testimony before the Karemera et al. Trial Chamber including his evidence regarding Augustin Bizimungu, against whom he had testified before this Chamber from 30 January to 2 February 2006.170 Second, in a letter to the ICTR President dated 29 May 2009,171 Witness GFR recanted the entire contents of his prior testimony before this Chamber.172 Finally, in January 2010 in the Karemera et al. trial, the Defence tendered a transcript of an interview held between Witness GAP and Defence Counsel Peter Robinson, in which Witness GAP made statements contradicting his evidence before this Chamber against Bizimungu.173 However, when Witness GAP was recalled to appear before the Karemera et al. Trial Chamber, he disavowed the statements he had allegedly made during his interview with Counsel Robinson and reaffirmed his original testimony.174 161 Indictment, para. 27. 162 Indictment, paras. 29-31. 163 Indictment, para. 63. 164 Indictment, paras. 64-65. 165 Indictment, para. 66. 166 Indictment, paras. 68-70. 167 Indictment, para. 81. 168 Indictment, para. 93. 169 See Indictment, para. 99; Prosecution Closing Brief, paras. 923-942. The Indictment refers to the victim as “Gahoki”, whereas the Prosecution’s Closing Brief refers to him as “Gashugi (a.k.a. Gasoki)”. 170 Defence Exhibit 689A; Defence Exhibit 690A; Defence Exhibit 691A; Defence Exhibit 692A; Defence Exhibit 693A. 171 Defence Exhibit 697; Defence Exhibit 698; T. 24 June 2009, p. 2. 172 Ndindiliyimana Decision on GFR’s Recantation. 173 Defence Exhibit 699A; Defence Exhibit 700. 174 See Ndindiliyimana Decision on Admission of Karemera Transcripts. 17 May 2011 44/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 172. The Chamber recalls that the incidents outlined above were the subject of a number of motions by the parties in this case. In its decisions on those motions, the Chamber deferred its determination of whether the incidents have any bearing on the witnesses’ credibility in this case. The Chamber will now consider this question. More specific credibility assessments relating to particular allegations in the Indictment will be undertaken in the factual findings section of this Judgement. 1.1.2 Applicable Principles 173. The key issue to be decided is not whether the Chamber is satisfied beyond reasonable doubt of the truth of the witnesses’ subsequent statements in which they allegedly recanted their prior testimony. Rather, the Chamber must decide whether the witnesses’ subsequent statements raise doubts as to the credibility of their testimony before this Chamber. Where such doubts arise, the Chamber has discretion to decide whether to reject the witness’s testimony entirely or whether that testimony may still be relied upon in the presence of other credible corroborating evidence.175 On the other hand, where the witness’s alleged recantation is completely implausible and there were multiple pieces of credible evidence that corroborated the witness’s original testimony, the Chamber may exercise its

discretion to disregard the recantation and treat the witness’s original testimony before this Chamber as credible.176 1.1.3 Analysis 1.1.3.1 Witness GFA’s Recantation in the Karemera et al. Trial 174. Prosecution Witness GFA gave evidence before this Chamber for four days from 30 January to 2 February 2006. Prior to testifying before this Chamber, Witness GFA had testified as a Prosecution witness in the trials of Karemera et al. and Bizimungu et al.

175. On 21 August 2007, Witness GFA wrote a letter to the ICTR President requesting a meeting with the Defence lawyers representing the four Accused against whom he had given evidence, namely Augustin Bizimungu, Joseph Nzirorera, Jerome Bicamumpaka and Ephrem Setako.177 On 5 December 2007, the Bizimungu et al. Chamber granted the Bicamumpaka Defence’s motion to meet with Witness GFA in the presence of representatives of the Prosecution and the Witnesses & Victims Support Section (“WVSS”).178 At that meeting, which took place on 8 February 2008, the witness stated that he had lied in his testimony before the Tribunal because he had been pressured by Rwandan prosecutors to implicate certain high-level accused in genocide-related crimes in Rwanda in 1994.179 The witness claimed that the Rwandan prosecutors had provided him with a list of accused individuals, including Augustin Bizimungu, whom he was supposed to incriminate. Witness GFA further stated that he had collaborated with other detainees in the Ruhengeri prison in Rwanda to fabricate testimony against those individuals. Prosecution Witnesses GFC and GFV were among the co-detainees with whom Witness GFA claimed to have collaborated in this way.180 175 Media Appeal Judgement, para. 460. 176 Kamuhanda Appeal Judgement, paras. 212-221. 177 Defence Exhibit 676. 178 Bizimungu Motion to Meet Prosecution Witnesses. 179 Defence Exhibit 677. 180 Defence Exhibit 677. 17 May 2011 45/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 176. Witness GFA was subsequently recalled to testify in the Karemera et al. trial from 10 to 17 April 2008.181 When cross-examined by Defence counsel for Joseph Nzirorera, the witness recanted almost all of his prior testimony as a Prosecution witness against the Accused persons in the Karemera et al., Bizimungu et al. and Ndindiliyimana et al. trials. Although the witness admitted that many of the acts of genocide occurred, he denied that they were ordered by any of the Accused against whom he had earlier testified. He also recanted part of his own role in the genocide. More relevant to the case at hand, the witness specifically recanted his previous testimony that Augustin Bizimungu ordered the killing of four Tutsi at the ISAE Busogo roadblock around 10 or 11 April 1994.182 The witness also recanted his testimony regarding Bizimungu's participation in a series of meetings at the house of Joseph Nzirorera's mother's.183 The witness stated that he never saw Bizimungu from 6 April 1994 until he went into exile.184 177. In re-examination, the Prosecution put to Witness GFA a number of written statements which had been given by other individuals to the ICTR investigators or Rwandan prosecutors and which implicated the relevant Accused before this Tribunal in the crimes alleged against them by the ICTR

Prosecutor. Those statements were given prior to 2002, when the witness claimed the Rwandan prosecutors had started pressuring him to confess. The witness responded that other people had concocted lies earlier than he had.185 178. The Prosecution also put to the witness written statements taken from a number of individuals, including Prosecution Witnesses GFC and GFV, who the witness alleged were involved in the fabrication of testimony implicating the Accused. In those statements, all of the witnesses denied Witness GFA’s allegations.186 In one statement, Witness GFC claimed that Witness GFA had told him of his plans to change his testimony if he was continually accused in Rwanda.187 In another statement, Witness GFV reaffirmed that his original testimony was accurate and that nobody had told him what to say. Witness GFV stated: I think [Witness GFA] is lying now when he says that he was forced to plead guilty and tells lies in Arusha because he is angry that he will have to go back to prison. In the prison no authority told us what to say in our guilty pleas, and in this regard I can confront [Witness GFA]. I am willing to say this in front of him, and I am willing to come back to Arusha to say the same things to the ICTR Judges.188 179. Witness GFA responded by stating that Witness GFV was still in prison in Rwanda and still under threat, “so he can only give the same

information that he was asked to give.”189 According to Witness GFA, “Witness [GFV] cannot tell the truth today because of the situation in which he finds himself. If he dared to tell the truth, that could even cost him his life.”190 181 Defence Exhibit 689A; Defence Exhibit 690A; Defence Exhibit 691A; Defence Exhibit 692A; Defence Exhibit 693A. 182 Defence Exhibit 689A. 183 Defence Exhibit 689A. 184 Defence Exhibit 689A. 185 Defence Exhibit 691A. 186 Defence Exhibit 678; Defence Exhibit 692A. 187 Defence Exhibit 692A. 188 Defence Exhibit 678; Defence Exhibit 692A. 189 Defence Exhibit 678; Defence Exhibit 692A. 190 Defence Exhibit 678; Defence Exhibit 692A. 17 May 2011 46/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 180. The Bizimungu et al. Trial Chamber subsequently ordered the recall of Witness GFA for further cross-examination.191 However, prior to further cross-examination in those proceedings, the witness absconded.192 181. On 14 May 2008, the Karemera et al. Trial Chamber directed the Registrar to appoint an independent amicus curiae to investigate the alleged false testimony of Witness GFA and to advise on the possible initiation of proceedings for false testimony pursuant to Rule 91(B) of the Rules.193 The Amicus Report found that it was beyond reasonable doubt that Witness GFA had given false testimony,194 but it did not establish on which particular occasion he did so.195 By a Decision of 18 May 2010, the Karemera et al. Trial Chamber ordered the Registrar to appoint another independent amicus curiae to conduct the prosecution against Witness GFA for false testimony. 196 182. The Chamber has carefully reviewed the transcripts of Witness GFA’s testimony in the Karemera et al. trial in April 2008, during which he recanted much of his prior testimony regarding the acts of certain Accused, including Augustin Bizimungu.197 In the view of the Chamber, Witness GFA’s recantation in the Karemera et al. trial raises doubts as to the credibility of his testimony before this Chamber. For these reasons, the Chamber

will not rely on his evidence in the absence of corroboration by other credible evidence.198 The determination of whether Witness GFA’s testimony is corroborated will be made in the factual findings section of the Judgement. 1.1.3.2 Witness GFR’s Recantation in the Present Case 183. Prosecution Witness GFR gave evidence before this Chamber on 29 and 30 March 2005. Subsequently, in a letter to the ICTR President dated 29 May 2009, Witness GFR expressed a desire to recant his testimony before this Chamber because he was coerced by the Rwandan authorities to give false testimony against Ndindiliyimana.199 The Prosecution contested the authenticity of the letter and objected to its admission.200 184. In its Decision of 4 August 2009, pursuant to Rule 91(B) of the Rules of Evidence and Procedure, the Chamber directed the Registrar to appoint an independent amicus curiae to investigate: (1) Witness GFR’s current whereabouts; (2) whether he did in fact write the letter; and, if so, (3) whether he was willing to return to the Tribunal to give testimony under oath.201 191 Bizimungu Motion to Recall Prosecution Witness GFA. 192 Bizimungu Motion to Recall Prosecution Witness GFA, para. 2. 193 Karemera Decision on Prosecutor’s Confidential Motion. 194 Karemera Amicus Report, paras. 118, 126, cited in Karemera Decision Not to Prosecute, para. 3. 195 Karemera Amicus Report, para. 119. 196 Karemera Decision on Remand, paras. 4-6. 197 Defence Exhibit 689A; Defence Exhibit 690A; Defence Exhibit 691A; Defence Exhibit 692A; Defence Exhibit 693A. 198 Media Appeal Judgement, para.

466. In the Media case, the Appeals Chamber rejected the trial testimony of Witness EB to the extent it was not corroborated because evidence obtained after the trial suggested that he had recanted his trial testimony and that “genocide survivors consider [Witness EB] ready to do anything for money”. 199 T. 24 June 2009, p. 2. 200 T. 24 June 2009, p. 3. 201 Ndindiliyimana Decision on Witness Recantation. 17 May 2011 47/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 185. The Chamber received the Amicus Report on 2 October 2009.202 The Prosecution contested the reliability of the Amicus Report and argued that it was not clear that the person who had presented himself to the Amicus was actually Witness GFR, since he did not provide any form of identification.203 The Chamber therefore instructed the Registrar to establish, inter alia, whether the person who had met with the Amicus was in fact Witness GFR.204 186. On 10 February 2010,205 the Chamber admitted the following documents into evidence: (i) Witness GFR’s letter;206 (ii) the Amicus Report;207 and (iii) the written submissions of the Registrar and associated annexes.208 After reviewing the letter and the reports, the Chamber concluded that “the witness has now disavowed the entirety of his testimony”.209 The Chamber indicated that it would address the consequences of Witness GFR’s recantation in its final Judgement.210 187. Having considered the above evidence, the Chamber finds that the consequences of Witness GFR’s recantation are twofold. First, in the view of the Chamber, Witness GFR’s complete recantation of his testimony before this Chamber renders his evidence unreliable. The Chamber therefore excludes any consideration of Witness GFR’s evidence in assessing the allegations contained in the Indictment.

188. Second, the Chamber considers that the circumstances satisfy the requirements of Rule 91(C) to initiate the prosecution of Witness GFR for false testimony. Rule 91(C) provides that if the Chamber considers, after appointing an amicus curiae to investigate pursuant to Rule 91(B)(ii), that there are sufficient grounds to proceed against a person for giving false testimony, the Chamber may either direct the Prosecutor to prosecute the matter or it may issue an order in lieu of an indictment and direct an amicus curiae to prosecute the matter.211 The Chamber’s discretion to order prosecution for false testimony is therefore premised on its determination that “sufficient grounds” exist to warrant such prosecution.212 The Appeals Chamber held in the Karemera case that the “sufficient grounds” requirement is satisfied by the existence of evidence that establishes a prima facie case of false testimony before the Tribunal.213 189. Based on the evidence tendered in this trial, the Chamber considers that sufficient grounds exist to justify an order pursuant to Rule 91(C) directing the prosecution of Witness GFR for giving false testimony before this Chamber. The Chamber has the discretion to direct the Prosecution to prosecute the matter pursuant to Rule 91(C)(i) or, in circumstances where the Prosecution has a conflict of interest with respect to the prosecution, the Chamber 202

Ndindiliyimana et al. Final Report by Boniface Njiru Amicus Curiae Relating to Witness GFR on Ndindiliyimana’s Motion Requesting a Remedy for Possible Witness Recantation. 203 Ndindiliyimana et al. Augustin Ndindiliyimana’s Motion for Admission of Statements Relating to Witness GFR’s Recantation of his Testimony. 204 Ndindiliyimana Interim Order. 205 Ndindiliyimana Decision on GFR’s Recantation. 206 Defence Exhibit 697. 207 Defence Exhibit 698. 208 Defence Exhibit 699; Ndindiliyimana et al. Registrar’s Strictly Confidential Submissions in Respect of the Trial Chamber II “Interim Order to Ascertain the Identity of Witness GFR and Other Matters”. 209 Ndindiliyimana Decision on GFR’s Recantation, para. 15. 210 Ndindiliyimana Decision on GFR’s Recantation, para. 15. 211 Karemera Decision on Remand, para. 4. 212 Karemera Decision Not to Prosecute, para. 17. 213 Karemera Decision Not to Prosecute. 17 May 2011 48/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T may issue an order in lieu of an indictment and direct the amicus curiae to prosecute pursuant to Rules 91(C)(ii). Witness GFR alleges that Rwandan prosecutors pressured him to fabricate evidence against an accused person before this Tribunal. Given that this allegation could impact upon the credibility of other Prosecution witnesses before this Tribunal, a conflict of interest would exist if the Prosecution were to conduct the prosecution of Witness GFR.

190. Accordingly, on 24 May 2011 the Chamber issued an order pursuant to Rule 91(C)(ii) directing an amicus curiae, as appointed by the Registrar, to conduct the prosecution of Witness GFR for false testimony.214 1.1.3.3 Witness GAP’s Statements in an Interview with Peter Robinson 191. Prosecution Witness GAP testified before this Chamber from 15 to 22 February 2005. He subsequently testified in the Karemera et al. case on 21, 25 and 26 January 2010. During Witness GAP’s testimony in the Karemera et al. case, the Defence tendered a transcript of a recorded interview held on 18 November 2009 between the witness and Peter Robinson, the Lead Counsel for the Accused Joseph Nzirorera, in which the witness made statements that raised questions about the credibility of his testimony. The witness clearly recanted these statements in his testimony before the Karemera et al. Trial Chamber and reaffirmed his original testimony.215 192. On 13 October 2010, this Chamber admitted into evidence the following documents in the present case: (1) open session transcripts of Witness GAP’s testimony in Karemera et al. on 21, 25 and 26 January 2010; (2) the transcript of the audio recording of the interview between Witness GAP and Counsel Robinson; and (3) certain related exhibits tendered by the Defence.216 193. The Chamber has carefully reviewed these documents and it does not consider that they

undermine the credibility of Witness GAP’s testimony in the present case. The Chamber notes that the witness was recalled before the Karemera et al. Trial Chamber regarding the allegation that he had contradicted his earlier testimony during his recorded conversation with Counsel Robinson. Before that Chamber, Witness GAP reaffirmed the veracity of his testimony and clearly disavowed the recantation statements he had made during his interview with Counsel Robinson.217 194. Therefore, the Chamber is of the view that the witness is yet to recant his testimony before any of the Chambers of this Tribunal. In fact, during his appearance before the Karemera et al. Trial Chamber following his interview with Counsel Robinson, the witness reaffirmed his prior testimony in a resolute manner. The Chamber will therefore accord more weight to the witness’s sworn testimony than to the statements that he gave outside the court. 214 Ndindiliyimana Order to Prosecute. The Chamber notes that by ordering an amicus curiae to prosecute the witness under Rule 92(C)(ii) it is that it is following the same procedure as in Prosecutor v. Karemera et al., Decision on Remand following Appeal Chamber’s Decision of 16 February 2010, 18 May 2010. 215 Defence Exhibit 699A; Defence Exhibit 700. 216 Ndindiliyimana Decision on Admission of Karemera Transcripts. 217 Defence Exhibit 697A; Defence Exhibit 698A; Defence Exhibit 699A. 17 May 2011 49/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER IV: FACTUAL FINDINGS 1.2 Background 1.2.1 The Arusha Accords 195. The Arusha Accords (“Accords”) were a set of five bilateral agreements between the government of Rwanda and the Rwandan Patriotic Front (“RPF”) negotiated between August 1992 and August 1993. The Accords sought to resolve the ongoing armed conflict between the Rwandan government forces and the RPF and to establish a power sharing agreement between the parties to that conflict.

196. The civil war began on 1 October 1990 when the RPF, a politico-military movement composed largely of Tutsi refugees and children of refugees, attacked Rwanda from their bases in Uganda.218 The conflict continued as low-level guerrilla warfare between October 1990 and July 1992, eventually stopping when the sides agreed to a ceasefire.219 The Arusha Accords were preceded by the N’Sele Ceasefire Agreement, which included provisions for the cessation of violence and laid the groundwork for future negotiations between the parties, which in turn led to the signing of the Accords.

197. The Accords consisted of five protocols, the last of which was signed on 4 August 1993. A primary component of the Accords was the establishment of a transitional government with a power sharing arrangement between three groups: the Mouvement républicain national pour la démocratie et le développement (“MRND”) led by President Juvénal Habyarimana; other political parties opposed to the MRND; and the RPF.220 The provisions of the Accords allowed Habyarimana to remain as President of Rwanda, but power was shifted to a Council of Ministers, which consisted of 19 seats. Five of the Council’s seats were allocated to the MRND led by President Habyarimana.221 The RPF was similarly allocated five ministerial seats, as well as the post of Vice Prime Minister. Other parties such as the Mouvement démocratique républicain (“MDR”), Parti Social Démocrate (“PSD”) and Parti Libéral (“PL”) obtained nine seats as well as the post of Prime Minister.222 The Accords also established a Transitional National Assembly whose membership was to be apportioned among the parties represented in the Council of Ministers, with a small number of additional seats reserved for smaller parties not represented in the Council of Ministers.223 198. A second essential component of the Accords was the integration of the ex- belligerents into a new Rwandan military. The new Rwandan Army was to draw 60 per cent of

its troops from existing forces and 40 per cent from the RPF. Command positions were to be shared equally between the government army and the RPF, down to the level of battalion, with a former Rwandan Army official assuming control of the new army and a former RPF official assuming control of the Gendarmerie. The Accords capped the size of the new Rwandan military at a number smaller than either the former Rwandan Army or the RPF, and 218 Prosecution Exhibit 107(A), pp. 4, 11; T. 18 September 2006, p. 51. 219 Prosecution Exhibit 107(A), p. 14. 220 Prosecution Exhibit 107(A), p. 17. 221 Prosecution Exhibit 107(A), pp. 17-18. 222 Prosecution Exhibit 107(A), p. 18. 223 Prosecution Exhibit 107(A), p. 18; T. 20 September 2006, pp. 13-14. 17 May 2011 50/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T therefore both forces were obligated to demobilise those troops not integrated into the new army.224 199. The Accords were scheduled to enter into effect within 37 days after their signing in August 1993. In order to facilitate and monitor the implementation of the Accords, a UN peacekeeping force was created and dispatched to Rwanda at the request of both the Rwandan government and the RPF.225 200. Habyarimana was installed as President of the broad-based transitional government on 5 January 1994. Although planned, the Transitional National Assembly was not installed that same day. There is evidence on the record that after assuming the presidency, Habyarimana delayed the creation of the Transitional National Assembly and other institutions mandated by the Accords.226 1.2.2 United Nations Assistance Mission for Rwanda (UNAMIR) 201. The United Nations Assistance Mission for Rwanda (UNAMIR) was created by mandate of the UN Security Council in October 1993, although planning for the mission had begun several months earlier.227 Following the terms of the Arusha Accords, the UN dispatched Roméo Dallaire, a Canadian General, on a two-week reconnaissance mission to Rwanda on 17 August 1993 to determine whether a peacekeeping mission was necessary and possible.228 At the time, Dallaire led the United Nations

Observer Mission Uganda-Rwanda (“UNOMUR”), which had been monitoring the Ugandan-Rwandan border since June 1993. During his visit to Rwanda, Dallaire met with government and RPF officials, eventually producing a report that was submitted to the UN Department for Peacekeeping Operations (DPKO) in early September.229 His technical report was approved by DPKO in mid- September,230 and the Security Council approved UNAMIR on 5 October 1993 as a Chapter Six mission.231 202. Security Council Resolution 872 mandated UNAMIR to establish a weapons secure area in Kigali (which would become the Kigali Weapons Secure Area, or “KWSA”); to monitor the ceasefire zone; to monitor the security situation during the transitional government’s mandate prior to the elections; to assist with mine clearance; to investigate non-compliance with the provisions of the Arusha Accords for the integration of armed forces; to monitor the repatriation and resettlement of refugees and displaced persons; to facilitate humanitarian assistance operations; and to investigate and report incidents involving the Gendarmerie and police.232 203. In his testimony before this Chamber, General Dallaire identified four milestones that the UNAMIR mission set for itself, namely: (1) the deployment of forces to take over the demilitarised zone; (2) the deployment of forces to relieve the French half-battalion; (3) the 224

Prosecution Exhibit 107(A), p. 18. 225 T. 11 October 2006, p. 41. 226 Prosecution Exhibit 107(A), pp. 22-23; T. 18 September 2006, p. 46. 227 T. 20 November 2006, p. 21. 228 T. 20 November 2006, p. 21. 229 T. 20 November 2006, pp. 21, 26. 230 T. 20 November 2006, p. 27. 231 T. 20 November 2006, pp. 27-28. 232 Security Council Resolution 872 (1993), S/RES/872, 5 October 1993; T. 20 November 2006, p. 28. 17 May 2011 51/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T transfer of an RPF battalion to Kigali and the establishment of a protection force for RPF politicians in the capital; and (4) the establishment of the broad-based transitional government, which was to be in place by 1 January 1994.233 204. The UNAMIR mission was led by Roger Booh Booh, a Cameroonian diplomat who was appointed the Secretary General’s Special Representative and Head of Mission. General Dallaire was appointed Force Commander.234 UNAMIR’s Headquarters were located at the Amahoro Stadium in Kigali.235 205. Under its Chapter Six mandate, UNAMIR rules of engagement were limited to self- defence.236 Although the Accords requested a broader mandate including the protection of individuals, UNAMIR’s military functions were limited to protecting the UN mission and its assets,237 with a special exception permitting the use of force in response to large-scale crimes against humanity.238 206. On 22 October 1993, General Dallaire and three Ugandan officers arrived in Kigali, thereby marking the beginning of UNAMIR’s operations in Rwanda.239 By late March 1994, 2,568 troops had arrived.240 Although 5,000 troops were requested in Dallaire’s initial assessment, the Security Council’s mandate capped the troop deployment at 2,800.241 A contingent of 450 Belgian soldiers constituted the largest national

contingent within UNAMIR.242 In addition, UNAMIR was comprised of a half-battalion of Bangladeshi soldiers,243 a battalion of Ghanaian troops,244 a company of Tunisians245 and 100 civilians.246 207. UNAMIR contingents were deployed throughout the capital and in demilitarised zones, with additional unarmed observers deployed throughout the country including the capital, the RPF zone and various camps to assist in the implementation of the KWSA and to monitor the movements of the RPF and Rwandan Armed Forces.247 208. UNAMIR observers were also stationed at the Conseil National pour le Développement (CND) where RPF troops, VIPs and political staff were housed in Kigali.248 Finally, some troops were deployed to southern Rwanda to monitor the approximately 300,000 refugees from Burundi who were located there.249 233 T. 20 November 2006, pp. 29-30. 234 T. 20 November 2006, p. 27. 235 T. 10 October 2006, pp. 30-31. 236 T. 20 November 2006, p. 28. 237 T. 20 November 2006, p. 29. 238 T. 20 November 2006, p. 28. 239 T. 20 November 2006, p. 28. 240 T. 20 November 2006, pp. 28-29. 241 Prosecution Exhibit 107(A), p. 11. 242 T. 20 November 2006, p. 29. 243 T. 20 November 2006, p. 30 244 T. 20 November 2006, p. 30 245 T. 20 November 2006, p. 31 246 T. 20 November 2006, p. 29. 247 T. 20 November 2006, p. 30. 248 T. 20 November 2006, pp. 30-31. 249 T. 20 November 2006, p. 30. 17 May 2011 52/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.2.3 The Kigali Weapons Secure Area 209. In order to implement the Accords, the KWSA was created in December 1993. The KWSA was established by provision of the 5 October 1993 UNAMIR mandate250 to minimise the possibility of conflict between the Accords-mandated RPF military contingent in Kigali and Rwandan government forces. In particular, the KWSA was to ensure that the ex-belligerents conducted their operations in accordance with a structured plan.251 The agreement provided for a 10 to 15 kilometre zone of enforcement around Kigali, some 700 square kilometres, which would be enforced by UNAMIR and the Gendarmerie.252 210. The KWSA’s particulars were negotiated in Kigali between UNAMIR, the Rwandan government and the RPF. Preliminary meetings were held bilaterally between the UN contingent and the parties, and once an agreement had been reached on a number of key provisions, trilateral meetings were held to finalise the agreement. The KWSA was signed on 23 December 1993 and went into effect the following day.253 As the head of the Gendarmerie, Ndindiliyimana played a central role in negotiating the agreement.254 211. The essential component of the KWSA was the “control of all manner of weapons, of military personnel and movements of those military elements”.255 The KWSA’s mandate included verifying

vehicles, conducting surprise weapons checks and deploying observers to various camps and places where military equipment was stored.256 Under the KWSA, all weapons and ammunition were to be secured in barracks or armouries, which were subject to routine verification. No significant troop or convoy movements were allowed without a UNAMIR escort, and senior politicians could only travel with an escort. Furthermore, regular roadside checks of vehicles were conducted to ensure that no weapons were brought in or out of the KWSA.257 The agreement also required the free movement of observers to ensure compliance with the KWSA’s terms.258 212. The KWSA required UNAMIR and the Gendarmerie to work together to enforce its provisions. The two forces cooperated to man checkpoints and conduct “cordon and search” operations for illegally stored weapons.259 However, in order to conduct specific search operations, UNAMIR had to petition UN Headquarters for permission, and only a single operation was conducted (on 4 April 1994).260 Neither the Gendarmerie nor UNAMIR was permitted to conduct weapons searches without the cooperation of the other.261 213. The UNAMIR contingent proved unable to enforce the KWSA’s provisions. Although the KWSA called for 24-hour observation of gendarmerie and army locations, there were insufficient observers, vehicles and communications systems to provide such 250

Security Council Resolution 872 (1993), S/RES/872, 5 October 1993; T. 20 November 2006, p. 28. 251 T. 21 November 2006, p. 62. 252 T. 16 January 2008, p. 41. 253 T. 16 January 2008, p. 42. 254 T. 16 January 2008, p. 43. 255 T. 16 January 2008, p. 42. 256 T. 20 November 2006, p. 31. 257 T. 20 November 2006, p. 31. 258 T. 16 January 2008, p. 42. 259 T. 16 January 2008, pp. 45-46. 260 T. 16 January 2008, pp. 46-47, 54. 261 T. 16 January 2008, p. 47. 17 May 2011 53/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T coverage.262 The evidence shows that the parties also violated the terms of the agreement by illegally storing weapons within the weapons secure area.263 1.2.4 The Rwandan Army 214. The Rwandan Army (FAR) constituted one half of the Rwandan Armed Forces, and operated under the supervisory authority of the Rwandan Ministry of Defence.264 The primary mission of the Rwandan Army was to protect the territorial integrity of Rwanda.

215. The Rwandan Army was commanded by the Chief of Staff. To assist in command and control of the army, the Chief of Staff employed a General Staff comprised of four bureaus: Personnel and Administration (G-1), Intelligence (G-2), Military Operations (G-3) and Logistics (G-4).265 The G-1 was responsible for both military and civilian army personnel management, maintaining data about the various units, maintaining discipline and compliance with military law, and prisoners of war.266 The G-2 protected classified information and collected intelligence about the enemy, directed intelligence and counter-intelligence training for officers and soldiers, conducted psychological warfare and reported on troop morale to the Chief of Staff.267 The duties of the G-3 concentrated on military operations. During peacetime, the G-3 trained troops, planned military exercises and manoeuvres, and managed military training centres.268 During wartime, the G-3 planned military operations, conducted battle and coordinated tactical deployments based on the orders of the Chief of Staff.269 The G-4 equipped troops and provided them with supplies, transportation and weapons, and coordinated the provision of medical care and evacuation services to soldiers in the field.270 216. Beneath the General Staff were the commanders of the various operational sectors.271 The Rwandan Army was divided into a number

of regional operational sectors, also known as ops secteurs, including Ruhengeri, Kirambo, Byumba, Mutara, Rwamagana, Gisenyi, Kibungo, Gabiro, Nyagatare, Kigali, Ngarama and Mugesera.272 Each operational sector was assigned a number of battalions. For instance, in April 1994 the 32nd and 73rd Battalions, the Ruhengeri Commando Battalion, the 1st Muvumba Battalion and others were stationed in the Ruhengeri operational sector.273 Although each operational sector was assigned specific battalions, those units could be transferred to other locations as needed.274 262 T. 21 November 2006, p. 64. 263 T. 20 September 2006, pp. 31-32; T. 11 October 2005, pp. 59-60; T. 22 November 2006, p. 45. 264 Prosecution Exhibit 107(A), p. 11; T. 25 January 2008, p. 12. 265 Defence Exhibit 645A, p. 1. 266 Defence Exhibit 645A, p. 2. 267 Defence Exhibit 645A, p. 3. 268 Defence Exhibit 645A, pp. 3-4. 269 Defence Exhibit 645A, p. 4. 270 Defence Exhibit 645A, p. 4. 271 T. 11 December 2007, p. 38. 272 T. 4 December 2007, pp. 37-39; T. 5 December 2007, p. 36; T. 6 December 2007, pp. 14, 26; 11 December 2007, pp. 20, 29, 38-39, 43; T. 12 December 2007, pp. 52, 84; T. 13 December, pp. 5, 25. 273 T. 12 December 2007, p. 77. 274 T. 12 December 2007, p. 82. 17 May 2011 54/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 217. During the conflict between the Rwandan Army and the RPF, the total troop strength of the Rwandan Armed Forces was approximately 29,000, with individual combat units containing between 600 and 800 personnel.275 1.2.4.1 The Reconnaissance Battalion and Other Elite Units 218. The Rwandan Armed Forces contained a number of elite units that played an important role in the events after 6 April 1994. The most prominent of these were the Presidential Guard, the Para Commando Battalion, the Huye Battalion and the RECCE Battalion. The RECCE Battalion is of particular relevance to this case.

219. The RECCE Battalion was constituted as an armoured vehicle unit that was enlarged in 1990 from a squad to a battalion276 and based at Camp Kigali.277 In April 1994, Nzuwonemeye was the battalion commander,278 and Sagahutu commanded one of its combat squadrons.279 The commander of the RECCE Battalion received orders directly from the General Staff of the Rwandan Army.280 220. In 1994, the RECCE Battalion consisted of approximately 20 to 25 armoured vehicles.281 Operationally, the battalion was divided into three combat squadrons, an infantry squadron to assist in missions and protect the armoured vehicles, and a command and support squadron.282 Each combat squadron was composed of a command unit and two combat platoons.283 The combat platoons were subdivided into two combat sections, which were further divided into two combat squads.284 221. The basic mission of the RECCE Battalion was twofold. First, it was tasked with the defence of Rwanda, including carrying out first strike missions against enemy forces and providing a rapid response to attacks. Second, it conducted reconnaissance missions for other Rwandan Army units.285 In December 1993, the RECCE Battalion received an additional mandate to reinforce troops guarding the President.286 After 6 April 1994, the RECCE Battalion’s mission expanded under a special provision of the Rwandan Army regulations to include

protecting sensitive positions in Kigali, including the national radio system, the National Bank of Rwanda and the Telecom building.287 The battalion was also ordered to conduct missions behind RPF lines.288 1.2.5 The Rwandan Gendarmerie 275 Defence Exhibit 153, p. 7, para. 33(b). 276 T. 1 December 2008, p. 5. 277 T. 3 December 2008, p. 15. 278 T. 6 October 2008, p. 3. 279 T. 1 December 2008, p. 5. 280 T. 1 December 2008, p. 7. 281 T. 6 October 2008, p. 18. 282 T. 6 October 2008, p. 5; T. 1 December 2008, p. 5. 283 T. 1 December 2008, p. 6. 284 T. 1 December 2008, p. 6. 285 T. 6 October 2008, pp. 21-22. 286 T. 6 October 2008, p. 22. 287 T. 1 December 2008, pp. 13, 22; T. 6 October 2008, p. 21. 288 T. 6 October 2008, p. 21. 17 May 2011 55/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 222. The Gendarmerie nationale constituted the other half of the Rwandan Armed Forces. It was organised along the lines of several European military police forces, with twofold duties depending on whether the country was at war.289 The primary peacetime mission of the Gendarmerie was to maintain public security.290 In times of war, the Gendarmerie assisted the army and sent gendarmes to the front. While on combat operations, gendarmes served under the operational command of the army unit to which they had been assigned.291 Logistical and disciplinary duties remained with the Gendarmerie.292 223. The Gendarmerie was run by the General Staff, which was commanded by the Chief of Staff. As commander of the Gendarmerie, the Chief of Staff was given absolute legal authority over the force and was responsible for the proposals of his immediate staff.293 Immediately subordinate to the Chief of Staff were the heads of four bureaus of the General Staff,294 who also served as the Chief of Staff’s closest advisors.295 The G-1 was responsible for all personnel issues.296 The G-2 was concerned with intelligence matters. The G-3 was responsible for training and operations. Finally, the G-4 handled logistics for the Gendarmerie.297 224. Beneath the General Staff was the national gendarmerie corps, which was based in

Ruhengeri, and eight “territorial units” attached to the préfecture administrations in Kigali, Butare, Gikongoro, Cyangugu, Gisenyi, Ruhengeri, Byumba and Kibungo.298 The Chief of Staff also had authority over a number of specialised units including the road safety unit, the Kanombe airport unit, a mobile intervention unit in Kigali, a general services unit, a technical services unit, a construction unit, a criminal research and documentation unit, and a headquarters unit.299 In approximately July 1993, the Gendarmerie also formed a VIP company, which was a 30-man platoon responsible for protecting the Prime Minister and various party leaders.300 225. The Gendarmerie consisted of 6,000 members in early 1994, with deployments in 10 préfectures. Each detachment contained between 300 and 400 troops with the exception of Kigali, which was allocated approximately 730 gendarmes.301 Prior to the October 1990 war, the Gendarmerie had a total strength of 2,000 men. With the start of the war with the RPF, veteran gendarmes were dispatched to the frontlines, and 4,000 new gendarmes were recruited to meet security needs in the rest of the country.302 In order to compensate for the massive influx of new recruits, some veteran gendarmes were brought out of retirement to 289 Defence Exhibit 153, p. L0022658, para. 47. 290 T. 28 January 2008, p. 42. 291 T. 28 January 2008, p. 43. 292 T. 28

January 2008, p. 6; T. 17 January 2008, pp. 53-54; T. 18 February 2009, pp. 10, 48; T. 10 June 2008, p. 28; T. 23 June 2008, pp. 11-13; T. 23 January 2008, p. 46 (ICS). 293 T. 20 June 2008, pp. 16-17. 294 T. 20 June 2008, p. 17. 295 T. 16 June 2008, p. 40. 296 T. 16 June 2008, pp. 40-41. 297 T. 28 January 2008, p. 8; T. 28 June 2008, p. 42. 298 T. 28 January 2008, p. 8. 299 T. 28 January 2008, pp. 8, 11; T. 16 June 2008, p. 71. 300 T. 5 June 2008, p. 7. 301 Defence Exhibit 153, pp. 9-10, paras. 49-50, 53. 302 Defence Exhibit 153, p. 9. 17 May 2011 56/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T assist in training, although the UN concluded that only half of the recruits received substantial instruction, with the remainder receiving a 15 day basic course.303 1.3 Allegations of Planning and Preparation for the Genocide 226. The Indictment alleges that from late 1990 until July 1994, all four Accused “decided and executed a common scheme” with a number of other high level political and military leaders, together with numerous administrators, soldiers and civilians, “who espoused their cause to destroy, in whole or in part, the Tutsi ethnic group which was one of the component elements of the Rwandan population.”304 According to the Prosecution, the visible components of this “strategy for perpetrating the genocide” included the definition of the enemy by senior military and political officials, incitement to hatred and ethnic violence, the arming and training of Interahamwe militiamen, the preparation of lists of people to be eliminated, the numerous obstructions to the implementation of the Arusha Accords, and the deliberate refusal to restore order and seek out the perpetrators once the massacres of the civilian population had begun.305 227. The Prosecution submits that the proper inference to be drawn from the evidence is that at various times, each of the Accused agreed to participate in a

broader plan to kill Tutsi civilians in order to homogenise Rwandan society in favour of Hutu citizens. By their acts or their obstinate refusal to mobilise the Rwandan Armed Forces to fulfil their legal mandate to maintain and safeguard public peace, the four Accused acting in concert with others planned, incited, ordered, committed, or otherwise aided and abetted the planning, preparation or execution of the conspiracy to commit genocide against Tutsi.306 228. The Chamber will first consider the earliest alleged evidence of conspiracy, the work of the Enemy Commission, followed by the preparation of lists of people to be eliminated; the arming and training of civilian militias; various meetings that are said to have taken place between 1992 and 1994; the obstruction of the Arusha Accords; the concealment of weapons; the ownership of Radio Télévision Libre des Milles Collines (“RTLM”) shares; and finally the failure to stop RTLM broadcasts. 1.3.1 Definition of the Enemy 1.3.1.1 Introduction 229. On 4 December 1991, President Habyarimana set up a military commission to determine “[w]hat must be done in order to defeat the enemy militarily, in the media, and politically”. Colonel Théoneste Bagosora, the directeur de cabinet of the Ministry of Defence, chaired this Commission (the Enemy Commission), which sat until about 20 December 1991. On 21 September 1992, the then Chief of

Staff of the Rwandan Army, Colonel Déogratias Nsabimana, sent a letter to all commanders of operational sectors directing them to circulate to their units a document (the ENI Document) containing excerpts of the Enemy Commission’s report. The ENI Document defined the enemy as: 303 Defence Exhibit 153, p. 9, para. 48. 304 Indictment, para. 22. 305 Indictment, para. 25. 306 Indictment, para. 22. 17 May 2011 57/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The extremist Tutsi within the country and abroad who are nostalgic for power and who have NEVER acknowledged and STILL DO NOT acknowledge the realities of social Revolution of 1959, and who wish to regain power in RWANDA by all possible means, including the use of weapons.307 230. The Prosecution alleges that the depiction of Tutsi in their entirety as the “enemy” or accomplices of the enemy in the ENI Document, together with the measures proposed in that document to address the threat posed by Tutsi, provide evidence of a conspiracy to commit genocide against the Tutsi. The Prosecution also submits that the anti-Tutsi ideology espoused in the ENI Document facilitated and encouraged ethnic hatred towards Tutsi and contributed to the genocide in 1994. The Prosecution maintains that the military elites of the FAR, including the Accused in this case, subscribed to and supported the anti-Tutsi ideology expressed in the ENI Document.308 231. The Defence disputes the Prosecution’s allegations that the production of the ENI Document evidences a conspiracy by the Accused and others to commit genocide against Tutsi. The Defence contends that the Prosecution’s allegation that the ENI Document depicted Tutsi as the “enemy” is based on a selective reading of the document. The ENI Document, when read in its

entirety, does not support the Prosecution’s allegations since it is clear that it depicts the RPF and its internal allies as the enemy of Rwanda, rather than the Tutsi as an ethnic group. The Defence maintains that the Commission’s report was therefore prompted by a legitimate strategic need for the military authorities to define the enemy during a time of war. Even if one were to accept the Prosecution’s contentions regarding the ENI Document, the Prosecution has not established any link between the definition of the enemy contained in the ENI Document and the Accused in this trial.309 1.3.1.2 Deliberations 232. In light of the war situation that prevailed in Rwanda at the time, the Chamber does not consider the establishment of the Enemy Commission by President Habyarimana in December 1991 to be unusual. The issue that the Chamber must decide is whether the report authored by members of that Commission depicted Tutsi as the “enemy” of Rwanda by virtue of their ethnicity, thereby espousing an ideological position that viewed all Tutsi as enemies who should be defeated.

233. The Prosecution submits that the publication and subsequent use of the ENI Document indicate a conspiracy on the part of the military authorities, including the Accused in this case, to commit genocide against Tutsi. The Chamber will first consider whether the ENI Document itself is evidence of a conspiracy among the members of the Enemy Commission to commit genocide against Tutsi, before turning to the question of whether the subsequent use of that Document provides evidence of the existence of a conspiracy to commit genocide and of the participation of the Accused in that conspiracy. 307 Indictment, para. 26; Prosecution Closing Brief, para. 142; Prosecution Exhibit 112. 308 Indictment, paras. 25-26; Prosecution Closing Brief, paras. 137-149. 309 Ndindiliyimana Closing Brief, para. 20; Nzuwonemeye Closing Brief, paras. 358-381; Bizimungu Closing Brief, paras. 40-50. 17 May 2011 58/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 234. The full 32-page report of the Enemy Commission was entitled: “Evaluation of the situation of the RAF”.310 However, the entire report is not available to the Chamber. Only an excerpt of the report (the ENI Document), which Colonel Nsabimana disseminated to his subordinates on 21 September 1992, was tendered in this trial.311 A statement from one of the members of the Enemy Commission in 1991, tendered as exculpatory material pursuant to Rule 68 of the Rules, provides some explanation for the unavailability of the entire report. According to this statement, President Habyarimana did not want the full report to be disseminated because it was critical of three senior officers of the Rwandan Armed Forces who were close to the President.312 The Chamber notes that the statement is corroborated to some extent by the evidence of Prosecution Expert Witness Alison Des Forges, an expert in Rwandan history, who testified that the full report was “very tightly held even among senior military officers”, in part because it recommended the removal of certain high-ranking military officers who were close to the President.313 235. Colonel Nsabimana’s letter of 21 September 1992, to which the ENI Document was attached, directed all commanders of operational sectors to “circulate this document widely, highlighting in

particular the chapters concerning the definition, identification and recruiting grounds of the enemy.”314 The letter and the attached ENI Document were marked “SECRET” and were intended only for internal use within the military.315 The ENI Document subsequently fell into the hands of the opposition and was then circulated publicly.316 236. The first two provisions of the ENI Document, concerning the definition and identification of the enemy, read as follows: DEFINITION OF THE ENEMY The enemy can be subdivided into two categories: the primary enemy enemy supporters 1. The primary enemy are the extremist Tutsi within the country and abroad who are nostalgic for power and who have NEVER acknowledged and STILL DO NOT 310 Chamber’s Exhibit 12A, p.

6. Chamber’s Exhibits 6 through 17 were admitted into evidence on 12 April 2011 pursuant to its Decision on the Admission of Written Statements Disclosed by the Prosecutor Pursuant to Rule 68(1) of the Rules of Procedure and Evidence (with Strictly Confidential Annex). The Chamber notes that the exculpatory statements were disclosed by the Prosecution pursuant to Rule 68 after the trial had finished. In this regard, the Chamber recalls that a Trial Chamber may, where the Prosecution’s violation of its disclosure obligation is so extensive or occurs at such a late stage of the proceedings that it would violate the right of the accused to trial without undue delay, or where it would be impossible or impractical to recall Prosecution witnesses without effectively re-opening the case in its entirety, opt to draw reasonable inferences from the disclosed material at the stage of its definitive evaluation of the evidence. See Orić Decision on Ongoing Complaints, para. 35. 311 Prosecution Exhibit 112. The Chamber acknowledges the difficulties inherent in relying upon the excerpt in the absence of the full report. See Defence Exhibit 663, pp. 46-48; T. 26 November 2008, pp. 15-20; Bizimungu Closing Brief, para. 42. 312 Chamber’s Exhibit 12A, p. 6. 313 T. 19 September 2006, p. 54. 314 Prosecution Exhibit 112, p. 1. 315 T. 19 September 2006, p. 54; T. 28 May 2007, p. 32; T. 25 June 2008, p. 26; T. 7 October 2008, pp. 44-46. 316 T. 19 September 2006, p. 54; 27 September 2006, p. 22; T. 7 October 2008, p. 45; Chamber’s Exhibit 12A, p. 6. 17 May 2011 59/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T acknowledge the realities of the Social Revolution of 1959, and who wish to regain power in RWANDA by all possible means, including the use of weapons.

2. Enemy supporters are all who lend support to the primary enemy.... Political opponents who desire power or peaceful and democratic change in the current political regime in RWANDA are NOT to be confused with the ENEMY or supporters of the ENEMY. IDENTIFICATION OF THE ENEMY The ENEMY, or their accomplices, be they Rwandan or foreign nationals within the country or abroad, can be identified in particular by any of the following acts: - Taking up arms and attacking RWANDA; - Purchasing arms for enemy soldiers; - Contributing money to support the ENEMY; - Spreading propaganda favourable to the ENEMY; - Recruiting for the ENEMY; - Contaminating public opinion by spreading false rumours and information; - Spying for the ENEMY; - Divulging military secrets to the ENEMY; - Acting as a liaison officer or runner for the ENEMY; - Organising or performing acts of terrorism and sabotage in support of ENEMY activities; - Organising or inciting revolts, strikes or any form of disorder to support ENEMY activities; - Refusing to fight the ENEMY; - Refusing to comply with war requisitions. Political opponents who desire power or peaceful and democratic change in the current political regime in RWANDA are NOT to be confused with the ENEMY or supporters of the ENEMY.317 237. The Chamber has reviewed the above excerpt of the ENI Document and finds that it characterises only Tutsi who are

“extremists” and “nostalgic for power” and who wish to regain power “by all possible means, including the use of weapons” as the “enemy”, rather than the entire Tutsi population. The Chamber’s view is premised on the fact that the depiction of the enemy in the above excerpt is based not on ethnic identity per se, but on the enemy’s political objectives and actions taken in furtherance of such objectives, such as taking up arms against the regime, carrying out propaganda and recruitment for the enemy, spying and sabotage. Both clauses on the enemy contain an exception for political opponents who seek power within the political system through peaceful means.

238. The Chamber notes that in several places, the ENI Document uses the term “Tutsi” in reference to the enemy, and it makes generalisations that might suggest that the authors of the report considered the entire Tutsi population to be the enemy.318 Prosecution Expert Witness 317 Prosecution Exhibit 112, p. 3. 318 Prosecution Exhibit 107, p. 15; T. 19 September 2006, p. 61. 17 May 2011 60/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Des Forges expressed the opinion that the frequent references to “Tutsi” throughout the ENI Document provide an indication of the thinking of the members of the Enemy Commission. According to Des Forges, at the time the Document was published, it was widely interpreted as expressing the view that all Tutsi were considered to be the enemy.319 Des Forges’s view was contested by Defence Expert Witness Bernard Lugan, who expressed the view that the ENI Document characterised only those Tutsi who subscribed to certain political stances as the enemy, rather than the Tutsi in their entirety.320 239. The Chamber has carefully considered the views of Des Forges regarding the interpretation of the ENI Document. It does not consider Des Forges’s evidence to subvert its earlier finding that the ENI Document is inconclusive in proving that its authors considered all Tutsi to be enemies of the reigning government. The Chamber notes that throughout the ENI Document, the term “Tutsi” is generally qualified by other terms such as “extremist” Tutsi, Tutsi “refugees” or the Tutsi “diaspora”. The second half of the document speaks almost entirely about the RPF and has virtually no references to Tutsi. For example, the section entitled “Enemy military and political organization” provides a detailed analysis of the structure

and support system of the RPF.321 Similarly, the section entitled “Enemy goals, resources and methods” states, “The goal of the RPF is to seize power in RWANDA and install the political system of its choice.”322 240. The Chamber has also considered the terms of the letter dated 21 September 1992 from Chief of Staff Nsabimana to all commanders of operational sectors, to which the ENI Document was attached.323 Nsabimana was a member of the Enemy Commission in 1991 and he is among the individuals who the Prosecution alleges were part of a conspiracy, together with the four Accused in this case, to commit genocide against Tutsi.324 Nsabimana’s letter appears to focus upon the RPF as the enemy, rather than the Tutsi per se. For example, the letter states that the enemy “is now on our territory, whereas [when the Commission produced its report], they were attacking from UGANDA. Their ranks, which used to be small, have since swollen considerably. The cease-fire has been effective and negotiations to bring an end to the war are underway.”325 In the view of the Chamber, the terms of Nsabimana’s letter provide further support for the conclusion that the ENI Document did not equate Tutsi with the enemy by virtue of their ethnicity.

241. In light of the above analysis the Chamber is not satisfied that that the ENI Document indicates the existence of a conspiracy on the part of the Rwandan military authorities, including the Accused in this case, to perpetrate genocide against the Tutsi ethnic group.

242. That said, the Chamber acknowledges that the ENI Document included a clear ethnic component in its definition of the enemy, and it generally overemphasised the ethnic nature of the conflict. Des Forges expressed the view that the ENI Document led people to equate the enemy with the Tutsi ethnic group, and that this “facilitated attacks upon [Tutsi] and 319 T. 19 September 2006, pp. 57-58. 320 Defence Exhibit 663, p. 46; See also T. 28 May 2007, pp. 41-42; T. 25 June 2008, p. 27; T. 7 October 2008, pp. 44-46. 321 Prosecution Exhibit 112, p. 5. 322 Prosecution Exhibit 112, p. 10. 323 Prosecution Exhibit 112, p. 1. 324 Indictment, para. 22. 325 Prosecution Exhibit 112, p.

1. The Chamber has also considered the terms of Prosecution Exhibit 113, but it finds that the letter does not provide any support for the existence of a conspiracy. 17 May 2011 61/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T attempts to eliminate them.”326 In the Chamber’s opinion, the ENI Document may have played a role in isolating Tutsi on the basis of ethnicity, and this isolation was an important precondition of the genocide. Nonetheless, the Prosecution has not presented sufficient evidence to prove that the subsequent use of the ENI Document indicates a conspiracy to commit genocide.

243. Even if the Chamber were to accept the Prosecution’s argument that the production or subsequent use of the ENI Document is evidence of a conspiracy to commit genocide, the Chamber considers that there is not sufficient evidence connecting the Accused to that document. None of the Accused served on the Enemy Commission, and there is no evidence that any of the Accused authored or had any influence over the content of the ENI Document. Furthermore, although there is some evidence that Bizimungu propounded anti-Tutsi messages in the lead-up to and during the genocide, there is no evidence linking those messages to the ENI Document, and there is no evidence suggesting that any of the Accused took measures to disseminate the ENI Document within their respective units.327 244. Consequently, the Chamber finds that the Prosecution has not established beyond reasonable doubt that the production or subsequent use of the ENI Document is evidence of a conspiracy to perpetrate genocide against Tutsi or of the participation of the Accused in any such conspiracy. 1.3.2 Preparation of Lists of People to be Eliminated 245. Paragraph 25 of the Indictment identifies the preparation “of lists of people to be eliminated” as one of the “visible components” of the conspiracy to commit genocide.328 This allegation is not particularised in subsequent paragraphs of the Indictment nor is it linked

to any of the Accused in this case. Furthermore, the Prosecution presented no evidence suggesting that the Accused were in any way involved in the preparation of lists of people to be eliminated. Accordingly, the Chamber dismisses this allegation against the Accused. 1.3.3 Ndindiliyimana and the Provision of Material Support to Interahamwe 1.3.3.1 Introduction 246. Paragraph 25 of the Indictment identifies “the training of MRND Interahamwe militiamen and the distribution of weapons to them by elements of the Forces armées rwandaises” as one of the “visible components” of the conspiracy to commit genocide.329 In this regard, the Chamber recalls that the Prosecution presented evidence regarding the provision of weapons by Ndindiliyimana to Interahamwe militiamen. The Chamber will now consider whether this evidence is suggestive of Ndindiliyimana’s involvement in a conspiracy to commit genocide against Tutsi. 326 T. 11 October 2006, p. 33. 327 Nzuwonemeye Closing Brief, paras. 377-380; Ndindiliyimana Closing Brief, para. 20. 328 Indictment, para. 25. 329 Indictment, para. 25. 17 May 2011 62/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.3.3.2 Evidence 1.3.3.2.1 Prosecution Evidence Prosecution Witness AMW 247. Witness AMW was a member of the Interahamwe in 1994.330 Beginning on 13 April 1994, he was positioned at a roadblock located in Mucyakabiri, about 600 metres from Murambi.331 He testified that a number of civilian and military authorities often passed through this roadblock while he was stationed there.332 248. Witness AMW recalled that Ndindiliyimana passed through the roadblock sometime in April 1994 with four other persons dressed in Gendarmerie uniforms.333 The witness recognised Ndindiliyimana because he had seen him in the company of President Habyarimana and other authorities during the inauguration ceremony of Gitarama Stadium between 1985 and 1987.334 Witness AMW testified that during his brief stop at the Mucyakabiri roadblock, Ndindiliyimana took a pistol from a box in the cabin of his vehicle and gave it to the leader of the roadblock, who was known as Égide.335 Ndindiliyimana also congratulated the guards manning the roadblock for their role in combating the enemy, whom he described as “the Tutsis and all those who resembled them.”336 Ndindiliyimana’s stop at the roadblock lasted about five minutes, after which he headed in the direction of the government office in Murambi.337 249. Witness AMW testified that he saw

Ndindiliyimana a second time four days later at another roadblock controlled by a person known as Shitani.338 During this encounter, Ndindiliyimana told the guards manning the roadblock that they should remain alert for any Tutsi among the displaced persons fleeing from Kigali.339 Ndindiliyimana also promised to provide Shitani with guns as a reward for “doing his job very well” and authorised Shitani to take beer freely at Mucyakabiri at his expense.340 The witness understood Ndindiliyimana’s remarks towards Shitani to indicate his satisfaction with Shitani’s role in arresting and intercepting Tutsi at the roadblock. The witness further testified that prior to Ndindiliyimana’s stop at this roadblock, the Tutsi who were arrested at this roadblock there were taken to the commune office. However, after Ndindiliyimana’s visit, Tutsi arrested at the roadblock were summarily killed.341 330 T. 23 February 2005, p. 13. 331 T. 23 February 2005, pp. 13, 15, 38. 332 T. 23 February 2005, p. 15. 333 T. 23 February 2005, pp. 20, 22. 334 T. 23 February 2005, p. 21. 335 T. 23 February 2005, p. 22. 336 T. 23 February 2005, p. 22. 337 T. 23 February 2005, pp. 22-23. 338 T. 23 February 2005, p. 23. 339 T. 23 February 2005, p. 23. 340 T. 23 February 2005, p. 23. 341 T. 23 February 2005, p. 24. 17 May 2011 63/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness ANA 250. Witness ANA testified that early in the morning of 22 May 1994, he went to the football Nyanza Stadium to look for acting bourgmestre Nicodème Bizimana.342 The witness recalled that there was a crowd of between 500 and 1000 mostly young persons in the stadium listening to a speech given by Ndindiliyimana.343 Witness ANA heard Ndindiliyimana imploring the crowd to fight the Inkotanyi enemy as well as accomplices within the country and to participate in military training for that purpose.344 Ndindiliyimana had some weapons with him and he promised the crowd that he would try to bring a larger batch.345 After Ndindiliyimana’s speech, Captain Birikunzira, the commander of the Nyanza Gendarmerie, took the floor and explained that the enemy could be categorised into two groups: the Inkotanyi, who were at the front, and the accomplices of the Inkotanyi, or Tutsi members of the population.346 According to Witness ANA, Ndindiliyimana was still present when Birikunzira gave his speech.347 Prosecution Witness KF 251. Witness KF was a gendarme stationed at Camp Kacyiru in 1994. She testified that in April 1994, Interahamwe entered Camp Kacyiru and were then housed there until the end of the war.348 The witness recalled that the first Interahamwe entered Camp Kacyiru on 7 April seeking

shelter after having been fired upon by the RPF while manning roadblocks near the camp.349 According to Witness KF, the Interahamwe were housed in a large multi-purpose hall, which was also used to house officers, located near the General Staff office.350 Witness KF recalled seeing Interahamwe at the camp each time she was on duty there and she stated that they became, “more or less, our neighbours throughout the war.”351 252. Witness KF also testified to having witnessed Interahamwe being provided with weapons at Camp Kacyiru. The witness recalled that on one occasion, she saw a red pickup truck parked near an ammunitions depot and Lieutenant Colonel Nzapfakumunsi and the truck’s driver distributing weapons to about 20 Interahamwe.352 After the weapons had been distributed, the witness encountered a member of the Interahamwe who asked her whether she also had grenades to distribute.353 The witness subsequently learned that the Interahamwe were given weapons such as Enfield rifles, FALs and Kalashnikovs.354 253. Witness KF stated that the Interahamwe would enter and exit the camp at will and that they appeared to work there like the other inhabitants.355 The Interahamwe were provided with medical care at the camp and assistance was also extended to members of 342 T. 22 March 2005, pp. 41-42. 343 T. 22 March 2005, p. 43. 344 T. 22 March 2005, p. 43. 345 T. 22 March 2005, p. 43. 346 T. 22 March 2005, p. 44. 347 T. 22 March 2005, p. 44. 348 T. 17 January 2006, p. 25. 349 T. 17 January 2006, p. 25. 350 T. 17 January 2006, p. 25. 351 T. 17 January 2006, p. 25. 352 T. 17 January 2006, p. 27. 353 T. 17 January 2006, p. 26. 354 T. 17 January 2006, p. 26. 355 T. 17 January 2006, p. 28. 17 May 2011 64/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Interahamwe who did not reside at the camp.356 The witness observed members of the Interahamwe entering the camp at night in order to avail themselves of the services of the camp’s resident doctor.357 Witness KF described the Interahamwe as “at home” in Camp Kacyiru, finding safety and security alongside the gendarmes and others assigned there.358 The witness explained that if an Interahamwe was wounded or otherwise needed help, they would simply come into Camp Kacyiru and obtain care or provisions from the gendarmes.359 The witness stated that Interahamwe often came to the headquarters office “to see those working there” and to receive assistance with various “problems”.360 254. The witness testified that those Interahamwe who resided at the camp objected to and sometimes killed Tutsi they discovered on the camp premises. Witness KF recalled that on 19 May, a Tutsi woman named Marie who had sought refuge at the camp was killed by Interahamwe in collaboration with Second Lieutenant Munyaneza. However, Witness KF added that she did not witness this incident herself.361 255. Witness KF testified that the Interahamwe seemed to be supervised from outside the camp, but also collaborated with gendarmes within the camp.362 She noticed that the Interahamwe at the camp worked in coordination with two

non-commissioned officers (NCOs) in Camp Kacyiru: Sergeant Major Nteziryayo, the Secretary of the General Staff, and Sergeant Simpunga.363 According to the witness, these two NCOs worked with the Interahamwe, the commander of the General Staff and an unidentified officer.364 256. Witness KF testified that on 20 April, Ndindiliyimana arrived at Camp Kacyiru and chaired a meeting.365 1.3.3.2.2 Defence Evidence Defence Witness CBL104 257. Witness CBL104 was a member of the Gendarmerie and worked as Ndindiliyimana’s driver in 1994. He disputed the suggestion that Ndindiliyimana gave a pistol to an Interahamwe leader named Égide at a roadblock in Gitarama.366 The witness testified that it was inconceivable that Ndindiliyimana, given his high rank and the fact that he had orderlies at his disposal, would have taken it upon himself to distribute weapons.367 The witness stated, “[A]nyone who says that General Ndindiliyimana distributed weapons – issued weapons, would be a liar, because Ndindiliyimana was a high-ranking officer. If he had wanted to distribute weapons, he would have asked his subordinates to do it rather than doing it himself 356 T. 17 January 2006, p. 28. 357 T. 17 January 2006, p. 28. 358 T. 17 January 2006, p. 28. 359 T. 17 January 2006, p. 29. 360 T. 17 January 2006, pp. 29-30. 361 T. 17 January 2006, pp. 30-31. 362 T. 17 January 2006, p. 29. 363 T. 17 January 2006, pp. 29, 33. 364 T. 17 January 2006, p. 29. 365 T. 17 January 2006, p. 19. 366 T. 4 June 2008, p. 14 (ICS). 367 T. 4 June 2008, p. 13 (ICS). 17 May 2011 65/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T which proves to you, therefore, that this is merely a tissue of lies and no such thing occurred.”368 258. Witness CBL104 testified that he drove Ndindiliyimana to Nyanza to visit students of the military academy (ESM) who had relocated to secondary schools in Nyanza from the ESM campus in Kigali due to security concerns.369 During this visit, Ndindiliyimana did not go to the Nyanza Stadium as was alleged by Prosecution Witness ANA.370 Witness CBL104 further testified that he drove Ndindiliyimana everywhere and therefore would have known had Ndindiliyimana gone to the Nyanza Stadium.371 Defence Witness Antoine Nemeyabahizi 259. Witness Nemeyabahizi, the Tutsi director of the Hôtel de Tourisme in Gitarama, testified that there was a roadblock located about 300 metres from the hotel in 1994.372 The witness stated that a former hotel employee named Égide was in control of this roadblock and that Égide even approached the hotel on three occasions in an attempt to attack the Tutsi.373 260. Nemeyabahizi explained that Ndindiliyimana, knowing that there were Tutsi seeking refuge in the Hôtel de Tourisme, provided four gendarmes to guard the premises from Interahamwe and gave the hotel permission to refuse entry to Interahamwe by stating that the government had requisitioned the hotel for official military

business.374 The witness also stated that Ndindiliyimana had “saved” him and he posed the question, “Why would [Ndindiliyimana] give a gun to someone who wanted to kill me? That’s impossible.”375 Nemeyabahizi further testified that he never saw Ndindiliyimana with a pistol and that, despite enjoying Ndindiliyimana’s full support, Nemeyabahizi had not received a pistol when he asked for one.376 261. Nemeyabahizi disputed Prosecution Witness AMW’s claim that Ndindiliyimana gave a pistol to an Interahamwe leader known as Égide. The witness stated, “How can you expect a general -- from the Chief of Staff to indulge in little things with an imbecile like Égide? An eagle cannot eat flies.”377 Defence Witness Jean Marie Vianney Nzapfakumunsi 262. Witness Nzapfakumunsi was a Gendarmerie officer based at Camp Kacyiru from April to July 1994. He disputed the claims made by Prosecution Witness KF that Interahamwe were allowed to enter or reside at Camp Kacyiru.378 In particular, the witness rejected Witness KF’s claim that Interahamwe were housed at the auditorium near the camp’s command post. Nzapfakumunsi testified that from 9 April 1994, the area around the auditorium was subjected to an intense and protracted attack by the RPF because it was 368 T. 4 June 2008, p. 19 (ICS). 369 T. 4 June 2008, pp. 16-17 (ICS). 370 T. 4 June 2008, p. 16 (ICS). 371 T. 4 June 2008, p. 16 (ICS). 372 T. 22 January 2008, pp. 45-46. 373 T. 22 January 2008, p. 46. 374 T. 22 January 2008, pp. 41-42. 375 T. 22 January 2008, p. 46. 376 T. 22 January 2008, p. 47. 377 T. 22 January 2008, p. 46. 378 T. 18 February 2009, p. 11; T. 17 January 2006, p. 25. 17 May 2011 66/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T located near the command post.379 According to Nzapfakumunsi, the command post was moved from its original location on 11 or 12 April because the building could not offer protection from the shelling.380 The people who were previously sheltered at the auditorium were evacuated due to the attack.381 Nzapfakumunsi stated that in light of this situation, it would have been impossible for members of the Interahamwe to remain housed in the auditorium “throughout the war”.382 263. Nzapfakumunsi also rejected Witness KF’s claim that he distributed weapons to Interahamwe at the camp. Nzapfakumunsi stated, “[A]t the Kanombe airport command in the magazines dump there were no weapons, so I could not distribute firearms that I did not have in my store.”383 He further testified that he could not distribute weapons that belonged to another unit commander and had been given by the General Staff. According to Nzapfakumunsi, he knew that if he distributed weapons to the Interahamwe, those “arms would be used against [him]”.384 264. Nzapfakumunsi also responded to Witness KF’s claim that two NCOs, namely Sergeants Nteziryayo and Simpunga, collaborated with the Interahamwe at Camp Kacyiru. The witness stated that he was informed that Sergeant Nteziryayo had deserted the camp, together with another NCO known as Ngerero,

and joined the Interahamwe.385 The witness also testified that Ngerero was facing disciplinary proceedings at the time of his desertion;386 Ngerero had declared his intention to kill Nzapfakumunsi, who subsequently reported the matter to the Chief of Staff, who then initiated disciplinary proceedings against Ngerero.387 Nzapfakumunsi stated that he had no information regarding Sergeant Simpunga.388 He added that with the resumption of hostilities with the RPF, the Gendarmerie found it difficult to arrest gendarmes who were deserting from its ranks and joining the Interahamwe.389 265. Finally, Nzapfakumunsi disputed Witness KF’s claim that Ndindiliyimana chaired a meeting on 20 April 1994 at Camp Kacyiru.390 The witness explained that it would not have been feasible for Ndindiliyimana to hold a meeting at Camp Kacyiru given the intense and protracted shelling of the camp by the RPF.391 Nzapfakumunsi stated that Ndindiliyimana visited Camp Kacyiru only once, in either April or May 1994, but did not hold any meetings during that brief visit.392 379 T. 18 February 2009, pp. 13-14. 380 T. 18 February 2009, p. 14. 381 T. 18 February 2009, pp. 11, 14. 382 T. 18 February 2009, p. 13; T. 17 January 2006, p. 25. 383 T. 18 February 2009, p. 21. 384 T. 18 February 2009, p. 21. 385 T. 18 February 2009, pp. 21-22 386 T. 18 February 2009, p. 22 387 T. 18 February 2009, p. 22 388 T. 18 February 2009, p. 22 389 T. 18 February 2009, pp. 23-24, 27 390 T. 18 February 2009, pp. 10; T. 17 January 2006, p. 19. 391 T. 18 February 2009, p. 10. 392 T. 18 February 2009, p. 11. 17 May 2011 67/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness CBP85 266. Witness CBP85 was a military lawyer in Kigali in April 1994.393 He testified that he moved from Kigali to Nyanza between 15 and 20 May and was tasked with training new recruits there.394 According to the witness, Ndindiliyimana visited Nyanza between 21 and 24 May, and was accompanied by Murasampongo, the G1 officer of the Rwandan Army, and another Gendarmerie officer. The next day, Ndindiliyimana transferred at least 30 of the new recruits to the Gendarmerie.395 Witness CBP85 did not see Ndindiliyimana again before leaving Nyanza in late May or early June.396 1.3.3.3 Deliberations 267. In assessing this allegation against Ndindiliyimana, the Chamber will first consider his alleged speech at Nyanza Stadium, before considering his alleged support for Interahamwe at various roadblocks and finally the alleged events at Camp Kacyiru. 1.3.3.3.1 Ndindiliyimana’s Alleged Speech at Nyanza Stadium 268. The Chamber recalls that Prosecution Witness ANA is the only witness to have testified that Ndindiliyimana gave a speech at Nyanza Stadium on 22 May 1994 encouraging the audience to kill Tutsi and promising to provide weapons in support of such killings.397 The Chamber notes that at the time of his testimony, the witness was serving a lengthy prison sentence after having been convicted of crimes related to the 1994 genocide.398 For this reason, the Chamber treats his evidence with caution.

269. Furthermore, the Chamber has heard evidence from a number of Defence witnesses suggesting that the public meeting alleged by Witness ANA did not in fact take place. Defence Witness CBP85, who was in Nyanza at the time, denied that a public meeting featuring a speech by Ndindiliyimana was held at Nyanza Stadium. Defence Witness CBL104, Ndindiliyimana’s driver at the time, testified that Ndindiliyimana had never even visited the stadium.399 Given the contravening testimony of these witnesses, the Chamber finds that Witness ANA’s evidence with respect to the alleged public meeting at Nyanza Stadium is insufficient absent further corroboration.

270. The Chamber also notes that Witness ANA was cross-examined at length during the Nyiramasuhuko et al. proceedings about the events that occurred in Nyanza on 22 May 1994. However, the witness never mentioned during that trial that he attended a large public meeting at Nyanza Stadium on 22 May in which Ndindiliyimana addressed the crowd.400 The witness attempted to explain this omission by stating that he was not asked about Ndindiliyimana or about what had happened in the morning of 22 May 1994 while testifying in that case.401 The Chamber is not convinced by this explanation in light of the exhaustive 393 T. 28 May 2008, p. 38 (ICS). 394 T. 28 May 2008, pp. 42-43 (ICS). 395 T. 28 May 2008, pp. 44, 50 (ICS). 396 T. 28 May 2008, pp. 44-45, 50 (ICS). 397 T. 22 March 2005, pp. 41-44. 398 T. 23 March 2005, pp. 10, 13, 42. 399 T. 4 June 2008, pp. 16-17; T. 25 February 2008, pp. 30, 38; T. 26 May 2008, pp. 33, 55. 400 T. 23 March 2005, p. 41. 401 T. 23 March 2005, p. 41. 17 May 2011 68/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T nature of the cross-examination of the witness in Nyiramasuhuko et al. regarding the events in Nyanza on 22 May 1994. This discrepancy raises further doubts about the reliability of Witness ANA’s evidence and his overall credibility.

271. Even if the Chamber were to accept Witness ANA’s evidence as credible, the Chamber is not satisfied that his account of Ndindiliyimana’s alleged speech at Nyanza Stadium provides evidence that Ndindiliyimana conspired to commit genocide against Tutsi. Merely urging the audience to join the war effort against the RPF and offering to provide them with weapons is not in itself indicative of a desire to target and kill Tutsi civilians.

272. For these reasons, the Chamber is not satisfied that Witness ANA’s evidence offers support for the Prosecution’s allegation that Ndindiliyimana was implicated in a conspiracy to commit genocide against Tutsi. 1.3.3.3.2 Ndindiliyimana’s Support for the Militia at Various Roadblocks 273. The Chamber recalls that it heard testimony from Prosecution Witness AMW regarding Ndindiliyimana’s conduct at two roadblocks in Gitarama manned by Interahamwe. This witness alleged that Ndindiliyimana encouraged the Interahamwe at these roadblocks to kill Tutsi, that he promised to provide them with weapons and that in one instance he actually provided an Interahamwe member with a weapon. Witness AMW testified that at one of these roadblocks, the Interahamwe started to kill Tutsi after an encounter with Ndindiliyimana.

274. The Chamber notes that at the time of his testimony, Witness AMW was in detention awaiting trial for allegations of involvement in genocide-related crimes in 1994.402 Accordingly, the Chamber approaches his evidence with caution.

275. The Chamber has grave concerns about the credibility of Witness AMW’s testimony. In particular, the Chamber recalls that the witness claimed to have identified Ndindiliyimana at the Mucyakabiri roadblock in April 1994 after having previously seen him only once at a public ceremony at Gitarama Stadium between 1985 and 1987, when he was 15 or 16 years old.403 The Chamber is not satisfied that the witness would have been able to identify Ndindiliyimana accurately and reliably based on one brief sighting of him seven to nine years before the encounter at that roadblock in 1994.

276. The Chamber also recalls Witness AMW’s inconsistent account of the identity of Ndindiliyimana’s escorts during his passage through the roadblock in Mucyakabiri. During his testimony before this Chamber, Witness AMW stated that Ndindiliyimana had gendarme escorts. However, in his testimony during the Bizimungu et al. case, the witness claimed that Ndindiliyimana was escorted by Presidential Guard soldiers when he passed through the roadblock.404 When asked to explain this discrepancy, the witness stated that Ndindiliyimana’s escorts were in fact Presidential Guards dressed in the uniforms of the Gendarmerie.405 The Chamber finds that Witness AMW’s inconsistent account of Ndindiliyimana’s escorts undermines the reliability of his evidence as well as his overall credibility. 402 T. 23 February 2005, p. 7 (ICS). 403 T. 23 February 2005, pp. 9, 20. 404 T. 24 February 2005, p. 55; T. 28 February 2005, p. 19. 405 T. 28 February 2005, p. 20. 17 May 2011 69/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 277. The Chamber heard credible evidence from a number of Defence witnesses that raises further doubts about the veracity of Witness AMW’s testimony. Defence Witness CBL104, Ndindiliyimana’s driver at the time, refuted Witness AMW’s account that Ndindiliyimana stopped at a roadblock manned by Interahamwe at Mucyakabiri and gave a pistol to a guard named Égide. Witness CBL104 testified that it was highly implausible that an officer of Ndindiliyimana’s rank would have personally taken a pistol from a cabin at the back of his vehicle and given it to an Interahamwe member. The witness stated that Ndindiliyimana had orderlies at his disposal who would have most likely carried out such tasks. In addition, Defence Witness Nemeyabahizi, a Tutsi director of the Hôtel de Tourisme in Gitarama, testified that Ndindiliyimana posted a few gendarmes to the hotel in order to protect the witness and other Tutsi who had been threatened by Interahamwe such as Égide.406 The witness rejected the possibility that Ndindiliyimana, who had helped him considerably, would have provided weapons to such Interahamwe.

278. The Chamber also notes that Witness AMW’s testimony contravenes the totality of the evidence concerning Ndindiliyimana’s conduct vis-à-vis the killings of Tutsi in 1994. The Chamber has considered this evidence in assessing the allegations pleaded in paragraphs 45 to 50 of the Indictment, and in greater detail in assessing Ndindiliyimana’s sentence. The sum of the evidence suggests that Ndindiliyimana not only refrained from materially supporting and inciting killings, but that he took affirmative steps to reduce both the threat and the actual infliction of violence upon Tutsi. In this regard, the Chamber highlights the statements of Witness Des Forges and Fidèle Uwizeye regarding Ndindiliyimana’s visit to Murambi in Gitarama on 22 April 1994 to plead with members of the interim government to intervene to stop the killings by Interahamwe.407 The Chamber also recalls that Des Forges’s assessment of Ndindiliyimana’s conduct during the month of April, when Witness AMW alleges that Ndindiliyimana supported the killings of Tutsi by Interahamwe at roadblocks, led her to conclude that his conduct was consistent with “someone who opposes any killings of Tutsi civilians and any plan to do so”.408 279. Having considered the evidence set out above, the Chamber does not accept accomplice Witness AMW’s uncorroborated evidence that Ndindiliyimana gave a pistol to an Interahamwe guard at

a roadblock in Gitarama, encouraged the Interahamwe there to kill Tutsi and offered to buy them alcohol as a token of support for their criminal conduct at the roadblocks. Therefore, the Chamber finds that Witness AMW’s evidence does not support the Prosecution’s allegation that Ndindiliyimana was part of a conspiracy to commit genocide against Tutsi. 1.3.3.3.3 Events at Camp Kacyiru 280. The Chamber has considered Prosecution Witness KF’s testimony regarding the close collaboration between gendarmes at Camp Kacyiru and members of the Interahamwe. For reasons set out below, the Chamber finds Witness KF’s testimony to be unreliable in the absence of credible corroborating evidence.

281. The Chamber recalls that Witness KF testified that members of the Interahamwe were sheltered in a multi-purpose hall near the command post in Camp Kacyiru upon the 406 T. 22 January 2008, pp. 41-42. 407 T. 11 October 2006, pp. 58-59; Chamber’s Exhibit 13A, p. 8. 408 T. 11 October 2006, p. 60. 17 May 2011 70/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T resumption of hostilities with the RPF. However, in light of Defence Witness Nzapfakumunsi’s detailed account of the circumstances at the camp during this period, the Chamber finds Witness KF’s claim to be dubious.

282. Nzapfakumunsi, who worked at the command post, testified that the intense and protracted shelling of Camp Kacyiru, and in particular the command post, which began on 9 April 1994 would have made it impossible for the Interahamwe to have resided in the multi- purpose hall throughout the length of the hostilities with the RPF, as was alleged by Witness KF. Specifically, Nzapfakumunsi testified that the command post of the camp was targeted during this attack and that it was subsequently moved to a different location because the building that had housed the command post had been rendered structurally unsafe. The multi- purpose hall was also attacked during this time due to its proximity to the command post, and the people within it were evacuated following the transfer of the command post. Furthermore, Nzapfakumunsi testified that the multi-purpose hall had a weak roof that offered no protection from the shelling.

283. The Chamber finds Witness Nzapfakumunsi’s account of the situation at Camp Kacyiru to be credible. Thus, contrary to Witness KF’s claim, the Chamber finds that it would have been impossible for anyone to remain in the multi-purpose hall for any length of time during the shelling, let alone throughout the war. His evidence is corroborated to a significant extent by Ndindiliyimana and Witness CBP62, both of whom testified that the General Staff of the Gendarmerie was relocated from the camp to the Ministry of Public Works in Kimihurura due to the intensity of the RPF attack.409 284. The credibility of Witness KF’s testimony regarding events at Camp Kacyiru is further diminished by her unconvincing claim that Ndindiliyimana chaired a meeting at the camp on 20 April 1994. Having found that the Gendarmerie’s General Staff moved from Camp Kacyiru to a different location as a result of the RPF onslaught, the Chamber finds it difficult to believe that Ndindiliyimana would have chaired a meeting at Kacyiru Camp only one to two weeks after the relocation. The Chamber therefore rejects this claim by Witness KF.

285. Witness KF’s testimony also suggests that the Interahamwe at Camp Kacyiru had links to the high command of the Gendarmerie or the commanders at the camp. The Chamber recalls that Witness KF testified that two NCOs of the Gendarmerie at the camp, namely Nteziryayo and Simpunga, collaborated with the Interahamwe and worked with the “commander of the General Staff”. While the Chamber accepts, based on Nzapfakumunsi’s testimony, that Nteziryayo collaborated with the Interahamwe, Nzapfakumunsi’s evidence raises doubts as to whether his collaboration was endorsed by the Gendarmerie’s high command. Nzapfakumunsi testified that Nteziryayo had defected from the Gendarmerie and joined the Interahamwe, together with Sergeant Ngerero who was subject to disciplinary proceedings at the time of his defection. For this reason, the Chamber has doubts as to whether the collaboration between some of the gendarmes at the camp with the Interahamwe was condoned by the Gendarmerie’s high command.

286. The Chamber finds that the deficiencies in Witness KF’s testimony described above undermine her overall credibility as a witness and cast considerable doubt on the reliability of her testimony. For these reasons, the Chamber is not satisfied that Witness KF’s evidence 409 See T. 27 May 2008, p. 38. 17 May 2011 71/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T supports the Prosecution’s allegation that Ndindiliyimana was implicated in a conspiracy to commit genocide against Tutsi. 1.3.4 Military Training and Distribution of Weapons to Interahamwe 1.3.4.1 Introduction 287. The Indictment alleges that in the course of 1992, 1993 and 1994, the political and military authorities, including Théoneste Bagosora, Augustin Bizimungu and Protais Mpiranya, provided military training and weapons to Interahamwe. It is alleged that the training took place in Ruhengeri, Cyangugu, Gisenyi and Butare préfectures, in Mutara secteur, and that the training sites were the Gako, Gabiro, Mukamira and Bigogwe military camps.410 1.3.4.2 Evidence 1.3.4.2.1 Prosecution Evidence Prosecution Witness Roméo Dallaire 288. Witness Dallaire testified that Prime Minister Faustin Twagiramungu visited him on 11 January 1994 to speak of an informant who was said to be a high level member of the Interahamwe.411 Twagiramungu told Dallaire that the informant had approached him saying that the Interahamwe were being armed and trained, and that the informant could not continue to function within the Interahamwe because of the extreme “misactions” that were being planned.412 289. Dallaire asked the commander of the Kigali secteur, Colonel Luc Marchal, to gather more information from the informant, whom

they knew as “Jean-Pierre”.413 Marchal reported back that evening and told Dallaire that, according to Jean-Pierre, the MRND party was arming and training the Interahamwe to be not only a force to be used should they be required to fight, but also to be a force to be used to conduct massive scale of rounding up and killing of Tutsi … it contained also information of arms being distributed, training being conducted, of lists being made of targets that they would go after and the general information in regard to the conduct of the Interahamwe in what it potentially would be doing if called upon to implement that would seem to be a very diabolical plan of attacking and killing ultimately on a large scale the Tutsis. … [and] including the fact that he had mentioned that the Belgian soldiers would be potentially targeted.414 290. The following day, one of Dallaire’s officers found weapons in the MRND Headquarters in Kigali, which was supposedly rented to the MRND by Ndindiliyimana. Jean- Pierre had previously informed Dallaire that the building was in fact a weapons cache.415 410 Indictment, para. 27. 411 T. 20 November 2006, p. 33. 412 T. 20 November 2006, pp. 33-34. 413 T. 20 November 2006, p. 34; T. 22 November 2006, p. 45. 414 T. 20 November 2006, p. 34. 415 T. 20 November 2006, p. 45. 17 May 2011 72/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness Frank Claeys 291. Witness Claeys, a Belgian UNAMIR officer in Rwanda in 1994, testified that on 10 January 1994 he met with an informant named Jean-Pierre Turatsinze, who was a former member of the Presidential Guard.416 The witness testified, “[Jean-Pierre] told us he was in charge of training of persons who were members of the party, and who constituted the group that was referred to as the Interahamwe, that is, the militia of the MRND party.”417 292. Jean-Pierre informed the witness that he “was in charge of the distribution of weapons in the various cellules within Kigali. These weapons were stored to be used subsequently”.418 Jean-Pierre further stated that he “was in a position to receive weapons from units that were in Kigali with the authorisation of the local military authorities”, and that the commanding officers of various military units would give him the authorisation to take weapons from the stocks that were stored in their areas.419 Jean-Pierre informed the witness that he was in contact with Ngirumpatse, the chairman of the MRND, and his secretary.420 293. Witness Claeys met with Jean-Pierre again on 13 January 1994. Following this meeting, Jean-Pierre took the witness and the witness’s colleague, Captain Deme, through Kigali so that he could point out the places that

were designated as weapons caches and inform Claeys and Deme of the number of weapons stored in each location. The witness testified that approximately 100 AK-47 and G3 weapons were stored at the MRND Headquarters.421 Prosecution Expert Witness Alison Des Forges 294. Witness Des Forges testified extensively about the evolution of Rwanda’s programme of civilian self-defence between 1990 and 1994. Des Forges stated that the government instituted a civilian self-defence programme in 1990 requiring local people to guard roadblocks and to carry out night patrols, but the programme lapsed following the RPF retreat in October 1990.422 The programme was revived in September 1992, and one man for every ten households in the area near the Ugandan border was given military training as part of a self-defence force against the RPF. The trained civilians lived at home and were to go to action on the orders of Rwandan soldiers or gendarmes.423 295. In early 1993, Rwandan political and military leaders began advocating vigorously for a formalised national programme of “civilian self-defence” to defend against RPF infiltration.424 President Habyarimana himself gave his public approval to such a plan in February 1993, and the initial steps were taken to distribute arms to civilians as part of what eventually became the civilian self-defence programme.425 Soldiers provided firearms to 416 T. 11

October 2005, pp. 27-28. 417 T. 11 October 2005, p. 28. 418 T. 11 October 2005, p. 28. 419 T. 11 October 2005, pp. 28-29. 420 T. 11 October 2005, p. 28. 421 T. 11 October 2005, pp. 59-60. 422 Prosecution Exhibit 107(A), pp. 23-24; T. 18 September 2006, p. 63; T. 20 September 2006, p. 27. 423 Prosecution Exhibit 107(A), p. 24. 424 Prosecution Exhibit 107(A), p. 24. 425 T. 20 September 2006, pp. 24, 27. 17 May 2011 73/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T residents of Gituza commune in Byumba préfecture and Mutara commune in Gisenyi préfecture, and a number of residents of Gituza commune also received training.426 296. A military commission was established in October 1993 to put the civil defence system into effect, “in preparation for having an armed population to be mobilised and to react on the orders of military and administrative officials.”427 Des Forges testified that the plan was to incorporate the militia into this system, “so that party loyalty would no longer be an obstacle.”428 After October 1993, the pace of distribution increased with firearms, grenades and machetes being delivered to militia. What made the system different during this period, according to Des Forges, was the extension of the programme nationwide and into those areas where there was no combat.429 Des Forges emphasised that the use of “the ideas of defence”, particularly “the propagation of the idea that the enemy was everywhere”, helped to expand the programme in this way.430 297. Des Forges testified: Simultaneous with that, there was greater attention given to recruiting, training and arming militia members, particularly of the MRND, the group known as Interahamwe, also in some cases CDR. The dates are difficult to pin down but certainly by the end of the year [1993],

there was a noticeable increase in the number of militia being trained.431 298. This continued into early 1994, when Rwandan soldiers trained hundreds of new Interahamwe recruits at military camps and other locations.432 Military leaders also provided firearms to civilian authorities and political party leaders, who passed them on to militia.433 299. In February 1994, planners of the civil defence system met again and produced a document entitled “Organization of civilian self-defence”, which discussed preparations for “popular resistance” in the event of renewed combat. The document specified that such resistance must be led by members of the armed forces. It called for participation from supporters of political parties that “defend the principle of the republic and democracy”, a phrase which according to Des Forges came to mean the Hutu Power parties.434 The document detailed a plan to supply participants with 4,995 firearms and 499,500 bullets. It also mentioned the need for traditional weapons such as bows, arrows and spears, which it said the people should acquire for themselves. The programme was to defend against actual RPF combatants, but also “disguised RPF” and their “accomplices”. Des Forges noted that this language was so broad that it could easily be interpreted as including Tutsi civilians.435 300. On 29 March 1994, army officers again met to discuss the civil

defence programme. The Chief of Staff, General Nsabimana, produced a written report on the meeting. The report stated that soldiers and former soldiers would command the recruits, who were to be “reliable 426 Prosecution Exhibit 107(A), p. 27. 427 T. 20 September 2006, pp. 26-27, 33. 428 T. 20 September 2006, pp. 26, 45. 429 T. 20 September 2006, p. 27. 430 T. 20 September 2006, p. 27. 431 T. 20 September 2006, p. 45; see also T. 20 September 2006, pp. 29-30, 34-35. 432 Prosecution Exhibit 107(A), p. 25; T. 26 September 2006, p. 29. 433 Prosecution Exhibit 107(A), p. 25. 434 Prosecution Exhibit 107(A), pp. 25-26. 435 Prosecution Exhibit 107(A), pp. 25-26. 17 May 2011 74/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T citizens”, and the Minister of Defence and Minister of the Interior were to be contacted to obtain the necessary firearms for the civilians. Given the scarcity of weapons, it was suggested that bourgmestres should instruct civilians in the use of traditional weapons including swords, spears, machetes, bows and arrows.436 Des Forges expressed the view that the plan to train civil defence forces in the use of traditional weapons indicated that their target was civilian rather than military.437 The civil defence system was formally implemented throughout the country on 25 May 1994 in a directive by Prime Minister Jean Kambanda.438 301. Thus, Des Forges explained that the civilian self-defence system existed in various forms at different periods during the war. It began as a legitimate effort to use civilians against a combatant force. Eventually, however, it morphed into a programme that could and did lead to the use of armed force against Tutsi civilians as such.439 Des Forges testified, “When the plan was enlarged, to encompass areas then remote from the battlefield, and when the directives suggested the presence of the enemy embedded in the community … then the plan change[d] in nature.”440 Prosecution Witness OX 302. Witness OX testified that on 7 April 1994, at the Gisenyi bus terminal, he saw Colonel

Anatole Nsengiyumva and Captain Bizimuremye441 holding a meeting with a large number of Interahamwe leaders including Bernard Munyagishari, Omari Faizi (a.k.a. Serushango), Thomas and Mabuye.442 The witness saw that the Interahamwe were bringing down a large number of crates from two pick-up trucks and that Bizimuremye was then distributing firearms and grenades from the crates to the Interahamwe.443 Prosecution Witness AOG 303. Witness AOG testified that he was a member of the MRND and was present at the meeting around November 1991 when the Interahamwe was established.444 He was subsequently closely involved with the activities of the Interahamwe.445 He recalled that in 1993 the MRND provided the Interahamwe with weapons, as well as providing training in the handling and assembly of weapons, shooting and military drills.446 The witness testified that the Ministry of National Defence gave 800 weapons to the chairman of the MRND, Mathieu Ngirumpatse, who then gave them to Kasimu Turatsinze, the intermediary between the MRND and the Interahamwe. Turatsinze in turn gave 400 weapons including 436 Prosecution Exhibit 107(A), pp. 26-27; T. 21 September 2006, p. 5. 437 T. 20 September 2006, p. 33. 438 Prosecution Exhibit 211A; T. 21 September 2006, p. 9. 439 T. 20 September 2006, p. 33. 440 T. 20 September 2006, p. 33. 441 The Chamber notes that Bizimuremye is spelled “Bizumuremye” in the transcripts of witness DO’s testimony. The Chamber is satisfied that the two witnesses are referring to the same person. 442 T. 14 June 2006, pp. 7-9, 64. 443 T. 14 June 2006, pp. 8, 66. 444 T. 20 February 2006, p. 39 (ICS); T. 21 February 2006, p. 18. 445 T. 21 February 2006, pp. 18-19, 41 (ICS). 446 T. 21 February 2006, pp. 17-18 (ICS). 17 May 2011 75/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Kalashnikovs, R4s and light automatic weapons447 to Robert Kajuga, who then distributed them among the Interahamwe in Kigali town.448 Prosecution Witness DA 304. Witness DA was a soldier in the RECCE Battalion in Kigali from 1991 to 1994.449 He testified that Interahamwe received weapons training at locations such as Gabiro in Mutara region and Kimihurura at the Presidential Guard barracks.450 At the end of 1992, the witness saw three or four groups of Interahamwe receiving training in the vicinity of Camp Gabiro, each group consisting of between 500 and 600 people.451 The Interahamwe were trained by Rwandan soldiers, including commando troops from Camp Gabiro, together with French instructors.452 The witness also saw Interahamwe receiving weapons training at the Presidential Guard camp in Kimihurura in May 1993.453 He testified that Rwandan soldiers, including some soldiers of the Presidential Guard, provided the training in conjunction with French soldiers.454 Prosecution Witness DY 305. Witness DY was a soldier in the RECCE Battalion in Kigali from 1988 to 1994.455 He testified that in 1993, Rwandan soldiers commanded by Lieutenant Colonel Mukundiye trained the Interahamwe in Mutara.456 The witness went to Kabiro in Mutara on one occasion in 1993, where he heard gunshots and saw a large number of

soldiers. An instructor informed the witness that the gunshots were the Interahamwe undergoing training. The witness was also told that if UNAMIR were to arrive at the camp, he should tell them that the trainees were forest rangers.457 Prosecution Witness DCK 306. Witness DCK was a soldier in the Music Company in Camp Kigali in 1994.458 He testified that in late June or early July 1994, he accompanied the Operations commander, General Kabiligi, to the Kigali city préfecture office where Kabiligi met about 40 Interahamwe and gave them new Kalashnikovs, ammunition and grenades. Kabiligi asked the Interahamwe if they knew how to handle weapons, and they replied, “Yes, we were trained in weapons handling.”459 447 T. 21 February 2006, p. 23 (ICS). 448 T. 21 February 2006, pp. 17-18 (ICS). 449 T. 11 January 2005, p. 28 (ICS). 450 T. 13 January 2005, p. 18. 451 T. 13 January 2005, pp. 19-21; 20 January 2005, p. 55; T. 25 January 2005, p. 67. 452 T. 20 January 2005, p. 55; T. 13 January 2005, p. 21. 453 T. 13 January 2005, p. 22. 454 T. 13 January 2005, p. 22; T. 25 January 2005, p. 70. 455 T. 23 January 2006, pp. 27-28. 456 T. 23 January 2006, pp. 28-29, 33. 457 T. 24 January 2006, p. 62. 458 T. 8 March 2005, p. 34. 459 T. 9 March 2005, p. 17. 17 May 2011 76/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GLJ 307. Witness GLJ testified that he attended a meeting at the Kigali préfecture office at some point between 10 and 20 April 1994. Those present at the meeting included the Kigali Préfet Renzaho, the bourgmestre, the conseiller de secteur, the responsable de cellule Major Nyamuhimba, and Baziruwiha, who was the commander of the Gendarmerie brigade in Nyamirambo.460 At the meeting, the préfet told the witness to collect guns from the Ministry of Defence in order to distribute them at roadblocks in the area.461 The witness subsequently received ten rifles together with ammunition from an army major at the Ministry of Defence. The witness distributed the guns to members of the population so that they could use them at roadblocks, where “they were saying they were facing Inkotanyi”.462 Prosecution Witness DO 308. Witness DO testified that he attended a meeting at Camp Gisenyi on 7 April 1994. Those present at the meeting included Captain Bizumuremyi and the commander of the camp, Colonel Anatole Nsengiyumva, as well as a number of soldiers and the “heads” of the Interahamwe.463 According to the witness, Bizumuremyi was well known in Gisenyi because “in a way” he was the head of the Interahamwe.464 309. After the meeting, the witness heard Colonel Nsengiyumva ask Captain Bizumuremyi to

provide the people in charge of the Interahamwe with the equipments [sic] that he needed. And [Nsengiyumva] said that if they were lacking in anything, then [Bizumuremyi] should make sure that the Interahamwe were given the equipment necessary to do their job.465 310. Nsengiyumva then instructed Bizumuremyi to distribute weapons and ammunition to the Interahamwe.466 Under Bizumuremyi’s supervision, soldiers collected weapons including Kalashnikovs, pistols and grenades from a nearby depot and distributed them to the Interahamwe.467 Prosecution Witness AMW 311. Witness AMW became a member of the Interahamwe in April 1994 after the death of President Habyarimana.468 The witness manned roadblocks in his commune together with soldiers and other Interahamwe. He testified that some of the Interahamwe at the roadblocks were armed with rifles that they had received from Rwandan soldiers.469 460 T. 15 June 2005, p. 11. 461 T. 15 June 2005, p. 17. 462 T. 15 June 2005, pp. 24-25. 463 T. 11 May 2006, pp. 46-47. 464 T. 11 May 2006, p. 41. 465 T. 11 May 2006, p. 47. 466 T. 11 May 2006, pp. 47-48; T. 15 May 2006, pp. 72-74. 467 T. 11 May 2006, pp. 47-48; T. 15 May 2006, pp. 72-74. 468 T. 23 February 2005, p. 8 (ICS); T. 23 February 2005, pp. 13, 47. 469 T. 23 February 2005, p. 14. 17 May 2011 77/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GAP 312. Witness GAP testified that he attended a meeting held at some point between December 1992 and January 1993 at the commune office in Mukingo.470 The purpose of the meeting was threefold: to create a group of Interahamwe, to store firearms in Ruhehe and to plan firearm training for “the young people”.471 Those present at the meeting included Augustin Bizimungu, Joseph Nzirorera, Juvénal Kajelijeli, Ephrem Setako, Casimir Bizimungu and Baheza, as well as the responsables of the cellule and the secteur councils.472 313. Witness GAP stated that following this meeting, Bizimungu established a store for ammunition and arms on Ruhehe Hill, approximately 200 metres from the Mukingo commune office.473 The youth formed the Interahamwe and began regular physical training, firearms training and ideological training.474 Reservists “under the command of Karorero, the Chief Warrant Officer”, led the Interahamwe in their military training,475 and soldiers instructed the Interahamwe in their firearms training at Camp Mukamira.476 Kajelijeli was in charge of their ideological training, which consisted of showing the Interahamwe the evil deeds and the malice of the Tutsi.477 The training at Mukingo commune continued until 13 July 1994, when the witness and other members of Mukingo commune fled

to Zaire.478 314. In the morning of 7 April 1994, Bizimungu delivered Kalashnikov rifles and grenades to the witness at the Mukingo commune office and told the witness that the weapons should be distributed to Interahamwe. The bourgmestre then arrived and stated that weapons should also be given to the conseiller de secteur and the responsable de cellule. The witness distributed the weapons to Kajelijeli, the Interahamwe, the conseiller de secteur and the responsable de cellule.479 Prosecution Witness GFD 315. Witness GFD was a member of the MRND in 1994 and became an Interahamwe following the death of President Habyarimana on 6 April 1994.480 On 20 April 1994, the witness responded to a press release calling for people to go to the Nkuli commune office and enlist in the civil defence. The witness testified: Civil defence was a group that was set up after the death of Habyarimana. Some Interahamwe were selected and sent to the Mukamira camp for military training, and at the end of the training session, those who took part were sent to the war front. And those people would help in tracing the Tutsis who were targeted.481 470 T. 15 February 2005, p. 25. 471 T. 15 February 2005, p. 25. 472 T. 15 February 2005, pp. 23, 25. 473 T. 15 February 2005, pp. 26-27. 474 T. 15 February 2005, pp. 26, 37. 475 T. 15 February 2005, pp. 36-37. 476 T. 15 February 2005, pp. 36-37. 477 T. 15 February 2005, pp. 36-37. 478 T. 15 February 2005, p. 38. 479 T. 15 February 2005, pp. 42-43, 46; T. 22 February 2005, pp. 41-42. 480 T. 10 May 2005, p. 63. 481 T. 10 May 2005, p. 63. 17 May 2011 78/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 316. The witness and around 500 other people were then sent to Camp Mukamira for military training.482 At the camp, they received training in weapons handling and camouflage from soldiers of the Rwandan Army. They were also taught that “the Tutsis were wicked, and that if we were not careful, the Tutsis were going to kill us like they killed Habyarimana.”483 At the end of the training, they were given Kalashnikovs, R-4s and grenades, and then deployed in groups alongside soldiers. They were told that the objective of their military training was “chasing the Tutsis, as well as going to fire on the RPF Inkotanyi.”484 Prosecution Witness GFC 317. Witness GFC was a member of the Interahamwe in 1993 and 1994.485 He testified that he underwent Interahamwe training for approximately one to two months towards the end of 1993.486 The training took place at the Mukingo commune office and included physical education, weapons handling and shooting.487 The senior instructor was Karorero and other instructors included Sergeant Dusabimana, Sergeant Tuyizere and Bimenyimana.488 318. A number of authorities, including Juvénal Kajelijeli, Captain Hasengineza and Jetan Bambonye, visited the Interahamwe during their training at the commune office.489 The witness testified that these authorities told us that Tutsis were

mean, Tutsis-Inyenzi, and that it was the Tutsis who had attacked us and that we should chase them away. They told us that if we did not all receive weapons, we should forgive them, but that those who were to receive the weapons should make good use of them and that others would use traditional weapons.490 319. At the end of their training, Joseph Nzirorera gave the Interahamwe kitenge uniforms consisting of a shirt, trousers and a beret, and Captain Hasengineza and an officer named Karorero gave them rifles.491 The authorities told the Interahamwe that they would be posted at roadblocks to pursue Tutsi who were considered the enemy, Inkotanyi and Inyenzi.492 Prosecution Witness GFU 320. Witness GFU testified that he was a member of the Impuzamugambi, the youth wing of the CDR political party, prior to the death of President Habyarimana on 6 April 1994.493 Three days after the President’s death, the CDR youth leader summoned the group and informed them that the “military and civilian authorities had launched an appeal and that we should all go to the stadium to begin training.”494 482 T. 10 May 2005, p. 63. 483 T. 10 May 2005, p. 64. 484 T. 10 May 2005, p. 65. 485 T. 1 March 2005, pp. 12, 18. 486 T. 1 March 2005, pp. 12, 18. 487 T. 1 March 2005, pp. 12-13. 488 T. 1 March 2005, p. 19. 489 T. 1 March 2005, pp. 21-22. 490 T. 1 March 2005, p. 22. 491 T. 1 March 2005, p. 22. 492 T. 1 March 2005, p. 23. 493 T. 27 January 2005, pp. 51-52. 494 T. 27 January 2005, pp. 53-54, 56. 17 May 2011 79/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 321. The Ruhengeri Impuzamugambi subsequently received military training at Ruhengeri Stadium, alongside members of the Interahamwe and Impuzamugambi from other communes.495 Sergeant Majors from Camp Muhoza trained them in weapons handling, dismantling of weapons and military techniques.496 The training lasted for three days, after which the trainees received weapons and ammunition.497 Augustin Bizimungu and his deputies attended the closing ceremony. The witness testified, “General Bizimungu addressed us and briefed us on our training, and said that now that we had completed training, we were to be assigned to roadblocks to track down Inyenzi Inkotanyis and their accomplices.”498 322. Following Witness GFU’s training at Ruhengeri Stadium, he received training from soldiers in grenade handling in the Cyabararika forests, together with about 20 to 30 youths who also manned his roadblock.499 Colonel Setako organised the training and told the group that its purpose was to prepare them to fight the Inkotanyi and their accomplices.500 The trainees received grenades at the end of training.501 Prosecution Witness GFV 323. Witness GFV testified that he was a member of the Interahamwe in 1993 and 1994.502 Beginning in 1993, he underwent training that included learning how to shoot, how to dismantle and

reassemble a weapon, and how to use grenades.503 The training took place in Mukingo commune and lasted around two to two and a half months.504 There were numerous small groups being trained at the same time.505 The training was conducted by soldiers including Chief Warrant Officer Karorero from Camp Mukamira, Nzirorera’s young brother Sergeant Dusabimana, Corporal Ndagijimana, son of Bambali, and Bimenyimana, the son of Sebigori.506 Soldiers provided the Interahamwe with firearms for their training, including about 15 R4 and Kalashnikov rifles.507 These weapons were obtained from Ruhehe Hill.508 324. During Witness GFV’s training, Augustin Bizimungu “would come to hold meetings in Camp Mukamira”.509 The witness saw Bizimungu a total of four times during this period.510 In addition, “MRND officials would normally come as well as the military authorities of Camp Mukamira.”511 The visitors included Juvénal Kajelijeli, “Bambonye who was the CDR official”, Chief Warrant Officer Karorero and Major Bizabarimana, “who was the commanding officer of Mukamira Camp”.512 When these authorities came to visit, they would tell the Interahamwe that “the Inyenzi/Inkotanyi were not human beings” but were 495 T. 27 January 2005, pp. 52-54. 496 T. 27 January 2005, p. 56. 497 T. 27 January 2005, p. 53. 498 T. 27 January 2005, p. 53. 499 T. 27 January 2005, p. 58; T. 2 February 2005, p. 13; T. 3

February 2005, p. 75. 500 T. 27 January 2005, p. 58. 501 T. 2 February 2005, p. 58. 502 T. 23 May 2005, p. 14. 503 T. 23 May 2005, p. 14. 504 T. 23 May 2005, p. 14. 505 T. 26 May 2005, p. 14. 506 T. 23 May 2005, pp. 15-16. 507 T. 26 May 2005, pp. 4-5. 508 T. 23 May 2005, p. 22. 509 T. 23 May 2005, p. 17. 510 T. 23 May 2005, p. 20. 511 T. 23 May 2005, p. 21. 512 T. 23 May 2005, pp. 21-22. 17 May 2011 80/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T “like cockroaches … normally seen in trees or in food stores”, and that the Interahamwe should “look for the accomplices of the Inyenzi as well as the Inyenzi/Inkotanyi themselves”.513 Prosecution Witness GFA 325. Witness GFA was a member of the Interahamwe from 1991 to 1994.514 He testified that sometime after February 1993, the Amahindure or Virunga force was formed as a civil defence system for Nkuli and Mukingo communes.515 The Amahindure was made up of Interahamwe and Impuzamugambi, and its objective was to collaborate with “Rwandan Army forces to mount a counter-attack against the RPF Inkotanyi and the enemy, that is, the Tutsi”.516 326. The Amahindure was formed at a meeting at the Mukingo commune office. Those present at the meeting included Augustin Bizimungu, Juvénal Kajelijeli, Joseph Nzirorera, Colonel Bonaventure Ntibitura, Major Bisabarimana, Jean-Baptiste Nyabusore, the leader of the préfecture Charles Nzabagerageza, and the managing director Alphonse Ndivumarera, together with members of the population and Interahamwe and Impuzamugambi.517 327. Following that meeting, the witness and other Interahamwe took part in training consisting of physical exercises, military parade, weapons handling, shooting range exercises and military techniques.518 The training took place in Mukingo and Ruhere

communes and at Camp Mukamira.519 The Interahamwe used firearms that came from the military position at Ruhehe Hill, close to the Mukingo commune office, and Camp Mukamira.520 The instructors were soldiers, retired soldiers and Interahamwe including Mborimuremye from the Mukingo commune office, Gervais Musafiri, Jean-Pierre Muganimana, Jean-Pierre Ndagigimana, Noelle Ndayisaby, Rwasubutare, the leader of the Interahamwe Françoise Dusabimana and Chief Warrant Officer Karorero.521 328. The training lasted for about three months.522 At the end of the training, some of the trainees received Kalashnikovs and R4s.523 Witness GFA testified, “We were supposed to use those guns to fight the Inkotanyi and their accomplices who were inside the country.”524 The witness himself received a Kalashnikov at the house of Nzirorera's mother.525 Others received their weapons at the house of Nzirorera’s mother, Camp Mukamira or Ruhere commune.526 513 T. 23 May 2005, p. 22. 514 T. 30 January 2006, pp. 61-62. 515 T. 30 January 2006, p. 71; T. 2 February 2006, p. 7. 516 T. 30 January 2006, p. 71. 517 T. 30 January 2006, pp. 71-72. 518 T. 30 January 2006, pp. 76-77. 519 T. 30 January 2006, pp. 77, 80. 520 T. 30 January 2006, p. 77. 521 T. 30 January 2006, pp. 78-80. 522 T. 30 January 2006, p. 77. 523 T. 30 January 2006, p. 80. 524 T. 30 January 2006, p. 80. 525 T. 30 January 2006, pp. 80-81. 526 T. 30 January 2006, p. 81. 17 May 2011 81/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness AOF 329. Witness AOF was a member of the Amahindure force in 1993 and 1994.527 He testified that the Amahindure was established in July or August 1993 to work together with the Interahamwe and the Impuzamugambi.528 The responsable de cellule summoned the witness and other members of the civilian population to the Nkuli commune office, where they were enlisted in the Amahindure.529 Chief Warrant Officer Karorero was the leader of the Amahindure, and other instructors included André Ntuyenabo, Sergeant Karamera and Corporal Alphonse Semanza.530 330. The witness and approximately 300 other individuals were subsequently trained in the Nkuli commune office and the neighbouring forest.531 The training lasted for two months.532 During the training, the trainees did not have real guns but instead used pieces of wood shaped as guns.533 In December 1993, the witness and nine other trainees were sent to Camp Mukamira for training in shooting using Kalashnikovs and live ammunition.534 331. The witness testified that he saw Bizimungu in August 1993 at a meeting at the Nkuli commune office.535 Also present at that meeting were the commander of Camp Mukamira Bizabarimana, a businessman named Félicien Kabuga, and the bourgmestre of Nkuli commune and responsable of the Amahindure Dominique

Gasimbanyi.536 Bizimungu spoke at the meeting and said that the enemy was the Tutsi and that “he was going to find solutions to all our problems with the cooperation of the others who had come with him”.537 Félicien Kabuga then took the floor and said that he had placed an order abroad for uniforms and footgear for the Amahindure.538 Bizabarimana informed them that guns would be distributed to Amahindure members from Mukamira and Gitwa secteurs, since there were a large number of Tutsi in those two secteurs.539 332. Approximately one week after the meeting, while the witness was still undergoing training, commander Bizabarimana brought a number of rifles in a truck to the Nkuli commune office. The witness saw soldiers unloading about one hundred Kalashnikovs from the truck and stocking them at the commune office.540 Other trainees told the witness that, two days later, the weapons were taken to Mukamira and Gitwa secteurs by the respective conseillers.541 527 T. 16 March 2006, p. 19. 528 T. 16 March 2006, pp. 18-19. 529 T. 16 March 2006, p. 21. 530 T. 16 March 2006, pp. 19-20. 531 T. 16 March 2006, p. 20; T. 29 March 2006, p. 29. 532 T. 29 March 2006, p. 38. 533 T. 29 March 2006, p. 36. 534 T. 16 March 2006, p. 21. 535 T. 16 March 2006, p. 12. 536 T. 16 March 2006, pp. 13, 16. 537 T. 16 March 2006, p. 16. 538 T. 16 March 2006, p. 17. 539 T. 16 March 2006, p. 17. 540 T. 16 March 2006, p. 17. 541 T. 16 March 2006, pp. 17-18. 17 May 2011 82/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GS 333. Witness GS was a member of the Rwandan Armed Forces residing in Camp Kanombe in Kigali town in April 1994.542 He testified that in the morning of 9 April 1994, he saw Major Ntibihura distributing sub-machine guns, Kalashnikovs, ammunition and grenades to a group of Interahamwe at Camp Kanombe.543 A uniformed soldier who was a member of the Para Commando Battalion accompanied the Interahamwe.544 The witness subsequently saw Interahamwe on several occasions in Camp Kanombe in front of the office of Major Ntibihura. Each time, the Interahamwe obtained ammunition and submitted reports on their activities.545 334. The witness further testified that the Interahamwe were trained by Rwandan Army soldiers in the Gabiro area of Mutara préfecture in 1993 and 1994. 1.3.4.2.2 Defence Evidence The Accused Bizimungu 335. Bizimungu testified that in January 1992, a civilian defence system was established in the Ruhengeri and Byumba préfectures in response to a deteriorating security situation. Following repeated requests from the préfets, the Ministry of the Interior provided 300 rifles to those préfectures, and Bizimungu managed the distribution of the weapons to certain communes.546 He testified that the weapons were distributed to the communes that were under the greatest threat from the

RPF, not the communes that had the highest Tutsi populations.547 336. Bizimungu emphasised that the weapons were not distributed to the civilian population at large, but rather to “an organisation within a commune for the greater good of a commune, with a view to reinforcing security.”548 He testified: Maybe if there was abuse at a later stage in time – that's a great shame. However, as regards the intention, the motivation, it was very far from our minds to arm – or, provide weapons for one part of the population to get up against the other part.549 337. Bizimungu further testified that people chosen from the population had previously received weapons training through the various communes concerned. Bizimungu stressed that those people were not Interahamwe at that time but were members of the general population.550 338. Bizimungu stated that after February 1993, there was a military position opposite the Mukingo commune office on Ruhehe Hill, but he denied that any weapons were stored at that location.551 He denied having attended a meeting with the Amahindure at the Nkuli commune 542 T. 2 February 2006, p. 54. 543 T. 2 February 2006, pp. 68, 72; T. 3 February 2006, pp. 22-23. 544 T. 2 February 2006, p. 72; T. 3 February 2006, pp. 23-24. 545 T. 2 February 2006, pp. 73-74. 546 T. 11 December 2007, pp. 4-6; T. 5 December 2007, p. 73. 547 T. 11 December 2007, pp. 6-7. 548 T. 11 December 2007, p. 6. 549 T. 11 December 2007, p. 6. 550 T. 11 December 2007, pp. 5-6. 551 T. 11 December 2007, pp. 3-4. 17 May 2011 83/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T office in 1993.552 He also denied that military training took place at Ruhengeri Stadium after the death of the President553 or that grenade training was provided in Cyabararika Forest in May 1994.554 Defence Witness DE11-4 339. Defence Witness DE11-4 testified that a civil defence programme did not exist in Ruhengeri in February 1993, that he did not participate in any meeting at the Mukingo commune office as asserted by Prosecution Witness GFA and that there were no stockpiles of arms on Ruhehe Hill.555 Defence Expert Witness Bernard Lugan 340. Witness Lugan, an expert in Rwandan history, testified that from 1 October 1990 there was a programme called “Amarondo”, which consisted of a series of measures intended to protect the Rwandan population from the RPF’s criminal activities and infiltrations. However, there was no national “civil defence” programme before April 1994, at least not in the sense of a military process similar to those that exist in France, Switzerland and the former Yugoslavia.556 Lugan explained that Amarondo “covers … civilian measures taken to provide security throughout the country”, whereas “[c]ivilian defence is a military process, in spite of the name ‘civilian’”.557 341. Between 1990 and 1994, the security measures taken as part of Amarondo varied depending on the level of

the RPF threat.558 For example, in September 1991, following RPF attacks in the sous-préfecture of Ngarama, Mutara, it was agreed that one person for every ten families would be armed.559 Local authorities in the areas close to the border with Uganda, particularly in Ruhengeri and Byumba, subsequently took measures to arm selected members of the population.560 These measures were initiated by the local administrative authorities rather than the army.561 342. Following the RPF attack of February 1993, weapons were distributed to four communes in Gisenyi, but most of those arms were recovered on the orders of the government after the ceasefire signed on 7 March 1993.562 On 2 March 1993, representatives of the main political parties met in Kigali and produced a declaration that called on the government to organise the entire population in the civil defence of the country.563 On 29 March 1994, military leaders met with the préfet of Kigali to discuss the development of a civilian self-defence programme to defend against the RPF in Kigali.564 The report of the 552 T. 11 December 2007, p. 7. 553 T. 11 December 2007, p. 8. 554 T. 11 December 2007, pp. 9-10. 555 T. 27 November 2007, pp. 22-25. 556 Defence Exhibit 663, pp. 32-33; T. 26 November 2008, pp. 5, 21-22; T. 27 November 2008, pp. 66-68. 557 T. 26 November 2008, pp. 21-22; T. 27 November 2008, p. 66. 558 Defence Exhibit 663, p. 35. 559 Defence Exhibit 663, p. 36. 560 Defence Exhibit 663, p. 37. 561 Defence Exhibit 663, p. 37. 562 Defence Exhibit 663, p. 38. 563 Defence Exhibit 142; Defence Exhibit 663, p. 39. 564 Defence Exhibit 663, pp. 33, 40-41. 17 May 2011 84/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T meeting, dated 30 March 1994 and classified “very secret”, set out a plan to select and train reliable civilians to participate in the programme.565 After 6 April 1994, the government intensified its efforts to create a formal civil defence programme at the national level, culminating in the 25 May 1994 Directive by Prime Minister Jean Kambanda.566 1.3.4.3 Deliberations 343. There is considerable evidence suggesting that the Rwandan political and military authorities provided weapons and military training to civilians, many of whom were identified as Interahamwe militiamen, between 1992 and 1994.567 The Chamber has considered the expert reports and testimony of Prosecution Expert Witness Alison Des Forges and Defence Expert Witness Bernard Lugan, both of whom provided detailed descriptions of the provision of weapons and training to civilians in Rwanda during this period.568 Despite disagreements about certain terminology, the Chamber notes that there are a number of substantive similarities between the expert reports of these two witnesses.

344. The Prosecution also presented other firsthand evidence of Rwandan authorities providing training and weapons to civilians between 1992 and 1994.569 Witnesses AOG,570 GAP,571 OX,572 DO573 and GS574 gave firsthand accounts of political and military officials providing weapons to the Interahamwe. Witnesses GAP,575 GFA,576 AOF577 and DO578 attended meetings at which political and military officials discussed the training and/or arming of the Interahamwe. Witnesses GFV,579 GFA,580 GFC,581 GFD582 and GFU583 received weapons and military training from Rwandan soldiers. Witness DA saw Rwandan soldiers training Interahamwe.584 Witness GLJ testified that the authorities provided civilians with weapons to be used at roadblocks soon after the President’s death in April 1994.585 Dallaire and Colonel Claeys received information from an Interahamwe leader in January 565 Defence Exhibit 663, pp. 33, 40-41. 566 Defence Exhibit 663, pp. 40-44. See also Prosecution Exhibit 811. 567 See Prosecution Exhibit 208; Prosecution Exhibit 209; Prosecution Exhibit 210; Prosecution Exhibit 212. 568 Prosecution Exhibit 107, pp. 23-28; Defence Exhibit 663, pp. 32-44. 569 In addition to the evidence identified below, see T. 23 February 2005, p. 14; T. 9 March 2005, p. 17; T. 23 January 2006, pp. 28-29, 33; T. 24 January 2006, p. 62; T. 16 March 2006, pp. 20-21; T. 29 March 2006, p. 29. 570 T. 21 February

2006, pp. 17-18, 23 (ICS). 571 T. 15 February 2005, pp. 42-43, 46; T. 22 February 2005, pp. 41-42. 572 T. 14 June 2006, p. 66. 573 T. 11 May 2006, pp. 47-48; T. 15 May 2006, pp. 72-74. 574 T. 2 February 2006, pp. 68, 72; T. 3 February 2006, pp. 22-23. 575 T. 15 February 2005, p. 25. 576 T. 30 January 2006, p. 71. 577 T. 16 March 2006, p. 12. 578 T. 11 May 2006, pp. 47-48; T. 15 May 2006, pp. 72-74. 579 T. 23 May 2005, p. 14; T. 26 May 2005, pp. 4-5. 580 T. 30 January 2006, pp. 76-77. 581 T. 1 March 2005, pp. 12, 18, 22. 582 T. 10 May 2005, pp. 63-65. 583 T. 27 January 2005, pp. 52-56. 584 T. 13 January 2005, pp. 19-21; 20 January 2005, p. 55; T. 25 January 2005, p. 67; T. 13 January 2005, p. 22. 585 T. 15 June 2005, pp. 17, 24-25. 17 May 2011 85/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1994 that the MRND was arming and training the Interahamwe.586 The Defence presented witnesses to refute some of the specific allegations made by these witnesses.587 345. In addition to this general evidence, Witnesses GAP, GFA, GFU and AOF gave evidence that directly implicates Bizimungu in the arming and training of civilians, including Interahamwe, between 1992 and 1994.588 346. The Chamber notes that a number of these witnesses are former Interahamwe who have been convicted of crimes connected to the genocide, and their evidence must therefore be approached with caution.589 The Chamber has raised further questions about the credibility of some of these witnesses in other sections of the Judgement, and it does not consider all details of all their accounts to be reliable. In particular, the Chamber declines to rely on the testimony of Witness GFA regarding the meeting at the Mukingo commune office after February 1993, the creation of an Amahindure force, the weapons store at Ruhehe Hill and the military training of the Interahamwe in Mukingo commune, because he specifically recanted those parts of his testimony in the Karemera et al. trial.590 The Chamber recalls, however, that Witness GAP testified about similar events before this Chamber.591 347. Having considered the totality of the evidence, the

Chamber is convinced that Rwandan military and civilian authorities were arming and training civilians, many of whom were members of the Interahamwe, from late 1992 until mid-1994. The Chamber is also convinced that Bizimungu played a key role in these activities, particularly in view of the scale and organisation of the Interahamwe training programmes in Ruhengeri préfecture, the role of Rwandan soldiers under Bizimungu’s command in training the Interahamwe and the large number of weapons involved.

348. The Chamber notes that the Prosecution intends to rely on this evidence to prove that Bizimungu conspired with military and civilian authorities to commit genocide against Tutsi. The Defence contests this allegation. The issue to be determined by the Chamber, therefore, is whether the evidence that Bizimungu and other Rwandan authorities armed and trained the Interahamwe is part of a conspiracy to commit genocide, or whether Bizimungu’s conduct can plausibly be viewed as an extension of the civil defence mechanisms adopted by the government to enhance its ability to fight the war against the RPF.

349. In his testimony before this Chamber, Bizimungu acknowledged that the political and military authorities were arming and training civilians in Ruhengeri and Byumba préfectures in early 1992. However, he insisted that those weapons and training programmes were provided within the framework of Rwanda’s civilian self-defence system, in response to RPF 586 T. 11 October 2005, p. 28; T. 20 November 2006, pp. 33-34. 587 T. 27 April 2007, p. 16; T. 16 May 2007, pp. 7, 30; T. 25 May 2007, pp. 12-14; T. 7 June 2007, p. 59 (ICS); T. 16 October 2007, pp. 22-23; T. 17 October 2007, pp. 15-16; T. 24 October 2007, pp. 20, 22-24, 31; T. 30 October 2007, pp. 45-46; T. 27 November 2007, pp. 22-25; 5 December 2007, pp. 8-11 (ICS); Defence Exhibit 448A; Defence Exhibit 448B; Defence Exhibit 448C. 588 T. 15 February 2005, pp. 24-27, 42-43; T. 22 February 2005, pp. 41-42; T. 27 January 2005, pp. 52-54; T. 30 January 2006, pp. 71-72; T. 16 March 2006, pp. 12, 16, 18-19. 589 See T. 14 June 2005, pp. 32-33 (ICS); T. 11 May 2006, pp. 32-36 (ICS); T. 23 February 2005, p. 7 (ICS); T. 15 February 2005, p. 4 (ICS); T. 1 March 2005, p. 9 (ICS); T. 3 March 2005, p. 39; T. 27 January 2005, pp. 35- 46 (ICS); T. 23 May 2005, p. 12; T. 30 January 2006, p. 57; T. 29 March 2006, pp. 14, 21-22. 590 The details of Witness GFA’s recantation are set out in Chapter III of this Judgement. See also Defence Exhibit 689A; Defence Exhibit 691A. 591 T. 15 February 2005, pp. 25-27, 36-37. 17 May 2011 86/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T infiltration as well as the general banditry triggered by the war, and were not intended to be used against the Tutsi population.592 Bizimungu further testified that the people chosen to participate in the civilian self-defence programme were not Interahamwe at that time, but were members of the general population.593 350. The Chamber is satisfied that a civilian self-defence system existed in some form in Rwanda between 1990 and 1994, although it was only formalised as a national programme through the 25 May 1994 Directive issued by Prime Minister Kambanda.594 Both Expert Witnesses Des Forges and Lugan recognised that a programme for civilian security or self- defence was established in 1990 and then expanded and developed between 1992 and 1994.595 According to Des Forges, at the beginning, the civilian self-defence programme could be described as “the legitimate exercise in self defence against the military force”.596 This was particularly important in the area near the Ugandan border. The civilian self-defence programme also provided a way to unite the political party militias, including the Interahamwe, in a single purpose and bring them under control “so that party loyalty would no longer be an obstacle.”597 Both Des Forges and Lugan emphasised that the character of the civilian self-defence

programme shifted over time, though the precise timeline for this evolution is unclear.598 351. The evidence outlined above demonstrates that a large number of civilians, many of whom were Interahamwe, received weapons and military training between 1992 and 1994 as part of Rwanda’s civilian self-defence programme. However, these activities must be assessed against the backdrop of war that prevailed in Rwanda from 1 October 1990.599 The Chamber accepts that the Interahamwe who were armed and trained as part of the civil defence mechanism were implicated in the killing of Tutsi during the genocide of 1994 in Rwanda. The question that calls for the Chamber’s resolution is whether they were trained and armed in order to prepare them to take part in the genocide against Tutsi.

352. It is the Chamber’s view that the arming and training of civilians, some of whom were Interahamwe, as part of Rwanda’s system of civilian self-defence does not in itself demonstrate a conspiracy by Bizimungu and others to use the Interahamwe for the purpose of committing genocide against Tutsi civilians. It is well-established that, when confronted with circumstantial evidence suggesting the participation of the accused in a conspiracy to commit genocide, the Chamber may only convict where this conspiracy is the only reasonable inference. Having thoroughly considered the evidence, the Chamber is not convinced that the evidence excludes the possibility that the training and arming of civilians had motives related to the military objective of waging war against the RPF, particularly in light of the 592 Bizimungu Closing Brief, paras. 51-75; T. 11 December 2007, pp. 4-7; T. 5 December 2007, p. 73. 593 T. 11 December 2007, pp. 5-6. 594 Prosecution Exhibit 211. 595 Prosecution Exhibit 107, pp. 23-24; Defence Exhibit 663, pp. 32-37. 596 T. 20 September 2006, p. 33. 597 T. 20 September 2006, p. 26. 598 Prosecution Exhibit 107, pp. 23-28; T. 20 September 2006, pp. 33-34; Defence Exhibit 663, p.

35. Lugan distinguished between the Amarondo programme, which existed between 1990 and 1994 and which focused on civilian self-defence overseen by local administrative authorities, and the more militarized concept of “defence civile”, which he says did not exist before 6 April 1994. See Defence Exhibit 663, pp. 32-33. 599 In this regard, the Chamber has considered carefully the reports and testimony of Defence Expert Witnesses Helmut Strizek (Defence Exhibit 637) and Bernard Lugan (Defence Exhibit 663). 17 May 2011 87/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T government’s limited resources and the focus on defence against infiltrators and accomplices.600 353. The Chamber will now consider the evidence that the training of the Interahamwe was accompanied by the propagation of anti-Tutsi sentiments. The Prosecution alleges that anti-Tutsi messages were disseminated as part of the civilian military training and that this supports the inference that the provision of weapons and training was part of a conspiracy by Bizimungu and others to commit genocide.601 354. Des Forges testified that after October 1993, the civilian self-defence programme was extended nationwide and into those areas where there was no combat, and that this expansion was accompanied by “the propagation of the idea that the enemy was everywhere”.602 Witness GFC testified that the trainees at the Mukingo commune office in 1993 were told “that Tutsis were mean, Tutsis-Inyenzi, and that it was the Tutsis who had attacked us and that we should chase them away.”603 Witness GFC also testified that the authorities gave the trainees weapons and told them that they would be posted at roadblocks to pursue the Tutsi enemy, Inkotanyi and Inyenzi.604 Witness GAP testified that trainees in Mukingo commune in 1993 received “ideological” training to show them the evil deeds and the malice of the Tutsi.605

Witnesses GFU606 and GFD607 testified about similar anti-Tutsi propaganda during their training in mid and late April 1994. General Dallaire testified that in January 1994, he received information from an Interahamwe leader known as “Jean-Pierre” that the MRND was arming and training the Interahamwe not only to fight the RPF if required, “but also to be a force to be used to conduct massive scale of rounding up and killing of the Tutsis”.608 355. The Chamber exercises caution with respect to the evidence of Witnesses GFC, GAP, GFU and GFD. Nonetheless, the Chamber notes that their first-hand accounts of their training and receipt of weapons were broadly similar, particularly those of Witnesses GFC and GAP who testified about training at the same location in 1993. The Chamber considers these aspects of their evidence to be believable. The information that Jean-Pierre provided to General Dallaire and Colonel Claeys in January 1994 provides general corroboration of these witnesses’ evidence regarding the arming and training of the Interahamwe in the lead-up to the genocide. However, given that the evidence based on Jean-Pierre’s information is second or third-hand and his current whereabouts are unknown, the Chamber is reluctant to rely on his assertion that the purpose of these activities was to kill Tutsi civilians.

356. The Chamber is satisfied that at least some parts of the civilian military training programmes between 1992 and 1994 were accompanied by anti-Tutsi and anti-RPF propaganda. However, the Chamber has carefully considered the tenor of the ideology propagated in the course of such training and is not satisfied that the aim of the propaganda 600 Des Forges expressed this view in her testimony before this Chamber. See T. 20 September 2006, pp. 33-34. 601 Prosecution Closing Brief, paras. 275, 358-359. 602 T. 20 September 2006, p. 27. 603 T. 1 March 2005, p. 22. 604 T. 1 March 2005, p. 23. 605 T. 15 February 2005, pp. 26, 36-37. Witness GFA also testified that the Interahamwe training in Mukingo and Ruhere communes and at Camp Mukamira was accompanied by anti-Tutsi messages, but the Chamber has disregarded this evidence in light of GFA’s specific recantation of that part of his testimony in the Karemera et al. trial. The details of his recantation are set out in Chapter III of the Judgement. 606 T. 27 January 2005, p. 53. 607 T. 10 May 2005, pp. 64-65. 608 T. 20 November 2006, p. 34; T. 22 November 2006, p. 44. 17 May 2011 88/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T was to incite the trainees against members of the Tutsi ethnic group, as opposed to whipping up fervour against the RPF as a military adversary. The Chamber recalls its earlier finding that the evidence tendered in this trial does not exclude the possibility that the civil defence mechanism was directed toward military objectives. That being the case, the anti-Tutsi utterances discussed by Prosecution witnesses could reasonably be understood as being aimed at the RPF force as opposed to members of the Tutsi ethnic group as such. Therefore, the Chamber is not satisfied that the anti-Tutsi propaganda disseminated during the civilian military training is probative of the fact that such training was part of a conspiracy to commit genocide against Tutsi.

357. It follows that the Chamber is not satisfied beyond reasonable doubt that the provision of weapons and military training to the Interahamwe between 1992 and 1994 was part of a preconceived plan on the part of Rwandan authorities, including Bizimungu, to target Tutsi civilians. 1.3.5 President Habyarimana’s Speech 358. The Indictment alleges that in order to legitimise, if necessary, the process of arming and training the Interahamwe, President Juvénal Habyarimana declared in 1993 in Ruhengeri that the Interahamwe had to be equipped so that, come the right time, “ils descendent” (they should swing into action).609 359. The Chamber notes that paragraph 28 contains no allegation against the Accused in this case. At best, this paragraph provides background information which may help to contextualise the allegations against the Accused set out elsewhere in the Indictment. Furthermore, the Prosecution presented no evidence of the alleged speech or of its relationship to the allegations against the Accused regarding the training and provision of weapons to the Interahamwe. Accordingly, the Chamber will not consider this charge in assessing the allegation of conspiracy to commit genocide. 1.3.6 Meetings Prior to 7 April 1994 1.3.6.1 Introduction 360. The Indictment alleges that between 1992 and 1994, Augustin Bizimungu, accompanied by Juvénal Kajelijeli and others, regularly took part in meetings that were generally held on Saturdays at the home of Joseph Nzirorera, the MRND National Secretary, and that the purpose of these meetings was to devise a strategy for fighting the Tutsi enemy.610 609 Indictment, para. 28. 610 Indictment, para.

29. In Chapter II of the Judgement, the Chamber found that the allegations in paragraphs 30 and 31 of the Indictment are impermissibly broad, ambiguous and vague. The Chamber further found that these defects were not cured by subsequent notice to Bizimungu of the nature of the charges against him. Accordingly, the Chamber will not consider the charges in paragraphs 30 and 31 of the Indictment in assessing the allegation of conspiracy to commit genocide. 17 May 2011 89/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.3.6.2 Evidence 1.3.6.2.1 Prosecution Evidence Prosecution Witness GFA 361. Witness GFA was a member of the MRND party and the Interahamwe in 1994.611 He testified that around 1992, he started attending meetings at the house of Nzirorera’s mother.612 The witness was present at most of these meetings,613 which were held mainly on weekends.614 The meetings were also attended by Augustin Bizimungu, Ephrem Setako, Alphonse Dirizamunga, Juvénal Kajelijeli, Esdras Baheza, Jean Damascene Niyoyita, Asiel Ndisetse, Michel Bakuzakundi, Bambonye and members of the Interahamwe.615 362. According to the witness, the authorities present conducted the meetings in the sitting room of the house, while he and other Interahamwe waited within the compound.616 Only on one occasion did he attend the actual meeting inside the house.617 Normally, François Dusabimana, who was a Sergeant in the Rwandan Army and also Nzirorera’s younger brother, would come outside and relate to them what was being said in the meetings.618 363. At the end of the meetings, some of the authorities, including Bizimungu, would speak directly to the Interahamwe outside the building in order to tell them what had been decided and to give them instructions.619 According to Witness GFA, they were told that the RPF Inkotanyi were the country’s enemy

because they had invaded the country on 1 October 1990. They were also informed that the RPF were cooperating with Tutsi inside Rwanda, and they were asked to look for these accomplices who apparently included “[a]ll men married to Tutsi women [and] all Tutsis in the opposition”.620 The Interahamwe were instructed to set up roadblocks621 and to hand any accomplices over to the military or civilian authorities.622 364. Witness GFA testified that Nzirorera told them that he was the one who had ordered Kajelijeli to create the Interahamwe. Nzirorera also introduced the Interahamwe to the other authorities present at the meetings, and told the authorities that they should assist the Interahamwe so that if the authorities had any problems they could turn to them.623 In return, Nzirorera told the Interahamwe to obey the orders of the authorities gathered at the meeting just as they obeyed his own orders.624 The witness testified that these were routine statements, which Nzirorera repeated at every meeting.625 611 T. 30 January 2006, p. 58. 612 T. 30 January 2006, pp. 61-62. 613 T. 30 January 2006, p. 66. 614 T. 30 January 2006, p. 63. 615 T. 30 January 2006, p. 62. 616 T. 30 January 2006, p. 67. 617 T. 30 January 2006, p. 70. 618 T. 30 January 2006, pp. 69-70. 619 T. 30 January 2006, p. 70. 620 T. 30 January 2006, p. 65. 621 T. 30 January 2006, p. 67. 622 T. 30 January 2006, p. 65. 623 T. 30 January 2006, p. 67. 624 T. 30 January 2006, p. 67. 625 T. 30 January 2006, p. 67. 17 May 2011 90/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 365. According to the witness, Bizimungu participated in these meetings on several occasions.626 Bizimungu never opposed anything that was said on the above issues, and he supported the statements made by Nzirorera, saying that “that was how things had to be done”627 and that the Interahamwe “wouldn’t have any problem and that [they] should cooperate with the soldiers and look for the enemy.”628 Witness GFA explained, “The enemy he was referring to was the Tutsi.”629 Asked how he knew this, the witness replied, “[T]he definition had already been given to us, be it over the radio or at meetings, we were told that the Inkotanyi had attacked the country, that the RPF was Tutsis, from within and from without the country, as well as the other persons I have mentioned.”630 366. Witness GFA also testified to having met Bizimungu at a “security meeting” held at the Mukingo commune office at some point after February 1992. Also present at the meeting were “the Interahamwe, Impuzamugambi, … Charles Nzabagerageza, … Juvénal Kajelijeli, Joseph Nzirorera, Colonel Bonaventure Ntibitura, Major Bizabarimana, … Alphonse Ndivumarera, Jean-Baptiste Nyabusore … Dominique Gatsimbanyi … as well as other communal conseillers, including Ndisetse.”631 367. According to the witness, it was during this meeting that they “set up

the Virunga force or the Amahindure … That force was made up of MRND Interahamwes and Impuzamugambi of the CDR … and the objective of the force was to corroborate the Rwandan Armed Forces to mount a counter-attack against the RPF Inkotanyi and the enemy, that is, the Tutsis.”632 Bizimungu did not speak at this meeting; however, neither did he oppose anything that was said.633 Prosecution Witness GFC 368. Witness GFC was a member of the MRND party and the Interahamwe.634 The witness stated that he received physical and military training at the Mukingo commune office for one to two months in 1993, and that only Hutus were allowed to participate in that training.635 He testified that he learned about this training from Witness GFA.636 369. According to Witness GFC, Witness GFA attended a meeting at the house of Nzirorera’s mother at which the Interahamwe training sessions were planned.637 Joseph Nzirorera, Augustin Bizimungu, Juvénal Kajelijeli, Esdras Baheza, Nyabusore, Michel Bakuzakundi and Michel Niyigaba were among the persons who attended this meeting.638 626 T. 30 January 2006, p. 66. 627 T. 30 January 2006, p. 67. 628 T. 30 January 2006, p. 66. 629 T. 30 January 2006, pp. 66-67. 630 T. 30 January 2006, p. 67. 631 T. 30 January 2006, pp. 71-72. 632 T. 30 January 2006, p. 71. 633 T. 30 January 2006, pp. 72-73. 634 T. 1 March 2005, p. 12. 635 T. 1 March 2005, pp. 18-19. 636 T. 1 March 2005, p. 13. 637 T. 1 March 2005, p. 13. 638 T. 1 March 2005, p. 17. 17 May 2011 91/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GAP 370. Witness GAP was a local government official from 1990 to 1994.639 He testified that among other occasions, he encountered Bizimungu “at the time of the meetings preparing the genocide.”640 371. The first of these meetings that the witness attended was on 25 January 1991 at the Mukamira commune office.641 According to the witness, “Augustin Bizimungu, Joseph Nzirorera, Juvénal Kajelijeli, Ephrem Setako, Casimir Bizimungu, Baheza, as well as the responsables of the cellule and the secteural councils”, were all present.642 The witness testified that all the authorities present spoke at the meeting, but he did not provide the content of anything said by Bizimungu.643 The witness testified, “[T]he purpose of the meeting was to track down the accomplices of the Inkotanyi, in other words, the Tutsi intellectuals and Hutus who belonged to -- followed the opposition, Hutus that collaborated with the Inkotanyi. In the course of that meeting, we made lists of those people, and they had to be arrested and killed.”644 The witness identified 18 Tutsi on that list who had been killed.645 372. The second meeting at which the witness saw Bizimungu was held at some point between December 1992 and January 1993 at the Mukingo commune office.646 The same authorities from the first meeting were

present, and all appeared to agree with the purpose of the meeting.647 This purpose was threefold: to create a group of Interahamwe, to organise a store of firearms in Ruhehe and to plan firearm training for “the young people”.648 According to the witness, each of these activities was subsequently carried out. The store of firearms was set up and stocked by Bizimungu.649 373. Bizimungu chaired the third meeting that the witness attended, which took place at some point between December 1993 and January 1994 in the public meeting area behind the commune office in Kagezi cellule.650 The witness testified that “Juvénal Kajelijeli and the bourgmestre Harelimana, the conseillers and the responsable de cellule and the head of communal administrative departments” were also present, along with the inhabitants of Mukingo commune, including Tutsi.651 According to the witness, “In the course of the meeting Bizimungu declared that if the RPF came to resume hostilities no Tutsi would survive and we had to continue patrols to track down Tutsi accomplices, as well as their sympathisers.”652 Such patrols were already taking place. Both Hutus and Tutsi participated 639 T. 15 February 2005, pp. 14-15 (ICS). 640 T. 15 February 2005, p. 22. 641 T. 15 February 2005, p. 22. 642 T. 15 February 2005, p. 23. 643 T. 15 February 2005, p. 24. 644 T. 15 February 2005, p. 24. 645 T. 15 February 2005, pp. 24-25. 646 T. 15 February 2005, p. 25. 647 T. 15 February 2005, p. 25. 648 T. 15 February 2005, p. 25. 649 T. 15 February 2005, pp. 26-27. 650 T. 15 February 2005, p.

33. The Chamber notes that there is a discrepancy between the English and French transcripts. The witness testified in Kinyarwanda. The English transcript says Kagezi commune, but the French transcript (T. 15 February 2005, p. 37) says Kagezi cellule. The Chamber finds the French transcript to be accurate. 651 T. 15 February 2005, p. 33. 652 T. 15 February 2005, p. 33. 17 May 2011 92/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T in the patrols, as those who refused were often branded accomplices of the Inkotanyi and then arrested, handed over to soldiers and killed.653 374. The fourth occasion on which the witness saw Bizimungu was during a series of meetings held the last Saturday of each month in January, February and March 1994.654 Regular attendees at these meetings were Augustin Bizimungu, Casimir Bizimungu, Setako, Baheza, Nzirorera, Nyabusore, Gatsimbanyi, Harelimana, Bambonye and the Conseiller Ndisetse.655 These meetings were convened by Nzirorera. The witness testified that before the meetings, there was a ceremony held at the house of Nzirorera’s mother, after which the participants would proceed to Nzirorera’s house for the meeting.656 375. The witness further stated, “[T]he purpose of the meeting was the same as that announced by Augustin Bizimungu when he said that, ‘If the RPF resumed hostilities, no Tutsi would survive’ and we had to continue our patrols to track down Inkotanyi accomplices.”657 The witness testified that the plan to exterminate Tutsi conceived during those meetings was implemented in April 1994 when President Habyarimana’s plane was shot down.658 Prosecution Witness AOF 376. Witness AOF became a member of the Amahindure force in 1993.659 He testified that he encountered Bizimungu in 1993 at a

meeting about the equipment shortages of the Amahindure, held at the Nkuli commune office.660 Present at that meeting were also Dominique Gasimbanyi (the bourgmestre of Nkuli), Bizabarimana, Félicien Kabuga and Chief Warrant Officer Karorero.661 According to Witness AOF, Bizimungu stated that the Amahindure should know that their enemy was the Tutsi and that, with the cooperation of those present, he would find solutions to all their problems.662 377. The witness also stated that he saw Bizimungu at a meeting held in the conference room of the Nkuli commune office in December 1993.663 The meeting was attended by members of the Mukingo and Nkuli cellules, and officials from neighbouring cellules, including responsables.664 The witness testified that Bizimungu arrived at the meeting accompanied by soldiers and opened the meeting by stating, “You are taking things lightly. Do you know that the Tutsi is your enemy who has to be uprooted as the plant called Igisura is uprooted?”665 653 T. 15 February 2005, p. 34. 654 T. 15 February 2005, p. 34. 655 T. 15 February 2005, p. 35. 656 T. 15 February 2005, pp. 34, 36; T. 17 February 2005, p. 58; T. 1 March 2005, p. 13. 657 T. 15 February 2005, p. 36. 658 T. 15 February 2005, p. 36. 659 T. 16 March 2006, p. 19. 660 T. 16 March 2006, p. 12. 661 T. 16 March 2006, pp. 12-13, 16. 662 T. 16 March 2006, p. 16. 663 T. 16 March 2006, p. 28 (ICS); T. 30 March 2006, p. 25. 664 T. 16 March 2006, p. 28 (ICS). 665 T. 16 March 2006, p. 28 (ICS). The Igisura plant is a weed that farmers uproot and dry out so it can no longer grow on their farms. The comment reiterates a statement allegedly made by President Habyarimana, who referred to the Tutsi as Igisura that needed to be eradicated from farmers’ fields. 17 May 2011 93/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.3.6.2.2 Defence Evidence Defence Witness DE9-7 378. Witness DE9-7 was one of the senior staff at the Advanced Institute of Livestock and Agriculture (ISAE) in Busogo.666 Contrary to the testimony of Prosecution Witnesses GAP667 and GFA,668 Witness DE9-7 testified that he did not attend any meetings with Bizimungu between 1990 and 1994,669 apart from a dance competition at which Bizimungu was present.670 379. In response to Witness GAP’s allegations, Witness DE9-7 testified that he did not attend any meetings at Nzirorera’s house in 1994.671 He stated that he had only ever visited Nzirorera’s home once, in order to discuss the inauguration of the ISAE.672 380. In response to Witness GFA’s allegations, Witness DE9-7 testified that he did not attend any meetings at the house of Nzirorera’s mother from 1992 onwards.673 The only time he went to the house of Nzirorera’s mother for the wedding of Nzirorera’s sister.674 Defence Witness DB15-11 381. Witness DB15-11 was a relative of Nzirorera’s mother.675 From 1990 to 1994, the witness was able to visit the house of Nzirorera’s mother at least three times per week and every weekend.676 She testified that Nzirorera visited his mother infrequently,677 roughly four or five times between 1990 and 1993,678 and that she was present every time Nzirorera came to

visit.679 The final time she saw Nzirorera before the death of the President was in August 1993.680 382. The witness testified that she did not know Augustin Bizimungu.681 She further testified that between 1990 and 1994, no meeting took place at the house of Nzirorera’s mother at which any of the persons mentioned by Witness GAP were present.682 666 T. 5 June 2007, p. 69. 667 T. 15 February 2005, p. 35. 668 T. 30 January 2006, p. 62. 669 T. 5 June 2007, p. 69. 670 T. 5 June 2007, pp. 68-69. 671 T. 5 June 2007, p. 70. 672 T. 5 June 2007, p. 73. 673 T. 5 June 2007, p. 75. 674 T. 5 June 2007, p. 74. 675 T. 7 June 2007, p. 42 (ICS). 676 T. 7 June 2007, p. 66 (ICS). 677 T. 7 June 2007, p. 66 (ICS). 678 T. 7 June 2007, p. 68 (ICS). 679 T. 7 June 2007, p. 66 (ICS). 680 T. 7 June 2007, p. 67 (ICS). 681 T. 7 June 2007, p. 54 (ICS). 682 T. 7 June 2007, pp. 55-56 (ICS). 17 May 2011 94/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DB11-2 383. From October 1990 until April 1994, Witness DB11-2 worked in Nkuli commune and lived in Mukingo commune.683 The witness’s only interaction with Bizimungu was when the latter visited him at the Nkuli commune office and asked him to look after the cattle at Camp Mukamira.684 According to the witness, Bizimungu never came to the Nkuli commune office to chair a meeting,685 and he could not have done so because only commune officials could convene and chair meetings.686 384. The witness further testified that no meeting of importance could have taken place at Nkuli commune office without his knowledge.687 In response to a question about a meeting that Witness AOF claimed took place at the Nkuli commune office, which was attended by Bizimungu, Kabuga, Bizabarimana, Gatsimbanyi and Karorero, the witness stated, “That meeting never took place. If such a meeting had been held, then I would have been informed about it.”688 385. Similarly, when asked about the second meeting that Witness AOF claimed took place in 1993, at which Bizimungu allegedly likened the Tutsi to igisura, the witness replied, “[T]hat meeting was never held … If such a meeting had been held, I would have known about it.”689 386. Witness DB11-2 also addressed claims by Witness GFA that Nzirorera held meetings with

officials and the Interahamwe at the house of Nzirorera’s mother. The witness stated, “No meeting was held at the house of Nzirorera’s mother. I lived quite close to that house and it was usual for me to go there. So no meeting could have taken place there unknown to me.”690 387. Witness DB11-2 testified that until January 1994, Witness GFA was a secondary school student and so could not have been a member of the Interahamwe691 and could not have received military training.692 In addition, he asserted that Witness GFA did not attend any meetings in his declared capacity as a member of the Interahamwe.693 Defence Witness DB11-11 388. Witness DB11-11 was responsable of Butakanyundo cellule from 1988 to 1994.694 He testified that he did not know Bizimungu, never saw him at a public meeting in Mukingo commune, and never heard that he had attended a public meeting in Mukingo commune.695 The witness asserted that it would not have been possible for local military authorities to 683 T. 12 June 2007, p. 6 (ICS). 684 T. 12 June 2007, pp. 26-27 (ICS). 685 T. 12 June 2007, p. 27 (ICS). 686 T. 12 June 2007, pp. 27, 31 (ICS). 687 T. 12 June 2007, p. 26 (ICS). 688 T. 12 June 2007, p. 29 (ICS). 689 T. 12 June 2007, p. 30 (ICS). 690 T. 12 June 2007, p. 33 (ICS). 691 T. 12 June 2007, pp. 33-34, 36 (ICS). 692 T. 12 June 2007, p. 40 (ICS). 693 T. 12 June 2007, pp. 34, 36 (ICS). 694 T. 17 October 2007, pp. 6-7 (ICS). 695 T. 17 October 2007, pp. 13, 18. 17 May 2011 95/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T convene a public meeting at the Mukingo commune office696 and that he would have known had Bizimungu done so.697 389. The witness also testified that he was not aware that any meetings attended by military authorities, including Bizimungu, took place at the house of Nzirorera’s mother.698 Defence Witness DB11-26 390. From 1981 until July 1994, Witness DB11-26 lived approximately 100 metres from the Nkuli commune office.699 At the time of her testimony, she was a judge and registrar for the Gacaca Courts.700 391. The witness testified that she did not know Bizimungu personally.701 She stated that no meeting of senior authorities took place at the Nkuli commune office between October 1990 and July 1994. Considering her proximity to the office, had such a meeting taken place, she would have know about it.702 She also testified that at no point during this period did any soldiers from the Rwandan Army attend a meeting at the Nkuli commune office.703 392. When presented with Witness AOF’s claim that Bizimungu and Kabuga, among others, attended a meeting at the Nkuli commune office in 1993, the witness replied, “I never heard of any mention of such a meeting.”704 She explained that if an important business person such as Kabuga had attended a meeting at the Mukingo commune office, she and the rest of the

inhabitants would have known.705 393. Similarly, when presented with Witness AOF’s claim that at a meeting in December 1993, attended by members of the Mukingo and Nkuli cellule, Bizimungu likened the Tutsi to igisura, the witness responded, “No such meeting was organised. You are talking about officials from two communes …. If such a crowd had gathered at the communal office, we would have wondered why such a crowd was gathering at the commune office. So, that meeting never took place.”706 394. The witness further testified that in light of her role as a Gacaca judge, “If such a meeting had taken place, I do not see how I would not have become aware of it because the information would definitely have been addressed – or, discussed by members of the population.”707 696 T. 17 October 2007, pp. 12-13. 697 T. 17 October 2007, p. 13. 698 T. 17 October 2007, p. 17. 699 T. 12 November 2007, pp. 13-14 (ICS). 700 T. 12 November 2007, p. 15 (ICS). 701 T. 12 November 2007, p. 20. 702 T. 12 November 2007, p. 21. 703 T. 12 November 2007, p. 24. 704 T. 12 November 2007, p. 22. 705 T. 12 November 2007, pp. 22-23. 706 T. 12 November 2007, p. 23. 707 T. 12 November 2007, pp. 23-24. 17 May 2011 96/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DE4-16 395. Witness DE4-16 was a battalion commander in the Rwandan Army in 1993 and 1994.708 His battalion was based in Ruhengeri operational sector, and as a result he was a direct subordinate of Bizimungu.709 The witness had previously known Bizimungu for many years as they were both officers of a similar age.710 396. The witness testified that he was not aware of any public meetings held by Bizimungu at which Tutsi were blatantly threatened.711 He stated that it was extremely rare or impossible for a military official to convene or chair a civilian meeting.712 According to the witness, a legislative order dated 31 January 1959, which required public meetings to have prior written authorisation from a préfet, was still in place between 1990 and 1994.713 In addition, it was forbidden for military officials to express their political opinions publicly.714 397. The witness testified that it would have been implausible for an official to make direct statements against one group at a public meeting, as the population of Mukingo included both Hutu and Tutsi, all of whom were eligible to attend the meetings.715 Furthermore, the witness never saw Bizimungu display anger or hatred towards Tutsi.716 The witness stated that Bizimungu’s driver and secretary were Tutsi, and that it would have been

unlikely that Bizimungu’s driver would have driven him to and from a meeting where such opinions were expressed.717 Defence Witness DE8-14 398. Witness DE8-14 was a sous-préfet at various locations in Rwanda from 1980 until 1994.718 The witness denied that in the absence of a préfet or a sous-préfet it would be possible for somebody else, such as a military commander, to chair or convene a security council meeting.719 The witness testified that before 1 October 1990, Bizimungu would take part in such meetings or would ask one of the soldiers under his authority to do so.720 However, from 1 October 1990 to 9 February 1993 (when the witness left Ruhengeri), neither Bizimungu nor any soldier under his authority took part in any of those meetings.721 708 T. 24 May 2007, p. 81 (ICS). 709 T. 24 May 2007, p. 82 (ICS). 710 T. 24 May 2007, p. 82 (ICS). 711 T. 25 May 2007, p. 16. 712 T. 25 May 2007, p. 17. 713 T. 28 May 2007, p. 11. 714 T. 28 May 2007, p. 11. 715 T. 25 May 2007, p. 17. 716 T. 25 May 2007, pp. 17-18. 717 T. 25 May 2007, p. 17. 718 T. 14 May 2007, p. 50 (ICS). 719 T. 14 May 2007, p. 73. 720 T. 14 May 2007, p. 75. 721 T. 14 May 2007, p. 75. 17 May 2011 97/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DE8-19 399. Witness DE8-19 was a senior officer in the Rwandan Army until June 1992.722 He had known Bizimungu for many years prior to the latter’s appointment as commander of the Ruhengeri operational sector.723 400. Witness DE8-19 refuted the suggestion that Bizimungu subscribed to anti-Tutsi ideology. The witness testified that if Bizimungu had made discriminatory statements against Tutsi, he would have been immediately dismissed and imprisoned both during the single- party era and after the introduction of multi-party democracy.724 1.3.6.3 Notice of Charges 401. Paragraph 29 of the Indictment alleges that Bizimungu attended meetings generally held on Saturdays at the house of Joseph Nzirorera between 1992 and 1994.725 It is alleged that the purpose of these meetings was to devise a strategy for fighting the Tutsi enemy. The Pre-Trial Brief, in paragraphs 38 and 39, alleges the same material facts.

402. In order to substantiate these claims, the Prosecution relies on the testimony of Witnesses GFA, GFC and GAP.726 However, the evidence provided by these witnesses raised the possibility that some of these meetings were in fact held at the house of Nzirorera’s mother, rather than at his own personal residence.727 The Chamber recalls that during the testimony of Witness GFA, the Defence objected to the inclusion of evidence regarding meetings at the house of Nzirorera’s mother, due to its variation from the Indictment.728 403. Having carefully reviewed the Pre-Trial Brief and the transcripts of evidence in regard to the location of the meetings alleged in paragraph 29 of the Indictment, the Chamber finds that the Defence was not prejudiced by the inclusion of testimony about meetings at the house of Nzirorera’s mother. In the view of the Chamber, any defect that did exist in paragraph 29 of the Indictment was cured by the Pre-Trial Brief, in which the summaries of both Witnesses GFA and GFC’s testimony specified that meetings took place at the house of Nzirorera’s mother.729 That Bizimungu’s ability to mount a defence was not materially impaired is also demonstrated by the fact that the Defence was able to produce a number of witnesses who testified against the occurrence of meetings at the house of Nzirorera’s mother.730 1.3.6.4 Deliberations 404. The Chamber will first

consider whether paragraph 29 of the Indictment contains defects, and if so, whether such defects are cured. The Chamber will then evaluate the credibility of the evidence and determine whether its supports the charge against Bizimungu. 722 T. 5 November 2007, p. 8 (ICS). 723 T. 5 November 2007, pp. 12-13 (ICS). 724 T. 5 November 2007, p. 40 (ICS). 725 Indictment, para. 29. 726 Prosecution Closing Brief, para. 182. 727 T. 30 January 2006, p. 63; T. 1 March 2005, p. 13; T. 15 February 2005, pp. 34, 36; T. 17 February 2005, p. 58. 728 T. 30 January 2006, pp. 58-61. 729 Pre-Trial Brief, Annexure IV, paras. 15, 94. 730 See Bizimungu Defence Witnesses DE9-7, DB15-11, DB11-2, and DB11-11. 17 May 2011 98/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 405. The Prosecution relies upon the testimony of Witnesses GFA, GFC and GAP to substantiate the claims that between 1992 and 1994, Bizimungu regularly took part in meetings at the house of Nzirorera and the house of his mother, and that the purpose of these meetings was to devise a strategy for fighting the Tutsi enemy.

406. These witnesses corroborate each other on a number of points. They all agree that Nzirorera convened a number of meetings between 1992 and 1994, and that some of the meetings took place at his mother’s house. All three witnesses testified that the meetings were attended by Nzirorera, Bizimungu, Baheza and Nzirorera; Witnesses GFA and GAP further agree that Setako, Ndisete and Bambonye were present; Witnesses GFA and GFC agree that Kajelijeli and Bakuzakundi were present; and Witnesses GFC and GAP agree that Nyabusore were present. All three witnesses testified that the purpose of the meetings related to the organisation of the Interahamwe and included the hunt for accomplices of the RPF.

407. As set out in Chapter III of the Judgement, the Chamber recalls that Witness GFA specifically recanted his testimony regarding the meetings at the house of Nzirorera’s mother in the Karemera et al. trial.731 The Chamber will therefore disregard his evidence on this point.

408. Witness GFC testified that he did not attend the meeting at the house of Nzirorera’s mother, but instead learned of that meeting from Witness GFA. While the Chamber may rely upon hearsay evidence, it is required to treat such evidence with caution.732 In this particular instance, where the witness obtained the information from another witness whose testimony the Chamber has rejected as not credible, it is the view of the Chamber that it should not rely on this evidence. Accordingly, the Chamber will disregard the evidence of Witness GFC.

409. The Chamber is therefore left with the evidence of Witness GAP. In cross- examination, Witness GAP was confronted with two prior statements given to ICTR investigators in which he had stated that meetings took place every Saturday at Nzirorera’s house, whereas during his testimony he claimed that the meetings only occurred on the last Saturday of every month.733 Witness GAP also testified that the meetings were held at Nzirorera’s house, and it was only during cross-examination that the witness stated that there was first a ceremony held at the house of Nzirorera’s mother, after which the participants would go to Nzirorera’s house for the actual meeting.734 The Chamber accepts that due to the length of time since the incidents took place and the fact that the two properties are closely linked, these differences do not render the evidence of Witness GAP incredible.

410. The Chamber notes, however, that Witness GAP testified that Bizimungu told the participants at the meetings that the purpose was to discuss patrols to track down Inkotanyi and their accomplices and to ensure that all Tutsi would be killed if the RPF resumed hostilities. It is the view of the Chamber that such statements do not, on their own, establish the existence of an agreement between the Accused and others to commit genocide. The existence of such a conspiracy is not the only reasonable inference to be drawn from the evidence set out above. It is important to note that Ruhengeri was at that time of the alleged meetings and for some years beforehand a key battle-ground between the RPF and the FAR. As a result, it is conceivable that the purpose of such meetings was to organise a civilian 731 Defence Exhibit 689A. 732 Muvunyi Appeal Judgement, para. 70. 733 T. 17 February 2005, pp. 41, 43-44. 734 T. 17 February 2005, p. 58. 17 May 2011 99/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T defence force. Therefore, the Chamber finds that the Prosecution has not proved this allegation beyond reasonable doubt. 1.3.7 Ndindiliyimana’s Alleged Opposition to the Arusha Accords and the Kigali Weapons Secure Area 1.3.7.1 Introduction 411. The Indictment alleges that Ndindiliyimana took part in a meeting at the MRND Headquarters on 7 January 1994 to oppose the disarmament programme that was included in the Arusha Accords.735 The Indictment further alleges that Ndindiliyimana compromised the effectiveness of the KWSA, a protocol agreement to the Arusha Accords, the purpose of which was to enhance the implementation of the Arusha Accords.736 1.3.7.2 Evidence 412. The Chamber notes that the Prosecution did not adduce any evidence to support the allegation in paragraph 32 of the Indictment that Ndindiliyimana attended a meeting at the MRND Headquarters on 7 January 1994, the purpose of which was to oppose the implementation of the KWSA. Accordingly, the Chamber dismisses this allegation.

413. The Chamber will now consider the evidence relating to the allegation in paragraph 33 of the Indictment that Ndindiliyimana compromised the effectiveness of the KWSA. 1.3.7.2.1 Prosecution Evidence Prosecution Witness AOG 414. Witness AOG was a leading member of the Interahamwe. He testified that he once attended a meeting at which Mathieu Ngirumpatse, the MRND Chairman, told the gathering that the Minister of Defence had informed him about plans by UNAMIR to carry out searches for weapons held in contravention of the KWSA. In light of this information, Ngirumpatse urged Robert Kajuga, who was the President of the Interahamwe and who was responsible for the distribution of weapons to the Interahamwe, to exercise caution when distributing weapons. The witness further testified that Ngirumpatse also claimed at the meeting that the Chief of Staff of the Gendarmerie, Ndindiliyimana, had promised to forewarn him of any imminent searches by UNAMIR so that they could hide their weapons.737 415. Witness AOG testified that Ndindiliyimana did forewarn Ngirumpatse about plans by UNAMIR officials to carry out inspections for weapons held in contravention of the KWSA. The witness was informed that Robert Kajuga received information said to have emanated from Ndindiliyimana alerting him that UNAMIR was intending to carry out searches for weapons in Nyange and Gikondo secteurs in Kigali.738 On both occasions, Ndindiliyimana is alleged to have provided Ngirumpatse with information regarding those search operations, and Ngirumpatse is alleged to have relayed that information to Robert Kajuga so that he 735 Indictment, para. 32. 736 Indictment, para. 33. 737 T. 21 February 2006, p. 24 (ICS). 738 T. 21 February 2006, p. 24 (ICS). 17 May 2011 100/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T could evade the search.739 Kajuga then warned Aloys Ngirabatware, the Chairman of the Interahamwe in Remera secteur, who then removed the weapons that were stashed away in Nyange. Thus, UNAMIR’s search in that secteur was unsuccessful.740 The witness testified that the same happened in Gikondo secteur.741 According to the witness, by divulging such information to leaders of the MRND, Ndindiliyimana compromised the efficacy of the UNAMIR search operations which were designed to ensure compliance with the KWSA.742 416. The Chamber recalls that the witness was extensively cross-examined regarding his links with the Office of the Prosecutor of the Tribunal (OTP). The witness testified that he first came into contact with OTP investigators in 1996 through a friend,743 and that he started collaborating with the OTP in 1997. Witness AOG explained that the reason why he cooperated with the OTP was because he noted that members of the former Rwandan regime were intent on leaving a large majority of the exiled Rwandans in refugee camps while they themselves settled their families in Europe and West Africa.744 417. Witness AOG testified that he participated in two major operations led by the OTP in various parts of Africa to capture individuals who were accused of having played a role in the genocide in Rwanda in

1994.745 The witness testified that in the course of his work with the OTP from 1997 to 2000, he received several sums of money as reimbursements for expenses that he had incurred while assisting the OTP in its operations to arrest suspects.746 In cross- examination, the witness conceded that he received a sum of $29,925.00 from the OTP between November 1996 and December 2000.747 However, he denied that he was remunerated for his collaboration with the OTP.748 The witness testified that at the time, he subsisted on a salary that he received from his employment with an international transport company while in exile in Zaire and Kenya.749 418. The witness also testified that he received a sum of $8,000 from the Tribunal as a contribution to his daughter’s tuition fees.750 He explained that this was because he was put under the witness protection scheme of his country and was precluded from engaging in gainful employment, and he therefore requested the Tribunal for assistance with his daughter’s tuition fees.751 419. The witness was also probed about the assistance that he had received from the Tribunal to obtain permanent resident status in the country where he resided at the time of his testimony.752 The witness testified that he informed the investigators of the Tribunal that his 739 T. 21 February 2006, p. 25 (ICS). 740 T. 21 February 2006, pp. 24-25 (ICS). 741 T. 21 February

2006, pp. 24-25 (ICS). 742 T. 27 February 2006, p. 25 (ICS). 743 T. 23 February 2006, pp. 31-32 (ICS). 744 T. 22 February 2006, p. 35 (ICS). 745 T. 22 February 2006, pp. 36-37; T. 23 February 2006, pp. 24, 37. 746 T. 23 February 2006, p. 39. 747 T. 3 March 2006, p. 28 (ICS). 748 T. 23 February 2006, p. 39 (ICS). 749 T. 23 February 2006, p. 23 (ICS). 750 T. 23 February 2006, p. 12 (ICS). 751 T. 23 February 2006, p. 14 (ICS). 752 T. 23 February 2006, p. 19 (ICS). 17 May 2011 101/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T application for residence was stalling and that the investigators of the Tribunal told him that “they were going to follow that closely.”753 1.3.7.2.2 Defence Evidence Defence Witness CBP 7 420. Witness CBP 7 was a member of the Gendarmerie in April 1994. He testified that the Gendarmerie collaborated quite closely with the UNAMIR force in ensuring adherence with the KWSA. To this effect, the Gendarmerie carried out patrols and search operations together with UNAMIR in order to enforce the KWSA.754 Defence Witness Luc Marchal 421. Witness Luc Marchal arrived in Rwanda on 4 December 1993 and stayed until 19 April 1994 when the Belgian detachment of the UNAMIR force, which he commanded, was withdrawn from Rwanda.755 Marchal testified that he first met Ndindiliyimana during the negotiations that led to the agreement for the creation of the KWSA.756 The witness testified that UNAMIR was mandated by Resolution 872 adopted by the UN Security Council on 5 October 1993 to establish a weapons consignment area in Kigali.757 According to the witness, Ndindiliyimana made an important contribution to the process that led to the creation of the KWSA.758 422. Marchal testified that the KWSA was signed on 21 December 1993 and came into effect on 23 December 1993.759 The purpose behind the establishment of the KWSA was

to control weapons and troops within Kigali so as create an auspicious environment for the implementation of the transitional institutions envisaged in the Arusha Accords and to enhance the general security in Kigali.760 According to Marchal, the geographical expanse covered by the agreement was the city of Kigali, an area spanning about 700 square kilometres.761 The parties to the agreement were UNAMIR, the Rwandan government and the RPF.762 Marchal testified that the restrictions on weapons and troops set forth in the KWSA were intended to last until October 1995, when the elections were expected to be held.763 423. The witness testified that as the commander of the Kigali secteur unit of UNAMIR, he was vested with the responsibility to ensure that the parties to the KWSA complied with its terms.764 The Gendarmerie was expected to collaborate with UNAMIR in enforcing compliance with the KWSA because unlike the Gendarmerie, UNAMIR had no authority to carry out enforcement measures such as establishing roadblocks and conducting searches.765 753 T. 23 February 2006, p. 19 (ICS). 754 T. 7 July 2008, p. 42. 755 T. 16 January 2008, pp. 24, 32, 35. 756 T. 16 January 2008, pp. 34-35. 757 T. 16 January 2008, pp. 34, 37. 758 T. 16 January 2008, pp. 43-44. 759 T. 16 January 2008, pp. 37, 41. 760 T. 16 January 2008, pp. 34-35, 42. 761 T. 16 January 2008, p. 41. 762 T. 16 January 2008, p. 41. 763 T. 16 January 2008, pp. 41-42. 764 T. 16 January 2008, p. 44. 765 T. 16 January 2008, pp. 39, 43. 17 May 2011 102/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Marchal testified that the Gendarmerie collaborated with UNAMIR in ensuring compliance with the KWSA.766 He further testified that without the cooperation of the Gendarmerie, the UNAMIR force would have found it difficult to enforce the KWSA.767 Unlike the Gendarmerie, the Rwandan Armed Forces and the RPF were less than cooperative towards UNAMIR.768 424. Marchal gave evidence that he had several meetings with Ndindiliyimana in the course of his work to ensure the implementation of the KWSA.769 He considered these meetings to be conducive to the achievement of their mutual and reciprocal obligations related to the KWSA.770 He also considered Ndindiliyimana to be trustworthy.771 Marchal testified that had Ndindiliyimana sought to deceive him about his attitude towards the implementation of the KWSA, he would have definitely found out. He stated, “[I]f there was any need on the part of General Ndindiliyimana to play a double game, so to speak, we would have been able to see through it.”772 425. Marchal testified that Ndindiliyimana was in favour of the implementation of the KWSA, and that his support explained the Gendarmerie’s consistent collaboration with UNAMIR to ensure compliance.773 Marchal observed that a few days after the KWSA came into force, the high command of the Gendarmerie, led by

Ndindiliyimana, issued very clear orders to its units directing them to comply with the terms of the KWSA.774 Marchal observed that Ndindiliyimana’s adherence to the agreement is evidenced by his direction to the gendarmes not to arm themselves with machine guns while operating within the KWSA and his decision to substantially reduce the number of weapons carried by gendarmes operating in that area.775 426. Marchal disputed the claims made by Prosecution Witness AOG that Ndindiliyimana divulged information to the leadership of the MRND regarding plans by UNAMIR to carry out searches for weapons, and that as a result of his conduct, Ndindiliyimana undermined the search operations conducted by UNAMIR in Nyange and Gikondo secteurs in Kigali. Marchal testified that even though UNAMIR had information regarding the existence of weapon caches in contravention of the KWSA, only one search operation was carried out in early April 1994. This search operation did not cover the secteurs alleged in the testimony of Witness AOG.776 Further searches were planned but the circumstances did not allow them to be carried out. Marchal dismissed the possibility that UNAMIR would have conducted search operations without his knowledge.777 427. Marchal explained that the reason why UNAMIR carried out only one search almost three months after the KWSA came into effect was because the UN authorities

were not inclined to allow such searches to be carried out despite several requests by General 766 T. 16 January 2008, pp. 44-45. 767 T. 16 January 2008, pp. 45-46. 768 T. 16 January 2008, pp. 45, 58; T. 18 January 2008, p. 8. 769 T. 16 January 2008, pp. 61-63. 770 T. 16 January 2008, p. 62. 771 T. 16 January 2008, pp. 62-63. 772 T. 16 January 2008, p. 63. 773 T. 16 January 2008, p. 61. 774 T. 16 January 2008, p. 61. 775 T. 16 January 2008, p. 63. 776 T. 16 January 2008, p. 47. 777 T. 16 January 2008, p. 53. 17 May 2011 103/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Dallaire.778 Marchal further testified that the UN authorities construed the UNAMIR mission to be primarily a defensive one and therefore raids on weapons caches would have exceeded UNAMIR’s mandate.779 428. Marchal testified that his regard for Ndindiliyimana increased over the years and he thought in retrospect that Ndindiliyimana was courageous to have consistently supported the implementation of the KWSA given the strong opposition to its implementation at the time.780 Defence Witness CBP 46 429. Witness CBP 46, a Major in the Gendarmerie in April 1994,781 testified that the Gendarmerie cooperated with UNAMIR in enforcing compliance with the KWSA. To this effect, they established and manned roadblocks and also took part in joint search operations and preventive patrols with UNAMIR to enforce the implementation of the KWSA.782 Defence Witness André Vincent 430. Witness Vincent served as the head of the Belgian commission for military assistance to Rwanda from 1991 to 1994.783 In the course of his stay in Rwanda, he met with Ndindiliyimana on several occasions, both in a personal and a professional capacity.784 Vincent testified that Ndindiliyimana was in favour of the implementation of the Arusha Accords.785 He further testified that the Gendarmerie extended support to UNAMIR so that it could achieve

its mission of implementing the Arusha Accords.786 Defence Witness Johan Swinnen 431. Witness Swinnen served as the Belgian Ambassador to Rwanda from 16 August 1990 to 12 April 1994.787 He testified that he met with Ndindiliyimana on several occasions during his diplomatic service in Rwanda. According to Swinnen, as far as he could gather from his interactions with Ndindiliyimana, the latter was not opposed to the implementation of the Arusha Accords.788 He further testified that his relationship with Ndindiliyimana would not have developed to the extent that it did had Ndindiliyimana been opposed to the implementation of the Accords.789 778 T. 16 January 2008, pp. 46-48. 779 T. 16 January 2008, pp. 46-48. 780 T. 22 January 2008, p. 11. 781 T. 25 January 2008, p. 13. 782 T. 28 January 2008, p. 10. 783 T. 10 June 2008, p. 3. 784 T. 10 June 2008, p. 15. 785 T. 10 June 2008, p. 19. 786 T. 10 June 2008, p. 20. 787 T. 22 October 2008, pp. 2, 6. 788 T. 22 October 2008, p. 9. 789 T. 22 October 2008, p. 9. 17 May 2011 104/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The Accused Ndindiliyimana 432. Ndindiliyimana testified that the Gendarmerie’s working relationship with UNAMIR in enforcing the KWSA, despite initial difficulties, improved with the passage of time. Ndindiliyimana stated that the Gendarmerie supported UNAMIR’s efforts to implement the KWSA.790 He further testified that the high command of the Gendarmerie met on a weekly basis with UNAMIR to discuss their joint efforts to enforce the KWSA and that he also assigned one of his officers to liaise with UNAMIR in order to enhance cooperation between his force and UNAMIR in ensuring implementation of the KWSA.791 1.3.7.3 Deliberations 433. The Chamber has found that the Prosecution failed to adduce any evidence in support of the allegation in paragraph 32 of the Indictment. The Chamber will therefore focus its deliberations on the allegation in paragraph 33 of the Indictment that Ndindiliyimana sought to undermine searches conducted by UNAMIR for weapons held in contravention of the KWSA. The Prosecution alleges that Ndindiliyimana forewarned Mathieu Ngirumpatse, the MRND Chairman, of plans by UNAMIR to carry out weapons searches and therefore compromised the efficacy of those searches. The Prosecution submits that Ndindiliyimana’s opposition to the implementation of the KWSA supports the inference that he was implicated in a conspiracy to commit genocide against Tutsi.

434. To support this allegation, the Prosecution relies on the sole testimony of Witness AOG, a former member of the Interahamwe. The witness testified to having attended a meeting at which Mathieu Ngirumpatse, the MRND Chairman, told the audience that he had been informed by the Minister for Defence of plans by UNAMIR to carry out searches for weapons in Kigali in accordance with the KWSA.792 The witness further testified that Ngirumpatse informed the attendees at this meeting that Ndindiliyimana had promised to alert him about such operations before they were carried out.793 Thereafter, the witness was informed that due to information received from Ndindiliyimana, the leadership of the MRND and Interahamwe succeeded in evading UNAMIR searches for weapons in Nyange and Gikondo secteurs in Kigali.794 435. While the Chamber considers Witness AOG’s evidence to be relevant to some of the events underpinning the Indictment, it has concerns about the impartiality of Witness AOG’s testimony in light of his extensive collaboration with the OTP and the financial advantages that may have accrued to him as a result of that collaboration. For these reasons, the Chamber will exercise caution when weighing his evidence. The Chamber notes that, contrary to the claims by the Defence in this trial, there is no evidence suggesting that the OTP sought to financially induce the witness to provide evidence in its favour.

436. Even if the Chamber were to cast aside its reservations regarding the impartiality of Witness AOG’s evidence, the Chamber is not satisfied that the uncorroborated evidence of Witness AOG is sufficient to prove that Ndindiliyimana sought to undermine the UNAMIR- led efforts to ensure compliance with the KWSA. The Chamber notes that Witness AOG’s 790 T. 16 June 2008, p. 60. 791 T. 16 June 2008, p. 60. 792 T. 21 February 2006, p. 24. 793 T. 21 February 2006, p. 24. 794 T. 21 February 2006, pp. 24-25. 17 May 2011 105/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T evidence is sparsely detailed as to how he learned of the collusion between Ndindiliyimana and the leadership of the MRND in undermining UNAMIR’s search operations in Nyange and Gikondo secteurs in Kigali.

437. Moreover, the Chamber has heard a considerable amount of evidence indicating Ndindiliyimana’s support for the Arusha Accords and the KWSA, as well as evidence that contravenes the specific allegations of Witness AOG that Ndindiliyimana undermined UNAMIR’s searches in Nyange and Gikondo secteurs in Kigali. Witness Marchal, who was intimately involved with the UNAMIR efforts to implement the Accords, testified at length that Ndindiliyimana was consistent in his support for both the Accords and the KWSA.795 His assessment of Ndindiliyimana’s favourable disposition towards the Accords and the KWSA is replicated in the evidence of a number of Prosecution and Defence witnesses such as Dallaire, Claeys, Marchal, Swinnen, Vincent and Witness CBP 46. Most of these witnesses had a working relationship with Ndindiliyimana and were well-placed to determine his stance towards the implementation of both the Accords and the KWSA.

438. In addition to the above evidence regarding Ndindiliyimana’s favourable disposition towards the Accords, the Chamber heard authoritative evidence from Witness Marchal indicating that UNAMIR carried out only one search for weapons that were held in contravention of the KWSA. He further testified that UNAMIR intended to carry out further searches but the circumstances did not allow them to do so.796 Marchal denied that this search covered Nyange and Gikondo secteurs in Kigali.797 He also dismissed the possibility that UNAMIR would have conducted search operations without his knowledge.798 The Chamber notes that it has heard evidence from Witnesses Dallaire and Claeys confirming Marchal’s claim that he was vested with the responsibility of monitoring the implementation of the KWSA. Given his intimate involvement with the enforcement of the KWSA, the Chamber accepts that Marchal would have been well-placed to know the measures taken by UNAMIR to enforce compliance with the KWSA. The fact that he denied that UNAMIR conducted a search for weapons in Nyange and Gikondo secteurs leaves the Chamber with doubts about the veracity of Prosecution Witness AOG’s claims.

439. The Chamber notes that Marchal’s evidence is corroborated to a considerable extent by the evidence of Witness Dallaire. The latter testified that ever since the KWSA came into force, UNAMIR carried out only one search operation for weapons in collaboration with the Gendarmerie on 1 April 1994.799 The search was not successful and therefore plans were made to carry out a further search on 7 April.800 Having weighed his evidence, the Chamber notes that there is no suggestion in Dallaire’s testimony that the search operation that was carried out on 1 April extended to the Nyange and Gikondo secteurs in Kigali.

440. In determining Ndindiliyimana’s possible implication in undermining UNAMIR efforts to enforce the KWSA, the Chamber has also considered Witness Dallaire’s evidence that UNAMIR had information “gathered here and there”, suggesting that the search operation of 1 April was sabotaged by hardliners or extremists who had infiltrated the 795 T. 16 January 2008, pp. 61-63; T. 22 January 2008, p. 11. 796 T. 16 January 2008, p. 53. 797 T. 16 January 2008, p. 47. 798 T. 16 January 2008, p. 53. 799 T. 20 November 2006, p. 48. 800 T. 20 November 2006, p. 48. 17 May 2011 106/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Gendarmerie and leaked information to outsiders regarding the search.801 According to Dallaire, UNAMIR therefore planned to conduct another search on 7 April, but proposed to disclose information regarding the search only to the Chief of Staff of the Gendarmerie a day before it was carried out in order to limit the possibility of it being compromised.802 441. The Chamber is not satisfied that there is any suggestion in Dallaire’s evidence that he blamed Ndindiliyimana for the sabotage of the search operation carried out on 1 April 1994. On the contrary, the fact that UNAMIR officials sought to inform only Ndindiliyimana of its intention to carry out searches a day before suggests that they did not consider Ndindiliyimana to pose a threat to the efficacy of those searches. In the Chamber’s view, Dallaire’s evidence considered in its entirety indicates that Ndindiliyimana collaborated effectively with UNAMIR in enforcing compliance with the KWSA.

442. Having considered the evidence discussed above, the Chamber does not accept Prosecution Witness AOG’s allegations that Ndindiliyimana undermined the efforts led by UNAMIR to ensure compliance with the KWSA. The Chamber therefore finds that the Prosecution has failed to prove this allegation beyond reasonable doubt. 1.3.8 Concealment of Vehicles 1.3.8.1 Introduction 443. The Indictment alleges that in January and February 1994, Nzuwonemeye, as part of a “dissimulation strategy”, hid “about 20 armoured vehicles and about ten jeeps ... belonging to the Reconnaissance Battalion ... in Gisenyi and at certain of President Habyarimana’s residences in Kiyovu and Rambura” and that on 7 April 1994, these vehicles returned to Kigali “to assist the ground troops charged with tracking down the civilian population.”803 1.3.8.2 Evidence 1.3.8.2.1 Prosecution Evidence Prosecution Witness DA 444. Witness DA was a member of the RECCE Battalion in 1994. He testified that following the signing of the Arusha Accords, UNAMIR military observers were dispatched to Camp Kigali to monitor the movement of weapons.804 He testified that the RECCE Battalion had approximately 25 armoured vehicles, the use of which was controlled by the commander of the battalion.805 445. Witness DA testified that at the end of 1993 or at the beginning of 1994, approximately six or seven of the RECCE Battalion’s armoured

vehicles were moved from Camp Kigali to Rambura in Gisenyi and hidden at President Habyarimana’s residence.806 The witness explained that the reason behind this move was that the RECCE Battalion did not 801 T. 20 November 2006, pp. 48-49. 802 T. 20 November 2006, pp. 48-49. 803 Indictment, para. 34. 804 T. 17 January 2005, p. 92; T. 18 January 2005, p. 55; T. 20 January 2005, pp. 24-26. 805 T. 11 January 2005, pp. 31, 40. 806 Spelled Rwambura in the transcript. 17 May 2011 107/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T want UNAMIR to know about the existence of these vehicles.807 The witness further stated that at the time, he resided in Rambura, Gisenyi and that he witnessed the arrival of those vehicles there.808 446. The witness testified that on 6 April 1994, following the death of the President, orders were issued for the armoured vehicles to be returned to Kigali.809 The witness was among the soldiers who were involved in the operation to return those vehicles to Kigali. They travelled the whole night and arrived in Kigali between 3.00 and 4.00 a.m. in the morning of 7 April.810 According to the witness, the armoured vehicles did not return to Camp Kigali but were deployed to other locations in Kigali.811 Some vehicles, for example, were deployed to “the presidency” and others were sent to replace jeeps stationed at Radio Rwanda.812 The witness did not know who had ordered the return of those vehicles or their redeployment to various locations in Kigali.813 Prosecution Witness AWC 447. Witness AWC was a member of the RECCE Battalion and was stationed at Camp Kigali in April 1994. He testified that he had heard “people say that we should try to hide our weapons” and that Squadron C of the RECCE Battalion had been sent to Rambura for that purpose.814 Prosecution Witness DY 448. Witness DY was a member of Squadron

C of the RECCE Battalion in April 1994. He testified that at the end of 1993, Nzuwonemeye informed members of the RECCE Battalion that the Arusha Accords required UNAMIR observers to inspect weapons at the disposal of the forces in Rwanda and that the army had to hide part of its weapons in order to avoid UNAMIR inspections.815 449. Consequently, members of Squadron C of the RECCE Battalion took some armaments of RECCE to Rambura in order to hide them from UNAMIR observers. The witness explained that some of the equipment was also hidden in President Habyarimana’s residence in Kiyovu. In March 1994, the witness visited Rambura and saw the armoured vehicles that were hidden “at the residence of the President”.816 450. Witness DY testified that following the death of the President, the armoured vehicles were brought back to Camp Kigali where the RECCE Battalion was based. He did not, however, know the exact date on which those armoured cars were brought back.817 807 T. 11 January 2005, pp. 40-41; T. 18 January 2005, pp. 53-55; T. 20 January 2005, pp. 24-25. 808 T. 11 January 2005, pp. 41-42; T. 18 January 2005, p. 57. 809 T. 18 January 2005, pp. 66-67. 810 T. 18 January 2005, pp. 66-67. 811 T. 18 January 2005, pp. 67-68. 812 T. 18 January 2005, pp. 68-69. 813 T. 18 January 2005, pp. 66, 69. 814 T. 19 January 2006, pp. 31-32. 815 T. 23 January 2006, pp. 37-38; T. 24 January 2006, pp. 29-30. 816 T. 23 January 2006, pp. 37-38; T. 24 January 2006, p. 23. 817 T. 24 January 2006, p. 39. 17 May 2011 108/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness HP 451. Witness HP was a member of the RECCE Battalion in 1994.818 He testified that after the Arusha Accords came into effect, weapons and armoured vehicles of Squadron C were taken from Camp Kigali and hidden in Rambura. This was because the RECCE Battalion “wanted to hide these weapons from the UNAMIR control.”819 Prosecution Witness Roméo Dallaire 452. Witness Dallaire testified that following the implementation of the KWSA, he received information that there were “heavy weapons” located in the “town of the President”.820 Specifically, Dallaire stated that in January or February 1994, he had information that those weapons were in fact in the tea plantation near the President’s village of birth821 and that “heavy weapons systems … were moved out of Kigali just before the KWSA”.822 He believed that this was done in bad faith. He explained, however, that he did not conduct subsequent investigations to verify this information.823 453. Dallaire further testified that UNAMIR observers charged with monitoring the implementation of the KWSA received very little cooperation from Nzuwonemeye, the commander of the RECCE Battalion.824 1.3.8.2.2 Defence Evidence The Accused Nzuwonemeye 454. Nzuwonemeye testified that in 1994, the RECCE Battalion had approximately 20 to 25 armoured

vehicles.825 In the first week of December 1993, the Chief of Staff of the Rwandan Army, General Nsabimana, ordered him to send a squadron from RECCE Headquarters to Rambura, Gisenyi in order to “strengthen the protection of the residence of the President.” Squadron C of RECCE was accordingly sent to Rambura together with approximately seven to nine armoured vehicles.826 These vehicles did not return to Kigali until 8 April 1994. 827 455. In the second week of December 1993, General Nsabimana ordered Nzuwonemeye to send two armoured vehicles to the residence of the President in Kiyovu, Kigali.828 Two armoured vehicles were then placed at the President’s residence in Kiyovu.829 According to 818 T. 9 May 2005, p. 11. 819 T. 9 May 2005, pp. 17-18. 820 T. 20 November 2006, p. 48. 821 T. 22 November 2006, pp. 37, 42-43. 822 T. 21 November 2006, p. 66; T. 22 November 2006, p. 42. 823 T. 21 November 2006, p. 66. 824 T. 21 November 2006, p. 65; T. 22 November 2006, p. 2. 825 T. 6 October 2008, p. 18. 826 T. 6 October 2008, pp. 22-24. 827 T. 6 October 2008, p. 25. 828 T. 6 October 2008, pp. 22, 25, 27; T. 8 October 2008, pp. 6, 11. 829 T. 6 October 2008, pp. 20, 22-23, 25, 27; T. 8 October 2008, pp. 4-6, 11-12, 34, 54. 17 May 2011 109/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nzuwonemeye, these vehicles remained there until 6 April 1994, after which they were deployed to other sensitive areas.830 456. Nzuwonemeye testified that he supported the Arusha Accords and accordingly cooperated with UNAMIR observers in implementing the Accords.831 He further testified that he informed those observers about the deployment of armoured vehicles to the residence of President Habyarimana in Rambura, Gisenyi as well as in Kiyovu, Kigali.832 Defence Witness NGT 457. Witness NGT was a member of Squadron C of the RECCE Battalion in 1994.833 He explained that in March 1994, Squadron C was deployed to protect President Habyarimana’s residence in Rambura, Gisenyi.834 Squadron C returned to Kigali from Rambura on 8 April 1994.835 The witness stated that armoured vehicles from the RECCE Battalion were stationed at the other residence of the President in Kiyovu, Kigali.836 458. The witness further testified that the RECCE Battalion supported the Arusha Accords and was “ready to welcome the RPF soldiers”.837 Defence Witness K4 459. Witness K4 worked for the RECCE Battalion in 1994. He testified that towards the end of November 1993, Squadron C of RECCE was deployed to Rambura in order to provide security to the residence of President Habyarimana.838 The witness testified that he was informed of

Squadron C’s deployment to Rambura by the regimental Sergeant Major as he was required to draw up the location of units.839 The witness further testified that the order to deploy Squadron C was given by the Chief of Staff of the Rwandan Army.840 Defence Witness Y1 460. Witness Y1 was a member of the Rwandan Army in 1994. He testified that in either 1992 or 1993, following an order from the Chief of Staff of the Rwandan Army, Nzuwonemeye deployed armoured vehicles to Rambura in order to reinforce the guard at President Habyarimana’s residence in Rambura.841 The witness stated that Nzuwonemeye did not have the competence to issue such an order and that he only implemented the instructions of the Chief of Staff of the Army.842 830 T. 6 October 2008, p. 27; T. 8 October 2008, pp. 4, 34. 831 T. 6 October 2008, pp. 28-31, 33. 832 T. 6 October 2008, pp. 28-31, 33. 833 T. 23 September 2008, p. 4. 834 T. 23 September 2008, p. 4. 835 T. 23 September 2008, pp. 6-7. 836 T. 23 September 2008, pp. 28, 30-32. 837 T. 23 September 2008, p. 19. 838 T. 30 June 2008, pp. 8-9, 37-39. 839 T. 30 June 2008, pp. 8-9, 38. 840 T. 30 June 2008, p. 9. 841 T. 25 June 2008, p. 34. 842 T. 25 June 2008, pp. 31-34. 17 May 2011 110/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 461. Witness Y1 testified that the Rwandan Army did not attempt to hinder or frustrate the implementation of the Arusha Accords or the establishment of the KWSA.843 He rejected the assertion that armoured vehicles were deployed to Rambura in order to help the population track down Tutsi.844 Defence Witness Faustin Habimana 462. Witness Habimana was a member of the Rwandan Army in 1994. He testified that prior to 6 April 1994, Squadron C of the RECCE Battalion together with approximately five or six armoured vehicles had been sent to Rambura in order to ensure security at the residence of President Habyarimana. This was necessary because there “had ... been attacks in western Rwanda ... launched by the RPF [and the vehicles were required to] monitor and see if there would be attacks in western Rwanda so that they could fend them off.”845 Defence Witness Y2 463. Witness Y2 was a member of Squadron C of the RECCE Battalion in 1994. He testified that in March 1994, he was sent to the residence of the President in Rambura in order to replace members of Squadron B. This was because there had been security problems in Kabatwa. He stated that there were “seven or eight armoured vehicles” located in Rambura and that those vehicles did not return to Kigali until 8 April.846 Defence Witness F10 464. Witness F10

was a member of the RECCE Battalion in 1994.847 He testified that RECCE had approximately 20 armoured vehicles in working condition and that he had been told that a squadron from the RECCE Battalion had been sent to Rambura for training purposes.848 According to the witness, Nzuwonemeye supported the Arusha Accords.849 1.3.8.3 Deliberations 465. It is undisputed that armoured vehicles from the RECCE Battalion were deployed in Rambura and Kiyovu.850 It is, however, disputed that these actions were taken during January and February 1994 as the Indictment alleges. It is further disputed that these actions were taken in an attempt to evade UNAMIR inspections required under the KWSA. The Defence argues that the deployment of these vehicles served legitimate security concerns and was not carried out in furtherance of a conspiracy to commit genocide against Tutsi.

466. The Chamber will first assess whether these armoured vehicles were deployed to Rambura and Kiyovu in order to evade UNAMIR inspections. The Chamber will then consider whether the deployment is evidence of a conspiracy to commit genocide. 843 T. 25 June 2008, pp. 31-32. 844 T. 25 June 2008, pp. 34-35. 845 T. 13 November 2008, p. 26. 846 T. 15 September 2008, pp. 12-13, 15, 19-20. 847 T. 24 October 2008, p. 5 (ICS). 848 T. 24 October 2008, pp. 8- 9 (ICS). 849 T. 24 October 2008, p. 6 (ICS). 850 T. 6 October 2008, pp. 20, 22-23, 25, 27; T. 8 October 2008, pp. 4-6, 11, 12, 34, 54. 17 May 2011 111/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 467. At the outset, the Chamber finds that the Prosecution failed to adduce sufficient evidence that the operation to move armoured vehicles from Camp Kigali, where the RECCE Battalion was based, was done in January and February 1994.851 Having reviewed the evidence tendered on this subject, the Chamber finds that armoured vehicles were initially deployed to Rambura at the end of December 1993 but remained there into 1994. The Chamber recalls that the Defence argued that evidence of armoured vehicles being concealed during and prior to 1994 is “outside the temporal jurisdiction of the Tribunal”.852 The Chamber notes that it is now well established that pre-1994 evidence may be considered provided that it has “probative value”853 and that the underlying crimes for which the accused is charged fit properly within the Tribunal’s temporal jurisdiction. The Chamber will therefore consider the evidence on the deployment of the armoured vehicles despite the fact that the events took place prior to 1994, because that evidence is relevant to a determination of whether Nzuwonemeye was implicated in a conspiracy to commit genocide against Tutsi.854 468. Furthermore, the Chamber finds that the Prosecution’s allegation that “20 armoured vehicles and about 10 jeeps” were hidden by RECCE is not supported by the

evidence. The evidence available to the Chamber suggests that the RECCE Battalion possessed approximately 20 armoured vehicles.855 Of these, between six and eight armoured vehicles were deployed to Rambura.856 The Chamber is unable to make a finding in respect of the number of vehicles that were deployed to the Presidential residence in Kiyovu, but it is satisfied that vehicles were also placed at this residence. The Chamber will now consider whether Nzuwonemeye’s decision to deploy these vehicles was taken in order to evade UNAMIR inspections directed towards the implementation of the KWSA.

469. The Chamber recalls that Prosecution Witness DY testified that at the end of 1993, Nzuwonemeye informed members of the RECCE Battalion that following the establishment of the KWSA, armoured vehicles belonging to the battalion should be hidden in order to evade UNAMIR inspections implementing the KWSA. Thereafter, armoured vehicles were removed from Camp Kigali and taken to Rambura and Kiyovu in order to evade inspection by UNAMIR observers. This was corroborated by Prosecution Witnesses DA and HP. Prosecution Witness Dallaire also testified that he received independent intelligence that armoured vehicles were hidden in President Habyarimana’s hometown and he believed that the order to move those vehicles was given in bad faith.857 Dallaire further testified that Nzuwonemeye was not cooperative with the UNAMIR observers in implementing the KWSA. The Chamber also recalls the testimony of Prosecution Witness AWC that he “heard” people say that vehicles should be hidden, although the Chamber finds that Witness AWC’s evidence is based on hearsay from an unidentifiable source.858 851 Witness DA suggested that the vehicles were deployed at the end of 1993 or at the beginning of 1994; Witness DY suggested that the vehicles were deployed at the end of 1993; General Dallaire suggested that the vehicles were moved out of Kigali before KWSA took effect, which was in December 1993; and Witness HP could not remember the “exact date” that the vehicles were deployed. 852 Nzuwonemeye Closing Brief, para. 406. 853 Rule 89(C) of the Rules. 854 Bagosora et al. Trial Judgement, para. 2091. 855 T. 24 October 2008, p. 8 (ICS). 856 T. 24 January 2005, p. 33; T. 13 November 2008, p. 26. 857 T. 21 November 2006, p. 66. 858 T. 19 January 2006, pp. 31-32. 17 May 2011 112/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 470. Having considered this evidence, the Chamber finds that it establishes beyond reasonable doubt that armoured vehicles were moved to Rambura and Kiyovu in an attempt to evade UNAMIR inspections. The Chamber has also considered the evidence elicited from Defence witnesses and finds that it does not undermine this finding.

471. The Prosecution alleges that such actions were “part of a well-conceived plan by the Rwandan military, as an institution, to obstruct the full implementation of the Arusha Accords and as a visible component of the strategy for perpetrating the genocide”.859 472. The Chamber is not satisfied that it has sufficient evidence demonstrating that Nzuwonemeye’s decision to hide armoured vehicles or their eventual return to Kigali was taken in furtherance of a conspiracy to commit genocide against Tutsi.860 The evidence available to the Chamber suggests that the armoured vehicles were returned to Kigali on 7 April 1994. However, the Prosecution failed to adduce credible and sufficient evidence that this was for the purpose of tracking down the civilian population as part of a conspiracy to commit genocide.861 473. The Chamber is not satisfied that opposition to the implementation of the Arusha Accords or the KWSA, in and of itself, is sufficient to establish Nzuwonemeye’s involvement in a conspiracy to commit genocide against Tutsi. Consequently, the Prosecution has not proved beyond reasonable doubt that the only reasonable inference to be drawn from the evidence adduced by the Prosecution is that Nzuwonemeye was implicated in a conspiracy to commit genocide against Tutsi. 1.3.9 Protais Mpiranya and the Obstruction of the Installation of the Transitional Government 474. The

Indictment alleges that on 5 January 1994, at the swearing-in ceremony of the broad-based transitional government in Kigali, Major Protais Mpiranya prevented access by political opponents, or a significant number of them, to the premises of the CND.862 475. The Chamber finds that, on a reasonable reading of the charge, it does not appear to link any of the Accused in this case with the obstruction of the installation of the broad based transitional government on 5 January 1994 as part of a conspiracy to commit genocide against Tutsi. The charge appears to relate entirely to the alleged actions of Major Protais Mpiranya. The Chamber therefore dismisses this charge in relation to all four Accused in this trial. 859 Prosecution Closing Brief, para. 558. 860 Prosecution Closing Brief, para. 558. 861 For example, Witness DA simply testified that armoured vehicles returned and were deployed to other locations in Kigali. Furthermore, Witness DA did not know who had ordered the return of the vehicles. See T. 18 January 2005, pp. 66-69. Witness DY also did not “know the exact date on which those armoured cars were brought back”. He simply testified that the armoured vehicles “were brought back to the base”. See T. 14 December 2006, p. 39. 862 Indictment, para. 35. 17 May 2011 113/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.3.10 Sagahutu’s Shares in Radio Télévision Libre des Milles Collines 1.3.10.1 Introduction 476. The Indictment alleges that Innocent Sagahutu purchased a number of shares in RTLM when it was founded and that he blatantly encouraged the FAR to buy shares in RTLM, which advocated total war against the Tutsi.863 1.3.10.2 Evidence 1.3.10.2.1 Prosecution Evidence Prosecution Witness DA 477. Witness DA was a soldier in the RECCE Battalion in Kigali from 1991 to 1994.864 He testified that towards the end of 1993, Sagahutu called the soldiers of RECCE together and told them, “We are going to establish a radio station”.865 Sagahutu asked each of the soldiers to make a voluntary contribution of 5,000 francs to buy a share in RTLM. At least five people purchased a share in the radio station and paid 5,000 francs. The witness did not himself purchase a share in RTLM at that time. Sagahutu promised the witness that he would organise the purchase for him, but “matters soon evolved” and the witness did not know whether Sagahutu did in fact organise the purchase.866 478. Sagahutu told the soldiers whom he had convened that RTLM was going to add to what was being done by Radio Rwanda, which was providing insufficient information on the “situation” at the war front. The witness testified that Sagahutu “made people

understand that the radio station was going to be set up with the objective of fighting the enemy.”867 In cross- examination, when asked whether there were any indications that the station was intended to broadcast anti-Tutsi propaganda, Witness DA responded, “People were talking about it.”868 Prosecution Expert Witness Alison Des Forges 479. Witness Des Forges testified that RTLM was launched in April 1993 by a group of MRND and CDR loyalists because they feared losing control of the essential medium of the radio to hostile forces.869 The biggest shareholder was President Habyarimana himself, and other shareholders included members of the President’s family, leading military officers and leading persons of the MRND and CDR.870 480. The radio station began test broadcasts in mid-1993 and regular broadcasts several months later.871 According to Des Forges, RTLM disseminated increasingly virulent attacks on Tutsi, inciting violence against them.872 Des Forges testified: 863 Indictment, para. 36. 864 T. 11 January 2005, p. 28 (ICS). 865 T. 13 January 2005, pp. 23, 32; T. 25 January 2005, p. 57. 866 T. 13 January 2005, pp. 32-33. 867 T. 25 January 2005, p. 57. 868 T. 25 January 2005, p. 56. 869 Prosecution Exhibit 107, p. 10; T. 19 September 2006, p. 64. 870 T. 19 September 2006, p. 64. 871 Prosecution Exhibit 107, p. 10. 17 May 2011 114/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The association of enemy with Tutsi which entered the public domain as a result of the definition of the enemy document, was subsequently reinforced through the press, including nominally, independent organs of the press such as RTLM and Kangura, but organs which were permitted to continue sowing hatred and calling for the extermination of “enemy”.873 Other Prosecution Witnesses 481. Witness Dallaire testified that between April and June 1994, RTLM was inciting people to kill, rape, mutilate and “destroy” Tutsi.874 Prosecution Witness AOG testified that he listened to RTLM broadcasts during the three days preceding 9 April 1994 and that the broadcasts contained “messages of hatred and incitement … of the population to kill Tutsi. They encouraged the people to kill the Tutsi, the enemy. They did not have to hide it. They used the word ‘Tutsi’.”875 1.3.10.2.2 Defence Evidence The Accused Innocent Sagahutu 482. Sagahutu acknowledged that he bought four shares in RTLM in 1993, but he stated that the purchase was an ordinary investment made with the hope of making a profit.876 He denied having encouraged other people to buy shares in the company.877 When presented with a list of RTLM shareholders,878 Sagahutu stated that he did not see the names of any soldiers from his squadron.879 Other Defence Witnesses

483. Witness DE 8-14 was a shareholder in RTLM. He acknowledged that RTLM broadcast repulsive and virulent anti-Tutsi messages that encouraged acts of violence against Tutsi.880 Witness CSS was a soldier in RECCE in 1993 and 1994.881 He testified that he never saw Sagahutu campaign for soldiers to purchase shares of RTLM, nor did he hear about any such campaign.882 Another RECCE soldier, Witness Faustin Habimana,883 testified that some people did purchase shares in RTLM when it was first created, but to his knowledge Sagahutu never campaigned to encourage soldiers to purchase shares in the radio station.884 Witness UDS was also a soldier in RECCE during this period. He testified that he purchased one share in RTLM when it was first established after having heard an advertisement on Radio Rwanda,885 but he never heard of Sagahutu campaigning for soldiers to buy shares 872 Prosecution Exhibit 107, pp. 10-11. 873 T. 21 September 2006, p. 30. 874 T. 21 November 2006, p. 26 875 T. 21 February 2006, p. 46 (ICS). 876 T. 1 December 2008, p. 41. 877 T. 1 December 2008, p. 41. 878 Defence Exhibit 13. 879 T. 2 December 2008, p. 21. 880 T. 15 May 2007, pp. 23-24. 881 T. 23 October 2008, pp. 15-16 (ICS). 882 T. 23 October 2008, pp. 43-44. 883 T. 13 November 2008, p. 3. 884 T. 13 November 2008, p. 11. 885 T. 27 October 2008, p. 50 (ICS). 17 May 2011 115/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T from RTLM. The witness testified, “had [Sagahutu] done it I would have known because we were working together”.886 1.3.10.3 Deliberations 484. It is not disputed that Sagahutu purchased a number of shares in RTLM when it was first founded in 1993. The Prosecution alleges that Sagahutu also encouraged soldiers to buy shares in the new radio station. According to the evidence elicited from Prosecution witnesses, RTLM regularly broadcast anti-Tutsi messages which incited hatred towards the Tutsi “enemy”. The Chamber notes that the Prosecution seeks to utilise the evidence on Sagahutu’s acts of purchasing shares and encouraging soldiers to buy shares in RTLM to support its allegation that he was party to a conspiracy to commit genocide against Tutsi.

485. The Defence submits that the Tribunal should reject the charge in paragraph 36 of the Indictment as the facts related to this allegation fall outside the Tribunal’s temporal jurisdiction of 1 January to 31 December 1994.887 The Appeals Chamber has made it clear that the provisions of the Statute on the temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events prior to 1994, where such evidence is relevant and has probative value in terms of clarifying the context in which the crimes occurred, establishing by inference an accused’s criminal intent or showing a deliberate pattern of conduct.888 It is therefore possible for the Chamber to consider evidence of Sagahutu’s support for RTLM in 1993 as indicative of his participation in a conspiracy to commit genocide, despite the fact that his conduct is alleged to have occurred outside the period covered by the Tribunal’s temporal jurisdiction. Accordingly, the Chamber dismisses this submission by the Defence 486. Turning to the substance of the allegation, the Chamber notes that Sagahutu acknowledges that he bought four shares in RTLM in 1993, but he denies having encouraged soldiers to buy shares in the company.889 Prosecution Witness DA was the only witness to testify that Sagahutu encouraged soldiers to purchase RTLM shares when the radio station was established in 1993.890 Three Defence

Witnesses testified that, as far as they were aware, Sagahutu did not campaign for soldiers to purchase RTLM shares.891 487. Having considered the evidence tendered during trial, the Chamber is convinced that RTLM was aligned with extremist Hutu elements, a fact that is demonstrated by its role in the genocide of 1994. However, even if the Chamber accepts the evidence of Witness DA that Sagahutu campaigned for soldiers to purchase RTLM shares, the Chamber is not persuaded that Sagahutu’s act of buying RTLM shares and encouraging soldiers to do so is indicative of his participation in a conspiracy to commit genocide. The Chamber finds that apart from buying shares in RTLM, no evidence was adduced to suggest that Sagahutu, acting in concert with others, played a substantial role in the establishment of the radio station or took part in its operations or in the formulation of its policies. In the view of the Chamber, his purchase of shares and encouragement of others to purchase shares are not, without additional evidence, sufficient to establish his participation in a conspiracy to commit genocide. 886 T. 27 October 2008, p. 51 (ICS). 887 Sagahutu Closing Brief, paras. 160-161, 173. 888 Media Appeal Judgement, para. 315. 889 T. 1 December 2008, p. 41. 890 T. 13 January 2005, pp. 32-33. 891 T. 23 October 2008, pp. 43-44; T. 13 November 2008, p. 11; T. 27 October 2008, p. 51 (ICS). 17 May 2011 116/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.3.11 Ndindiliyimana’s Failure to Stop Radio Télévision Libre des Milles Collines Broadcasts 1.3.11.1 Introduction 488. The Indictment alleges that, although incitement to ethnic or racial hatred and violence against Tutsi were rife in the broadcasts of RTLM, Augustin Ndindiliyimana avoided investigating or ordering any judicial probe of the RTLM journalists who were inciting to ethnic or racial hatred and violence on a daily basis.892 1.3.11.2 Evidence 1.3.11.2.1 Prosecution Evidence Prosecution Witness Roméo Dallaire 489. Witness Dallaire testified that between April and June 1994, RTLM was inciting people to kill Tutsi.893 On a number of occasions, the witness as well as human rights representatives and others from outside the country questioned why the government had not stopped the radio station from broadcasting these messages. Dallaire discussed the RTLM broadcasts with Ndindiliyimana and other military leaders during that period. Their response was always that RTLM was a private radio station that was exercising its legitimate freedom of expression. Nonetheless, Ndindiliyimana told Dallaire that he would attempt to influence RTLM to stop the broadcasts but that his efforts were unlikely to be effective.894 Prosecution Expert Witness Alison Des Forges 490. Witness Des Forges testified that the

association of the enemy with Tutsi was reinforced through organs of the press, including RTLM, which were permitted to continue sowing hatred and calling for the extermination of the “enemy”.895 491. In cross-examination, Des Forges acknowledged that she wrote the following passage in one of her books: In April General Ndindiliyimana and Colonel Gatsinzi and Rusatira summoned Gaspard Gahigi of RTLM and Jean François Nsengiyumva of Radio Rwanda to the military school in Kigali. The officers supposedly told them that the radios must stop calling for violence against Tutsi and discrediting military officers opposed to the genocide.896 492. When asked whether Ndindiliyimana’s actions appear to be consistent with “someone who opposes any killings of Tutsi civilians and any plan to do so”, Des Forges replied, “Those actions in and of themselves do appear to be consistent with that, yes.” Des Forges emphasised, however, that April 1994 was “sadly … a time of very inconsistent actions on 892 Indictment, para. 37. 893 T. 21 November 2006, p. 26. 894 T. 21 November 2006, p. 26. 895 T. 21 September 2006, p. 30. 896 T. 11 October 2006, p. 60. 17 May 2011 117/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the part of many people, whereas some who were actively involved in the genocide also saved people's lives.”897 1.3.11.2.2 Defence Evidence The Accused Ndindiliyimana 493. Ndindiliyimana testified that the Chief of Staff of the Gendarmerie does not have the jurisdiction or authority to initiate investigations against journalists who are responsible for slanderous articles. Moreover, Ndindiliyimana was not aware of any provision that would have empowered him to compel the Prosecutor or the legal department to prosecute in such cases.898 Defence Witness Stanislas Harelimana 494. Witness Harelimana was Prosecutor of the Kigali Appeals Court in 1994.899 He testified about the jurisdiction and functioning of the Prosecutor’s office, the role and powers of judicial police officers and the overall authority of the Minister of Justice.

495. The witness explained that the role of the gendarmes, as judicial police officers, is to investigate crimes, gather evidence and arrest the perpetrators. The gendarmes have the authority to carry out these activities on their own initiative, without the authorisation of the state Prosecutor. For ordinary crimes, the gendarmes then dispatch the case files to the Prosecutor’s office. However, in relation to crimes against “state security”, such as inciting ethnic tensions within the country, the gendarmes are obliged to refer the case to the Ministry of Justice instead of the Prosecutor’s office.900 In cross-examination, the witness testified that he was not aware of any investigative report written by the Gendarmerie regarding the programmes that were broadcast on RTLM in 1994.901 496. According to the witness, it was not the role of the Gendarmerie to monitor private radio stations, since this was the responsibility of the Minister of Information.902 The witness testified: If any media were behaving in a manner that was contrary to the law on the media, then the Minister of Information would contact the Minister of Justice and point out that such and such an individual ought to be brought to book because they are engaged in activities that are contrary to the law. Yet the Minister of Information did not do anything.903 497. Ultimately, the decision to deal with the private

press “could only have been a decision from government taken by the Minister of Justice upon consultation with his colleagues.”904 897 T. 11 October 2006, p. 60. 898 T. 16 June 2008, p. 52. 899 T. 30 January 2008, p. 3. 900 T. 30 January 2008, pp. 6-10, 19-20; T. 31 January 2008, pp. 56-57. 901 T. 31 January 2008, pp. 61-62. 902 T. 31 January 2008, p. 68. 903 T. 30 January 2008, p. 39. 904 T. 30 January 2008, p. 38. 17 May 2011 118/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness Pascal Ndengejeho 498. Witness Ndengejeho was the Rwandan Minister of Information when RTLM was founded in 1993. He testified that it was the Minister of Information who had the jurisdiction to cancel the licence of a private radio station.905 The Gendarmerie did not have the power to arrest RTLM journalists or staff members without a written instruction from the Prosecutor’s office or the authorisation of the relevant departments in government.906 Defence Witness André Vincent 499. Witness Vincent testified that it was “entirely inconceivable” that the Chief of Staff of the Gendarmerie could have opposed, much less shut down, a radio station such as RTLM.907 1.3.11.3 Deliberations 500. It is clear that RTLM played a significant role in stoking ethnic tension before 6 April 1994 and in inciting genocide against Tutsi thereafter. The Prosecution alleges that Ndindiliyimana, the highest law enforcement officer in Rwanda, refused to investigate or order a judicial probe into the RTLM broadcasts.908 However, the Prosecution has presented little evidence to support the allegation that Ndindiliyimana avoided using his powers to investigate RTLM journalists or otherwise to stop RTLM from broadcasting anti-Tutsi messages.

501. The Defence disputes the Prosecution’s allegation and submits that Ndindiliyimana had no legal authority or jurisdiction to shut down the radio station or arrest its staff without a warrant from the Rwandan Prosecutor.909 According to the Defence, that authority lay with the Minister of Information and the Minister of Justice. The Chamber will now examine the evidence regarding Ndindiliyimana’s powers of investigation and the steps that he took to investigate or otherwise to stop the RTLM broadcasts in 1994.

502. Defence Witness Harelimana, who was the Prosecutor of the Kigali Appeals Court in 1994, testified that the gendarmes were responsible for investigating offences and that they could arrest individuals where there was sufficient evidence of the commission of a crime. Ultimately, however, the decision whether to initiate proceedings lay with the Prosecutor for ordinary crimes or with the Minister of Justice for crimes against “state security”.910 Based on this evidence, the Chamber is satisfied that Ndindiliyimana had some legal authority to investigate the RTLM journalists responsible for the anti-Tutsi broadcasts.

503. Having found that Ndindiliyimana had authority to investigate the conduct of the RTLM journalists, the Chamber will now determine whether he took any measures to alleviate the problems posed by RTLM to public order. The Defence submits that the evidence of Prosecution Expert Witness Des Forges indicates that Ndindiliyimana tried to intervene to encourage RTLM to tone down its broadcasts.911 In this regard, Des Forges 905 T. 29 October 2008, pp. 58-63. 906 T. 29 October 2008, pp. 61-63. 907 T. 10 June 2008, pp. 18-19. 908 Prosecution Closing Brief, para. 490; Indictment, para. 37. 909 Ndindiliyimana Closing Brief, paras. 25, 56. 910 T. 30 January 2008, pp. 6-10, 19-20; T. 31 January 2008, pp. 56-57. 911 Ndindiliyimana Closing Brief, paras. 25, 56. 17 May 2011 119/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T testified that Ndindiliyimana summoned Gaspard Gahigi, the editor-in-chief of RTLM, in April 1994 and told him that the station must stop calling for violence against Tutsi and discrediting military officers opposed to the genocide.912 General Dallaire testified that he discussed the anti-Tutsi RTLM broadcasts with Ndindiliyimana between April and June 1994. Ndindiliyimana told Dallaire that he would attempt to influence RTLM to stop the broadcasts but that his efforts were unlikely to be effective.913 504. In the view of the Chamber, the evidence of Witnesses Des Forges and Dallaire suggests that Ndindiliyimana did in fact try to use his personal persuasion to stop the RTLM broadcasts. While his personal intervention to dissuade journalists at RTLM from broadcasting hateful messages against Tutsi may not be tantamount to investigating them for their conduct, the Chamber is satisfied that in the context that prevailed in Rwanda at the time, Ndindiliyimana’s intervention evinced a genuine attempt on his part to prevent RTLM from issuing hateful broadcasts against Tutsi. The Chamber’s finding is buttressed by Des Forges’s response to a question from the Defence in cross-examination as to whether Ndindiliyimana’s actions in summoning the editor-in-chief of RTLM, Gaspard Gahigi, and telling him to desist

from hateful broadcasts appeared to be consistent with “someone who opposes any killings of Tutsi civilians and any plan to do so”.914 Des Forges replied, “Those actions in and of themselves do appear to be consistent with that, yes.”915 505. The Chamber considers that the Prosecution did not lead credible evidence to prove that Ndindiliyimana failed to take measures within his power to investigate or order a judicial probe into the anti-Tutsi broadcasts on RTLM. It follows that the Prosecution has not proved this charge beyond reasonable doubt. 1.4 Acts Associated with Genocide 1.4.1 The Killing of Prime Minister Agathe Uwilingiyimana and the Belgian Soldiers 1.4.1.1 Introduction 506. The Indictment alleges that on 7 April 1994 in Kigali, elements of the RECCE Battalion commanded by Nzuwonemeye and Sagahutu, in concert with elements of the Presidential Guard, killed Prime Minister Agathe Uwilingiyimana and the Belgian soldiers who had been assigned to escort her. The Prime Minister had intended to go to the radio station to address the nation in order to forewarn the various protagonists about engaging in excesses and to make an appeal for calm. It is alleged that those murders, and others, annihilated several obstacles that stood in the way of the genocide.916 507. The Chamber has found both Nzuwonemeye and Sagahutu guilty of murder as a crime against humanity, as well as

murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, for the killings of Prime Minister Agathe Uwilingiyimana and the Belgian soldiers. In its factual findings for murder as a crime against humanity, the Chamber set out in detail the evidence relevant to these crimes. Therefore, the Chamber does not deem it necessary to repeat that evidence in assessing the allegations 912 T. 11 October 2006, p. 60. 913 T. 21 November 2006, p. 26. 914 T. 11 October 2006, p. 60. 915 T. 11 October 2006, p. 60. 916 Indictment, para. 38. 17 May 2011 120/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T described in paragraphs 38 and 39 of the Indictment. At this point, the Chamber will only consider whether the two incidents are indicative of the involvement of Nzuwonemeye and Sagahutu in a conspiracy to commit genocide, as alleged in paragraph 38 of the Indictment. 1.4.1.2 Deliberations 508. The Chamber notes that the Prosecution alleges that Prime Minister Agathe Uwilingiyimana and the Belgian soldiers were killed in order to diminish resistance to the effectuation of a conspiracy to commit genocide against Tutsi conceived by the Accused and other Rwandan Hutu leaders listed in paragraph 22 of the Indictment. The Indictment further alleges that the involvement of Nzuwonemeye and Sagahutu and their subordinates in these killings is indicative of their involvement in a conspiracy to commit genocide. The Chamber will now consider whether the evidence tendered in this trial supports the inferences advanced by the Prosecution. 1.4.1.2.1 Killing of the Belgian Soldiers 509. In its factual findings for murder as a crime against humanity, the Chamber found that the killing of the Belgian soldiers took place in two phases. During the first phase, sick or disabled soldiers attacked the whole group of UNAMIR soldiers at Camp Kigali using a variety of crude instruments including canes, rifle butts and rocks. As

a result of this initial attack, at least six Belgian soldiers were killed while between two and four Belgian soldiers managed to retreat into the UNAMIR building along with five Ghanaian soldiers. During the second phase, the Ghanaians were allowed to leave while Rwandan soldiers began lobbing grenades and firing small arms onto the UNAMIR building in which the Belgians were sheltering. The Chamber found that many healthy and active Rwandan soldiers, including soldiers from the RECCE Battalion, were involved in the attack during this second phase.

510. Having considered the entirety of the evidence pertinent to the killing of the Belgian soldiers at Camp Kigali, the Chamber is not satisfied that those killings proceeded according to a preconceived plan. By their very nature, those murders appear to have been unplanned and disorganised. Furthermore, there is concordant evidence before the Chamber that the Belgian soldiers were attacked as a result of rumours that members of the Belgian detachment of UNAMIR were responsible for the downing of the President’s plane. This evidence further suggests that the attack was spontaneous rather than being part of a plan or design. The fact that the attack against the Belgian soldiers became more organised as it progressed, following the involvement of fit soldiers of the RECCE and other battalions based at Camp Kigali, does not undermine the Chamber’s finding that the killings were not committed pursuant to a preconceived plan.

511. The above analysis precludes a finding that Nzuwonemeye and Sagahutu were implicated in a conspiracy to commit genocide against Tutsi, notwithstanding their role in the killing of the Belgian soldiers at Camp Kigali on 7 April 1994. 1.4.1.2.2 Assassination of Prime Minister Agathe Uwilingiyimana 512. The Chamber has found that both Nzuwonemeye and Sagahutu ordered and aided and abetted the assassination of Prime Minister Uwilingiyimana in the morning of 7 April 1994. The Chamber recalls that Prosecution Witness Dallaire testified that Prime Minister Agathe Uwilingiyimana intended to give a radio address on 8 April 1994 in order to attempt to quell 17 May 2011 121/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the violence in Rwanda. The Chamber considers the evidence of Dallaire to be credible. The Prosecution submits that the assassination of the Prime Minister was part of a plan to remove obstacles to the genocide, since the Prime Minister’s impending speech calling for calm posed a risk to the broader plan to commit genocide against the Tutsi.

513. While the Chamber is satisfied that the Prosecution has adduced compelling evidence implicating the two Accused in the killing of Prime Minister Agathe Uwilingiyimana, the Chamber is not satisfied that the evidence supports the Prosecution’s allegation that their role in the killing of the Prime Minister is suggestive of their participation in a conspiracy to commit genocide against Tutsi.

514. Based on the evidence of Prosecution Witnesses AWC and DY, the Chamber is satisfied that at Bagosora’s request, Nzuwonemeye attended a meeting at Army Headquarters on the night of 6 to 7 April.917 In reaching this finding, the Chamber has considered the evidence adduced by the Defence suggesting that Nzuwonemeye did not attend this meeting and instead spent the night at Camp Kigali. The Chamber is not persuaded by this evidence in light of the firsthand accounts of Witnesses AWC and DY, who testified that Bagosora invited Nzuwonemeye to the meeting at Army Headquarters and that Nzuwonemeye did in fact leave Camp Kigali in order to attend that meeting.

515. The Chamber also accepts that Nzuwonemeye returned to Camp Kigali from the meeting at Army Headquarters between 4.00 and 5.00 a.m., and then held a short meeting with his squadron commanders in his office. The Chamber is satisfied that the Prosecution led compelling evidence suggesting that following that meeting, Nzuwonemeye ordered Sagahutu to send RECCE Battalion soldiers to reinforce the Presidential Guard soldiers who were at the residence of Prime Minister Agathe Uwilingiyimana.918 Sagahutu complied with this order and instructed two armoured vehicles to move from Radio Rwanda to the Prime Minister’s residence.

516. While the Chamber has heard evidence that at the meeting at Army Headquarters on the night of 6 to 7 April, Bagosora and other officers allied with him rejected Dallaire’s suggestions to allow the Prime Minister a role in the process of resolving the crisis that ensued from the death of President Habyarimana, there is no evidence that the attendees at the meeting resolved to kill the Prime Minister. That being the case, the Chamber is unable to conclude that Nzuwonemeye and Sagahutu’s instructions to deploy armoured vehicles in the immediate vicinity of the Prime Minister’s residence were issued pursuant to a decision taken during the meeting held at the Army Headquarters.

517. Having carefully reviewed the evidence presented during this trial, the Chamber considers that the evidence is open to other reasonable inferences that are not necessarily consistent with the allegation that the Prime Minister was killed pursuant to a conspiracy to commit genocide. The Chamber therefore finds that the Prosecution has failed to prove this allegation beyond reasonable doubt. 917 T. 18 January 2006, pp. 28-30; T. 23 January 2006, p. 36. 918 See the evidence of Witnesses AWC and ALN. 17 May 2011 122/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.2 Nzuwonemeye and the Events Preceding the Deaths of Prime Minister Agathe Uwilingiyimana and the Belgian Soldiers 1.4.2.1 Introduction 518. The Indictment alleges that shortly before the murders of the Belgian soldiers and Prime Minister Agathe Uwilingiyimana, Nzuwonemeye assembled his troops at Camp Kigali and informed them of the deaths of President Habyarimana and the Chief of Staff of the Rwandan Army, Nsabimana. It is alleged that in his address, Nzuwonemeye identified the enemy as the RPF, and called on his troops to eliminate all its accomplices within the country before taking on the enemy.919 1.4.2.2 Evidence 1.4.2.2.1 Prosecution Evidence Prosecution Witness AP 519. Witness AP was a member of the RECCE Battalion based at Camp Kigali. He testified that on 6 April 1994, he was in his quarters at the camp when he heard a bugle call and went to the meeting point of the RECCE Battalion within the camp a little after 10.00 p.m.920 The witness recalled that the assembled soldiers were addressed by Nzuwonemeye, who informed them that Inyenzi had shot down President Habyarimana’s plane. Nzuwonemeye further told the group to get their firearms and ammunition, to be in a state of readiness and to wait for further instructions from the authorities.921 Prosecution Witness DY 520. Witness DY was a

member of the RECCE Battalion in April 1994.922 He recalled that he was at Camp Kigali on the night of the President’s death. He testified that he heard an explosion and was subsequently instructed to assemble at the RECCE Battalion meeting point at the camp.923 Nzuwonemeye addressed the assembly, stating that the President’s plane had been shot down by Inyenzi.924 The witness testified that Nzuwonemeye left the assembly shortly after he was informed that someone was phoning him from the Army Headquarters.925 Prosecution Witness DA 521. Witness DA was a member of the RECCE Battalion in April 1994.926 He testified that shortly after the President’s plane crash, the Camp Kigali bugle sounded calling the soldiers to assembly. The witness estimated that there were approximately 300 to 350 RECCE Battalion soldiers present at the assembly, and that both Nzuwonemeye and Sagahutu were also present.927 Nzuwonemeye addressed the assembled troops and told them that the 919 Indictment, para. 39. 920 T. 7 September 2005, p. 75. 921 T. 7 September 2005, p. 75. 922 T. 23 January 2006, p. 28. 923 T. 23 January 2006, p. 35. 924 T. 23 January 2006, p. 35. 925 T. 23 January 2006, p. 36. 926 T. 11 January 2005, p. 29. 927 T. 11 January 2005, pp. 39-40. 17 May 2011 123/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T President’s plane had been shot down but that no one had specific details regarding that incident and that they should remain on stand by.928 Nzuwonemeye also stated that the Prime Minister would have to answer for this accident.929 Nzuwonemeye then requested that vehicles be brought out to block the roads leading to the Prime Minister’s residence.930 Prosecution Witness ANK 522. Witness ANK was a member of the RECCE Battalion in April 1994.931 He testified that on 6 April 1994, the Camp Kigali bugle sounded and the soldiers went to the RECCE assembly ground.932 He stated that there were around 250 soldiers present at the assembly and that both Nzuwonemeye and Sagahutu were also present.933 The witness recalled that Nzuwonemeye told the assembled soldiers that the President’s plane had been shot down by Tutsi and RPF soldiers based at the CND.934 He also told them not to leave the camp and that everyone should remain where they were and be ready to defend themselves.935 Nzuwonemeye then went back to his office and the soldiers dispersed.936 Prosecution Witness DCK 523. Witness DCK was a member of the Music Company in April 1994.937 He recalled that in the evening of 6 April, the Camp Kigali bugle sounded and the various units of the camp, including units of the RECCE Battalion, assembled at their

respective positions. The assembled soldiers were then informed of the President’s plane crash.938 Prosecution Witness HP 524. Witness HP was a member of the RECCE Battalion in April 1994.939 He testified that following the downing of the President’s plane, members of the RECCE Battalion gathered at their assembly point in their respective squadrons.940 The witness was in Squadron A and he recalled that his commander, Sagahutu, addressed the squadron and told them to be on a state of alert. Sagahutu then provided weapons from the weapons store.941 The witness recalled that Nzuwonemeye was in his office at the RECCE base.942 Prosecution Witness ALN 525. Witness ALN was a driver in the RECCE Battalion in April 1994.943 He testified that after the downing of the President’s plane, he picked up Nzuwonemeye from his home and 928 T. 11 January 2005, pp. 39-40. 929 T. 11 January 2005, p. 40. 930 T. 11 January 2005, p. 40. 931 T. 31 August 2005, p. 77 (ICS). 932 T. 1 September 2005, p. 2. 933 T. 1 September 2005, pp. 2-3. 934 T. 1 September 2005, p. 3. 935 T. 1 September 2005, p. 3. 936 T. 1 September 2005, p. 3. 937 T. 8 March 2005, p. 33. 938 T. 8 March 2005, pp. 55-56. 939 T. 9 May 2005, p. 11 (ICS). 940 T. 9 May 2005, p. 15. 941 T. 9 May 2005, pp. 15-16. 942 T. 9 May 2005, p. 16. 943 T. 29 September 2004, p. 39. 17 May 2011 124/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T took him to the RECCE building.944 The witness recalled that Nzuwonemeye ordered the squadron to be on standby. Nzuwonemeye then had a meeting with the commanders of the squadron, following which he attended a meeting at the Chief of Staff’s office.945 Prosecution Witness AWC 526. Witness AWC was a member of the RECCE Battalion in April 1994.946 He testified that following the news of the President’s plane crash, he went to Camp Kigali and rejoined the RECCE Battalion.947 Upon his arrival at Camp Kigali, the witness went to his office and Nzuwonemeye arrived shortly after. The witness stayed in the office while Nzuwonemeye went outside. The witness subsequently heard the phone ring and answered the call from Colonel Bagosora, who asked to speak to Nzuwonemeye regarding a meeting to be held at the General Staff.948 The witness then called Nzuwonemeye, who took the phone call.949 Following the call, Nzuwonemeye left the RECCE building and walked towards the General Staff office.950 1.4.2.2.2 Defence Evidence Defence Witness K4 527. Witness K4 was a member of the RECCE Battalion in April 1994.951 He testified that Prosecution Witness AWC was not in the RECCE office on 6 April 1994 but was on paternity leave, thus making it impossible for him to have known what took place.952 Defence Witness CSS 528.

Witness CSS was a member of the RECCE Battalion in April 1994. He testified that there was no assembly of RECCE Battalion soldiers at Camp Kigali on 6 April 1994 following the death of President Habyarimana.953 Defence Witness Faustin Habimana 529. Witness Habimana was a member of the RECCE Battalion in April 1994. He testified that there was no assembly of RECCE Battalion soldiers at Camp Kigali on 6 April 1994.954 944 T. 29 September 2004, p. 39. 945 T. 29 September 2004, p. 42. 946 T. 18 January 2006, p. 24 (ICS). 947 T. 18 January 2006, p. 28. 948 T. 18 January 2006, p. 29. 949 T. 18 January 2006, p. 29. 950 T. 18 January 2006, p. 30. 951 T. 30 June 2008, p. 4 (ICS). 952 T. 30 June 2008, p. 12. 953 T. 23 October 2008, p. 24. 954 T. 13 November 2008, p. 6. 17 May 2011 125/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.2.3 Deliberations 530. In assessing the allegation in paragraph 34 of the Indictment, the Chamber first considers whether the Prosecution has adduced sufficient evidence proving that Nzuwonemeye convened an assembly of RECCE Battalion soldiers at Camp Kigali in the evening of 6 April 1994. The Chamber will then consider whether the speech that he is alleged to have delivered to the assembled soldiers is indicative of Nzuwonemeye’s participation in a conspiracy to commit genocide against the Tutsi.

531. In support of this allegation, the Prosecution called a number of former RECCE Battalion soldiers who were based at Camp Kigali in April 1994. Prosecution Witnesses AP, DY, DA and ANK all testified that shortly after the death of President Habyarimana on 6 April 1994, RECCE Battalion soldiers were called to an assembly at Camp Kigali. Having carefully reviewed their evidence, the Chamber notes that it converges in important respects. Their evidence is also partially corroborated by Prosecution Witness DCK, who as a member of the Music Company did not assemble with RECCE, but saw members of the RECCE Battalion moving towards the RECCE assembly point.

532. The Chamber notes that the evidence of Witness HP differs from that of the above witnesses insofar as Witness HP testified that it was Sagahutu who addressed Squadron A at the assembly. However, a close examination of Witness HP’s testimony shows that his estimated time of the death of the President, and thus the assembly that followed, was around 3.00 or 4.00 a.m. This leads the Chamber to conclude that the witness was in fact referring to a different assembly later in the night of 6 to 7 April, and as such his evidence does not contradict the evidence of the other Prosecution witnesses. Based on the firsthand evidence of Prosecution Witnesses AP, DY, DA and ANK, the Chamber is satisfied beyond reasonable doubt that in the evening of 6 April, soldiers of the RECCE Battalion assembled outside RECCE base at Camp Kigali.

533. The Chamber notes that its finding above is not impaired by the evidence given by the Defence witnesses who denied that RECCE Battalion soldiers were convened to an assembly after the death of President Habyarimana in the evening of 6 April. The Chamber recalls that Defence Witness Habimana stated that he did not attend a general assembly and that such an assembly did not occur. The Chamber notes that the mere fact that the witness did not attend the assembly does not preclude the possibility that an assembly may have taken place. In addition, the Chamber notes that Defence Witness CSS did mention an alert being sounded and squadron leaders making announcements to RECCE Battalion soldiers similar to the evidence of Witness HP. This suggests that a second meeting may have taken place later that evening.955 534. Turning to Nzuwonemeye’s speech at the assembly, the Chamber notes that Prosecution Witnesses AP, DY, DA and ANK all testified that Nzuwonemeye made a short speech to RECCE Battalion soldiers during the assembly in question. The Chamber observes that the content of the speech as recalled by these witnesses is similar in many aspects, namely the news that the President’s plane had been shot down and the reference to Inyenzi (according to Witnesses AP and DY) or “Tutsi” (according to Witness ANK). However, no witness recalled Nzuwonemeye “calling on his troops to eliminate all [the RPF’s] accomplices within the country before taking on the enemy” as alleged in paragraph 39 of the 955 T. 23 October 2008, pp. 23-24. 17 May 2011 126/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Indictment. In fact, Witnesses AP, DA and ANK all recalled Nzuwonemeye telling the assembled troops to wait for further information, while Witness DY did not recall any further instructions.

535. Having found that Nzuwonemeye did not in fact call for the elimination of all accomplices within the country, the Chamber is unable to conclude that his speech is indicative of a conspiracy to commit genocide. In the Chamber’s view, the first two elements of Nzuwonemeye’s speech, namely the news of the plane crash and the fact that Nzuwonemeye blamed the RPF/Inyenzi for the accident, are not indicative of a conspiracy to commit genocide. Nzuwonemeye’s use of the term Inyenzi during his speech appears to refer principally to the RPF troops. It follows that the Prosecution has not proved this allegation against Nzuwonemeye beyond reasonable doubt. 1.4.3 Protais Mpiranya and the Assassination of Rwandan Politicians Between 7 and 11 April 1994 536. The Indictment alleges that between 7 and 11 April 1994, elements of the Presidential Guard, commanded by Protais Mpiranya, assassinated many Rwandan political figures including Boniface Ngulinzira, the Minister of Foreign Affairs of the outgoing government.956 537. The Chamber notes that it has considered the alleged assassination of Boniface Ngulinzira in relation to the allegations against Ndindiliyimana in paragraph 48 of the Indictment. Paragraph 40 of the Indictment does not allege the involvement of Bizimungu, Nzuwonemeye and Sagahutu in the killing of Boniface Ngulinzira as part of a conspiracy to commit genocide against

Tutsi. Rather, the allegation focuses entirely on the role of the subordinates of Major Protais Mpiranya, the commander of the Presidential Guard in April 1994, who is not an accused in this case. Therefore, the Chamber will not consider this allegation in relation to Bizimungu, Nzuwonemeye and Sagahutu. 1.4.4 Distribution of Weapons to Militia in April and May 1994 1.4.4.1 Introduction 538. The Indictment alleges that in April and May 1994 in Kigali, Innocent Sagahutu and Protais Mpiranya distributed weapons on several occasions to “fanaticised militiamen”, whose criminal activities were well known to them, while asking them “to persevere in the undertaking to exterminate the Rwanda Tutsi.”957 1.4.4.2 Evidence 1.4.4.2.1 Prosecution Evidence Prosecution Witness DA 539. Witness DA, a soldier of the RECCE Battalion in April 1994, testified that he was a member of Sagahutu’s escort and acted as a driver and as a messenger in Sagahutu’s 956 Indictment, para. 40. 957 Indictment, para. 41. 17 May 2011 127/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T office.958 He stated that on 7 April 1994, while at Camp Kigali, he was ordered by Sagahutu to load 25 guns into the latter’s vehicle.959 540. After doing so, Witness DA left the camp with Sagahutu in his vehicle. They drove to the Gitega area, where they were stopped at a roadblock located “[a]t the crossroads of the road from Nyamirambo and the road coming down from the hospital, CHK, Centre Hospitalier de Kigali”.960 The roadblock was manned by several soldiers, some gendarmes and a number of Interahamwe and civilians. Witness DA noted that a number of Tutsi had been stopped at the roadblock and that around 20 dead bodies of men, women and children lay on the ground nearby.961 According to the witness, Sagahutu gave the leaders of the Interahamwe at the roadblock some of the weapons that he had earlier loaded into his vehicle. The witness further testified that Sagahutu told those manning the roadblock that if they “needed anything whatsoever, they should speak to him.”962 541. Witness DA and Sagahutu then drove towards Nyamirambo. On their way, they stopped at a roadblock located near ONATRACOM, the public transport company. The witness saw soldiers, gendarmes and Interahamwe at the roadblock, and a number of dead bodies lying nearby. The witness assumed that these were the bodies of Tutsi because

it was Tutsi who were being stopped at the roadblock.963 According to the witness, Sagahutu gave those manning the roadblock five or six rifles and asked them to “give him an account of the situation at those roadblocks and to tell him how they were doing their work.” The witness explained that in asking the people at the roadblock to account for their “work”, he understood Sagahutu to be asking about their role in “hunting down Tutsis.”964 542. From the roadblock at ONATRACOM, they proceeded towards Nyamirambo and stopped at a number of smaller roadblocks, including one that was located near the Nyamirambo Mosque. At each of these roadblocks, Sagahutu distributed no more than two rifles.965 543. They then proceeded to Nyabugogo and stopped at another roadblock located near a building known as Chez Kabuga, which was owned by a prominent businessman in Kigali named Félicien Kabuga. This roadblock was manned by soldiers, gendarmes and Interahamwe. The witness observed about 50 to 60 dead bodies lying near the roadblock. He surmised that they were the bodies of Tutsi, given that members of that ethnic group “were the ones who were targeted by the killings at the time.”966 Sagahutu gave those manning the roadblock the remaining arms in his possession.967 915 T. 11 January 2005, p. 29 (ICS). 959 T. 12 January 2005, pp. 9-10. 960 T. 12 January 2005, p. 10. 961 T. 12 January 2005, pp. 11-12. 962 T. 12 January 2005, p. 13. 963 T. 12 January 2005, p. 14. 964 T. 12 January 2005, p. 15. 965 T. 12 January 2005, p. 16. 966 T. 12 January 2005, p. 16. 967 T. 12 January 2005, pp. 16-17. 17 May 2011 128/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.4.2.2 Defence Evidence The Accused Nzuwonemeye 544. Nzuwonemeye testified that it would not have been possible for Sagahutu to acquire weapons and distribute them to Interahamwe since he did not have access to the RECCE Battalion’s armoury. Nzuwonemeye stated that only he and his junior officer had access to the armoury.968 He further testified that from 6 April until the time that he left the country in July 1994, he monitored the situation with respect to the weaponry and that no weapons went missing from the armoury.969 Defence Witness CSS 545. Witness CSS worked as a messenger in Sagahutu’s office.970 He testified that there were no weapons stored in Sagahutu’s office.971 546. He further testified that he supervised Prosecution Witness DA, who also worked as a messenger in Sagahutu’s office.972 Witness CSS stated that Witness DA did not accompany Sagahutu out of Camp Kigali on 7 April 1994.973 Witness CSS also disputed Witness DA’s claim that he drove Sagahutu because Witness DA only possessed a class B driving license and therefore was not permitted to drive military vehicles.974 The Accused Sagahutu 547. Sagahutu testified that weapons belonging to the RECCE Battalion were all kept in the battalion’s armoury, which was under the responsibility of the commander of the battalion. Therefore,

Sagahutu stated that he would not have been able to obtain any weapons in order to distribute them to Interahamwe.975 548. Sagahutu contested Witness DA’s claim that he accompanied him during a trip around Kigali town on 7 April 1994. According to Sagahutu, Witness DA did not leave Camp Kigali at any point on that day.976 Furthermore, Sagahutu denied seeing any roadblocks in Kigali prior to 9 April 1994.977 Defence Witness Claudien Ndagijimana 549. Witness Ndagijimana was an officer of the Gendarmerie based at Camp Kacyiru.978 He was attached to the security battalion responsible for providing security to high profile politicians.979 Ndagijimana testified that in the morning of 7 April 1994, he was ordered by 968 T. 7 October 2008, p. 29. 969 T. 7 October 2008, p. 29. 970 T. 23 October 2008, pp. 17-18 (ICS). 971 T. 23 October 2008, p. 41. 972 T. 23 October 2008, p. 18 (ICS); T. 23 October 2008, p. 20. 973 T. 23 October 2008, p. 35. 974 T. 23 October 2008, pp. 39, 55. 975 T. 2 December 2008, p. 21. 976 T. 2 December 2008, p. 16. 977 T. 2 December 2008, p. 20. 978 T. 5 June 2008, p. 3. 979 T. 5 June 2008, p. 3. 17 May 2011 129/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Lieutenant Colonel Bavugamenshi, the commander of the security battalion who had learned of the killings of a number of politicians in Kigali, to visit the residences of those politicians in order to determine their situation and that of the gendarmes who were posted at their residences to protect them.980 The witness testified that in the course of this mission, which started at 8.30 a.m. and ended at 10.30 a.m.,981 he passed through the areas where Prosecution Witness DA claimed to have seen roadblocks on 7 April. These areas were Gitega (at the crossroads between the Nyamirambo road and the road leading to CHK), ONATRACOM, the Nyamirambo Mosque and Chez Kabuga in Nyabugogo. The witness testified that contrary to Witness DA’s claims, there were no roadblocks in these areas.982 550. Later that morning, the witness went on another patrol, leaving Camp Kacyiru at 11.00 a.m. and returning at around 1.00 or 1.20 p.m.983 In the course of this patrol, the witness passed a location referred to as Yamaha, which is 1 to 1.5 kilometres from Chez Kabuga. Once again, the witness did not see anything unusual on the road leading to Chez Kabuga.984 He testified that he saw the first roadblocks in Kigali on 9 April 1994.985 Defence Witness KHS 551. Witness KHS was a gendarme attached to the road safety unit of the

Gendarmerie.986 On 7 April 1994, he was ordered to conduct a patrol around Camp Muhima, leaving between 10.00 and 11.00 a.m., and returning around 1.00 p.m.987 In the course of this patrol, the witness passed through the Nyabugogo area (including Chez Kabuga),988 ONATRACOM, Gitega and the Nyarugenge market area.989 The witness testified that he did not observe any roadblocks in these areas manned by both military personnel and civilians.990 Defence Witness CPB63/UNS 552. Witness CPB63/UNS was an officer of the Gendarmerie in April 1994.991 He testified that on 7 April 1994, while travelling from Butare to Kigali, he passed through the road near Chez Kabuga in Nyabugogo between the hours of 4.00 and 5.00 p.m. He did not see anything unusual at Chez Kabuga, nor did he not see any roadblocks there.992 Defence Witness CBJS 553. Witness CBJS was a shop manager who lived approximately 100 metres from Chez Kabuga. He testified that he did not see any roadblock at Chez Kabuga on 7 or 8 April. It was only on 9 or 10 April that roadblocks were established in the area near Chez Kabuga.993 980 T. 5 June 2008, p. 10. 981 T. 5 June 2008, p. 35. 982 T. 5 June 2008, pp. 33, 35, 39. 983 T. 5 June 2008, p. 38. 984 T. 5 June 2008, p. 39. 985 T. 5 June 2008, p. 40. 986 T. 27 October 2008, p. 3 (ICS). 987 T. 27 October 2008, p. 10. 988 T. 27 October 2008, p. 11. 989 T. 27 October 2008, p. 10. 990 T. 27 October 2008, pp. 12-13. 991 T. 23 January 2008, p. 41 (ICS). 992 T. 24 January 2008, pp. 5-7 (ICS). 993 T. 3 November 2008, pp. 6-7. 17 May 2011 130/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.4.3 Deliberations 554. Having reviewed the evidence of Witness DA, the Chamber is satisfied that the witness gave a credible and consistent account that on 7 April 1994, Sagahutu distributed weapons to Interahamwe who were stationed at various roadblocks in Kigali. In reaching this finding, the Chamber has carefully weighed the evidence elicited from Defence witnesses seeking to impugn the credibility of Witness DA’s testimony.

555. The Chamber recalls that Nzuwonemeye and Sagahutu both testified that the latter could not have acquired weapons to distribute to Interahamwe because he had no access to the armoury of the RECCE Battalion. They both testified that only Nzuwonemeye, in his capacity as the commander of the RECCE battalion, and another officer had access to the armoury.994 Furthermore, Witness CSS, a messenger in Sagahutu’s office, denied that there were any weapons stored in Sagahutu’s office.995 For these reasons, Sagahutu could not have distributed weapons to Interahamwe as alleged by Witness DA.

556. Having considered the above evidence, the Chamber finds it difficult to accept that Sagahutu, the commander of Squadron A of the RECCE battalion, would not have had access to the battalion’s armoury or would have had difficulties acquiring 25 rifles at a time when the Rwandan Armed Forces were in a high state of alert following the death of President Habyarimana on 6 April 1994.

557. Furthermore, the claim that Sagahutu had no access to the RECCE battalion’s armoury is difficult to accept in light of the pertinent evidence of Defence Witness Mathieu Setabaruka, a member of the Rwandan Army printing press unit based at Camp Kigali. He testified that following the downing of the President’s plane, weapons stores were opened and soldiers of his unit collected weapons from those stores.996 While the Chamber acknowledges that the witness’s testimony refers to the specific conduct of soldiers within his unit in Camp Kigali, it considers his evidence to be illustrative of the situation that existed at the camp following the death of the President.

558. For these reasons, the Chamber is not persuaded that an officer of Sagahutu’s rank and responsibility within the RECCE Battalion would not have had access to the armoury of that battalion or would have found it impossible to acquire 25 rifles on 7 April.

559. With respect to the claim by Witness CSS, a messenger in Sagahutu’s office, that the latter had no weapons stored in his office,997 the Chamber is not satisfied that his evidence is compelling enough to lead the Chamber to discard the concordant and credible evidence of Witnesses DA and AWC, who both testified that Sagahutu had weapons in his office on 7 April. The Chamber therefore rejects Witness CSS’s claim to the contrary.

560. The Chamber has also considered the evidence of Witness CSS that Witness DA could not have driven Sagahutu because he only possessed a class B driving licence and therefore was not permitted to drive military vehicles.998 Witness CSS further testified that 994 T. 2 December 2008, p. 21; T. 7 October 2008, p. 29. 995 T. 23 October 2008, p. 41. 996 T. 10 July 2008, p. 50; T. 11 July 2008, pp. 8-9. 997 T. 23 October 2008, p. 41. 998 T. 23 October 2008, pp. 39, 55. 17 May 2011 131/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness DA did not accompany Sagahutu outside Camp Kigali on 7 April.999 This claim is also supported by the testimony of Sagahutu.1000 The Chamber notes that the question of whether Witness DA could drive Sagahutu does not have a significant bearing on the veracity of his evidence regarding the conduct of Sagahutu at the roadblocks in Kigali on 7 April. While Witness DA claimed to have had driving functions in the office of Sagahutu, his evidence contains no suggestion that he drove Sagahutu as he toured roadblocks manned by Interahamwe in various areas of Kigali on 7 April. Witness CSS’s evidence does not therefore undermine Witness DA’s evidence.

561. The Defence for Sagahutu claims that Witness DA’s testimony is difficult to accept in light of the evidence of Prosecution Witnesses ALN, Major Nzuwonemeye’s driver, and HP, a driver for Sagahutu.1001 Witness ALN testified that he personally saw Sagahutu in his office at Camp Kigali at 2.30 p.m. on 7 April.1002 Witness HP testified that he spent a large amount of time in Camp Kigali with Sagahutu on 7 April, but did not rule out the possibility that Sagahutu might have left the camp at some point.1003 The Chamber is not convinced that the fact that Witness ALN may have seen Sagahutu at the camp at 2.30 p.m. on 7 April is sufficient to negate the evidence of Witness DA that he travelled with Sagahutu on that day. The Chamber further recalls that Witness HP, who claimed to have spent a great deal of time with Sagahutu at Camp Kigali on 7 April, did not rule out the possibility that Sagahutu may have left the camp at some point on that day. The Chamber therefore finds that Witness DA’s evidence is not impugned by the limited evidence of Witness ALN regarding Sagahutu’s presence at the camp on 7 April.

562. The Chamber also recalls that the Defence referred to the evidence of a number of witnesses who disputed Witness DA’s testimony regarding the existence of roadblocks in Kigali on 7 April. Defence Witnesses Ndagijimana and KHS testified that on 7 April, they passed through the areas where Witness DA claimed to have seen roadblocks but did not observe any roadblocks there.1004 The Defence also referred to the evidence of Witnesses CPB63/UNS and CBJS, who claimed to have separately passed by the building known as Chez Kabuga in Nyabugogo on 7 April but did not see any roadblock there.1005 Witnesses Ndagijimana, CBJS and Sagahutu gave evidence that no roadblocks were established in Kigali prior to 9 April 1994.1006 563. The Chamber is not satisfied that the evidence canvassed above raises doubts about the credibility of Witness DA’s account. Contrary to the claims of these witnesses that roadblocks were not established in Kigali until 9 April, the Chamber accepts that roadblocks were established in various parts of Kigali in the immediate aftermath of the death of President Habyarimana on 6 April. The Chamber refers to the credible evidence of Witness Dallaire, the force commander of UNAMIR, who testified that roadblocks were erected in various parts of Kigali on 7 April.1007 The Chamber also recalls the evidence of Defence Witness Marchal, the UNAMIR sector commander for

Kigali, that he observed a number of 999 T. 23 October 2008, p. 35. 1000 T. 2 December 2008, p. 16. 1001 T. 9 May 2005, pp. 12, 34-35. 1002 T. 29 September 2004, p. 52. 1003 T. 9 May 2005, p. 35. 1004 T. 5 June 2008, p. 64; T. 27 October 2008, pp. 3-4. 1005 T. 25 January 2008, pp. 5-7; T. 3 November 2008, pp. 6-7. 1006 T. 2 December 2008, p. 20; T. 5 June 2008, p. 40; T. 3 November 2008, pp. 6-7. 1007 T. 20 November 2006, p. 54; T. 22 November 2006, p. 21. 17 May 2011 132/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T roadblocks in Kigali on the night of 6 April. Marchal added that there were so many roadblocks that it took him one hour to complete what was normally a 15 minute journey by car on the night of 6 April.1008 He also testified to the existence of a number of roadblocks in Kigali on 7 April.1009 The Chamber accepts the credible and concordant evidence of Dallaire and Marchal regarding the establishment of roadblocks in Kigali on 7 April. In light of this cogent evidence, the Chamber refrains from imparting any weight to the Defence evidence that there were no roadblocks in the areas where Witness DA claimed to have seen them.

564. The Chamber therefore finds, based on the firsthand and credible evidence of Witness DA, that Sagahutu distributed weapons to Interahamwe who manned various roadblocks in Kigali on 7 April 1994 and that he made utterances to the militia encouraging them to persist in the killings of Tutsi. The Chamber notes, however, that the Prosecution did not present additional evidence to prove that Sagahutu distributed weapons to militia located at various roadblocks in Kigali throughout the months of April and May 1994, as alleged in paragraph 41 of the Indictment.

565. Having found that Sagahutu distributed weapons to Interahamwe on 7 April, the Chamber will now determine whether this finding supports the inference that Sagahutu was involved in a conspiracy to commit genocide against Tutsi. The Chamber accepts that Sagahutu’s role in the roadblocks in Kigali on 7 April as described in the evidence of Witness DA could plausibly be construed as being supportive of the crimes committed by Interahamwe against Tutsi civilians at those roadblocks. However, there is no evidence suggesting that Sagahutu’s conduct at the roadblocks was undertaken pursuant to a conspiracy between him and others to commit genocide against Tutsi. The evidence does not exclude the reasonable possibility that Sagahutu may have been acting independently of a preconceived agreement with others to perpetrate genocide against Tutsi. It follows that the Prosecution has not proved this allegation beyond reasonable doubt. 1.4.5 President Sindikubwabo’s Speech in Butare on 19 April 1994 and Prime Minister Kambanda’s Praise of RTLM 1.4.5.1 Introduction 566. The Indictment alleges that on or about 19 April 1994, interim President Théodore Sindikubwabo gave a speech in Butare advocating “nothing less than ethnic cleansing”, which then led to the killing of Tutsi in Butare by members of the Presidential Guard.1010 The Indictment also alleges that “on or about 21 April 1994, the

Prime Minister of the interim Government, Jean Kambanda, praised RTLM, knowing full well that that radio station was calling for the extermination of the Tutsi and their supposed accomplices.” Specifically, the Indictment alleges that Kambanda described RTLM as the “arme indispensable pour combattre l’ennemi [indispensable weapon for fighting the enemy]”.1011 1008 T. 17 January 2008, pp. 43-44. 1009 T. 21 January 2008, pp. 53, 62, 64. 1010 Indictment, para. 42. 1011 Indictment, para. 43. 17 May 2011 133/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 567. The Indictment further alleges that “Augustin Ndindiliyimana and Augustin Bizimungu were not uninvolved in this” and that the two Accused are criminally responsible pursuant to Article 6(1) of the Statute.1012 1.4.5.2 Evidence Prosecution Witness AOG 568. Witness AOG testified that on 19 April 1994, he attended the swearing-in ceremony of Sylvain Nsabimana as the préfet of Butare. The witness explained that the swearing-in ceremony took place at the former headquarters of the MRND in Butare and that he was outside that building as the ceremony was taking place. There were loudspeakers outside and therefore the witness could hear the speeches that were given during the ceremony.1013 569. According to the witness, Prime Minister Kambanda and President Sindikubwabo attended the ceremony. The witness testified that he heard President Sindikubwabo say during the ceremony, “[P]eople of Butare ... the war is everywhere in Rwanda and … only the préfecture of Butare … has yet not been affected.”1014 Sindikubwabo also stated that there was a “serious situation” for people of Butare who felt that the war did not have anything to do with them, and that those people “should allow those who want to work room to be able to do their job.”1015 The witness understood the reference to the word “work” in

Sindikubwabo’s speech to mean attacking Tutsi who were considered to be enemies.1016 570. The witness testified that prior to 19 April,1017 there had been no killings of Tutsi in Butare. However, widespread attacks and killings of Tutsi took place in Butare following President Sindikubwabo’s speech at the swearing-in ceremony of the newly appointed préfet.1018 571. On the night of 19 April, soldiers attacked the witness in the home of his cousin and informed him they had just killed the Queen Mother, a Tutsi, who lived in Butare.1019 On 20 April, the witness went to Cyanga commune where the bourgmestre of that commune held a meeting and informed the gathering that he had received orders from the “authorities” to kill all Tutsi in their respective secteurs and communes.1020 Thereafter, the people who attended that meeting killed Tutsi. The witness testified that these killings took place around 26 April.1021 572. During cross-examination, the Defence disputed the evidence of Witness AOG that by telling his audience to “work”, President Sindikubwabo called on Hutu residents of Butare to start killing Tutsi. In support of this submission, the Defence referred to Sindikubwabo’s own explanation of what he meant by the term “gukora” translated as “work.” According to the Defence, Sindikubwabo allegedly stated, “I gave no orders to the effect that there should be 1012 Indictment, para. 44. 1013 T. 22 February 2006, p. 11 (ICS). 1014 T. 22 February 2006, p. 11 (ICS). 1015 T. 22 February 2006, pp. 11-12 (ICS). 1016 T. 22 February 2006, pp. 11-12 (ICS). 1017 T. 22 February 2006, pp. 7-8 (ICS). 1018 T. 22 February 2006, pp. 16, 30 (ICS). 1019 T. 22 February 2006, p. 16 (ICS). 1020 T. 22 February 2006, pp. 17-18 (ICS). 1021 T. 22 February 2006, p. 18 (ICS). 17 May 2011 134/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T confrontations between members of the population. Quite on the contrary, I instead ordered the people to go about their usual activities. That is what gukora means. Do your work, go about your usual activities and do not engage in confrontations.”1022 573. In addition to disputing the meaning that Prosecution witnesses imparted to Sindikubwabo’s speech, the Defence put it to Witness AOG that the killings in Butare were not precipitated by Sindikubwabo’s speech but were triggered by RPF attacks in the area and provocations by Tutsi in Butare.1023 The witness responded that the killings could not have been caused by the RPF attack in Butare because the RPF was not yet in Butare on 19 April.1024 Prosecution Witness Alison Des Forges 574. Witness Des Forges testified that up until 16 April 1994, killing of Tutsi in Butare was “very limited.”1025 She explained that on 19 April, President Sindikubwabo gave an “extremely well-known speech” at an event marking the removal of the préfet of Butare who had resisted killing of Tutsi.1026 During the speech, Sindikubwabo scolded the people of Butare for not being concerned with the war that was going on in other parts of Rwanda and the threat that it posed to them.1027 Specifically, Sindikubwabo stated, “You must understand that it’s time to get to work; that those

of you who do not understand, those of you who are not with us are against us, and you will suffer the consequences.”1028 Des Forges also testified that Sindikubwabo said in his speech, “[Y]ou people of Butare maybe do not understand because the war is far from here.”1029 Excerpts of this speech were also broadcast on the radio.1030 575. In Des Forges’s expert opinion, “[T]he message [of the speech] was clear”. Killings of Tutsi began in Butare the following day, whereas “until that time, killing had been limited.”1031 The witness made reference to several attacks against Tutsi that took place soon after Sindikubwabo’s speech. The killings were perpetrated by soldiers, gendarmes and members of the militia.1032 The witness testified that the soldiers first killed the Queen Mother and then “went through the town of Butare neighbourhood by neighbourhood, barriers were set up, patrols were set up.”1033 The killings took place throughout Butare préfecture, particularly in the hospitals, orphanages and schools.1034 1022 T. 28 February 2006, p. 18 (ICS). 1023 T. 28 February 2006, p. 18 (ICS). 1024 T. 28 February 2006, p. 18 (ICS). 1025 T. 20 September 2006, p. 58. 1026 T. 20 September 2006, p. 70. 1027 Defence Exhibit 174; T. 27 September 2006, pp. 29-30; T. 10 Oct. 2006, pp. 47, 50. 1028 T. 20 September 2006, p. 70. 1029 T. 20 September 2006, p. 71. 1030 T. 20 September 2006, p. 70. 1031 T. 20 September 2006, p. 70. 1032 T. 20 September 2006, p. 70. 1033 T. 20 September 2006, p. 71. 1034 T. 20 September 2006, p. 71. 17 May 2011 135/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GFS 576. Witness GFS testified that he heard from unidentified people that President Sindikubwabo gave a speech in Butare in which he chastised the Hutu population for not taking part in the killings of Tutsi and urged them to start doing so immediately.1035 The witness later heard Sindikubwabo’s speech over the radio.1036 The witness also testified that Sindikubwabo stated during his speech that the Hutu in Butare had allowed themselves to be seen as indifferent to the fighting going on in the rest of the country.1037 577. Witness GFS testified that there were no killings of Tutsi in Butare prior to 21 April 1994.1038 Thereafter, killings of Tutsi began in Butare, especially at Kansi Parish, an unnamed school, the commune offices in Nyaruhengeri secteur and the commune office at Kibilizi.1039 Prosecution Witness ZG 578. Witness ZG, a university lecturer,1040 testified that he heard the speech given by President Sindikubwabo in Butare over the radio on 19 April 1994.1041 In his speech, Sindikubwabo reproached the listeners for their indifference to the war in Kigali, and asked the population to go to “work”.1042 The witness testified that he understood the term “work” to be a call addressed to Hutu to kill Tutsi and to destroy property such as banana plantations and cattle belonging

to them.1043 The witness explained that the term “to work” or “travailler” was also used by members of Parti du Mouvement de l'Emancipation Hutu (“PARMEHUTU”) in 1961 to refer to the killing of Tutsi and the destruction of their property.1044 579. On 20 April, the witness heard from unidentified sources that soldiers had established roadblocks in front of the Hotel Faucon and the Hotel Ibis and that the soldiers were asking for identification from passers-by.1045 The witness learned from individuals returning from town that Hutu were allowed to pass through those roadblocks whereas Tutsi were arrested and shot, including the wife of one of the witness’s neighbours.1046 580. The witness testified that around 5.00 a.m. in the morning of 21 April, he was awoken by gunshots interspersed with grenade explosions.1047 Thereafter, the witness departed in the direction of the secteur office. He observed approximately 10 members of the Presidential 1035 T. 27 September 2004, p. 16. 1036 T. 27 September 2004, p. 17; T. 28 September 2004, pp. 28-29. 1037 T. 27 September 2004, p. 17; T. 28 September 2004, pp. 28-29. 1038 T. 27 September 2004, p. 16. 1039 T. 27 September 2004, p. 23. 1040 Prosecution Exhibit 98; T. 1 June 2006, p. 4 (ICS). 1041 T. 1 June 2006, pp. 12-13. 1042 T. 1 June 2006, p. 15. 1043 T. 1 June 2006, p. 27. 1044 T. 1 June 2006, p. 26; T. 8 June 2006, p. 36. 1045 T. 1 June 2006, p. 35. 1046 T. 1 June 2006, pp. 35-36. 1047 T. 1 June 2006, p. 38. 17 May 2011 136/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Guard dressed in military clothing, and heard people saying, “The GP is arriving, the GP is arriving”, meaning that the Presidential Guard was arriving.1048 581. The witness testified that the shooting continued until he fled with his family at 11.00 a.m.1049 Before fleeing, the witness heard that three of his Tutsi neighbours had been killed by members of the Presidential Guard.1050 The witness returned to Tumba secteur on 23 April, where he encountered a Presidential Guard who pointed a gun at him and asked, “How come there’s still a Tutsi here?”, referring to the witness’s wife who was Tutsi.1051 The witness’s neighbour was able to get the soldiers to leave without harming the witness’s wife by bribing them.1052 1.4.5.3 Deliberations 582. Based on the evidence of Witnesses AOG, GFS, ZG and Des Forges, the Chamber is satisfied that the President of the interim government, Sindikubwabo, gave a speech during the swearing-in ceremony of the préfet of Butare on 19 April 1994.1053 583. The Chamber notes that while the Defence does not contest the fact that Sindikubwabo gave the speech as alleged in the Indictment, it disputes the meaning and effect that the Prosecution witnesses sought to impart to that speech.1054 In particular, the Defence submits that the reference to the word “work” in President

Sindikubwabo’s speech was not meant to incite Hutu residents of Butare to kill Tutsi. In support of its contention regarding the import of the term “work” in Sindikubwabo’s speech, the Defence referred to Sindikubwabo’s subsequent explanation of the meaning of that term. According to the Defence, Sindikubwabo explained that when he used the word “work” in his speech, he only meant that the people should “go about [their] usual activities and ... not engage in confrontations.”1055 In addition, the Defence contested the submission that Sindikubwabo’s speech precipitated the killings of Tutsi in Butare. Instead, the Defence suggested that the killings in Butare were caused by RPF attacks and provocations by Tutsi in the area.1056 584. In evaluating the meaning of the term “work” in Sindikubwabo’s speech, the Chamber has placed particular weight on the account given by Prosecution witnesses of how they understood the meaning of the term at the time. Witness AOG gave evidence that he understood the reference to the term “work” in Sindikubwabo’s speech to mean attacking Tutsi, who were considered to be enemies.1057 Similarly, Witness ZG, a university lecturer, testified that the term “work” in Sindikubwabo’s speech was a call addressed to Hutu to destroy property belonging to Tutsi and to kill them.1058 The witness explained that the term was also used by members of the PARMEHUTU

party in Rwanda in 1961 to incite Hutu to 1048 T. 1 June 2006, p. 39; T. 8 June 2006, p. 11. 1049 T. 1 June 2006, p. 41. 1050 T. 1 June 2006, p. 41; T. 7 June 2006, p. 57. 1051 T. 7 June 2006, p. 61. 1052 T. 7 June 2006, p. 61. 1053 See the testimony of Witnesses Des Forges and Dallaire regarding RTLM, summarised in the Chamber’s discussion of paragraphs 36 and 37 of the Indictment; T. 23 May 2006, pp. 60-61 (ICS); T. 21 February 2006, p. 46 (ICS). 1054 T. 28 February 2006, p. 18 (ICS). 1055 T. 28 February 2006, p. 18 (ICS). 1056 T. 28 February 2006, p. 18 (ICS). 1057 T. 22 February 2006, p. 11 (ICS). 1058 T. 1 June 2006, p. 27. 17 May 2011 137/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T attack members of the Tutsi ethnic group.1059 Based on the evidence of these witnesses, the Chamber is persuaded that by asking his audience to go to “work”, Sindikubwabo called on them to commence attacking Tutsi. The Chamber therefore rejects Sindikubwabo’s ex post facto explanation of what he meant by that term.

585. This interpretation is particularly concerning when Sindikubwabo’s speech is viewed in its broader context. The Chamber recalls that the speech was made at the swearing-in ceremony of the new préfet of Butare, who replaced the previous préfet, a Tutsi who was removed from his position on account of his resistance to the killings in Butare. In his speech, Sindikubwabo called on the Hutu residents of Butare to shed their indifference to the ongoing war against the RPF. The evidence of Witnesses AOG, GFS, ZG, QBP, XY and Des Forges indicates that killings of Tutsi in Butare began shortly after Sindikubwabo delivered his speech. Prior to Sindikubwabo’s speech, no widespread killings of Tutsi had been observed in Butare. Against this backdrop and having reviewed the speech in its entirety, the Chamber is satisfied that President Sindikubwabo instigated the killings of Tutsi civilians in Butare during his speech of 19 April 1994.

586. In reaching this finding, the Chamber has considered the alternative account advanced by the Defence regarding the cause of the killings in Butare. The Defence argued that the killings in Butare were triggered by the hostile activities of the RPF and Tutsi in Butare rather than Sindikubwabo’s speech. The Chamber is not convinced by this submission since there is no evidence suggesting that the RPF was active in Butare during the relevant period. The Chamber is persuaded by the evidence of Witness Des Forges, who testified that Sindikubwabo’s remark in his speech that the war was “far” from Butare is an indication that the hostilities between the Rwandan government forces and the RPF had not reached Butare at the time that he gave his speech.1060 Therefore, the Chamber is not satisfied that the killings of Tutsi in Butare in April 1994 were precipitated by the hostile activities of the RPF and Tutsi.

587. In the view of the Chamber, the evidence relevant to these events suggests that the killings of Tutsi civilians in Butare were planned and organised. This view is inferable from the fact that the killings followed a speech by Sindikubwabo, the interim President of Rwanda between April and July 1994, in which he urged Hutu residents of Butare to take part in the war against the RPF. Following Sindikubwabo’s speech on 19 April, militia from Kigali arrived in Butare and established barriers and carried out patrols in concert with soldiers and gendarmes. They then systematically proceeded to kill Tutsi civilians including Rosalie Gicanda, the Queen Mother and a surviving member of the Tutsi monarchy.1061 The extent of the killing was made possible through the provision of government and military personnel and material.1062 These events, considered together, suggest that the killings in Butare were planned and organised, rather than being random acts of violence.

588. However, the Chamber finds that there is no evidence that either Ndindiliyimana or Bizimungu was present at the meeting where the speech was delivered, nor is there any evidence that they expressed support for the speech or disseminated its contents. The Chamber is therefore not satisfied that Sindikubwabo’s speech alone, in the absence of 1059 T. 1 June 2006, p. 26; T. 8 June 2006, p. 36. 1060 T. 20 September 2006, p. 71. 1061 T. 20 September 2006, p. 70. 1062 T. 20 September 2006, p. 71. 17 May 2011 138/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T further evidence, is suggestive of the Accused’s implication in a conspiracy to commit genocide against Tutsi.

589. The Chamber has also considered the allegation contained in paragraph 43 of the Indictment that Jean Kambanda, the Prime Minister, praised RTLM and described it as the “arme indispensable pour combattre l’ennemi [indispensable weapon for fighting the enemy]”, while knowing that the radio station was calling for the extermination of Tutsi. The Chamber finds that even if it were to accept the allegation that Kambanda praised RTLM, it is not satisfied that this fact alone generates a plausible inference that either Ndindiliyimana or Bizimungu was involved in a conspiracy to commit genocide against Tutsi.

590. The Chamber therefore concludes that the Prosecution has failed to prove beyond reasonable doubt the allegations against Ndindiliyimana and Bizimungu described in paragraphs 42, 43 and 44 of the Indictment. 1.4.6 The Crisis Committee and the Formation of the Interim Government 1.4.6.1 Introduction 591. The Indictment alleges that on 7 April 1994, following the death of President Habyarimana and the Chief of Staff of the Rwandan Army, Major General Déogratias Nsabimana, Ndindiliyimana was appointed by his peers to chair the military Crisis Committee, which was to fill the power vacuum pending the establishment of new institutions.1063 The Indictment further alleges that Ndindiliyimana and Théoneste Bagosora, in full agreement, supported the institution of an interim government composed solely of Hutu extremists.1064 1.4.6.2 Evidence 1.4.6.2.1 Prosecution Evidence Prosecution Witness Roméo Dallaire 592. Witness Dallaire gave evidence that he attended a meeting held at the Army Headquarters in Kigali on the night of 6 April 1994 following the death of President Habyarimana.1065 The meeting was chaired by Colonel Bagosora, who was then the directeur de cabinet at the Ministry of Defence, and was attended by senior officers of the army and the Gendarmerie including Ndindiliyimana.1066 593. Dallaire testified that the officers at the meeting broached the possibility of forming a

military authority that would manage the crisis resulting from the death of the President. It was envisaged that this authority would exercise power until such time that a civilian government was established.1067 Dallaire further testified that the officers attending this 1063 Indictment, para. 45. 1064 Indictment, para. 46. 1065 T. 20 November 2006, p. 51. 1066 T. 20 November 2006, p. 52. 1067 T. 20 November 2006, pp. 52-53. 17 May 2011 139/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T meeting recommended that a civilian government be established at the earliest possible opportunity.1068 594. Dallaire stated that in the course of the meeting, he urged the assembled officers to involve Prime Minister Agathe Uwilingiyimana in the process of resolving the crisis prevailing in the country.1069 However, his proposal was rejected by some of the officers at the meeting on the ground that the Prime Minister lacked authority and did not command the respect of the population.1070 The rejection of his proposal, together with the fact that a number of ministers allied with opposition parties could not be accounted for at the time, led Dallaire to suspect that some of the officers at the meeting intended to stage a coup d’état.1071 595. Dallaire gave evidence that throughout the meeting, Ndindiliyimana listened to and acquiesced in whatever was suggested by Bagosora. Ndindiliyimana’s only intervention during the meeting was his proposal that measures be taken to ensure the security of important sites such as radio and television stations in Kigali, and his further suggestion that such measures be taken in accordance with the provisions of the KWSA.1072 596. Dallaire also testified that he advised Bagosora during the meeting to seek out Booh Booh, the UN Secretary General’s Special Representative

to Rwanda, in order to inform him about the situation in the country and to solicit his views on the resolution of the political crisis.1073 597. Dallaire gave evidence of his participation in a second meeting attended by a number of senior officers of the Rwandan Armed Forces. The meeting was held at ESM in Kigali in the morning of 7 April and was also chaired by Bagosora.1074 In the course of the meeting, Bagosora announced to the assembled officers the plans to form a Crisis Committee under the chairmanship of Ndindiliyimana.1075 He further announced that the committee would be responsible for resolving the political crisis resulting from the death of President Habyarimana.1076 598. Dallaire also testified about the formation of the interim government a few days after the death of President Habyarimana. He stated that on 8 April, around 9.00 a.m., he went to the Ministry of Defence and found Bagosora in the conference hall together with a number of men dressed in civilian clothes.1077 According to Dallaire, Bagosora was surprised to see him at the Ministry and approached him before he could enter the hall. Bagosora then informed Dallaire that he was chairing a meeting of a number of politicians who were expected to form the government that would replace the Crisis Committee composed of military officers.1078 599. Dallaire testified that during a meeting of the Crisis

Committee chaired by Ndindiliyimana in the afternoon of 8 April, he was informed that an interim civilian 1068 T. 20 November 2006, pp. 52-53. 1069 T. 20 November 2006, p. 52. 1070 T. 20 November 2006, pp. 52-53. 1071 T. 20 November 2006, p. 53. 1072 T. 20 November 2006, p. 53. 1073 T. 20 November 2006, p. 52. 1074 T. 20 November 2006, p. 56. 1075 T. 20 November 2006, p. 56. 1076 T. 20 November 2006, p. 56. 1077 T. 21 November 2006, p. 16. 1078 T. 21 November 2006, pp. 16-17. 17 May 2011 140/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T government had been established and that members of that government were going to be sworn in either in the evening of 8 April or the following morning.1079 Dallaire further testified that while attending a meeting of the Crisis Committee held at the Diplomat Hotel, he was informed that members of the interim government had been sworn in and were preparing to relocate to Gitarama.1080 600. According to Dallaire, he received information from the UN Headquarters in the evening of 8 April suggesting that the newly established government should not be recognised as the legitimate government of Rwanda and that the UN Secretary General’s Special Representative to Rwanda, Booh Booh, should not establish any links with it.1081 Dallaire stated that despite these instructions, he felt that it was imperative that he establish contact with whoever was in control of the country. He therefore met with Sindikubwabo, the President of the interim government, in the presence of Ndindiliyimana on 9 April.1082 601. Dallaire testified that the interim government was comprised of politicians who subscribed to extremist Hutu ideology.1083 Prosecution Expert Witness Alison Des Forges 602. Witness Des Forges testified that following the death of President Habyarimana, a small group of officers met at the Army Headquarters in

order to evaluate the situation prevailing in the country. The meeting was chaired by Théoneste Bagosora, the directeur de cabinet at the Ministry of Defence.1084 Des Forges testified that in the course of this meeting, Bagosora wanted to take advantage of the void left by the death of the President and take over power.1085 However, his bid to seize power was resisted by some of the officers at the meeting who distrusted him and had no confidence in his competence.1086 603. Des Forges further testified that in the course of this meeting, General Dallaire proposed that the attendees involve the Prime Minister in the resolution of the crisis because she was still the head of the government and exercised legitimate authority.1087 According to Des Forges, Dallaire’s proposal to defer to the Prime Minister was vehemently rejected by Bagosora, who refused to acknowledge her authority.1088 Dallaire also suggested to Bagosora to consult with Booh Booh, the UN Secretary General’s special representative to Rwanda, on measures to be taken in order to resolve the crisis. Following this suggestion, Bagosora, Dallaire and another officer of the Rwandan Army went to meet with Booh Booh at his residence. Des Forges testified that during that meeting, Booh Booh told Bagosora that any attempt by the military officers to take over power would be unacceptable and would lead to the withdrawal of

UNAMIR forces from Rwanda. She further testified that Booh Booh urged Bagosora to make plans for the MRND to nominate a successor to President Habyarimana. Bagosora accepted Booh Booh’s suggestions and met with the leading members of the 1079 T. 21 November 2006, pp. 18-20. 1080 T. 21 November 2006, p. 20. 1081 T. 21 November 2006, p. 21. 1082 T. 21 November 2006, p. 21. 1083 T. 21 November 2006, pp. 22-23. 1084 T. 20 September 2006, p. 46. 1085 T. 20 September 2006, pp. 46-47. 1086 T. 20 September 2006, p. 47. 1087 T. 20 September 2006, p. 46. 1088 T. 20 September 2006, pp. 46-47. 17 May 2011 141/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T MRND with the view of forming a civilian government. Des Forges testified that due to Booh Booh’s intervention, Bagosora relinquished his plans to take over power and accepted the formation of a civilian government.1089 604. Des Forges gave evidence that on 7 April 1994, about 50 high-ranking officers of the Rwandan Armed Forces met at ESM to discuss the critical situation in the country.1090 Des Forges expressed the view that by that time, hostilities between the Rwandan Armed Forces and the RPF had not resumed and it would have still been possible to get Prime Minister Agathe Uwilingiyimana to take control of the situation and restore order. However, Bagosora and others who were in charge refused to allow the Prime Minister any role in the management of the crisis and made concerted efforts to locate her so as to kill her. In fact, the Prime Minister had sought the help of UNAMIR to get to the radio station where she intended to speak to the nation about the prevailing situation and plead for calm in the country.1091 605. Des Forges stated that a Crisis Committee composed of senior officers of the Rwandan Armed Forces was formed shortly after the death of President Habyarimana. Members of the committee met for the first time either in the evening of 7 April or the morning of 8 April. During this

inaugural meeting of the committee, Bagosora attempted to chair the committee; however, his bid to lead the committee was rejected by some members of the committee and Ndindiliyimana was instead appointed to chair the committee.1092 606. Des Forges testified that following the establishment of the interim government on 9 April, the Crisis Committee was disbanded. She stated that the fact that the committee ceased its functions on 9 April is inferable from her review of notes prepared by Ndindiliyimana, in which he referred to the committee as “the ex-crisis committee” after 9 April.1093 Despite the formal cessation of the committee’s functions, some members of the committee continued to meet for almost a week or about 10 days or even longer after 9 April. Des Forges testified that those members met on 16 April in a bid to restrain some journalists of Radio Rwanda and RTLM from inciting violence.1094 607. With respect to the formation of the interim government, Des Forges testified that Bagosora made contacts with the leaders of various parties, including the MRND, and that his consultations with members of those parties led to the selection of Sindikubwabo as the President of the country. Bagosora invited a number of politicians to a meeting in which various posts of the interim government were assigned to them.1095 Thereafter, Bagosora presented members of the newly

established interim government to members of the Crisis Committee during a meeting of that committee held in the evening of 8 April.1096 Des Forges testified that members of the interim government were drawn from various parties operating in Rwanda at the time such as the MRND, MDR, PL and PSD. However, the formation of that government contravened the provisions of the Arusha Accords since members of the RPF were not represented in the interim government. She stated that the Arusha Accords 1089 T. 20 September 2006, p. 47. 1090 T. 20 September 2006, p. 47. 1091 T. 20 September 2006, p. 47. 1092 T. 20 September 2006, pp. 48, 54. 1093 T. 20 September 2006, p. 48. 1094 T. 20 September 2006, p. 48. 1095 T. 20 September 2006, p. 48. 1096 T. 20 September 2006, p. 54. 17 May 2011 142/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T required the inclusion of the RPF in the broad-based transitional government.1097 According to Des Forges, the interim government was sworn in on 9 April and remained in power until July when it was forced to retreat to Zaire.1098 608. Des Forges testified that members of the interim government subscribed to the pro- Hutu ideology that was in ascendancy at the time.1099 According to Des Forges, the fact that the interim government was dominated by politicians who subscribed to extremist Hutu ideology had a deleterious effect on the course of events in Rwanda in 1994. 1100 The ideological dispositions of members of this government meant that there would be no meaningful resistance on the part of the government to the elimination of the Tutsi.1101 1.4.6.2.2 Defence Evidence Defence Witness Luc Marchal 609. Witness Marchal testified that he attended the emergency meeting at the Army Headquarters convened after the death of President Habyarimana on the night of 6 April 1994. The meeting was chaired by Colonel Bagosora. Marchal observed that the officers who attended the meeting were supportive of the creation of a government that conformed to the provisions of the Arusha Accords.1102 Marchal also recalled hearing Ndindiliyimana call upon General Dallaire to inform the international community that the

officers who attended the meeting at the Army’s Headquarters on 6 April were not intending to stage a coup d’état.1103 Defence Witness CBP 7 610. Witness CBP 7 was an officer of the Gendarmerie in April 1994.1104 He testified that he attended a meeting at the Army Headquarters on the night of 6 to 7 April 1994 following the death of President Habyarimana. The meeting started at 9.00 p.m. and ended at 2.00 a.m., and was chaired by Colonel Bagosora.1105 According to the witness, the meeting was convened in order to discuss solutions to the crisis resulting from the death of the President.1106 611. The witness testified that in the course of the meeting, a decision was taken to send a delegation to see the UN Secretary General’s Special Representative, Booh Booh, to discuss the replacement of the President and to seek his opinion on how to proceed with the implementation of the Arusha Accords.1107 The witness testified that after the meeting, General Dallaire, Bagosora and Ephraim Rwabalinda, the liaison officer to UNAMIR, met with Booh Booh as was decided at the meeting.1108 1097 T. 20 September 2006, p. 48. 1098 T. 20 September 2006, p. 49. 1099 T. 20 September 2006, pp. 48-49. 1100 T. 20 September 2006, p. 55. 1101 T. 20 September 2006, p. 55. 1102 T. 17 January 2008, p. 46; T. 18 January 2008, pp. 54-55. 1103 T. 18 January 2008, p. 47. 1104 T. 7 July 2008, p. 18. 1105 T. 7 July 2008, pp. 23, 25 (ICS). 1106 T. 7 July 2008, pp. 20-21 (ICS). 1107 T. 7 July 2008, pp. 23-24 (ICS). 1108 T. 7 July 2008, p. 24 (ICS). 17 May 2011 143/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 612. Following their meeting with Booh Booh, those three individuals returned to the Army Headquarters and informed the officers who had taken part in the earlier meeting of the suggestions made by Booh Booh. They stated that Booh Booh planned to convene a meeting with members of the diplomatic corps, especially those who were involved in the peace process, and that the meeting was planned to take place at the United States Embassy in Kacyiru.1109 They also stated that Booh Booh had suggested that a meeting be held with the leaders of the MRND in order to get them to nominate a person to replace the late President Habyarimana, since the Arusha Accords provided that the MRND would hold that position.1110 613. Witness CBP 7 also testified to having attended a meeting held at ESM at 10.00 a.m. on 7 April 1994.1111 The meeting was chaired by Bagosora and attended by General Dallaire, officers of the General Staff of the army and the Gendarmerie, officers from the Ministry of Defence, commanders of the operational sectors and major units of the two corps.1112 614. The witness testified that during this meeting, a decision was taken to establish a Crisis Committee and a number of officers were appointed to serve as members of that committee.1113 The witness recalled that the officers who were designated to

serve as members of the Crisis Committee were drawn from the Ministry of Defence, the army and the Gendarmerie.1114 The witness further testified that no one was formally designated to chair the committee during the meeting held at ESM; however, it was expected that Bagosora, given his position as the directeur de cabinet at the Ministry of Defence, would chair the Crisis Committee.1115 615. According to the witness, the mission of the Crisis Committee was to ensure security in the country and assist civilian politicians in resolving the crisis caused by the death of the President.1116 Defence Witness Jean Marie Vianney Nzapfakumunsi 616. Witness Nzapfakumunsi was an officer of the Gendarmerie in April 1994.1117 He testified that on 7 April 1994, at about 9.30 a.m., he attended a meeting held at ESM which was chaired by Colonel Bagosora.1118 The meeting was attended by the commanders of the army and gendarmerie units in Kigali, officers from the General Staff and other officers of the army.1119 617. According to the witness, the officers attending this meeting were divided about how to resolve the crisis that resulted from the death of President Habyarimana.1120 One side favoured the establishment of a civilian government in compliance with the Arusha Accords 1109 T. 7 July 2008, p. 32 (ICS). 1110 T. 7 July 2008, p. 24 (ICS). 1111 T. 7 July 2008, p. 26 (ICS). 1112 T. 7 July 2008, pp. 26-27 (ICS). 1113 T. 7 July 2008, p. 27. 1114 T. 7 July 2008, p. 28. 1115 T. 7 July 2008, pp. 28, 87. 1116 T. 7 July 2008, pp. 27-28. 1117 T. 18 February 2009, pp. 5-7. 1118 T. 18 February 2009, p. 30. 1119 T. 18 February 2009, p. 30. 1120 T. 18 February 2009, p. 30. 17 May 2011 144/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T and opposed the assumption of power by members of the armed forces, while another group wanted members of the armed forces to take control of the country.1121 618. The witness stated that Ndindiliyimana spoke during this meeting and supported the establishment of a civilian government in accordance with the provisions of the Arusha Accords. According to the witness, Ndindiliyimana was the first among the attendees at the meeting to express support for a position favourable to the implementation of the Arusha Accords.1122 The witness further testified that the majority of the officers who attended the meeting at ESM were in favour of the establishment of a civilian government in line with the terms of the Arusha Accords.1123 619. Nzapfakumunsi testified that in the course of the meeting, Bagosora stated that a committee composed of officers of the Rwandan Armed Forces had been established in order to assist in resolving the prevailing crisis.1124 It was also proposed at the meeting that the membership of the Crisis Committee be strengthened in order to enhance its ability to resolve the crisis in Rwanda in a manner that complied with the Arusha Accords.1125 The Accused Ndindiliyimana 620. Ndindiliyimana testified that shortly after the death of President Habyarimana on the night of 6 April 1994, he

attended a meeting at the Army Headquarters chaired by Colonel Bagosora. He testified that the rules stipulated that in the absence of the Minister for Defence, meetings of members of the General Staff of the Army and the Gendarmerie would be chaired by the directeur du cabinet of the Ministry of Defence. Since the meeting at the Army Headquarters on the night of 6 April was attended by members of the General Staff of the two corps, Bagosora, in his capacity as directeur du cabinet, was required to chair this meeting because the Minister of Defence was out of the country.1126 621. During the meeting, Bagosora suggested the establishment of a Crisis Committee in order to manage the critical situation resulting from the death of President Habyarimana.1127 Ndindiliyimana suggested that the crisis be resolved in compliance with the terms of the Arusha Accords and therefore suggested that all parties to the Accords be invited to participate in the resolution of the crisis. To achieve these objectives, he suggested to the officers attending the meeting to contact Booh Booh, the UN Secretary General’s Special Representative to Rwanda, so that he could approach members of the RPF in order to invite them to participate in the process of resolving the crisis. Thereafter, Bagosora, General Dallaire and Lieutenant Colonel Rwabalinda, the Rwandan Army’s liaison officer to UNAMIR, left in

order to meet with Booh Booh.1128 622. Ndindiliyimana testified that the delegation returned to the Army Headquarters after meeting with Booh Booh and informed Ndindiliyimana and other officers that Booh Booh 1121 T. 18 February 2009, pp. 30-31. 1122 T. 18 February 2009, p. 31. 1123 T. 18 February 2009, p. 31. 1124 T. 18 February 2009, p. 31. 1125 T. 18 February 2009, pp. 31-32. 1126 T. 17 June 2008, pp. 22-23. 1127 T. 17 June 2008, p. 21. 1128 T. 17 June 2008, p. 22. 17 May 2011 145/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T had suggested that they consult with the leading officials of the MRND in order to get them to designate a successor to President Habyarimana.1129 623. In cross-examination, Ndindiliyimana was asked whether the officers who attended the meeting at the Army Headquarters on the night of 6 to 7 April 1994 intended to stage a coup d’état. He responded that the discussions at the meeting were mainly concerned with the restoration of security; however, some of the officers, especially Bagosora, made statements that suggested that they intended to stage a coup d’état.1130 For his part, Ndindiliyimana testified that he was opposed to the idea that members of the armed forces should take control of the country in contravention of the terms of the Arusha Accords.1131 624. Ndindiliyimana denied that Bagosora rejected the involvement of Prime Minister Agathe Uwilingiyimana in the process of resolving the political crisis.1132 He also denied that Bagosora objected to the Prime Minister making a radio broadcast to the nation.1133 Ndindiliyimana was confronted with Prosecution Exhibit 245, the record of an interview between Booh Booh and Professor Reyntjens in which the former stated that Bagosora rejected the proposal made by Booh Booh and Dallaire to convene a meeting with Prime Minister Agathe Uwilingiyimana.

Ndindiliyimana stated that he was not present at the meeting at the residence of Booh Booh and therefore could not verify the accuracy of that information. Ndindiliyimana further stated that Dallaire never told him that Bagosora had rejected the involvement of the Prime Minister in the resolution of the political situation.1134 625. Ndindiliyimana stated that around 9.00 a.m. on 7 April 1994 he went to the residence of the United States Ambassador to Rwanda for a meeting, but the meeting never took place. While at the residence, the United States Ambassador asked Ndindiliyimana and Bagosora why they had refused to allow the Prime Minister to take part in the management of the situation. Ndindiliyimana testified that he did not respond to the question since he was not aware that anyone had refused to allow the Prime Minister to take part in the resolution of the political problems resulting from the death of the President.1135 626. Ndindiliyimana also testified to attending a meeting at ESM at 10.00 a.m. on 7 April. The meeting was chaired by Bagosora and attended by officers of the army and Gendarmerie. During his address to the gathered officers, Bagosora spoke about a number of issues including the formation of a Crisis Committee.1136 Ndindiliyimana stated that the Crisis Committee was formed during this meeting. According to Ndindiliyimana, the purpose of the Crisis

Committee was to ensure security in conjunction with UNAMIR and also to support the politicians in their attempt to find a solution to the political crisis.1137 627. Ndindiliyimana affirmed that he was appointed to become a member of the Crisis Committee and played an active role in seeking to achieve the objectives of that committee. He denied, however, that he was appointed to be the chairman of the Crisis Committee.1138 1129 T. 17 June 2008, p. 25. 1130 T. 20 June 2008, p. 70. 1131 T. 20 June 2008, p. 67. 1132 T. 20 June 2008, pp. 74-75. 1133 T. 20 June 2008, p. 77. 1134 T. 20 June 2008, pp. 77-79. 1135 T. 20 June 2008, pp. 77-79; T. 17 June 2008, p. 31. 1136 T. 17 June 2008, pp. 31-32. 1137 T. 17 June 2008, p. 35. 1138 T. 17 June 2008, p. 34. 17 May 2011 146/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana stated that the issue of the chairmanship of the committee was in fact not broached in the meeting held at ESM since it was assumed that Bagosora, who had chaired the meetings leading up to the formation of the Crisis Committee, would also chair the committee.1139 Ndindiliyimana testified that on 8 April, during a meeting of the Crisis Committee, Bagosora sought to chair the meeting but his attempt was rejected by members of the committee and Ndindiliyimana was therefore appointed to chair the meeting. Ndindiliyimana testified that the Crisis Committee never convened another meeting thereafter.1140 628. In cross-examination, Ndindiliyimana was probed about his chairmanship of the Crisis Committee. He was confronted with a passage in the decision of the Belgian Permanent Commission on Refugees dated 28 May 1998 granting him refugee status in Belgium, which suggested that Ndindiliyimana had agreed to chair the Crisis Committee in order to unravel a stalemate that resulted from the refusal of some members to allow Bagosora to chair the committee. Ndindiliyimana testified that this passage in the decision confirms his contention that he only chaired one meeting of the Crisis Committee in order to resolve the impasse that stemmed from the refusal of some of the members to allow Bagosora to

chair the committee.1141 629. Ndindiliyimana was also confronted with a pro justitia statement given by Colonel Rusatira, the former commanding officer of ESM and a member of the Crisis Committee, to the Belgian judicial authorities, in which Rusatira stated that in light of the refusal of some members of the Crisis Committee to allow Bagosora to chair the committee, Ndindiliyimana was selected to chair the committee. Ndindiliyimana responded by saying that Rusatira’s statement lends support to his earlier testimony that he only chaired one meeting of that committee after the members refused to allow Bagosora to chair the meeting.1142 630. Ndindiliyimana denied that he had any role in the formation of the interim government after the death of President Habyarimana. He testified that on 8 April 1994, between 1.00 and 2.00 p.m., he went to the Ministry of Defence where he found a number of MRND politicians including Ngirumpatse, Nzirorera and Karemera. Those politicians informed him that they had agreed to the request of the UN Secretary General’s Special Representative to Rwanda, Booh Booh, that leaders of the MRND appoint a successor to Habyarimana. They informed him that they had appointed the speaker of the general assembly, Sindikubwabo, to become the President of the interim government.1143 Ndindiliyimana testified that he found the proposal to be valid and agreed with

it.1144 631. Ndindiliyimana testified that during a meeting of the Crisis Committee held in the evening of 8 April, Bagosora arrived at the meeting accompanied by politicians who had been appointed to serve as members of the interim government and requested assistance with 1139 T. 17 June 2008, p. 34. 1140 T. 20 June 2008, p. 70. 1141 T. 20 June 2008, pp. 63-66. 1142 T. 20 June 2008, pp. 63-66. 1143 T. 17 June 2008, pp. 46-47. 1144 T. 17 June 2008, p. 47. 17 May 2011 147/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T organising the swearing-in ceremony.1145 Ndindiliyimana stated that he was not familiar with the majority of the politicians who were selected to form the interim government.1146 632. Ndindiliyimana testified that he believed that the establishment of the interim government on 8 April was done in compliance with the law, despite the fact that members of the RPF were not included in that government. He further stated that efforts were made to contact the RPF in order to involve them in the establishment of the transitional government, but members of the RPF refused to take part in the process.1147 633. According to Ndindiliyimana, the Crisis Committee ceased its functions following the formation of the interim government. However, about five members of the committee continued to meet in order to resolve major problems that arose at the time and to assist the interim government in ensuring security in the country.1148 These officers were Gatsinzi, Rusatira, Balthazar, a G1 officer at the Army General Staff and Ndindiliyimana himself.1149 1.4.6.3 Deliberations 634. The Chamber notes that there is concordant evidence suggesting that after the death of President Habyarimana, a group of officers of the Rwandan Armed Forces met at the Army Headquarters on the night of 6 April in order to resolve the crisis

resulting from the death of the President. The evidence available to the Chamber suggests that the officers attending this meeting were divided on how the crisis should be resolved. The evidence of Witness Des Forges and Ndindiliyimana suggests that a group of officers led by Bagosora advocated for a committee composed of leading officers of the Rwandan Armed Forces to take over the reins of power and dispense with the Arusha Accords. The Chamber recalls Ndindiliyimana’s evidence that Bagosora’s remarks on the establishment of a Crisis Committee at this meeting suggested that Bagosora intended to stage a coup d’état.

635. However, the evidence available to the Chamber suggests that Bagosora’s suggestions in favour of a coup d’état were rejected by the officers who attended the meeting at the Army Headquarters on the night of 6 April. Des Forges testified that some of the officers attending this meeting did not trust Bagosora and had no confidence in his competence. The Chamber has not heard any credible evidence suggesting that Ndindiliyimana supported the suggestions advanced by Bagosora. Des Forges’s evidence on Ndindiliyimana’s conduct after this meeting suggests that Ndindiliyimana was opposed to the suggestions put forward by Bagosora on how to resolve the crisis resulting from the death of President Habyarimana. She testified that Ndindiliyimana acting in concert with other moderate officers attempted to prevent Bagosora from realising his ambitions of taking over the reins of power.1150 The fact that a significant proportion of the officers attending this meeting were in favour of the resolution of the crisis in a manner that complied with the Arusha Accords is inferable from the evidence of Witnesses Dallaire and Marchal, who both attended the meeting. Dallaire testified that the majority of the officers attending this meeting wanted the Crisis Committee to have a delimited role of overseeing the country until the establishment of a civilian government in compliance with the Accords. Marchal testified that during this meeting, 1145 T. 17 June 2008, p. 47. 1146 T. 17 June 2008, p. 17. 1147 T. 23 June 2008, pp. 1-2. 1148 T. 17 June 2008, p. 47. 1149 T. 17 June 2008, p. 47. 1150 T. 11 October 2006, p. 57. 17 May 2011 148/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana supported the implementation of the Accords and ask Dallaire to allay any fears on the part of the international community that the officers attending the meeting intended to stage a coup d’état in contravention of the Accords.

636. The Chamber also recalls that Ndindiliyimana testified that he initially agreed with Bagosora’s proposal to establish a Crisis Committee to oversee the country during the meeting on the night of 6 April. However, Dallaire’s probing of Bagosora in the course of the meeting on the exact scope of the committee led him to suspect that the committee may have adverse consequences for the implementation of the Arusha Accords. He therefore suggested that Booh Booh, the UN Secretary General’s Special Representative to Rwanda, be consulted to devise solutions to the crisis. The Chamber notes that this account by Ndindiliyimana is supported by Chambers Exhibit 9A, a statement given by one of the officers who attended the meeting on the night of 6 April 1994.1151 637. Having considered the evidence canvassed above, the Chamber finds that the officers attending this meeting were divided on the resolution of the crisis in the country at the time. The evidence also suggests that Ndindiliyimana was not in favour of the suggestions raised by some of the officers to dispense with the Arusha Accords and stage a coup d’état. Given the rifts among the officers attending this meeting, the Chamber has considerable doubts as to whether this meeting was convened in order to further a conspiracy to commit genocide against Tutsi. Moreover, the evidence available to the Chamber regarding Ndindiliyimana’s remarks at this meeting raises further doubts about his alleged implication in any such conspiracy.

638. The Chamber notes that there is concordant evidence that a group of about 50 high- ranking officers of the Rwandan Armed Forces met at ESM in the morning of 7 April 1994. A Crisis Committee, which had first been broached during the meeting held at the Army Headquarters in the evening of 6 April, was established during this meeting of 7 April. Members of the committee were then designated during a meeting held at ESM the following morning (8 April), and the committee started its functions after that meeting. Ndindiliyimana admitted to having been selected to become a member of this committee along with other senior members of the Rwandan Armed Forces. A number of witnesses who attended the meeting at ESM testified that the committee was entrusted with the responsibility of ensuring security in the country and assisting in the resolution of the political crisis resulting from the death of the President.

639. The Chamber recalls that the Indictment alleges that Ndindiliyimana was appointed to serve as chairman of the Crisis Committee and that, in full agreement with Bagosora, he established the interim government composed solely of Hutu extremists. The Prosecution’s allegation is predicated on the supposition that the Crisis Committee chaired by Ndindiliyimana had an instrumental role in the establishment of the interim government; hence the Prosecution’s emphasis on Ndindiliyimana’s chairmanship of the committee as proof of his involvement in the establishment of the interim government.

640. Having considered the evidence regarding Ndindiliyimana’s involvement with the Crisis Committee, the Chamber accepts that Ndindiliyimana did chair the meetings of the committee during its short-lived existence. However, the Chamber is not satisfied that Ndindiliyimana was appointed to serve as chairman of the Crisis Committee at the very 1151 See T. 17 January 2008, pp. 46-47; Chamber’s Exhibit 9A, p. 4. 17 May 2011 149/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T inception of its mandate. The Chamber recalls that it was only Witness Dallaire who testified that during the meeting at ESM in the morning of 7 April, he heard Bagosora, who chaired the meeting, inform the audience that a decision had been taken to form a Crisis Committee under the chairmanship of Ndindiliyimana. However, Dallaire’s evidence is disputed by the evidence of Witness CBP 7 and Ndindiliyimana, who both denied that any of the officers at the meeting were designated to chair the committee. Rather, they testified that it was expected that Bagosora would chair the meetings of the committee.

641. The Chamber recalls that Ndindiliyimana testified that he was only appointed to chair the inaugural meeting of the Crisis Committee because other members were not inclined to allow Bagosora to chair the committee. This situation led to a stalemate, and Ndindiliyimana was then appointed to chair the meeting in order to resolve the deadlock. His evidence is supported by the evidence of Des Forges and the statements of a number of individuals who were former members of the committee; those statements were tendered into evidence as exculpatory statements pursuant to Rule 68 of the Rules.1152 The Chamber finds that the fact that Bagosora attempted to chair the committee supports the claims made by Ndindiliyimana and Witness CBP 7 that Ndindiliyimana was not selected to lead the committee during the meeting at ESM, as was alleged by Dallaire.

642. Notwithstanding Ndindiliyimana’s alleged chairmanship of the committee, the Chamber is not satisfied based on the evidence tendered in this trial that he had a significant role in the establishment of the interim government that ruled Rwanda following the death of President Habyarimana. The Chamber finds it noteworthy that the Prosecution witnesses who testified about the circumstances that led to the selection of members of the interim government, namely Dallaire and Des Forges, did not ascribe a significant role to Ndindiliyimana in the selection of the politicians who formed the interim government. On the contrary, their evidence suggests that the selection of those politicians was done by Bagosora and senior politicians allied with the MRND.1153 643. The Chamber notes that the evidence of these Prosecution witnesses converges in important respects with the evidence of Ndindiliyimana. He testified that on 8 April 1994, he went to the Ministry of Defence and found a number of leading politicians aligned with the MRND. They informed him that they intended to appoint the President of the National Assembly, Sindikubwabo, as the President of the interim government. Ndindiliyimana stated that he agreed with their proposal. Ndindiliyimana further testified that during a meeting of the Crisis Committee on 8 April, Bagosora arrived accompanied by a number of politicians whom he introduced to the committee as the members of the interim government.1154 The Chamber is not satisfied that the fact that Ndindiliyimana chaired some of the meetings of the Crisis Committee, in itself, is evidence that he had a significant role in the selection of the politicians who formed the interim government.

644. Furthermore, the suggestion that Ndindiliyimana acted in concert with Bagosora to establish a government whose composition violated the provisions of the Arusha Accords is inconsistent with the considerable body of evidence suggesting that the two were not in agreement as to how the crisis resulting from the death of President Habyarimana should be resolved. Contrary to Bagosora, who favoured a coup d’état, the evidence shows that 1152 See Chamber’s Exhibit 15A, p. 3. 1153 See T. 21 November 2006, pp. 16-17; T. 20 September 2006, pp. 48, 54. 1154 T. 17 June 2008, p. 47. 17 May 2011 150/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana consistently supported the Arusha Accords and favoured the establishment of a government that complied with the terms of the Accords. In light of this evidence, the Chamber finds the Prosecution allegation that Ndindiliyimana collaborated with Bagosora to form a government composed solely of Hutu politicians known for their extremist ideological positions towards the Tutsi to be implausible.

645. In weighing this allegation, the Chamber has considered whether Ndindiliyimana’s evidence that he considered the interim government to be a legally constituted entity and made no objections to its formation could be construed as suggestive of his support for the extremist positions espoused by members of that government.1155 The Chamber notes that there is a considerable body of evidence that militates against such a finding. The Chamber has heard credible evidence that Ndindiliyimana attempted to convince members of the interim government to intervene to stop the killings of Tutsi civilians. The Chamber recalls the evidence of Des Forges, who testified that Ndindiliyimana’s conduct during the period when the interim government was formed is inconsistent with the conduct of someone who supported a conspiracy to commit genocide against Tutsi.1156 Her assessment is based on Ndindiliyimana’s opposition to Bagosora’s concerted attempts to take over power and dispense with the Arusha Accords after the President’s death,1157 Ndindiliyimana’s efforts together with other moderate officers to meet journalists of RTLM and Radio Rwanda to ask them to desist from inciting ethnic hatred and to rein in members of the Presidential Guards,1158 and Ndindiliyimana’s joint efforts with Rusatira to plead with members of the interim government and other politicians to intervene to stop the

killings during a meeting with those officials held at Murambi in Gitarama on 22 April 1994.1159 646. The Chamber notes that Des Forges’s evidence regarding the meeting at Murambi is corroborated by the testimony of Ndindiliyimana himself.1160 It is also supported by the statement given by Fidèle Uwizeye to the investigators of the OTP.1161 This statement was tendered as an exculpatory document pursuant to Rule 68 of the Rules. In this statement, Uwizeye, who was the préfet of Gitarama at the time of the events pleaded in the Indictment, stated that Ndindiliyimana and Rusatira arrived at Murambi, where the interim government was based, and sought to press members of that government to intervene and stop the ongoing massacres. According to the statement, the presentations made by Ndindiliyimana and Rusatira were not well received by members of that government, who castigated them for their lack of resolve in fighting the RPF.1162 647. The fact that Ndindiliyimana was not ideologically aligned with members of the interim government is also inferable from the letter that was addressed to him from Édouard Karemera, a prominent politician allied with the MRND, dated 26 April 1994.1163 Having reviewed that letter and also the evidence of Des Forges, the Chamber notes that Karemera 1155 T. 17 June 2008, p. 17. 1156 T. 11 October 2006, p. 60. 1157 T. 11 October 2006, p. 55; T. 20

September 2006, pp. 47, 54. 1158 T. 11 October 2006, p. 60. 1159 See T. 11 October 2006, pp. 58-59. 1160 T. 18 June 2008, pp. 17-18. 1161 The Chamber has not assigned Fidèle Uwizeye a pseudonym as he had agreed to testify before the Chamber under his own name but was ultimately not called as a witness. Furthermore, he had previously testified under his own name in other cases before this Tribunal. 1162 Chamber’s Exhibit 13A, p. 8. 1163 Defence Exhibit 507. 17 May 2011 151/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T expressed his displeasure at Ndindiliyimana’s lack of support for the interim government and urged him to show more support for that government. Karemera also informed Ndindiliyimana that members of the interim government were not pleased with the presentations that he had made to them, a possible reference to the strained meeting between Ndindiliyimana and some members of the interim government held on 22 April 1994 at Murambi where the interim government was headquartered. Finally, Karemera warned Ndindiliyimana that a perception was gathering force that he was leading a group of officers from the south of Rwanda to revolt, a possibility that would advantage the RPF.1164 648. Des Forges testified that in his letter, Karemera excoriated Ndindiliyimana for having Tutsi as part of his escort and for his lack of support for the interim government. According to Des Forges, Karemera’s letter essentially stated, “You need to get on board with the programme. You need to stop the presentations you have been making to us. You need to more publicly demonstrate your support for what’s going on.”1165 649. The Chamber accepts, based on the cogent evidence of Des Forges and Dallaire, that the fact that the interim government was composed of politicians who subscribed to extremist Hutu ideology and who were

implacably opposed to the implementation of the Arusha Accords and collaboration with the RPF gave impetus to the widespread killings of Tutsi and diminished resistance to the massacres from government circles. The Chamber is not satisfied, however, that Ndindiliyimana collaborated with the interim government as part of a conspiracy to commit genocide against Tutsi. The fact that Ndindiliyimana considered the interim government to be a legally constituted government and may have collaborated with that government to some extent is not in itself evidence that he was implicated in a conspiracy to commit genocide against Tutsi. The Chamber is therefore not satisfied that the Prosecution has adduced sufficient evidence to prove the allegations in paragraphs 45 and 46 of the Indictment beyond reasonable doubt. 1.4.7 Ndindiliyimana’s Failure to Intervene to Stop the Killings of Members of the Belgian Detachment of UNAMIR 1.4.7.1 Introduction 650. The Indictment alleges that on 7 April 1994, between 10.00 a.m. and 1.00 p.m., the military Crisis Committee met at ESM. It is alleged that in the course of this meeting, Commander Nubaha of Camp Kigali came and informed Ndindiliyimana and Théoneste Bagosora, who were chairing the meeting, that Rwandan soldiers were killing Belgian UNAMIR soldiers. The Indictment states that Ndindiliyimana and Bagosora “allowed the meeting to continue without

taking the slightest action either directly or through the intermediary of the commanders whose subordinates were implicated in the killings. Hence, the assassination of the ten soldiers from the Belgian contingent, the largest in the UN peacekeeping mission, and the withdrawal of the Belgian contingent as of 11 April 1994.”1166 The Indictment further alleges that Ndindiliyimana’s refusal to intervene to prevent the killing of those soldiers was motivated by a desire to precipitate the withdrawal of the Belgian detachment of UNAMIR and thereby to remove meaningful resistance to the 1164 T. 13 October 2006, p. 17. 1165 T. 13 October 2006, p. 17. 1166 Indictment, para. 47. 17 May 2011 152/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T effectuation of the conspiracy to commit genocide against Tutsi conceived by Ndindiliyimana and others.1167 1.4.7.2 Evidence 1.4.7.2.1 Prosecution Evidence Prosecution Witness Roméo Dallaire 651. Witness Dallaire testified that while on his way to a meeting with senior members of the Rwandan Armed Forces on 7 April 1994 at ESM, he saw two Belgian UNAMIR soldiers who appeared to be injured at Camp Kigali.1168 At the end of the meeting at ESM, Dallaire approached Ndindiliyimana and expressed his concerns regarding the Belgian soldiers he had seen and asked about the situation at the camp. Ndindiliyimana responded that there was chaos at the camp but that measures were being taken to restore order there.1169 652. Dallaire stated that in 1995, he testified before the Belgian judicial commission of inquiry into the killing of the Belgian soldiers at Camp Kigali in 1994. He informed members of that commission that he had regular contacts with Ndindiliyimana, considered him to be a moderate and believed him to be sincere when he told the witness that he was doing everything possible to save the Belgian soldiers at Camp Kigali.1170 According to Dallaire, he also informed members of the Belgian commission that Ndindiliyimana had told him “that Camp Kigali was in the hands of rogue elements, that RGF [“Rwandan

Government Forces”] officers were trying to control the situation and had been fired upon, that the soldiers were out of control, and that the force commander was not permitted to go to the camp, given the risks involved.”1171 653. Dallaire testified that on 7 April 1994, he requested access to Camp Kigali in order to ascertain the situation of the Belgian soldiers. However, Colonel Bagosora denied him permission to enter the camp on the ground that the situation there was dangerous.1172 Bagosora assured the witness that he was taking measures to resolve the crisis at the camp.1173 654. Dallaire recalled that he met Bagosora at his office in the afternoon of 7 April. During that meeting, Bagosora told him that members of the Belgian detachment of UNAMIR should be withdrawn from Rwanda given the broadcasts by RTLM implicating them in the death of President Habyarimana. Bagosora further suggested that their presence was bound to exacerbate what was already a fraught situation.1174 Dallaire testified that it was the first time that he had heard a member of the Rwandan government broaching the withdrawal of the Belgian detachment of UNAMIR from Rwanda.1175 1167 Indictment, para. 50. 1168 T. 20 November 2006, p. 56. 1169 T. 20 November 2006, p. 57. 1170 T. 6 December 2006, pp. 42-43. 1171 T. 6 December 2006, p. 43. 1172 T. 20 November 2006, p. 61. 1173 T. 20 November 2006, p. 61. 1174 T. 20 November 2006, p. 61. 1175 T. 20 November 2006, p. 61. 17 May 2011 153/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 655. Dallaire further testified that some of the officers of the Rwandan Armed Forces attending the meeting of the Crisis Committee at the Army Headquarters in the evening of 7 April called for the withdrawal of the Belgian detachment of UNAMIR. Those officers were concerned that the presence of the Belgians was likely to hamper the efforts to restore order given the widespread perception that they were responsible for the death of President Habyarimana.1176 However, Dallaire could not recall the names of the officers who made that suggestion.1177 656. According to Dallaire, he learned of the death of the Belgian soldiers after the conclusion of the meeting of the Crisis Committee in the evening of 7 April at Camp Kigali. During that meeting, Dallaire pressed Ndindiliyimana for information regarding the whereabouts of the Belgian soldiers who were held at Camp Kigali on 7 April. After the meeting, Ndindiliyimana received a telephone call from an army officer and was informed that the Belgian soldiers were located at the Centre Hospitalier de Kigali (CHK). Thereafter, the witness together with Ndindiliyimana and the interim Chief of Staff of the Army, Marcel Gatsinzi, and others went to CHK. Upon arrival, they were directed to the morgue where they found the slain bodies of 11 members of the Belgian

detachment of UNAMIR. Dallaire stated that Ndindiliyimana and all the officers who were at the morgue were quite shocked at the condition of the dead bodies.1178 Dallaire testified that he informed members of the Belgian commission of inquiry into the deaths of the Belgian soldiers that Ndindiliyimana “appeared to be shocked and was apologetic for the state of the corpses … ordered that the bodies be cleaned up and laid out in dignity, and stated that those who had committed this terrible act would be found.”1179 Prosecution Expert Witness Alison Des Forges 657. Witness Des Forges gave evidence that following the death of Prime Minister Agathe Uwilingiyimana on 7 April 1994, members of the Belgian detachment of UNAMIR who had been assigned to protect the Prime Minister were removed from her residence and taken to Camp Kigali and killed.1180 Des Forges testified that following their arrival at the camp, some of the Belgian soldiers were killed immediately and some died after a long struggle.1181 658. Des Forges stated that at the time that the Belgian soldiers were killed at Camp Kigali on 7 April, a number of high-ranking officers of the Rwandan Armed Forces, including Ndindiliyimana, were meeting at ESM, a military college situated in considerable proximity to the camp where the Belgian soldiers were killed.1182 According to Des Forges, the officers attending the meeting at ESM heard the gunshots that led to the killing of those soldiers.1183 1176 T. 21 November 2006, p. 15. 1177 T. 21 November 2006, pp. 15-16. 1178 T. 21 November 2006, p. 15. 1179 T. 6 December 2006, p. 44. 1180 T. 20 September 2006, p. 47. 1181 T. 20 September 2006, p. 47. 1182 T. 20 September 2006, p. 47. 1183 T. 20 September 2006, p. 47. 17 May 2011 154/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.7.2.2 Defence Evidence Defence Witness Johann Swinnen 659. Witness Swinnen was Belgium’s ambassador to Rwanda at the time that the Belgian soldiers of UNAMIR were killed in April 1994. He testified that Ndindiliyimana called him between 2.00 and 3.00 a.m. on 8 April and pleaded with him to ensure that the Belgian detachment of UNAMIR was not withdrawn from Rwanda as a result of the killing of some members of that detachment. Swinnen stated that Ndindiliyimana informed him that the withdrawal of the Belgian detachment would have a deleterious effect on the efforts being undertaken to resume the peace process.1184 Swinnen further testified that Ndindiliyimana told him that the withdrawal of the Belgian detachment would discourage Rwandans who were working to restore the peace process and that the presence of the Belgian soldiers was therefore indispensable to any success in restoring the peace process.1185 Witness Swinnen recalled that his telephone conversation with Ndindiliyimana was emotionally charged and he believed Ndindiliyimana to be sincere in his requests to ensure that members of the Belgian detachment of UNAMIR were not withdrawn from Rwanda.1186 Defence Witness CBP 7 660. Witness CBP 7, an officer of the Gendarmerie in April 1994, testified that he attended a meeting of the officers of

the Rwandan Armed Forces held at ESM on 7 April 1994.1187 The witness testified that while attending the meeting at ESM, he was not informed that members of the Belgian detachment of UNAMIR had been killed at Camp Kigali.1188 Rather, he learned of the killing of those soldiers after the meeting at ESM.1189 661. Witness CBP 7 also testified that Dallaire addressed the meeting at ESM, but he did not inform the audience that Belgian soldiers of UNAMIR were being attacked at Camp Kigali.1190 The witness testified that during the meeting, they heard gunshots but were not informed about the cause of the firing.1191 The gunshots lasted for a very brief period and then the meeting resumed.1192 The Accused Ndindiliyimana 662. Ndindiliyimana testified that he attended the meeting of the officers of the Rwandan Armed Forces held at ESM in the morning of 7 April 1994. In the course of the meeting, Colonel Nubaha, the commanding officer of Camp Kigali, arrived at about 10.45 a.m. and spoke to Bagosora, who was chairing the meeting. Ndindiliyimana testified that he was seated next to Bagosora and overheard Nubaha tell Bagosora that “the situation at the camp 1184 T. 22 October 2008, pp. 10-11. 1185 T. 22 October 2008, pp. 10-11. 1186 T. 22 October 2008, pp. 10-11. 1187 T. 7 July 2008, p. 26 (ICS). 1188 T. 7 July 2008, p. 29 (ICS). 1189 T. 7 July 2008, p. 29 (ICS). 1190 T. 7 July 2008, p. 33 (ICS). 1191 T. 7 July 2008, p. 33 (ICS). 1192 T. 7 July 2008, pp. 33-34 (ICS). 17 May 2011 155/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T was tense”.1193 Thereafter, Bagosora ordered Nubaha to return to the camp and restore order, and promised to visit the camp in person after the conclusion of the meeting. According to Ndindiliyimana, Nubaha returned to the camp following Bagosora’s instructions.1194 663. Ndindiliyimana testified that shortly after Nubaha’s departure, the meeting was briefly interrupted by the sound of gunfire. The individuals who were tasked with ensuring security at the meeting stepped outside to find out what had happened. They returned shortly thereafter but did not suggest that anything serious had happened. The meeting was then resumed.1195 Defence Witness Jean Marie Vianney Nzapfakumunsi 664. Witness Nzapfakumunsi, an officer of the Gendarmerie in April 1994, was among the officers who attended the meeting at ESM on 7 April 1994. He testified that the attendees of that meeting were not informed of the killing of Belgian UNAMIR soldiers at Camp Kigali during the meeting.1196 Rather, the witness testified that he only learned of the death of the Belgian soldiers after the meeting at ESM.1197 665. Nzapfakumunsi gave evidence that the meeting at ESM was briefly interrupted by the sound of gunfire. Thereafter, Colonel Rusatira, the commander of ESM, left the venue of the meeting accompanied by two officers in order to

find out what had happened.1198 According to the witness, Rusatira returned to the meeting and spoke briefly with Bagosora.1199 Following this conversation, Bagosora ordered the resumption of the meeting.1200 However, none of the attendees at the meeting were informed about the cause of the shooting. 1.4.7.3 Deliberations 666. The Chamber has already considered in great detail the killing of the Belgian UNAMIR soldiers by Rwandan soldiers at Camp Kigali on 7 April 1994 in its factual findings for murder as a crime against humanity. In this instance, the Chamber will limit its deliberations to determining whether Ndindiliyimana’s alleged failure to prevent the killing of the Belgian soldiers lends support to the Prosecution’s allegation that he was implicated in a conspiracy to commit genocide against Tutsi.

667. The Chamber notes that the allegations pleaded in paragraphs 47 and 50 of the Indictment are predicated on two facts which, according to the Prosecution, lead to the inference that Ndindiliyimana was party to a conspiracy to commit genocide against Tutsi. First, the Prosecution alleges that Ndindiliyimana was aware of the killing of the Belgian soldiers while attending a meeting at a location situated in close proximity to Camp Kigali, where those soldiers were slain. Second, the Prosecution alleges that his refusal to intervene to prevent the killing of the Belgian soldiers was motivated by his desire to precipitate the withdrawal of the Belgian detachment of UNAMIR from Rwanda and thereby to diminish 1193 T. 17 June 2008, pp. 35-36. 1194 T. 17 June 2008, pp. 35-36. 1195 T. 17 June 2008, pp. 35-36. 1196 T. 18 February 2009, pp. 32-33. 1197 T. 18 February 2009, p. 33. 1198 T. 18 February 2009, p. 50. 1199 T. 18 February 2009, p. 50. 1200 T. 18 February 2009, p. 50. 17 May 2011 156/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T resistance to plans by him and others to perpetrate genocide against Tutsi. For reasons articulated below, the Chamber is not satisfied that the Prosecution has adduced sufficient evidence to substantiate these allegations.

668. The Chamber notes that in support of its claim that Ndindiliyimana was aware of the killing of the Belgian soldiers while attending the meeting at ESM, the Prosecution relies on the evidence of Witness Des Forges. She testified that the officers attending the meeting heard gunshots, which were part of the exchange of fire that led to the killing of the Belgian soldiers at Camp Kigali.1201 Her evidence suggests that Ndindiliyimana and other attendees at the meeting could not have been oblivious to the killing of those soldiers given the close proximity of Camp Kigali to ESM, where the meeting was held.1202 669. The Chamber has also heard evidence from a number of Defence witnesses who attended the meeting at ESM and who denied having been informed of the killing of Belgian soldiers during the meeting. These witnesses are CBP 7, a former member of the Gendarmerie General Staff, Nzapfakumunsi, a senior officer of the Gendarmerie, and Ndindiliyimana himself. The Chamber notes that these witnesses provided concordant evidence that the meeting at ESM was briefly interrupted by the sound of gunshots. However, none of the officers attending this meeting were informed that the gunshots were in any way linked to the killing of Belgian soldiers at the adjacent Camp Kigali. The witnesses testified that the individuals who were tasked with providing security at the meeting stepped out

to determine what had happened. Nzapfakumunsi recalled that among the people who left the meeting temporarily was Colonel Rusatira, the commanding officer of ESM. He later returned and spoke briefly with Bagosora, who was chairing the meeting. The witnesses further testified that none of the individuals who left the meeting following the gunshots reported that the gunshots were linked to the killing of the Belgian soldiers at Camp Kigali. Given the lack of information suggesting that anything serious had happened, Bagosora ordered the resumption of the meeting.

670. The Chamber has weighed the indirect evidence provided by Des Forges in light of the contravening evidence of the Defence witnesses who attended the meeting at ESM. Having done so, the Chamber is not satisfied that Des Forges’s indirect evidence reliably demonstrates that the officers who attended the meeting knew that the gunshots were related to the events that led to the slaying of the Belgian soldiers at Camp Kigali on 7 April 1994.

671. In determining Ndindiliyimana’s knowledge of the killing of the Belgian soldiers while attending the meeting at ESM, the Chamber has paid close attention to his evidence that in the course of that meeting, Colonel Nubaha, the commander of Camp Kigali, arrived and informed Bagosora that the camp had descended into a state of disorder. The Chamber has also considered the evidence of Dallaire that while on his way to the meeting at ESM, he saw two Belgian soldiers who appeared to be injured at Camp Kigali. Dallaire testified that at the end of the meeting at ESM, he informed Ndindiliyimana that he had seen some of his soldiers who appeared to be injured at Camp Kigali and asked him about the state of affairs at the camp. Ndindiliyimana responded that the camp had fallen into disorder and that measures were being taken to restore order. The Chamber notes that in his testimony, Ndindiliyimana confirmed that after the meeting at ESM, he conversed with Dallaire regarding the situation at Camp Kigali. 1201 T. 20 September 2006, p. 47. 1202 T. 20 September 2006, p. 47. 17 May 2011 157/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 672. Having weighed the evidence canvassed above, the Chamber is not satisfied that over and above suggesting that Ndindiliyimana was aware of the fraught situation prevailing at Camp Kigali, the evidence establishes that he knew of the killing of the Belgian soldiers at the camp on 7 April 1994 during the meeting held at ESM. The Chamber notes that Nubaha’s comments as relayed by Ndindiliyimana do not suggest that the killing of the Belgian soldiers was made known to anyone at the meeting.

673. It is undisputed that Dallaire informed Ndindiliyimana that he had seen the Belgian soldiers at Camp Kigali while heading to the meeting at ESM and asked Ndindiliyimana about the situation at the camp. However, there is no evidence indicating that Dallaire informed Ndindiliyimana that Belgian soldiers were being killed at Camp Kigali. Furthermore, the Chamber finds that the possibility that Dallaire might have informed Ndindiliyimana about the killing of Belgian soldiers at Camp Kigali after the meeting at ESM is precluded by the fact that Dallaire was not himself aware of the killings at that time. Rather, Dallaire testified that he learned of the killing of the Belgian soldiers in the evening of 7 April from Ndindiliyimana, after the conclusion of the meeting of the Crisis Committee held at the Army Headquarters chaired by Ndindiliyimana. Dallaire testified that Ndindiliyimana was himself informed of the death of the Belgian soldiers by an officer of the Rwandan Army in the evening of 7 April. This evidence raises doubts about the Prosecution’s allegation that Ndindiliyimana knew of the killing of the Belgian soldiers while attending the meeting at ESM in the morning of 7 April.

674. The Chamber is therefore not satisfied that the Prosecution has proved beyond reasonable doubt that Ndindiliyimana was aware of the killing of the Belgian soldiers while attending the meeting at ESM on 7 April 1994. Furthermore, the Chamber has doubts as to whether Ndindiliyimana, in his capacity as the Chief of Staff of the Gendarmerie, would have been able to intervene effectively at a Rwandan Army camp, which by all accounts had descended into chaos, and restore order there. This fact may explain his suggestion to Dallaire to seek the assistance of Rwandan Army officers in resolving the difficult situation at the camp.

675. Moreover, the evidence before the Chamber is inconsistent with the suggestion that Ndindiliyimana was in favour of the withdrawal of the Belgian detachment of UNAMIR from Rwanda in April 1994 in order to eliminate their potential resistance to the plans by Ndindiliyimana and his co-conspirators to undermine the implementation of the Arusha Accords and to commit genocide against Tutsi. The Chamber has credible evidence indicating that Ndindiliyimana consistently supported the implementation of the Arusha Accords and the bid by UNAMIR to ensure compliance with the Accords. The Chamber refers to the evidence of Defence Witness Luc Marchal, the commander of the UNAMIR units in Kigali, who was vested with responsibility for ensuring the implementation of the KWSA, a protocol agreement to the Arusha Accords. Marchal testified at considerable length that Ndindiliyimana supported the implementation of the Arusha Accords and collaborated with UNAMIR in its mission to ensure compliance with the Accords. His evidence is corroborated to a significant extent by the evidence of Prosecution Witnesses Dallaire and Frank Claeys and Defence Witnesses Johann Swinnen and André Vincent.

676. Furthermore, the Chamber notes that the evidence of Witnesses Des Forges, Marchal and Nzapfakumunsi suggests that Ndindiliyimana continued his support for the implementation of the Arusha Accords. Des Forges testified that Ndindiliyimana acting in collaboration with other moderate officers opposed Bagosora’s plans to take over power and 17 May 2011 158/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T subvert the implementation of the Arusha Accords. The fact that Ndindiliyimana supported a resolution of the crisis resulting from the death of President Habyarimana that complied with the provisions of the Arusha Accords is also supported by the evidence of Witnesses Marchal and Nzapfakumunsi. Marchal, who attended the meeting held at the Army Headquarters on the night of 6 to 7 April 1994, testified that Ndindiliyimana along with a number of the officers who attended that meeting supported the implementation of the Arusha Accords. Nzapfakumunsi, a senior officer of the Gendarmerie based in Kigali, was among the officers who attended the meeting held at ESM on 7 April. Nzapfakumunsi testified that the officers attending this meeting were divided on how to resolve the crisis caused by the death of President Habyarimana. One side supported the taking over of power by officers of the Rwandan Armed Forces in contravention of the Arusha Accords. The other side favoured the creation of a civilian government in compliance with the terms of the Arusha Accords. Nzapfakumunsi testified that Ndindiliyimana was among the officers who favoured the implementation of the Arusha Accords. In view of this evidence, the Chamber is not persuaded by the Prosecution submissions that Ndindiliyimana was indifferent to the killings of the Belgian soldiers because he wanted those soldiers to be withdrawn from Rwanda given the likely prospect that they would have opposed the plan to subvert the implementation of the Arusha Accords and commit massacres against Tutsi.

677. The Indictment also alleges that the withdrawal of the Belgian detachment of UNAMIR from Rwanda in April 1994 and the killing of a number of moderate politicians left an institutional void, which was subsequently filled by the interim government composed of extremist Hutu politicians formed at the behest of Ndindiliyimana and Bagosora. The Chamber recalls its finding when discussing the allegations in paragraph 45 and 46 of the Indictment that Ndindiliyimana had no role in the selection of the politicians who formed the interim government. That being the case, the Chamber finds the Prosecution’s claim that Ndindiliyimana favoured the withdrawal of the Belgian contingent of UNAMIR in order to facilitate the establishment of a government composed of Hutu politicians who were implacably opposed to the Arusha Accords and cooperation with the RPF to be implausible.

678. The suggestion that Ndindiliyimana failed to prevent the killing of the Belgian soldiers so as to precipitate their withdrawal from Rwanda is rendered even less credible by the evidence of Witnesses Swinnen and Des Forges on the conduct of Ndindiliyimana shortly after the slaying of the Belgian soldiers on 7 April 1994. Swinnen, Belgium’s ambassador to Rwanda in April 1994, testified that Ndindiliyimana called him in the morning of 8 April, between 2.00 and 3.00 a.m., and pleaded with him to ensure that the Belgian detachment of UNAMIR was not withdrawn from Rwanda following the killing of some of its members on 7 April. Swinnen testified that Ndindiliyimana expressed concerns that the withdrawal of the Belgian detachment would have a deleterious effect on the efforts being undertaken to implement the Arusha Accords.1203 Swinnen further testified that Ndindiliyimana sounded sincere in his requests to ensure that members of the Belgian detachment of UNAMIR were not withdrawn from Rwanda.1204 679. In assessing this allegation, the Chamber has also accorded weight to the testimony of Des Forges on Ndindiliyimana’s telephone conversation with Swinnen in the morning of 8 April 1994. Des Forges testified that Ndindiliyimana’s efforts to ensure the continued stay of the Belgian detachment of UNAMIR, as evidenced by his telephone conversation with 1203 T. 22 October 2008, pp. 10-11. 1204 T. 22 October 2008, pp. 10-11. 17 May 2011 159/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Swinnen, were prompted by fears that their withdrawal would lead to the killings of people like him, a senior officer of the Gendarmerie who hailed from south of Rwanda, and members of other ethnic groups by the extremists who had taken over power at the time and who demonstrated ruthlessness in eliminating potential sources of resistance.1205 680. Having considered the evidence delineated above, the Chamber does not accept that Ndindiliyimana failed to intervene to prevent the killing of the Belgian soldiers knowing that such killings would precipitate the withdrawal of the entire Belgian detachment of UNAMIR as part of a conspiracy to commit genocide against Tutsi. It follows that the Prosecution has not proved the allegations described in paragraphs 47 and 50 of the Indictment beyond reasonable doubt. 1.4.8 The Killing of Opposition Politicians Between 7 and 11 April 1994 1.4.8.1 Introduction 681. The Indictment alleges that between 7 and 11 April 1994, elements of the Presidential Guard, the RECCE Battalion and Interahamwe murdered or sought to murder all political figures in the opposition who had been designated to occupy prominent positions in the broad-based transitional government that was to be put in place pursuant to the Arusha Accords. The victims included the Prime Minister of the

transitional government who was in office until 7 April, Agathe Uwilingiyimana, Ministers Frédéric Nzamurambaho, Faustin Rucogoza, Landouald Ndasingwa, Boniface Ngulinzira and the President of the Constitutional Court, Joseph Kavaruganda.1206 682. The Indictment further alleges that although the Gendarmerie was responsible for protecting those politicians, and although Ndindiliyimana had been informed of the threat to their lives well before the events, Ndindiliyimana did not take adequate steps to protect them from being killed, nor did he in any way reorganise the security system after the first massacres were committed.1207 Finally, the Indictment alleges that Ndindiliyimana’s refusal to intervene to prevent the killing of prominent opposition politicians was motivated by a desire to create an institutional vacuum and thereby to remove obstacles to the spread and continuation of the massacres.1208 1.4.8.2 Evidence 1.4.8.2.1 Prosecution Evidence Prosecution Witness Annonciata Mukarubibi 683. Witness Mukarubibi was the wife of the late Joseph Kavaruganda, who was the President of the Constitutional Court in April 1994. The witness and her husband lived in Kimihurura neighbourhood in Kigali, where most of the ministers in the transitional 1205 T. 12 October 2006, p. 19. 1206 Indictment, para. 48. 1207 Indictment, para. 49. 1208 Indictment, para. 50. 17 May 2011 160/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T government of the time lived. Their neighbours included Frédéric Nzamurambaho (Minister of Agriculture) and Faustin Rucogoza (Minister of Information).1209 684. At around 5.30 a.m. on 7 April 1994, the witness and her husband were awoken by a Ghanaian UNAMIR soldier who was stationed at their house. The soldier informed them that soldiers had arrived at their house and wanted to see her husband Kavaruganda. According to the witness, about 30 soldiers had arrived at her house,1210 including gendarmes and some soldiers who had the “insignia of commandos” inscribed on their uniforms.1211 The witness stated that those soldiers were led by an officer called Captain Kabrera.

685. Witness Mukarubibi testified that while her husband was speaking to the soldiers in their living room, she heard Captain Kabrera instructing her husband to come with him because they did not want Kavaruganda to “swear in the RPF” into the transitional government.1212 Thereafter, Kavaruganda returned to the bedroom where his wife was waiting and locked all the doors leading to their room.1213 Kavaruganda then instructed his children to hide.

686. The witness testified that at around 6.00 a.m., Kavaruganda called UNAMIR and requested their assistance. UNAMIR officials advised him to “take cover” and wait for the assistance of their soldiers who were expected to arrive at his house shortly.1214 Shortly thereafter, the soldiers who were inside their house began to shoot and break through all the doors in the house.1215 Kavaruganda then left his room and was informed by Kabrera, the leader of the soldiers, that he intended to take him to the location “where [they had taken] other government personalities, where [they had taken] Landouald Ndasingwa [and] Minister Faustin Rucogoza … That is where we are taking you to so that you may not officiate the swearing-in ceremony. We want to ensure your security”. Kabrera then ordered Kavaruganda to come with him.1216 687. Subsequently, Kavaruganda, the witness and their two children were ordered to board a red military vehicle. After driving for about 100 metres, the vehicle stopped and Kabrera asked the witness and her daughters to disembark. The witness did so and returned home.1217 688. The witness testified that a short while later, Kabrera returned with Kavaruganda to their house.1218 While at their house, Kavaruganda attempted to give her his identity card and some money. However, those items were seized by soldiers who had remained at their house. The soldiers threw

Kavaruganda’s identity card on the ground and asked the witness, “Do you think your husband really needs his identity card anymore?” The witness inferred from this comment that the soldiers intended to kill her husband. Kabrera then left with Kavaruganda and the witness never saw her husband again.1219 1209 T. 14 November 2006, p. 38. 1210 T. 14 November 2006, p. 48. 1211 T. 14 November 2006, pp. 41-42. 1212 T. 14 November 2006, pp. 42, 45. 1213 T. 14 November 2006, pp. 42, 45. 1214 T. 14 November 2006, p. 45. 1215 T. 14 November 2006, pp. 46-47. 1216 T. 14 November 2006, pp. 47-48. 1217 T. 14 November 2006, p. 49. 1218 T. 14 November 2006, p. 51. 1219 T. 14 November 2006, pp. 51-55. 17 May 2011 161/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 689. Presidential Guard soldiers who remained at the witness’ house told her, “Why would you get the President killed? ... Why didn’t you advise your husband not to disrespect President Habyarimana?”1220 At around 10.00 a.m., those soldiers informed her that they were heading to the house of Frédéric Nzamurambaho, who was a cabinet minister of the government and who lived near them, in order to kill him. The soldiers drove in the direction of Nzamurambaho’s house and shortly thereafter, the witness heard gunshots and screaming coming from Nzamurambaho’s house. The witness recalled that these sounds lasted for approximately 30 minutes. A short while later, the witness met Nzamurambaho’s son who informed her that his father had been killed by soldiers at their house.1221 690. On 9 April, the witness heard on the radio that Kavaruganda had been killed. 1222 Prosecution Witness CJ 691. Witness CJ lived in the house of Frédéric Nzamurambaho in Kimihurura, Kigali in April 1994. He testified that on the night of 6 April 1994, he was alerted by the gendarmes posted at Nzamurambaho’s house that Presidential Guards had visited that house twice.1223 692. In the morning of 7 April, the witness saw soldiers arrive at the neighbouring house of Joseph Kavaruganda. The witness claimed to have heard those soldiers asking Kavaruganda to open the door and stating that they had come to fetch him.1224 According to the witness, the soldiers appeared to be annoyed since Kavaruganda was not complying with their instructions.

693. Shortly thereafter, approximately 12 soldiers whom the witness believed to be members of the Presidential Guard arrived at Nzamurambaho’s house, but Nzamurambaho was not there at the time.1225 The soldiers asked all the inhabitants of the house to assemble in the living room, and then the soldiers searched the house. Some of the soldiers left at that point, leaving approximately six soldiers at the house.

694. The witness testified that the soldiers then attacked and shot at Nzamurambaho’s family. While the attack was unfolding, the witness escaped and hid in the ceiling of the house. Approximately 15 minutes later, the witness heard Nzamurambaho, who had returned to his house, speaking with the soldiers who demanded money from him. Thereafter, the witness heard a gunshot.1226 695. Witness CJ testified that when he came down from the ceiling, he saw the slain bodies of Nzamurambaho and several members of his family lying in the house.1227 1220 T. 14 November 2006, p. 55. 1221 T. 14 November 2006, pp. 55-56. 1222 T. 14 November 2006, p. 63. 1223 T. 28 June 2006, pp. 18-19 (ICS). 1224 T. 28 June 2006, pp. 19-21, 32 (ICS). 1225 T. 28 June 2006, pp. 19, 23 (ICS). 1226 T. 28 June 2006, p. 21 (ICS). 1227 T. 28 June 2006, pp. 21, 23 (ICS). 17 May 2011 162/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness Florida Mukeshimana 696. Witness Mukeshimana was married to Boniface Ngulinzira, who was a minister in the transitional government in April 1994. The witness testified that on 7 April 1994, they were informed by UNAMIR soldiers posted at their house that Landouald Ndasingwa, a fellow minister in the transitional government, had been killed. They were then advised by those soldiers to leave their house. They were evacuated to the École Technique Officielle in Kicukiro (ETO) where a Belgian contingent of UNAMIR was stationed.1228 697. The witness testified that on 11 April, the Belgian UNAMIR soldiers who were protecting the refugees at ETO left that location. The witness and her husband therefore decided to return to their house. While on their way to their house, they were intercepted by a group of Interahamwe and taken to a house where they found other refugees. Later, about six soldiers arrived at that house and asked her husband to identify himself. Once her husband identified himself by name, the soldiers took him away and the witness never saw him again.1229 698. On 26 April, the witness heard an RTLM radio broadcast in which it was announced, “We have exterminated all RPF accomplices, so let Ngulinzira go again and sell our country to the RPF.” This announcement led the witness

to conclude that her husband had been killed.1230 Prosecution Witness BB 699. Witness BB was a member of the Presidential Guard based at Camp Kimihurura on 6 April 1994.1231 He testified that while at the camp on 7 April, at around 11.00 a.m., he overheard a radio conversation between Warrant Officer Rulinda and Major Protais Mpiranya, the commander of the Presidential Guards. According to the witness, Rulinda informed Mpiranya that the Minister of Information, Rucogoza, had been brought into Camp Kimihurura.1232 700. In his examination-in-chief, the witness stated that Mpiranya angrily answered Rulinda by saying, “Why do you spare such persons?”1233 However, in cross-examination the witness admitted that his evidence-in-chief regarding Mpiranya’s response to Rulinda was inconsistent with the account that he had given in his pre-trial statement. Contrary to his evidence-in-chief, the witness stated in his pre-trial statement that he heard Mpiranya respond to Rulinda’s query by saying, “Why do you keep those people around?” as opposed to saying, “Why do you spare such persons?”1234 The witness testified that his pre-trial statement is more accurate than his evidence-in-chief.

701. The witness testified that about 30 minutes after hearing the conversation between Rulinda and Mpiranya, he heard gunshots coming from the canteen area of the camp. He was later informed by a corporal named Mujyambere that Minister Rucogoza had been shot and 1228 T. 6 September 2006, pp. 30-31. 1229 T. 6 September 2006, pp. 34-36. 1230 T. 6 September 2006, p. 39. 1231 T. 15 June 2006, pp. 24-25. 1232 T. 15 June 2006, pp. 30-32. 1233 T. 15 June 2006, p. 30. 1234 T. 19 June 2006, p. 61. 17 May 2011 163/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T that the President of the Constitutional Court, Joseph Kavaruganda, was being held in custody. 1235 702. The witness also testified that at some point between 11.00 a.m. and 12.00 noon, he saw a group of Para Commandos leave the camp. Approximately 15 minutes later, the witness heard gunshots and then the Para Commandos returned to the camp. Witness BB testified that he was informed by another soldier called Adolph Musabyimana that the Para Commandos had gone out to the house of Landouald Ndasingwa and killed him.1236 Prosecution Expert Witness Alison Des Forges 703. Witness Des Forges testified that a number of politicians who were considered to be supportive of the Arusha Accords were killed following the death of President Habyarimana on 6 April 1994.1237 Those politicians included Rucogoza,1238 Agathe Uwilingiyimana, Kavaruganda, Ngulinzira, Ndasingwa and Nzamurambaho.1239 704. In her expert report, Des Forges provided further explanations for the killings of those politicians. She stated that “within hours” of the death of President Habyarimana, members of the armed forces had killed political leaders opposed to Hutu Power, thus fulfilling the prediction made by the head of military intelligence in July 1992. The slain politicians were seen as responsible for concessions to the RPF and several of

them, including the prime minister, were also seen as obstacles to installing a new political configuration, comprised only of Hutu Power supporters. After these leaders from the previous government were eliminated on April 7, military and political leaders of Hutu Power designated and installed a new government to implement its objectives.1240 1.4.8.2.2 Defence Evidence Defence Witness Luc Marchal 705. Witness Marchal was the commander of the UNAMIR units in Kigali secteur in 1994. He testified that in the morning of 7 April 1994, between 7.00 and 7.15 a.m., Colonel Bavugamenshi, the commander of the gendarmerie battalion tasked with providing close protection to high profile politicians, arrived at his office and informed him that Presidential Guard soldiers had assassinated a number of politicians in the Kimihurura neighbourhood.1241 The witness further testified that Bavugamenshi asked him to intervene to avert further killings of politicians, because Bavugamenshi’s unit was incapable of preventing Presidential Guard soldiers from perpetrating further atrocities.1242 706. Marchal testified that the only unit of UNAMIR that could effectively intervene in Kimihurura in order to avert such assassinations was the one that formed the escort of Prime 1235 T. 15 June 2006, p. 30. 1236 T. 15 June 2006, pp. 46-47, 53; T. 19 June 2006, pp. 8-9, 70-71. 1237 T. 20 September 2006, p. 22. 1238 T. 16 October 2006, p. 42. 1239 T. 20 September 2006, p. 55. 1240 Prosecution Exhibit 107A, p. 30. 1241 T. 17 January 2008, p. 54. 1242 T. 17 January 2008, p. 54. 17 May 2011 164/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Minister Agathe Uwilingiyimana.1243 However, this unit could not intervene in Kimihurura since it was deployed at the Prime Minister’s residence.1244 In light of this circumstance, he requested members of the Belgian mortar battalion to intervene in Kimihurura, but their intervention was not successful in preventing further assassinations of moderate politicians residing in that area.1245 707. According to Marchal, the killings of moderate politicians by Presidential Guard soldiers appeared to be organised. He further testified that Presidential Guard soldiers moved in groups of about 20 soldiers during their incursions into the houses of the politicians whom they eventually assassinated. Given the number and organisation of these assailants, the UNAMIR soldiers who were posted at the houses of the politicians found it difficult to prevent the killings by Presidential Guard soldiers.1246 708. Marchal gave evidence that Landouald Ndasingwa, who was among the politicians who were assassinated following the death of President Habyarimana, called him shortly before he was killed and informed him about the presence of a Presidential Guard soldier in front of his house.1247 709. According to Marchal, the killings of the politicians by Presidential Guard soldiers may have been motivated by a desire to avenge

the death of President Habyarimana and the Chief of Staff of the Army, Nsabimana, by targeting individuals who were perceived to be responsible for their deaths.1248 Marchal further testified that members of the Presidential Guard were known for their devotion to Habyarimana and Nsabimana.1249 Witness Claudien Ndagijimana 710. Witness Ndagijimana was a member of the gendarmerie battalion responsible for the security of high profile politicians in April 1994.1250 The battalion was commanded by Lieutenant Colonel Bavugamenshi.1251 711. The witness testified that around 11.00 a.m. on 7 April 1994, he was instructed by Bavugamenshi, who had received reports about the killing of a number of politicians, to visit their houses.1252 Thereafter, the witness visited the houses of Joseph Kavaruganda and Frédéric Nzamurambaho and found that they had been killed.1253 The witness testified that three gendarmes had been posted at the houses of those politicians.1254 However, during his visits to their houses on 7 April, the witness did not find any of the gendarmes or UNAMIR 1243 T. 17 January 2008, p. 54. 1244 T. 17 January 2008, p. 55. 1245 T. 17 January 2008, p. 55. 1246 T. 17 January 2008, p. 55. 1247 T. 21 January 2008, p. 51. 1248 T. 21 January 2008, p. 52. 1249 T. 21 January 2008, p. 52. 1250 T. 5 June 2008, p. 7. 1251 T. 5 June 2008, p. 7. 1252 T. 5 June 2008, pp. 10, 62. 1253 T. 5 June 2008, p. 10. 1254 T. 5 June 2008, pp. 11, 63. 17 May 2011 165/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T soldiers who were posted to those houses nor did he have any information regarding their exact whereabouts.1255 712. The witness testified that Bavugamenshi did not inform him who was responsible for the killings of the politicians on 7 April.1256 However, he heard that members of the Presidential Guard soldiers were responsible for those killings.1257 The witness testified that gendarmes who were posted at the politicians’ houses of those politicians could not prevent their killings because they were outnumbered by Presidential Guard soldiers.1258 He further testified that he was informed that those gendarmes were disarmed by the Presidential Guard soldiers during the killings and were taken to the Presidential Guard camp in Kimihurura.1259 However, the witness received no information on what became of those gendarmes.1260 Witness Jean Marie Vianney Nzapfakumunsi 713. Witness Nzapfakumunsi testified that he met Lieutenant Colonel Bavugamenshi, the commander of the VIP protection unit of the Gendarmerie, prior to the commencement of the meeting of officers of the Rwandan Armed Forces held at ESM on 7 April 1994. The witness testified that Bavugamenshi informed him that members of the Presidential Guard had killed a number of politicians allied with opposition parties on the night of 6 to 7 April

1994.1261 1.4.8.3 Deliberations 714. The Chamber is satisfied beyond reasonable doubt that Joseph Kavaruganda, Frédéric Nzamurambaho, Landouald Ndasingwa, Boniface Ngulinzira and Faustin Rucogoza, all of whom were senior members of the transitional government under the premiership of Agathe Uwilingiyimana, were killed in the immediate aftermath of the death of President Habyarimana. The Chamber recalls that none of the parties in this trial dispute the killing of these politicians. However, there is considerable disagreement as to whether the politicians were killed in order to further a conspiracy to commit genocide against Tutsi.

715. Having closely reviewed the evidence, the Chamber is not satisfied that there is sufficient evidence to find that gendarmes were implicated in the killings of these politicians. There is concordant evidence suggesting that Presidential Guard soldiers played a leading role in those killings. Prosecution Witness Annonciata Mukarubibi, Kavaruganda’s wife, Witness CJ, who lived at Nzamurambaho’s house at the time of the events, and Witness BB, a Presidential Guard soldier based at Kimihurura, all implicated Presidential Guard soldiers in the killings of Kavaruganda, Nzamurambaho and Rucogoza. Witness Marchal, the commander of the UNAMIR units operating in Kigali, testified that he received a telephone call from Landouald Ndasingwa shortly before the latter was killed. In the course of that conversation, Ndasingwa informed Marchal about his concerns for his security and told him that he could see a Presidential Guard soldier outside his house. The witness further testified that before their conversation was cut short, he heard gunshots and grenade explosions. This 1255 T. 5 June 2008, pp. 10-11, 62. 1256 T. 5 June 2008, p. 64. 1257 T. 5 June 2008, p. 64. 1258 T. 5 June 2008, p. 65. 1259 T. 5 June 2008, p. 12. 1260 T. 5 June 2008, p. 65. 1261 T. 18 February 2009, p. 32. 17 May 2011 166/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T leads the Chamber to conclude that Presidential Guard soldiers had a significant role in the deaths of Kavaruganda, Nzamurambaho, Rucogoza and Ndasingwa.

716. Based on the evidence of Witness Florida Mukeshimana, Boniface Ngulinzira’s wife, the Chamber is satisfied that the latter was killed by soldiers of the Rwandan Army after his abduction on 11 April 1994 following a brief stay at ETO. However, the Chamber has no specific information on the unit of the Rwandan Army to which the assailants who killed Ngulinzira belonged. The fact that he was killed because of his avid support for the Arusha Accords is inferable from Witness Mukeshimana’s testimony that on 26 April, she heard a radio broadcast by RTLM in which it was announced, “We have exterminated all RPF accomplices, so let Ngulinzira go again and sell our country to the RPF”.1262 In addition to the evidence set out above, the Chamber has heard credible evidence, albeit of a general nature, from a number of Defence witnesses confirming its finding that Presidential Guard soldiers played a significant, if not exclusive, role in the killings of these politicians. The Chamber recalls that Witness Marchal testified that in the morning of 7 April, he was informed by Lieutenant Colonel Bavugamenshi, the commander of the VIP security battalion of the Gendarmerie, that Presidential Guard soldiers had assassinated a number of politicians residing in the Kimihurura area. Marchal further testified that Bavugamenshi asked him to intervene to stop further killings of moderate politicians by members of the Presidential Guard since his unit was incapable of preventing the Presidential Guards from committing atrocities.

717. Witness Nzapfakumunsi, a senior officer of the Gendarmerie in April 1994, testified to having been informed by Lieutenant Colonel Bavugamenshi shortly before the commencement of the meeting at ESM in the morning of 7 April that soldiers of the Presidential Guard had assassinated a number of politicians. Witness Ndagijimana, a member of the Gendarmerie’s security battalion, testified that he was ordered to visit the houses of the slain politicians and pick up gendarmes who were posted at these houses and return them to Camp Kacyiru. He testified that at a number of these houses, he did not find any gendarmes and upon inquiry he was informed that the gendarmes had been disarmed by Presidential Guard soldiers during the attack against the politicians and taken to the Presidential Guard camp at Kimihurura.

718. In determining whether gendarmes had any role in the killing of these politicians, the Chamber has considered the evidence of Witness Annonciata Mukarubibi, the wife of Kavaruganda, one of the politicians slain on 7 April 1994. The witness testified that she saw gendarmes together with soldiers inside her house just before the attack against her family.1263 However, aside from seeing gendarmes inside the house together with soldiers, her evidence contains no specific information implicating gendarmes in the attack. Given that gendarmes were posted at the house of Kavaruganda, as suggested by the evidence of Witness Ndagijimana, the Chamber is not satisfied that the mere presence of gendarmes inside Kavaruganda’s house at the time, in the absence of additional evidence, is sufficient to support the conclusion that gendarmes took part in the attack against Kavaruganda’s family and his eventual killing. 1262 T. 6 September 2006, p. 39. 1263 T. 14 November 2006, pp. 42-45. 17 May 2011 167/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 719. The Chamber has also considered the submissions made by the Prosecution in the course of its cross-examination of Defence Witness Marchal regarding the possible complicity of gendarmes in the killing of the moderate politicians. The Prosecution referred to a statement in Marchal’s book on his experiences in Rwanda to the effect that soldiers and gendarmes erected roadblocks in the Kimihurura area in order to isolate that area while members of the Presidential Guard were assassinating moderate politicians. The Prosecution submitted that this statement leads to the inference that gendarmes collaborated with Presidential Guard soldiers in the killing of these politicians.1264 Marchal admitted that he wrote this statement in his book and that the conduct of gendarmes could be construed as supportive of the crimes perpetrated by Presidential Guards.1265 However, Marchal added that he was not aware of the reasons that prompted gendarmes to establish roadblocks in the area. He also disputed the Prosecution’s submission that gendarmes supported the Presidential Guard soldiers in assassinating politicians, since members of the Presidential Guard required no such assistance given their high level of organisation and the fact they had a base in Kimihurura, where most of these politicians resided.1266 720.

Having weighed the Prosecution’s submissions and the evidence of Witness Marchal, the Chamber is not satisfied that it has credible evidence suggesting that gendarmes colluded with Presidential Guard soldiers in the killing of these politicians. Marchal was at best tentative as to whether the establishment of roadblocks by gendarmes in the Kimihurura area at the time that the politicians were killed was inextricably linked to the killings of the politicians by Presidential Guard soldiers.

721. The Chamber also notes that it has heard evidence suggesting that far from extending support to the killings of politicians by soldiers of the Presidential Guard, some gendarmes who were posted at politicians’ houses attempted to warn them of the suspicious activities of Presidential Guard soldiers in the Kimihurura area. The Chamber refers to the evidence of Witness CJ that gendarmes guarding Nzamurambaho warned the witness of the suspicious activities of the Presidential Guard soldiers in the area before the attack against Nzamurambaho’s family.

722. The Chamber also notes that there is a considerable body of evidence suggesting that gendarmes who were posted at the houses of these politicians were overwhelmed by the Presidential Guard soldiers as opposed to colluding with them in carrying out the assassinations. The Chamber refers to the evidence of Witness Marchal suggesting that the small number of UNAMIR soldiers who were guarding these politicians were incapable of stopping a large group of Presidential Guard soldiers who were well-armed and organised.1267 His evidence, while not directly related to the conduct of gendarmes in the politicians’ houses, illustrates the situation that prevailed at the time. Marchal also testified that in the morning of 7 April, Bavugamenshi, the commander of the gendarmerie battalion responsible for the protection of high profile politicians, requested him to intervene to prevent Presidential Guard soldiers from committing further crimes since his unit was overwhelmed by Presidential Guard soldiers. 1264 T. 21 January 2008, pp. 52-54. 1265 T. 21 January 2008, pp. 55-56. 1266 T. 21 January 2008, pp. 55-56. 1267 T. 17 January 2008, p. 55. 17 May 2011 168/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 723. This evidence is also corroborated to a significant extent by the evidence of Defence Witness Claudien Ndagijimana. He testified that in the morning of 7 April, he was ordered by Bavugamenshi to conduct a visit to the houses of a number of high profile politicians who were reported to have been attacked. The witness testified that he visited the houses of Kavaruganda and Nzamurambaho during this mission and found that they had been killed. However, he did not find either gendarmes or UNAMIR soldiers who had been posted to the houses of those politicians and when he inquired about their whereabouts, he was informed that they had been disarmed by Presidential Guard soldiers during the attacks and taken to the Presidential Guard camp located in Kimihurura.1268 724. The Chamber also recalls the evidence of Witness Des Forges that Ndindiliyimana acted in concert with other moderate officers of the Rwandan Armed Forces to restrain members of the Presidential Guard from committing further atrocities in the immediate aftermath of the killing of President Habyarimana.

725. In view of Ndindiliyimana’s efforts to restrain Presidential Guard soldiers from perpetrating further atrocities, considered in concert with the lack of evidence suggesting that gendarmes were implicated in the killings of politicians and the considerable evidence indicating that gendarmes stationed at politicians’ houses were overwhelmed by Presidential Guard soldiers during the attack, the Chamber does not accept the Prosecution’s claim that Ndindiliyimana deliberately failed to protect these politicians from being killed in order to further a conspiracy to commit genocide against Tutsi.

726. Furthermore, the Chamber notes that the Indictment alleges that Ndindiliyimana had prior knowledge of the threat that these politicians may be killed. The Prosecution failed to adduce any evidence to support this aspect of the allegation. In any event, this claim by the Prosecution presupposes that the killings were carried out in accordance with a preconceived plan. There is little evidence to support this assumption.

727. That said, the Chamber is satisfied that these killings were organised. The Chamber finds it inconceivable that lower echelon soldiers, acting on their own, would systematically kill a number of leading national politicians without the orders and knowledge of their superiors. The fact that these attacks were led by an officer with the rank of a captain, and also the fact that some of these politicians such Kavaruganda and Rucogoza were abducted from their houses and held at Camp Kimihurura of the Presidential Guard before they were killed, supports the Chamber’s finding regarding the organised nature of these killings. The Chamber also recalls the evidence of Luc Marchal who testified that at the time, the killings of these politicians appeared to him to be well-organised operations. The fact that the assassinations were organised, however, does not necessarily entail that they were planned well in advance in the absence of additional evidence to that effect.

728. The Chamber also recalls that paragraph 50 of the Indictment alleges that Ndindiliyimana failed to prevent the moderate politicians from being killed in order to eliminate a potential obstacle to the plan to commit genocide against Tutsi and install a government that was amenable to that plan. The Chamber cannot rule out the possibility that the killings of these politicians were designed to eliminate opposition to the establishment of an interim government composed solely of extremist Hutu politicians in contravention of the Arusha Accords. The Chamber also accepts, based on the evidence of Des Forges, that the 1268 T. 5 June 2008, pp. 10-11, 62. 17 May 2011 169/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T establishment of an interim government composed of Hutu politicians implacably opposed to the Arusha Accords contributed to the escalation of the massacres against Tutsi.

729. However, the Chamber recalls its earlier findings regarding the allegations in paragraphs 45 to 47 of the Indictment that Ndindiliyimana had no significant role in the establishment of the interim government composed solely of extremist Hutu politicians and that he consistently supported the implementation of the Arusha Accords both before and after 6 April 1994. In light of these findings, the Chamber is not persuaded that Ndindiliyimana endorsed the killings of these politicians in order to facilitate the establishment of the interim government in contravention of the terms of the Arusha Accords as part of a conspiracy to commit genocide against Tutsi.

730. It follows that the Chamber is not satisfied that the Prosecution has proved beyond reasonable doubt that Ndindiliyimana was implicated in the killings of moderate politicians who supported the implementation of the Arusha Accords as part of a conspiracy to commit genocide against Tutsi. The Chamber therefore dismisses the allegations pleaded in paragraphs 48 to 50 of the Indictment. 1.4.9 Transfer of Gendarmes to the War Front 1.4.9.1 Introduction 731. The Indictment alleges that in April 1994, Augustin Ndindiliyimana had Majors Cyriaque Habyarimana and Jabo, who had allegedly refused to be involved with the massacres in Butare and Kibuye, transferred to the frontline.1269 1.4.9.2 Evidence 1.4.9.2.1 Prosecution Evidence Prosecution Witness KJ 732. Witness KJ was a gendarme based at Camp Kibuye of the Gendarmerie in April 1994.1270 He testified that a few days after the death of President Habyarimana on 6 April, the préfet of Kibuye, Clement Kayishema, arrived at the camp and had discussions with Major Jabo, the commander of the Kibuye squad of the Gendarmerie. The witness, who was standing guard at the entrance gate to the camp, testified that he was located close to where Jabo was conversing with the préfet and that he overheard their conversation. The witness heard Jabo inform the préfet that he intended to offer protection to the people who had fled their houses

following the death of the President, provided that they all gathered in stadiums or churches.1271 733. Following his discussion with Préfet Kayishema, Jabo deployed six gendarmes to the Gatwaro Stadium where a large number of people fleeing the violence in Kibuye had sought refuge.1272 However, those gendarmes returned to the camp the following day and claimed 1269 Indictment, para. 51. 1270 T. 21 March 2006, pp. 2-3. 1271 T. 21 March 2006, pp. 14-15. 1272 T. 21 March 2006, p. 15. 17 May 2011 170/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T that they had been expelled from the stadium by Préfet Kayishema, who intended to replace them with Interahamwe.1273 734. Witness KJ also testified about a second visit to the camp by Préfet Kayishema in April 1994. On this occasion, the préfet held discussions with Major Jabo in his office.1274 Half an hour later, the préfet left Jabo’s office and appeared to be visibly infuriated.1275 735. Shortly thereafter, the witness heard Préfet Kayishema speaking loudly about his frustration at Jabo’s refusal to allow him to enlist gendarmes in the killing of Tutsi whom he accused of being responsible for the death of President Habyarimana.1276 The witness also heard the préfet say that he intended to address his requests to the senior officers of the Gendarmerie.1277 736. Major Jabo was subsequently transferred from the Kibuye squad to Kigali with some troops under his command.1278 Witness KJ claimed to have seen a letter from the Gendarmerie Chief of Staff effecting Jabo’s transfer and appointing Lieutenant Masengesho to be the new commander of the Kibuye squad of the Gendarmerie.1279 1.4.9.2.2 Defence Evidence Defence Witness Jean Marie Vianney Nzapfakumunsi 737. Witness Nzapfakumunsi, an officer of the Gendarmerie, testified that from 7 April 1994 he was stationed at Camp Kacyiru in Kigali. He served as the

S3 officer at the camp starting on 17 April 1994.1280 The witness testified that Camp Kacyiru came under sustained attack by the RPF a few days after 9 April 1994. He stated that due to a lack of adequate troops within the Gendarmerie, the high command of the Gendarmerie sought reinforcements from the Army in order to defend the camp. In response to this request, the Army General Staff sent the Huye Battalion to the camp.1281 However, the deployment of the Battalion at Camp Kacyiru did not last long because it was instructed to attend to an important mission away from the camp.1282 738. Following the departure of the Huye Battalion, two Gendarmerie companies from Butare and Kibuye were brought to Camp Kacyiru to reinforce the defence of the camp. According to the witness, the company from Kibuye was led by Major Jabo, while the one from Butare was led by Major Habyarabutuma.1283 The witness testified that his evidence on the purpose behind the deployment of the two companies at Camp Kacyiru is also based on conversations that he had with Jabo and Habyarimana during their assignment at the 1273 T. 21 March 2006, pp. 15-16. 1274 T. 21 March 2006, p. 16. 1275 T. 21 March 2006, p. 17. 1276 T. 21 March 2006, p. 17. 1277 T. 21 March 2006, p. 17. 1278 T. 21 March 2006, pp. 24-25. 1279 T. 21 March 2006, pp. 24-25. 1280 T. 18 February 2009, p. 5. 1281 T. 18 February 2009, p. 16. 1282 T. 18 February 2009, p. 16. 1283 The Chamber notes that in paragraph 51 of the Indictment, the Major is named as “Cyriaque Habyarimana”, but in the transcripts of Witness Nzapfukumunsi’s testimony, he is referred to as Major “Habyarabutuma” of Butare. 17 May 2011 171/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T camp.1284 According to Witness Nzapfakumunsi, but for the reinforcements provided by the two companies, Camp Kacyiru would not have withstood the RPF offensive for as long as it did.1285 The Accused Ndindiliyimana 739. Ndindiliyimana rejected the accusations levelled against him by the Prosecution that he transferred Majors Jabo and Habyarimana from their respective units because of their opposition to the killings of Tutsi. Ndindiliyimana explained that the two officers were transferred to Camp Kacyiru in Kigali for legitimate military reasons. According to Ndindiliyimana, the attack against Camp Kacyiru in April 1994 provided the backdrop to the deployment of those officers to Camp Kacyiru. Ndindiliyimana testified: For the Gendarmerie, it was the Kacyiru camp that was most under threat. We have referred to the specialised units and provided the figures regarding the Kacyiru camp. It is only the Kigali detachment reserves that were available to defend that camp, since the others had been dispatched to other areas in the country. So there were about 300 persons remaining to defend that camp. But given the scope of the camp and the defence tactics in place, it required that at least three battalions be used to effectively defend that camp.1286 740. Ndindiliyimana stated that given the strategic

importance of Camp Kacyiru, the intensity of the attack that the RPF launched against the camp and the insufficient number of gendarmes available to him in Kigali to repel the attack, he requested reinforcement from the army in order to defend the camp. A battalion of the army known as the Huye Battalion was subsequently dispatched to assist with the defence of the camp. However, the Huye Battalion soldiers were reassigned away from the camp shortly after their arrival.

741. Ndindiliyimana therefore requested two companies from the Kibuye and Butare gendarmerie squads to be dispatched to Camp Kacyiru in order to strengthen the defence of the camp.1287 Majors Jabo and Habyarimana led those companies during their deployment at the camp. Ndindiliyimana denied that the transfer of Jabo and Habyarimana was prompted by the need to diminish their alleged resistance to the killings of Tutsi civilians in Butare and Kibuye or that their transfer was punishment for taking such stances.1288 742. Ndindiliyimana stated that he decided to reinstate Major Jabo in his position in Kibuye in order to address the deteriorating general security in that area.1289 743. Ndindiliyimana further testified that the Prosecution’s allegation that he transferred Majors Habyarimana and Jabo from their units to Kigali in April 1994 suggests that he was vested with the authority to effect such transfers.1290 However, as the Chief of Staff of the Gendarmerie, he had no authority to transfer a unit commander without the authorisation of the Minister of Defence.1291 The Defence submits that Ndindiliyimana’s lack of such 1284 T. 18 February 2009, pp. 16-17. 1285 T. 18 February 2009, pp. 16-17. 1286 T. 18 June 2008, p. 24. 1287 T. 18 June 2008, p. 23. 1288 T. 18 June 2008, p. 23; T. 23 June 2008, pp. 29-30. 1289 T. 18 June 2008, p. 24. 1290 T. 18 June 2008, p. 24. 1291 T. 18 June 2008, p. 23. 17 May 2011 172/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T authority is evidenced by a letter addressed to Ndindiliyimana during his tenure as Chief of Staff of the Gendarmerie from James Gasana, the Minister of Defence up to July 1993.1292 The letter states that “any important decision that may impact the functioning of the services or commit the department should be approved by the Minister. These include transfers of commanders of operational sectors, camp commanders, or heads of services, as well as any significant redeployment of officers and units.”1293 Gasana is also alleged to have instructed Ndindiliyimana that the transfer of officers between units and sectors could not be effected without his authorisation.1294 Defence Witness CBP7/B13 744. Witness CBP7/B13, an officer of the Gendarmerie in April 1994, testified that Camp Kacyiru was attacked by RPF forces in April 1994.1295 According to the witness, the Gendarmerie did not have sufficient troops to defend the camp and therefore sought reinforcements from the Army. Subsequently, the Huye Battalion was dispatched to the camp. However, that battalion was then assigned to another mission and therefore had to terminate its deployment at the camp. For this reason, two companies of the Gendarmerie from Kibuye and Butare were brought to the camp as reinforcement for the defence of the camp.1296 The witness

testified that Major Jabo, who was the commander of the Kibuye squad, led the company from that squad during its deployment at Camp Kacyiru.1297 745. The witness testified that due to ill health, Major Jabo returned to Kibuye shortly after he was deployed to Camp Kacyiru.1298 Defence Witness CBP67 746. Witness CBP67, a Sergeant of the Gendarmerie based at Camp Kibuye, disputed the allegation that Ndindiliyimana transferred Major Jabo from Kibuye to Camp Kacyiru in Kigali on account of his resistance to the killings of Tutsi in Kibuye. According to the witness, Jabo and a group of gendarmes were transferred to Kigali in order to reinforce the defence of Camp Kacyiru on or around 9 or 10 April.1299 However, Jabo was forced to cut short his assignment at Camp Kacyiru and returned to Kibuye in the month of April 1994 because of ill health.1300 The gendarmes who had accompanied him during his assignment to Kacyiru remained in Camp Kacyiru.1301 1292 T. 18 June 2008, pp. 25-27. The letter is contained in a book written by James Gasana entitled “Rwanda: from State Party to the Barracks”. 1293 T. 18 June 2008, pp. 26-27. 1294 T. 18 June 2008, pp. 26-27. 1295 T. 7 July 2008, p. 48 (ICS). 1296 T. 7 July 2008, p. 48 (ICS). 1297 T. 7 July 2008, p. 48 (ICS). 1298 T. 7 July 2008, p. 48 (ICS). 1299 T. 6 February 2008, p. 41. 1300 T. 6 February 2008, pp. 42-43. 1301 T. 6 February 2008, pp. 42-43. 17 May 2011 173/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.9.3 Deliberations 747. The Chamber notes that there is no disagreement among the parties in this trial that Majors Habyarimana and Jabo were transferred from their units to Kigali. Ndindiliyimana did not dispute the fact that sometime in April 1994, at his request, Majors Jabo and Habyarimana, accompanied by some troops from the Kibuye and Butare squads, were transferred to Camp Kacyiru in Kigali in order to reinforce the defence of the camp from RPF attack. However, the parties disagree on the motives behind the transfer of these officers. The Prosecution claims that Ndindiliyimana transferred these officers to Kigali because of their resistance to the killings of Tutsi in their respective areas. On the other hand, the Defence claims that these officers were transferred for valid military reasons unrelated to the killings of Tutsi in Butare and Kibuye.

748. At the outset, the Chamber notes that the Prosecution did not adduce any evidence suggesting that Major Habyarimana was transferred from Butare to Kigali on account of his resistance to the killings of Tutsi in Butare. Therefore, the Chamber will not consider this allegation.

749. With respect to the transfer of Major Jabo, the Chamber notes that the Prosecution relies solely on the evidence of Witness KJ, a gendarme based at Camp Kibuye during the period relevant to the Indictment. He testified that Jabo declined to grant the request by Préfet Kayishema to allow gendarmes to take part in the killings of Tutsi in Kibuye whom he considered to be responsible for the death of President Habyarimana. The witness further testified that he heard Kayishema say after a strained meeting with Jabo that he intended to request senior officers of the Gendarmerie to allow him to enlist gendarmes in the killings of Tutsi. Witness KJ claimed that shortly after that meeting, Jabo was transferred from Kibuye to Camp Kacyiru in Kigali. The witness also claimed to have seen the telegram emanating from Ndindiliyimana instructing Jabo to relocate with some troops to Camp Kacyiru.

750. Having carefully reviewed the testimony of Witness KJ in light of the evidence of a number of Defence witnesses on the motives behind Major Jabo’s transfer to Kacyiru, the Chamber is not satisfied that Witness KJ’s uncorroborated evidence is sufficient to support a finding that Jabo’s transfer was due to his differences with the préfet regarding the involvement of gendarmes in the killing of Tutsi in Kibuye. The fact that Jabo was transferred shortly after a strained meeting with Kayishema, the préfet of Kibuye, is not sufficient in itself to conclude that his transfer was linked to his refusal to grant Kayishema’s request to use gendarmes in the killings of Tutsi in Kibuye.

751. In the Chamber’s view, the fact that Witness KJ claimed to have seen a telegram emanating from Ndindiliyimana ordering the transfer of Major Jabo does not significantly bolster Witness KJ’s evidence. His evidence lacks any suggestion that the telegram contained information indicating that the transfer was linked to Jabo’s stance towards the killings of Tutsi in Kibuye. The claim that Jabo’s transfer was linked to the killings of Tutsi in Kibuye is at best speculation incapable of satisfying the standards of proof in a criminal trial.

752. Furthermore, the Chamber notes that its misgivings about the reliability of Witness KJ’s evidence are heightened in light of the compelling and concordant evidence of Defence Witnesses Nzapfakumunsi, B13 and CBP-67, all former members of the Gendarmerie, who testified that the transfer of Major Jabo was prompted by legitimate military objectives far removed from the motives suggested in paragraph 51 of the Indictment. Their evidence 17 May 2011 174/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T indicates that Jabo was transferred to Camp Kacyiru along with a company from the Kibuye Gendarmerie squad in order to reinforce the depleted troops fighting to defend Camp Kacyiru from RPF attack. The evidence of these witnesses further suggests that Jabo’s deployment at Camp Kacyiru was terminated shortly after his arrival at the camp and he returned to Kibuye.

753. The Chamber notes that the fact that Major Jabo was requested to move to Camp Kacyiru in Kigali with some troops from the Kibuye and Butare squads lends support to the claim by the Defence that his transfer was prompted by military objectives as opposed to being an attempt to punish him for his stance regarding the killings of Tutsi in Kibuye. Having heard this evidence, the Chamber does not accept the Prosecution’s allegation that Ndindiliyimana transferred Jabo to Kigali on account of his opposition to the killings of Tutsi civilians in Kibuye based on the limited and uncorroborated evidence of Witness KJ. The Chamber therefore finds that the Prosecution has failed to prove this allegation beyond reasonable doubt. 1.4.10 Issuance of Laissez-passers to Interahamwe by Ndindiliyimana 1.4.10.1 Introduction 754. The Indictment alleges that from April to June 1994, Augustin Ndindiliyimana issued many laissez-passers to leaders of the Interahamwe to enable them to scour the country and coordinate the massacres of the Tutsi population.1302 1.4.10.2 Evidence 1.4.10.2.1 Prosecution Evidence Prosecution Witness KJ 755. Witness KJ, a gendarme based at Camp Kibuye,1303 testified that he saw two telegram messages emanating from the Gendarmerie Chief of Staff in April 1994. The first message directed members of all gendarmerie units to cooperate with members of the army and civilians

to fight against the enemy.1304 The second message directed the Chief of Staff of the Army to provide civilians bearing written authorisation from the Gendarmerie Chief of Staff with necessary materials to facilitate the fight against the enemy.1305 756. Witness KJ also testified that a number of Interahamwe leaders arrived at the Kibuye camp and were provided with various supplies. The witness claimed to have seen Ntirugiribambe, the head of the Interahamwe in Kibuye, being provided with food, tents, ammunition and firearms at the camp.1306 Ntirugiribambe was sometimes accompanied by Robert Kajuga, the national President of the Interahamwe, during his visits to the camp. The witness also recalled that he saw Mika Muhimana, a conseiller de secteur for Gishyita secteur, arrive at the camp on several occasions and receive weapons, ammunition and food in support of the massacre operations committed by the Interahamwe in Kibuye 1302 Indictment, para. 52. 1303 T. 21 March 2006, p, 2. 1304 T. 21 March 2006, p. 31. 1305 T. 21 March 2006, p. 31. 1306 T. 21 March 2006, p. 32. 17 May 2011 175/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T préfecture.1307 The witness testified that during such visits, Ntirugiribambe and Muhimana carried laissez-passers signed by Ndindiliyimana authorising them to be provided with various supplies by gendarmes.1308 1.4.10.2.2 Defence Evidence The Accused Ndindiliyimana 757. Ndindiliyimana denied that he issued laissez-passers to leaders of the Interahamwe so that they could be provided with materials in support of the massacres against Tutsi civilians.1309 Defence Witness CBP67 758. Witness CBP67, a Sergeant of the Gendarmerie based at Camp Kibuye, disputed the claims made by Prosecution Witness KJ that he saw telegrams emanating from Ndindiliyimana urging gendarmes to cooperate with the Interahamwe or allowing the Interahamwe to be provided with military and general provisions. According to the witness, given his senior role at Camp Kibuye after 6 April, he would have seen such telegrams had they arrived there.1310 The witness testified that he was always at the camp except for one week beginning from 9 April; therefore, had such telegrams been sent to the camp, he would have definitely known about them.1311 Furthermore, had such messages arrived in his absence, he would also have been notified upon his return.1312 The witness also testified that in the event that Ndindiliyimana had sent such telegrams to

the commander of the camp, it is highly unlikely that the commander would have posted them on the board or disclosed the source of the message.1313 759. The witness also denied that gendarmes at Camp Kibuye provided a number of leaders of the Interahamwe with military and general provisions.1314 Defence Witness Claudien Ndagijimana 760. Witness Ndagijimana, a member of the Gendarmerie, testified that he was posted to the Kibuye squad of the Gendarmerie sometime in May 1994. During his time at Kibuye, the witness was supervised by Major Jabo, the commander of the Kibuye squad. The witness recalled that at one point during his stay at Kibuye, the préfet of Kibuye, Clement Kayishema, arrived at the camp and met with Major Jabo. After their meeting, the witness observed that Jabo appeared to be displeased about the demands that the préfet had made of him.1315 According to the witness, Jabo told him that Préfet Kayishema had “asked for 1307 T. 21 March 2006, p. 32. 1308 T. 21 March 2006, p. 32. 1309 T. 18 June 2008, p. 22. 1310 T. 6 February 2008, p. 40. 1311 T. 6 February 2008, p. 40. 1312 T. 6 February 2008, p. 40. 1313 T. 6 February 2008, p. 40. 1314 T. 6 February 2008, p. 40. 1315 T. 5 June 2008, pp. 20-21. 17 May 2011 176/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T weapons, grenades to go and attack in Bisesero.” The witness stated, “He told me, ‘do you have those weapons?’ He said ‘what weapons, what troops since you are alone here?’”1316 1.4.10.3 Deliberations 761. The Chamber recalls that Witness KJ was the sole Prosecution witness to testify about the issuance of laissez-passers to Interahamwe leaders by Ndindiliyimana. His testimony was limited to activities at Camp Kibuye of the Gendarmerie. The Chamber notes that the Prosecution presented no evidence that Interahamwe bearing laissez-passers issued by Ndindiliyimana were observed in other parts of Rwanda.

762. The Chamber also notes that none of the laissez-passers that Ndindiliyimana is alleged to have issued to leaders of the Interahamwe were tendered into evidence during this trial. The Chamber will therefore treat this allegation with caution.

763. Witness KJ testified that on the instructions of Ndindiliyimana, leaders of the Interahamwe were provided with material such as food and weapons at Camp Kibuye of the Gendarmerie. These materials were then used to support the massacres against Tutsi perpetrated by Interahamwe in Kibuye préfecture. The Chamber notes that Witness KJ’s claim is predicated on two alleged facts. First, he testified that while at Camp Kibuye of the Gendarmerie in April 1994, he saw two telegram messages from the Gendarmerie Chief of Staff directing members of all Gendarmerie units to cooperate with members of the Army and civilians to fight against the enemy. The second message directed the Army Chief of Staff to supply civilians bearing authorisation from him with materials in order to facilitate the fight against the enemy.1317 Second, Witness KJ testified that he observed Interahamwe leaders such as Ntirugiribambe, the head of the Interahamwe in Kibuye, at times accompanied by Robert Kajuga, the national President of the Interahamwe, and Mika Muhimana, a conseiller of Gishyita secteur, being provided with weapons, ammunition, tents and food at Camp Kibuye. According to the witness, these Interahamwe leaders had laissez- passers issued by Ndindiliyimana during their visits to the camp.1318 764. Even if the Chamber were to accept Witness KJ’s claim that he saw telegrams purportedly emanating

from Ndindiliyimana in April 1994, the Chamber is not satisfied that Witness KJ’s generic description of the messages contained in those telegrams is sufficient to establish that Ndindiliyimana encouraged his subordinates to collude with Interahamwe to commit killings against Tutsi. The witness’s evidence on the telegrams is open to other plausible readings that are not consistent with the meaning that he sought to impart to them. The Chamber is therefore not persuaded that this aspect of his evidence supports the allegation described in paragraph 52 of the Indictment.

765. The Chamber has also considered Witness KJ’s testimony that a number of Interahamwe leaders, bearing laissez-passers signed by Ndindiliyimana, were provided with various supplies at Camp Kibuye of the Gendarmerie in support of the massacres that they perpetrated against Tutsi.1319 1316 T. 5 June 2008, pp. 20-21. 1317 T. 21 March 2006, p. 31. 1318 T. 21 March 2006, p. 32. 1319 T. 21 March 2006, p. 32. 17 May 2011 177/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 766. The Prosecution’s failure to tender the laissez-passers into evidence, considered together with the contravening evidence of Defence Witnesses CBP 67 and Claudien Ndagijimana, both of whom were based at Camp Kibuye, as well as Defence Exhibit 488, leave the Chamber reluctant to accept Witness KJ’s evidence regarding the provision of supplies to Interahamwe leaders at Camp Kibuye on the instructions of Ndindiliyimana. In reaching this finding, the Chamber has accorded particular weight to the evidence of Claudien Ndagijimana and Defence Exhibit 488. This exhibit is a telegram sent by Préfet Kayishema to the Minister of the Interior in June 1994 requesting him to direct the commander of the Kibuye gendarmerie squad to provide support to an operation that he intended to carry out in Bisesero hills. Witness Ndagijimana testified that in May 1994, Major Jabo refused to grant a request by Préfet Kayishema for material assistance to support a campaign against Tutsi in Bisesero. Jabo’s refusal to grant such requests provides the backdrop to Kayishema’s telegram to the Minister of the Interior requesting him to direct the commander of Kibuye gendarmerie squad to provide material support for a campaign against Tutsi at Bisesero hills. In light of this evidence, the Chamber is not persuaded that Interahamwe leaders were provided with supplies at Camp Kibuye at the behest of Ndindiliyimana. Had that been the case, it is unlikely that Kayishema would have requested the intervention of the Minister of the Interior as evidenced by this exhibit.

767. The Chamber’s misgivings about Witness KJ’s uncorroborated evidence are further compounded by Witness KJ’s own evidence that he travelled with Major Jabo, the commander of the Kibuye squad of the Gendarmerie, to Kigali in April 1994 in search of supplies for gendarmes in Kibuye. In Kigali, they stopped at the General Staff of the Gendarmerie where Jabo met with Ndindiliyimana and requested supplies. According to the witness, Ndindiliyimana informed Jabo that he had no authority to grant his request for supplies without the approval of the Minister of Defence. Jabo and Witness KJ then went to the Ministry of Defence, where his request was granted. Jabo subsequently returned to the Gendarmerie Headquarters and was provided with the requested supplies. In light of this evidence, the Chamber has doubts that Ndindiliyimana, who could not grant requests for supplies from his own officers without the approval of the Minister of Defence, would have issued blanket permissions to Interahamwe leaders allowing them to receive military and general supplies from gendarmes.

768. For these reasons, the Chamber is not satisfied that Witness KJ’s uncorroborated evidence is sufficient to support the allegation described in paragraph 52 of the Indictment. The Prosecution has therefore failed to prove this allegation beyond reasonable doubt. 1.4.11 Ndindiliyimana’s Failure to Restore Public Order 1.4.11.1 Introduction 769. The Indictment alleges that from April to June 1994, Ndindiliyimana received daily situation reports (SITREPs) from his troops, notably during meetings held at the Gendarmerie Headquarters at Camp Kacyiru. It is claimed that these reports indicated the scale and scope of the massacres being perpetrated against the civilian population. The Indictment further alleges that Ndindiliyimana went to various préfectures to assess the situation. Although he had at his disposal several Gendarmerie units not involved in combat to defend Rwandan territory, Ndindiliyimana, who as Chief of Staff of the Gendarmerie was responsible under law for maintaining public order and protecting people and their property, 17 May 2011 178/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T took no significant action to quell the upheaval or to seek out perpetrators.1320 According to the Prosecution, Ndindiliyimana’s inaction was evidence of his participation in a conspiracy to commit genocide.1321 1.4.11.2 Evidence 1.4.11.2.1 Prosecution Evidence Prosecution Witness ANC 770. Witness ANC, a gendarme working with the security battalion of the Gendarmerie in Kigali in April 1994, testified that he was assigned to join Ndindiliyimana’s security detail from April until June 1994. The witness testified that at times he was deployed as a guard at Ndindiliyimana’s residence and that he also travelled with Ndindiliyimana as part of his escort.1322 771. Witness ANC testified that on or around 15 April 1994 he escorted Ndindiliyimana to Murambi, Gitarama, along with a number of other gendarmes and a driver.1323 Along the way, the convoy came across a group of refugees who were climbing the Musambira hill towards Gitarama. The refugees said that they were fleeing from Interahamwe attacks.1324 The convoy subsequently reached a roadblock at the junction of the road that led to the seat of the government. The roadblock was manned by Interahamwe who were armed with guns, spears and machetes. Witness ANC testified: The Interahamwe were striking people and Ndindiliyimana came out of the car and told the

Interahamwe not to kill people at that location. He told them to drive away the refugees to the opposite hill and that is where you are going to kill them. And he added that he didn’t want anybody to be killed at that roadblock.1325 772. The convoy continued along the road leading to the seat of the government for approximately 100 metres, where they came across a checkpoint manned by gendarmes.1326 According to the witness, Ndindiliyimana told the gendarmes “that those Interahamwe shouldn’t kill anybody at that roadblock. So [Ndindiliyimana] told them to tell the Interahamwe to go and kill the people who were in the opposite hills.”1327 After passing the gendarme checkpoint, they went to the Government Headquarters on Murambi Hill in Gitarama, where they stayed for around two days.1328 773. Witness ANC testified about another occasion in April when he escorted Ndindiliyimana to the Government Headquarters in Gitarama, where Ndindiliyimana had a short meeting with the then Prime Minister Kambanda. The witness was standing three metres away from the two men in the courtyard during their meeting. Kambanda addressed 1320 Indictment, para. 53. 1321 Indictment, paras. 22-25. 1322 T. 29 May 2006, pp. 45-46. 1323 T. 29 May 2006, p. 49. 1324 T. 29 May 2006, p. 49. 1325 T. 29 May 2006, p. 50. 1326 T. 29 May 2006, pp. 51, 53. 1327 T. 29 May 2006, p. 52. 1328 T. 29 May 2006, p. 54. 17 May 2011 179/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana in a severe manner, saying that he was unhappy because the gendarmes under Ndindiliyimana were not doing anything.1329 774. The convoy then travelled from Gitarama to the gendarme camp at Nyanza. On the way, the convoy stopped at a roadblock manned by Interahamwe in Ruhango town. The Interahamwe told Ndindiliyimana that they had “started work”, that they had arrested a number of Inyenzi and that they were first going to interrogate them before killing them. In reply, Ndindiliyimana told them to “carry on working”.1330 When the convoy reached Ngakegere neighbourhood in Nyanza, they saw Interahamwe destroying houses and driving people away, but Ndindiliyimana did not take any action to stop them.1331 Ndindiliyimana asked Warrant Officer Hategekimana, who was leading a Gendarmerie patrol that was passing by, to “update” him on the situation. Hategekimana stated in Kinyarwanda, “General, here we have started working, there is no problem”.1332 According to the witness, everybody at the time knew that the word “Kukora” used by Hategekimana meant “killing Tutsi”.1333 775. Subsequently, the convoy travelled to the Gendarmerie camp in Nyanza, before driving towards Nyaruhengeri. On the way, they stopped at Kansi where there was a roadblock manned by Interahamwe. A number of gendarmes were

stationed nearby.1334 The Interahamwe told Ndindiliyimana that there were refugees both inside and outside Kansi Parish. Ndindiliyimana informed the Interahamwe that he did not want refugees to be present there.1335 When the convoy passed Kansi Parish the following day, the witness saw that the sides of the roads were littered with corpses.1336 1.4.11.2.2 Defence Evidence The Accused Ndindiliyimana 776. Ndindiliyimana testified that in the early days of April, he received some information regarding the security situation in préfectures around Rwanda, but that information was often contradictory and it was also infrequent due to the poor lines of communication.1337 In cross- examination, Ndindiliyimana was confronted with a transcript of his testimony in the Bagambiki case, where he stated: In my capacity as Chief of Staff with a full department of employees, we would regularly receive from all the gendarmerie units ... information on the situation that prevailed in the préfecture where we had our units. ...The reports were ... made on a regular basis. There is what we call information reports that are given everyday and we would receive them at the General Staff. ... It is the commander of the gendarmerie unit that would send the report to us.1338 1329 T. 29 May 2006, p. 57. 1330 T. 29 May 2006, p. 57. 1331 T. 29 May 2006, p. 58. 1332 T. 29 May 2006, p. 58. 1333 T. 29 May 2006, p. 59. 1334 T. 29 May 2006, p. 60. 1335 T. 29 May 2006, p. 60. 1336 T. 30 May 2006, p. 1. 1337 T. 17 June 2008, p. 65. 1338 T. 23 June 2008, p. 9. 17 May 2011 180/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana also confirmed before the Bagambiki Trial Chamber that he continued to receive such reports after the 6 April.1339 777. Before this Chamber, in response to the evidence cited above, Ndindiliyimana stated: The situation worsened as the war evolved. The means I am referring to became scarce once our Alcatel telecommunications systems became faulty and the resources were no longer sufficient, when even our facilities at general staff were destroyed at a given point in time. But it would be dishonest to say that we did not have any intelligence reports from our units at the level of the command of the unit.1340 778. Regarding his visits to other préfectures, Ndindiliyimana testified that on 15 April 1994 he travelled to Butare and met with the unit commander Habyarabatuma, who informed him that the gendarmes were having trouble intervening because they did not have enough resources.1341 Ndindiliyimana further stated during cross-examination that in early to mid- May, he visited Kibuye1342 and Gitarama1343 préfectures twice and Butare1344 and Cyangugu1345 préfectures once.

779. In response to the information that he received, in April 1994 Ndindiliyimana set up a small team to conduct “investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth”.1346 Ndindiliyimana testified, “[W]e set up a group which moved about, visiting units to see what was happening and then report to the General Staff … and the Chief of Staff would also visit troops on the ground and make his own assessment.”1347 Ndindiliyimana also addressed the nation in a radio interview and called on the population “to abstain from killing members of the population, because this might encourage the enemy.”1348 In addition, Ndindiliyimana protected a number of Tutsi at his own home, including Tutsi women, clergy and 20 to 30 orphans.1349 780. Throughout this period, Ndindiliyimana maintained contact with General Dallaire and asked for his assistance to defend the Hôtel des Milles Collines from attack. Ndindiliyimana testified, “Still under relations with UNAMIR and General Dallaire, I can say we had a number of meetings to try to find a solution to the issue of the members of the population who were dying like flies because we desired to find a way to peace.”1350 1.4.11.3 Deliberations 781. Paragraph 53 of the Indictment contains three distinct, but related, allegations. The first is that Ndindiliyimana received daily SITREPs informing

him of the scale and scope of the massacres that were taking place around Rwanda. The second is that he travelled to 1339 T. 23 June 2008, p. 9. 1340 T. 23 June 2008, p. 9. 1341 T. 17 June 2008, p. 66. 1342 T. 18 June 2008, pp. 50, 59. 1343 T. 18 June 2008, pp. 53, 59. 1344 T. 18 June 2008, p. 51. 1345 T. 18 June 2007, p. 56. 1346 T. 17 June 2008, p. 66. 1347 T. 17 June 2008, p. 66. 1348 T. 18 June 2008, p. 15. 1349 T. 18 June 2008, pp. 43-44. 1350 T. 17 June 2008, p. 69. 17 May 2011 181/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T various préfectures in order to assess the situation. The third is that, despite the knowledge of the massacres he gained through the SITREPs and visiting various préfectures, Ndindiliyimana took no significant action to quell the upheaval or to seek out perpetrators. The Prosecution submits that Ndindiliyimana’s indifference to the killings is indicative of his participation in a conspiracy to commit genocide.1351 782. Based on the evidence outlined above, the Chamber is satisfied that Ndindiliyimana received daily SITREPs from his troops and that he visited various préfectures to assess the situation.1352 The Chamber notes that the Prosecution presented no evidence as to the content of the SITREPs, particularly regarding the identity of the perpetrators and the locations of the killings. That said, the Chamber recalls Ndindiliyimana’s own admission that in April 1994 he received regular reports containing “information on the situation that prevailed in the préfecture where we had our units”.1353 Ndindiliyimana further testified that in response to the information that he received, he set up a team to conduct “investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth”.1354 Ndindiliyimana also addressed the nation in a radio interview on 22 April, calling on the population “to abstain from killing members of the population, because this might encourage the enemy.”1355 In light of this evidence, the Chamber is satisfied that Ndindiliyimana was aware of the scale and scope of the killings that were taking place in Rwanda at that time.

783. In considering the allegation that Ndindiliyimana took no significant action to restore public order, the Chamber has carefully reviewed the evidence of Prosecution Witnesses ANC, ANA and ANW. The Chamber notes that the evidence of Witnesses ANA and ANW suggests that Ndindiliyimana encouraged Interahamwe to commit crimes against members of the Tutsi ethnic group. Their evidence is set out in detail in the Judgement in relation to the allegation in paragraph 52 of the Indictment. In the Chamber’s view, the evidence of Witnesses ANA and ANW lacks credibility and provides no support for the allegation in paragraph 53.

784. It is clear from the written submissions and oral arguments of the Prosecution that it relies to a considerable extent on the evidence provided by Witness ANC to prove the allegation in paragraph 53 of the Indictment. As Witness ANC is the key witness in relation to this allegation, the Chamber will set out in detail its assessment of the credibility of his testimony.

785. The Chamber recalls that Prosecution Witness ANC testified extensively about his role as part of Ndindiliyimana’s personal escort and about Ndindiliyimana’s whereabouts and actions from 7 April to mid-June 1994. In particular, Witness ANC testified about certain occasions when Ndindiliyimana travelled to other préfectures and ignored or even encouraged the killing of Tutsi civilians. Having carefully weighed his evidence, the Chamber finds that Witness ANC’s testimony lacks credibility for the reasons set out below.

786. First, the Chamber notes that Witness ANC had difficulty recalling dates. The only specific date mentioned by Witness ANC was 15 April 1994, when he testified to having 1351 Indictment, paras. 22-25. 1352 T. 23 June 2008, p. 9; T. 29 May 2006, pp. 49-60; T. 30 May 2006, p. 1. 1353 T. 23 June 2008, p. 9. 1354 T. 17 June 2008, p. 66. 1355 T. 18 June 2008, p. 15. 17 May 2011 182/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T escorted Ndindiliyimana and Karemera to the MRND Headquarters in Kimihurura.1356 The Chamber accepts that given the considerable time that had elapsed between the events and Witness ANC’s testimony, it is unreasonable to expect him to recall dates with precision. However, in this instance, it is concerning that he failed to recall any specific dates of events allegedly involving Ndindiliyimana. The Chamber further observes that despite his inability to recall any dates, the witness was able to recall specific quotes from Ndindiliyimana inciting killing at various roadblocks, the exact locations of roadblocks and other details.

787. Witness ANC was also unable to provide crucial details of his work as a member of Ndindiliyimana’s escort. The Chamber recalls that the witness was asked to identify his immediate supervisor, a non-commissioned officer who led the gendarmes in Ndindiliyimana’s escort. Quite implausibly, the witness claimed not to know his immediate supervisor.1357 Furthermore, Witness ANC appeared vague when responding to questions regarding the operational details of his work as a member of Ndindiliyimana’s escort; for instance, he did not know the number of gendarmes who were part of Ndindiliyimana’s escort.1358 Witness ANC also testified that he did not know the ethnic origins of other members of Ndindiliyimana’s escort, stating, “I never asked anyone to tell me what their ethnic origins were.”1359 The fact that there were a noticeable number of Tutsi in Ndindiliyimana’s escort is evidenced by a letter from Karemera to Ndindiliyimana dated 26 April 1994, in which Karemera states, “It would appear you have chosen a Tutsi officer as secretary and that your personal escort is dominated by Tutsis.”1360 Furthermore, Witness ANC repeatedly stated that he did not recall knowing or being around several people who were frequently in the company of Ndindiliyimana and his escort, including Ndindiliyimana’s personal secretary and a house assistant who worked at Ndindiliyimana’s home.1361 The fact that the witness had no knowledge of these details leaves the Chamber with considerable doubts about the veracity of his claim that he was a member of Ndindiliyimana’s escort from April to June 1994.

788. The credibility of Witness ANC’s claim is further diminished by his inability to recall a number of high profile events that would almost certainly have been known by anyone in Ndindiliyimana’s escort. In particular, Witness ANC testified that he was not aware of the events of the evening of 7 April 1994, when Ndindiliyimana loaned “members of” his personal escort to General Dallaire to escort him from CHK hospital, where Ndindiliyimana and Dallaire had discovered the slain bodies of the Belgian soldiers, to the UNAMIR Headquarters at Amahoro Stadium.1362 The escort was ambushed on the way to Amahoro Stadium, and subsequently spent the night away from Ndindiliyimana’s residence due to fears for their safety.1363 The fact that this incident occurred is established beyond reasonable doubt by the evidence of Dallaire and Ndindiliyimana. The Chamber finds it implausible that the witness would not have known of this incident had he been a member of Ndindiliyimana’s escort. 1356 T. 29 May 2006, p. 46. 1357 T. 30 May 2006, p. 52; T. 31 May 2006, pp. 12-13. 1358 T. 30 May 2006, p. 49. 1359 T. 30 May 2006, p. 43. 1360 T. 30 May 2006, p. 47. 1361 T. 30 May 2006, pp. 31, 46-48. 1362 T. 30 May 2006, p. 61. 1363 T. 30 May 2006, pp. 61-63. 17 May 2011 183/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 789. Witness ANC was also unable to give informative answers when pressed for details regarding Ndindiliyimana’s important meetings during the period that he claimed to have served as a member of his escort.1364 Moreover, although Witness ANC claimed to have escorted Ndindiliyimana during his trips to Gitarama, he could not recall where Ndindiliyimana spent his nights while in Gitarama. The Chamber heard credible evidence from hôtelier Antoine Nemeyabahizi of Hôtel Tourisme in Gitarama, who testified that not only did Ndindiliyimana often stay at Hôtel Tourisme, but members of his escort also stayed at the hotel and Ndindiliyimana left some of those gendarmes to protect Tutsi civilians who were hidden in the hotel.1365 This evidence was confirmed by other members of Ndindiliyimana’s escort such as Witness CBL104.1366 The Chamber finds it inconceivable that Witness ANC, who purported to be a member of Ndindiliyimana’s escort at the time, would have failed to know where Ndindiliyimana lodged while in Gitarama.

790. The credibility of Witness ANC is further impaired by his claim, refuted by documentary evidence tendered by the Defence, regarding Ndindiliyimana’s itinerary as he attempted to leave Rwanda for his new post as the Ambassador to Germany. Witness ANC testified that he escorted Ndindiliyimana out of Rwanda from Kigali to Goma, in the former Zaire, sometime in mid-June 1994.1367 However, extracts of Ndindiliyimana’s passport show that he first tried to enter Burundi on 17 June 1994 and that he was only subsequently compelled to flee via Zaire, some days later.1368 In the Chamber’s view, had Witness ANC escorted Ndindiliyimana throughout the month of June 1994, he would have known about Ndindiliyimana’s attempt to enter Burundi. His failure to recall this incident further vitiates the credibility of his testimony and his claim that he served as a member of Ndindiliyimana’s escort from April to June 1994.

791. The Chamber’s doubts about the reliability of Witness ANC’s testimony are amplified by the fact that he failed to identify the location of Ndindiliyimana’s house on a map of his neighbourhood in Kigali,1369 while simultaneously maintaining that he himself resided there on-and-off for nearly three months.1370 While it is possible to forget such detail over the course of twelve years, the Chamber considers that Witness ANC’s failure to locate Ndindiliyimana’s house, considered in conjunction with the other noted limitations of his evidence, casts doubts on the credibility of his evidence.

792. The Chamber also considers Witness ANC’s testimony regarding his initial contact with ICTR investigators to be problematic. The Chamber finds it difficult to accept that the witness would, without any mediation, have directly approached the Public Prosecutor of Rwanda, Martin Ngoga, in order to arrange for him to testify before the Tribunal.1371 793. A careful assessment of Witness ANC’s evidence leads the Chamber to conclude that his evidence was based on selective recollection and was motivated by a desire to incriminate Ndindiliyimana. The Chamber notes that the witness professed not to have known of any detail that may exculpate Ndindiliyimana and that he vividly recalled many details that may 1364 T. 30 May 2006, p. 30. 1365 T. 22 January 2008, p. 41. 1366 T. 4 June 2008, p. 12. 1367 T. 30 May 2006, pp. 40-42; T. 31 May 2006, pp. 25-26. 1368 T. 31 May 2006, pp. 26-27; Defence Exhibit 121. 1369 Defence Exhibit 119. 1370 T. 30 May 2006, pp. 55-58. 1371 T. 31 May 2006, pp. 27-34. 17 May 2011 184/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T incriminate him. This tendency is observable from his evidence regarding the presence of Tutsi orphans at Ndindiliyimana’s residence. The witness conceded that at some point during his stay at Ndindiliyimana’s residence, he did observe the presence of those orphans. However, the witness hastened to add that it was not Ndindiliyimana who was responsible for protecting the orphans, but rather other gendarmes assigned to Ndindiliyimana’s residence.1372 At certain points, Witness ANC even insinuated, rather implausibly, that he himself was responsible for rescuing the orphans.

794. The Chamber finds it difficult to accept that lower echelon gendarmes such as the witness would have brought a number of Tutsi orphans to Ndindiliyimana’s residence without his approval. Witness ANC’s attempt to distance Ndindiliyimana from any role in the protection of those orphans is implausible and suggests the witness’s desire to incriminate Ndindiliyimana rather than provide a truthful account of the events underpinning the allegations against him. The witness’s incriminatory attitude towards Ndindiliyimana is also suggested by his answer to a question by Defence Counsel as to why he did not allude to the presence of those orphans at Ndindiliyimana’s residence during his examination-in-chief. The witness responded that he “had come to testify against [Ndindiliyimana], and not to talk about him in a positive light.”1373 This statement, coupled with Witness ANC’s questionable explanation of how orphans came to be protected at Ndindiliyimana’s residence, leaves the Chamber with considerable misgivings about the impartiality of Witness ANC’s testimony.

795. For the reasons outlined above, the Chamber finds that the cumulative weight of the problems in Witness ANC’s evidence severely impairs its credibility. The Chamber will therefore disregard the allegations that Witness ANC levelled against Ndindiliyimana.

796. The rejection of the testimony of Witness ANC leaves the Chamber with little evidence to substantiate the allegation in paragraph 53 of the Indictment. In the view of the Chamber, this evidence is not sufficient to prove the allegation beyond reasonable doubt. In particular, the Chamber is not satisfied that Ndindiliyimana’s alleged indifference is in any way indicative of his participation in a conspiracy to commit genocide against Tutsi. The evidence in this case is open to other reasonable inferences that are inconsistent with a finding that Ndindiliyimana was party to any such conspiracy.

797. Furthermore, the Chamber notes the Defence submission that “Ndindiliyimana did the best he could with the resources available to him to restore peace after the massacres began”.1374 In this regard, the Chamber recalls that there is a significant body of evidence suggesting that Ndindiliyimana did in fact take measures to stop the killings using the resources that were available to him at the time. This evidence is set out in detail in the sentencing section of the Judgement. The evidence of Ndindiliyimana’s efforts to stop the killings raises further doubts about Ndindiliyimana’s participation in a conspiracy to commit genocide.

798. It follows that the Prosecution has not proved this allegation beyond reasonable doubt. 1372 T. 30 May 2006, pp. 65-66; T. 31 May 2006, p. 34. 1373 T. 31 May 2006, p. 34. 1374 Ndindiliyimana Closing Brief, paras. 29, 133-163. 17 May 2011 185/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.12 Bizimungu’s Encouragement of Ruhengeri Interahamwe 1.4.12.1 Bizimungu’s Comments to the Conseiller of Mukamira Secteur 1.4.12.1.1 Introduction 799. The Indictment alleges that on 7 April 1994 in Ruhengeri, Augustin Bizimungu congratulated a conseiller of Mukamira secteur for successfully tracking down Tutsi and encouraged him to continue his work in “exterminating the small cockroaches”.1375 1.4.12.1.2 Evidence Prosecution Witness AOE 800. Witness AOE testified that he attended a meeting at trader Rukabu’s house in Mukamira secteur at approximately 9.00 a.m. on 7 April 1994.1376 At the meeting, the witness recalled Bizimungu making a speech stating, “Habyarimana’s plane was brought down by accomplices, so you should know when you are farming and cultivating in a field where the plant known as igisura is growing, the farmer should uproot that plant so that there are no more seeds off that plant.”1377 1.4.12.1.3 Deliberations 801. Having closely examined the Prosecution evidence, the Chamber can only find the evidence of Witness AOE who attended a meeting on 7 April 1994. The Chamber notes that the Pre-Trial Brief stated that Witness IZ would testify as to a meeting on 7 April, yet this witness was never called by the Prosecution.1378 802. The Chamber recalls its decision at the beginning of Witness AOE’s testimony that his evidence in relation to 7 April would go only to Bizimungu’s mens rea.1379 The Chamber therefore rejects the evidence of Witness AOE in regard to the allegation in paragraph 54 of the Indictment.

803. In any event, the Chamber notes that the evidence of Witness AOE would fail to sustain a conviction under paragraph 54. First, the witness failed to recall the conseiller of Mukamira being present as stated in the Indictment. Second, the content of the speech allegedly given by Bizimungu, as recalled by Witness AOE is fundamentally different from that of the speech ascribed to Bizimungu in the Indictment.

804. The Prosecution has therefore failed to prove this allegation beyond reasonable doubt. 1375 Indictment, para. 54. 1376 T. 8 June 2005, pp. 22-23. 1377 T. 8 June 2005, p. 24. 1378 Pre-Trial Brief, pp. 93-94. 1379 T. 8 June 2005, p. 17. 17 May 2011 186/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.12.2 Bizimungu’s Statements at a Meeting on the Night of 6 to 7 April 1994 1.4.12.2.1 Introduction 805. The Indictment alleges that in the morning of 7 April 1994, Augustin Bizimungu went to Joseph Nzirorera’s house in Ruhengeri and told MRND militants, “[T]he time has come to put into practice the recommendations made to you. I have just been talking on the phone with Nzirorera and we have agreed that you should start killing all the Tutsi. Start with your respective neighbourhoods before moving into the other areas of the commune”. It is alleged that Bizimungu then assured the militants that weapons had been placed at their disposal at the Ruhehe armoury and he promised to provide them with fuel for burning the homes of Tutsi. According to the Indictment, the following day Bizimungu made good on his promise by distributing fuel in Cyohoha-Rukeri in the company of Lieutenant Mburuburengero.1380 806. The Chamber has already considered the evidence in relation to this charge in considering the allegation of genocide in paragraph 63 of the Indictment. The Chamber will not repeat this evidence but will simply analyse whether the evidence also supports the charge of conspiracy to commit genocide. 1.4.12.2.2 Deliberations 807. While the Chamber accepts that Tutsi civilians were killed as a result of a speech made by Bizimungu during a meeting on the night of 6 to 7 April, the Chamber is not satisfied that Bizimungu’s speech at the meeting is suggestive of his involvement in a conspiracy to commit genocide against Tutsi.

808. The Chamber recalls its findings in relation to paragraph 29 of the Indictment that there is not sufficient evidence to substantiate the Prosecution’s claim that Bizimungu attended meetings between 1992 and 1994 at which plans were made to destroy the Tutsi in whole or in part. In view of this finding, the Chamber is unwilling to accept the Prosecution’s claim that the meeting on the night of 6 to 7 April was a continuation of a series of meetings at which a plan to kill Tutsi was conceived.

809. The above finding leaves open the reasonable possibility that the meeting on the night of 6 to 7 April was called spontaneously in response to the news of the President’s death rather than being part of a series of meetings at which a conspiracy to commit genocide against Tutsi was hatched. The Chamber is therefore not satisfied that Bizimungu’s remarks at the meeting or his alleged conduct following that meeting support the inference that he was implicated in a conspiracy to commit genocide against Tutsi. Accordingly, the Chamber dismisses the allegation in paragraph 55 of the Indictment in its entirety. 1.4.12.3 Bizimungu and the Ruhengeri Meeting on 8 April 1994 1.4.12.3.1 Introduction 810. The Indictment alleges that on 8 April 1994, at a meeting in Ruhengeri attended by over 700 people, Augustin Bizimungu castigated the Inkotanyi, calling them perpetrators of genocide and urging the audience to follow the example of the Interahamwe in Mukingo 1380 Indictment, para. 55. 17 May 2011 187/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T commune, who killed over 200 Tutsi in Busogo parish. He allegedly then called for the murder of all Tutsi.1381 1.4.12.3.2 Evidence 1.4.12.3.2.1 Prosecution Evidence Witness GFD 811. Witness GFD was a trader, and on 8 April 1994 was travelling to a market centre called Kora Mutura in order to sell his goods.1382 Kora was located in Mutura commune, in Gisenyi préfecture, near the border with Ruhengeri préfecture.1383 812. Upon arrival at Kora, at around 10.00 a.m., the witness was stopped by soldiers and forced to attend a meeting at the Kora dispensary.1384 This meeting was attended by around 700 people. Several Hutu authority figures were present, including Bizimungu, Major Bizabarimana, and the bourgmestre and deputy bourgmestre of Karago commune.1385 813. The meeting started at between 10.00 and 11.00 a.m.1386 The witness described the meeting in the following terms: Bizimungu addressed members of the population. He talked about history and said that Tutsis were bad people. He talked about how Inkotanyi attacked the Butaro market and killed women and children; that they attacked Ruhengeri town to kill people, and killed people as well in Kinigi, and that if it continued, the Tutsis were going to exterminate us. He went on to give the example of the Interahamwe of Mukongo [sic], and said that if we

followed the example of the Mukingo Interahamwe, and if we did what the Interahamwe did in Busogo, those members of the population would not have any problem. The Tutsis cannot take power, and that the Tutsis were our neighbours and cannot kill, we, the Hutus.1387 814. Asked by Counsel for the Prosecution what decision was reached at the meeting, the witness replied, “The decision that was taken was to kill the Tutsis.”1388 1.4.12.3.2.2 Defence Evidence Witness DE4-16 815. Witness DE4-16 was a Major in the Rwandan Army in 1994. He testified that he was summoned to a meeting by Bizimungu at 8.00 a.m. on 8 April 1994. The meeting took place at the Army Headquarters in Kigali and was chaired by Bizimungu. The witness described the meeting as an “order group” at which the chair would dictate orders to those present.1389 1381 Indictment, para. 56. 1382 T. 10 May 2005, p. 54. 1383 T. 10 May 2005, p. 54; T. 17 May 2005, pp. 43-44; T. 18 May 2005, p. 5. 1384 T. 10 May 2005, p. 54; T. 17 May 2005, p. 42. 1385 T. 10 May 2005, p. 55. 1386 T. 17 May 2005, p. 43. 1387 T. 10 May 2005, p. 55. 1388 T. 10 May 2005, p. 56. 1389 T. 24 May 2007, pp. 96-97. 17 May 2011 188/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness DE4-33 816. Witness DE4-33 was a member of the Rwandan Army engaged in fighting the RPF at Nkumba on 8 April 1994.1390 He testified that Major Bizabarimana was in command at Nkumba from 8.00 a.m. until the recapture of the Nkumba commune office later that day. The witness also recalled that around 11.00 a.m., Bizimungu arrived and stayed for approximately 20 minutes.1391 Witness DB2-8 817. Witness DB2-8 was a member of the Rwandan Army stationed at Camp Bigogwe in 1994.1392 He confirmed that Camp Bigogwe was in Gisenyi and was no more than two kilometres from Kora. The witness also confirmed that Kora fell within the Gisenyi operational secteur.1393 818. The witness stated that in the morning of 8 April at 9.00 a.m., he left his position manning a roadblock at Shaba in Kora and toured the Kora area accompanied by a fellow soldier. The witness returned to the roadblock around 11.00 a.m.1394 He testified that during his tour, he saw no crowds of people and nothing happening at Kora market.1395 At no time on that day did he see or learn of the presence of Bizimungu at Kora.1396 Witness DB2-2 819. Witness DB2-2 was residing in Rwankuba cellule in Kora secteur from 2 to 9 April 1994 attending a wake.1397 He explained that on 8 April, he was at his parents’ house close to Kora and went to collect

water on several occasions from an area opposite the pyrethrum drying area and to the market to buy drinks for visitors.1398 The witness testified that he went to fetch water between 10.00 a.m. and 11.00 a.m., but he was unable to specify the exact time that he went to the market.1399 The witness never saw or heard of a meeting convened at the Kora market on 8 April or of Bizimungu’s attendance at such a meeting.1400 Moreover, the witness was not aware of any meeting involving Bizimungu at the Kora dispensary.1401 The witness testified that on 8 April, as it was not a market day, there were only a few people at the market. He described the market as “almost empty”.1402 1390 T. 16 May 2007, p. 18. 1391 T. 16 May 2007, p. 19. 1392 T. 19 April 2007, pp. 4-5. 1393 T. 19 April 2007, p. 5. 1394 T. 19 April 2007, pp. 13, 16-17. 1395 T. 19 April 2007, pp. 17-19. 1396 T. 19 April 2007, p. 18. 1397 T. 20 April 2007, p. 12. 1398 T. 20 April 2007, p. 19. 1399 T. 20 April 2007, pp. 19-20. 1400 T. 20 April 2007, pp. 20-21. 1401 T. 20 April 2007, p. 21. 1402 T. 20 April 2007, p. 23. 17 May 2011 189/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness DE8-19 820. Witness DE8-19, a former high-ranking member of the Rwandan Army, testified that Ruhengeri and Gisenyi were separate operational secteurs. He confirmed that Kora was in Gisenyi préfecture.1403 The witness stated that if Bizimungu had made a speech at Kora as alleged, he would have been trespassing on territory commanded by someone else.1404 The Accused Bizimungu 821. Bizimungu testified that Kora was in Gisenyi operational secteur.1405 He denied the allegation contained in paragraph 56 of the Indictment, stating that on 8 April he was engaged in a “race against time to prepare for the RPF advance” and was therefore not in a position to go to Kora and make a speech as alleged by the Prosecution.1406 1.4.12.3.3 Notice of Charges 822. The Defence for Bizimungu submits that it was not provided with reasonable notice of the material facts relating to this meeting. This submission centres on the discrepancy between the location of the meeting alleged in the Indictment and the location that was identified by Witness GFD. The Indictment claims that the meeting took place in Ruhengeri whereas Witness GFD testified that it took place in Kora, which is located in Gisenyi préfecture.1407 823. The Chamber recalls that “[t]he charges against an accused and the material facts supporting those

charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused,”1408 and that the Indictment must set out “the material facts of the Prosecution case with enough detail to inform a defendant clearly of the charges against him or her so that he or she may prepare his or her defence.”1409 824. Having carefully reviewed the Pre-Trial Brief and the transcripts of evidence, the Chamber finds that Bizimungu was not materially prejudiced by the discrepancy between the Indictment and Witness GFD’s testimony. Aside from the location of the meeting, the Indictment provides details regarding the date on which the meeting took place, the size of the audience and the content of Bizimungu’s speech. Witness GFD’s testimony essentially mirrored all of these elements. As a result, the Defence was able to produce several witnesses who asserted that Bizimungu could not have attended such a meeting on 8 April as he was engaged in fighting the RPF on the Ruhengeri front.1410 825. Furthermore, the Defence was able to produce a number of additional witnesses who directly contested Witness GFD’s claim that there was a meeting attended by Bizimungu at the Kora dispensary on 8 April 1994.1411 This might be attributed to the fact that although Kora was located in Gisenyi préfecture, it was not far from the border with Ruhengeri 1403 T. 5 November 2007, p. 41 (ICS). 1404 T. 5 November 2007, p. 42 (ICS). 1405 T. 11 December 2007, p. 20. 1406 T. 11 December 2007, p. 20. 1407 Bizimungu Closing Brief, para. 186. 1408 Muvunyi Appeal Judgement, para. 18. 1409 Media Appeal Judgement, para. 322. 1410 Defence Witnesses DE4-16, DE4-33 and Augustin Bizimungu. 1411 Defence Witnesses DB2-8, DB2-2, DE8-19. 17 May 2011 190/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T préfecture. Therefore, in light of the other detail provided by the Indictment, the Defence was able to make the reasonable inference that the meeting referred to in paragraph 56 actually took place at the Kora dispensary in Gisenyi préfecture.

826. The Defence was also able to conduct a lengthy cross-examination of Witness GFD, and at no point during his testimony did the Defence make any objection regarding lack of notice in regard to his allegations about the Kora dispensary meeting.

827. For these reasons, the Chamber finds that the Defence was not materially prejudiced by the Prosecution’s failure to specify the precise location of the alleged meeting in paragraph 56 of the Indictment. 1.4.12.3.4 Deliberations 828. The Prosecution relies solely on the evidence of Witness GFD to support the allegation in paragraph 56 of the Indictment. The Chamber recalls that in 1999 the witness was convicted and sentenced to a number of years imprisonment for his admitted role in the genocide.1412 The Chamber therefore approaches his evidence with caution.

829. The Chamber has considered the Defence submissions seeking to impugn the credibility of Witness GFD’s evidence. The Defence submits that due to the position of Kora within Gisenyi préfecture and Bizimungu’s position as commander of Ruhengeri operations, it is unlikely that he would have been at Kora to make the speech. The Chamber notes that while Kora is in Gisenyi préfecture, it is in fact close to the border with Ruhengeri préfecture and within easy reach of Ruhengeri town. In light of the short distance between Kora and Ruhengeri, the Chamber is not persuaded by this submission.

830. The Chamber also notes the Defence submission that 8 April was not a market day and therefore Witness GFD’s claim that 700 people were present is implausible. In the Chamber’s view, even if the day in question was not a market day, hundreds of people were living and working in close proximity to the market and soldiers would have had no difficulty attracting the attention of people to a meeting, especially if the presence of a prominent leader such as Bizimungu was known. The Chamber notes that the presence of such a large number of people would have been particularly noticeable to residents of the area given that it was not a market day. However, the Chamber recalls the testimony of Defence Witness DB2-2 that market was “almost empty” on 8 April.1413 Similarly, Defence Witnesses DB2-8 testified that he toured the area around the market between 9.00 and 11.00 a.m. but did not notice any large group of people there.1414 831. In addition, the Chamber has considered the evidence of Defence Witnesses DE4-16 and DE4-33, who placed Bizimungu in other areas both before and after his alleged speech at Kora.1415 While the Chamber finds their testimony to be credible, it notes that these witnesses failed to cover the time period between 10.00 a.m. and 11.00 a.m., when Bizimungu allegedly made his speech at Kora. 1412 See T. 10 May 2005, pp. 48-51. 1413 T. 20 April 2007, p. 23. 1414 T. 19 April 2007, pp. 17-19. 1415 T. 24 May 2007, pp. 96-97; T. 16 May 2007, p. 19. 17 May 2011 191/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 832. Having considered the evidence of these Defence witnesses, coupled with the Prosecution’s reliance on a single witness whose testimony the Chamber treats with caution, the Chamber finds that there remains some doubt as to Bizimungu’s presence at Kora and the speech that he is alleged to have made there. The Chamber therefore dismisses this allegation against Bizimungu. 1.4.12.4 Bizimungu and the Meeting on 18 May 1994 1.4.12.4.1 Introduction 833. The Indictment alleges that on or about 18 May 1994, Augustin Bizimungu took part in a meeting during which the military hierarchy praised the performance of the militiamen and underscored the need to better arm them.1416 1.4.12.4.2 Deliberations 834. The Chamber finds that the Prosecution presented no evidence relating to the meeting pleaded in paragraph 57 of the Indictment. The Chamber therefore dismisses this allegation against Bizimungu. 1.4.12.5 Bizimungu’s Visit to the Remera-Rukoma Hospital on 21 May 1994 1.4.12.5.1 Introduction 835. The Indictment alleges that on or about 21 May 1994, Augustin Bizimungu visited Remera-Rukoma Hospital where he congratulated the militiamen who had just killed about 10 people at the hospital and in its vicinity, and asked them to double their vigilance in hunting down Tutsi.1417 1.4.12.5.2 Evidence 1.4.12.5.2.1

Prosecution Evidence Prosecution Witness GFD 836. Witness GFD was a member of the Interahamwe from 7 April 1994.1418 He testified that he saw Bizimungu on 21 May 1994 at Remera-Rukoma Hospital in Gitarama. The witness was present at the hospital from 17 May, along with other Interahamwe and civil defence members who were asked to go to the hospital to provide reinforcements for the fighting occurring in the area.1419 837. The witness recalled that Bizimungu arrived at the hospital between 10.00 a.m. and 12.00 noon on 17 May aboard a military helicopter. Bizimungu was in the company of the helicopter pilot and two other soldiers whom the witness did not recognise.1420 Upon Bizimungu’s arrival, there was a large assembly of soldiers and members of the civil 1416 Indictment, para. 57. 1417 Indictment, para. 58. 1418 T. 10 May 2005, p. 62. 1419 T. 10 May 2005, p. 65. 1420 T. 19 May 2005, p. 50. 17 May 2011 192/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T defence.1421 When Bizimungu alighted from the helicopter, he was welcomed by the commanding officers present at the hospital.1422 Lieutenant Ndagijimana introduced Bizimungu to the audience. Bizimungu then addressed those present, congratulating them for the job already done and telling them to persevere in the fight against the RPF and not to forget the RPF accomplices.1423 The witness recalled that Bizimungu congratulated him and other soldiers and members of the civil defence because the region no longer contained any Tutsi, the final 14 having been killed in fighting close to the hospital.1424 The witness also stated that upon his arrival, Bizimungu saw 14 or 15 dead bodies at the hospital but failed to arrest anyone in relation to the incident.1425 The meeting lasted approximately 30 minutes,1426 after which Bizimungu took the body of a white man, who had been killed in Mugina commune, onto the helicopter and left.1427 838. The witness confirmed that a white man was killed on 18 May and that his body was brought wrapped in a blanket to the Remera-Rukoma Hospital. The witness stated that it was common knowledge at the time that any white person was assumed to be an accomplice of the RPF.1428 1.4.12.5.2.2 Defence Evidence Defence Witness DB15-8 839. Witness DB15-8 lived in Gitarama, Taba commune in

1994.1429 He testified that he observed the presence of soldiers in the area from the beginning of May 1994. There were approximately 20 to 50 soldiers in the hospital who were recovering from injuries, as well as a number of soldiers who had “settled” at Kanyinya Hill.1430 The witness stated that the soldiers arrived at Kanyinya Hill towards the end of May and remained there until the witness fled in early July. The witness recalled that these soldiers would come down to the hospital to provide provisions to the injured soldiers.1431 840. The witness heard of no incidents involving the deaths of people in the hospital other than those who died as part of normal hospital functions. He was aware of killings taking place in the area, but he stated that no soldiers were involved in those killings. He did recall one case where soldiers killed Interahamwe who were reported to have killed civilians.1432 841. The witness recalled a helicopter coming to the area in May, and he estimated that it was probably between 8 and 10 May.1433 The witness was at the school when the helicopter 1421 T. 10 May 2005, p. 66. 1422 T. 19 May 2005, p. 51. 1423 T. 10 May 2005, p. 66; T. 19 May 2005, pp. 53-54. 1424 T. 10 May 2005, p. 66. 1425 T. 19 May 2005, p. 51; T. 10 May 2005, p.

66. The witness stated that Bizimungu was not present when the 14 Tutsi were killed but the bodies of the Tutsi were present when he arrived. 1426 T. 19 May 2005, p. 53. 1427 T. 10 May 2005, p. 66. 1428 T. 19 May 2005, p. 53. 1429 T. 7 November 2007, p. 3 (ICS). 1430 T. 7 November 2007, pp. 4-5 (ICS). 1431 T. 7 November 2007, p. 5 (ICS). 1432 T. 7 November 2007, pp. 5-6 (ICS). 1433 T. 7 November 2007, p. 12. 17 May 2011 193/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T landed on the school playing field between 10.00 a.m. and 12.00 noon.1434 He stated that three men in military uniforms were on board,1435 but no other soldiers were present.1436 The witness testified that two of the men alighted from the helicopter and asked for directions to the residence of Usabuwera. Sometime later, the two men returned to the helicopter with the daughter of Usabuwera and then left. The witness stated that he enquired why Usabuwera’s daughter had been taken and the wife of Usabuwera told him that the daughter had keys to the bank, from which the men wanted to take out money.1437 The witness estimated that the helicopter was present for between 20 to 30 minutes.1438 He refuted the suggestion that a dead white person was taken aboard the helicopter.1439 842. The witness stated that he did not know who Augustin Bizimungu was and therefore was unable to confirm or deny whether he was in the helicopter.1440 However, the witness stated that if a high-ranking military person such as Bizimungu had visited the area, people would have known about it.1441 The witness also stated that he would have known about the arrival of another helicopter in the area, as he was a regular visitor to the hospital and had friends there. However, he was not aware of another helicopter visit.1442 843. The

witness testified that no one was killed after the helicopter left. Tutsi had previously been killed in the area around 19 or 20 April. According to the witness, people were saying that the Interahamwe in the area had killed those Tutsi, but he had no personal knowledge of that fact. The witness confirmed that he was not aware of the involvement of soldiers in the killings.1443 Defence Witness DB15-9 844. Witness DB15-9 stated that a military presence arrived in Taba on Kayinya Hill at the beginning of June 1994. He did not recall any soldiers being present at Remera-Rukoma Hospital except for those who were brought in ill or injured.1444 The witness recalled being told that injured soldiers began arriving at the hospital in May.1445 He testified that apart from the soldiers on Kanyinya Hill, no other soldiers arrived in Remera-Rukoma or Taba before June.1446 845. The witness stated that there were killings in the area, but those killings took place some distance from the hospital at the commune office.1447 He recalled the killing of a pastor and his family who were taken from near the hospital and the school and were killed not far from the commune office.1448 The witness also recalled a teacher named Samuel who was 1434 T. 7 November 2007, p. 12 (ICS). 1435 T. 7 November 2007, p. 12. 1436 T. 7 November 2007, p. 26 (ICS). 1437 T. 7 November 2007, pp. 12-13. 1438 T. 7 November 2007, p. 26 (ICS). 1439 T. 7 November 2007, p. 18. 1440 T. 7 November 2007, p. 13. 1441 T. 7 November 2007, p. 14. 1442 T. 7 November 2007, p. 14. 1443 T. 7 November 2007, p. 15. 1444 T. 9 November 2007, pp. 8-9. 1445 T. 9 November 2007, p. 18. 1446 T. 9 November 2007, p. 18. 1447 T. 9 November 2007, p. 10. 1448 T. 9 November 2007, pp. 10, 19. 17 May 2011 194/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T killed.1449 Although the witness confirmed that he was not present when these victims were killed, he stated that it was common knowledge that Interahamwe had killed them.1450 The witness had never heard of soldiers killing anyone in the area.1451 846. The witness recalled a helicopter landing in front of the primary school in the Remera-Rukoma area during the last week of April between 9.30 and 10.00 a.m.1452 There were three people in the helicopter, all wearing military uniforms, but no soldiers were present on the ground when the helicopter landed.1453 The helicopter was on the ground for between 15 and 20 minutes1454 during which the passengers went to Usabuwera’s home and brought back Usabuwera’s daughter, Rose.1455 At the time of the incident, the witness was not aware why Usabuwera’s daughter had been taken, but he later learned that she had the keys to the bank.1456 The witness stated that he did not see the body of a white man being taken into the helicopter.1457 847. The witness testified that he had no information about Bizimungu other than that he had heard that following the death of the President, Bizimungu was to be the Commander-in- Chief of the Rwandan Army. The witness was not aware of Bizimungu going to Remera- Rukoma between April and June 1994. The witness stated that if a person

of Bizimungu’s importance had come to his area, he would have surely heard about it.1458 Defence Witness DA5-2 848. Witness DA5-2 was a member of the Rwandan Army. He testified that Camp Kanombe was evacuated on the night of 21 to 22 May 1994 and that Bizimungu was busy working from Army Headquarters to organise the evacuation.1459 849. The witness recalled that at that time, Army helicopters had been taken to Camp Mukamira because it was no longer possible to fly helicopters from Kigali due to the war.1460 850. He also recalled that from the beginning of May, Bizimungu’s movements were very limited. The RPF had taken up positions close to the Chief of Staff’s office and the office was besieged, making movement very difficult.1461 The witness refuted suggestions that Bizimungu could have visited Remera-Rukoma Hospital on 21 May. He explained that the situation in Kigali prevented such travel and he reminded the Chamber that around 8 April was the fall of Camp Kanombe, which occupied much of Bizimungu’s time.1462 1449 T. 9 November 2007, p. 19. 1450 T. 9 November 2007, p. 19. 1451 T. 9 November 2007, p. 11. 1452 T. 9 November 2007, pp. 11, 20. 1453 T. 9 November 2007, p. 11. 1454 T. 9 November 2007, p. 12. 1455 T. 9 November 2007, pp. 12, 21. 1456 T. 9 November 2007, p. 12. 1457 T. 9 November 2007, p. 12. 1458 T. 9 November 2007, pp. 12-13. 1459 T. 23 May 2007, p. 45. 1460 T. 23 May 2007, pp. 46-47, 52. 1461 T. 23 May 2007, p. 47. 1462 T. 23 May 2007, p. 50. 17 May 2011 195/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.4.12.5.3 Deliberations 851. The Chamber has before it the evidence of one Prosecution Witness, GFD, who stated that Bizimungu visited Remera-Rukoma Hospital on 21 May 1994 and made a speech in which he encouraged those present to continue the fight against Tutsi and congratulated the audience on the killings up to that point.

852. The Defence called Witnesses DB15-8 and DB15-9, who testified to the presence of a helicopter in the area but stated that it was present in early May 1994, not 21 May 1994. These witnesses also testified that the helicopter was used to pick up a person with bank keys, not to transport Bizimungu to make a speech.

853. The Chamber finds that the testimony of Witness GFD on the one hand and the testimony of Witnesses DB15-8 and DB15-9 on the other describe two separate incidents. The Chamber considers that these cannot be the same incident because Witness GFD did not mention the presence of a woman boarding a helicopter, while Witnesses DB15-8 and DB15- 9 did not mention the presence of a military official. Witnesses DB15-8 and DB15-9 maintained that due to the comparatively small size of the area, they would have known if another helicopter had landed as claimed by Witness GFD. While the Chamber accepts that the presence of a helicopter in the area would have been a rarity, it does not consider it inevitable that the two witnesses would have known about all movements in the area. Nonetheless, the Chamber concludes that the three witnesses were describing two independent events.

854. The Chamber will now consider the evidence of Defence Witness DA5-2. The Chamber notes that this witness, given his position within the Rwandan Army, was well placed to comment on Bizimungu’s movements. The Chamber finds his evidence to be credible in relation to the movements of Bizimungu around 21 May. However, the Chamber considers his explanation that helicopters could not fly from Kigali, where Bizimungu was based, to be implausible. The Chamber notes that helicopters could have taken off from western Kigali as the entirety of the evidence suggests that western Kigali did not fall to the RPF until early July.

855. Having considered the evidence of Defence Witnesses DB15-8, DB15-9 and DA5-2, the Chamber concludes that the Defence evidence fails to raise a doubt as to the validity of Witness GFD’s claims. The Chamber will now decide whether the content of the speech allegedly made by Bizimungu amounts to evidence of his participation in a conspiracy to commit genocide.

856. The Chamber has carefully considered the content of Bizimungu’s speech, as recalled by Witness GFD, and it is not satisfied that the speech amounts to evidence of Bizimungu’s participation in a conspiracy to commit genocide. Rather, the Chamber considers it to be within Bizimungu’s role as Chief of Staff to visit sick and convalescing troops under his command in order to offer support and encouragement. The Chamber further finds the content of the speech, acknowledging the war and urging those present to keep fighting, to be in accordance with his role as a leader of troops in a time of conflict. Witness GFD’s reference to the removal of Tutsi from the area is not enough, in the Chamber’s view, to conclude that Bizimungu was party to an agreement to commit genocide. It is also a reasonable possibility that Bizimungu was acting in his capacity as Chief of Staff of the Rwandan Army in furtherance of the war against the RPF. 17 May 2011 196/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 857. It follows that the Prosecution has not proved this allegation beyond reasonable doubt. 1.4.12.6 Bizimungu’s Failure to Take Action to Stop the Killings and Restore Order 1.4.12.6.1 Introduction 858. The Indictment alleges that from mid-April to late June 1994, Bizimungu deliberately abstained from ensuring that the Rwandan Army, which was under his command, fulfilled its duty to restore order as required by Rwandan laws and regulations.1463 The Indictment further alleges that Bizimungu refused to take action to stop the killings in Rwanda when approached by the United States Department of State.1464 1.4.12.6.2 Deliberations 859. In its factual findings for genocide and crimes against humanity, the Chamber found that Bizimungu failed to exercise his authority to address crimes that were committed in some parts of Rwanda such as Kigali, Butare, Cyangugu and Gitarama during his tenure as Chief of Staff of the Rwandan Army. In reaching these findings, the Chamber considered a number of Prosecution exhibits including the records of two telephone calls from Prudence Bushnell, the then United States Deputy Secretary of State in charge of African Affairs, to Bizimungu asking him to take action to stop the killings of civilians. In response to Bushnell’s requests, Bizimungu is reported to have stated that he would require a cessation of hostilities between his forces and the RPF before he could stop the killings and restore order. The Chamber also found that despite his knowledge of the implication of his subordinates in these crimes, Bizimungu failed to take action to stop the killings and restore order.

860. The Chamber accepts that Bizimungu’s failure to take meaningful action to stop large-scale crimes, despite his material ability to do so, suggests indifference to his obligation to protect the lives of civilians. However, the Chamber is not satisfied that the Prosecution has presented sufficient evidence to prove that Bizimungu’s inaction was part of a conspiracy to commit genocide against Tutsi. Consequently, the Chamber finds that the Prosecution has failed to prove this allegation beyond reasonable doubt. 1.5 Genocide 1.5.1 Bizimungu 1.5.1.1 Killing of Tutsi by Interahamwe at Rwankeri Secteur 1.5.1.1.1 Introduction 861. The Indictment alleges that Augustin Bizimungu attended a meeting on or around 7 April 1994 at Joseph Nzirorera’s home, during which he made a speech. A portion of the alleged speech is quoted in paragraph 55 of the Indictment. It is further alleged that following Bizimungu’s speech, Interahamwe killed 150 Tutsi in Rwankeri secteur, Ruhengeri. The Indictment also alleges that on the same day, Interahamwe under the supervision of soldiers 1463 Indictment, para. 59. 1464 Indictment, para. 60. 17 May 2011 197/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T from Kanombe and Bigogwe camps, who were under Bizimungu’s authority, participated in an attack at Busogo Parish that resulted in the killing of “more than 200 Tutsi.”1465 1.5.1.1.2 Evidence 1.5.1.1.2.1 Prosecution Evidence Prosecution Witness GFV 862. Witness GFV admitted that he was a member of the Interahamwe and took part in the killings of Tutsi in April and May 1994.1466 The witness testified that in the morning of 7 April, he arrived at Byangabo market between 5.00 and 6.00 a.m. and saw 35 to 40 Interahamwe there.1467 863. The witness saw Kajelijeli, Bambonye and Chief Warrant Officer Karorero arrive by truck and enter the house of Nzirorera’s mother, where a meeting was taking place.1468 The witness testified that he also saw Nyabusore, the director of the ISAE, Colonel Setako and Major Bizabarimana arrive at the house of Nzirorera’s mother in order to attend the meeting.1469 The witness stated that participants at this meeting decided to kill Tutsi at Busogo Parish.1470 Bambonye and Kajelijeli emerged out of the venue of the meeting and told the witness and others that they “should kill all the Tutsis of Busogo including babies still in their mother’s wombs”.1471 As a result of these remarks by these local officials, Rukara and Lucian were among the first Tutsi to be killed in the morning of 7

April.1472 864. According to the witness, neither Augustin Bizimungu nor Prosecution Witness GAP attended this meeting.1473 Prosecution Witness GAP 865. Witness GAP was a local government official in Ruhengeri in 1994.1474 He testified that he attended a meeting at the house of Joseph Nzirorera’s mother on the night of 6 April 1994.1475 The witness arrived at the meeting around midnight on 6 April and left at approximately 5.00 a.m. the next morning.1476 He claimed to have been invited to this meeting by Joseph Nzirorera.1477 866. Witness GAP recalled that Augustin Bizimungu chaired the meeting. Also present were Setako, Casimir Bizimungu, Joseph Nzirorera, Esdras Baheza, Emmanuel Harelimana, 1465 Indictment, paras. 55, 63. 1466 T. 23 May 2005, pp. 7, 14. 1467 T. 23 May 2005, pp. 24-26; T. 25 May 2005, p. 24. 1468 T. 23 May 2005, p. 25; T. 25 May 2005, pp. 24-26. 1469 T. 25 May 2005, pp. 26-27. 1470 T. 23 May 2005, pp. 24-25. 1471 T. 23 May 2005, p. 26. 1472 T. 23 May 2005, p. 26. 1473 T. 25 May 2005, pp. 35, 42. 1474 T. 15 February 2005, pp. 15-16 (ICS). 1475 T. 15 February 2005, pp. 39-40. 1476 T. 17 February 2005, pp. 51-52; T. 21 February 2005, pp. 18, 24. 1477 T. 21 February 2005, pp. 18-19. 17 May 2011 198/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nyabusore, Gatsimbanyi, Niyoyita, Bambonye, Ndisette, Lazaro Ndangizi and approximately 80 Interahamwe.1478 According to the witness, Kajelijeli did not attend the meeting.1479 867. The witness stated that Augustin Bizimungu arrived at the meeting between 2.00 and 3.00 a.m.1480 While at the meeting, Bizimungu stated, “Habyarimana is dead and he was assassinated by the Inyenzis”, and he told the audience that by the morning no Tutsi should survive.1481 Bizimungu also urged the attendees to set up roadblocks to ensure that Tutsi would not escape. Bizimungu stated that weapons would be provided the following morning in order to reinforce those who were manning the Ruhehe roadblock as well as those who were stationed at Mukingo commune office.1482 868. The witness recalled that all the speakers at the meeting stated that President Habyarimana had been killed by Tutsi, “that is the Inyenzi”, and therefore that no Tutsi should be spared. In addition, the speakers discussed the re-establishment of roadblocks “in order to ensure that no Tutsis, no accomplices of the Tutsis should survive.” They also discussed the need to provide weapons in addition to those that were available at Ruhehe roadblock and the Mukingo commune office.1483 869. Witness GAP stated that when he left the meeting at around 5.00 a.m.,

Augustin Bizimungu was still at the house. The witness did not know when Bizimungu left.1484 In cross-examination, it was put to the witness that when testifying in a different trial at the Tribunal he had stated that he was the last person to leave the meeting, but in a pre-trial statement he had claimed that he was the first person to leave.1485 In response, the witness denied that he had changed his testimony.1486 870. The witness testified that as a result of the discussion at the meeting, he established a roadblock in front of the Mukingo commune office. The roadblock was manned by members of the Interahamwe whom the witness had selected.1487 871. Witness GAP recalled that in the morning of 7 April, at around 7.00 a.m., Augustin Bizimungu brought Kalashnikov rifles and grenades to the Mukingo commune office.1488 Some of the weapons were then taken to Ruhehe hill and some were kept at the commune office. Bizimungu told the witness to give the weapons to Interahamwe.1489 The bourgmestre then instructed the witness to distribute some of the weapons to Interahamwe, the conseiller 1478 T. 15 February 2005, p. 40; T. 21 February 2005, pp. 27-28. 1479 T. 21 February 2005, pp. 7-8. This was despite stating that he did see Kajelijeli present at the meeting in previous testimony (T. 21 February 2005, pp. 20-21). The witness explained that he had recalled the wrong bourgmestre—it was

actually Harelimana who was present rather than Kajelijeli (T. 21 February 2005, pp. 21- 23). 1480 T. 15 February 2005, p. 40. 1481 T. 15 February 2005, p. 41. 1482 T. 15 February 2005, p. 41. 1483 T. 15 February 2005, p. 41. 1484 T. 21 February 2005, p. 35. 1485 T. 21 February 2005, pp. 40-42. 1486 T. 21 February 2005, pp. 40-42. 1487 T. 15 February 2005, p. 43. 1488 T. 15 February 2005, pp. 42-43. 1489 T. 15 February 2005, p. 42. 17 May 2011 199/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T and the responsable de cellule.1490 The witness also gave some weapons to Kajelijeli for him to distribute at Byangabo.1491 872. The witness testified that at some point, he and the bourgmestre went to Byangabo. Upon arrival, they found that Kajelijeli had provided weapons to the Interahamwe there. While at Byangabo, the witness observed Kajelijeli giving instructions to the soldiers and Interahamwe to the effect that “they should conduct house to house search[es], [and] kill all the Tutsis all the way to the Busogo Parish”.1492 The witness also observed that a Tutsi named Rukara had been killed. 1493 873. The witness stated that he did not witness the killing of Tutsi in Mukingo commune.1494 However, he recalled that Kajelijeli came to the commune office between 7.00 and 8.00 a.m. and asked the bourgmestre for the assistance of the population to bury the bodies of the Tutsi who had been killed at Busogo Parish.1495 Witness GAP testified that he, along with the bourgmestre and communal police, then followed Kajelijeli to Busogo Parish.1496 Once they arrived at Busogo Parish, they found approximately 400 to 500 dead bodies, some of which the witness recognised as Tutsi. According to the witness, Bizimungu was also present at that location and he instructed the bourgmestre to bury the bodies.1497

Bizimungu then left and the witness and his colleagues buried the bodies.1498 Prosecution Witness GFC 874. Witness GFC, a member of the Interahamwe, testified that he went to Byangabo marketplace in the morning of 7 April 1994. There he met with other Interahamwe and their leader Niyigaba, as well as local officials including Kajelijeli, Ndisetse, Karorero and Bambonye. According to the witness, these officials urged the Interahamwe at the marketplace to exterminate the Tutsi, whom they accused of being responsible for the death of President Habyarimana.1499 Thereafter, the Interahamwe leader, Niyigaba, hit a Tutsi with a machete and killed him. Following this killing, the Interahamwe dispersed throughout the Mukingo commune in order to kill Tutsi.1500 The witness, who was armed with a homemade club at the time,1501 stated that he did not personally kill any Tutsi, but handed them over to other Interahamwe so that they could be killed. 1502 He further stated that he was willing to kill Tutsi in the event that others had not killed them.1503 875. However, in cross-examination, the witness admitted to participating in the killing of three Tutsi and to burning two houses, although he did not know the number of victims that 1490 T. 15 February 2005, p. 46. 1491 T. 15 February 2005, p.

46. The witness described Byangabo as located on the road that links Gisenyi with Ruhengeri, three kilometres from the Mukingo commune office, and containing a commercial centre and marketplace. 1492 T. 15 February 2005, p. 46. 1493 T. 15 February 2005, p. 46. 1494 T. 15 February 2005, p. 47. 1495 T. 15 February 2005, p. 47. 1496 T. 15 February 2005, p. 48. 1497 T. 15 February 2005, pp. 48-49. 1498 T. 15 February 2005, pp. 48-49. 1499 T. 1 March 2005, p. 25. 1500 T. 1 March 2005, p. 25. 1501 T. 1 March 2005, p. 26. 1502 T. 1 March 2005, p. 26. 1503 T. 1 March 2005, p. 26. 17 May 2011 200/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T resulted from the arson attack.1504 He also admitted that on 7 April, he and other Interahamwe moved through the secteur killing all the Tutsi they came across, and that he committed killings in all the secteurs at one point.1505 The witness further admitted that he participated in attacks in Musonga.1506 Prosecution Witness GFA 876. Witness GFA testified that on 7 April 1994, between 6.00 and 7.00 a.m., he went to have tea at the Byangabo centre.1507 At the market, he saw Jean Baptiste Nyabusore, who was the director of the ISAE, Gahiki, who was a businessman, and bourgmestre Juvénal Kajelijeli going to the house of Nzirorera’s mother.1508 However, the witness did not recall seeing Augustin Bizimungu there.1509 877. While at the Byangabo market, the witness was invited to attend a meeting held at the house of Nzirorera’s mother.1510 The witness went to the house and then returned to Byangabo. Approximately seven minutes after his return, an individual named Dusabiye, whom had also been at the house of Nzirorera’s mother, “invited [them] to go and kill the Tutsis, telling [them] that it was the RPF, that is the Tutsi, who had killed President Habyarimana.”1511 Dusabiye told one Michel Niyigaba to go and fetch Rukara, a Tutsi, so that he could “set an example on him”. Dusabiri and Dusabimana immediately

killed Rukara using stones and a small axe.1512 Dusabiye then asked them to “go up and kill Tutsis”, threatening that anyone who refused to do so would have to “bear the consequences”.1513 Witness GFA and others left and killed Rukara’s older brother, Lucien Rundatsingwa.1514 They then went to Busogo and Rwankeri cellules, as well as Mambaga, and killed all Tutsi who were residing there.1515 878. The witness stated that he participated in an attack together with soldiers on the house of a Tutsi family named Rutatinya.1516 The witness saw Sergeant François Dusabimana kill members of the Rutatinya family, and he stated that Corporal Rashero, an instructor at Camp Bigogwe, provided the petrol that was used to burn the house. 1517 879. Thereafter, the witness together with Dusabimana, Rashero and others went to attack Tutsi who had sought refuge at Busogo Parish. Once there, they killed the Tutsi refugees and later returned to the parish to loot and steal vehicles.1518 The witness estimated that his group was made of up of approximately 100 people including 20 to 30 soldiers.1519 The witness described the group that attacked the Busogo Parish as consisting of members of the 1504 T. 3 March 2005, pp. 10, 13. 1505 T. 3 March 2005, p. 16. 1506 T. 3 March 2005, p. 10. 1507 T. 31 January 2006, p. 2; T. 1 February 2006, p. 39. 1508 T. 31 January 2006, pp. 2-3. 1509 T. 1 February 2006, p. 39. 1510 T. 31 January 2006, p. 2. 1511 T. 31 January 2006, p. 2. 1512 T. 31 January 2006, pp. 2-3. 1513 T. 31 January 2006, p. 2. 1514 T. 31 January 2006, p. 2. 1515 T. 31 January 2006, pp. 2-3. 1516 T. 31 January 2006, pp. 6-7. 1517 T. 31 January 2006, pp. 6-7. 1518 T. 31 January 2006, p. 3. 1519 T. 31 January 2006, pp. 5-6. 17 May 2011 201/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Impuzamugambi and Interahamwe militia as well as soldiers armed with guns and grenades who came from the direction of the ESDT school.1520 During the attack at Busogo Parish, the witness saw Corporal Rashero shoot a child at close range.1521 Prosecution Witness GFD 880. Witness GFD stated that he became a member of the Interahamwe on 7 April 1994.1522 He testified that in the morning of 7 April, he went to Mukamira market in Nturo centre, Kintobo secteur, Myabisozi cellule.1523 While at the market, sometime between 10.00 a.m. and 12.00 noon, the witness saw Sergeant Uzaribara lead a group of 200 to 250 people, originating from Ngyinyo secteur, in an attack on Tutsi in the area.1524 The witness joined the group in the attack. Shortly thereafter, the group surrounded a house occupied by Tutsi. Someone threw a grenade into the compound of the residence. The witness assumed that it was Sergeant Uzaribara because no one else possessed a grenade and because the witness was later told by others that it was Uzaribara. Those at the residence exited the house and were attacked and killed by the group. As a result of the attack, six Tutsi were killed.1525 The attackers then looted the property and left.1526 1.5.1.1.2.2 Defence Evidence Defence Witness DA5-1 881. Defence Witness DA5-1 was a soldier of the Rwandan

Army based at Camp Mukamira in April 1994.1527 He testified that he visited Bizimungu every night from 4 to 6 April at his home in Camp Mukamira.1528 The witness recalled that he visited Bizimungu in the evening of 6 April and found him to be ill with gout.1529 Bizimungu was using crutches in order to walk.1530 Bizimungu retired to his room around 8.00 p.m., and the witness did not see him thereafter.1531 The witness left Bizimungu’s house between 8.40 and 8.50 p.m.1532 882. The following day, that is 7 April, the witness met Bizimungu’s driver at Mukamira Camp who informed him that Bizimungu was still feeling unwell, but would make an effort to get to the operations centre in Ruhengeri.1533 1520 T. 31 January 2006, p. 7. 1521 T. 31 January 2006, p.

7. The witness identified Bigogwe Camp as being located in Mutura commune, Gisenyi préfecture. 1522 T. 10 May 2005, p. 62. 1523 T. 10 May 2005, p. 52; T. 16 May 2005, p. 41. 1524 T. 10 May 2005, pp. 52-53; T. 16 May 2005, p. 41; T. 17 May 2005, p. 3. 1525 T. 10 May 2005, pp. 52-53; T. 16 May 2005, p.

46. The witness identified them as Pangras Bizuru, his wife named Mukamuzima, his two sons, Kivumu Ndagijimana, and someone named Murekezi. 1526 T. 10 May 2005, p. 53. 1527 T. 17 May 2007, p. 29. 1528 T. 17 May 2007, p. 30. 1529 T. 17 May 2007, pp. 30-32. 1530 T. 17 May 2007, pp. 30-32. 1531 T. 17 May 2007, p. 31. 1532 T. 17 May 2007, p. 31. 1533 T. 17 May 2007, p. 11. 17 May 2011 202/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DB2-6 883. Witness DB2-6 was a member of Bizimungu’s house staff at Camp Mukamira on 6 April 1994.1534 On that date, the witness was at Bizimungu’s home where the family was mourning the passing of Bizimungu’s late mother.1535 According to the witness, Bizimungu could hardly move on that night because of problems with his legs, and he was using crutches to aid his movement.1536 884. In the evening of 6 April, around 9.00 p.m., an alert was sounded at the camp. Some of the officers and soldiers who were present at Bizimungu’s house left once they heard the alert. However, Bizimungu remained at the house.1537 885. The witness recalled that around 10.00 p.m., he heard that Habyarimana’s plane had been shot down.1538 Around the same time, the commander of Camp Mukamira, Bizabarimana, came to Bizimungu’s home. The witness recalled that Bizimungu and Bizabarimana had a conversation and then Bizabarimana left. Later, around 3.00 a.m. on 7 April, Bizabarimana came back and then left again.1539 Also around 3.00 a.m., the witness fell asleep and did not wake until 8.00 a.m.1540 886. The witness recalled that in the morning of 7 April, a doctor came to the house to treat Bizimungu.1541 Thereafter, Bizimungu left the house between 10.00 and 11.00 a.m.1542 According to the witness, this was the first

time that Bizimungu had left the house since the previous evening. 1543 Defence Witness DB11-2 887. Witness DB11-2 is a relative of Prosecution Witness GFA.1544 Witness DB11-2 stated that it would not have been possible for Witness GFA to attend meetings at the house of Nzirorera’s mother without Witness DB11-2’s knowledge.1545 The witness further stated that Witness GFA never mentioned to him that he had met Bizimungu or attended meetings at which Bizimungu was present.1546 The witness also stated that Witness GFA was not a member of any political party1547 and that there was no Interahamwe structure within Ruhengeri.1548 888. The witness, who lived near the house of Nzirorera’s mother,1549 testified that on the night of 6 April 1994, he did not notice any vehicles passing by on their way to the house of 1534 T. 17 April 2007, pp. 85, 88. 1535 T. 17 April 2007, p. 93. 1536 T. 17 April 2007, p. 64. 1537 T. 17 April 2007, pp. 64, 93-94. 1538 T. 17 April 2007, p. 64. 1539 T. 17 April 2007, pp. 65-66. 1540 T. 17 April 2007, p. 93. 1541 T. 17 April 2007, p. 66. 1542 T. 17 April 2007, pp. 65-66. 1543 T. 17 April 2007, p. 65. 1544 T. 12 June 2007, p. 7 (ICS). 1545 T. 12 June 2007, p. 34 (ICS). 1546 T. 12 June 2007, p. 34 (ICS). 1547 T. 12 June 2007, p. 35 (ICS). 1548 T. 12 June 2007, p. 35 (ICS). 1549 T. 12 June 2007, pp. 38-39 (ICS). 17 May 2011 203/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nzirorera’s mother.1550 He further stated that no meetings or social functions took place between January and March 1994 at the house of Nzirorera’s mother.1551 889. Witness DB11-2 recalled that in the morning of 7 April, while at home, he saw Michel Niyigaba pursue Rukara at the Byangabo market.1552 Rukara was then caught, stoned and killed with a small hoe.1553 According to Witness DB11-2, Witness GFA was at the market while Rukara was being attacked.1554 Defence Witness DB15-11 890. Witness DB15-11 is related to Joseph Nzirorera and lived in Ruhengeri in April 1994.1555 The witness testified that she stayed at the house of Nzirorera’s mother in Byangabo on the night of 6 April 1994.1556 She explained that the house was in the vicinity of Byangabo market.1557 The witness denied that telephone calls were made from the house following the President’s death in the evening of 6 April, since the house did not have a telephone line.1558 891. The witness denied that a meeting took place at the house of Nzirorera’s mother in the early morning of 7 April. She explained that she spent the night in a room adjacent to the sitting room and was not aware of any such meeting.1559 The witness testified that she did not see Joseph Nzirorera on the night of 6 to 7 April 1994.1560 She also denied Witness GAP’s claim

that Interahamwe or other individuals such as Bizimungu met at the house on 7 April.1561 892. The witness recalled that in the morning of 7 April, she heard gunshots and saw smoke coming from the Byangabo market area.1562 893. The witness stated that Tutsi were killed in Mukingo commune, particularly Busogo Parish, between 7 April and the end of April 1994.1563 However, she never saw Interahamwe in Mukingo commune between 1990 and April 1994.1564 The witness had heard that a neighbour named Rukara was killed in April 1994.1565 1550 T. 12 June 2007, p. 38 (ICS). 1551 T. 12 June 2007, pp. 33, 39 (ICS). 1552 T. 13 June 2007, p. 25 (ICS). 1553 T. 13 June 2007, p. 25 (ICS). 1554 T. 13 June 2007, p. 25 (ICS). 1555 T. 7 June 2007, p. 42 (ICS). 1556 T. 7 June 2007, pp. 45-46 (ICS). 1557 T. 7 June 2007, p. 46 (ICS). 1558 T. 7 June 2007, p. 47 (ICS). 1559 T. 7 June 2007, p. 50 (ICS). 1560 T. 7 June 2007, p. 53 (ICS). 1561 T. 7 June 2007, pp. 53-54 (ICS). 1562 T. 7 June 2007, p. 79 (ICS). 1563 T. 7 June 2007, p. 73 (ICS). 1564 T. 7 June 2007, p. 72 (ICS). 1565 T. 7 June 2007, p. 79 (ICS). 17 May 2011 204/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The Accused Augustin Bizimungu 894. Bizimungu denied taking part in a public meeting on 7 April where he advocated the killing of Tutsi. He testified that he did not leave his home until 10.00 or 11.00 a.m. on 7 April and he was not with Setako at all on that day.1566 895. Bizimungu stated that on the night of 6 to 7 April 1994, he was ill and remained at home. However, he was in contact throughout this time with his deputy, Lieutenant Colonel Bivaguhara, and the General Staff of the Army and was therefore able to monitor the situation. The witness recalled that around 12.30 a.m., he learned that sector commanders had been convened to a meeting at ESM in Kigali. Due to his poor health, Bizimungu could not attend the meeting at ESM and was instead represented by his deputy Bivaguhara.1567 896. Bizimungu testified that on 7 April, he left his home between 10.00 and 11.00 a.m.1568 and proceeded to his office in Ruhengeri. At around 1.00 or 2.00 p.m., he received information suggesting that the hostilities between the Rwandan government forces and the RPF might resume and he therefore convened all the battalion commanders to a meeting at his office.1569 897. Bizimungu stated that he learned about the existence of the Interahamwe in Ruhengeri after he was arrested in 2002. However, while in Rwanda, he was

aware of the word “Interahamwe” being used in relation to youth who attended rallies.1570 898. Bizimungu denied that he distributed weapons to civilians. However, he stated that due to the insecurity in some communes of Ruhengeri caused by RPF infiltration and banditry, it was decided that the local authorities in those communes should be provided with weapons in order to enhance their security.1571 Bizimungu testified that the distribution of weapons to the communal authorities was under his management in his capacity as the commander of Ruhengeri operational secteur.1572 He testified that the distribution of weapons to communal authorities under this scheme was based on an assessment of the security needs of those communes.1573 These weapons were not distributed to civilians nor were they used to kill Tutsi civilians.1574 Bizimungu denied Prosecution Witness GAP’s claim that Bizimungu gave him weapons in the morning of 7 April. Bizimungu stated that it was inconceivable that he would have taken it upon himself to distribute weapons given the fact that as an operational secteur commander, he had staff who could assist him with that chore.1575 899. Bizimungu also denied that he supervised the burial of Tutsi who had been killed at Busogo Parish on 8 April.1576 1566 T. 11 December 2007, p. 18. 1567 T. 6 December 2007, p. 19. 1568 T. 11 December 2007, pp. 16-17. 1569 T. 11 December 2007, p. 17. 1570 T. 7 December 2007, p. 21. 1571 T.11 December 2007, p. 5 1572 T.11 December 2007, p. 5 1573 T. 11 December 2007, p. 6 1574 T. 11 December 2007, p. 6. 1575 T. 11 December 2007, p. 32. 1576 T. 11 December 2007, pp. 20-21. 17 May 2011 205/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.1.1.3 Notice of Charges 900. At the outset, the Chamber notes that the Indictment states that the meeting on the night of 6 to 7 April 1994 took place at Nzirorera’s house.1577 However, all the evidence called by the Prosecution refers to a meeting held at the house of Joseph Nzirorera’s mother as opposed to Nzirorera’s house as alleged in the Indictment.1578 901. The Chamber recalls, as discussed elsewhere in the Judgement, that in the event of a defect within the Indictment, any such defect can be cured by timely, clear and consistent information provided to the accused by the Prosecution. Accordingly, the Chamber has carefully reviewed the Prosecution Pre-Trial Brief and other relevant post-Indictment disclosures in order to determine whether Bizimungu had adequate notice of the charges underlying the allegation pleaded in paragraph 63 of the Indictment.

902. In the Pre-Trial Brief, the Chamber notes that the summary of Witness GAP’s evidence does not specify the location of this meeting.1579 However, the summaries of Witnesses GFC,1580 GFE1581 and GFA1582 all state that the meetings took place at the house of Nzirorera’s mother. Furthermore, while other witnesses’ summaries are silent regarding the location of the meeting, no summary explicitly mentions meetings taking place at Nzirorera’s house. Based on its review of the Prosecution Pre-Trial Brief, the Chamber therefore considers that Bizimungu had notice of the fact that the location of meetings included the house of Nzirorera’s mother.

903. The Chamber further notes that the Defence did not challenge the introduction of evidence regarding meetings at the house of Nzirorera’s mother. Rather than opposing the inclusion of the evidence, the Defence called Witnesses DB11-11 and DB15-11 to challenge the Prosecution allegation that the meeting took place at the house of Nzirorerera’s mother.

904. For these reasons, the Chamber finds that the Defence was not materially prejudiced by the discrepancy between the Indictment and the Prosecution evidence in relation to the location of the meeting. The Chamber will therefore proceed to consider this evidence on its merits. 1.5.1.1.4 Deliberations 905. The Chamber notes that the Indictment alleges that Bizimungu gave a speech during a meeting at the house of Joseph Nzirorera’s mother on 7 April calling for the killing of Tutsi. As a result of Bizimungu’s speech, members of the Interahamwe killed Tutsi civilians in Rwankeri secteur, and soldiers from Kanombe and Bigogwe Camps killed Tutsi civilians at Busogo Parish. These killings are alleged to have occurred on 7 April. The Chamber will consider each element of this charge in sequence. 1577 Indictment, para. 63. 1578 See Prosecution Witnesses GAP, GFA and GFV. 1579 Pre-Trial Brief, p. 85. 1580 Pre-Trial Brief, p. 91. 1581 Pre-Trial Brief, p. 113. 1582 Pre-Trial Brief, p. 120. 17 May 2011 206/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.1.1.4.1 The Meeting at the House of Joseph Nzirorera’s Mother 906. The Prosecution called a number of witnesses, all of whom are former members of the Interahamwe, to support its allegation that Bizimungu attended a meeting at the house of Joseph Nzirorera’s mother on the night of 6 to 7 April 1994. The Chamber notes that many of these witnesses have been convicted of crimes related to the 1994 genocide.1583 Due to their role as accomplices, the Chamber will treat their evidence with caution.

907. Witnesses GFV, GAP and GFA all testified that a meeting took place at the house of Nzirorera’s mother in the evening or early morning of 6 to 7 April. Having reviewed the evidence of these witnesses, the Chamber is satisfied that a meeting did take place at the house of Nzirorera’s mother on that night. The Chamber notes that these witnesses gave varying accounts of the time that the meeting occurred. However, these variances are not significant enough to impugn the credibility of these witnesses given the considerable lapse of time between the meeting and their testimony. The Chamber is also of the view that the fact that this meeting took place over several hours may be a reasonable explanation for these variances. For these reasons, the Chamber does not consider these variances to detract from the credibility of these witnesses regarding the occurrence of the meeting.

908. The Chamber recalls that Witness GAP was the sole Prosecution witness to testify that Bizimungu attended the meeting at the house of Joseph Nzirorera’s mother. The other Prosecution witnesses stated that they did not see either Bizimungu or Witness GAP at the meeting. The Chamber will now consider whether the sole testimony of Witness GAP is sufficient to support a finding that Bizimungu attended the meeting in question.

909. The Chamber notes that the failure of Witnesses GFV and GFA to see Bizimungu at the house of Nzirorera’s mother, where the meeting was held, can be plausibly explained by the differences in time between Bizimungu’s presence at the house and the witnesses’ arrival in the area close to the house. The evidence of Witnesses GFV and GFA suggests that they arrived at the Byangabo market, which is close to the house of Nzirorera’s mother, between 5.00 and 7.00 a.m. on 7 April. Witness GAP’s evidence suggests that Bizimungu arrived at the house for the meeting around 2.00 a.m. and remained there after Witness GAP had left. In light of these time differences, it is a reasonable possibility that Bizimungu may have left the meeting before the witnesses arrived at the market. For this reason, the Chamber is not persuaded that the tentative evidence of Witnesses GFV and GFA rules out the possibility that Bizimungu attended the meeting at the house of Nzirorera’s mother. The Chamber therefore accepts Witness GAP’s evidence that Bizimungu took part in this meeting.

910. Having found that Bizimungu attended the meeting at the house of Nzirorera’s mother on the night of 6 to 7 April, the Chamber will now consider whether he gave a speech calling for the killing of Tutsi. The Chamber has carefully considered the evidence before it and cannot find any reference either in testimony or exhibits to the entire speech as quoted in paragraph 55 of the Indictment. However, the Chamber considers that, when comparing the speech excerpt quoted in paragraph 55 with Witness GAP’s testimony of the speech, the content of both is similar in important respects. Witness GAP recalled in his testimony that 1583 See T. 23 May 2005, pp. 7-8, 13; T. 1 March 2005, pp. 8-9 (ICS); T. 3 March 2005, pp. 8, 39; T. 15 February 2005, p. 4 (ICS); T. 30 January 2006, pp. 57-58; T. 10 May 2005, pp. 48-50. Witness DB11-2 was charged with genocide in 1998 but was subsequently acquitted of all charges and released: T. 12 June 2007, pp. 8-9 (ICS). 17 May 2011 207/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Bizimungu stated, “Habyarimana is dead and he was assassinated by the Inyenzis”, that no Tutsi should survive, and that those assembled should set up roadblocks to ensure that Tutsi would not escape. The Chamber finds that this is the essence of the speech quoted in paragraph 55, albeit in less detail. Therefore, the Chamber considers Witness GAP’s testimony regarding the content of this speech to be substantially consistent with that found in paragraph 55 of the Indictment.

911. In reaching the above findings, the Chamber has considered whether Witness GAP’s pre-trial statements cast doubt on his credibility with respect to Bizimungu’s presence and participation at the meeting in question.

912. First, the Chamber recognises that Witness GAP provided varying accounts as to who chaired the meeting. In cross-examination, the witness admitted to having provided a statement on 16 April 2003 in which he described the meeting at the house of Nzirorera’s mother on the night of 6 to 7 April 1994. In that statement, the witness claimed that the meeting was chaired by Setako while Bizimungu acted as secretary.1584 913. Contrary to his statement of 16 April 2003, Witness GAP testified before this Chamber that the meeting was chaired by Nzirorera since it was held at his mother’s home.1585 When asked to explain this discrepancy, the witness stated that Nzirorera chaired the meeting in his capacity as a civilian authority and Augustin Bizimungu chaired the meeting as a military authority. The witness then explained that Setako and Casimir Bizimungu made statements during the meeting that tallied with statements made by Nzirorera and Augustin Bizimungu.1586 Eventually, the witness stated that all the authorities chaired the meeting because all of them spoke.1587 914. The Chamber is not satisfied that Witness GAP’s conflicting accounts of who chaired the meeting detract from the credibility of his evidence that Bizimungu together with other authorities attended the meeting. The Chamber notes that his account of the meeting both in his evidence and in his pre-trial statement,

despite variances regarding the specific role of the various participants, does not diverge on the fact that Bizimungu and other figures of authority attended the meeting in question. The Chamber is therefore unwilling to discard Witness GAP’s firsthand evidence regarding Bizimungu’s attendance and participation at the meeting because of these variances. Given the considerable time lapse and the fraught backdrop to the meeting, it is unreasonable to expect the witness to recount the details of the meeting with precision. However, the Chamber is satisfied that his evidence is sufficiently detailed to support the allegation pleaded in paragraph 63 of the Indictment.

915. In addition, the Chamber has considered the submissions raised by the Defence seeking to impugn the credibility of Witness GAP’s evidence regarding Bizimungu’s speech at the meeting. The Defence submits that Witness GAP’s evidence on this point is doubtful in light of the fact that in a number of his pre-trial statements, he claimed that various participants spoke at the meeting. The Defence referred to Witness GAP’s statement dated 17 March 2003, in which he said that Casimir Bizimungu spoke at the meeting and instructed those in attendance to search for and kill Tutsi in Mukingo commune beginning the next 1584 T. 21 February 2005, pp. 28-29. 1585 T. 21 February 2005, p. 30. 1586 T. 21 February 2005, pp. 30-31. 1587 T. 21 February 2005, p. 30. 17 May 2011 208/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T day.1588 The Defence also referred to another statement by the witness dated 16 April 2003, in which he stated that Colonel Setako made a speech at the meeting urging the killing of Tutsi in revenge for the death of the President.1589 In cross-examination, Defence counsel put to Witness GAP a further statement in which the witness claimed that Nzirorera had made a speech at the meeting calling for all Tutsi to be killed in Mukingo and Nkuli communes.1590 916. Having considered the above statements by Witness GAP, the Chamber is not satisfied that the variations identified by the Defence amount to material contradictions. The Chamber recalls the witness’s testimony that a number of people spoke at the meeting. The Chamber accepts as plausible the explanations advanced by the witness that each of his pre- trial statements refers to the role of a specific participant at the meeting because the interviewers focused on the role of that participant during the relevant interview. This being the case, it is reasonable to expect that Witness GAP would provide several statements focusing on specific persons and their specific roles. The fact that in each of these statements, the witness focused exclusively on the role of one participant at the meeting without referring to others does not undermine Witness GAP’s evidence regarding the participation of Bizimungu and other individuals in the meeting. Therefore, the Chamber considers that the credibility of the witness is not damaged by these submissions of the Defence.

917. For similar reasons, the Chamber is also not satisfied that Witness GAP’s varying accounts of the participation of Kajelijeli and Harelimana raise doubts about the credibility of his evidence regarding Bizimungu’s participation in the meeting.1591 The Chamber finds that given the considerable time lapse between the events in question and the time of Witness GAP’s testimony, and also the consecutive appointments of Harelimana and Kajelijeli as bourgmestre, it is a reasonable possibility that the witness simply confused the presence of the above individuals at the meeting. This variance does not detract from the credibility of Witness GAP’s evidence regarding the participation of Bizimungu at the meeting.

918. The Chamber notes that the Defence called Witnesses DA5-1 and DB2-6 to provide, in essence, an alibi defence for Bizimungu. They testified that Bizimungu, who was suffering from gout, did not leave his home at Mukamira army base until the late morning of 7 April, thus making it impossible for him to have attended the meeting at the house of Nzirorera’s mother in the evening and early morning of 6 to 7 April. This account is supported by Bizimungu himself, who stated that he did not leave his home until 10.00 or 11.00 a.m. on 7 April.

919. The Chamber is not convinced by the evidence of these witnesses. Furthermore, the Chamber considers it unlikely that Bizimungu, who was commander of the Ruhengeri operational secteur of the Army at the time, would have been absent from such a crucial meeting convened shortly after the news of the President’s death. Given the attendance of 1588 T. 21 February 2005, p. 29. 1589 T. 21 February 2005, p. 31. 1590 T. 21 February 2005, p. 33. 1591 Witness GAP has previously offered varying accounts as to who participated in the meeting. It was put to the witness that his latest recollection was incorrect with respect to the participants at the meeting, based on his statement dated 17 March 2003 and in his testimony in the Bizimungu et al. trial in which he stated that Kajelijeli was present at the meeting. In his testimony before this Chamber, the witness stated that Kajelijeli was not present and that it was in fact Harelimana, the bourgmestre at the time, who was present at the meeting. The witness explained that he had confused the two and that in fact where his previous statements and testimony read “Kajelijeli”, this Chamber should understand him to be referring to Harelimana. See T. 21 February 2005, pp. 19-22. 17 May 2011 209/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T both national and Ruhengeri-based leaders at the meeting, together with the fact that Ruhengeri had seen the brunt of fighting between government forces and the RPF for years leading up to that time, the Chamber finds it difficult to believe that the commander of the Ruhengeri operational sector of the Rwandan Army would have failed to attend.

920. Therefore, the Chamber is not persuaded by the evidence of Defence Witness DB2-6 that Bizimungu remained at his house throughout the night of 6 to 7 April and did not attend the meeting. In view of the urgency and seriousness of the situation in Ruhengeri at the time and Witness GAP’s firsthand evidence of Bizimungu’s presence at the meeting, the Chamber is unwilling to accept the evidence of Witness DB2-6. Moreover, the Chamber is reluctant to accept the alibi account provided by this witness given his possible interest in exonerating Bizimungu from the charges pleaded in the Indictment. The witness was a member of Bizimungu’s house staff and has a clear allegiance to Bizimungu’s family.

921. Turning to the evidence of Defence Witness DA5-1, the Chamber finds that his evidence does not exclude the possibility that Bizimungu attended the meeting at the house of Nzirorera’s mother during the night of 6 to 7 April. Witness DA5-1 claimed to have visited Bizimungu at his house in the evening of 6 April. The witness stated that Bizimungu retired to his room around 8.00 p.m. and that he never saw him during that night. Even if the Chamber were to accept his account, it is possible that Bizimungu left his home after 8.00 p.m. without the knowledge of the witness.

922. Finally, the Chamber has considered the evidence of Defence Witness DB15-11, a relative of Nzirorera who stated that no meeting took place at the house of Nzirorera’s mother as she was present at the house all night and saw nothing. First, the Chamber approaches this evidence with caution due to the relationship between the witness and Nzirorera, which shows a clear motivation for the witness to deny the existence of a meeting. Second, the Chamber finds that this evidence is outweighed by the Prosecution evidence of the existence of a meeting at the house of Nzirorera’s mother. 1.5.1.1.4.2 Killings in Rwankeri Following the Meeting 923. Having found that Bizimungu attended the meeting at the house of Nzirorera’s mother and that he made a speech at that meeting calling for the killing of Tutsi in Ruhengeri, the Chamber will now examine whether the remarks made by Bizimungu at that meeting led to the killing of Tutsi in Rwankeri secteur by members of the Interahamwe.

924. Having weighed the totality of the evidence relevant to these events, the Chamber is satisfied that there is a close link between the anti-Tutsi remarks made by the authorities, including Bizimungu, during the meeting at the house of Nzirorera’s mother and the killings of Tutsi civilians at Rwankeri by Interahamwe. The evidence of Prosecution Witnesses GFV, GFC and GFA suggests that shortly after the conclusion of the meeting, a number of officials including Bambonye emerged from the house of Nzirorera’s mother and urged the Interahamwe who had gathered at Byangabo market to kill Tutsi in the area. The evidence is compelling that not only was Bambonye present at the meeting, but that a number of Interahamwe had gathered at Byangabo market by the time the meeting finished.

925. This being the case, the Chamber is satisfied that the instructions issued by the local officials such as Bambonye to Interahamwe who had gathered at the market to kill Tutsi shortly after the meeting were directly linked to the anti-Tutsi remarks made by Bizimungu 17 May 2011 210/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T and other authorities during their speeches at the meeting. The evidence also suggests that after Bambonye’s instructions, the Interahamwe killed two Tutsi in and around the Byangabo market and then headed to Rwankeri secteur where they killed more Tutsi civilians. Having considered the evidence relevant to the events of 7 April in Ruhengeri, the Chamber is satisfied that it is a reasonable inference that the killings of Tutsi civilians by Interahamwe in Rwankeri secteur were precipitated by the anti-Tutsi remarks made by Bizimungu at the meeting held at the house of Nzirorera’s mother.

926. The Chamber further notes that the evidence elicited from Defence Witnesses DB11-2 and DB11-11 corroborates the evidence of Prosecution witnesses regarding the killings of Tutsi at Byangabo market and in Rwankeri secteur on 7 April. 1.5.1.1.4.3 Killings by Soldiers from Kanombe and Bigogwe Camps at Busogo Parish 927. The Chamber has heard evidence from Prosecution Witnesses GFA and GFC regarding the killings at Busogo Parish. Both witnesses testified to having participated, alongside other Interahamwe members, in the killings at the parish on 7 April 1994. In addition to the evidence of these witnesses, Prosecution Witness GAP testified that he saw Bizimungu at Busogo Parish on 8 April overseeing the burial of 400 to 500 dead bodies, one day after the alleged killings of the Tutsi refugees at the parish.1592 928. The Chamber notes that Prosecution Witnesses GFA and GFC identified soldiers as being among the assailants at the parish. While the Chamber accepts based on the evidence of Prosecution Witnesses GFA, GFC and GAP that Tutsi civilians at Busogo Parish were killed by both Interahamwe and soldiers, the Chamber is not satisfied that the evidence elicited from Prosecution witnesses establishes a clear nexus between Bizimungu’s remarks at the meeting and the killings at Busogo Parish.

929. The Chamber recalls that Bizimungu is charged with criminal responsibility for the killings of Tutsi civilians at Busogo Parish pursuant to Article 6(1) of the Statute. In order for an accused to be culpable under Article 6(1), he must be found to have committed, ordered, instigated or otherwise aided and abetted the crimes in question. The Chamber is not satisfied that the Prosecution has adduced sufficient evidence proving that Bizimungu’s anti-Tutsi remarks at the meeting held at the house of Nzirorera’s mother had a significant bearing on the conduct of the assailants who killed the Tutsi civilians at Busogo Parish. For this reason, the Chamber is unwilling to hold Bizimungu criminally responsible for the killings at the parish pursuant to Article 6(1) of the Statute. The mere fact that soldiers were implicated in these killings is not sufficient to support a finding of guilt pursuant to Article 6(1).

930. The Chamber is therefore satisfied that the Prosecution has proved beyond reasonable doubt that Bizimungu’s anti-Tutsi speech during the meeting held at the house of Nzirorera’s mother on 7 April substantially contributed to the killings of Tutsi civilians in Rwankeri secteur on that day. However, the Chamber is not satisfied that the Prosecution has proved beyond reasonable doubt that Bizimungu bears criminal responsibility pursuant to Article 6(1) of the Statute for the killings of Tutsi civilians at Busogo Parish. 1592 T. 15 February 2005, pp. 48-49. 17 May 2011 211/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.1.2 Killing of Tutsi by Interahamwe at Ruhengeri Court of Appeal 1.5.1.2.1 Introduction 931. The Indictment alleges that on or around 8 April 1994, Bizimungu met a group of Interahamwe and “asked them to prepare to intervene at the Ruhengeri Court of Appeal where Tutsi, who … were destined for extermination, had sought refuge.”1593 The Indictment also alleges that on or around 14 April, the militiamen met Bizimungu “in front of” the Ruhengeri Court of Appeal and that he pointed to the building and then withdrew after the first grenade was thrown. Over 100 people are alleged to have been killed in the attack. It is further alleged that in the evening, Bizimungu “had broadcast an announcement on the radio, alleging that the refugees had died under RPF bombs.”1594 1.5.1.2.2 Evidence 1.5.1.2.2.1 Prosecution Evidence Prosecution Witness GFU 932. Witness GFU testified that he was a member of Impuzamugambi, the youth wing of the CDR party, in 1994.1595 Following the death of President Habyarimana on 6 April, the witness was informed by a person he knew as Pierre1596 that “military and civilian authorities had launched an appeal” for people to go to Ruhengeri Stadium in order to receive training.1597 Consequently, approximately three days after the death of the President, the witness and other members of

the Impuzamugambi and Interahamwe proceeded to Ruhengeri Stadium where they underwent a three-day military training programme provided by soldiers from Camp Muhoza.1598 933. The witness explained that upon completion of his training, there was a closing ceremony attended by Bizimungu and his deputies. Bizimungu addressed those present and informed them that they “were to be assigned to roadblocks to track down Inyenzi Inkotanyis and their accomplices”.1599 The witness was then issued an R-4 rifle and sent to a roadblock at the SGP petrol station in Mubona secteur, Ruhengeri.1600 934. Witness GFU testified that on the day before he went to the Ruhengeri Court of Appeal, he attended a meeting at the Ruhengeri préfecture office. Those present at the meeting included Bizimungu, Préfet Basile (who chaired the meeting), Gahunde and Pierre of the CDR and Bivugabagabo, as well as other préfets, sous-préfets and bourgmestres.1601 The 1593 Indictment, para 64. 1594 Indictment, para 65. 1595 T. 27 January 2005, p. 51. 1596 Witness GFU testified that Pierre was a youth leader in the CDR. The Chamber notes that references to Pierre in the Transcripts are also spelt “Peri” and “Pere”. These names are therefore used interchangeably. 1597 T. 27 January 2005, pp. 53-54. 1598 T. 27 January 2005, pp. 53, 56, 58. Witness GFU testified that he was trained in handling firearms and traditional

weapons. He also testified that in 1994 he and about 20 other youths received training at Cyabararika forest on how to handle grenades. During the training, Colonel Setako informed the trainees that they were being prepared to fight the Inkotanyi and their accomplices. 1599 T. 27 January 2005, p. 53. 1600 T. 27 January 2005, pp. 59-60. 1601 T. 27 January 2005, pp. 53-54; T. 2 February 2005, pp. 29-30; T. 2 February 2005, p. 29. 17 May 2011 212/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T witness testified that “it was in that meeting that the plan to attack the appeals court was discussed”.1602 The witness claimed that during the meeting, Bizimungu referred to the Tutsi refugees at the Court of Appeal as “filth” and “requested that this filth or this dirt be removed within a few days”. Witness GFU understood Bizimungu’s remarks as a call to kill the refugees.1603 935. Witness GFU then described the attack that took place at the Court of Appeal. He explained that on the following day, he was at the SGP petrol station roadblock when a person he knew as Nzirorera, the Speaker of the Rwandan National Assembly and a member of the MRND party, stopped at the roadblock. Nzirorera asked the witness and other militiamen at the roadblock to follow him to Mukingo.1604 Upon arrival in Mukingo, they met the Mukingo Interahamwe. The entire group (including the Mukingo Interahamwe) then boarded vehicles and headed to the Court of Appeal in Ruhengeri.1605 936. On arrival, Witness GFU saw that there were approximately 15 to 20 gendarmes surrounding and guarding the Court and that inside the Court building was a group of Tutsi refugees including women, children and elderly men.1606 The witness testified that the gendarmes fired shots into the air and then left the scene. 1607 937. Shortly thereafter, the

witness saw Bizimungu arrive in the area and enter the Hotel Muhabura, which was located opposite the Court of Appeal. The witness then accompanied the youth leader Pierre to the hotel. There they found Bizimungu sitting on the terrace together with Bivugabagabo, Setako and other soldiers whose names the witness could not recall.1608 Witness GFU explained that Bizimungu gave them the “green light” to attack the refugees and said, “Now, right now, start working”.1609 The witness stated, “[S]ince this had been agreed in the meeting that we were to rid ourselves of the dirt, and since he said we could start working, we went back to the site and began firing [at the refugees].”1610 Throughout the attack, Bizimungu “was seated on the Hotel Muhabura terrace”.1611 The witness claimed that the attack did not last more than an hour.1612 938. Following the attack, Witness GFU returned to the roadblock. He testified that shortly thereafter, “Nzirorera came to verify if the work had been completed. He came to take note – or take stock of what had happened at the Court of Appeal.”1613 Upon doing so, Nzirorera “found some people had not yet died”. Nzirorera then made the witness and others return to the Court of Appeal to “[finish] off all of those who were still alive”.1614 Nzirorera then left. 1602 T. 27 January 2005, p. 62. 1603 T. 27 January 2005, pp. 63-64. 1604 T. 27 January 2005, p. 62. 1605 T. 27 January 2005, p. 62. 1606 T. 27 January 2005, pp. 64-65. 1607 T. 3 February 2005, p. 30. 1608 T. 27 January 2005, pp. 65-66. 1609 T. 27 January 2005, p. 67. 1610 T. 27 January 2005, p. 67. 1611 T. 27 January 2005, p. 68. 1612 T. 27 January 2005, p. 68. 1613 T. 27 January 2005, p. 70. 1614 T. 27 January 2005, p. 70. 17 May 2011 213/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T According to Witness GFU, approximately 200 or 250 Tutsi men, women and children were killed in the attack.1615 Prosecution Witness GFV 939. Witness GFV was a member of the Interahamwe in 1994.1616 On 14 April 1994, the witness was in Byangabo when a group of Interahamwe from Ruhengeri including members known as Pere, Cyaka, Evariste, Mwenge, Toto and Tuta arrived in two Daihatsu pickup vehicles.1617 The Interahamwe from Ruhengeri told the witness and other Mukingo Interahamwe that Bizimungu had “asked them to get reinforcement from the Mukingo Interahamwe”.1618 Initially, the witness and his colleagues refused to go with them. This was because they did not have approval from their superiors.1619 940. The Ruhengeri Interahamwe then headed to a nearby petrol station together with Witness GFV and his colleagues in order to find the witness’s superiors. There they met Chief Warrant Officer Karorero and Kajelijeli, who was the leader of Interahamwe in Mukingo commune.1620 The Ruhengeri Interahamwe repeated that Bizimungu had sent them and stated that reinforcements were required because “there was a chief warrant officer who brought Tutsis from Busengo and kept them at the Court of Appeals”.1621 Permission was given for Witness GFV and the Mukingo Interahamwe to accompany the Ruhengeri Interahamwe to the

Court of Appeal.1622 941. Witness GFV and other Mukingo Interahamwe then boarded a vehicle and went to Mukamira where they picked up weapons. The witness testified that he received two or three grenades from Karorero. The entire group then proceeded towards the Court of Appeal.1623 Upon arrival, a small group of Interahamwe from Ruhengeri, including Pere, got out of the vehicle and went into Hotel Muhabura, which was located opposite the Court of Appeal.1624 942. At the Court of Appeal, the witness saw three gendarmes who fired into the air.1625 Shortly thereafter, Pere and his colleagues returned from Hotel Muhabura and told Witness GFV and the others that Bizimungu had given the order to shoot at the Court of Appeal.1626 Upon hearing this, a person named Musafili shot open the locks on the doors of the Court of Appeal, after which the other attackers entered the building and killed Tutsi refugees.1627 Witness GFV testified that although he was present during the attack, he did not participate in 1615 T. 27 January 2005, pp. 68-69. 1616 T. 23 May 2005, p. 14; Prosecution Exhibit 34, under seal. 1617 T. 23 May 2005, pp. 28-29. 1618 T. 23 May 2005, p. 29. 1619 T. 23 May 2005, p. 28-30. 1620 T. 23 May 2005, p. 28-31. 1621 T. 23 May 2005, p. 32. 1622 T. 23 May 2005, pp. 29-32. 1623 T. 23 May 2005, p. 32. 1624 T. 23 May 2005, pp. 33-34. 1625 T. 23 May 2005, p. 35. 1626 T. 23 May 2005, p. 35. 1627 T. 23 May 2005, p. 39. 17 May 2011 214/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T it.1628 He estimated that approximately 150 or 200 unarmed Tutsi women, men and children were killed in the attack.1629 Prosecution Witness GFA 943. Witness GFA testified that he was a member of the Interahamwe in 1994.1630 On 14 April 1994, the witness was in Mukingo commune when he received a message from Juvénal Kajelijeli requesting that he go to the Byangabo petrol station.1631 Upon arrival, he saw two Daihatsu pickup vehicles loaded with Impuzamugambi militia who had arrived from Ruhengeri. Kajelijeli then told the witness to find Interahamwe who could go and help the Impuzamugambi kill Tutsi refugees at the Court of Appeal.1632 Witness GFA thereafter went in search of Interahamwe and brought them to the petrol station.1633 In the witness’s presence, the Interahamwe and Impuzamugambi boarded the two vehicles and left.

944. Witness GFA was later informed by the Interahamwe who had gone to Ruhengeri that they killed Tutsi at the Ruhengeri Court of Appeal.1634 During his testimony, the witness wrote down the names of some of the Interahamwe, including Prosecution Witnesses GFC and GFV, whom he had asked to go and help the Impuzamugambi attack Tutsi refugees at the Court of Appeal.1635 Witness GFA also gave a list of the militia from Ruhengeri, including Prosecution Witness GFU and one Pere, who had come to Mukingo to seek assistance from the Interahamwe.1636 945. Witness GFA further testified that approximately two weeks after the death of the President, he attended a meeting with approximately 3000 others at which the new Préfet, Basile, was introduced to members of the population in the Ruhengeri préfecture.1637 1.5.1.2.2.2 Defence Evidence The Accused Bizimungu 946. Bizimungu denied any involvement in planning or implementing the attack on the Ruhengeri Court of Appeal.1638 He rejected Witness GFU’s testimony that he attended a meeting on 13 April 1994 during which he referred to the Tutsi refugees at the Court of Appeal as “filthy” and stated that they must be removed.1639 Furthermore, Bizimungu told the Chamber that he could not have been present with Préfet Basile at the meeting of 13 April because Basile had not yet become préfet, and Ruhengeri only had a sous-préfet at that 1628 T. 23

May 2005, p. 39. 1629 T. 23 May 2005, p. 39. 1630 T. 30 January 2006, p. 58. 1631 T. 31 January 2006, p. 18. 1632 T. 31 January 2006, p. 18. 1633 T. 31 January 2006, pp. 18, 23. 1634 T. 31 January 2006, pp. 19, 23. 1635 T. 31 January 2006, pp. 29-31; Prosecution Exhibit 78, under seal. 1636 T. 31 January 2006, p. 31; Prosecution Exhibit 79, under seal. 1637 T. 30 January 2006, p. 73. 1638 T. 11 December 2007, p. 21-23. 1639 T. 11 December 2007, p. 22. 17 May 2011 215/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T date.1640 Bizimungu also denied that he was present with Setako at Hotel Muhabura because according to him, he had not seen Setako from 4 April and only saw him “later” in Kigali.1641 947. Bizimungu explained that on 12 April, he received instructions from General Gatsinzi, then Chief of Staff, to put together a UNAMIR column that was moving from the demilitarised zone in Byumba to Ruhengeri. He therefore contacted his battalion commanders and, together with them, prepared to receive the UNAMIR troops who arrived at about 11.00 p.m. that evening.1642 Bizimungu further explained that after the departure of the UNAMIR column, he had a “day of normal activity” on 13 April and went home on 14 April because he had not been home in a long time.1643 Contrary to the Prosecution evidence, Bizimungu specifically denied his presence at Hotel Muhabura on 14 April and denied that he had ordered the massacre of the Tutsi civilians at the Court of Appeal.1644 Defence Witness Basile Nsabumugisha 948. Witness Basile Nsabumugisha testified that prior to 19 April 1994, he worked at the Ministry of Foreign Affairs and was based in Kigali.1645 He stated that on 17 April 1994, he learned over the radio that he had been chosen to be the préfet of Ruhengeri préfecture.1646 Accordingly, on 19 April the witness left Kigali and

went to Ruhengeri. He was officially sworn in as préfet on 22 April at the Ruhengeri préfecture office, in the presence of about 50 to 100 people.1647 949. The witness explained that he was appointed préfet because his predecessor, Sylvestre Baliyanga, had been killed. He further explained that between 8 April and 22 April 1994, there had been no préfet in Ruhengeri.1648 950. Witness Basile denied that he ever chaired or participated in a meeting regarding Tutsi refugees at the Court of Appeal.1649 The witness further testified that from 19 April, when he arrived in Ruhengeri, until 13 July 1994, when he left the city, he did not see Bizimungu and was never told by anyone that Bizimungu had been in Ruhengeri.1650 951. In relation to the attack at the Court of Appeal, the witness testified that he was not present during any such attack. He was, however, informed and heard on the radio that on 14 April the Court of Appeal had “come under attack from young persons from Kigombe and others who had come from elsewhere.”1651 1640 T. 11 December 2007, pp. 22-23. 1641 T. 11 December 2007, p. 23. 1642 T. 11 December 2007, p. 22. 1643 T. 11 December 2007, p. 22. 1644 T. 11 December 2007, p. 23. 1645 T. 26 October 2007, pp. 5-6. 1646 T. 26 October 2007, p. 6; T. 29 October 2007, pp. 59-60. 1647 T. 26 October 2007, p. 13. 1648 T. 29 October 2007, pp. 22-23. 1649 T. 29 October 2007, p. 17-18. 1650 T. 26 October 2007, p. 25. 1651 T. 29 October 2007, p. 31. 17 May 2011 216/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DB 15-6 952. Witness DB 15-6 was a senior law enforcement officer in Ruhengeri préfecture in 1994.1652 He testified that on 12 April 1994, he attended a security meeting at which it was decided to move refugees from Busengo to the Ruhengeri Court of Appeal.1653 This was because there was a gendarme post in that commune and because bourgmestres of various other communes had indicated that they could not provide safety for these people within their communes.1654 953. The meeting was attended by several high-ranking officials of Ruhengeri and was chaired by the representative of the préfet, Sous-Préfet Célestin Ntarwanda, because the préfet had been killed on the night of 7 April.1655 Witness DB 15-6 testified that neither Basile Nsabumugisha nor Bizimungu attended this meeting.1656 According to the witness, Basile Nsabumugisha first came to Ruhengeri on 19 April 1994 after his appointment as préfet.1657 The witness also stated that Peri, whom he described as a “great bandit” and “a terrorist”, did not attend the meeting and that no bodyguards were allowed into the meeting room.1658 954. When asked about his knowledge of the attack on the Court of Appeal in Ruhengeri, Witness DB 15-6 testified that the decision to take refugees to the Court was made during a security meeting, which to his

recollection was held on 12 April 1994.1659 According to the witness, as far as he knew, the security meeting that was held on 12 April was the only one of its kind during that period. Had there been any other meeting, the witness claimed he would have been aware of it.1660 Regarding the actual attack on the Court of Appeal, the witness stated, “I heard that people were taken to the Appeals Court in search of refuge, and that later on a gang of young people, who were bandits, attacked them and killed them”.1661 Defence Witness DE 11-4 955. Witness DE 11-4 was a politician in Ruhengeri in April 1994.1662 He testified that he was living in Kigali at the time of the President’s death.1663 On 13 April, the witness fled Kigali with his family and travelled towards Gisenyi, stopping for the night at Camp Gitarama.1664 The next morning, the witness continued his journey, stopping to drop off family members of other soldiers at Camp Mukamira and then continuing to Gisenyi where 1652 T. 30 October 2007, p. 32 (ICS). 1653 T. 30 October 2007, pp. 46, 49. 1654 T. 30 October 2007, pp. 46-47. 1655 Defence Witness DB 15-6 listed the following as having attended the meeting: the sous-préfet of Busengo, Nzanana; the bourgmestre of Busogo; the bourgmestre of Nyakinama; the bourgmestre of Nkuli; the bourgmestre of Ruhengeri; the commander of the detachment; the commander of EGENA; the prosecutor

and presiding judge of the court of first instance; the officer in charge of the intelligence service; the representative of ORINFOR; and the director of the prison. See T. 30 October 2007, pp. 46-49. 1656 T. 30 October 2007, pp. 48-49. 1657 T. 30 October 2007, p. 48. 1658 T. 30 October 2007, pp. 49-50. 1659 T. 30 October 2007, p. 51. 1660 T. 30 October 2007, p. 51. 1661 T. 30 October 2007, p. 46. 1662 T. 27 November 2007, pp. 3-5. 1663 T. 27 November 2007, p. 26. 1664 T. 27 November 2007, p. 26. 17 May 2011 217/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T he found accommodation for his family.1665 He remained in Gisenyi until he received an official order to return to Ruhengeri in early June.1666 956. The witness stated that he was aware of the attack at the Court of Appeal as it was, in his opinion, “common knowledge”.1667 He refuted the assertion that he was present at a meeting before the attack at the Court of Appeal at which it was decided to kill the refugees there.1668 Defence Witness DC 2-4 957. Witness DC 2-4 was a driver in Ruhengeri in April 1994. He testified that he was an “eyewitness” to the attack on the Court of Appeal.1669 According to the witness, on the day of the attack he was returning from Mukamira when he stopped at Cyangugu and learned that the refugees staying at the Ruhengeri Court of Appeal had been killed.1670 Upon hearing this report, he travelled to Ruhengeri to verify whether it was true.1671 When he arrived at the Court, while still sitting inside his vehicle, he saw corpses that had been “piled on the side” next to the Court.1672 He also saw soldiers1673 trying to push back the crowds that had gathered at the scene, while at the same time “making efforts to bury the bodies of the victims.”1674 The witness stated that according to information he obtained from the local population, those who attacked the Court of Appeal

“were said to be criminals in the Ruhengeri region”1675 and that to his knowledge neither Bizimungu nor other soldiers played any role in that massacre.1676 Defence Witness DB 2-5 958. Witness DB 2-5 was a soldier in the Rwandan Army assigned to the Ruhengeri operational sector in April 1994.1677 He testified that about a week after President Habyarimana’s death, he left the military camp with another soldier, without authorisation and without weapons,1678 in order to “get something to drink”.1679 The witness and the other soldier first went to Hotel Muhabura, which was closed, so they continued on towards Umushikarinyaro Inn.1680 On the way, they passed the Court of Appeal and saw that there 1665 T. 27 November 2007, pp. 26-27. 1666 T. 27 November 2007, p. 47. 1667 T. 27 November 2007, p. 25. 1668 T. 27 November 2007, pp. 24-25. 1669 T. 30 April 2007, p. 10. 1670 T. 30 April 2007, pp. 7-8 (ICS); T. 30 April 2007, p. 12. 1671 T. 30 April 2007, p. 12. 1672 T. 30 April 2007, p. 12. 1673 The witness had first identified those controlling the situation at the Court as “security officers”, but later stated that soldiers “were the ones preventing the crowd from getting closer to the Appeals Court.” See T. 30 April 2007, p. 13. 1674 T. 30 April 2007, p. 13. 1675 T. 30 April 2007, p. 20. 1676 T. 30 April 2007, pp. 20-22. 1677 T. 3 May 2007, pp. 3, 9-10. 1678 The witness testified that leaving the camp without authorisation was considered a serious offence in the military at the time and that, if caught, a soldier was sanctioned to five days in a “police room”, unable to leave the camp. See T. 3 May 2007, p. 30. 1679 T. 3 May 2007, p. 12 (ICS). 1680 T. 3 May 2007, p. 12 (ICS). 17 May 2011 218/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T were people inside, but did not know whether they were refugees.1681 Before arriving at Umushikarinyaro Inn, they heard “screams which seemed to come from Ruhengeri town.”1682 When they turned, they saw a mob going towards the Court of Appeal, at which point they became frightened and decided to return to the camp.1683 On their way back, they passed Hotel Muhabura where they saw a huge crowd of civilians carrying traditional weapons and clubs moving towards the Court.1684 Less than five minutes into the walk back to camp, they heard gunshots and grenade explosions, at which point they began running.1685 The witness recalled that the shooting stopped after approximately ten minutes.1686 Defence Witness DB 11-35 959. Witness DB 11-35 testified that he was employed at Hotel Muhabura in April 1994.1687 He explained that the hotel was located in Kigombe commune, Ruhengeri, and that only a road separated the hotel from the Ruhengeri Court of Appeal.1688 He estimated the distance between the two locations to be approximately 100 metres.1689 The witness told the Chamber that Hotel Muhabura was not open on 14 April 1994, the day that the attack on refugees at the Court of Appeal took place, and added that it had not in fact opened for business since the death of the President on 6 April.1690 960. Witness DB

11-35 testified that on 14 April, he went to the hotel in the morning in order to clean the premises.1691 Upon arrival, the witness saw a number of people around the area of the Court of Appeal. The witness asked a guard at the Court what was happening and was told that it involved refugees from Busengo.1692 961. At approximately 12.30 to 1.00 p.m., the witness heard the sound of whistles blowing and people screaming. The witness then went to the front entrance of the hotel and saw a group of people he described as “bandits”. Among the group was a person the witness knew as Peri.1693 The group then went past the Court building and headed in the direction of Gisenyi.1694 962. At approximately 2.30 to 3.00 p.m., the witness was in the hotel when he again heard noise and also heard gunshots.1695 When the witness went outside, he saw a crowd of people fleeing in opposite directions away from the Court.1696 After about five minutes, a military 1681 T. 3 May 2007, p.

31. The witness also testified that he had never before, on his walks to get juice or for other purposes, passed through the Court of Appeals. 1682 T. 3 May 2007, p. 12 (ICS). 1683 T. 3 May 2007, p. 12 (ICS). 1684 T. 3 May 2007, pp. 19, 46. 1685 T. 3 May 2007, p. 12 (ICS). 1686 T. 3 May 2007, p. 13 (ICS). While the witness testified that the sounds of gunshots and grenades lasted only ten minutes, he admitted that the sounds became much fainter as he ran away from the Court, towards the camp. See T. 3 May 2007, p. 46. 1687 T. 14 November 2007, pp. 5-6 (ICS). 1688 T. 14 November 2007, p. 7 (ICS). 1689 T. 14 November 2007, p. 7 (ICS). 1690 T. 14 November 2007, pp. 7-8 (ICS). 1691 T. 14 November 2007, p. 8 (ICS). 1692 T. 14 November 2007, p. 9 (ICS). 1693 T. 14 November 2007, p. 9 (ICS). 1694 T. 14 November 2007, p. 9 (ICS). 1695 T. 14 November 2007, p. 10 (ICS). 1696 T. 14 November 2007, p. 11 (ICS). 17 May 2011 219/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T vehicle arrived and dropped off two individuals, followed a few minutes later by either soldiers or gendarmes,1697 all of whom attempted to control the movement of people who had gathered to see what was happening.1698 963. Witness DB 11-35 testified that the refugees who had been at the Court were killed on that day.1699 He further testified that throughout the time he spent at the hotel, from about 10.00 a.m. to approximately 4.00 p.m., no one visited the hotel or sat on the terrace.1700 In particular, the witness denied that Bizimungu, Colonel Setako or Major Bivugabagabo visited the hotel on that day or sat on the terrace.1701 Defence Witness DB 2-13 964. Witness DB 2-13 was a priest in Ruhengeri in April 1994.1702 He testified that he knew Bizimungu as the commander of Camp Mukamira and considered him a friend.1703 Although the witness lived some four kilometres away from the Court of Appeal at the time of the attack of 14 April, he heard of the attack and learned that it was carried out by Interahamwe.1704 The witness stated that at the time of the attack, “Bandits were very many, and … people called Interahamwe were not properly organised … These were the young people who were creating chaos in town, in various offices, who were seeking to steal everywhere. These people were not under the control

of the civil service.”1705 965. The witness also expressed the view that it was impossible for authorities, such as Bizimungu, to have participated in the killings. The witness stated, “[H]e could not have participated in such activities, particularly since the watchword of the people, the residents, did not allow him to conduct himself in that manner.”1706 Witness DB 2-13 testified that Bizimungu’s name was never directly or indirectly referenced in regards to responsibility for the attack on the Court of Appeal.1707 1.5.1.2.3 Deliberations 966. Both Prosecution and Defence evidence indicates that on 14 April 1994, several hundred Tutsi were murdered in an attack at the Ruhengeri Court of Appeal. It is also common ground that the attack was directly perpetrated by two militia groups, the Impuzamugambi from Ruhengeri town and the Interahamwe from Mukingo commune.

967. The key question before the Chamber is whether Bizimungu directly participated in the massacre at the Court of Appeal. The Chamber will first consider whether Bizimungu directly participated by encouraging militiamen during a meeting to kill Tutsi refugees at the Court of Appeal, as alleged in paragraph 64 of the Indictment. The Chamber will then 1697 The witness was unable to recall whether they were soldiers or gendarmes. 1698 T. 21 November 2007, pp. 13, 24. 1699 T. 14 November 2007, p. 11 (ICS). 1700 T. 14 November 2007, pp. 9, 12-13 (ICS). The witness did, however, state that there was nothing keeping someone from going to the terrace, even if the hotel was closed. 1701 T. 14 November 2007, p. 12 (ICS). 1702 T. 23 October 2007, p. 34 (ICS). 1703 T. 24 October 2007, pp. 29-30. 1704 T. 24 October 2007, p. 23. 1705 T. 24 October 2007, p. 24. 1706 T. 24 October 2007, p. 25. 1707 T. 24 October 2007, p. 25. 17 May 2011 220/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T consider whether Bizimungu directly participated by pointing to the Court and signalling for the attack to commence, as alleged in paragraph 65 of the Indictment. 1.5.1.2.3.1 The Meeting 968. Prosecution Witness GFU was the only witness to provide a firsthand account of the alleged meeting pleaded in paragraph 64 of the Indictment. At the outset, the Chamber notes that at the time of his testimony, Witness GFU was incarcerated and serving a lengthy prison sentence in Rwanda for crimes related to the genocide.1708 He was also an accomplice to the massacre at the Ruhengeri Court of Appeal. Accordingly, the Chamber views the witness’s testimony with caution.

969. The Chamber finds Witness GFU’s evidence problematic. His evidence describing a meeting in which Bizimungu participated is uncorroborated and there are significant differences between his sworn testimony and five of his pre-trial statements made between 28 November 2000 and 19 November 2003.

970. The Chamber notes that in his first two statements, which total 19 pages and contain extensive information about events during the relevant period, Witness GFU did not make any reference to Bizimungu. Furthermore, the Chamber notes that unlike his testimony, Witness GFU did not in any of his five statements claim to have attended a meeting at the Ruhengeri préfecture office. He also did not in any of his pre-trial statements claim to have attended a meeting at which Bizimungu discussed the fate of Tutsi refugees at the Court of Appeal.

971. On the contrary, Witness GFU’s pre-trial statements clearly suggest that he did not attend any meeting at which the issue of Tutsi refugees at the Court of Appeal was discussed. Witness GFU’s statements to ICTR investigators dated 14 November 2002 and 18 February 2003 state that he was “informed” about the outcome of the alleged meeting at the préfecture office by Préfet Basile and someone else while he (Witness GFU) was on duty at the SGP petrol station roadblock in Ruhengeri.1709 The Chamber therefore finds that Witness GFU’s testimony that he attended a meeting with Bizimungu the day before the attack at the Court of Appeal is irreconcilable with his pre-trial statements, in which he claimed that he was “informed” that such a meeting took place.

972. When confronted with these inconsistencies during cross-examination, Witness GFU offered several different explanations. Initially, he claimed that he had not mentioned Bizimungu’s name in his early statements because he “had just come back from Zaire and ... was arrested and ... wasn’t in a state of serenity”.1710 Witness GFU then explained that he had lied in his early statements because he wanted to “mask the full extent of [his] ... responsibility because [he] hadn’t yet fully understood the [judicial] process”. 1711 He also 1708 T. 27 January 2005, pp. 35-46 (ICS). 1709 Defence Exhibit 20, under seal (the witness claimed “that at a meeting held by senior military officers [General Bizimungu Augustin, Colonel Setako Ephrem, Colonel Ntibitura and Colonel Bivugabagabo] in Ruhengeri it had been decided that Tutsi refugees sheltering in the Ruhengeri Court of Appeal should be killed that same day”). Defence Exhibit 20(A) (the witness claimed that he was “visited by préfet Basile and the sous- préfet Nzanana of Busengo. They told us that they had a meeting at which it was decided that the refugees from Busengo who were gathered at the Court of Appeal should be killed”). 1710 T. 31 January 2005, p. 20. 1711 T. 31 January 2005, p. 20. 17 May 2011 221/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T explained that the investigators’ questions were targeted at specific individuals and that his answers ought to be understood in that context.1712 Witness GFU finally claimed that he lied in his early statements for security reasons and that he did not mention the names of key individuals because “there was a risk that members of that official’s family would kill you”.1713 He testified that it was not until “around January 2003” that he decided to tell the truth about his involvement in the events of 1994.1714 973. The Chamber is not persuaded by any of these explanations. It is highly unlikely that Witness GFU would have forgotten to mention Bizimungu in his early statements given Bizimungu’s prominence and his alleged role in the Court of Appeal massacre. Witness GFU’s explanation that he masked his role in the massacre until January 2003 is inconsistent with his statement dated 14 November 2002, in which he accepts that he killed Tutsi at the Court of Appeal. Most significantly, however, Witness GFU’s explanation that he only decided to tell the truth after January 2003 fails to explain why the witness, in his statement dated 18 February 2003, maintained that he did not attend any meeting but was “informed” that such a meeting took place.

974. The Chamber finds that the evidence submitted by Defence Witnesses Basile, DB 15- 6 and DB 11-4 provides further reason to doubt Witness GFU’s evidence.

975. Defence Witnesses Basile and DE11-4 refuted Witness GFU’s assertion that they attended a meeting at which the issue of Tutsi at the Court of Appeal was discussed. Both Defence witnesses claimed that they were not in Ruhengeri at the time of the alleged meeting.1715 Basile testified that he only came to Ruhengeri on 19 April and was sworn in as préfet on 22 April. This casts doubt on Witness GFU’s uncorroborated assertion that Basile in his capacity as préfet chaired a meeting in Ruhengeri on 13 April (the eve of the attack on the Court of Appeal). Basile’s arrival in Ruhengeri on 19 April is further confirmed by the evidence of Defence Witness DB 15-6 and is also corroborated by Prosecution Witness GFA, who testified that two weeks after the death of the President, he attended the ceremony with approximately 3000 others at which “the new préfet, Basil was introduced to members of the population in the Ruhengeri préfecture.”1716 Witness GFU’s testimony that on 13 April Basile chaired a meeting as préfet of Ruhengeri is therefore doubtful.

976. Defence Witness DB15-6’s evidence in relation to the alleged meeting at which it was decided to house the Busengo Tutsi at the Ruhengeri Court of Appeal and his knowledge of the attack at the Court was also unchallenged by the Prosecution.1717 He refuted Prosecution Witness GFU’s assertion that Bizimungu and Basile were present during a meeting discussing Tutsi refugees at the Court of Appeal. He further denied that Peri or Witness GFU attended such a meeting. 1712 T. 31 January 2005, pp. 29, 31. 1713 T. 2 February 2005, pp. 11-12. 1714 T. 31 January 2005, pp. 28, 54. 1715 T. 27 November 2007, pp. 25-26. 1716 T. 31 January 2006, p.

73. The Chamber notes that the transcript of Witness GFA’s evidence refers to “Basil” rather than “Basile”, but the Chamber is satisfied that the witness is referring to the same person. 1717 The Prosecution did not pose any questions to Defence Witness DB15-6 relating either to the meeting at which it was decided to house the Tutsi at the Ruhengeri Court of Appeal or to the actual attack at the Court of Appeal. 17 May 2011 222/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 977. Defence Witness DB 15-6 was a senior member of Ruhengeri’s security establishment in 1994. The Chamber accepts the witness’s evidence that he attended a meeting at which the relocation of Tutsi refugees to the Court of Appeal was discussed. The Chamber finds that Witness DB 15-6 was in a position to know of and report on matters of security, including a meeting that discussed how to deal with a large group of vulnerable unarmed Tutsi civilians. In so doing, the Chamber finds that Witness DB 15-6’s evidence raises reasonable doubt in relation to Witness GFU’s version of events. It is, for example, highly unlikely that a high level meeting such as the one described by Witness DB 15-6 or Witness GFU would have been open to individuals such as Peri or indeed the bodyguard of Peri, Witness GFU himself.

978. The Chamber finds that Witnesses GFU and DB 15-6 were speaking about the same meeting. The fact that they respectively testified that the meeting took place on 12 and 13 April at the préfecture office and that it concerned the same issue (i.e., what to do about the Tutsi refugees) shows that the two witnesses could not have been speaking about two different meetings. The slight difference in the dates can be explained by the lapse of time between 1994 and the dates of the witnesses’ testimony. However, the Chamber finds that the evidence of Witness DB 15-6 further diminishes the credibility of Witness GFU. As a senior member of Ruhengeri’s security establishment in 1994, Witness DB 15-6 was better placed to know of and report on matters of security such as how to deal with a large group of vulnerable unarmed Tutsi civilians.

979. The Chamber finally recalls that Defence Witness DB 11-4, who Witness GFU alleges was also present at the meeting of 13 April, denied his presence at the meeting and maintained that on 13 April, he was on his way from Kigali to Gisenyi in search of accommodation for his family and the families of some of his colleagues in the army. The Prosecution has not advanced any evidence to support Witness GFU’s account that Witness DB 11-4 was present at the meeting. The Chamber therefore has doubts about this aspect of Witness GFU’s testimony.

980. In light of the uncorroborated accomplice evidence of Prosecution Witness GFU, his inconsistent pre-trial statements and the evidence provided by Defence Witnesses Basile, DB 15-6 and DB 11-4, which contradicts important aspects of Witness GFU’s testimony, the Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that on 8 April or any other date thereafter, Bizimungu addressed militiamen and encouraged them to prepare to attack Tutsi refugees at the Ruhengeri Court of Appeal. 1.5.1.2.3.2 The Attack 981. Prosecution Witness GFU is the only witness who claims to have seen Bizimungu at the scene of the attack at the Court of Appeal. He is also the only witness who claims to have heard Bizimungu order the attack to commence.1718 The Chamber finds, however, that Witness GFU’s evidence in relation to the attack is fraught with inconsistencies between his sworn testimony and his five pre-trial statements. Specifically, Witness GFU provided various accounts of how he came to be involved in the attack, his role and participation in the attack, who ordered the attack, and the presence of Bizimungu and other key individuals. 1718 T. 27 January 2005, p. 67 (Witness GFU testified that Bizimungu stated, “Now, right now, start working.”). 17 May 2011 223/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 982. Witness GFU’s testimony that he participated and killed Tutsi in an attack at the Court of Appeal on 14 April differs from his first two pre-trial statements. In his statement dated 28 November 2000, the witness was silent on the subject. In his statement of 10 to 11 November 2001, the witness denied that he had any role in the attack against Tutsi refugees at the Court of Appeal and stated, “[A]t no time did I visit the scene of the massacre”.1719 Witness GFU offered several explanations for these inconsistencies. One such explanation is that the witness only decided to tell the truth in January 2003. The Chamber notes that the witness first admitted his participation in the attack at the Court of Appeal in his statement dated 14 November 2002.1720 983. Finally, in his statement dated 19 November 2003, Witness GFU claimed that after the initial attack at the Court of Appeal, he returned to the roadblock. He then received a message from Nzirorera requesting that he and others return to Hotel Muhabura. On doing so, the witness saw Nzirorera, who stated that there were “still survivors” and that Witness GFU and others should “finish the work”. In his pre-trial statement, the witness was clear that he did not participate in any second attack. In his testimony, however, the witness stated that he did in fact participate in both attacks at the Court of Appeal. The Chamber notes that the statement dated 19 November 2003 was made after the time when the witness claimed to have decided to tell the truth. The Chamber therefore finds that the witness offered no explanation for this inconsistency.

984. Witness GFU also provided differing versions as to how he came to participate in the attack at the Court of Appeal. In his testimony, he claimed that he was at the SGP petrol station roadblock when Nzirorera stopped and asked Witness GFU and other militiamen to follow him first to Mukingo and then to the Court of Appeal.1721 In so doing, the witness deviated from his version of events recounted in his pre-trial statements. In his statement dated 14 November 2002, the witness suggested that it was Préfet Basile and the bourgmestre of Kigombe, Maniragaba, who instructed him and others to head first to Mukingo and then to the Court of Appeal. This again differed from his statement dated 18 February 2003, in which he claimed that it was Préfet Basile and Sous-Préfet Nzanana who visited him at the SGP roadblock and instructed him to go to Mukingo and then to the Court of Appeal. The Chamber notes that the statement dated 18 February 2003 was made after the time when the witness claimed to have decided to tell the truth. The Chamber therefore finds that the witness offered no explanation for this inconsistency.

985. Witness GFU also provided differing versions as to the presence and role of Bizimungu as well as the identity of the persons who ordered the attack at the Court of Appeal. In his testimony, the witness claimed that Bizimungu was present during the attack and that he gave the green light for the attack to take place. In his statement dated 14 November 2002, despite making reference to Bizimungu in relation to the alleged meeting held in advance of the attack, the witness failed to place Bizimungu at the scene of the attack at the Court of Appeal. The Chamber notes that in this statement, the witness provided a detailed account of who was present at the scene and in fact claimed that he was informed that “Colonel Setako and two senior officers [Colonel Bivugabagabo and Colonel Ntibura] 1719 Defence Exhibit 20B, under seal. 1720 The Chamber recalls that his admission that he participated in the attack in his statement dated 14 November 2002 is inconsistent with his explanation that prior to January 2003 he attempted to “mask the full extent of [his] responsibility”. See T. 31 January 2005, p. 20. 1721 T. 27 January 2005, p. 62. 17 May 2011 224/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T had commanded that we should kill all the Tutsi in Ruhengeri Court of Appeal”. At no stage did the witness suggest that he heard Bizimungu order the attack at the Court of Appeal. The Chamber finds that the witness’s explanation for this omission, namely that the investigators’ questions were targeted at specific individuals and that his answers ought to be understood in that context, does not account for why he made reference to Bizimungu in relation to the meeting but not in relation to the attack.1722 986. The Chamber also notes that in his final statement dated 19 November 2003, Witness GFU claimed that it was Nzirorera who “address[ed] all the Interahamwe in the vehicles, saying: you know your mission: you are to eliminate [everyone, including] babies, even embryos.” Following the attack, Nzirorera requested the witness and others to meet him at the Hotel Muhabura and to “go back and finish the work”. The Chamber notes that the statement again fails to mention Bizimungu and further suggests that Nzirorera had a prominent role in ordering the attack. The witness again offered several explanations for this inconsistency.1723 The Chamber however, is not persuaded by any of the witness’s explanations. The Chamber finds that the witness’s differing version of events relate to fundamental features of the evidence and raise reasonable doubt in relation to his credibility. The Chamber recalls that Witness GFU is a self-confessed accomplice in the attack and that his evidence must be treated with caution. In light of the above, the Chamber finds that it would be unsafe to rely on his evidence without corroboration.

987. The Chamber recalls that Prosecution Witnesses GFV and GFA also provided evidence in relation to the attack at the Court of Appeal. Considering first the evidence of Witness GFV, the Chamber notes that the witness was an accomplice who testified that he was present during the attack at the Court of Appeal. At the time of his testimony, the witness was on provisional release and awaiting sentence from Gacaca proceedings.1724 Accordingly, the Chamber views the witness’s testimony with caution.

988. The Chamber considers that Witness GFV’s evidence in relation to his knowledge of the attack at the Court of Appeal, who ordered the attack and the role played by Bizimungu is problematic. This is because the witness’s testimony differs significantly from his account of events given in the case of Karemera et al. and his account of events as contained in the five statements he made to Rwandan authorities between 4 November 1998 and 17 May 2001.

989. Commencing with Witness GFV’s knowledge of the attack at the Court of Appeal, the witness in his sworn testimony before this Chamber testified that he was present during the attack of 14 April 1994. This differed from a statement made by the witness dated 4 November 1998, in which he claimed that he had no knowledge of the attack, and a statement dated 2 February 1999, in which he listed crimes to which he wished to plead guilty but made no mention of the attack at the Court of Appeal.1725 Witness GFV’s explanation for this omission was that his first two statements “did not contain the whole truth”.1726 He explained that his statement dated 2 February 1999 was drafted by Niyigaba, the President of the Interahamwe in Mukingo, and that Niyigaba had asked Witness GFV to leave out certain 1722 T. 31 January 2005, pp. 29, 31. 1723 T. 2 February 2005, pp. 49-50 1724 T. 23 May 2005, p. 12. 1725 Defence Exhibit 48. 1726 T. 24 May 2005, pp. 20, 27, 43. 17 May 2011 225/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T authorities and incidents.1727 The witness further claimed that his last confessional statement brought “together all elements that [he had] omitted in the earlier confessional statements”.

990. The Chamber has examined the witness’s last confessional statement made to Rwandan authorities, since the witness suggested that this contained a complete and truthful account of events. The Chamber notes that in this statement, Witness GFV suggested that he killed Tutsi at the Court of Appeal and was arrested as a result. This is inconsistent with his sworn testimony before the Chamber, in which he claimed that he did not kill any Tutsi in the attack.

991. Witness GFV’s evidence in relation to Bizimungu’s request for reinforcements from the Mukingo Interahamwe to go to the Court of Appeal is also inconsistent. Prior to giving evidence before this Chamber, Witness GFV testified in the case of Karemera et al. In that case, the witness was asked whether he knew who had ordered reinforcements from the Mukingo Interahamwe to attack the Court of Appeal. His answer was that the Interahamwe from Kigombe did not disclose the name of the person who had sent for such reinforcements.1728 The Chamber finds that the witness’s response in Karemera et al. is irreconcilable with his sworn testimony in this case, in which he stated clearly that “Bizimungu asked them to get reinforcement[s] from the Mukingo Interahamwe”.1729 In accounting for this inconsistency, Witness GFV stated that he did not mention Bizimungu’s name in Karemera et al. because he had forgotten it. Subsequently, he explained that he did not mention Bizimungu’s name because he feared for his life.1730 992. Witness GFV’s evidence in relation to Bizimungu’s role in the attack at the Court of Appeal is also problematic. The witness testified that he did not see Bizimungu during the attack but had been informed of his presence.1731 His evidence placing Bizimungu at the scene of the attack is therefore hearsay evidence from an unidentifiable source.

993. In addition, the Chamber notes that contrary to his sworn testimony, Witness GFV did not in any of his five statements made to Rwandan authorities link Bizimungu to the attack at the Court of Appeal. Specifically, not once did the witness allege that Bizimungu gave the order for the attack to begin. This is despite naming Bizimungu in relation to other incidents. The Chamber also notes that the witness failed to make any reference to Hotel Muhabura. In explaining this omission and inconsistency, Witness GFV told the Chamber that he did not mention Bizimungu in his statements because he forgot to mention that detail and because he “had not seen him at that particular time”, and only later did he learn that the order had come from Bizimungu.1732 994. Most importantly, the Chamber notes that in the Karemera et al. trial, Witness GFV was expressly asked whether he knew Bizimungu and whether Bizimungu had “any role to play in the attack that day”.1733 The witness responded, “No, I didn’t see him on that day.”1734 The Chamber finds that Witness GFV’s response in Karemera et al. was clear in that he did 1727 T. 24 May 2005, p. 28. 1728 Defence Exhibit 48. 1729 T. 23 May 2005, p. 29. 1730 T. 25 May 2005, p. 12. 1731 T. 26 May 2005, p. 59. 1732 T. 25 May 2005, pp. 10-12. 1733 Defence Exhibit 48. 1734 T. 25 May 2005, pp. 16-17. 17 May 2011 226/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T not implicate Bizimungu in the attack at the Court of Appeal. This interpretation is supported by Witness GFV’s testimony in Karemera et al., in which he stated, “It was Kajelijeli who gave us the order [to attack the Court of Appeal]”.1735 Witness GFV was also asked to name the military authorities who were involved in the Court of Appeal massacre. In his response, the witness named Bivugavagabo but again made no reference to Bizimungu.

995. The inconsistencies between Witness GFV’s evidence in Karemera et al., his evidence before this Chamber and his prior statements are fundamental. It is unlikely that the witness would have simply forgotten to mention the name of a prominent personality such as Bizimungu in relation to the attack in either the Karemera et al. case or in any of his statements made to Rwandan authorities. The Chamber finds that the combined effect of these inconsistencies raises reasonable doubt in relation to Witness GFV’s evidence and credibility.

996. The Chamber now turns to evidence given by Prosecution Witness GFA. Witness GFA was also an accomplice to the massacre at the Court of Appeal, and in 2005 he was convicted of genocide before the Rwandan courts.1736 The Chamber therefore treats his evidence with caution. Furthermore, as set out in Chapter III of the Judgement, Witness GFA recanted almost all of his testimony before the Karemera et al. Trial Chamber, including much of his testimony implicating Bizimungu in crimes alleged in the Indictment in this case.1737 For these reasons, the Chamber will not rely on Witness GFA’s evidence in the absence of corroboration by other credible evidence.

997. The Chamber notes that Witness GFA corroborated Witness GFV’s account that on 14 April 1994, Ruhengeri Interahamwe arrived in Byangabo in two Daihatsu vehicles. He also supported Witness GFV in suggesting that the Ruhengeri Interahamwe met Kajelijeli at a local petrol station and that Kajelijeli encouraged the Mukingo Interahamwe to join the Ruhengeri Interahamwe in order to attack Tutsi at the Court of Appeal. The witness also confirmed that Witness GFV was one of the Mukingo militiamen who went with the Ruhengeri Interahamwe to the Court of Appeal.

998. Witness GFA did not, however, at any point suggest that it was Bizimungu who had instructed the Ruhengeri Interahamwe to seek out other Interahamwe in order to attack the Court of Appeal. On the contrary, Witness GFA was clear that he was instructed by Kajelijeli to go into Mukingo town and recruit young militiamen to join the attackers from Ruhengeri. The Chamber finds Witness GFA’s failure to implicate Bizimungu surprising given that he played a direct role in seeking out Interahamwe to assist in the attack at the Court of Appeal.

999. The Chamber further finds that Witness GFA was not present during the attack at the Court of Appeal. His evidence of the attack is limited to hearsay evidence from unidentifiable Interahamwe who returned to Mukingo in the afternoon following the attack. Witness GFA therefore fails to corroborate the most salient aspects of Witnesses GFU and GFV’s evidence. This includes Bizimungu’s alleged presence at Hotel Muhabura, Bizimungu’s alleged role in the attack and the allegation that Bizimungu gave the signal for the attack to begin. Accordingly, the Chamber finds that the evidence provided by Witness GFA is of limited probative value. 1735 T. 25 May 2005, p. 16. 1736 T. 30 January 2006, p. 57. 1737 Defence Exhibit 689A; Defence Exhibit 690A; Defence Exhibit 691A; Defence Exhibit D692A; Defence Exhibit D693A. 17 May 2011 227/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.1.2.3.3 Conclusion 1000. The Chamber finds that killings took place at the Court of Appeal on 14 April 1994 and that several hundred Tutsi men, women and children were tragically massacred in the attack. However, the Prosecution evidence in support of the allegations set out in paragraphs 64 and 65 of the Indictment is limited to three witnesses, all of whom are accomplices. The Chamber recalls that accomplice testimony is admissible, but must be considered carefully because accomplice witnesses may have motives or incentives to implicate the accused.1738 The Chamber also recalls that corroboration is important when assessing a witness’s credibility.1739 1001. While the evidence in relation to the presence of military and high-ranking officials is consistent, when assessing Bizimungu’s presence the Chamber finds that all three Prosecution witnesses provided inconsistent accounts. These inconsistencies are fundamental and raise reasonable doubt. The Chamber therefore finds that the Prosecution has failed to prove beyond reasonable doubt the allegations set out in paragraphs 64 and 65 of the Indictment. 1.5.1.3 Killing of Tutsi by Interahamwe at Roadblocks in EGENA Area 1002. The Indictment alleges that on 16 June 1994, Augustin Bizimungu told militiamen at EGENA camp to set up roadblocks “to unmask

the Inkotanyi who had hidden among Hutu fleeing the combat zones.” As a result of that order, a large number of Tutsi civilians and Hutu mistaken as Tutsi were killed in that area in the following hours and days.1740 1.5.1.3.1 Evidence Prosecution Witness GFD 1003. Witness GFD was a member of the civil defence in Ruhengeri in 1994.1741 He testified that in June 1994, he was receiving treatment as an outpatient at EGENA gendarmerie camp in Ruhengeri town.1742 1004. The witness stated that on 16 June 1994, he saw Bizimungu at EGENA camp at around 2.00 p.m.1743 The following officers accompanied Bizimungu: Mburuburengero from Mukamira, Lieutenant Kanyaruganda from Mukingo and Dankarago from Ruhembo.1744 The witness recalled that Bizimungu held a meeting where he met the wounded persons at EGENA, instructed those who had recovered to return to the battlefield and instructed others 1738 Niyitegeka Appeal Judgement, para. 98; Nchamihigo Appeal Judgement, para. 305. 1739 Nchamihigo Appeal Judgement, para. 47. 1740 Indictment, para. 66. 1741 Prosecution Exhibit 33, under seal. 1742 T. 10 May 2005, p. 67; T. 19 May 2005, p.

61. The status of EGENA as a gendarmerie camp is corroborated by Prosecution Witness GFU. See T. 1 February 2005, p. 42; T. 2 February 2005, pp. 27-28; T. 19 May 2005, pp. 60-62. The witness stated that he was present at EGENA camp as he had been wounded at Gitarama and was taken to Ruhengeri hospital but was spending the night at EGENA. See T. 10 May 2005, p. 67. 1743 T. 10 May 2005, p. 67; T. 19 May 2005, p. 63. 1744 T. 19 May 2005, pp. 61, 63. The witness also stated that the commander of EGENA was Commander Bahembera, qualifying his answer that he assumed Bahembra to be the commander because he appeared to be in charge at the time the witness was there. See T. 19 May 2005, p. 61. 17 May 2011 228/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T to assist in manning roadblocks.1745 The witness estimated that between 50 and 70 soldiers attended the meeting, although he added that not all attendees were from EGENA as there were some from Camp Murosa and some from the Gendarmerie. However, the witness did not know the units to which the soldiers belonged.1746 1005. The witness stated that Lieutenant Kanyaruganda from Mukingo spoke during the meeting and urged the attendees to establish roadblocks. Bizimungu also spoke and stated, “Those who can do so, should mount the roadblocks, and those who are in good health should go to the war front.”1747 The witness testified that Bizimungu also stated that the roadblocks should be utilised “to seek out all the Tutsis and those in opposition to the regime”.1748 1006. Following the speech, the witness left the hospital and went to man a roadblock that had been established opposite Camp Mukamira. The witness stated that he remained at the roadblock until 13 July when he went into exile.1749 1.5.1.3.2 Deliberations 1007. In support of the allegation pleaded in paragraph 66 of the Indictment, the Prosecution relies on the sole testimony of Prosecution Witness GFD.

1008. Witness GFD testified that he was present on 16 June 1994 when Bizimungu delivered a speech at EGENA camp. The Indictment alleges that Bizimungu’s speech was delivered to militiamen, whereas Witness GFD’s evidence suggests that the meeting was attended by 50 to 70 soldiers. The witness did not provide any evidence that militiamen were in attendance at the meeting in question. The Chamber notes that at the time of the alleged meeting, the witness may have been a member of the militia in Ruhengeri. However, the Chamber is not satisfied that his own attendance at the meeting, in the absence of further evidence, is sufficient to prove that Bizimungu delivered his speech to militiamen at the meeting.

1009. Furthermore, the Chamber notes that Witness GFD’s evidence fails to provide support for the allegation that several Tutsi civilians and Hutu mistaken as Tutsi were killed as a result of Bizimungu’s alleged speech at EGENA camp on 16 June 1994.

1010. For these reasons, the Chamber finds that the evidence of Witness GFD alone is not sufficient to prove beyond reasonable doubt the allegation contained in paragraph 66 of the Indictment. 1.5.1.4 Killing of 60 to 70 Tutsi in the Byangabo Neighbourhood 1.5.1.4.1 Introduction 1011. The Indictment alleges that on 7 April 1994, Lieutenant Mburuburengero of Camp Mukamira, Augustin Bizimungu’s subordinate, told a group of militiamen to exterminate the Tutsi in Ruhengeri. As a result of that order, and using weapons and fuel provided by the 1745 T. 10 May 2005, p. 67; T. 19 May 2005, p. 62. 1746 T. 19 May 2005, p. 62. 1747 T. 19 May 2005, p. 64; T. 10 May 2005, p. 67. 1748 T. 10 May 2005, p. 67. 1749 T. 10 May 2005, p. 67. 17 May 2011 229/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T soldiers, 60 to 70 Tutsi were killed in the morning in Byangabo neighbourhood after their houses had been set aflame in order to flush them out.1750 1.5.1.4.2 Evidence 1.5.1.4.2.1 Prosecution Evidence Prosecution Witness GFC 1012. Witness GFC was a member of the MRND party in April 1994.1751 He testified that in the morning of 7 April 1994 he went to the Byangabo market square where he met with other Interahamwe.1752 The Witness saw Juvénal Kajelijeli, Ndisetse, Chief Warrant Officer Karorero, Bambonye and members of the Interahamwe including their leader, Michel Niyigaba. The officials told the Interahamwe who had gathered at the market, “[I]t is time for you to exterminate the Tutsis because it is the Tutsis who shot down the [President’s] plane.”1753 According to the witness, thereafter the Interahamwe leader Niyigaba hit a Tutsi with a machete and killed him at the Byangabo market square.1754 1013. The witness recalled that the assembled Interahamwe then “dispersed throughout the commune to look for Tutsis and kill them.” The witness stated that he did not personally kill Tutsi, but played a role in handing Tutsi over to others to be killed. However, he admitted that if the others had not killed those Tutsi, he would have killed them himself.1755 1014. Witness GFD testified that the following

morning, Bizimungu delivered weapons to the witness at the Mukingo commune office and told him to distribute them to Interahamwe.1756 The witness gave some of those weapons to Kajelijeli, the bourgmestre of Mukingo commune,1757 who then distributed them to Interahamwe in Byangabo.1758 Prosecution Witness GFV 1015. Witness GFV was a member of the Interahamwe in April 1994.1759 He testified that in the morning of 7 April 1994, he arrived at Byangabo market between 5.30 and 6.00 a.m.1760 Upon arrival at the market, he noticed that there was a meeting taking place at the house of Nzirorera’s mother, which was less than five minutes on foot from the market. He testified that the following persons were present at the meeting: Colonel Setako, Major Bizabarimana, 1750 Indictment, para. 67. 1751 T. 1 March 2005, p.

12. In 1996, the witness was arrested after his return from exile to Zaire and detained in Ruhengeri Prison for participating in the genocide of 1994. At the time of his testimony, the witness had been provisionally released and was awaiting sentencing from a Gacaca Court. See T. 1 March 2005, pp. 8-9 (ICS); T. 3 March 2005, pp. 8, 39. 1752 T. 1 March 2005, p. 25. 1753 T. 1 March 2005, p. 25. 1754 T. 1 March 2005, p. 25. 1755 T. 1 March 2005, pp. 25-26. 1756 T. 15 February 2005, pp. 42-43. 1757 T. 15 February 2005, p. 23. 1758 T. 15 February 2005, p. 46. 1759 T. 23 May 2005, pp. 5-6, 14. The witness testified that he participated in the killing of Tutsi in 1994. He was imprisoned at the Ruhengeri Prison, provisionally released and at the time of his testimony was awaiting sentencing by a Gacaca Court. See T. 23 May 2005, pp. 7-8, 12. 1760 T. 23 May 2005, p. 24; T. 25 May 2005, p. 23. 17 May 2011 230/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Chief Warrant Officer Karorero, Nyabusohe (the Director of the ISAE), Bambonye and Kajelijeli.

1016. The witness testified that Bambonye, in the company of Kajelijeli, came out of the meeting and said that the approximately 70 assembled Interahamwe “should kill all the Tutsis of Busogo including babies still in their mother’s wombs.”1761 Bambonye further stated that the Tutsi “were Inyenzi that had accomplices within the country and that they were the ones who had killed Habyarimana.” Following Bambonye’s remarks, Michel Niyigaba, the leader of the Interahamwe, killed a Tutsi civilian named Rukara with a small axe.1762 The witness recalled that after Rukara was killed, an Interahamwe named Musafiri shot and killed Lucian, a Tutsi who happened to be Rukara’s brother.1763 Prosecution Witness GAP 1017. Witness GAP testified that in the morning of 7 April 1994, he went to the Byangabo market between 8.00 and 8.30 a.m. in the company of Kajelijeli.1764 Upon arrival, the witness noticed that Interahamwe had killed a Tutsi named Rukara. Kajelijeli then began to distribute weapons he had received at the commune office to the Interahamwe present.1765 The witness further testified that Kajelijeli gave instructions to the soldiers and Interahamwe to conduct house-to-house searches and “kill all the Tutsis all the way to the Busogo Parish”.1766 1018. According to the witness, he was present at a meeting that took place at the house of Nzirorera’s mother on the night of 6 to 7 April

1994.1767 The witness explained that the meeting was attended by senior military and public officials. Among the issues that were discussed at the meeting was a plan to kill Tutsi because they were perceived to be responsible for the death of the President.1768 Prosecution Witness GFA 1019. Witness GFA was a member of the Interahamwe in 1994.1769 He testified that he went to the Byangabo market in the morning of 7 April to have tea.1770 Upon arrival, he saw Jean- Baptiste Nyabusore, Gahiki and Juvénal Kajelijeli going into the house of Nzirorera’s mother.1771 Thereafter, Dusabiye (François Dusabimana or Dusabe) returned to the market to fetch Michel Niyigaba, the leader of the Mukingo Interahamwe. They both went back to the house of Nzirorera’s mother and Michel informed the witness that he was also wanted at the 1761 T. 23 May 2005, pp. 25-26; T. 25 May 2005, p. 24. 1762 T. 23 May 2005, pp. 25-26. 1763 T. 23 May 2005, p. 26. 1764 T. 15 February 2005, pp. 15-16 (ICS), 38; T. 15 February 2005, p.

46. At the time of his testimony, the witness was detained in the Ruhengeri Prison and was awaiting judgement and sentencing for crimes of genocide he confessed to have committed in 1994. See T. 15 February 2005, p. 4 (ICS). 1765 T. 15 February 2005, p. 46. 1766 T. 15 February 2005, p. 46. 1767 T. 15 February 2005, pp. 39-40. 1768 T. 15 February 2005, pp. 40-41. 1769 T. 30 January 2006, pp. 61-62. The witness was later arrested for his participation in the 1994 genocide in Rwanda and detained in Ruhengeri Prison. He confessed to his participation in genocide on 12 September 2000. See T. 30 January 2006, pp. 50-51, 53, 57. 1770 T. 31 January 2006, p. 2. 1771 T. 31 January 2006, pp. 2-3. 17 May 2011 231/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T meeting.1772 Witness GFA went to the house, where he saw Nzirorera’s mother talking to Nyabusore, Gahiki and Kajelijeli.1773 1020. Witness GFA then returned to the market. A few minutes later, Michel and Dusabiye arrived at the market and invited the witness and other Interahamwe to go and kill Tutsi. According to Witness GFA, Dusabiye stated that “it was the RPF, that is the Tutsi who had killed President Habyarimana”.1774 The witness further testified that Dusabiye then instructed Michel Niyigaba to fetch a Tutsi named Rukara to make an example out of him. Rukara was then killed by Michel, Dusabiri and Dusabiye and others using a small axe and stones.1775 1021. Dusabiye then instructed the witness and other Interahamwe to go and kill Tutsi, threatening that there would be consequences if they did not adhere to that order.1776 The witness explained that they left and killed Lucien Rundatsingwa, who was Rukara’s brother.1777 According to the witness, throughout the time that he and his fellow Interahamwe and Impuzamugambi were killing Tutsi, they were not stopped by any local authorities. Rather, they were assisted by soldiers in killing Tutsi.1778 1.5.1.4.2.2 Defence Evidence Defence Witness DB15-11 1022. Witness DB15-11 testified that her relative’s house was below the tarred road from Kigali to

Gisenyi, about 20 to 30 paces from the Byangabo market.1779 She explained that she could see the Byangabo market from the house. The witness stayed at her relative’s house on 7 April 1994 until about 11.30 a.m. or 12.00 noon. During that time, she heard gunshots and could see smoke from the market that morning.1780 1023. According to the witness, Rukara was her neighbour and lived near the market. The witness recalled hearing during the time of the genocide that Rukara had been killed.1781 Defence Witness DB11-2 1024. Witness DB11-2 is a relative of Prosecution Witness GFA.1782 Witness DB11-2 explained that he could observe from his house what was happening in Byangabo market.1783 He testified that on 7 April 1994, Michel Myagaba was pursuing Rukara, who in turn was screaming, “What do you want from me?” According to the witness, Rukara was eventually 1772 T. 31 January 2006, p. 2. 1773 T. 31 January 2006, pp. 2-3. 1774 T. 31 January 2006, p. 2. 1775 T. 31 January 2006, p. 2. 1776 T. 31 January 2006, p. 2. 1777 T. 31 January 2006, pp. 2-3. 1778 T. 31 January 2006, pp. 4-6. 1779 T. 7 June 2007, p. 42 (ICS); T. 7 June 2007, pp. 46-47 (ICS). 1780 T. 7 June 2007, pp. 78-79 (ICS). 1781 T. 7 June 2007, p. 79 (ICS). 1782 T. 12 June 2007, pp. 3, 7 (ICS), 22. Witness DB11-2 was arrested on 9 October 1998 and detained in the Ruhengeri Prison for charges of committing genocide. The witness was discharged and acquitted of all charges and released on 28 July 2003. See T. 12 June 2007, pp. 8-10, 14-15 (ICS); Defence Exhibit 276A; Defence Exhibit 276B; Defence Exhibit 276D. 1783 T. 13 June 2007, p. 24 (ICS). 17 May 2011 232/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T caught, taken to Byangabo, and stoned and killed with a small hoe. Witness DB11-2 saw Witness GFA at the scene when this incident occurred.1784 1.5.1.4.3 Deliberations 1025. The Chamber notes that the allegation in paragraph 67 of the Indictment contains two elements: first, the role of Lieutenant Mburuburengo, a subordinate of Augustin Bizimungu, in instigating the killings in Byangabo neighbourhood; and second, the provision of weapons and fuel by soldiers to those committing the killings in Byangabo. The Chamber will deal with each element of this allegation in turn.

1026. At the outset, the Chamber notes that contrary to the Indictment, which suggests that 60 to 70 Tutsi were killed in the Byangabo neighbourhood, the Prosecution only led evidence of the killing of two Tutsi civilians at the Byangabo market. Apart from these two killings, the Prosecution did not lead any other evidence of killings of Tutsi in the Byangabo neighbourhood. 1.5.1.4.3.1 Events at the Byangabo Market Square 1027. It is common evidence between Prosecution and Defence witnesses that two Tutsi were killed in the morning of 7 April 1994 at the Byangabo market square. Prosecution witnesses are consistent that in the morning of 7 April, after the death of the President, a group of senior military and public officials met at the home of Nzirorera’s mother and that after the meeting, a number of officials including Kajelijeli, Bambonye, Dusabiye and Michel Niyigaba came out of the house into the market centre and told a gathering of Interahamwe that the Tutsi were responsible for shooting down the President’s plane. The Chamber notes that according to the Prosecution witnesses, these officials made instigating comments such as “it is time for you to exterminate the Tutsis because it is the Tutsis who shot down the plane”; “kill all the Tutsis of Busogo including babies still in their mother’s wombs”; and that Tutsi were “Inyenzi that had accomplices within the country

and that they were the ones who had killed Habyarimana”. The Prosecution evidence suggests that following these remarks, Dusabiye instructed a prominent Interahamwe named Michel Niyigaba to fetch a Tutsi named Rukara to make an example out of him. In full view of those assembled at the market square, Niyigaba, Dusabiri and Dusabiye killed Rukara. The assailants then proceeded to kill Lucien, Rukara’s brother.

1028. The Chamber recalls that Defence Witness DB11-2 testified to having observed the killings from his home, and he stated that it was Michel Niyigaba who killed Rukara. This is also corroborated by Defence Witness DB15-11, who did not witness the killing of Rukara but gave evidence that from her relative’s home she observed the chaos at the market square in the morning of 7 April and later heard about Rukara’s murder. Based on the consistent evidence of these Prosecution and Defence witnesses, the Chamber finds that two killings took place at the Byangabo market. 1.5.1.4.3.2 Involvement of Lieutenant Mburuburengero 1029. The Indictment alleges that the killings at the Byangabo market square occurred at the instigation of Lieutenant Mburuburengero. However, the Prosecution failed to call any 1784 T. 13 June 2007, p. 25 (ICS). 17 May 2011 233/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T evidence in relation to the involvement of Mburuburengero in these crimes. Instead, the evidence adduced suggests that the killings at the Byangabo marketplace and surrounding area took place as a result of the meeting at the house of Nzirorera’s mother on the night of 6 to 7 April. The Chamber has discussed this meeting in detail in its analysis of paragraph 63 of the Indictment. There is no evidence to suggest that Mburuburengero attended the meeting. Rather, several witnesses testified that Kajelijeli, Bambonye and Dusabiye emerged from the meeting into the market square and incited the crowd of gathered Interahamwe to kill Tutsi. As a result of this incitement the leader of the Mukingo Interahamwe, Niyigaba, killed a Tutsi civilian named Rukara.

1030. Therefore, there is no evidence before the Chamber that the named person, Lieutenant Mburuburengero, was involved in encouraging militia to kill Tutsi at the Byangabo marketplace. The Chamber considers the involvement of Mburuburengero to be a key part of the charge in paragraph 67 of the Indictment. 1.5.1.4.3.3 Provision of Weapons and Fuel by Soldiers 1031. The second aspect of the allegation in paragraph 67 of the Indictment is that soldiers provided weapons and fuel that contributed to the killings in Byangabo. The Chamber notes that the only evidence in relation to the provision of weapons comes from Prosecution Witness GAP, who testified that Bizimungu himself delivered weapons to the Mukingo commune office in the morning of 7 April, and that Kajelijeli then distributed those weapons in Byangabo.1785 1032. The Chamber is not convinced that the actions of Bizimungu, as recalled by Witness GAP, fall within the ambit of the charge in paragraph 67. The Chamber notes that this allegation is pleaded under Article 6(3) of the Statute and is therefore a charge relating to the involvement of Bizimungu’s subordinates in these crimes. The Indictment clearly identifies the subordinates as Mburuburengero and other soldiers who provided fuel and weapons. As discussed above, there is no evidence of the involvement of Mburuburengero, and the Chamber has before it no other evidence of the involvement of Bizimungu’s subordinates in these crimes.

1033. It follows that the Prosecution has not proved this allegation beyond reasonable doubt. 1.5.1.5 Acts of Violence Against Tutsi by Soldiers at Various Locations in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye, and Ruhengeri, April to June 1994 1.5.1.5.1 Introduction 1034. The Indictment alleges that from mid-April to late June 1994, while Bizimungu was Chief of Staff of the Rwandan Army, soldiers under his command committed murders and caused serious bodily and mental harm to many Tutsi at places in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri. Specifically, the Indictment alleges that acts of violence took place at Charles Lwanga Church on 8 and 10 June 1994; at the Josephite Brothers compound on 8 April and 7 June 1994; at ETO-Nyanza on 11 April 1994; at the Centre Hospitalier de Kigali from April to June 1994; at the Kicukiro conseiller’s office during April and May 1994; at Kabgayi Primary School from April to June 1994; at the 1785 T. 15 February 2005, pp. 42-43, 46; T. 22 February 2005, pp. 41-42. 17 May 2011 234/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Musambira commune office and dispensary during April and May 1994; at TRAFIPRO during April and May 1994; in Butare from 19 April to late June 1994; and in Gisenyi, Kibuye and Ruhengeri from April to June 1994.1786 The Indictment alleges that Bizimungu bears superior responsibility for these crimes.1787 1.5.1.5.1.1 Improper Pleading of Crimes Allegedly Committed by Soldiers in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri 1035. As set out in Chapter II of the Judgement, the Chamber notes that in paragraphs 68 to 70 of the Indictment, the Prosecution fails to plead with requisite specificity the facts underlying its allegation of superior responsibility against Bizimungu with respect to crimes in Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri. The Chamber has therefore found the pleading in paragraphs 68 and 69 to be defective with respect to crimes alleged at these locations. These defects were not cured and deprived Bizimungu of adequate notice of the facts underlying the allegations against him at these locations.

1036. Accordingly, the Chamber will limit its consideration of paragraphs 68 and 69 of the Indictment to the crimes allegedly committed at Charles Lwanga Church on 8 and 10 June 1994, at the Josephite Brothers compound on 8 April and 7 June 1994, at ETO-Nyanza on 11 April 1994, at the Centre Hospitalier de Kigali from April to June 1994, at the Kicukiro conseiller’s office during April and May 1994, at Kabgayi Primary School from April to June 1994, at the Musambira commune office and dispensary during April and May 1994 and at TRAFIPRO during April and May 1994. 1.5.1.5.1.2 Allegations of Serious Bodily and Mental Harm 1037. The Chamber notes that paragraphs 68 and 69 of the Indictment allege that soldiers under Bizimungu’s command committed murders and caused serious bodily and mental harm to Tutsi through “acts of violence” at these locations. The Chamber recalls that for the purposes of genocide, the notion of “causing serious bodily harm” refers to acts of physical violence falling short of killing that seriously injure the health, cause disfigurement, or cause any serious injury to the external or internal organs or senses.1788 According to the Appeals Chamber, “the quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.”1789 Serious mental harm refers

to more than minor or temporary impairment of mental faculties.1790 The serious bodily or mental harm, however, need not be an injury that is permanent or irremediable.1791 1038. Although paragraphs 68 and 69 of the Indictment do not specifically allege that soldiers committed rapes at the locations identified therein, it is well established that rape 1786 Indictment, paras. 68-69. 1787 Indictment, paras. 61, 70. 1788 Bagosora et al. Trial Judgement, para. 2117; Seromba Appeal Judgement, paras. 46-49; Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, para. 320, citing Kayishema and Ruzindana Trial Judgement, para. 110. 1789 Seromba Appeal Judgement, para. 46. 1790 Seromba Appeal Judgement, para. 46; Kajelijeli Trial Judgement, para. 815; Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, paras. 321-322; Kayishema and Ruzindana Trial Judgement, para. 110. 1791 Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, paras. 320, 322. 17 May 2011 235/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T falls within the notion of “serious bodily and mental harm” to which the Prosecution refers in paragraph 68. Indeed, the Appeals Chamber has noted that “nearly all convictions for the causing of serious bodily or mental harm involve rapes or killings.”1792 The Chamber therefore finds that Bizimungu had sufficient notice that the alleged “acts of violence” causing “serious bodily or mental harm” in paragraphs 68 and 69 of the Indictment included rapes. Accordingly, the Chamber will consider the evidence of killings and rapes committed by soldiers at the locations specified in paragraph 69 in assessing the charges of genocide against Bizimungu.1793 1.5.1.5.1.3 Allegations at Charles Lwanga Church 1039. Paragraph 69 of the Indictment alleges that soldiers committed acts of violence at Charles Lwanga Church on 8 and 10 June 1994. The Chamber recalls that Witness DBJ was the only Prosecution witness to testify about an attack at Charles Lwanga Church in June 1994. Two Prosecution witnesses, WG and GCB, testified about an attack at Charles Lwanga Church on 8 April 1994. However, there is no mention in the Indictment of an attack at the church on this date. Moreover, the Pre-Trial Brief makes no mention of an attack of 8 April in its discussion of the allegations of genocide and murder as a crime against

humanity at Charles Lwanga Church. In relation to the allegation of genocide in paragraphs 68-70 of the Indictment, the Pre-Trial Brief refers to an attack at Charles Lwanga Church “on 8 and 9 June 1994”,1794 while in relation to the allegation of murder as a crime against humanity in paragraph 84 of the Indictment, the Pre-Trial Brief refers to an attack at Charles Lwanga Church “on 10 June 1994”.1795 Accordingly, the Chamber will not consider the evidence of this 8 April attack in assessing these allegations.1796 1.5.1.5.1.4 Allegations at Kabgayi Primary School 1040. Paragraph 69 of the Indictment alleges that soldiers committed acts of violence at Kabgayi Primary School in Gitarama préfecture from April to June 1994. However, the Chamber recalls that on 27 April 2000, during the initial appearance of the Accused pursuant to the Rule 62 of the Rules, the Prosecution stated, “Between April and June 1994, many people sought refuge in Kabgayi, the Gitarama préfecture. Most of the refugees were concentrated in Kabgayi Primary School, known previously as Kabgayi Nursing School, in short ESI, which is in fact adjacent to Kabgayi Nursing School.”1797 1041. The Chamber recalls that Witness EZ testified about incidents that took place at Kabgayi Nursing School or École des Sciences Infirmières de Kabgayi (ESI), but she did not specifically refer to crimes committed at Kabgayi Primary

School. In light of the Prosecution’s statement on 27 April 2000, the Chamber finds that the events at ESI described 1792 Seromba Appeal Judgement, para. 46. 1793 The Chamber also notes that the Prosecution Closing Brief specifically includes rape within the notion of “serious bodily or mental harm” for the purposes of the genocide charge. Paragraph 684 of the Closing Brief states that soldiers under Bizimungu’s command “committed murders and caused serious bodily or mental harm, including rape, to many Tutsi ... in Kigali, Gitarama, Butare, Gisenyi, Cyangugu, Kibuye and Ruhengeri préfectures ...” (emphasis added). 1794 Pre-Trial Brief, para. 54. 1795 Pre-Trial Brief, para. 58. 1796 The Chamber will consider the evidence of the 8 April 1994 attack at Charles Lwanga Church in its factual findings for Count 7. 1797 T. 27 April 2000, p. 71. 17 May 2011 236/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T by Witness EZ fall within the allegation of crimes at Kabgayi Primary School in paragraphs 68 and 69 of the Indictment. The Chamber further notes that the Prosecution clearly indicated in its Pre-Trial Brief that Witness EZ would testify about killings and rapes committed at ESI in Kabgayi, without limiting that evidence to Kabgayi Primary School.1798 The Bizimungu Defence did not object to the introduction of this evidence during Witness EZ’s testimony; on the contrary, Defence counsel cross-examined Witness EZ extensively in regard to the alleged killings and rapes in the ESI complex.1799 1042. Having carefully reviewed the Indictment, the Pre-Trial Brief and the transcripts of proceedings, the Chamber finds that Bizimungu had sufficient notice that the Prosecution would present evidence about killings and rapes committed by soldiers at ESI in Kabgayi. 1.5.1.5.2 Evidence 1043. The Chamber notes that the Prosecution relies on much of the same evidence to prove the allegations of genocide in paragraphs 68 to 70 of the Indictment as it relies on to prove the allegations of murder, extermination and rape as crimes against humanity in paragraphs 82-88, 109 and 111-115 of the Indictment. The Chamber will now set out this evidence in detail and assess whether it supports the charge of genocide as alleged by

the Prosecution. In subsequent sections of the Judgement dealing with crimes against humanity, the Chamber will not repeat this evidence in its entirety but will simply analyse whether the evidence supports the charges of murder, extermination and rape as crimes against humanity. 1.5.1.5.2.1 Charles Lwanga Church, 9 to 10 June 1994 Prosecution Witness DBJ 1044. Witness DBJ was a Tutsi member of the Josephite Brotherhood based at Nyamirambo in Kigali.1800 He testified that on 7 June 1994, a group of soldiers arrived at the Josephite Brothers compound and asked the witness and other members of the Brotherhood to vacate the premises since they intended to occupy them.1801 1045. The witness and his colleagues then sought refuge at the nearby St. Charles Lwanga Church.1802 The witness testified that at the time, the church was headed by two priests known as Fathers Otto and Blanchard.1803 The witness stayed at the church until 9 or 10 June 1994.1804 He testified that a large number of civilians, mostly women and children of Tutsi ethnicity, had sought refuge at the church during that period.1805 1046. Witness DBJ testified that on either 9 or 10 June 1994, members of the UNAMIR force arrived at the church and took photos. Shortly thereafter, Interahamwe arrived at the church aboard trucks and attacked the UNAMIR soldiers and wounded one of them.1806 The 1798 Pre-Trial Brief, p. 107. 1799 See T. 6 October 2005, pp. 25-38; Bizimungu Closing Brief, paras. 1019-1020. 1800 T. 29 August 2005, p. 7. 1801 T. 29 August 2005, p. 35; T. 31 August 2005, p. 52. 1802 T. 29 August 2005, pp. 35-36. 1803 T. 29 August 2005, p. 36. 1804 T. 29 August 2005, p. 37. 1805 T. 29 August 2005, p. 37. 1806 T. 29 August 2005, p. 37. 17 May 2011 237/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Interahamwe then attacked the refugees who were inside the church. They used rifle butts to break the windows and lobbed hand grenades into the church.1807 According to the witness, the assailants were led by Kigingi, who was the leader of the Interahamwe in the Nyamirambo area of Kigali where St. Charles Lwanga Church was located.1808 1047. As the attack unfolded, Witness DBJ came out of the church and saw a number of soldiers, a few gendarmes and Interahamwe outside.1809 According to the witness, the soldiers and gendarmes, who were led by an officer known as Colonel Munyakazi, arrived at the church after the attack by the Interahamwe had started.1810 The witness gave evidence that during such attacks by the Interahamwe, soldiers and gendarmes would arrive at the scene of the attack “perhaps, to ensure the smooth functioning of the operation.”1811 However, instead of averting such attacks, the soldiers and gendarmes only “witnessed what was going on.”1812 1048. Witness DBJ testified that at some point during the attack, Interahamwe boarded women and children into their trucks and then drove them in the direction of Mount Kigali.1813 The witness also testified that some of the civilians were killed during the attack at the church, including an old member of the Josephite Brotherhood named Pierre

Cacamumakuba.1814 The witness stated that he and other members of the Josephite Brotherhood escaped the attack at the church with the assistance of Colonel Munyakazi.1815 The latter drove them aboard his double cabin pick-up to St. Paul and then to St. Famille Church, where they eventually found shelter.1816 On their way to St. Famille, the vehicle in which they were travelling was stopped at a roadblock manned by Interahamwe led by Kigingi.1817 The witness testified that Kigingi sought to block their passage through the roadblock and threatened to kill them because he suspected that they were Tutsi.1818 1049. In cross-examination, Defence counsel asked the witness whether soldiers participated in the attack against the refugees at St. Charles Lwanga Church between 9 and 10 June 1994. The witness responded that, based on his observations, “it was people that I will refer to as the Interahamwe who attacked the Charles Lwanga Parish”.1819 1.5.1.5.2.2 Josephite Brothers Compound, 8 April 1994 and 7 June 1994 Prosecution Witness DBJ 1050. Witness DBJ, a Tutsi, was a member of a religious organisation known as Josephite Brothers based at Nyamirambo, Kigali.1820 He testified that by 8 April 1994, about 200 to 250 1807 T. 29 August 2005, p. 37. 1808 T. 29 August 2005, p. 38. 1809 T. 29 August 2005, p. 38. 1810 T. 29 August 2005, pp. 38-39; T. 31 August 2009, pp. 51-52, 63. 1811 T. 29 August 2005, p. 38. 1812 T. 29 August 2005, p. 39. 1813 T. 29 August 2005, p. 38. 1814 T. 29 August 2005, pp. 39-40. 1815 T. 29 August 2005, p. 38. 1816 T. 29 August 2005, pp. 38-42. 1817 T. 29 August 2005, p. 40. 1818 T. 29 August 2005, p. 40. 1819 T. 31 August 2005, p. 51. 1820 T. 29 August 2005, pp. 6-7, 10. 17 May 2011 238/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T civilians, mainly Tutsi, had sought refuge at the Josephite Brothers compound. However, the witness added that the number of those refugees could have been “less than 200”.1821 1051. Witness DBJ testified that on 8 April, between 4.30 and 5.30 p.m., two groups of assailants arrived at the compound and attacked the civilians there.1822 The first group of assailants was comprised of young men who were dressed in civilian clothes combined with pieces of military clothing. They were armed mainly with traditional weapons such as clubs, machetes, hatchets and spears, although some of them were armed with hand grenades and guns.1823 The second group of assailants was comprised of soldiers who appeared quite distinct from the first group of assailants, as they were dressed in complete military uniforms including military boots.1824 They were also armed with firearms.1825 The witness further testified that those soldiers wore black berets, a fact that led him to conclude that they were members of the Presidential Guard.1826 1052. Thereafter, the two sets of assailants attacked the civilians at the Josephite Brothers compound.1827 The soldiers shot and lobbed grenades into the buildings where the people resided at the compound, while the young male assailants “hacked away” at the civilians using their traditional

weapons.1828 As the attack unfolded, the witness and a few others left the building, which had come under sustained attack from the assailants, and went outside to the compound.1829 There they encountered a soldier who identified himself as a member of the Presidential Guard.1830 The soldier also showed the witness his identity card attesting to his membership of that unit.1831 The witness could not decipher the contents of the card since it was late in the day, but he managed to see the soldier’s photo on the card.1832 The witness further testified that while conversing with the soldier, the latter asked them, “What did President Habyarimana not do to you so that you will have to reward him by killing him?” The soldier further told the witness that they had come to the compound in order to “hunt Inyenzis” and that they were “killing Inyenzis.”1833 1053. While at the compound, the witness observed the soldier referred to above order a girl aged about 20 to strip and then he took her to a room inside the building where members of the Josephite Brothers lodged. Subsequently, the witness saw the soldier “in the process of raping that young girl” as he passed by the building where the soldier had taken the girl. The witness further testified that it was obvious to him that the sexual intercourse between the soldier and the girl was not consensual. The following day, the witness saw

the dead body of the young girl but he did not know who had killed her.1834 1821 T. 29 August 2005, p. 11. 1822 T. 29 August 2005, pp. 11-12. 1823 T. 29 August 2005, p. 13. 1824 T. 29 August 2005, p. 13. 1825 T. 29 August 2005, p. 13; T. 30 August 2005, p. 29. 1826 T. 30 August 2005, p. 29. 1827 T. 29 August 2005, p. 13. 1828 T. 29 August 2005, p. 13. 1829 T. 29 August 2005, p. 13. 1830 T. 29 August 2005, p. 13. 1831 T. 29 August 2005, pp. 13-14. 1832 T. 29 August 2005, p. 14; T. 30 August 2005, p. 52. 1833 T. 29 August 2005, p. 14. 1834 T. 29 August 2005, p. 14. 17 May 2011 239/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1054. Witness DBJ estimated that the attack at the Josephite Brothers compound on 8 April lasted between 40 and 50 minutes.1835 After the attack, the witness saw a large number of dead bodies lying around the corridors and a number of injured people who were pleading for assistance. However, the witness could not estimate the number of people who were killed during that attack.1836 1055. Witness DBJ gave evidence about a second attack at the Josephite Brothers compound perpetrated by soldiers. He testified that on 7 June 1994, between 2.00 and 3.00 p.m., a group of about 15 to 20 soldiers arrived at the compound and attacked both Tutsi members of the Brotherhood and the refugees.1837 The witness testified that at the time the soldiers arrived at the Josephite Brothers compound, he was resting in the bursar’s room. Shortly after their arrival, three to four soldiers, dressed in military uniforms and armed with guns, entered the bursar’s room and briefly spoke to the witness. They then grabbed a few items from the room and proceeded to other parts of the building.1838 1056. Witness DBJ testified that shortly thereafter, soldiers selected Tutsi who were at the Josephite Brothers compound and led them out of the compound.1839 He testified that prior to removing those civilians, the soldiers must have

inspected the identity cards of the civilians at the compound in order to ascertain whether they were of Tutsi ethnicity. The witness drew that inference because the soldiers only removed members of Tutsi ethnic group and did not remove any of the Hutu civilians who were also present at the compound at the time.1840 1057. When asked to explain why soldiers did not abduct him despite the fact that he was a Tutsi, the witness explained that it was possible that his physical traits, which do not correspond to those stereotypically associated with members of the Tutsi ethnic group, may have led the assailants to mistake him for a Hutu.1841 1058. The witness testified that shortly after the soldiers had led the selected civilians out of the Josephite Brothers compound, Narcisse Gakwaia, a fellow member of the Brotherhood who was among those civilians, returned to the compound with his clothes covered in blood and informed the witness that following their removal from the compound, the soldiers had led them to a location behind the compound and fired at them.1842 He further informed the witness that almost all of the abducted civilians had been killed and that he was the sole survivor of the attack.1843 1059. The witness recalled that six Tutsi members of the Josephite Brotherhood, namely, Elie Gerard Rwaka, Louis Kaneza, Itangishaka nicknamed Kajagali, Alexander Kayitera, Stanislas

Gofi and Louis Rwahiga, were among the civilians who were slain by soldiers on 7 June 1994.1844 Two of those victims, namely, Kayitera and the 89-year-old Rwahiga, were killed inside the Josephite Brothers compound where the witness saw their dead bodies.1845 1835 T. 29 August 2005, p. 15. 1836 T. 29 August 2005, pp. 16-17. 1837 T. 29 August 2005, pp. 26-27. 1838 T. 29 August 2005, pp. 26-27. 1839 T. 29 August 2005, pp. 27, 30. 1840 T. 29 August 2005, p. 32. 1841 T. 29 August 2005, pp. 32-33. 1842 T. 29 August 2005, pp. 27, 31-33. 1843 T. 29 August 2005, pp. 27, 31-33. 1844 T. 29 August 2005, p. 34. 1845 T. 29 August 2005, p. 35. 17 May 2011 240/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T According to Witness DBJ, more than a hundred people were killed during the attack of 7 June 1994.1846 1060. The witness testified that a mass grave was later discovered at the very location where Narcisse Gakwaia had indicated to him that the killings of civilians had taken place on 7 June 1994.1847 The witness testified that the bodies in the mass grave were exhumed and he identified the dead bodies of two members of the Josephite Brotherhood, namely, Kaneza and Gerard, among the exhumed bodies.1848 The witness explained that he identified the body of Kaneza from his shoes and that of Gerard from his bald head.1849 The Accused Bizimungu 1061. During his testimony, Bizimungu was invited to respond to the allegation that soldiers under his command committed crimes against Tutsi civilians at the Josephite Brothers compound on 7 June 1994.1850 In his response, Bizimungu stated that by 7 June 1994, there was intense fighting in Kigali.1851 Bizimungu also stated that the situation in Kigali was further exacerbated by the RPF’s incessant shelling of Kigali and the news that a number of Hutu leaders of the Catholic Church had been killed by RPF soldiers in Kabgayi.1852 It was in this context that Bizimungu was informed of attacks against religious centres by assailants, some of whom were dressed in military

uniforms.1853 Bizimungu gave evidence that following the fall of Camp Kanombe on 21 May 1994, “there was proliferation of army uniforms everywhere, a phenomenon that existed well before but … was aggravated by the loss of Kanombe.”1854 Given these circumstances, it was difficult to distinguish soldiers of the Rwandan Army from those of the RPF.1855 1062. Bizimungu further testified that he never received any reports during his tenure as Chief of Staff of the Army indicating that soldiers from various units of the Rwandan Army had committed crimes.1856 1.5.1.5.2.3 ETO-Nyanza, 11 April 1994 1.5.1.5.2.3.1 Evidence Prosecution Witness AR 1063. Prosecution Witness AR, a Tutsi, testified that on 8 April 1994, he and his family sought refuge at the École Technique Officielle (“ETO”) in Kicukiro, Kigali. The witness explained that he sought refuge at ETO because Belgian soldiers from UNAMIR were 1846 T. 29 August 2005, p. 34. 1847 T. 29 August 2005, p. 33. 1848 T. 29 August 2005, pp. 33, 35. 1849 T. 29 August 2005, p. 35. 1850 T. 11 December 2007, pp. 39-40. 1851 T. 11 December 2007, p. 40. 1852 T. 11 December 2007, p. 40. 1853 T. 11 December 2007, p. 40. 1854 T. 11 December 2007, p. 40. 1855 T. 11 December 2007, p. 40. 1856 T. 11 December 2007, p. 40. 17 May 2011 241/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T stationed there.1857 When he arrived at ETO, he saw approximately 2,000 to 3,000 refugees.1858 1064. The witness testified that on 11 April 1994, the Belgian soldiers left ETO.1859 Shortly thereafter, Interahamwe and Rwandan Army soldiers arrived at ETO and began attacking the refugees there. The witness and his family fled ETO together with approximately 2,000 to 3,000 other refugees.1860 They headed towards Amahoro Stadium, where they thought they would be protected by UNAMIR soldiers who were based there.1861 However, the refugees were stopped at a roadblock manned by Interahamwe and were told that anyone who was not Hutu would not be allowed to pass.1862 The refugees fled the roadblock and continued on their way to the stadium. However, they were intercepted by a group of 15 to 20 soldiers.1863 1065. Thereafter, soldiers and Interahamwe led the witness and other refugees towards Nyanza Hill. On their way, the witness saw a man he recognised as Colonel Bagosora sitting in a Mercedes Benz jeep. Bagosora appeared to be “monitoring the situation”. The witness claimed that he knew Bagosora because he was “one of the officials of the country”.1864 The witness further testified that as they were being marched towards Nyanza Hill, they were joined by other civilians. By the time they reached Nyanza Hill at

5.00 p.m., the number of the civilians had increased to approximately 4,000 to 5,000.1865 1066. At Nyanza Hill, the witness and other civilians were attacked by soldiers and Interahamwe. This attack continued until the assailants had run out of ammunition.1866 According to the witness, the assailants were resupplied with more ammunition and then the attack continued until the soldiers believed that all of the refugees had been killed.1867 1067. The witness survived the attack and remained at Nyanza Hill until 13 April 1994, when RPF soldiers arrived and rescued him. The witness testified that his wife and three of his children died in the attack. 1868 Prosecution Witness Roméo Dallaire 1068. In cross-examination, the Defence for Bizimungu put a number of submissions to Witness Dallaire regarding the events at ETO and Nyanza Hill on 11 April 1994. The Defence put it to Dallaire that contrary to the allegations of the Prosecution, none of the refugees at ETO were killed by soldiers of the Rwandan Army at Nyanza Hill on 11 April.1869 Rather, the Defence contended that it was RPF soldiers who killed about 2,000 Hutu civilians 1857 T. 21 September 2005, pp. 32-33. 1858 T. 21 September 2005, pp. 35-36, 85. 1859 T. 21 September 2005, pp. 35, 65, 67. 1860 T. 21 September 2005, pp. 35-36, 85. 1861 T. 21 September 2005, pp. 36-37. 1862 T. 21 September 2005, p. 35. 1863 T. 21 September 2005, pp. 36-37. 1864 T. 21 September 2005, pp. 39, 40-41; T. 22 September 2005, p. 8. 1865 T. 21 September 2005, pp. 40-41, 43. 1866 T. 21 September 2005, p. 48. 1867 T. 21 September 2005, p. 48. 1868 T. 21 September 2005, pp. 49, 54. 1869 T. 6 December 2006, p. 10. 17 May 2011 242/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T at Nyanza Hill on 11 April.1870 The Defence also submitted that the fact that Nyanza Hill was under the control of the RPF by the night of 11 April is further evidence that the killings at Nyanza Hill were committed by RPF soldiers.1871 According to the Defence, the RPF subsequently invented and disseminated false information to the effect that Rwandan government soldiers had perpetrated killings of thousands of Tutsi refugees from ETO at Nyanza Hill on 11 April.1872 The Defence further submitted that the fact that Nyanza Hill was not featured in the inventory of massacre sites prepared by the Ministry of Higher Education and Culture of the RPF-led government and that no reference had been made to this incident before the issuance of the Indictment against Rutaganda by the ICTR Prosecutor in 1996 provide further evidence that no Tutsi civilians were killed at Nyanza Hill by soldiers of the Rwandan Army.1873 1069. In his response, Witness Dallaire stated that Belgian soldiers who were based at ETO in Kigali left that location on 11 April 1994 as a result of the decision by the Belgian government to withdraw the entire Belgian contingent of UNAMIR from Rwanda. The departure of those soldiers left about 4,000 Rwandan civilians who had sought refuge at ETO without any protection.1874 The witness

subsequently learned that about 2,400 of those civilians were led to Nyanza Hill and killed.1875 1.5.1.5.2.4 Centre Hospitalier de Kigali 1.5.1.5.2.4.1 Prosecution Evidence Prosecution Witness DAR 1070. Witness DAR worked at CHK from April to mid-May 1994.1876 He testified that following his arrival at CHK on 7 April, he stayed at the hospital for a period of about five to six weeks without returning to his residence.1877 From 7 April, he noted that uniformed and armed soldiers had established a roadblock at the entrance of the hospital and would ask all entrants into the hospital to identify themselves.1878 According to the witness, soldiers maintained control of the entrance to the hospital for the entire period of his stay.1879 Those who failed to present their identity cards or those whom the soldiers considered to be Tutsi or suspected of being accomplices of the “enemy” were refused entry into the hospital and were asked to stand aside at the entrance.1880 1071. The witness also observed the presence of a large group of soldiers inside the compound of the hospital throughout the period of his stay.1881 Some of those soldiers were 1870 The Chamber notes that the Defence submissions are allegedly drawn from a book entitled “Du génocide à la défaite” by Ntaribi Kamanzi. See T. 6 December 2006, pp. 9-10. 1871 T. 6 December 2006, p. 8. 1872 T. 6 December 2006, p. 8. 1873 T. 6 December 2006, pp. 8-10. 1874 T. 6 December 2006, p. 10. 1875 T. 6 December 2006, p. 10. 1876 T. 3 May 2006, p. 63 (ICS); T. 4 May 2006, p. 20. 1877 T. 4 May 2006, pp. 20-22. 1878 T. 3 May 2006, p. 66; T. 10 May 2006, p. 39. 1879 T. 4 May 2006, p. 32. 1880 T. 3 May 2006, p. 71; T. 10 May 2006, p. 40; T. 4 May 2006, p. 32. 1881 T. 3 May 2006, pp. 66-67. 17 May 2011 243/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T wounded and were being treated at the hospital.1882 However, he had no knowledge of the units of the army to which those soldiers belonged.1883 1072. The witness testified that in the morning of 8 April, between 9.00 and 9.30 a.m., while on his way out of the CHK compound to run an errand, he saw a group of about 100 civilians being led to the CHK’s morgue by a group of about 15 soldiers armed with rifles and dressed in military uniforms and black berets, accompanied by the same number of Interahamwe armed with traditional weapons.1884 The witness heard some of those civilians protesting that they were not Tutsi or Inyenzi as they were marched by the soldiers and Interahamwe.1885 1073. Witness DAR testified that he was later informed by an employee of CHK named Jean Paul, who was among those civilians who had been captured by the soldiers and Interahamwe in the morning of 8 April, that they were led to one of the morgues at CHK.1886 Jean Paul told the witness that upon reaching the morgue, Interahamwe ordered the civilians to undress and then attacked them, leading to the deaths of a number of civilians.1887 Witness DAR testified that following his conversation with Jean Paul, he saw a large number of naked corpses lying outside one of CHK’s morgues.1888 The witness added that he did not see those

bodies on the same day that they were allegedly killed, nor does he remember the day that he saw them.1889 The civilians whom the witness saw being led to the morgue by soldiers and Interahamwe were brought from outside and were not patients receiving treatment at CHK, although some of them were former patients at CHK.1890 1074. Witness DAR testified that during his stay at the hospital, a number of Tutsi girls who were doing their internships at the hospital and staying in the laundry section of CHK were removed by armed soldiers at night and raped.1891 He testified that two of those girls named Penelope and Uwimana Clarise were frequently abducted and raped by the soldiers.1892 The witness was led to conclude that something “unfortunate” had happened to those girls given their sad deportment when they returned to the hospital following their abductions by soldiers.1893 However, none of the girls informed the witness that they had been raped by soldiers during their stay at CHK.1894 1075. According to Witness DAR, the soldiers at CHK appeared to be commanded by an officer known as Lieutenant Pierre.1895 The witness inferred that Pierre commanded the soldiers at CHK because Pierre assisted him in regaining some of his possessions, which had 1882 T. 3 May 2006, pp. 66-67. 1883 T. 10 May 2006, p. 50; T. 11 May 2006, p. 27. 1884 T. 3 May 2006, pp. 67, 69; T. 4 May 2006, p. 38; T.

10 May 2006, pp. 1-2. 1885 T. 3 May 2006, p. 71. 1886 T. 3 May 2006, pp. 72-73; T. 10 May 2006, p. 43. 1887 T. 3 May 2006, pp. 72-73; T. 10 May 2006, p. 43. 1888 T. 3 May 2006, p. 73. 1889 T. 3 May 2006, pp. 73-74. 1890 T. 4 May 2006, p. 43. 1891 T. 4 May 2006, pp. 3, 5, 8. 1892 T. 4 May 2006, pp. 3, 5. 1893 T. 4 May 2006, p. 18. 1894 T. 11 May 2006, pp. 27-28. 1895 T. 3 May 2006, p. 74; T. 10 May 2006, pp. 45-46. 17 May 2011 244/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T been stolen by the soldiers manning the roadblock at the entrance to the hospital.1896 However, the witness did not know the unit of the army to which Pierre was attached.1897 1076. The witness also claimed to have encountered Pierre at the paediatric ward holding a list. Pierre read out two names from the list and asked the witness whether he knew those individuals.1898 However, the witness did not see the contents of the list held by Pierre.1899 1077. The witness testified that he was later informed that the head nurse at CHK had compiled a list of Tutsi civilians at CHK and gave it to Pierre.1900 The witness was also informed that at night, Pierre and Stephanie Ndayambaje would go to the wards and remove Tutsi patients whose names were featured on that list.1901 The witness added that Ndayambaje’s daughter was among the people who had informed of him of the abductions of Tutsi patients from the wards by Pierre and Ndayambaje.1902 However, the witness did not know where those patients were eventually taken.1903 1078. He further testified that he was informed by three of his colleagues at CHK, namely Innocent, Caritas and Mado, that a young Tutsi girl named Chantal Uwicyeza, who had sought refuge at the laundry section of CHK, was abducted and later killed by Pierre and Stephanie Ndayambaje.1904

Prosecution Witness ZA 1079. Witness ZA, a Tutsi, testified that she sought refuge at CHK from 10 April to mid- May 1994, when she fled from the hospital.1905 She gave evidence that prior to entering the hospital on 10 April, she was stopped by soldiers at a roadblock located at the entrance of the hospital and was asked to present her identity documents.1906 There were about four armed and uniformed soldiers at that roadblock.1907 1080. The witness testified that following her arrival at the hospital, she was asked to assist at the maternity ward given her prior experience working at that ward.1908 On four or five occasions, she observed armed soldiers going about the maternity ward and registering the names and bed numbers of patients.1909 She subsequently noted that the patients whose names and bed numbers had been recorded by the soldiers went missing and were never seen again.1910 She was later informed by other patients at the ward that soldiers only abducted Tutsi patients and that they assured Hutu patients at that ward of their security.1911 1896 T. 3 May 2006, p. 74. 1897 T. 10 May 2006, p. 44. 1898 T. 10 May 2006, pp. 3-4. 1899 T. 10 May 2006, pp. 3-4. 1900 T. 10 May 2006, p. 4 1901 T. 4 May 2006, p. 10; T. 10 May 2006, pp. 3-4. 1902 T. 4 May 2006, p. 4. 1903 T. 4 May 2006, p. 10. 1904 T. 3 May 2006, pp. 75, 78; T. 4 May 2006, p. 1. 1905 T. 23 May 2006, p. 64 (ICS); T. 24 May 2006, pp. 1, 14, 18 (ICS). 1906 T. 24 May 2006, p. 16 (ICS). 1907 T. 24 May 2006, pp. 14-15 (ICS). 1908 T. 23 May 2006, p. 59 (ICS); T. 24 May 2006, pp. 17-18 (ICS). 1909 T. 24 May 2006, p. 19 (ICS). 1910 T. 24 May 2006, pp. 19-20 (ICS). 1911 T. 24 May 2006, pp. 21-22, 68 (ICS); T. 29 May 2006, pp. 9-10 (ICS). 17 May 2011 245/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1081. Witness ZA further testified that while at CHK, she was shown a list containing the names of a number of the nurses at CHK, including herself, whom the soldiers intended to kill.1912 The witness fled CHK shortly after she learned of the plans to kill her.1913 1082. According to Witness ZA, the soldiers present at CHK were commanded by an officer known as Lieutenant Pierre. She drew that inference based on the deference that the other soldiers accorded him.1914 Witness ZA further testified that she was informed by gendarmes at the hospital that Pierre was known as Pierre Nsengimana and was a member of 33rd battalion.1915 She also stated that an unidentified soldier at CHK informed her that Pierre reported to the Ministry of Defence.1916 1.5.1.5.2.4.2 Defence Evidence Defence Witness UKL 1083. Witness UKL worked as a doctor at CHK from 1993 to 25 May 1994.1917 He testified that during the period from 7 April to 25 May 1994, he worked primarily at the maternity ward, located about 8 to 10 metres away from the main entrance to the hospital, but he also worked at the emergency ward and at the operating theatre, located about 15 metres and 100 metres from the main entrance, respectively.1918 The witness disputed claims by Prosecution witnesses that the main entrance to CHK was not controlled by soldiers

during the period that he worked at the maternity ward, that is from 7 April to around 24 or 25 May 1994.1919 1084. The witness testified that given the size of CHK and the fact that he attended to duties in various units of the hospital, he was in a suitable position to monitor the movements of patients, visitors and soldiers.1920 He maintained that during the period that he stayed at the hospital after 7 April, there were no security concerns within the hospital or among the staff or patients.1921 The witness testified that both wounded and healthy soldiers frequented the hospital, but he was not informed that soldiers had either mistreated Tutsi women or abducted or killed Tutsi patients on the premises of CHK, nor was he informed that the head nurse had compiled a list of Tutsi civilians to be killed.1922 Defence Witness Providence Nyiramondo 1085. Witness Nyiramondo worked as a nurse at CHK until the end of May 1994, when the hospital staff were evacuated.1923 She testified that while working at CHK during April and May 1994, she was stationed in the general reception service office located a few metres away from the main entrance of the hospital.1924 According to the witness, the main entrance 1912 T. 24 May 2006, p. 24 (ICS). 1913 T. 24 May 2006, pp. 27-28 (ICS). 1914 T. 24 May 2006, p. 41 (ICS). 1915 T. 24 May 2006, pp. 27, 41 (ICS). 1916 T. 24 May 2006, p. 28 (ICS). 1917 T. 30 June 2008, p. 58 (ICS). 1918 T. 1 July 2008, p. 2. 1919 T. 30 June 2008, p. 75; T. 1July 2008, p. 10. 1920 T. 1 July 2008, p. 47. 1921 T. 1 July 2008, p. 45. 1922 T. 1 July 2008, p. 15. 1923 T. 15 July 2008, pp. 11, 14, 17. 1924 T. 15 July 2008, p. 4. 17 May 2011 246/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T of CHK was not controlled by soldiers from 7 April 1994 onwards.1925 She further testified that she never observed nor was she informed that Tutsi staff or patients were abducted and never seen again.1926 She also denied that Tutsi girls and women were abducted and raped in the hospital laundry room or the front kiosk.1927 She testified that she was not aware that lists of Tutsi staff or patients who were to be killed had been prepared at CHK.1928 1086. Witness Nyiramondo also disputed Prosecution Witness DAR’s testimony that soldiers killed civilians in the hospital and left their corpses at the mortuary.1929 She testified that she was only aware of Red Cross and health and sanitation units bringing corpses to the morgue.1930 She also named several Tutsi individuals who worked at CHK after 7 April 1994,1931 but she did not know Witness ZA as being among the Tutsi who worked at the hospital at that time.1932 Defence Witness S3 1087. Defence Witness S3, a Red Cross employee at the time of the events pleaded in the Indictment, testified that he was in charge of coordinating relief and evacuation operations for displaced persons in the city of Kigali from 9 April 1994.1933 He testified that initially, the Red Cross took wounded or ill people to CHK. However, after the shelling of CHK in late April, Red

Cross took wounded people to its hospital located in Kiyovu instead of CHK.1934 Witness S3 estimated that from 9 April to late April 1994, he visited CHK at least three times a week and spent not more than half an hour at the hospital during each visit.1935 He further testified that during these visits, he never saw a roadblock manned by soldiers at the entrance of CHK.1936 1088. During his visits to CHK, the witness only saw wounded soldiers who were patients at CHK and other soldiers guarding or protecting the wounded soldiers. However, the witness never saw or heard about soldiers killing, raping or kidnapping Tutsi civilians at CHK.1937 He also denied seeing Interahamwe at CHK.1938 1089. According to Witness S3, the Red Cross would not have taken wounded people to CHK knowing that civilians were being killed at that location.1939 The witness testified that for this reason, the Red Cross stopped taking wounded people to CHK after the hospital was shelled and instead took them to a makeshift hospital in Kiyovu.1940 1925 T. 15 July 2008, p. 6. 1926 T. 15 July 2008, p. 7. 1927 T. 15 July 2008, pp. 7, 8. 1928 T. 15 July 2008, pp. 1, 5. 1929 T. 15 July 2008, p. 8. 1930 T. 15 July 2008, p. 9. 1931 T. 15 July 2008, p. 9. 1932 A list of the names of the Tutsi staff at CHK provided by Witness Nyiramondo was tendered as Defence Exhibit 551. See T. 15 July 2008, p. 15. 1933 T. 16 September 2008, p. 6 (ICS). 1934 T. 16 September 2008, p. 7 (ICS). 1935 T. 16 September 2008, pp. 11, 16. 1936 T. 16 September 2008, p. 12. 1937 T. 16 September 2008, p. 12. 1938 T. 16 September 2008, p. 19. 1939 T. 16 September 2008, pp. 12-13, 17. 1940 T. 16 September 2008, pp. 12-13. 17 May 2011 247/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness RRS 1090. Defence Witness RRS, a soldier of the Rwandan Army, served as a cook in the headquarters company stationed at Camp Kigali.1941 His duties consisted of supplying food to soldiers in various locations, including the wounded soldiers who were being treated at CHK.1942 Witness RRS estimated that he went to CHK at least once, if not twice, per day from 7 to 15 April 1994 in order to provide food to the soldiers who were admitted at the hospital.1943 Witness RRS testified that during his visits to CHK throughout this period, he never saw soldiers controlling the main gate to the hospital nor did he hear that soldiers committed rapes against Tutsi women at CHK.1944 Defence Witness Bernard Uwizeyimana 1091. Witness Bernard Uwizeyimana, a military advisor attached to the 61st Battalion in Remera Y’Abaforongo,1945 gave evidence that on 13 April 1994, he was wounded by shrapnel during the war with the RPF and was evacuated to CHK for treatment.1946 According to the witness, the entrance to CHK was not controlled by soldiers at that time.1947 Witness Uwizeyimana remained at CHK until 19 April 1994. During that period, he did not see armed soldiers at the hospital, nor did he hear that soldiers committed rapes against Tutsi women at CHK.1948 1.5.1.5.2.5 Kicukiro Conseiller’s Office 1092.

The Chamber notes the neither the Pre-Trial Brief nor the Prosecution Closing Brief makes reference to specific “acts of violence” committed at the Kicukiro conseiller’s office. The Chamber has also reviewed the entire trial record and the Prosecution’s opening remarks made on 20 September 2004, and finds that the Prosecution presented no evidence in connection with this allegation. The Chamber therefore finds that this allegation has not been proved beyond reasonable doubt. 1.5.1.5.2.6 École des Sciences Infirmières de Kabgayi Prosecution Witness EZ 1093. Witness EZ, a Tutsi, lived in Taba commune in 1994.1949 She testified that she went to ESI in Gitarama préfecture around 18 April to seek refuge from the attacks on Tutsi.1950 Upon arrival, Witness EZ saw that a number of Tutsi civilians had sought refuge at ESI.1951 The witness explained that at the time, wounded soldiers lived in the ESI compound but were sheltered in a different building from the refugees. The witness explained that the ESI 1941 T. 30 October 2008, p. 25 (ICS). 1942 T. 30 October 2008, p. 28. 1943 T. 30 October 2008, p. 33. 1944 T. 30 October 2008, p. 35. 1945 T. 5 November 2008, p. 9. 1946 T. 5 November 2008, pp. 10-12. 1947 T. 5 November 2008, pp. 10, 11. 1948 T. 5 November 2008, pp. 12, 19. 1949 Prosecution Exhibit 64. 1950 T. 5 October 2005, pp. 9-14, 60. 1951 T. 5 October 2005, p. 14; T. 5 October 2005, p. 22 (ICS). 17 May 2011 248/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T compound was not fenced, but it was made up of several buildings arranged around a central courtyard with a single exit.1952 1094. The witness estimated that she stayed at ESI for almost one month.1953 During that period, soldiers and Interahamwe arrived at the compound on a regular basis and took away refugees who were never seen again.1954 These soldiers wore military uniforms with military boots, and some also wore berets. The witness explained that at first, the soldiers would only attack the refugees at ESI at night, but later the soldiers would also arrive at the compound during the day and attack the refugees.1955 1095. During the period that she sought refuge at the ESI compound, the witness saw Akayesu, the bourgmestre of Taba commune, come to ESI accompanied by soldiers and a commune policeman named Athanase. She further testified that during his visits, Akayesu removed a number of refugees from ESI whose names were featured on a listthat he carried. The witness observed that Akayesu seemed to be “warmly received” by the soldiers at ESI. The witness also testified that a member of parliament named Ruvugama, as well as Sixbert Ndayambaje, who was the former bourgmestre of Runda commune, also visited ESI during that period. The witness stated that Ndayambaje also had a list of names but she did

not see him select and remove any refugees.1956 1096. The witness testified that the refugees who were abducted from ESI by soldiers, militia and Akayesu were killed in the ESI compound very near to where the witness and other refugees were located. The witness also stated that the refugees who were abducted from ESI did not come back. The witness gave the names of four Tutsi refugees who were taken away from ESI and did not return. In particular, she identified a priest named Father Callixte, a carpenter named Bushaija and two other victims named Gérard and Mukamam. After the removal of Father Callixte, the witness saw Interahamwe wearing Father Callixte’s clothes.1957 The fact that the abducted refugees were never seen again and the fact that she saw some of the assailants wearing the clothes of the abducted refugees led the witness to conclude that those refugees had been killed.

1097. In addition to the killings, Witness EZ gave evidence that soldiers came to ESI at night and took away women and young girls in order to rape them in the forest.1958 The witness was herself raped a number of times by soldiers. The witness recalled that on one occasion, soldiers came to ESI at around 5.00 p.m. and attempted to take a woman in order to rape her. The woman refused to abide with orders of the soldiers, so the soldiers raped her at the compound in front of the other refugees and then killed her.1959 During this incursion into the compound, the soldiers took a group of about 40 women and young girls, including the witness, to the forest situated between the Red Cross buildings and ESI. The soldiers ordered those women to undress and then took turns in raping the women.1960 The soldiers told the women not to scream, and threatened to kill anyone who screamed. The witness estimated 1952 T. 5 October 2005, p. 14; T. 6 October 2005, pp. 24-25. 1953 T. 5 October 2005, p. 18. 1954 T. 5 October 2005, pp. 17-18. 1955 T. 5 October 2005, p. 14. 1956 T. 5 October 2005, p. 18. 1957 T. 5 October 2005, pp. 20-21 (ICS); T. 6 October 2005, pp. 34-35. 1958 T. 5 October 2005, pp. 14-17. 1959 T. 5 October 2005, p. 16; T. 6 October 2005, p. 28. 1960 T. 5 October 2005, p. 16; T. 6 October 2005, pp. 28-30. 17 May 2011 249/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T that around 30 soldiers perpetrated the rapes against them on that occasion,1961 and the witness herself was raped by around 15 soldiers.1962 According to the witness, the rapes lasted the whole night because the refugees only went back to the school at around 5.00 a.m.1963 1098. The witness testified, “Not a single night went by without [the female refugees] being raped.”1964 The witness named Mukantaganda Petronile, Annonciate and Séraphine Ngutegure as being among the refugees at ESI who were also raped.1965 The witness stated that from around 15 May, one of the soldiers decided to rape her all by himself so she did not have to be raped by several men.1966 1.5.1.5.2.7 TRAFIPRO and the Musambira Commune Office and Dispensary Prosecution Witness DBA 1099. Witness DBA, a Tutsi,1967 testified that following the death of the President on 6 April 1994, she left her home and went to the Musambira dispensary in Gitarama in order to seek medical treatment.1968 The dispensary was located close to the Musambira commune office and the court. The witness recalled that the head nurse at the dispensary named Marciane behaved disparagingly towards her and then called an Interahamwe member named Abdulhamane, together with a number of soldiers. Thereafter, Abdulhamane and six soldiers who were armed with guns and

knives arrived at the dispensary and took the witness and other women to an area nearby.1969 Four of the soldiers then raped the witness.1970 She explained that she knew that the men who raped her were soldiers from their uniforms, which consisted of a shirt, helmet, trousers and boots.1971 1100. The witness further testified that the same set of soldiers who raped her also raped another woman and then cut between her legs with a bayonet.1972 Prosecution Witness DBH 1101. Witness DBH, a Tutsi, was a farmer in Musambira commune1973 and was six months pregnant in April 1994.1974 Following the death of President Habyarimana, the witness hid in a banana plantation for approximately one week with her Tutsi brothers and neighbours.1975 She testified that they were persuaded to come out of hiding because Abdulhamane, a local 1961 T. 5 October 2005, p. 16; T. 6 October 2005, pp. 28, 30. 1962 T. 5 October 2005, p. 16; T. 6 October 2005, pp. 28, 30. 1963 T. 5 October 2005, p. 16; T. 6 October 2005, p. 30. 1964 T. 5 October 2005, p. 17. 1965 T. 5 October 2005, pp. 21-22 (ICS). 1966 T. 5 October 2005, p. 17. 1967 Prosecution Exhibit 26. 1968 T. 17 March 2005, p. 36 (ICS). 1969 T. 17 March 2005, p. 36 (ICS). 1970 T. 17 March 2005, p. 36 (ICS); T. 21 March 2005, pp. 56-57 (ICS). 1971 T. 17 March 2005, p. 37 (ICS). 1972 T. 17 March 2005, pp. 36, 38 (ICS). 1973 T. 20 June 2005, pp. 3-4. 1974 T. 23 June 2005, pp. 22-23. 1975 T. 20 June 2005, p. 4. 17 May 2011 250/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Interahamwe leader, sent a messenger to tell them that “peace and security had been restored”.1976 1102. The witness and her Tutsi brothers and neighbours went to the Musambira commune office, where a man named Edswald “registered” them.1977 Abdulhamane told the refugees that they were being registered in order to get assistance. However, immediately after the registration, a number of Interahamwe wearing banana leaves arrived at the commune office and began killing the Tutsi with small hoes, clubs and machetes.1978 1103. Later, soldiers dressed in military uniforms including hats or berets with marks inscribed on them arrived at the commune office.1979 The witness explained that some of the refugees who were afraid of being killed with machetes and small hoes gave money to the soldiers so that the soldiers could “kill them with a gun” instead.1980 Witness DBH witnessed the killing of a man named Gatete after he had paid the soldiers to kill him with a gun.1981 The witness testified that the soldiers attacked “thousands” of refugees at the commune office and that none of the male refugees survived that attack.1982 The women buried the bodies of the victims in a grave located about 15 metres from the commune office.1983 Witness DBH estimated that they buried between 7,000 and 8,000 bodies.1984

Thereafter, Abdulhamane locked up the surviving refugees, including the witness, in a building at the Musambira dispensary or “clinic”.1985 1104. Witness DBH testified that she was locked in the building at the Musambira dispensary for approximately two days.1986 During that period, soldiers came and took her and other female refugees into the bush to rape them.1987 On the first occasion, three soldiers came and dragged the witness out of the clinic to rape her. The soldiers were wearing camouflage military uniforms and carrying weapons, and one of them wore a camouflage helmet.1988 On another day, two soldiers took the witness outside the building and raped her. The witness testified that on that day, she “was not the only one taken in that manner. There were other people who were also taken.” After the soldiers had raped the witness, they said that “they had had enough of raping Tutsis” and the witness went back to the clinic.1989 1105. Subsequently, Witness DBH and a number of other women decided to escape. She testified that they made a hole in the fence and escaped through the hole at nightfall without being seen by the guards.1990 1976 T. 20 June 2005, pp. 5, 9. 1977 T. 20 June 2005, p. 5. 1978 T. 20 June 2005, pp. 6-7, 11. 1979 T. 20 June 2005, p. 7 1980 T. 20 June 2005, pp. 6, 11. 1981 T. 20 June 2005, pp. 6, 11. 1982 T. 20 June 2005, pp. 7-8. 1983 T. 21 June 2005, pp. 33, 36-37. 1984 T. 20 June 2005, p. 7. 1985 T. 20 June 2005, pp. 7-9. 1986 T. 22 June 2005, p. 2. 1987 T. 20 June 2005, p. 9. 1988 T. 20 June 2005, pp. 10-11. 1989 T. 20 June 2005, pp. 13-14. 1990 T. 22 June 2005, pp. 17-19. 17 May 2011 251/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness DBB 1106. Witness DBB, a Tutsi, was a student living in Rwinanka cellule in Musambira commune in 1994.1991 She testified that sometime around 10 April 1994, following the killings of Tutsi in her area, she sought refuge at the Musambira commune office.1992 Upon arrival, she found other refugees as well as armed policemen in green uniforms.1993 A few days later, an Interahamwe named Abdulhamane1994 arrived at the commune office with other Interahamwe and started killing the refugees using clubs, machetes and guns.1995 The policemen joined the assailants in killing the Tutsi.1996 The witness stated that all of the male refugees were killed during the massacre.1997 1107. Following the killings at the commune office, Abdulhamane and the police officers asked the refugees to go to Musambira church.1998 The witness remained at the church for about one week1999 and then fled to the Musambira dispensary.2000 1108. Approximately one week after Witness DBB arrived at the Musambira dispensary, a soldier wearing a camouflage uniform and a beret came and asked the refugees to gather in a yard near the commune office.2001 The witness recalled that immediately afterwards, Abdulhamane came with Interahamwe and attacked the refugees using clubs and machetes. Those who tried to escape were shot by

soldiers.2002 According to the witness, many refugees died and the survivors were asked to bury the bodies in three large pits. The survivors then returned to the dispensary for two nights, at which point Abdulhamane arrived and chased them away saying they should go to their respective houses and wait for death.2003 The witness and other refugees then left the dispensary and returned to their homes.2004 1109. After witnessing further killings at her home, the witness returned to the Musambira church.2005 Approximately one week later, the witness and other refugees were transported on a bus to the TRAFIPRO Centre in Kabgayi, escorted by two soldiers in military uniforms and a policeman in a green uniform.2006 When she arrived at TRAFIPRO, the witness observed that there were already a large number of refugees there. The witness stayed at TRAFIPRO for approximately one week. On several occasions during that period, soldiers came to the centre and killed refugees.2007 1991 T. 26 January 2006, p. 43. 1992 T. 26 January 2006, p. 27. 1993 T. 26 January 2006, p. 29. 1994 The Chamber notes that the name Abdulhamane has two different spellings in the same transcript, but it is satisfied that both spellings signify the same person. 1995 T. 26 January 2006, pp. 27-30. 1996 T. 26 January 2006, pp. 28-30. 1997 T. 26 January 2006, p. 29. 1998 T. 26 January 2006, p. 31. 1999 T. 26 January 2006, p. 31. 2000 T. 26 January 2006, p. 35. 2001 T. 26 January 2006, p. 35. 2002 T. 26 January 2006, p. 35. 2003 T. 26 January 2006, p. 35. 2004 T. 26 January 2006, pp. 35-36. 2005 T. 26 January 2006, p. 36. 2006 T. 26 January 2006, pp. 37-38. 2007 T. 26 January 2006, p. 38. 17 May 2011 252/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1110. The witness further testified that during her stay at TRAFIPRO, she was raped twice by soldiers wearing camouflage uniforms.2008 She stated that the first rape took place about three days after she came to TRAFIPRO and was committed by three soldiers near the military barracks.2009 The second rape took place two days after the first rape2010 and was committed by two soldiers at the same location as the first rape.2011 She added that both rapes took place during the day.2012 Prosecution Witness DBE 1111. Witness DBE, a Tutsi, lived in Murambi cellule in 1994.2013 She testified that she went to TRAFIPRO in mid-May seeking refuge from the attacks against Tutsi in the area.2014 When she arrived at TRAFIPRO, she found many other Tutsi including some of her relatives who had sought refuge there.2015 The witness estimated that she spent more than one month there.2016 1112. The witness stated that during her time at TRAFIPRO, “[S]everal incidents happened. People were killed, young men, young girls. The attackers could come at any time and kill refugees. They would come, take refugees, and take them and kill them.”2017 The witness recalled that the attackers were both soldiers and Interahamwe.2018 Two days after arriving at TRAFIPRO, the witness saw soldiers and Interahamwe kill her 15-year-old son

Harerimana in broad daylight. She also witnessed a number of other killings, including the killing of a man named Mugoboka.2019 She stated that the attackers came every day and at varying times to take refugees away and kill them.2020 1113. The witness further testified that she was raped several times during her stay at TRAFIPRO.2021 On one occasion, six armed soldiers took the witness and five other women into a nearby wood and raped them.2022 After the rapes, she recalled the soldiers pushing them roughly and telling them to go back to where they had come from.2023 1114. The witness also gave evidence regarding an incident when soldiers took the witness and other women outside TRAFIPRO in order to rape them, but the soldiers ceased their attack against the women after seeing a white man who worked for the Red Cross drive in the area. The witness and the other women then returned to TRAFIPRO.2024 2008 T. 26 January 2006, pp. 41, 43. 2009 T. 26 January 2006, p. 41. 2010 T. 26 January 2006, pp. 41-42. 2011 T. 26 January 2006, p. 42. 2012 T. 26 January 2006, p. 43. 2013 T. 4 April 2005, p. 46, 49. 2014 T. 30 March 2005, pp. 48-57; T. 31 March 2005, p. 49. 2015 T. 30 March 2005, pp. 60-61. 2016 T. 30 March 2005, p. 61. 2017 T. 30 March 2005, p. 61. 2018 T. 30 March 2005, p. 62. 2019 T. 30 March 2005, pp. 61-62. 2020 T. 30 March 2005, p. 64. 2021 T. 30 March 2005, p. 64. 2022 T. 30 March 2005, pp. 64-65. 2023 T. 30 March 2005, p. 65. 2024 T. 30 March 2005, pp. 63-65. 17 May 2011 253/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1115. On another occasion, soldiers again took the witness and other women to the woods and raped them. The witness was herself raped twice by soldiers. She recalled one soldier stating, “The God of the Tutsis has abandoned or forsaken you. I don’t know how you are still alive and what you are doing here”.2025 The soldier also stated, “[Y]ou Tutsi women are not dying like the men because you have something to offer men” and “[a]t any rate, you ought to be sent back to your home, Abyssinia.”2026 The witness stated that on this occasion she saw one female refugee raped and killed by a soldier who stabbed her between the legs.2027 The witness also stated, “Whenever we went to the small wood we would find bodies”.2028 On the third occasion that she was raped in the wood, the witness saw corpses in the woods with their hands tied.2029 1116. On each of the three occasions, the witness knew that the assailants were soldiers because they were wearing military camouflage uniforms with ponchos over the top and black berets with insignia on the side. She also stated that the soldiers were carrying firearms and grenades.2030 In some cases, the women were raped by both soldiers and Interahamwe; the soldiers would rape the women first and then hand them over to the Interahamwe who would also rape them.2031 1117.

After the third rape incident, soldiers and Interahamwe continued to launch attacks against the refugees at TRAFIPRO.2032 The witness recalled that Prime Minister Kambanda came to TRAFIPRO one morning and that following his visit, soldiers and Interahamwe launched a large-scale attack against the refugees at TRAFIPRO, resulting in a number of deaths.2033 The witness also described an incident when the refugees killed an Interahamwe in self-defence and then soldiers and Interahamwe attacked the refugees, resulting in the death of between 20 and 30 people.2034 The soldiers and Interahamwe also broke the tap so that the refugees no longer had a source of water.2035 1118. The witness and other refugees finally left TRAFIPRO when the RPF or Inkotanyi arrived and the refugees were able to pass through the barbed wire fence of the compound and run away.2036 2025 T. 30 March 2005, p. 65. 2026 T. 4 April 2005, p. 8 2027 T. 30 March 2005, p. 66; T. 4 April 2005, pp. 12-13. 2028 T. 30 March 2005, p. 66. 2029 T. 4 April 2005, p. 9. 2030 T. 30 March 2005, pp. 62-66. 2031 T. 30 March 2005, pp. 65-66. 2032 T. 30 March 2005, p. 67. 2033 T. 4 April 2005, p.

14. The witness initially testified that the attack took place on the same day as Kambanda’s visit, but later in her testimony she stated that the attack took place nearly a week after the visit. The witness claimed that she had obviously forgotten the date on which the incident occurred. See T. 4 April 2005, p. 41. 2034 T. 30 March 2005, pp. 68-69. 2035 T. 30 March 2005, p. 68. 2036 T. 30 March 2005, p. 70; T. 4 April 2005, p. 12. 17 May 2011 254/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness DBD 1119. Witness DBD, a Tutsi, lived in Murambi cellule in 1994.2037 She testified that she sought refuge at TRAFIPRO sometime in late April or May 1994 and she stayed there for approximately two weeks.2038 The witness stated that the refugees at TRAFIPRO were all Tutsi and that the conditions there were inhumane. There was no water or food, and the unsanitary conditions led to many deaths from cholera and dysentery.2039 1120. The witness explained that during her stay at TRAFIPRO, she saw armed soldiers remove adults and children from the area. This would happen between three and five times per day. She stated that the soldiers “came relentlessly” to take people away and that most of those people never came back. Some women would return but the men who were selected were shot dead on the spot.2040 1121. The witness recalled that a few days after her arrival at TRAFIPRO, Prime Minister Kambanda along with Bishop Thaddée Nsengiyumva of Kabgayi visited TRAFIPRO. After their visit, there was a large attack on the refugees during which soldiers and Interahamwe killed many people. The witness recalled that “the attackers fired at [the refugees] throughout the night. And in the morning they killed a lot of people who were within the complex.”2041 1122. Witness DBD testified that she was

raped on two occasions while she was at TRAFIPRO. The first time, a soldier selected the witness and then handed her over to three other soldiers who took her to a wooded area. Two of the soldiers then raped the witness at gunpoint while beating and taunting her. The second time, she was attempting to purchase a few items from the store when a soldier and two Interahamwe grabbed her and beat her with gun butts and pieces of wood. The soldier then raped the witness.2042 1123. Witness DBD testified that the refugees at the TRAFIPRO compound were “liberated” by the RPF on 2 June 1994.2043 1.5.1.5.3 Deliberations 1.5.1.5.3.1 Charles Lwanga Church, 9 to 10 June 1994 1124. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at Charles Lwanga Church on 9 or 10 June 1994, the Prosecution relies solely on the evidence of Witness DBJ.

1125. Having considered the evidence of Witness DBJ, the Chamber is satisfied that Interahamwe attacked the refugees at Charles Lwanga Church on either 9 or 10 June 1994. The Chamber is also satisfied that the attack led to the killing of some of the civilians at the church, including an aged member of the Josephite Brotherhood named Pierre Cacamumakuba.2044 In addition, Witness DBJ’s evidence establishes that members of the 2037 T. 5 April 2005, p. 6 (ICS). 2038 See T. 5 April 2005, p. 11 (ICS); T. 4 April 2005, pp. 66-71. 2039 T. 4 April 2005, p. 71. 2040 T. 4 April 2005, pp. 70-71. 2041 T. 4 April 2005, pp. 14-15, 72; T. 5 April 2005, pp. 33-35. 2042 T. 4 April 2005, pp. 72-73. 2043 T. 4 April 2005, p. 12; T. 5 April 2005, p. 28. 2044 T. 29 August 2005, p. 39. 17 May 2011 255/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Interahamwe, led by a notorious Interahamwe known as Kigingi, abducted Tutsi women and children refugees and drove them in the direction of Mount Kigali. However, the Prosecution presented no further evidence on the fate of those refugees.

1126. The Chamber will now consider whether soldiers were involved in the attack against Tutsi refugees at the church. The Chamber recalls that Witness DBJ did not ascribe any role to soldiers in the physical perpetration of the attack. In response to a question from the Defence as to whether soldiers had any role in the attack, the witness stated, “[I]t was people that I will refer to as the Interahamwe who attacked the St. Charles Lwanga Parish.”2045 The Chamber notes that Witness DBJ made generic comments to the effect that during attacks by Interahamwe in 1994, soldiers and gendarmes would arrive at the scene of the attack, “perhaps, to ensure the smooth functioning of the operation.”2046 The witness further stated that soldiers and gendarmes did not take any measures to avert such attacks, but only “witnessed what was going on.”2047 Apart from testifying that soldiers were present outside the church at the time, the witness did not impute to soldiers any role in the physical execution of the attack.

1127. The Chamber notes that it has little evidence regarding the circumstances that led to the intervention of the soldiers at Charles Lwanga Church. The Chamber also recalls that Witness DBJ testified that Colonel Munyakazi, the highest ranking officer among the gendarmes and soldiers present at the church, protected him and other members of the Brotherhood from being attacked by Interahamwe during the events of 9 or 10 June 1994 at the church. The witness testified: [A]s far as I am concerned, [Colonel Munyakazi] did one thing for me and for the brothers, my colleagues who were with me. He helped us to cross the Kigina roadblock, even if there was a minor dispute at the roadblock. He, therefore, saved us, so to speak. Another witness could come here and tell you that the Colonel did not conduct himself properly because there were no survivors in the vehicle that ferried the people. So as far as I am concerned, he saved my life. But someone else may say that he participated in those atrocious acts.2048 1128. Witness DBJ’s evidence that soldiers did not take part in the physical perpetration of the attack at the church, together with the paucity of evidence regarding the circumstances surrounding the soldiers’ intervention at the church and the role of Colonel Munyakazi in saving the witness and his colleagues despite stiff resistance from the Interahamwe, leave the Chamber

with grave doubts that the mere presence of soldiers at the church during the attack suggests that they participated or supported the attack against the refugees by Interahamwe. The Chamber is therefore not satisfied that soldiers under the command of Bizimungu were implicated in the crimes that were committed against Tutsi civilians at the Charles Lwanga Church on either 9 or 10 June 1994. 2045 T. 31 August 2005, p. 51. 2046 T. 29 August 2005, p. 38. 2047 T. 29 August 2005, p. 39. 2048 T. 31 August 2005, pp. 52-53. 17 May 2011 256/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.1.5.3.2 Josephite Brothers Compound, 8 April and 7 June 1994 1129. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at the Josephite Brothers compound on 8 April and 7 June 1994, the Prosecution relies solely on the evidence of Witness DBJ. 1.5.1.5.3.2.1 Attack Against Tutsi Civilians at the Josephite Brothers Compound, 8 April 1994 1130. Witness DBJ is the only witness to have testified about the events at the Josephite Brothers compound on 8 April 1994. He testified that soldiers in collaboration with Interahamwe killed and injured a large number of Tutsi civilians at the compound.2049 At the time, there were between 200 and 250 civilians, mainly Tutsi, who had sought refuge at the compound.2050 The witness also testified that in the course of the attack at the compound, a soldier raped a Tutsi refugee girl.2051 1131. Having assessed Witness DBJ’s testimony, the Chamber is satisfied that he gave a firsthand and a largely consistent account of the events that transpired at the Josephite Brothers compound on 8 April 1994.

1132. In determining the veracity of Witness DBJ’s testimony, the Chamber has carefully weighed the submissions raised by the Defence to discredit his evidence. The witness was cross-examined at considerable length regarding his description of the clothes worn by the young male assailants who collaborated with soldiers in attacking civilians at the Josephite Brothers compound on 8 April. The Defence also sought to impugn the reliability of Witness DBJ’s evidence that soldiers of the Rwandan Army participated in the attack at the compound.

1133. The Defence submits that contrary to Witness DBJ’s evidence that the young male assailants were mainly dressed in civilian clothes but that a few of them wore pieces of military uniform, in his pre-trial statement dated 28 July 1999, the witness stated that those assailants were dressed in complete military uniforms. 2052 More significantly, the Defence referred to Witness DBJ’s evidence in the Bagosora et al. proceedings given on 25 November 2003, in which he stated that while at the beginning of the events of 1994 one could distinguish between soldiers and Interahamwe based on their dress, that distinction became difficult to draw with the passage of time since Interahamwe also began to wear complete military uniforms.2053 According to the Defence, the fact that the witness stated in his pre-trial statement that the young male assailants were dressed in complete military uniforms, together with the witness’s own admission that he could not distinguish soldiers from the militia based on their clothing, raises doubts about the reliability of Witness DBJ’s identification of some of the assailants at the Josephite Brothers compound as soldiers.

1134. Having reviewed Witness DBJ’s evidence before this Chamber and his pre-trial statement, the Chamber is not satisfied that there is a discrepancy between his testimony and his pre-trial statement regarding the appearance of the assailants during the attack of 8 April 2049 T. 29 August 2005, pp. 16-17. 2050 T. 29 August 2005, p. 11. 2051 T. 29 August 2005, p. 14. 2052 T. 30 August 2005, pp. 20-23, 26-28. 2053 T. 31 August 2005, pp. 26-28. 17 May 2011 257/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T at the Josephite Brothers compound. The Chamber notes that in both instances, the witness was consistent that the majority of the young male assailants, unlike soldiers, were dressed in civilian clothes but that some wore pieces of military uniform such as shirts or trousers. The witness also distinguished the two sets of assailants based on their weapons. He stated that while the young male assailants were mainly armed with traditional weapons, the soldiers were armed with firearms. Furthermore, the Chamber notes that the witness did not diverge from this position despite being subjected to a lengthy and repetitive cross-examination.2054 The suggestion that the witness’s testimony on this issue varies from his pre-trial statement lacks merit.

1135. The Chamber is also not persuaded by the argument that Witness DBJ’s testimony in the Bagosora et al. proceedings that he could not distinguish between soldiers and Interahamwe based on their clothing raises doubts about the reliability of his evidence that soldiers participated in the attack at the Josephite Brothers compound. Having reviewed the transcripts of his evidence in that trial, the Chamber is not satisfied that this aspect of his evidence in the Bagosora et al. proceedings has any bearing on the events that he witnessed at the Josephite Brothers compound on 8 April 1994. His evidence is drawn from his observations of the situation at roadblocks in Kigali in June 1994. He testified that he saw Interahamwe dressed in complete military uniforms in the month of June as he passed through a roadblock on his way to St. Famille coming from St. Charles Lwanga Church.2055 It was at that stage that he found it difficult to distinguish militia from soldiers. However, his evidence of the events at the Josephite Brothers compound on 8 April 1994 is quite clear that soldiers appeared visibly distinct from the young male assailants during the attack at the compound. Having reviewed the entirety of his evidence, the Chamber is satisfied that the witness could reliably distinguish soldiers from the young male assailants given the marked difference in their appearances. His evidence that soldiers were involved in that attack is therefore grounded on a reliable basis of knowledge.

1136. The Chamber has also considered the other submissions raised by the Defence in an attempt to impugn Witness DBJ’s credibility. The Defence referred to a number of discrepancies between Witness DBJ’s evidence before this Chamber and his evidence given in the Bagosora et al. proceedings on 23, 24 and 25 November 2003, and also his pre-trial statement dated 28 July 1999. These variances relate to the duration of the attack at the Josephite Brothers compound on 8 April 1994,2056 whether the perpetrators of the attack were acting at the behest of a known commander, 2057 Witness DBJ’s vantage point when the attack started,2058 the manner in which the attack unfolded,2059 and whether the assailants inspected the identity cards of the people at the compound prior to the attack.2060 Having assessed these variances, the Chamber does not consider them to be of such a significant weight that they diminish the overall credibility of Witness DBJ’s testimony regarding the events at the compound. 2054 T. 30 August 2005, pp. 20-23, 26-28. 2055 T. 31 August 2005, p. 28. 2056 T. 30 August 2005, pp. 45-46. 2057 T. 30 August 2005, pp. 32-36; T. 31 August 2005, pp. 30-31. 2058 T. 30 August 2005, pp. 23, 29-30, 36, 42-44. 2059 T. 30 August 2005, pp. 37-41. 2060 T. 31 August 2005, pp. 8-13. 17 May 2011 258/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1137. The Chamber recalls that Witness DBJ gave evidence that during the attack of 8 April 1994, one of the soldiers raped a female refugee aged about 20.2061 The witness gave evidence that on the following day, he saw the dead body of the girl but had no information on who killed her.2062 1138. The witness was cross-examined at length regarding his vantage point as he witnessed the alleged rape. According to the Defence, the witness testified that he saw the soldier rape the girl as he passed by the building where the soldier had taken the girl. However, in his pre- trial statement dated 28 July 1999, the witness stated that he observed the alleged rape while he was seated in the Josephite Brothers compound.2063 The witness explained that the discrepancy may have resulted from a misunderstanding between himself and the investigators of the Tribunal. In particular, he stated that the investigators may have misconstrued his statement that the soldier ordered the girl to strip while at the compound to mean that he raped her at that compound.2064 The Chamber accepts this as a plausible explanation of the discrepancy between the witness’s evidence and his pre-trial statement.

1139. Having considered Witness DBJ’s evidence, the Chamber is satisfied that the witness gave a credible account that a soldier raped a young girl during the attack at the Josephite Brothers compound on 8 April 1994.

1140. The Chamber therefore finds that the Prosecution has proved beyond reasonable doubt that soldiers of the Rwandan Army committed crimes against Tutsi civilians at the Josephite Brothers compound on 8 April 1994 as alleged in paragraphs 68 and 69 of the Indictment.

1141. The Chamber notes, however, that the crimes alleged at the Josephite Brothers compound on 8 April 1994 took place before Bizimungu became Chief of Staff of the Rwandan Army and therefore fall outside the time period prescribed in paragraphs 68 through 70 of the Indictment. Consequently, the Chamber will not consider these allegations in assessing Bizimungu’s superior responsibility for genocide. 1.5.1.5.3.2.2 Attack Against Tutsi Civilians at Josephite Brothers Compound, 7 June 1994 1142. Prosecution Witness DBJ testified that on 7 June 1994, a group of about 15 to 20 soldiers arrived at the Josephite Brothers compound, removed approximately 100 Tutsi civilians from the compound and killed them at a location within the immediate vicinity of the compound.2065 The majority of the victims were Tutsi civilians who had sought refuge at the Josephite Brothers compound, as well as a few members of the Brotherhood. Having considered his evidence, the Chamber is satisfied that the witness gave a firsthand and consistent account of the events that occurred at the compound on 7 June 1994.

1143. In assessing the credibility of Witness DBJ’s testimony on these events, the Chamber has also considered the submissions made by the Defence on the credibility of his testimony. The Chamber recalls that the Defence objected to the evidence of Witness DBJ on the basis that it was not drawn from the witness’s own direct observations of the events that transpired 2061 T. 29 August 2005, p. 14. 2062 T. 29 August 2005, p. 14. 2063 T. 30 August 2005, pp. 58-61. 2064 T. 30 August 2005, p. 60. 2065 T. 29 August 2005, pp. 26-27, 30, 32-33. 17 May 2011 259/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T at the Josephite Brothers compound but was instead drawn from a second source.2066 The Chamber is not persuaded that the fact that some details of the witness’s testimony are drawn from information that was relayed to him by a survivor of the attack diminishes the credibility of his evidence.

1144. The Chamber finds that a careful review of Witness DBJ’s evidence in its entirety provides a plausible basis for the inference that soldiers killed Tutsi civilians at the Josephite Brothers compound on 7 June 1994. The Chamber notes that the witness’s evidence that he saw soldiers at the compound on the day of the attack, his observation of the absence of the refugees from the compound shortly after the arrival of the soldiers, and his observation of the dead bodies of two members of the Brotherhood inside the compound on the day of the attack,2067 when considered in concert with his evidence that a mass grave was discovered at the location where he was informed that the killings had occurred, and his identification of the dead bodies of some of his colleagues among the remains that were exhumed from that grave,2068 leave the Chamber with no doubt regarding the veracity of Witness DBJ’s evidence that soldiers killed Tutsi civilians at the Josephite Brothers compound on 7 June 1994. For these reasons, the fact that the witness did not directly observe the removal and killing of the civilians by soldiers does not discredit his evidence regarding the events at the Josephite Brothers compound.

1145. In his evidence regarding the events at the Josephite Brothers compound, Bizimungu suggested that the killings of people at religious centres such as the Josephite Brotherhood may have been caused by the killing of prominent Hutu leaders of the Catholic Church in Kabgayi in June by soldiers of the RPF. He added that some of these attacks may have been perpetrated by assailants who were dressed in military uniforms but who were in fact not soldiers of the Rwandan Army.2069 Bizimungu further testified that following the fall of Camp Kanombe on 21 May 1994, many people were seen wearing uniforms of the Rwandan Army but were in fact not members of the army.2070 The Chamber is not satisfied that these general remarks by Bizimungu raise any doubts regarding Witness DBJ’s firsthand and detailed account of the events that transpired at the compound on 7 June 1994.

1146. Having considered the entirety of Witness DBJ’s evidence, the Chamber is satisfied that the Prosecution has established beyond reasonable doubt that soldiers of the Rwandan Army killed about a hundred Tutsi civilians at the Josephite Brothers compound on 7 June 1994. 1.5.1.5.3.3 ETO-Nyanza 1147. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at ETO-Nyanza on 11 April 1994, the Prosecution relies solely on the evidence of Witness AR. 2066 T. 29 August 2005, pp. 27-31. 2067 The witness testified that he saw the dead bodies of two members of the Brotherhood, namely, Kayitera and the 89 year old Rwahiga, inside the compound of the Josephite Brotherhood in the immediate aftermath of the attack of 7 June 1994. See T. 29 August 2005, p. 35. 2068 T. 29 August 2005, pp. 33, 35. 2069 T. 11 December 2007, p. 40. 2070 T. 11 December 2007, p. 40. 17 May 2011 260/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1148. The Chamber recalls that Witness AR gave evidence that about 2,000 to 3,000 civilians sought refuge at the ETO complex in Kigali following the death of President Habyarimana on 6 April 1994.2071 He further testified that a group of Belgian UNAMIR soldiers guarded the refugees at the complex.2072 On 11 April, those UNAMIR soldiers withdrew from ETO.2073 Shortly thereafter, Interahamwe and soldiers of the Rwandan Army arrived at ETO and attacked those refugees.

1149. The witness testified that following the attack, a large number of those refugees, approximately 2,000 to 3,000, including the witness, fled the ETO complex and headed towards the Amahoro Stadium where they thought they would be protected by UNAMIR soldiers based at the stadium.2074 However, those refugees were intercepted by soldiers and Interahamwe and marched to Nyanza Hill, where they were subjected to a prolonged attack leading to the death of a large number of those refugees.2075 1150. Having evaluated Witness AR’s evidence, the Chamber is satisfied that the witness provided a consistent and credible account that a large number of Tutsi civilians who had sought refuge at the ETO complex were marched by soldiers and Interahamwe to Nyanza Hill and killed on 11 April 1994. His evidence is also corroborated in significant respects by the evidence of Prosecution Witness Dallaire, the then force commander of UNAMIR. Dallaire testified that on 11 April, members of the Belgian detachment of UNAMIR who were stationed at the ETO complex withdrew and left approximately 4,000 refugees at ETO without any protection.2076 The witness testified that he was later informed that almost 2,400 of those refugees were subsequently led to Nyanza Hill and killed on the same day. 2077 1151. In reaching this finding, the Chamber has carefully evaluated the alternative accounts of these events

advanced by the Defence seeking to absolve Rwandan government forces of responsibility for the killings of Tutsi civilians at Nyanza Hill on 11 April 1994. According to the Defence for Bizimungu, the civilians who were killed at Nyanza Hill on 11 April were not Tutsi refugees from ETO as alleged by the Prosecution; rather, they were members of the Hutu ethnic group.2078 The Defence further submits that the killings at Nyanza Hill on 11 April were perpetrated by RPF soldiers rather than soldiers of the Rwandan Army.2079 The Defence also submits that the Nyanza Hill area was in fact under the control of the RPF at the time these killings occurred.2080 1152. In addition, the Defence argues that the fact that Nyanza Hill was not featured in the inventory of massacre sites prepared by the Ministry of High Education and Culture of the RPF-led government, together with the fact that no reference was made to the killings of Tutsi civilians at Nyanza Hill by soldiers of the Rwandan Army before Rutaganda was indicted by this Tribunal in 1996, suggests that the allegation that Rwandan government forces committed these killings in April 1994 is a fabrication by the RPF-led government 2071 T. 21 September 2005, pp. 32-33, 35-36, 85. 2072 T. 21 September 2005, pp. 32-33. 2073 T. 21 September 2005, pp. 35, 65, 67. 2074 T. 21 September 2005, pp. 36-37. 2075 T. 21 September 2005, pp. 40-43, 48. 2076 T. 6 December 2006, p. 10. 2077 T. 6 December 2006, p. 10. 2078 T. 6 December 2006, pp. 8-9. 2079 T. 6 December 2006, pp. 8-9. 2080 T. 6 December 2006, p. 8. 17 May 2011 261/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T designed to incriminate members of the former Rwandan government forces.2081 The Chamber notes that apart from a few references to a book on the events in Rwanda in 1994, the Defence did not adduce any direct evidence to support its contentions regarding the events at ETO and Nyanza Hill on 11 April 1994.

1153. The Chamber is not persuaded by the above submissions of the Defence. The suggestion that the killings at Nyanza Hill on 11 April were committed by the RPF is difficult to accept in light of Witness AR’s firsthand identification of the assailants as soldiers of the Rwandan Army based on their uniforms,2082 his sighting of Colonel Bagosora, the directeur de cabinet at the Ministry of Defence, as the refugees from ETO were being marched towards Nyanza Hill,2083 the involvement of Interahamwe in the attack,2084 and his evidence that RPF soldiers arrived at the hill on 13 April and rescued the witness and other survivors of the attack.2085 The Chamber does not accept the contravening submissions of the Defence regarding the events at Nyanza Hill in light of Witness AR’s credible and firsthand evidence implicating soldiers of the Rwandan Army in the crimes committed at Nyanza Hill on 11 April. His evidence that Tutsi refugees from Nyanza Hill were among the victims of these crimes is significantly corroborated by the evidence of Witness Dallaire.

1154. For these reasons, the Chamber accepts the testimony of Prosecution Witnesses AR and Dallaire that soldiers of the Rwandan Army killed approximately 2,400 Tutsi civilians at Nyanza Hill on 11 April 1994. The Chamber further observes that the manner in which about 2,000 to 3,000 Tutsi refugees were marched to Nyanza Hill and subjected to a protracted gun attack by soldiers, leading to the killing of thousands of those refugees, leaves the Chamber with the distinct impression that this was an organised operation rather than spontaneous actions of miscreant soldiers acting independently of the orders and knowledge of the army’s command. This finding is further reinforced by Witness AR’s evidence that Bagosora observed the assailants as they marched the refugees to Nyanza Hill.2086 1155. The Chamber is therefore satisfied that the Prosecution has proved beyond reasonable doubt the allegation relating to the events at the ETO complex and Nyanza Hill on 11 April 1994.

1156. However, the Chamber notes that the crimes alleged at ETO-Nyanza on 11 April 1994 took place before Bizimungu became Chief of Staff of the Rwandan Army and therefore fall outside the time period prescribed in paragraphs 68-70 of the Indictment. Consequently, the Chamber will not consider these allegations in assessing Bizimungu’s superior responsibility for genocide. 1.5.1.5.3.4 Centre Hospitalier de Kigali, April to June 1994 1157. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at CHK from April to June 1994, the Prosecution relies on the evidence of Witnesses ZA and DAR. 2081 T. 6 December 2006, pp. 8, 10. 2082 T. 21 September 2005, pp. 36-37. 2083 T. 21 September 2005, pp. 39-40, 41; T. 22 September 2005, pp. 2-4. 2084 T. 21 September 2005, pp. 43, 48. 2085 T. 21 September 2005, pp. 49, 54. 2086 T. 21 September 2005, pp. 39-41; T. 22 September 2005, p. 8. 17 May 2011 262/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1158. The Chamber notes that both Witnesses ZA and DAR claimed to have been present at CHK during the months of April and May 1994. According to these witnesses, the entrance to CHK was controlled by soldiers throughout this period. The evidence of these witnesses suggests that these soldiers not only controlled the entrance but also committed crimes against Tutsi civilians. Witness ZA testified that as she entered CHK on 10 April 1994, she saw soldiers leading out a group of young men and beating them up.2087 However, there is no indication in her evidence that soldiers who were positioned at the entrance of CHK on 10 April either killed the civilians or caused them serious bodily and mental harm as suggested in paragraph 69 of the Indictment.

1159. In his pre-trial statement dated 23 March 1999, Witness DAR stated that he “witnessed the arrest of many people … the majority of those persons arrested at this roadblock were killed at the entrance of CHK … others were brought into the hospital and killed at the mortuary.”2088 However, in his live testimony before the Chamber, the witness stated categorically that he did not observe any killings of civilians by soldiers during the period that he stayed at CHK.2089 Having weighed the evidence of Witnesses ZA and DAR, the Chamber is not satisfied that there is a sound evidentiary basis to find that soldiers who controlled the entrance to CHK committed the crimes alleged in paragraphs 68 to 70 of the Indictment.

1160. The Chamber will now address the claims by Witnesses ZA and DAR that soldiers who were present inside the compound of CHK during April and May 1994 abducted, raped and killed Tutsi civilians.2090 Even if the Chamber were to accept that soldiers were present at CHK for reasons unrelated to medical treatment, it is not satisfied that the evidence adduced by the Prosecution, for reasons set out below, demonstrates reliably that those soldiers perpetrated crimes against Tutsi civilians at CHK.

1161. Witness DAR testified that on 8 April 1994, he saw armed soldiers and Interahamwe leading a group of about 100 Tutsi civilians in the direction of the maternity ward of CHK. He later learned through a fellow employee of CHK named Jean Paul, who was among those civilians, that they were led towards one of the morgues at CHK and attacked by the Interahamwe, leading to the deaths of a number of civilians.2091 The witness further testified that the dead bodies of the victims of that attack were left lying outside the morgue.

1162. The Chamber is not satisfied that Witness DAR’s evidence offers sufficient proof that about 100 Tutsi civilians were killed at CHK on 8 April by soldiers and Interahamwe. There is no suggestion that the witness observed the killings of those civilians as they unfolded outside one of CHK’s morgues.2092 Moreover, the Chamber is not satisfied that Witness DAR’s evidence provides a conclusive link between the dead bodies that he claimed to have seen outside the morgue and the civilians who were allegedly killed on 8 April. The witness did not see those dead bodies on 8 April, nor does he remember the day that he saw them.2093 The Chamber notes that in direct examination, the witness testified that the majority of the civilians whom he claimed to have seen being marched by soldiers and Interahamwe in the 2087 T. 24 May 2006, p. 15 (ICS). 2088 See Witness DAR’s statement, dated 23 March 1999, pp. 3-6. 2089 T. 4 May 2006, p. 33. 2090 T. 24 May 2006, pp. 19-20 (ICS). 2091 T. 3 May 2006, pp. 72-73; T. 4 May 2006, pp. 36-44. 2092 T. 4 May 2006, p. 43. 2093 T. 3 May 2006, pp. 73-74. 17 May 2011 263/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T morning of 8 April at CHK were brought from outside as opposed to being patients abducted from the hospital.2094 1163. However, in cross-examination, the witness testified that after seeing the dead bodies outside one of CHK’s morgues, he inquired about their identity and was told that they belonged to patients who had been abducted from the paediatric ward as opposed to civilians brought from outside.2095 This evidence raises the possibility that the bodies that he allegedly saw outside the morgue may not have belonged to the civilians whom he had seen being marched by soldiers and Interahamwe on 8 April, since he claimed that this group of civilians was brought from outside CHK as opposed to being patients abducted from the paediatric ward. The fact that he inquired about the identity of those corpses is in itself suggestive of his lack of knowledge of their identity.

1164. The tentative nature of his claim that those bodies belonged to the civilians who were captured on 8 April is further compounded by the evidence of Witness Nyiramondo, a nurse at CHK during the relevant period, that members of the Red Cross and health and sanitation units brought dead bodies to CHK’s morgues during that period.2096 1165. The lack of direct evidence of the killings of about 100 Tutsi civilians at CHK, coupled with Witness DAR’s inability to demonstrate a plausible nexus between the dead bodies that he claimed to have seen and the alleged killings of civilians on 8 April, leaves the Chamber reluctant to accept his evidence that soldiers and Interahamwe killed a group of about 100 Tutsi civilians at CHK on 8 April in the absence of corroboration by reliable evidence.

1166. The Chamber recalls that both Witnesses DAR and ZA testified about the existence of lists of Tutsi civilians at CHK. They further testified that Tutsi civilians whose names were on those lists were abducted and later killed at CHK. Even if the Chamber were to accept the claims of these witnesses regarding the existence of lists of Tutsi civilians who were to be killed at CHK, the Chamber is not satisfied that the existence of such lists per se provides dispositive proof that Tutsi civilians who were featured on those lists were in fact abducted and killed at CHK.

1167. Witness ZA testified that on a number of occasions while working at the maternity ward at CHK, she observed armed soldiers noting down the bed numbers of some of the patients at that ward. She was later informed by other patients at the ward that soldiers only recorded the bed numbers of Tutsi patients and that they assured Hutu patients of their security.2097 Thereafter, the patients whose details had been recorded by the soldiers went missing and were not seen again.2098 The witness also testified that she was informed of similar disappearances of Tutsi patients by nurses working in other wards.2099 1168. Having weighed Witness ZA’s evidence, the Chamber is not satisfied that it offers sufficient proof that soldiers killed Tutsi patients whose details they had recorded at the maternity ward at CHK. Apart from observing soldiers noting down the bed numbers of some 2094 T. 4 May 2006, p. 43. 2095 T. 11 May 2006, pp. 26-27. 2096 T. 15 July 2008, p. 9. 2097 T. 24 May 2006, p. 21 (ICS). 2098 T. 24 May 2006, p. 19 (ICS). 2099 T. 24 May 2006, p. 23 (ICS). 17 May 2011 264/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T of the patients at the maternity ward, the witness presented no evidence suggesting that she observed the abduction or killing of Tutsi patients who were receiving treatment at that ward.2100 While the disappearance of the patients may lead to the suggestion that they had been killed by the soldiers, the Chamber is not satisfied that this is the only reasonable inference open from Witness ZA’s evidence. The Chamber is therefore reluctant to accept Witness ZA’s claims regarding the killing of Tutsi patients by soldiers in the absence of corroboration by reliable evidence.

1169. Witness DAR testified that an army officer known as Lieutenant Pierre collaborated with the head nurse at CHK, Stephanie Ndayambaje, in abducting and killing Tutsi patients at the hospital.2101 The witness further testified that these abductions and killings were conducted based on the lists of Tutsi civilians compiled by Ndayambaje and then given to Pierre.2102 1170. Having reviewed Witness DAR’s evidence, the Chamber is not satisfied that it is probative that Tutsi civilians were abducted and killed at CHK during April and May 1994. His evidence of these abductions and killings is contradictory and unclear. At some points during his testimony, the witness gave the impression that he directly witnessed the abductions of Tutsi patients by Pierre and Ndayambaje from the wards of CHK.2103 However, a careful review of the entirety of his evidence suggests otherwise. The Chamber recalls that in cross-examination, the witness testified that he was informed that the two were abducting patients from the wards, as opposed to directly observing them abduct those patients.2104 The Chamber is unwilling to rely solely on his evidence given the lack of clear indication that he witnessed the abductions of patients and his own admission that he did not witness the killings of the patients who were allegedly removed from the wards.

1171. The Chamber has considered whether the evidence of Witness ZA, who also testified about abductions and killings of Tutsi patients at CHK, corroborates the evidence of Witness DAR. Having done so, the Chamber is not satisfied that her insufficiently detailed evidence corroborates Witness DAR’s evidence. Furthermore, the Chamber notes that Witness ZA, unlike Witness DAR, did not at any point suggest that these abductions were led by Lieutenant Pierre and Stephanie Ndayambaje, the head nurse at CHK.

1172. For similar reasons, the Chamber does not accept Witness DAR’s indirect and uncorroborated evidence regarding the killing of Chantal Uwicyeza at CHK by Pierre and Ndayambaje.2105 1173. In regard to the allegations of rape, the Chamber recalls that Witness DAR is the only Prosecution witness to have testified about rapes perpetrated by soldiers against Tutsi girls at CHK.2106 The witness admitted that he did not witness the rapes, nor was he informed by any of the victims of their ordeal at the hands of the soldiers at CHK.2107 His evidence on the rapes by soldiers is based entirely on his observations of the sad demeanour of the Tutsi girls 2100 T. 24 May 2006, p. 58. 2101 T. 10 May 2006, pp. 3-4. 2102 T. 10 May 2006, pp. 4-5. 2103 T. 3 May 2006, p. 74; T. 4 May 2006, pp. 10-11; T. 10 May 2006, p. 4. 2104 T. 10 May 2006, pp. 3-4. 2105 The witness admitted that he did not observe the killing of Chantal Uwicyeza. See T. 3 May 2006, p. 73. 2106 T. 4 May 2006, pp. 3, 5, 8. 2107 T. 11 May 2006, pp. 27-28. 17 May 2011 265/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T when they returned to CHK after having been abducted by soldiers.2108 The Chamber is not satisfied that Witness DAR’s post hoc inferences based on the demeanour of those girls alone are sufficient to support a finding beyond reasonable doubt that soldiers committed rapes against Tutsi girls at CHK.

1174. Furthermore, the Chamber has serious concerns about the overall credibility of Witness DAR in light of his claim that he was not aware of the arrival of the dead bodies of the Belgian UNAMIR soldiers at CHK in the evening of 7 April 1994.2109 The Chamber finds it inexplicable that the witness, who claims to have been present at CHK for a period of five to six weeks starting from 7 April and who also testified that he was informed of numerous events of a lesser gravity occurring at CHK at the time, would not have heard of the arrival of the bodies of the Belgian soldiers at CHK in the evening of 7 April and their removal in the afternoon of 8 April.

1175. The Chamber also notes that Witnesses DAR and ZA provided largely indirect evidence on the events at CHK. Furthermore, Witness DAR’s evidence is in many respects inconsistent with his pre-trial statement dated 23 March 1999.2110 Given the indirect and limited evidence of these witnesses, the Chamber has refrained from accepting their evidence in the absence of corroboration. The need for corroboration is rendered even more acute in light of the contravening evidence elicited from Defence witnesses. Of these witnesses, the Chamber has found the evidence of Witnesses UKL, S3 and Nyiramondo to be more salient given the extensive duration of their presence or the frequency of their visits to CHK.

1176. For these reasons, the Chamber is not satisfied that the Prosecution has adduced sufficient evidence to prove that soldiers under the command of Bizimungu committed crimes against Tutsi civilians at CHK from April to June 1994. 1.5.1.5.3.5 École des Sciences Infirmières de Kabgayi 1177. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at ESI between April and June 1994, the Prosecution relies solely on the evidence of Witness EZ.

1178. Witness EZ testified that she arrived at ESI around 18 April and stayed there for approximately one month.2111 The Chamber notes that the Indictment alleges that soldiers committed killings and rapes at ESI from April to June 1994. However, the testimony of Witness EZ suggests that she was only present at ESI during the months of April and May. As Witness EZ was the only witness to testify about killings and rapes at ESI, the Chamber finds that the Prosecution did not lead any evidence of such crimes at ESI during June 1994.

1179. The witness testified that during her stay at ESI, soldiers and Interahamwe came on a regular basis and took refugees away. The refugees who were removed never returned to ESI. She also testified to having seen Interahamwe wearing the clothes of refugees who had been taken away from ESI. Among the abducted refugees were four persons who were known to her and whom she had not seen since the events in question. Based on these factors, the witness concluded that the refugees who were abducted from ESI were killed. In addition, the 2108 T. 4 May 2006, p. 18. 2109 T. 11 May 2006, pp. 5-12. 2110 Defence Exhibit 104(a)(b), under seal. 2111 T. 5 October 2005, pp. 9-14, 16, 60. 17 May 2011 266/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T witness testified to having observed the killing of some of the refugees “between the place where [the refugees] were and the toilets”.2112 The witness also saw soldiers rape and then kill a female refugee in front of “everybody” inside ESI.2113 1180. Witness EZ’s evidence regarding the selection and removal of refugees from ESI and the killing of refugees within the ESI compound was largely consistent and the Chamber considers it to be credible. Based on her eyewitness account, the Chamber is satisfied that Rwandan soldiers killed a number of refugees within the ESI compound. The Chamber is also satisfied that her evidence supports the inference that the refugees who were removed from ESI were eventually killed by soldiers and Interahamwe. Given their role in the abduction of these refugees, the Chamber finds that soldiers either killed the refugees outside ESI or handed the refugees over to Interahamwe, who then killed them.

1181. The Chamber recalls that Witness EZ also testified that soldiers regularly and repeatedly raped female Tutsi refugees. The overwhelming majority of the victims were raped in the nearby woods, but some were raped inside the ESI compound. The witness was herself raped by soldiers on a number of occasions during her stay at ESI during April and May 1994. She also witnessed the rape of numerous other women and girls during that period, and she was able to identify four of those women and girls by name.

1182. During cross-examination, counsel for the Defence questioned Witness EZ on the reasons why she failed to report the rapes to the doctor whom she claims to have visited twice while she was at ESI.2114 The witness explained that reporting those incidents of rape would not have done anything to improve the situation at ESI.2115 In the Chamber’s view, the reasons why a victim might fail to report a crime can be manifold. Considering the chaotic situation at ESI and in Rwanda at large when these incidents took place, the fact that the perpetrators remained at ESI along with the witness, and the physical and psychological damage suffered by rape victims, the Chamber considers the witness’s explanation for her failure to report these rapes to be plausible. The Chamber finds that the witness’s failure to report these rapes does not undermine the credibility of her eyewitness account of the events at ESI and her own personal experience. The Chamber therefore considers this Defence submission to be without merit.

1183. For these reasons, the Chamber finds that soldiers raped a number of Tutsi refugee women at ESI and in the nearby woods during April and May 1994. 1.5.1.5.3.6 Musambira Commune Office and Dispensary 1184. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at the Musambira commune office and dispensary in April and May 1994, the Prosecution relies on the evidence of Witnesses DBA, DBH and DBB.

1185. The Chamber notes that Witness DBA sought refuge at the Musambira dispensary and surrounding areas soon after her flight from her home following the President’s death on 6 April 1994. The witness stated that a number of soldiers took her and other female refugees 2112 T. 5 October 2005, pp. 17-18. 2113 T. 5 October 2005, p. 15; T. 6 October 2005, p. 28. 2114 T. 6 October 2005, pp. 26-28. See also Bizimungu Closing Brief, para. 1020. 2115 T. 6 October 2005, pp. 27-28. 17 May 2011 267/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T from the Musambira dispensary and then raped them nearby. Witness DBA’s evidence was largely consistent and the Chamber finds it to be credible. However, the incidents that she described took place before Bizimungu assumed the position as Chief of Staff of the Rwandan Army and therefore fall outside the time period prescribed in paragraphs 68 to 70 of the Indictment. Consequently, the Chamber will not consider the testimony of Witness DBA in assessing Bizimungu’s superior responsibility for genocide.

1186. The Chamber will now turn its attention to the evidence of Prosecution Witnesses DBH and DBB, who testified to crimes committed by soldiers of the Rwandan Army at Musambira commune office and dispensary during late April and May 1994, when Bizimungu was Chief of Staff of the Rwandan Army.

1187. Witness DBH stated that following the President’s death on 6 April, she hid in a banana plantation for approximately one week before seeking refuge at the Musambira commune office. The Chamber infers from this evidence that Witness DBH arrived at the Musambira commune office on or around 14 April. The witness recalled that soon after she arrived, Interahamwe and soldiers killed a large number of male Tutsi refugees at the commune office, and the survivors of the massacre, mainly women and children, were then forced to bury the dead bodies in a mass grave located close to the commune office. Witness DBH estimated that they buried between 7,000 and 8,000 bodies.2116 While the Chamber considers it unlikely that the number of victims was as high as that estimated by Witness DBH, the Chamber is satisfied that a large number of Tutsi were killed in the manner described by the witness. She also testified that she was subsequently raped by soldiers on two occasions at the commune office and that a number of other women were also raped by soldiers.

1188. The Chamber recalls that the Defence raised concerns regarding the witness’s admitted membership of the IBUKA organisation. According to the Defence, this organisation arranged for witnesses to testify and more importantly to collude with each other before testifying before the Tribunal, and therefore the witness’s membership of this organisation diminishes her credibility. The Chamber notes that the witness was less than forthcoming in her responses regarding her affiliation to this organisation. However, the Chamber is not convinced that a witness’s membership of IBUKA in itself is a sufficient reason for doubting the credibility of his or her account in the absence of credible evidence that members of that organisation had sought to interfere with witnesses in this Tribunal. The Chamber is unwilling to cast aside Witness DBH’s firsthand evidence on the basis of unsubstantiated assertions by the Defence. The Chamber therefore concludes that the evidence of Witness DBH is credible.

1189. Witness DBB also testified to violent acts committed against Tutsi refugees at the Musambira commune office. Specifically, she testified to an incident sometime around mid- April where Interahamwe led by a man named Abdulhamane and policemen killed Tutsi. She later fled to the Musambira dispensary, where she witnessed soldiers killing refugees who were attempting to escape an attack by Interahamwe. Witness DBB’s account of these incidents was consistent and the Chamber considers it to be credible. That said, the Chamber notes that Witness DBB testified that the killings of Tutsi refugees at the Musambira commune office were perpetrated by Interahamwe and policemen but not soldiers. Therefore, the Chamber will not hold Bizimungu accountable as a superior for these crimes in relation to 2116 T. 20 June 2005, p. 7. 17 May 2011 268/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the allegations of genocide in paragraphs 68 to 70 of the Indictment. However, the witness did provide reliable and credible evidence implicating soldiers in killings committed against the refugees at Musambira dispensary.

1190. The Chamber has considered the submissions raised by the Defence seeking to impugn Witness DBB’s credibility. In particular, the Defence contends that Witness DBB’s initial denial of knowing Witness DBH is evidence of collusion between these two witnesses. While the Chamber acknowledges that Witness DBB gave inconsistent testimony regarding her relationship with Witness DBH, the Chamber is not persuaded that the fact that these witnesses may have known each other suggests that they colluded to provide false testimony against Bizimungu. The Defence also points to the variances in Witness DBB’s testimony regarding the number of people at the Gaserge roadblock. The Chamber notes that this variance may plausibly be explained by the difficulties of recalling traumatic events in precise detail years after those events occurred. The Chamber therefore finds that these submissions do not undermine the credibility of Witness DBB.

1191. Having carefully considered the evidence in its totality, the Chamber finds that Rwandan soldiers committed killings at the Musambira commune office and dispensary in Gitarama préfecture during April and May 1994. The Chamber also finds that soldiers committed rapes at the Musambira commune office during this period. 1.5.1.5.3.7 TRAFIPRO, April and May 1994 1192. In support of its allegation that soldiers under the command of Bizimungu perpetrated acts of violence toward Tutsi civilians at TRAFIPRO during April and May 1994, the Prosecution relies on the evidence of Witnesses DBE, DBD and DBB.

1193. Witness DBE testified that she arrived at TRAFIPRO in mid-May and remained there for approximately one month. She recalled that during her stay at TRAFIPRO, soldiers raped and murdered a number of Tutsi refugees there. Witness DBE was herself raped on several occasions and she witnessed a number of killings, including that of her 15-year-old son. She also testified that soldiers came to TRAFIPRO regularly to select and remove refugees to be killed. Her evidence is corroborated by Witnesses DBD and DBB, who also testified about rapes and killings perpetrated by soldiers at TRAFIPRO during this period. Witnesses DBD and DBB were both raped by soldiers on two occasions at TRAFIPRO. Both witnesses also saw soldiers come to TRAFIPRO each day to select and remove Tutsi refugees, and both witnesses testified that the selected refugees did not generally return. According to Witness DBD, “Some women would return but the men who were selected were shot dead on the spot.”2117 The Chamber notes in particular that Witnesses DBD and DBE provided corroborative evidence in relation to the visit of Prime Minister Kambanda at TRAFIPRO and the large-scale attack on Tutsi refugees shortly thereafter. The Chamber considers this corroboration to be indicative of the truthfulness of the witnesses’ testimony.

1194. The Chamber has also considered the Defence submissions in relation to these witnesses. In regard to Witness DBB, the Chamber had already found this witness to be credible when discussing her evidence on the events at the Musambira dispensary. In regard to Witness DBD, the Defence argues that the witness’s failure to report the alleged rapes to officials undermines her credibility. For the reasons outlined above in relation to Witness EZ, 2117 T. 4 April 2005, pp. 70-71. 17 May 2011 269/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the Chamber rejects this argument in its entirety. The Defence also contends that the inconsistency between Witness DBD’s pre-trial statement and her testimony regarding the identity of the assailants who raped her on the second occasion while at TRAFIPRO undermines the credibility of her testimony. The Chamber is not persuaded by this submission. The Chamber finds that Witness DBD was consistent both in her pre-trial statements and her in-court testimony that soldiers raped Tutsi refugees, including herself, at TRAFIPRO. The fact that the witness also implicated Interahamwe in these rapes does not diminish the credibility of her evidence in relation to soldiers’ participation in these rapes.

1195. Therefore, the Chamber finds that there is clear and corroborated evidence that proves beyond reasonable doubt that Rwandan soldiers committed systematic acts of violence, namely killings and rapes, against Tutsi refugees at the TRAFIPRO complex during April and May 1994. 1.5.1.5.3.8 Bizimungu’s Superior Responsibility 1196. The Chamber is satisfied beyond reasonable doubt that soldiers under the command of Bizimungu committed rapes and killings against Tutsi civilians at the Josephite Brothers compound in Kigali on 7 June 1994 and at the Musambira dispensary and commune office, ESI and TRAFIPRO in Gitarama during April and May 1994. The Chamber is also satisfied that Interahamwe militiamen were implicated in the killings of Tutsi civilians at ESI and the Musambira dispensary and commune office.2118 The Chamber will now consider whether Bizimungu knew or had reason to know that his subordinates had committed or were about to commit these crimes. The Chamber will consider the full contours of Bizimungu’s superior responsibility in the legal findings section of the Judgement.

1197. The ICTY Trial Chamber in the Čelebići case identified the following indicia as being relevant in determining whether a superior must have possessed the requisite knowledge of offences committed or about to be committed by his subordinates: (i) The number of illegal acts; (ii) The type of illegal acts; (iii) The scope of illegal acts; (iv) The time during which the illegal acts occurred; (v) The number and type of troops involved; (vi) The logistics involved, if any; (vii) The geographical location of the acts; (viii) The widespread occurrence of the acts; (ix) The tactical tempo of operations; (x) The modus operandi of similar illegal acts; (xi) The officers and staff involved; and (xii) The location of the commander at the time.2119 2118 The Chamber notes that paragraphs 68 and 69 of the Indictment, in relation to genocide, allege that crimes were committed at these locations by soldiers under the command of Bizimungu. However, paragraphs 86 and 87 of the Indictment, in relation to murder as a crime against humanity, allege that soldiers acting in conjunction with Interahamwe committed killings at ESI and the Musambira commune office and dispensary. The extent of Bizimungu’s control over Interahamwe is discussed in the legal findings section of the Judgement. 2119 Čelebići Trial Judgement, para. 386. 17 May 2011 270/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1198. Regarding the question of whether Bizimungu had reason to know of the crimes committed by his subordinates, the Appeals Chamber has made it clear that the information available to the accused does not need to provide specific details about the unlawful acts committed or about to be committed by his subordinates.2120 Rather, the test for whether an accused had reason to know of the crimes is “whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry.”2121 1199. At the outset, the Chamber recalls that Bizimungu acknowledged in his testimony that between April and July 1994, he received situation reports (SITREPs) twice daily from all Rwandan Army units across the country. He further testified that those SITREPs contained information not only about the hostilities between the Rwandan Army and the RPF, but also about the security situation affecting the civilian population of the relevant area.2122 1200. In addition to this general information, the Chamber notes that the evidence elicited from Prosecution witnesses on the events at the Josephite Brothers compound, the Musambira commune office and dispensary, ESI and TRAFIPRO,

together with Bizimungu’s own evidence on these events, yields a number of circumstantial indicia suggesting that Bizimungu knew or had reason to know that his subordinates were involved in the crimes committed at those locations. The Chamber will now examine the relevant indicia in relation to each location. 1.5.1.5.3.9 Crimes in Gitarama Préfecture During April and May 1994 1201. Having reviewed the evidence of Prosecution Witness EZ regarding the crimes that were perpetrated against Tutsi refugees at ESI, the Chamber is satisfied that these crimes were committed on a regular basis throughout April and May 1994. Her evidence also suggests that Akayesu, the bourgmestre of Taba commune, who appeared to have a rapport with the soldiers at ESI, together with a member of parliament named Ruvugama as well as Sixbert Ndayambaje, who was the former bourgmestre of Runda commune, visited ESI during April or May. Both Akayesu and Ndayambaje went to ESI bearing lists of names. Witness EZ’s evidence suggests that Akayesu removed some of the refugees whose names were featured on his lists; however, there is no evidence that Ndayambaje removed any of the refugees from ESI.2123 The Chamber considers the fact that the crimes at ESI were committed on a regular basis, the involvement of local officials such as Akayesu, and the use of lists to strongly suggest that these were not random or isolated incidents but were in fact organised and systematic crimes. The Chamber finds it difficult to accept that crimes of this scale and regularity would not have been brought to Bizimungu’s attention in the daily SITREPs that he admitted to receiving from his units located in that area.

1202. Having weighed the evidence of Witness DBH regarding the crimes committed against Tutsi civilians at the Musambira commune office and dispensary, the Chamber is satisfied that the modus operandi of these crimes evinces a clear degree of organisation. Furthermore, the fact that the victims were buried in a large grave and in three large pits 2120 See Čelebići Appeal Judgement, para. 238; Bagilishema Appeal Judgement, para. 42; Krnojelac Appeal Judgement, para. 155; Media Appeal Judgement, para. 791; Strugar Appeal Judgement, para. 298. 2121 Hadžihasanović Appeal Judgement, para. 30; Strugar Appeal Judgement, para. 301 (emphasis added). 2122 T. 13 December 2007, pp. 29-30. 2123 T. 5 October 2005, p. 16. 17 May 2011 271/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T suggests that the killings of the Tutsi refugees at both the Musambira commune office and dispensary were of a large scale. The Chamber also notes that these attacks occurred at places of public significance such as the commune office and the dispensary. The Chamber finds it difficult to accept that crimes of this scale, with obvious implications for general security, would not have been brought to his attention through the daily SITREP that he admitted to receiving at the time.

1203. Based on the firsthand evidence of Witnesses DBB, DBD and DBE, the Chamber is satisfied that soldiers abducted and killed Tutsi refugees at the TRAFIPRO Centre on a regular basis throughout April and May 1994. These witnesses also stated that soldiers regularly raped women and girls at the Centre. The manner in which these crimes were committed at TRAFIPRO suggests that they were organised rather than random or sporadic acts of errant soldiers. The fact that a large number of Tutsi civilians at TRAFIPRO were killed by soldiers and Interahamwe in the immediate aftermath of Prime Minister’s Kambanda’s visit reinforces the Chamber’s finding regarding the organised nature of these attacks and the attitude of the authorities to these crimes.

1204. In view of the factors outlined above, the Chamber considers it highly unlikely that the number, scope and gravity of the breaches committed by soldiers at the Musambira commune office and dispensary, ESI and TRAFIPRO would have eluded Bizimungu’s notice. The Chamber notes that these locations were in Gitarama town rather than in the remote hinterland of the Gitarama préfecture. The fact that Bizimungu knew, as he conceded in his testimony, that a large number of civilians had sought refuge in various locations in Gitarama during April and May 1994 heightens the possibility that he knew or had notice of the crimes committed by soldiers under his command in parts of Gitarama where large number of Tutsi refugees had congregated.2124 Having considered these factors, combined with Bizimungu’s own admission that he received daily SITREPs from all army units in the field, the Chamber is satisfied that Bizimungu knew or had reason to know of the crimes committed by his subordinates at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama. 1.5.1.5.3.10 Crimes at the Josephite Brothers Compound on 7 June 1994 1205. The Chamber has found that about 200 to 250 Tutsi civilians sought refuge at the Josephite Brothers Compound following the death of the President on 6 April 1994. Rwandan soldiers attacked and killed up to 100 of those refugees on 7 June, and a mass

grave was later discovered containing the bodies of some of the victims of that attack. The Chamber has considered the scale of the killings committed by soldiers at the compound on 7 June, particularly given the fact that the killings took place in Kigali, where Bizimungu was based, as a plausible indication of Bizimungu’s notice of these crimes.2125 1206. Furthermore, in assessing Bizimungu’s knowledge of the events at the Josephite Brothers compound, the Chamber has placed considerable weight on Bizimungu’s own evidence that following the killings of senior Hutu Catholic Church leaders in Kabgayi by RPF soldiers during the first week of June 1994, he received information suggesting that civilians who had sought refuge at various religious centres in Kigali were attacked and that 2124 T. 13 December 2007, pp. 17, 34. 2125 The ICTY Trial Chamber emphasised the importance of the Accused’s geographical proximity to the site of the offences. See Aleksovski Trial Judgement, para. 80. 17 May 2011 272/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T some of the assailants who perpetrated those attacks were dressed in military uniforms.2126 The Chamber considers that given his knowledge of reprisal attacks against Tutsi civilians at religious centres in Kigali in early June 1994, it is inconceivable that he would not have known of large-scale killings of Tutsi civilians by soldiers at the Josephite Brothers compound, a religious centre. The fact that he knew that the assailants who carried out these reprisal attacks were dressed in military uniforms is a strong indication that some of the assailants were in fact his subordinates. There is no suggestion in the evidence that Bizimungu carried out any investigation to ascertain whether those assailants were in fact members of his force.

1207. The evidence also suggests that the attack that led to the killings at the Josephite Brothers compound on 7 June was organised rather than spontaneous conduct of errant soldiers. The Chamber notes that about 15 to 20 soldiers were implicated in these killings. Shortly after the attack, soldiers occupied the premises of the Brotherhood with a view to using the premises for military purposes. The fact that the premises were occupied shortly after the killings leads to the reasonable inference that the two incidents were linked. The Chamber heard evidence from Witness WG that St. André College, which is close to the Josephite Brothers compound, was also occupied by a large number of soldiers in May 1994. The number of soldiers involved in this attack and the considerable number of civilians killed, together with the fact that the Josephite Brothers compound was commandeered by soldiers of the Rwandan Army shortly after the killings, suggest that the killings were organised and known to the hierarchy of the army. The Chamber does not accept that lower echelon soldiers would have killed a large number of civilians at the Josephite Brotherhood and occupied the premises without the orders and knowledge of their commanders. The Chamber considers the organised nature of the attack at the Josephite Brothers compound to be an indication of Bizimungu’s knowledge or reason to know of the implication of his subordinates in these crimes.

1208. Having considered the evidence canvassed above, the Chamber is satisfied beyond reasonable doubt that Bizimungu knew or at least had reason to know of the involvement of soldiers of the Rwandan Army in the killings of Tutsi civilians at the Josephite Brothers compound on 7 June. The Chamber finds it difficult to believe that an attack of this magnitude committed against Tutsi members of a religious congregation and other Tutsi refugees in Kigali would not have been reported in the situation reports that Bizimungu admitted to receiving during this period. 1.5.1.5.3.11 Exhibits Tendered by the Prosecution 1209. The Chamber considers that the above findings are bolstered by certain exhibits tendered by the Prosecution, which suggest that Bizimungu was approached by the United States government representatives and international organisations asking him to intervene to stop the massacres that were taking place in areas controlled by his forces. While the Chamber has considered all exhibits tendered by the Prosecution, the Chamber will only discuss those exhibits that it considers to contain pertinent information on Bizimungu’s knowledge or reason to know of the crimes underlying the allegation of superior responsibility against him. 2126 T. 11 December 2007, p. 40; T. 14 December 2007, pp. 23-24. 17 May 2011 273/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1210. The Chamber has considered Prosecution Exhibit 189, which is a press release by Anthony Lake, the former National Security Adviser to the United States President, dated 22 April 1994. In this press release, Lake called on Rwandan military leaders, including Bizimungu, to intervene to prevent the mass killings of civilians that were going on in Rwanda at the time. The Chamber has also considered Prosecution Exhibit 187, which is a press release by Human Rights Watch dated 18 May 1994 documenting the significant role of soldiers in the massacres that were committed in Rwanda during the period from April to July 1994. The report further identifies Bizimungu as one of the military officers capable of halting the massacres.2127 The Chamber recalls that in cross-examination, Bizimungu testified that the views expressed in these documents were not a correct reflection of the events that unfolded in Rwanda at the time. Bizimungu claimed that human rights activists Alison Des Forges and Monique Mujawayaria, who were biased in favour of the RPF, gave officials of the United States Government such as Lake a distorted view of the situation that prevailed in Rwanda. Bizimungu also lamented the fact that these officials pinned all the blame on him for what was happening in Rwanda and overlooked other senior

officials of the Rwandan government.2128 1211. The Chamber has also reviewed Prosecution Exhibits 191 and 192, which are United States Government declassified documents referring to telephone conversations between Prudence Bushnell, the then United States Deputy Secretary of States for African Affairs, and Bizimungu regarding the killings of civilians in Rwanda in 1994. These documents indicate that Bushnell spoke with Bizimungu over the phone on two occasions and requested him to intervene to stop the killings of civilians. The first conversation took place on 27 April 1994. Among other things, Bushnell informed Bizimungu that the United States Government was looking to him personally in his capacity as Chief of Staff of the Army to restore order in Rwanda and stop the killings. In his response to Bushnell’s request, Bizimungu stated that it was difficult for him to restore order within the country while the hostilities between his forces and the RPF were continuing. Bizimungu requested Bushnell to get the RPF to agree to a ceasefire and he stated that once the RPF agreed to a ceasefire, he would only require 48 hours to restore order.2129 1212. On 12 May 1994, Bushnell repeated her request to Bizimungu to stop the killings in Rwanda. Bizimungu is alleged to have reiterated that he would require a cessation of hostilities between his forces and the RPF before he could restore

order and prevent the killings. Bushnell then suggested to Bizimungu that as a gesture of goodwill, he should consider freeing the refugees at the Hotel Mille Collines in Kigali and at Cyangugu Stadium. Bizimungu responded that he had no way of contacting Cyangugu.2130 In the course of this conversation, Bizimungu expressed his misgivings that he was being singled out for criticism and that calls to restore order were being almost exclusively directed towards him rather than to other members of the government who were in control of the country. Bizimungu also reportedly told Bushnell that the allegations that his forces were committing massacres were lies fabricated by the RPF and by human rights activist Monique Mujawamaria.2131 The Chamber notes that Bizimungu did not dispute the fact that he had telephone conversations with Bushnell on the dates suggested in these exhibits. 2127 T. 12 December 2007, p. 67. 2128 T. 12 December 2007, pp. 66-69. 2129 Prosecution Exhibit 192. 2130 Prosecution Exhibit 191. 2131 T. 12 December 2007, pp. 57-59. 17 May 2011 274/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1213. The Chamber notes that these telephone conversations between Bushnell and Bizimungu are also the subject of another United States Government declassified document tendered into evidence as Prosecution Exhibit 193. The Chamber considers that this document corroborates the contents of Prosecution Exhibits 191 and 192. In his comments on this document, Bizimungu reiterated his claim that the views of the United States Government officials as reflected in Exhibit 193 were based on distorted views of the Rwandan crisis that they had received from Monique Mujawamaria and Alison Des Forges, who were biased in favour of the RPF.2132 1214. The Chamber has also reviewed Prosecution Exhibit 194, which is a report of a meeting between Bizimungu and José Ayala-Lasso, the then UN High Commissioner for Human Rights, during the latter’s visit to Rwanda on 11-12 May 1994. According to the report, Bizimungu admitted in the course of his conversation with Ayala-Lasso that forces linked to the Rwandan government had committed massacres against Tutsi civilians and he expressed regret for the soldiers’ role in what he characterised as “excesses” (“débordements”). The report further suggests that Bizimungu informed Ayala-Lasso that the atrocities had been precipitated by anger resulting from the death of President Habyarimana. Bizimungu is also reported as saying that the RPF and a particular detachment of UNAMIR were responsible for the death of the President and that Bizimungu’s forces were incapable of controlling the unrest.

1215. The Chamber recalls that in cross-examination, Bizimungu admitted that he met with Ayala-Lasso on 12 May 1994.2133 Bizimungu testified that Ayala-Lasso’s visit was an indication that “the horror of what was occurring in Rwanda was calling for the attention of those throughout the world”.2134 Bizimungu admitted that during this meeting with Ayala- Lasso, he (Bizimungu) expressed regret for the excesses committed by certain soldiers under his command. Bizimungu stated: [Ayala-Lasso] came; we spoke. I believe we are the 12th. But I know what events occurred at Camp Kigali. I know that my predecessor talked to me about certain soldiers within the Presidential Guard. An investigation was not led, but certain soldiers within the Presidential Guard were talked about. ... However, I do not know, precisely, what happened elsewhere. I have not identified the individuals. I say that, yes, some soldiers within the armed forces regrettably took … allegedly took part in the killings. I have said this; I confirm it.2135 1216. However, Bizimungu emphasised that the report did not ascribe to him any role in those crimes. Bizimungu testified: However, there is an important point that differs in nature from what we’ve just said. [Ayala-Lasso] does not say [in his report] that Bizimungu is responsible for the killings, he says that I regret them and that I recognised certain facts.2136 1217.

The Chamber notes that in Bizimungu’s evidence on his knowledge of the crimes committed by soldiers, he expressly acknowledged that he knew on 12 May 1994 that his subordinates may have committed crimes against civilians. He suggested, however, that any 2132 T. 12 December 2007, pp. 67-69. 2133 T. 7 December 2007, pp. 5-7; T. 12 December 2007, p. 55. 2134 T. 13 December 2007, p. 39. 2135 T. 12 December 2007, p. 55. 2136 T. 12 December 2007, p. 55. 17 May 2011 275/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T crimes committed by Rwandan soldiers were isolated incidents rather than widespread or systematic crimes. When asked by Prosecution counsel whether he acknowledged “that forces linked to the government of Rwanda participated in large-scale killing of Tutsis between April and July 1994 in Rwanda”, Bizimungu rejected that proposition. He stated, “[S]oldiers of the Rwandan Army, to my knowledge, did not take part in the killings. So I cannot confirm this fact. Maybe some individual or others might have killed … But going to attack? Well, I do not know.”2137 Instead, Bizimungu claimed that it was RPF soldiers disguised as soldiers of the Rwandan Army who perpetrated killings against civilians in order to tarnish the image of forces under his command.2138 1218. Having reviewed the exhibits referred to above, the Chamber is satisfied that their cumulative weight provides probative evidence that Bizimungu knew or had reason to know that soldiers under his command had committed or were about to commit crimes. While the Chamber accepts that these reports did not furnish Bizimungu with specific information implicating soldiers in the crimes committed at the various locations identified in the Indictment, the reports nevertheless contained information that should have alerted him to the prospect that his

subordinates had committed or were about to commit crimes similar to those underlying the Indictment against him. At a minimum, the numerous complaints from representatives of the United States Government, the UN and Human Rights Watch would have indicated to a responsible commander a need for further investigation in order to ascertain whether offences were being committed or were about to be committed by his subordinates.

1219. The Chamber finds that despite having knowledge or reason to know of the crimes committed by his subordinates at the Josephite Brothers compound in Kigali on 7 June 1994 and at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama during April and May 1994, Bizimungu failed to take necessary and reasonable measures to prevent those crimes or punish the perpetrators. 1.5.2 Ndindiliyimana 1.5.2.1 Killing of Tutsi by Gendarmes in Nyaruhengeri, Including at Kansi Parish, and the Provision of a Grenade to Interahamwe by Gendarmes at Ndindiliyimana’s Residence 1.5.2.1.1 Introduction 1220. The Indictment alleges that on 20, 21 and 22 April 1994, massacres committed in Nyaruhengeri “were orchestrated and supervised by gendarmes assigned to guard Augustin Ndindiliyimana’s family”. Specifically, the Indictment alleges that these gendarmes “provided weapons and fuel to the killers who caused the death of over a thousand people in Nyaruhengeri and its vicinity, particularly in Kansi Parish where more than 10,000 Tutsi had sought refuge”.2139 The Indictment further alleges that gendarmes guarding Ndindiliyimana’s residence provided two grenades to an Interahamwe militiaman called Kajuga with the order to use them against Tutsi. It is alleged that Kajuga subsequently used these grenades in an attack against Tutsi who had gathered at the Nyaruhengeri secteur office, and that the attack injured several Tutsi including “blowing off both legs” of a Tutsi man named Adolphe 2137 T. 12 December 2007, pp. 56-57. 2138 T. 12 December 2007, p. 55. 2139 Indictment, para. 73. 17 May 2011 276/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Karakesi.2140 The Indictment alleges that Ndindiliyimana bears superior responsibility for these crimes.2141 1221. The above allegations raise issues relevant to the proper pleading of the Indictment. Accordingly, the Chamber will deal with these issues at the outset before considering the evidence presented by the Prosecution and the Defence.

1222. The Chamber finds that the Indictment specifically identifies the orchestrators and supervisors of the massacres in Nyaruhengeri as being gendarmes “assigned to guard” Ndindiliyimana’s residence. Furthermore, the relevant sections of the Prosecution Pre- Trial2142 and Closing Briefs2143 as well as questions posed by the Prosecution during cross- examination of Defence witnesses confirm that it was the Prosecution’s intention to demonstrate that Ndindiliyimana is criminally responsible, pursuant to Article 6(3) of the Statute, for crimes committed by the gendarmes “assigned to guard” his Nyaruhengeri residence.2144 Notwithstanding this, the Chamber finds that the Prosecution also led evidence suggesting that gendarmes other than those assigned to guard Ndindiliyimana’s residence, as well as Presidential Guards and Interahamwe, participated in the attacks and massacres in Nyaruhengeri.

1223. The Chamber recalls that “charges against an accused and the material facts supporting those charges must be pleaded with sufficient precision in an indictment so as to provide notice to the accused [and that it is only exceptionally that defects in an indictment] may be cured … [by providing] the accused with timely, clear, and consistent information detailing the factual basis underpinning the charge”.2145 1224. In this instance, the Chamber finds that in identifying the orchestrators and supervisors of the crimes in Nyaruhengeri as being gendarmes “assigned to guard” Ndindiliyimana’s residence, the Prosecution drafted its Indictment very precisely and narrowly. Ndindiliyimana, therefore, only had notice of crimes committed by these specific gendarmes. It follows that evidence suggesting that gendarmes other than those assigned to guard Ndindiliyimana’s residence participated in the massacres at Kansi Parish may not be used as a basis for establishing criminal responsibility pursuant to Article 6(3) of the Statute.2146 1225. Accordingly, the Chamber will now turn its attention to assessing whether the Prosecution has proved beyond reasonable doubt whether gendarmes “assigned to guard” Ndindiliyimana’s residence orchestrated and supervised the massacres in Nyaruhengeri and whether Ndindiliyimana is criminally responsible as a superior for these crimes. 2140 Indictment,

paras. 74-75. 2141 Indictment, para. 61. 2142 Pre-Trial Brief, para. 92 (“the massacre of over one thousand Tutsi refugees, on 20, 21 and 22 April 1994 at Kansi church (Nyaruhengeri), by gendarmes, assigned to guard Augustin Ndindiliyimana's family, and Interahamwe”). 2143 Pre-Trial Brief, para. 773: “The Prosecution submits that the evidence demonstrates beyond any reasonable doubt that those gendarmes assigned to protect the family and home of ... Ndindiliyimana participated in the terrible crimes at Nyaruhengeri.” (emphasis added) 2144 T. 23 June 2008, p. 26; T. 2 June 2008, p. 24. 2145 Muvunyi Appeal Judgement, paras. 18, 20. 2146 Muvunyi Appeal Judgement, paras. 33-47, holding that it was improper for the Trial Chamber to consider the role played by ESO Camp soldiers where the Indictment specifically identified the perpetrators to be soldiers from the Ngoma Camp. 17 May 2011 277/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.2.1.2 Kansi Parish 1.5.2.1.2.1 Evidence 1.5.2.1.2.1.1 Prosecution Evidence Prosecution Witness GFM 1226. Witness GFM, a Tutsi, testified that he was a survivor of the attack at Kansi Parish that commenced on 21 April 1994. On 19 April, he took refuge at Kansi Parish from attacks by Hutu and Interahamwe militia. When the witness arrived at the parish, he saw approximately 10,000 other Tutsi civilians who had fled from various neighbouring regions.2147 Following his arrival, Hutu and Interahamwe carrying traditional weapons surrounded the Tutsi refugees at the parish.2148 The bourgmestre of the commune, Charles Kabeza, then arrived and “promised to send police officers” to ensure the safety of the Tutsi refugees. Shortly thereafter, two armed police officers wearing military uniforms and yellow berets arrived at the parish and remained there during the night of 19 April.2149 1227. On 20 April, four more police officers arrived at the parish.2150 This was followed by the arrival of a red vehicle carrying six gendarmes wearing camouflage military uniforms and red berets. The six gendarmes spoke briefly to the police officers and then left. The police officers remained at the parish.2151 1228. On 21 April, at around 2.00 p.m., Witness GFM observed that the same six gendarmes whom he had seen the previous

day returned to the parish and met with the police officers who were already there. The gendarmes and the police officers then began to attack the parish and opened fire and threw grenades at the Tutsi taking refuge there. The Hutu and Interahamwe who had surrounded the parish attacked fleeing Tutsi refugees with their machetes.2152 According to the witness, the Tutsi were unable to defend themselves. The witness managed to escape but others, including several members of his family, were killed in the attack.2153 Prosecution Witness GFS 1229. Witness GFS was a neighbour of Ndindiliyimana in Nyaruhengeri commune. She had known Ndindiliyimana since 1983 and testified that prior to 6 April 1994, relations between the two of them were good. She explained that her house was situated approximately 30 metres from Ndindiliyimana’s residence.2154 1230. Shortly before Easter in 1994, the witness observed Ndindiliyimana arrive at his Nyaruhengeri residence together with members of his family and five to six gendarmes.2155 At some point after Easter, Ndindiliyimana returned to Kigali. His family, however, remained 2147 T. 19 September 2005, p. 55 (ICS). 2148 T. 19 September 2005, pp. 54-55 (ICS). 2149 T. 19 September 2005, pp. 55-57 (ICS). 2150 T. 19 September 2005, p. 57. 2151 T. 19 September 2005, p. 55 (ICS). 2152 T. 19 September 2005, pp. 58-59. 2153 T. 19 September 2005, pp. 58-59. 2154 T. 27 September 2004, p. 19. 2155 T. 27 September 2004, p. 35; T. 28 September 2004, pp. 38-39. 17 May 2011 278/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T at the residence in Nyaruhengeri guarded by the five to six gendarmes who had arrived with them.2156 1231. Witness GFS testified that between 6 and 21 April 1994, there was no violence in Nyaruhengeri commune and that the violence first commenced on 21 April with the attack on Tutsi at Kansi Parish.2157 In the afternoon of 21 April, the witness saw two “whitish” vehicles travelling at high speed towards Ndindiliyimana’s residence. One of the vehicles was carrying around 20 gendarmes who were wearing military uniforms. The other vehicle was carrying armed civilians who the witness believed were Interahamwe.2158 Witness GFS saw these gendarmes stop at Ndindiliyimana’s residence. The witness subsequently learned from an Interahamwe member that these gendarmes, together with the gendarmes who were guarding the residence, then distributed weapons to Interahamwe and that those were the weapons that were “used during [the] massacres”. The witness did not, however, witness this distribution of weapons herself.2159 1232. After a brief period, the 20 gendarmes and the Interahamwe who had recently arrived, together with the gendarmes guarding Ndindiliyimana’s residence, boarded the vehicles and drove away in the direction of Kansi Parish. The witness then heard the sound of gunshots and a grenade explosion coming

from the direction of Kansi Parish, which was approximately two and a half kilometres away.2160 The witness testified that she did not witness the attack at Kansi Parish. However, “someone who was able to flee or escape those massacres” went to her house after the attack and explained to her how Tutsi had been attacked.2161 Prosecution Witness FAV 1233. Witness FAV lived in Giyambo cellule in Nyaruhengeri.2162 He testified that he had known Ndindiliyimana since he was a child and that they had been neighbours.2163 He recalled that prior to Easter in 1994, there were no gendarmes stationed at Ndindiliyimana’s Nyaruhengeri residence. However, during Easter he witnessed Ndindiliyimana’s family arrive in Nyaruhengeri together with six gendarmes.2164 Following the death of President Habyarimana, the witness observed more gendarmes arrive, taking the total number of gendarmes stationed at Ndindiliyimana’s residence from six to twenty.2165 1234. The witness testified that from 15 April, people from Nyakizu, Lunyinya, Ngishavu and Kigembe communes began gathering at Kansi Parish to take refuge there.2166 He explained that between 15 and 18 April, houses of Tutsi residents were burned down and gendarmes distributed gasoline to people for this purpose.2167 2156 T. 27 September 2004, p. 35; T. 28 September 2004, p. 38. 2157 T. 27 September 2004, p. 16; T. 28 September 2004, p. 47. 2158 T.

27 September 2004, pp. 18, 23; T. 28 September 2004, pp. 40-43. 2159 T. 27 September 2004, pp. 22, 27, 33; T. 28 September 2004, pp. 39, 51. 2160 T. 27 September 2004, p. 23; T. 28 September 2004, pp. 42, 49. 2161 T. 27 September 2004, p. 23. 2162 T. 21 September 2004, p. 29. 2163 T. 21 September 2004, p. 17. 2164 T. 21 September 2004, pp. 25-26. 2165 T. 21 September 2004, p. 26. 2166 T. 21 September 2004, p. 16. 2167 T. 21 September 2004, pp. 28-29. 17 May 2011 279/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1235. Between 3.00 and 4.00 p.m. on 21 April 1994 (the day that the Kansi Parish massacre commenced), the witness was standing with a group of people on the road near Ndindiliyimana’s residence when a Pajero vehicle carrying members of the Presidential Guard and a Hilux vehicle carrying Interahamwe approached them.2168 The Presidential Guards asked the group for directions to Ndindiliyimana’s residence, and a member of the group (Ignace Habimana) directed them to Ndindiliyimana’s residence. During this conversation, the witness heard Interahamwe inform the Presidential Guards that the witness and his group were Tutsi. He then heard the Presidential Guards say: “Let us first go to Kansi; we will solve their problem … later on”;2169 and “Leave them alone for now”.2170 The Presidential Guards and Interahamwe then drove away towards Ndindiliyimana’s house.

1236. Witness FAV testified that the distance from where he was standing to Ndindiliyimana’s house was between 150 to 200 metres.2171 When the Presidential Guards and Interahamwe drove away, the witness and his group followed them towards Ndindiliyimana’s residence until they were less than ten metres away.2172 The witness saw that some of the Presidential Guards were carrying firearms when they arrived at the house.2173 The Presidential Guards and Interahamwe then collected firearms and grenades from the gendarmes guarding Ndindiliyimana’s house. The Presidential Guards and Interahamwe, together with the gendarmes guarding Ndindiliyimana’s house and Ndindiliyimana’s wife, then boarded three vehicles: a Pajero, a red double-cabin Hilux and another Hilux at Ndindiliyimana’s house. The group then drove away in the direction of Kansi Parish.2174 The witness estimated that the group numbered approximately 50 people in total.2175 1237. The witness explained that approximately 15 to 20 minutes after the gendarmes, Presidential Guards and Interahamwe left Ndindiliyimana’s residence, he heard the sound of gunshots coming from the direction of Kansi Parish.2176 He testified that he did not witness any attack at Kansi Parish himself, but that at approximately 6.00 p.m. he was at his home when he was visited by some people who had escaped from the attack at the parish. The witness was

told that “those who had been at Ndindiliyimana’s house, police and soldiers had attacked [them], had opened fire”.2177 He also testified that the killings at Kansi Parish lasted approximately one week.2178 Prosecution Witness ANC 1238. Witness ANC testified that he worked for Ndindiliyimana from April until June 1994, providing both security for Ndindiliyimana’s residence and personal security for 2168 T. 23 September 2004, p. 31. 2169 T. 23 September 2004, p. 31. 2170 T. 23 September 2004, p. 33. 2171 T. 23 September 2004, p. 67. 2172 T. 23 September 2004, p. 32. 2173 T. 23 September 2004, p. 30. 2174 T. 21 September 2004, p. 31; T. 23 September 2004, pp. 30-33, 42-43. 2175 T. 23 September 2004, p. 30. 2176 T. 21 September 2004, pp. 29-31. 2177 T. 21 September 2004, p. 31. 2178 T. 23 September 2004, p. 43. 17 May 2011 280/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana as part of his escort.2179 He stated that on or after 15 April, he accompanied Ndindiliyimana as his escort on three separate missions.2180 1239. The witness testified that on his third mission, he accompanied Ndindiliyimana on a trip to Nyaruhengeri.2181 On their way, they stopped at a roadblock close to Kansi Parish where they saw “many” refugees.2182 The roadblock was being manned by Interahamwe and there were other gendarmes in the vicinity. The Interahamwe informed them that Tutsi had taken refuge in the parish.2183 The witness testified that upon hearing this, Ndindiliyimana informed the Interahamwe that “he didn’t want people [at Kansi Parish]”. The witness and Ndindiliyimana then continued on to Ndindiliyimana’s Nyaruhengeri residence.2184 1240. When they arrived at Ndindiliyimana’s house, the witness saw gendarmes there. The witness spent the night at Ndindiliyimana’s house (in the garage) and then left with Ndindiliyimana the next morning in order to return to Kigali.2185 On their way back, they drove past Kansi Parish. Witness ANC explained that although the car they were travelling in was “driving fast”, he could see that “on either side of the road there were corpses lying here and there”.2186 He also testified that they stopped a short distance from Kansi Parish and asked

people who were in the area what had happened. They were informed that people “were trying to find a way to remove the corpses”.2187 The witness and Ndindiliyimana then returned to Kigali. Prosecution Witness GFT 1241. Witness GFT lived in Nyaruhengeri and was married to a Tutsi. She had known Ndindiliyimana since her childhood.2188 In April 1994, she saw Ndindiliyimana’s wife and children arrive in Nyaruhengeri. The witness testified that they came for Easter and that they were accompanied by gendarmes who were wearing red berets. The witness did not, however, see Ndindiliyimana.2189 1242. The witness claimed that she visited Ndindiliyimana’s Nyaruhengeri house on three occasions in April 1994 in order to help one of Ndindiliyimana’s children who was suffering from malaria. She testified that gendarmes were at Ndindiliyimana’s house on the occasions she visited2190 and that “at the beginning of the month of April, there were about six 2179 T. 29 May 2006, pp. 45-46. 2180 T. 29 May 2006, pp. 46, 49, 55-56. The first mission took place on or around 15 April 1994, when they went to the MRND headquarters in Kimihurura. The second mission took place the following day, when the witness escorted Ndindiliyimana to the government headquarters in Murambi, Gitarama, stayed there for around two days and then returned to Kigali. Witness ANC’s final mission also took place during April,

sometime after the second mission, when he escorted Ndindiliyimana to the government headquarters in Gitarama before travelling to the gendarme camp at Nyanza and then to Ndindiliyimana’s house in Nyaruhengeri. 2181 T. 29 May 2006, pp. 47, 60. 2182 T. 29 May 2006, p. 60. 2183 T. 29 May 2006, p. 60. 2184 T. 29 May 2006, p. 60. 2185 T. 29 May 2006, pp. 47, 60-61; T. 30 May 2006, pp. 1-2. 2186 T. 30 May 2006, p. 1. 2187 T. 30 May 2006, p. 1. 2188 T. 10 January 2005, p. 18. 2189 T. 10 January 2005, p. 18. 2190 T. 10 January 2005, p. 19. 17 May 2011 281/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T gendarmes … but later the number increased … [and] there were about 20 approximately.”2191 1243. Witness GFT explained that there had been no violence in Nyaruhengeri commune immediately following the death of the President2192 and that violence in the area first broke out in Kabilizi around 16 April, when some of the houses were set on fire. Witness GFT also “found out” that refugees from Gishyamvu and Gikongoro had begun to gather at Kansi Parish and that on 21 April, the refugees who were at Kansi had been killed.2193 The witness did not claim to have personally witnessed either of these events. 1.5.2.1.2.1.2 Defence Evidence The Accused Ndindiliyimana 1244. Ndindiliyimana testified that he visited his home in Nyaruhengeri three times following the death of President Habyarimana. He claimed that he did not have direct contact with his family in Nyaruhengeri and that he first visited his home there on 15 April 1994. When he arrived at his home, he found three gendarmes of which he had had no prior knowledge. These gendarmes had been “gathered” and organised by his wife. Ndindiliyimana testified that on this occasion, he concluded that there was no threat to his home and that he left the next morning to return to Kigali.2194 1245. Ndindiliyimana next visited his home in Nyaruhengeri on 22 April. He

explained that a day earlier, on 21 April, a broadcast had been made over Radio Muhabura claiming that “Ndindiliyimana had been killed”.2195 He therefore travelled to his home in Nyaruhengeri to reassure his family that he was still alive. On his way, Ndindiliyimana stopped at the École des sous officiers (“ESO”) in Butare. There he was informed that his home was on fire and was “under threat”.2196 1246. Ndindiliyimana explained that there were two routes one could travel from Butare to his home in Nyaruhengeri. There was a longer route using the road going to Bujumbura, which passed by Kansi Parish, or a shorter route via Rango centre.2197 On this occasion, he took the shorter of the two routes home and therefore did not pass by Kansi Parish.2198 On his way home, Ndindiliyimana stopped at the house of the bourgmestre Charles Kabeza, where he met with Kabeza and his wife. They informed him that “people were being killed … [and that] the situation was very serious. The RPF was launching attacks, and people were embarking on reprisals.”2199 He was also informed that “the Barundi had killed people who were at Kansi”.2200 1247. Ndindiliyimana then returned home. On this occasion, he did not stay long and he instructed his family members that the situation was very serious and that it was absolutely 2191 T. 10 January 2005, pp. 32, 58. 2192 T. 10 January 2005, p. 17. 2193 T. 10 January 2005, pp. 17, 20, 54. 2194 T. 17 June 2008, pp. 66-67; T. 20 June 2008, p. 60. 2195 T. 18 June 2008, p. 13. 2196 T. 18 June 2008, pp. 18-20. 2197 T. 18 June 2008, pp. 28-29. 2198 T. 18 June 2008, p. 20. 2199 T. 18 June 2008, p. 20. 2200 T. 23 June 2008, p. 26. 17 May 2011 282/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T necessary for them to leave the area. Ndindiliyimana then left and went to Gitarama.2201 Ndindiliyimana explained that his family members realised that the situation was dangerous and therefore left the area.2202 1248. Notwithstanding the above, Ndindiliyimana testified that on 3 May, he visited his home in Nyaruhengeri a third time and that his family was still there. On this occasion, he met a nun called Formelatta who was staying at his house. Formelatta told him what had happened at Kansi Parish. This prompted Ndindiliyimana to visit Kansi Parish, which he saw had been damaged.2203 1249. After spending the night at home, Ndindiliyimana again returned to Kigali.2204 He refuted all assertions that gendarmes guarding his Nyaruhengeri residence had participated in any attacks at Kansi Parish and claimed that had this been the case he “would have known”.2205 Ndindiliyimana Defence Witness CBP48 1250. Witness CBP48 testified that he lived approximately 600 metres away from Ndindiliyimana’s Nyaruhengeri residence and that he would often visit an individual who lived approximately 20 metres from Ndindiliyimana’s house. Following the death of President Habyarimana, the witness saw between three and four gendarmes at Ndindiliyimana’s house.2206 1251. Witness CBP48 learned of the killings that took place at

Kansi Parish from Gacaca hearings. Specifically, he learned that “Buvumo and Rusagara went to Kansi to kill the inhabitants of Kansi and they did so in collaboration with the neighbours of the Kansi inhabitants”. Furthermore, “a former soldier arrived and lobbed a grenade into the group of refugees … [after which] the attackers used their machetes and clubs to attack” the refugees at Kansi Parish.2207 1252. The witness explained that the distance between Kansi Parish and Ndindiliyimana’s house was two kilometres. He refuted assertions that gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence participated in the attacks at Kansi Parish. He also refuted the claim that gendarmes guarding Ndindiliyimana’s house distributed petrol and weapons for the purpose of killing Tutsi and that on 21 April, Presidential Guards and Interahamwe visited Ndindiliyimana’s Nyaruhengeri residence in order to engage in killings in the area.2208 Ndindiliyimana Defence Witness CBP44 1253. Following the death of the President, Witness CBP44 went to Kansi to live with members of his family.2209 He recalled that some two weeks after the President’s death, 2201 T. 18 June 2008, p. 21. 2202 T. 18 June 2008, p. 30. 2203 T. 18 June 2008, p. 51. 2204 T. 18 June 2008, pp. 51-53. 2205 T. 23 June 2008, p. 26. 2206 T. 5 February 2008, pp. 38-39, 55 (ICS). 2207 T. 5 February 2008, pp. 46, 56 (ICS). 2208 T. 5 February 2008, pp. 41, 46, 53, 56 (ICS). 2209 T. 14 February 2008, p. 61. 17 May 2011 283/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T refugees from Gikongoro, Nyakizu and Kigali began gathering at Kansi Parish together with their cattle and personal effects. There were approximately 1,000 to 2,000 refugees.2210 1254. Witness CBP44 testified that on 20 April, there was a hostile atmosphere and he saw a group of youths heading towards Kansi Parish. These youths were armed with grenades and machetes and were making comments that suggested that they were going to Kansi Parish in order to steal cattle from the refugees there.2211 As a result, on 21 April, the witness went to Kibilizi to inform the authorities of the developments in Kansi. He returned to Kansi the next day (on 22 April). On his way back, he stopped at a local shop from where he could see Kansi Parish in the distance. The witness testified that he was able to see what was happening at Kansi Parish and that he heard the sound of gunshots and grenades exploding. He also heard other people say that the refugees had been “attacked … cut up … and shot at” by residents of Kigembe.2212 According to Witness CBP44, the attack at Kansi occurred at around 10.00 a.m. on 22 April.2213 1255. In the morning of 23 April, Witness CBP44 went to Kansi Parish. There he saw “an enormous number” of dead bodies and “attackers” who were “finishing” those who were not yet dead.2214 The witness

claimed that the people who attacked Kansi Parish came from Kansi, Gishamvu, Nyakizu, Gikongoro, Kigembe and other places. He did not see gendarmes assigned to guard Ndindiliyimana’s residence participate in the attacks at Kansi Parish.2215 1256. Witness CBP44 refuted assertions that gendarmes distributed petrol or weapons for the purpose of killing Tutsi. He explained that prior to the events at Kansi Parish, there were no problems in the area.2216 Lastly, he testified that he did not remember hearing anybody say that gendarmes were involved in the attack at Kansi and that he himself did not see any gendarmes participate in the attack. 2217 Ndindiliyimana Defence Witness CBP77 1257. Defence Witness CBP77 lived in Nyaruhengeri.2218 On 15 April 1994, he saw Tutsi refugees gathering in Kansi Parish.2219 He estimated that there were approximately 1,000 Tutsi refugees there and he explained that the refugees had with them their personal belongings as well as their livestock.2220 1258. At approximately 11.00 a.m. on 21 April, Witness CBP77 together with a group of about 300 Hutu attempted to steal the personal possessions of the Tutsi refugees at Kansi Parish. He explained, however, that because the group of Hutu was outnumbered their attempt failed.2221 2210 T. 14 February 2008, pp. 62, 73. 2211 T. 14 February 2008, pp. 62-63, 72. 2212 T. 14 February 2008, pp. 63, 65. 2213 T. 14 February 2008, pp. 63, 75. 2214 T. 14 February 2008, p. 63. 2215 T. 14 February 2008, pp. 64-65. 2216 T. 14 February 2008, pp. 64-65, 67, 72, 80. 2217 T. 14 February 2008, p. 65. 2218 T. 14 February 2008, pp. 31, 38. 2219 T. 14 February 2008, pp. 2, 20. 2220 T. 14 February 2008, pp. 3-4. 2221 T. 14 February 2008, pp. 4, 24, 30. 17 May 2011 284/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1259. The following day, 22 April, Witness CBP77 joined a much larger group of approximately 3,000 Hutu from surrounding areas and went to Kansi Parish. Members of the Hutu group were armed with clubs, machetes and sticks. He stated that the Tutsi refugees attempted to defend themselves by throwing stones at the Hutu crowd.2222 1260. The witness testified that between 10.00 and 11.00 a.m. on 22 April, a former soldier whom he knew as Nzabambarirwa arrived at Kansi Parish together with six Burundian refugees. Nzabambarirwa and his group were armed with rifles and grenades.2223 Nzabambarirwa informed the Hutu crowd that Radio Muhabura had announced that Nyaruhengeri had been attacked by the RPF. Nzabambarirwa then launched a grenade at the Tutsi refugees in Kansi Parish and the Hutu crowd began attacking the refugees.2224 The witness claimed that once this attack began, he was initially prevented from leaving by the crowd of Hutu and that it was not until an hour later when the shooting had stopped that he was able to leave and return home. He described seeing many dead bodies lying in the area.2225 1261. On 22 April, Witness CBP77 returned to Kansi Parish in order to loot the property of the Tutsi refugees who had been killed the day before.2226 He testified that at no time during the Kansi Parish attack

did he see gendarmes participate in the attacks against Tutsi refugees.2227 Ndindiliyimana Defence Witness Marie Nakure 1262. Witness Marie Nakure is the wife of Augustin Ndindiliyimana.2228 In 1994, Marie Nakure went to their family home in Nyaruhengeri for the Easter period. She testified that Ndindiliyimana did not accompany her.2229 1263. Following the death of President Habyarimana, Marie Nakure travelled to Butare. There she met the Butare gendarmerie commander, Habyarabatuma, who arranged for three gendarmes to be sent to guard her house in Nyaruhengeri.2230 1264. Initially, Marie Nakure stated that Ndindiliyimana visited Nyaruhengeri twice after the President’s death. The first occasion was around 15 April and the second was on 22 April. She was not, however, sure of the exact dates and confirmed that in a prior statement she had claimed that Ndindiliyimana had visited Nyaruhengeri in early May.2231 1265. Marie Nakure also acknowledged that in a prior statement she had said that “people were fleeing to Kansi Parish”. She refuted assertions that gendarmes guarding her Nyaruhengeri home participated in any attacks against Tutsi.2232 2222 T. 14 February 2008, pp. 5, 24, 34, 52. 2223 T. 14 February 2008, pp. 4-5, 24. 2224 T. 14 February 2008, pp. 5-6, 39. 2225 T. 14 February 2008, pp. 6, 33, 37. 2226 T. 14 February 2008, pp. 7, 24. 2227 T. 14 February 2008, pp. 6, 25. 2228 T. 2 June 2008, p. 3. 2229 T. 2 June 2008, p. 5. 2230 T. 2 June 2008, pp. 6-7, 22, 29. 2231 T. 2 June 2008, pp. 7, 10, 16, 20, 21. 2232 T. 2 June 2008, pp. 13-14, 24-25, 27. 17 May 2011 285/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana Defence Witness Leon Ngarukiye 1266. Witness Leon Ngarukiye visited his family home in Kansi on 1 June 1994.2233 He testified that following his return, his father informed him that a group of Burundians from Kigembe and Gishavu had killed Tutsi at Kansi Parish. These groups had gone to Kansi Parish in order to loot property and cattle.2234 Ndindiliyimana Defence Witness CBP15 1267. Witness CBP15 testified that she was related to Ndindiliyimana.2235 She claimed that Ndindiliyimana’s family arrived in Nyaruhengeri around 6 April 1994 and that she did not see Ndindiliyimana in Nyaruhengeri until June 1994.2236 1268. Following the death of the President, Witness CBP15 saw three gendarmes at Ndindiliyimana’s residence. She explained that “[e]very now and then” she would go to the residence and that at no point did she see any weapons being carried by any of the gendarmes stationed there.2237 1269. Witness CBP15 testified that the massacres in Nyaruhengeri began around 22 April, but she stated that she did not see the perpetrators of the attacks at Kansi Parish.2238 1.5.2.1.2.2 Deliberations 1270. There is no dispute that Tutsi refugees were killed at Kansi Parish. There is further no dispute that during April 1994, gendarmes were assigned to guard Ndindiliyimana’s Nyaruhengeri residence (although the number of gendarmes is disputed). The key issue to be decided is whether there is a nexus between the gendarmes assigned to guard Ndindiliyimana’s residence and the attack at Kansi Parish.

1271. In support of the allegation, the Prosecution relies on Witnesses GFM, GFS, FAV and ANC. The Chamber will now consider the evidence of these witnesses in assessing whether Ndindiliyimana was aware of the presence of the refugees at Kansi Parish in April 1994, the number of refugees that were present, the date of the attack at the parish and, finally, the identity of the perpetrators and the involvement of gendarmes in that attack. 1.5.2.1.2.2.1 Ndindiliyimana’s Awareness of Refugees at Kansi Parish 1272. The Chamber recalls that Prosecution Witness ANC testified that he accompanied Ndindiliyimana on a visit to Nyaruhengeri sometime after 15 April. Witness ANC further testified that when Ndindiliyimana’s convoy was travelling to Nyaruhengeri on this occasion, they saw refugees at Kansi Parish. For reasons already discussed in relation to the allegations set out in paragraph 53 of the Indictment, the Chamber finds that Witness ANC’s testimony lacks credibility. 2233 T. 13 February 2008, p. 16. 2234 T. 13 February 2008, p. 21. 2235 T. 5 February 2008, p. 4 (ICS). 2236 T. 5 February 2008, p. 6 (ICS). 2237 T. 5 February 2008, pp. 5, 27 (ICS). 2238 T. 5 February 2008, pp. 27, 29-30 (ICS). 17 May 2011 286/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1273. Based on Ndindiliyimana’s own admission, the Chamber finds that Ndindiliyimana travelled to Nyaruhengeri in April and May 1994. However, he disputes that he was ever aware of the situation at Kansi Parish. He attributes his lack of awareness to the fact that when he travelled to Nyaruhengeri in April and May 1994, he used a shortcut that did not pass by Kansi Parish.

1274. The Chamber finds Ndindiliyimana’s claimed lack of awareness not credible. The Chamber finds that Nyaruhengeri commune covers a small area and that it is highly unlikely that a large-scale gathering of refugees in such an environment would have escaped the notice of those visiting the area. This is supported by the evidence of Defence Witness CBP77, who claimed that he went to Nyaruhengeri on 15 April and “saw that refugees had come from Gikongoro” to Kansi Parish.2239 The Chamber therefore finds that Ndindiliyimana was aware that refugees had gathered at Kansi Parish. 1.5.2.1.2.2.2 The Number of Tutsi Refugees at Kansi Parish 1275. Prosecution Witness GFM provided the only firsthand account from a victim of the attack at Kansi Parish. His evidence was unchallenged by the Defence out of protest. The Defence objected to the hearing being held in closed session and claimed that they did not have a complete copy of a “report” made by the witness relating to Ndindiliyimana. Specifically, the Defence claimed that Witness GFM had originally said that the report was three pages long, but the French version of his statement said that the report was five pages long.2240 The Defence claimed that it was therefore unable to cross-examine the witness and reserved the right to do so at a later stage.

1276. In response to the Defence’s complaint, the Prosecution confirmed that in his statement, Witness GFM had indeed claimed that he had “drawn up” a report. The Prosecution further indicated that it had requested and received what was claimed by Witness GFM to be this “report” and that this document was then translated and disclosed to the Defence.2241 The Defence’s complaint, therefore, is that the witness provided differing information as to the exact length of this report in his statement.

1277. The Chamber finds that the Prosecution complied with its disclosure obligations and that the Defence had no valid reasons for not cross-examining this witness. The Chamber further finds that any issue the Defence may have had in relation to the page-count of this “report” could have been dealt with in cross-examination.

1278. The Chamber finds that Witness GFM’s evidence is largely convincing and consistent with his prior statements to the Tribunal investigators. Accordingly, the Chamber finds that there is no reason to doubt the credibility of Witness GFM. On the contrary, his evidence is corroborated to varying degrees by other Prosecution witnesses as well as Defence witnesses. The degree to which Witness GFM’s evidence is corroborated is set out in further detail below. 2239 T. 14 February 2008, p.

2. See also T. 14 February 2008, p. 62 (Defence Witness CBP44 claimed that the second week following the death of the President, he noticed the arrival of refugees at Kansi Parish). 2240 T. 19 September 2005, p. 26. 2241 T. 19 September 2005, pp. 26-27. 17 May 2011 287/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1279. Witness GFM testified that a significant number of Tutsi refugees from neighbouring communes gathered at Kansi Parish prior to 21 April 1994.2242 This is corroborated by Prosecution Witnesses GFS,2243 GFT and FAV2244 as well as Defence Witnesses CBP44,2245 CBP772246 and Marie Nakure.2247 1280. Each witness provided a different account of the number of refugees that had gathered at Kansi Parish: Witness GFM estimated that he saw some 10,000 Tutsi refugees; Witness FAV stated that he later exhumed some 10,000 bodies from Kansi Parish;2248 Witness CBP44 estimated there to be between 1,000 and 2,000 Tutsi refugees;2249 and Witness CBP77 estimated there to be around 1,000 Tutsi refugees.2250 The Chamber is of the view that the exact number of refugees is immaterial for the purpose of establishing criminal responsibility and finds that the passage of time may have had an effect on the ability of the witnesses to provide an accurate estimate of the number of Tutsi refugees at Kansi Parish. Notwithstanding this difficulty, the Chamber finds that several thousand Tutsi refugees had gathered at Kansi Parish prior to 21 April 1994. 1.5.2.1.2.2.3 Date of the Attack at Kansi Parish 1281. Witness GFM was clear that the attack at Kansi Parish occurred at around 2.00 p.m. on 21 April 1994.2251 Witness GFT also

claimed that the attack at Kansi occurred around 20 or 21 April. Neither Witness GFS nor FAV was present during the attack at Kansi Parish. However, both of these witnesses claimed to have heard the sounds of gunshots and grenades coming from the direction of Kansi Parish on 21 April. Witness GFS described that she heard such sounds in the afternoon,2252 while Witness FAV claimed that the attack started between 3.00 and 4.00 p.m.2253 1282. An analysis of the evidence reveals that there is also some corroborating Defence evidence that dates the attack at Kansi Parish to 21 April 1994. Witness CBP44 described that he saw youths armed with grenades and machetes heading towards Kansi on 20 April. Witness CBP44 was not present on 21 April and is unable to shed light on whether the attack at Kansi commenced on that date. However, Witness CBP44 testified that on 22 April, attacks at Kansi Parish were still taking place. Witness CBP77 testified that he was part of a group that unsuccessfully attacked refugees at Kansi Parish in the morning of 21 April. He testified that the main attack at Kansi Parish occurred in the morning of 22 April. While Witness CBP77’s evidence does not provide corroborating evidence that the thrust of the attack at Kansi Parish was on 21 April, he does agree with other witnesses that 21 April was the date on which the attack commenced. 2242 T. 19 September

2004, pp. 54-55. 2243 T. 27 September 2004, p. 18 (“the killings were triggered off by the massacre of the refugees that had taken refuge at the parish, and they had taken refuge in the schoolrooms of the primary school”); T. 28 September 2004, p. 47 (“in Kansi people who had gone there to seek refuge had been killed”). 2244 T. 21 September 2004, pp. 27-28; T. 23 September 2004, p. 4. 2245 T. 14 February 2008, pp. 62, 73. 2246 T. 14 February 2008, p. 4. 2247 T. 2 June 2008, pp. 13-14, 24-25, 27. 2248 T. 21 September 2004, p. 33. 2249 T. 14 February 2008, pp. 62, 73. 2250 T. 14 February 2008, p. 4. 2251 T. 19 September 2004, pp. 58-59. 2252 T. 27 September 2004, pp. 18, 23. 2253 T. 23 September 2004, p. 31. 17 May 2011 288/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1283. In light of the above, the Chamber is satisfied that the attack at Kansi Parish commenced in the afternoon of 21 April 1994 and continued on to the next day. 1.5.2.1.2.2.4 Involvement of Gendarmes Guarding Ndindiliyimana’s Nyaruhengeri Residence in the Attack at Kansi Parish 1284. The Chamber has already noted that the Indictment,2254 in relation to the alleged crimes committed in Nyaruhengeri, was framed narrowly in that the Prosecution specifically identified the orchestrators and supervisors of the attacks at Kansi Parish as gendarmes assigned to guard Ndindiliyimana’s residence in Nyaruhengeri.2255 It has already been conceded by the Defence that there were gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence following the death of President Habyarimana.2256 Furthermore, Ndindiliyimana himself has accepted that if gendarmes guarding his residence had participated in the attack at Kansi Parish “he would have known”.2257 Therefore, the key question that must be considered when determining whether to attribute criminal responsibility to Ndindiliyimana for the attack at Kansi Parish is whether gendarmes assigned to guard his Nyaruhengeri residence were in any way involved in the attacks at Kansi Parish, either directly or through the provision of weapons to individuals who did participate in the attack.

1285. The Chamber finds that Prosecution Witness GFM provided unchallenged and credible evidence that the attack at Kansi Parish was committed by Interahamwe armed with traditional weapons, together with approximately six police officers and six gendarmes. Witness GFM recalled that the gendarmes who participated in the attack at Kansi Parish arrived on 21 April in a vehicle. The Chamber finds that although Witness GFM implicated gendarmes in the attack at Kansi Parish, he provided no direct evidence allowing the Chamber to conclude that the gendarmes who participated in the attack at Kansi Parish were those gendarmes assigned to guard Ndindiliyimana’s Nyaruhengeri residence. Witness GFM’s evidence alone, therefore, is insufficient to find that gendarmes assigned to guard Ndindiliyimana’s residence participated in the attack at Kansi Parish.

1286. In considering whether there is any supporting evidence linking the gendarmes guarding Ndindiliyimana’s residence with the gendarmes that participated in the attacks at Kansi, Prosecution Witnesses GFS and FAV are crucial.

1287. Witness GFS provided a credible account that following the death of President Habyarimana, she saw that six gendarmes were stationed at Ndindiliyimana’s house.2258 On 21 April, she witnessed two vehicles carrying gendarmes and Interahamwe visit Ndindiliyimana’s Nyaruhengeri residence for a short period. Witness GFS then expressly testified that she saw the six gendarmes stationed at Ndindiliyimana’s residence, together with the gendarmes and Interahamwe who had just arrived, board the vehicles and drive away in the direction of Kansi Parish.2259 She subsequently heard the sound of gunshots 2254 This is consistent with the Pre-Trial Brief, the evidence presented at trial and the Prosecution Closing Brief. 2255 Indictment, para. 73. 2256 T. 17 June 2008, pp. 66-67; T. 20 June 2008, p. 60; T. 2 June 2008, pp. 6-7, 22, 29. 2257 T. 23 June 2008, p. 26. 2258 T. 27 September 2004, p. 35; T. 28 September 2004, pp. 38-39. 2259 T. 27 September 2004, p. 23 (“As I said, some vehicles arrived, they were speeding. They were bringing more gendarmes to Ndindiliyimana’s house. They were with Interahamwe. They stopped for a while at Ndindiliyimana’s house. I don’t know where they were coming from. Perhaps they were coming from Butare. 17 May 2011 289/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T coming from the direction of Kansi Parish. Witness GFS further testified that the gendarmes who had arrived at Ndindiliyimana’s residence in the vehicles distributed weapons to Interahamwe.2260 Witness GFS did not personally witness gendarmes at Ndindiliyimana’s house distribute any weapons. She did, however, testify that she was later told that the gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence were providing weapons for the purpose of killing Tutsi.2261 1288. The Chamber finds that Witness GFS’s evidence is credible and corroborated by Witness GFT, who testified that at the beginning of April 1994 she saw six gendarmes stationed at Ndindiliyimana’s Nyaruhengeri residence and that this number subsequently grew to 20 gendarmes. This is also consistent with the evidence of Witness FAV, who testified that around Easter 1994, there were six gendarmes stationed at Ndindiliyimana’s house and that this number grew to 20 following the death of President Habyarimana.

1289. Witness FAV also corroborates Witness GFS to the extent that on 21 April, vehicles carrying members of the Presidential Guard and Interahamwe visited Ndindiliyimana’s Nyaruhengeri residence. Witness FAV suggested that gendarmes guarding Ndindiliyimana’s residence distributed weapons, after which a group of approximately 50 people, including the gendarmes guarding Ndindiliyimana’s residence and Ndindiliyimana’s wife, went towards Kansi Parish.2262 1290. The Chamber finds Witness FAV’s evidence credible to the extent that it corroborates evidence given by Witnesses GFS and GFT that on 21 April gendarmes in a vehicle visited Ndindiliyimana’s house, that those gendarmes distributed weapons and, crucially, that those gendarmes boarded a vehicle and drove away towards Kansi Parish. The Chamber further notes that Witness FAV’s evidence is consistent with evidence provided by Witness GFM to the extent that a vehicle carrying gendarmes was involved in the attack at Kansi Parish.

1291. In light of the above, the Chamber is satisfied that on 21 April, gendarmes guarding Ndindiliyimana’s residence were involved in the attack at Kansi Parish, both directly and also indirectly through the provision of weapons and assistance to Interahamwe who participated in the attack at the parish.

1292. The Chamber, in arriving at its conclusion, has also considered the Defence evidence. The Defence has not presented any evidence that contradicts the Chamber’s findings. Defence Witnesses CBP44 and Leon Ngarukiye were not present on 21 April during the attack at Kansi Parish. Furthermore, Witness CBP77, who was present during the attack, testified that there were some 4,000 people involved in the attack at Kansi Parish. The Chamber finds that Witness CBP77’s evidence does not rule out the participation of gendarmes in such an environment. 1.5.2.1.2.2.5 Ndindiliyimana’s Superior Responsibility 1293. The Chamber will now determine whether Ndindiliyimana knew or had reason to know that his subordinates had committed or were about to commit these crimes. The So they stopped for a short while, and we saw the gendarmes at Ndindiliyimana’s house. They got into the vehicles, and they all left towards Kansi.”). 2260 T. 27 September 2004, p. 22. 2261 T. 27 September 2004, pp. 27, 33; T. 28 September 2005, pp. 39, 51. 2262 T. 23 September 2004, pp. 32-33. 17 May 2011 290/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Chamber will consider the full contours of Ndindiliyimana’s superior responsibility in the legal findings section of the Judgement.The Chamber notes that Ndindiliyimana himself testified that he visited Nyaruhengeri around 22 April, one day after the massacre. Although he claimed that he did not pass by Kansi Parish on his visit to Nyaruhengeri, the Chamber finds it hard to believe that an attack of this magnitude would not have come to his attention. This finding is compounded by Ndindiliyimana’s admission that had gendarmes guarding his residence participated in the attack at Kansi Parish, “he would have known”.2263 1294. The Chamber therefore finds that the Prosecution has proved beyond reasonable doubt that gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence were involved in the attack at Kansi Parish and that Ndindiliyimana was aware of the involvement of those gendarmes in the attack. Despite his knowledge, there is no evidence that Ndindiliyimana took any measures to address the crimes committed by his subordinates at Kansi Parish. 1.5.2.1.3 Provision of Two Grenades to an Interahamwe Militiaman Called Kajuga 1.5.2.1.3.1 Evidence 1.5.2.1.3.1.1 Prosecution Evidence Prosecution Witness GFT 1295. Witness GFT was a nurse by profession.2264 She testified that she visited Ndindiliyimana’s

residence on three occasions in April 1994 in order to treat Ndindiliyimana’s child who had contracted malaria. On one of these occasions, the witness saw a man she knew as Kajuga visit. She testified that Kajuga was a former soldier and that she saw him have a conversation with one of the gendarmes who was guarding Ndindiliyimana’s residence. She explained that following this exchange, she saw the gendarme go into the house and return with an object “that looked like an avocado pear”.2265 1296. Witness GFT concluded that the object given to Kajuga was a grenade. She testified that she had not seen a grenade before and that she drew this conclusion because, subsequent to that day, she “saw people hanging … grenade[s] around their waists, and [she] realised that it looked like the object [she] saw at that time”.2266 1297. In the morning of 22 April, following the massacre at Kansi Parish, Witness GFT together with her husband and children went to the secteur office in Nyaruhengeri. This was in order to get help from the conseiller. When she arrived, she saw approximately 100 other people there including her brother-in-law. The witness testified that at some point a grenade was thrown among the group of people who had gathered at the secteur office, but she did not see who threw the grenade because at the time of the attack she was in the middle of the group that had gathered at the secteur office. The witness claimed that she was later informed by “others” that it was Kajuga who had thrown the grenade at them.2267 2263 T. 23 June 2008, p. 26. 2264 T. 10 January 2005, p. 15 (ICS). 2265 T. 10 January 2005, pp. 19-20, 70-72. 2266 T. 10 January 2005, p. 20. 2267 T. 10 January 2005, pp. 20-21, 73-74. 17 May 2011 291/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1298. Witness GFT described in various ways what happened next. First, the witness testified that she ran into a nearby sorghum field and that the assailants followed those who were running away and killed many of them.2268 Second, she stated that the people at the secteur office “scattered” and “fled in separate directions”, and the witness was separated from her husband.2269 Third, the witness saw that her brother-in-law’s leg had been severely injured. She testified, “[W]e found crutches for him not far from [the secteur office] and that he could totter along in order to flee … we used bits of cloth to make a bandage and he was able to set off with difficulty”.2270 Finally, she stated that she did not witness the events but that she “met survivors who told [her] what [had] happened after the grenade was thrown”.2271 1299. Witness GFT explained that she eventually went to hide at the house of a friend called Joseph Kagenza, who lived very close to Ndindiliyimana’s residence.2272 Prosecution Witness FAV 1300. Witness FAV testified that Kajuga received a grenade from gendarmes at Ndindiliyimana’s residence and that the grenade was then thrown at the secteur office. Witness FAV did not specify how he learned of this, although he stated that Kajuga himself claimed that he had received the grenade at

Ndindiliyimana’s house.2273 The witness also claimed that prior to the genocide other people had received grenades from Ndindiliyimana’s residence.2274 Prosecution Witness GFR 1301. For reasons set out in Chapter III of the Judgement, the Chamber has not considered Prosecution Witness GFR’s evidence in arriving at its conclusions. 1.5.2.1.3.1.2 Defence Evidence Ndindiliyimana Defence Witness CBP44 1302. Witness CBP44 testified that she believed Kajuga to be a “a bandit or a rogue” who had been guilty of several murders in the region or in the area at that time.2275 1.5.2.1.3.2 Deliberations 1303. In assessing the allegations in paragraphs 74 and 75 of the Indictment, the Chamber will first consider whether gendarmes guarding Ndindiliyimana’s residence gave two grenades to the Interahamwe member Kajuga and ordered him to kill Tutsi, before considering whether Kajuga then threw a grenade at a crowd of Tutsi who had gathered at the secteur office in Nyaruhengeri. 2268 T. 10 January 2005, p. 21. 2269 T. 10 January 2005, p. 22. 2270 T. 10 January 2005, pp. 73-74. 2271 T. 11 January 2005, p. 4. 2272 T. 10 January 2005, p. 21. 2273 T. 21 September 2004, p. 25. 2274 T. 21 September 2004, p. 25. 2275 T. 14 February 2008, p. 66. 17 May 2011 292/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.2.1.3.2.1 Provision of Two Grenades to Kajuga 1304. Witness GFT testified that she saw gendarmes at Ndindiliyimana’s residence give Kajuga an “avocado pear” shaped object. The Chamber finds that this is an accurate description of a grenade. However, the witness admitted that she did not have any knowledge of what a grenade looked like at the time she saw gendarmes guarding Ndindiliyimana’s residence give the object to Kajuga. The witness’s claim that the “avocado pear” shaped object was in fact a grenade was therefore made in hindsight. This failure to identify the object at the material time leads the Chamber to conclude that while the “avocado pear” shaped object described by Witness GFT might have been a grenade, this fact has not been proved beyond reasonable doubt.

1305. The Chamber further finds that even if it is accepted that Witness GFT did see gendarmes give Kajuga a grenade, her evidence is still insufficient to prove beyond reasonable doubt that Kajuga was ordered to use grenades against Tutsi and that he did in fact throw a grenade at Tutsi who had gathered at the secteur office. This is because Witness GFT’s evidence implicating Kajuga is based solely on tenuous hearsay evidence, the source of which is unknown.

1306. The Chamber therefore finds that Witness GFT’s evidence on its own is not sufficient to prove beyond reasonable doubt that gendarmes guarding Ndindiliyimana’s residence gave grenades to Kajuga and that those grenades were then used to harm Tutsi at the secteur office. 1.5.2.1.3.2.2 Order by Gendarmes to Kill Tutsi 1307. The Chamber finds that the Prosecution has failed to prove beyond reasonable doubt that gendarmes guarding Ndindiliyimana’s residence “ordered” Kajuga to kill Tutsi. Witness GFT did not claim to have heard what was allegedly said between gendarmes guarding Ndindiliyimana’s residence and Kajuga, nor is there any evidence linking the alleged criminal conduct of Kajuga in Nyaruhengeri to an “order” given by gendarmes guarding Ndindiliyimana’s residence. 1.5.2.1.3.2.3 Kajuga’s Grenade Attack on the Secteur Office in Nyaruhengeri 1308. Witness GFT was clear that she did not see who perpetrated the attack on the secteur office. Rather, her claim that Kajuga threw a grenade at the secteur office is based upon information and an identification of Kajuga by “others”. Witness GFT did not specify who exactly informed her of Kajuga’s involvement. Furthermore, she did not provide any information that would allow the Chamber to conclude that those “others” who told her of Kajuga’s involvement had a basis for positively identifying Kajuga as being involved in the attack

at the secteur office in Nyaruhengeri. In short, very little identification evidence was led by the Prosecution, with the exception of the testimony of Witness GFR whose evidence the Chamber has excluded.2276 1309. The Chamber also finds that Witness GFT failed to provide a clear and single account of the events immediately after the grenade attack. Witness GFT initially described people, including herself, fleeing for their lives as they were being chased and killed. She then 2276 See Chapter III of the Judgement. 17 May 2011 293/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T explained that she had time to bandage the leg of her brother-in-law who she claimed was severely injured by the grenade. Finally, she claimed that she waited at the scene of the attack until a pair of crutches was brought for her brother-in-law, although she later claimed that she only knew about these events because she met survivors who subsequently who told her what happened.2277 1310. While the Chamber finds that Witness GFT’s evidence establishes that an attack did take place at the secteur office, the Chamber is not satisfied beyond reasonable doubt that it was Kajuga who threw the grenade at a crowd of Tutsi at the secteur office in Nyaruhengeri. The Chamber is also not satisfied beyond reasonable doubt that those who perpetrated the attack at the secteur office in Nyaruhengeri did so under orders of gendarmes guarding Ndindiliyimana’s residence. 1.5.2.1.3.2.4 Conclusion 1311. In light of the above, the Chamber finds that the Prosecution has proved beyond reasonable doubt that gendarmes residing at Ndindiliyimana’s residence participated in the attacks at Kansi Parish, but it has not proved that those gendarmes were implicated in an alleged grenade attack by Kajuga on a crowd of Tutsi at the secteur office in Nyaruhengeri. 1.5.2.2 The Killing of Tutsi Refugees by Gendarmes at Saint André College

in Nyamirambo, Kigali 1.5.2.2.1 Introduction 1312. The Indictment alleges that on or about 13 April 1994, gendarmes from the Nyamirambo unit, accompanied by Interahamwe, attacked St. André College in Kigali, where hundreds of people, mainly Tutsi, had sought refuge between 7 and 8 April 1994. It is alleged that after checking their identities, the attackers selected and killed all of the Tutsi men outside the college. It is further alleged that the gendarmes involved in the attack were under Augustin Ndindiliyimana’s command.2278 The Indictment alleges that Ndindiliyimana bears superior responsibility for these crimes.2279 1.5.2.2.2 Evidence 1313. To support the above allegation, the Prosecution relies on the evidence of Witnesses WG and CGB. The Defence denies the allegations and refers to the evidence of Witnesses CBP 72, CBP 46 and Ndindiliyimana. 2277 T. 11 January 2005, p. 4. 2278 Indictment, para. 76. 2279 Indictment, para. 61. 17 May 2011 294/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.2.2.2.1 Prosecution Evidence Prosecution Witness WG 1314. Witness WG was an employee of St. André College in April 1994.2280 He testified that on 8 April 1994, a few dozen people fleeing an attack by soldiers and Interahamwe at the nearby St. Charles Lwanga Church sought refuge at the college.2281 1315. Witness WG testified that between 4.30 and 4.55 p.m. on 13 April, he heard gun shots, grenade explosions and distressful screams.2282 A short while later, two gendarmes arrived at his room and spoke with the witness.2283 The gendarmes interrogated him as to why he had given sanctuary to people whom they considered to be accomplices of the enemy.2284 The witness testified that he understood the reference to accomplices of the enemy to mean members of the Tutsi ethnic group, who were widely perceived at the time to be collaborating with the RPF.2285 1316. The witness testified that those gendarmes then led him to the compound in front of the nursing department of the college, where they had gathered all the refugees.2286 At the compound, the witness found other gendarmes and Interahamwe. The witness observed that gendarmes and Interahamwe had shot through the windows of the building where the refugees were housed at the college and had also shot some of the refugees.2287 According to the witness, the

assailants only stopped shooting at the refugees once they had assembled all of them at the compound. Thereafter, they inspected the identity cards of the refugees in order to identify the Tutsi among them.2288 The witness testified that he pleaded with the gendarmes not to harm women and children refugees at the compound and that due to his intervention, gendarmes only checked the identity cards of male refugees.2289 1317. Following the inspection of the identity cards, the gendarmes selected several dozen male refugees and informed the witness that they intended to take them to the nearby Nyamirambo territorial brigade of the Gendarmerie for further interrogation.2290 The witness testified that once the gendarmes had left with those refugees, he returned to his room. However, about 10 minutes later, he heard gunshots coming from the direction of the entrance gate to the college.2291 The witness immediately went to the entrance gate and found that a number of the refugees who were taken by the gendarmes had been killed.2292 However, a few of those refugees, namely, Musonera, Frederic, Achille Karita, Jean Bosco Rutaganda and Theophile Rubata, had survived the attack.2293 Witness WG further testified that he was informed by those survivors that gendarmes had led them to the entrance gate of 2280 T. 6 June 2005, p. 31 (ICS). 2281 T. 6 June 2005, p. 34. 2282 T. 6 June 2005, p. 36. 2283 T. 6 June 2005, p. 36. 2284 T. 6 June 2005, pp. 35-37. 2285 T. 6 June 2005, pp. 35-38. 2286 T. 6 June 2005, p. 37. 2287 T. 6 June 2005, p. 37. 2288 T. 6 June 2005, pp. 37-38. 2289 T. 6 June 2005, p. 37. 2290 T. 6 June 2005, pp. 37-38. 2291 T. 6 June 2005, p. 38. 2292 T. 6 June 2005, p. 38. 2293 T. 6 June 2005, pp. 38-39. 17 May 2011 295/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the college and asked the Interahamwe to attack them with machetes.2294 They further informed him that gendarmes had shot at the refugees who attempted to escape the attack by the Interahamwe.2295 1318. The witness testified that the gendarmes who had attacked the refugees at the college on 13 April 1994 were based at the Nyamirambo brigade of the Gendarmerie, which was situated less than a hundred metres away from St. André College.2296 The witness testified that those gendarmes were familiar to him since he had seen them during his visits to the brigade in the course of his two years’ residence in the Nyamirambo neighbourhood.2297 The witness also stated that during the attack at the college, those gendarmes were dressed in the official uniforms of the Gendarmerie, which he described as light green uniforms and red berets.2298 1319. The witness testified that during their incursion into the college on 13 April 1994, the gendarmes were led by a Second Lieutenant from the Nyamirambo brigade who was also familiar to him.2299 The witness further stated that he was informed by gendarmes guarding the St. Paul pastoral centre that the officer leading the gendarmes who had attacked the refugees at the college had a rank of Second Lieutenant.2300 1320. On 14 April 1994, the witness called the Deputy Chief of

Staff of the army and requested him to assist in protecting the refugees at the college from being attacked.2301 According to the witness, he made his request to an officer named Marcel; however, he did not know him personally nor his exact rank.2302 The witness added that the reason that he decided to call the Deputy Chief of Staff for assistance with security at the college was that he had learned that Marcel was an alumnus of St. André College and that he was therefore likely to respond favourably to his plea.2303 1321. The witness testified that following his request, gendarmes were sent to the college to protect the refugees there. The witness observed that those were the same gendarmes who had attacked the refugees at the college on 13 April 1994.2304 However, he subsequently learned that those gendarmes did in fact protect the refugees from being attacked by the Interahamwe.2305 1322. On 14 April 1994, members of the RPF arrived at the college and evacuated the majority of the refugees.2306 The witness testified that only five people remained at the college following that operation.2307 The witness further testified that after the capture of Kigali by RPF forces in July 1994, he met two of the former refugees from the college, 2294 T. 6 June 2005, p. 38. 2295 T. 6 June 2005, p. 38. 2296 T. 6 June 2005, pp. 32, 36. 2297 T. 6 June 2005, p. 36. 2298 T. 6 June 2005, p. 36. 2299 T. 6 June 2005, pp. 36-37. 2300 T. 6 June 2005, p. 36. 2301 T. 6 June 2005, p. 40. 2302 T. 6 June 2005, p. 40. 2303 T. 6 June 2005, p. 40. 2304 T. 6 June 2005, p. 40. 2305 T. 6 June 2005, p. 40. 2306 T. 6 June 2005, p. 41. 2307 T. 6 June 2005, p. 42. 17 May 2011 296/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T namely, Oralie and Valérie Kanarama, who informed him that they had been evacuated from the college by the RPF operatives on 14 April 1994.2308 Prosecution Witness GCB 1323. Prosecution Witness GCB, a Tutsi, testified that following the deterioration of security in Kigali after the death of President Habyarimana, he sought refuge at St. André College from 8 April to 14 April 1994.2309 He recalled that on 8 April, the refugees at the college numbered a few hundred people.2310 The majority of those refugees were Tutsi but there were also some Hutu who were supporters of the opposition parties.2311 1324. On 13 April 1994, around 4.00 p.m., while in the upper part of the nursing department building at St. André College where most of the refugees were housed, the witness heard gunshots, grenade explosions and people screaming.2312 Shortly thereafter, some gendarmes came to the part of the building where the witness was staying and ordered all the refugees there to assemble in the courtyard in front of the building.2313 Witness GCB testified that those gendarmes were armed and were dressed in the official uniforms of the Gendarmerie, including the distinctive red berets embossed with the Gendarmerie insignia.2314 1325. As he was heading to the courtyard, the witness claimed that he saw a number of dead

bodies.2315 In the courtyard, the gendarmes ordered the refugees to lie down and later ordered them to stand up.2316 However, only about 20 refugees managed to stand up because most of them were too injured to stand.2317 1326. The witness testified that while at the courtyard, the leader of the gendarmes ordered one of them to attack the refugees who were still lying down with a grenade launcher known as a STRIM.2318 Subsequently, one of the gendarmes attacked refugees using the STRIM and the courtyard was covered by a pall of smoke.2319 Witness GCB described the STRIM as being composed of a gun and a club-like object attached to the barrel of the gun.2320 1327. Witness GCB testified that gendarmes later selected about 20 male refugees, including himself, and led them out of the compound of the college. The witness further testified that when they reached the entrance gate to the college, they were ordered by gendarmes to lie down along the road that runs from the Court of Appeal to St. Charles Lwanga Church.2321 While they were lying on the ground, one of the gendarmes shot at each one of them from a close range.2322 However, the witness testified that as the attack unfolded, 2308 T. 6 June 2005, p. 41. 2309 T. 14 September 2005, pp. 55, 60. 2310 T. 14 September 2005, p. 57. 2311 T. 14 September 2005, p. 57. 2312 T. 14 September 2005, p. 62. 2313 T. 14 September 2005, p. 62. 2314 T. 14 September 2005, pp. 50, 62; T. 19 September 2005, p. 2. 2315 T. 14 September 2005, pp. 62-63. 2316 T. 14 September 2005, pp. 62-63. 2317 T. 14 September 2005, pp. 63-65. 2318 T. 14 September 2005, pp. 64-65. 2319 T. 14 September 2005, pp. 64-65. 2320 T. 15 September 2005, p. 50. 2321 T. 14 September 2005, pp. 65-66. 2322 T. 14 September 2005, pp. 65-66. 17 May 2011 297/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T he lost consciousness and vision and could not see what was going on around him.2323 For these reasons, the witness could not tell the number of times that he was shot or the extent of the injuries that were inflicted on him during the attack.

1328. The witness testified that the gendarmes then ordered the Interahamwe to kill the refugees who had survived the gun attack.2324 Witness GCB gave evidence that a member of the Interahamwe noted that he was still alive and struck him on the nape of his neck with an axe and left him thinking that he was dead.2325 1329. According to the witness, several hundred refugees were killed during the attack at St. André College on 13 April 1994.2326 He further testified that most of them were killed inside the college compound.2327 According to the witness, the attack against the refugees was carried out by six gendarmes in collaboration with Interahamwe.2328 1.5.2.2.2.2 Defence Evidence Defence Witness CBP 72 1330. Witness CBP 72 was a gendarme based at the Nyamirambo brigade of the Gendarmerie in April 1994.2329 From 7 April to 12 May 1994, he claimed that he drove the commander of the Nyamirambo brigade as he patrolled various locations in the Nyamirambo area where gendarmes were stationed as guards.2330 The witness also testified that the patrols were conducted every day on an hourly basis throughout the day until nightfall.2331 1331. Witness CBP 72 testified that St. André College was situated between 800 metres and one kilometre from the Nyamirambo brigade.2332 Given the proximity of the college to the brigade, they regularly stopped at St. André College during their

patrols.2333 However, neither the witness nor the commander entered the compound of the college during these visits, they only stopped at the entrance gate of the college where the commander had brief conversations with the gendarmes stationed there.2334 1332. Based on his observations during these visits, Witness CBP 72 disputed the allegations raised by Witnesses WG and GCB that gendarmes killed Tutsi civilians at St. André College. He testified that gendarmes were stationed at St. André College to protect the people who had sought refuge there. The gendarmes also repulsed a number of attacks 2323 T. 14 September 2005, p. 66. 2324 T. 14 September 2005, p. 66. 2325 T. 14 September 2005, p. 66. 2326 T. 15 September 2005, p. 4. 2327 T. 15 September 2005, p. 4. 2328 T. 14 September 2005, p. 63. 2329 T. 26 February 2008, p. 6. 2330 T. 26 February 2008, pp. 21, 23. 2331 T. 26 February 2008, pp. 23-24. 2332 T. 26 February 2008, p. 11. 2333 T. 26 February 2008, p. 11. 2334 T. 26 February 2008, p. 11. 17 May 2011 298/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T against the refugees by Interahamwe.2335 The witness was resolute that due to the presence of gendarmes, none of the refugees at St. André College were killed.2336 1333. Witness CBP 72 also disputed Prosecution Witness GCB’s claim that gendarmes attacked the refugees at St. André College on 13 April 1994 using a STRIM gun. According to the witness, the STRIM was only used by soldiers engaged at the war front and was not available to gendarmes.2337 Defence Witness CBP 46 1334. Witness CBP 46 was an officer of the Gendarmerie based at Camp Muhima in Kigali in April 1994.2338 He testified that the gendarmerie did not have STRIM guns and that it is therefore unlikely that gendarmes would have used that weapon to attack the refugees at St. André College on 13 April 1994.2339 According to Witness CBP 46, the gendarmerie only had teargas grenades, which were used by a specific unit of the gendarmerie known as the Jali Intervention Unit.2340 The Accused Ndindiliyimana 1335. Ndindiliyimana disputed the allegations made by Prosecution Witnesses WG and GCB that gendarmes killed Tutsi refugees at St. André College on 13 April 1994. Ndindiliyimana testified that contrary to their allegations, gendarmes were posted at St. André College and protected Tutsi refugees there.2341 1336. According to Ndindiliyimana, from 13

April 1994, members of the RPF conducted a number of evacuation operations in various places in Kigali, including St. André College, where a number of people had sought refuge from the degenerating security situation in the city.2342 Ndindiliyimana gave evidence that the RPF rescued their members and sympathisers who were among those refugees and evacuated them to areas under their control.2343 1337. Ndindiliyimana testified that on 14 April 1994, he held a meeting with members of his General Staff and discussed possible responses to the RPF evacuation operations in Kigali.2344 Ndindiliyimana testified that he resolved not to resist the RPF operations in order to save the lives of refugees who were in danger of being killed.2345 Accordingly, he instructed gendarmes not to resist such operations.2346 According to Ndindiliyimana, gendarmes complied with his order and did not resist the evacuation of refugees from St. André College by RPF operatives.2347 2335 T. 26 February 2008, p. 18. 2336 T. 26 February 2008, pp. 21, 23. 2337 T. 26 February 2008, p. 11. 2338 T. 28 January 2008, p. 3. 2339 T. 28 January 2008, pp. 26-28. 2340 T. 28 January 2008, pp. 26-28. 2341 T. 18 June 2008, pp. 37-38. 2342 T. 18 June 2008, p. 38. 2343 T. 18 June 2008, p. 38. 2344 T. 18 June 2008, p. 38. 2345 T. 18 June 2008, p. 38. 2346 T. 18 June 2008, p. 38. 2347 T. 18 June 2008, p. 38. 17 May 2011 299/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1338. Ndindiliyimana also testified that he was aware that Prosecution Witness WG had requested the gendarmerie to provide security at St. André college.2348 However, he explained that Witness WG’s request to the gendarmerie was motivated by a desire to dispel any suspicions on the part of the Rwandan authorities that he condoned the RPF evacuation of refugees from the college.2349 1.5.2.2.3 Deliberations 1.5.2.2.3.1 The Role of Gendarmes in the Killing of Tutsi Refugees at St. André College 1339. Both Prosecution Witnesses WG and GCB testified that gendarmes in collaboration with Interahamwe were involved in the attack that led to the killings of Tutsi refugees at St. André College in Nyamirambo, Kigali, on 13 April 1994. Witness WG testified that he was familiar with the gendarmes who perpetrated the attack at the college. He further stated that those gendarmes were based at the nearby Nyamirambo brigade of the Gendarmerie, where he had seen them during his visits to that brigade in the course of his two years’ residence in the Nyamirambo area.2350 1340. The Chamber notes that it is not contested by any of the parties that the Nyamirambo brigade was located in relative proximity to St. André College, where Witness WG was based. Witness WG’s evidence that he was familiar with those gendarmes, when

considered in concert with his evidence and that of Witness GCB that those gendarmes were clad in the official uniforms of the gendarmerie, which they described as light green uniforms with red berets, supports the finding that gendarmes participated in the killings of Tutsi civilians at the college.2351 1341. The Chamber has carefully considered the submissions raised by the Defence seeking to impugn the credibility of Prosecution Witnesses WG and GCB. With respect to Witness WG, the Chamber notes that the Defence sought to undermine his credibility by referring to the evidence of Witnesses DH 90 and DH 91 in the Bagosora et al. proceedings regarding the events that transpired at St. André College on 13 April 1994. The Defence suggests that Witness WG’s account of the events at the college is contradicted by the evidence of those witnesses in important respects. The Chamber recalls that Witness WG conceded that he had regular contact with Witnesses DH 90 and DH 91, who were based at the nearby St. Charles Lwanga Church in April 1994.

1342. According to the Defence, contrary to the testimony of Witness WG, gendarmes did not attack refugees at St. André College on 13 April 1994. The only incident of note that occurred at the college on 13 April was the evacuation of refugees from the college by RPF operatives. Witness WG’s evidence is therefore an implausible attempt to falsely impute to gendarmes responsibility for the actions of RPF operatives at the college. To support its submission, the Defence refers to the evidence of Witness DH 91 in the Bagosora et al. proceedings that he was informed by Witness WG that members of the RPF had carried out a raid at the college on the night of 13 April and taken all the refugees away from the college.2352 Witness DH 91 further testified that Witness WG appeared dishevelled and 2348 T. 18 June 2008, p. 38. 2349 T. 18 June 2008, p. 38. 2350 T. 6 June 2005, pp. 36-37. 2351 T. 19 September 2005, p. 2. 2352 T. 7 June 2005, pp. 16, 17; Defence Exhibit 50. 17 May 2011 300/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T informed him that he had spent the night in the “bush” because of the RPF operation at the college.2353 1343. The Chamber is not persuaded that the above submission of the Defence impairs the credibility of Witness WG. A careful review of the transcripts of Witness DH 91’s testimony in Bagosora et al., which were tendered into evidence in this case, shows that Witness DH 91 did not testify conclusively that the RPF operation at the college occurred on 13 April 1994. Rather, his evidence suggests that the operation occurred either on the night of 13 to 14 April or 14 to 15 April 1994. In particular, the Chamber refers to his evidence that by the end of May 1994, only two individuals remained since “the others had left during an RPF raid in the night of 14 to 15 April”.2354 The Chamber therefore considers that there is a material discrepancy between the evidence of Witness WG and that of Witness DH 91 with respect to the date on which the RPF operation occurred at the college.

1344. Secondly, the Chamber notes that the evidence of Witness WG is that the gendarmes attacked the Tutsi refugees at the college between 4.30 and 4.55 p.m. on 13 April 1994.2355 The transcripts of Witness DH 91’s testimony in Bagosora et al., upon which the Defence relies in order to impugn the evidence of Witness WG, suggest that the RPF operation to evacuate the refugees from the college occurred during the night.2356 Furthermore, the evidence of Witness WG in this trial and the transcripts of the testimony of Witnesses DH 90 and DH 91 in Bagosora et al. contain no suggestion that the RPF operation at the college resulted in the killings of any of the refugees. The Chamber recalls that Witnesses DH 90 and DH 91 only testified that they noted the absence of refugees from the college after the RPF operation.2357 Given the varied time at which the two incidents are alleged to have occurred, and more significantly, the lack of evidence that the RPF operation at the college led to killings of refugees, the Chamber finds the Defence submission to the effect that Witness WG sought to falsely attribute to gendarmes responsibility for crimes that were committed by members of the RPF to be untenable.

1345. The Defence also submits that the evidence of Witness WG that gendarmes killed Tutsi refugees at St. André College is contradicted by Witness DH 90’s testimony in the Bagosora et al. proceedings testified that the refugees at the college were attacked by a band of lawless youths rather than gendarmes or soldiers.2358 1346. The Chamber notes that while Witness DH 90 did indeed testify that the killings at the college were committed by a band of lawless youths, he was reluctant to ascribe to those youths exclusive responsibility for that attack. The witness explained that since he was not a direct witness to the events that unfolded at the college on 13 April 1994, he was not in a position to rule out the possibility that gendarmes or soldiers may have collaborated with Interahamwe in attacking the refugees at the college.2359 The Chamber does not therefore accept the Defence submission that Witness DH 90 absolved gendarmes of responsibility for the killings of Tutsi civilians at the college on 13 April 1994. 2353 T. 7 June 2005, p. 16; Defence Exhibit 50. 2354 T. 7 June 2005, p. 17; Defence Exhibit 50. 2355 T. 6 June 2005, p. 36. 2356 T. 7 June 2005, p. 16; Defence Exhibit 50. 2357 Defence Exhibit 50. 2358 T. 7 June 2005, p. 21. 2359 Defence Exhibit 50. 17 May 2011 301/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1347. The Defence also sought to impugn the credibility of Witness WG by suggesting that his evidence was motivated by a desire to mollify the authorities in Rwanda so that they would forego possible criminal charges against him for a genocide-related crime.2360 In support of this submission, the Defence made reference to a passage in a pro justitia statement given by Prosecution Witness GLJ to the Rwandan judiciary, in which Witness GLJ was asked about the attempt by Witness WG to kill the children of a person named Francois Gasakera.2361 The Chamber is not satisfied that the passage in this pro justitia statement provides a firm basis for the inference that the witness was likely to face charges in Rwanda at the time that he gave his testimony. Given the weakness of the evidence adduced by the Defence to support its contention, the Chamber is unwilling to conclude that Witness WG’s testimony was motivated by improper motives.

1348. The Chamber therefore concludes that Witness WG gave credible and firsthand evidence of the killing of Tutsi refugees at St. André College by gendarmes from the Nyamirambo brigade. The credibility of his evidence was not impaired during the cross- examination by the Defence.

1349. Turning now to the evidence of Prosecution Witness GCB, the Chamber is satisfied that the witness gave firsthand and credible testimony of the role of gendarmes in the killings of Tutsi civilians at St. André College on 13 April 1994. The Chamber also finds that, despite some variations, his evidence is corroborated in important respects by the eyewitness testimony of Witness WG.

1350. In cross-examination, Defence counsel argued that Witness GCB’s evidence regarding the events at the college was contradicted by the evidence of Witness WG. In particular, the Defence argued that Witness GCB, in contradiction to Witness WG, testified that gendarmes killed the refugees inside the compound of St. André College.2362 The Chamber is not satisfied that the evidence of these Prosecution witnesses supports the contention advanced by the Defence. The Chamber recalls that Witness WG testified that the assailants shot at some of the refugees inside the college immediately after their arrival.2363 His evidence provides a sound basis for the inference that some of the refugees were killed inside the college. The Chamber does not therefore accept that his evidence contradicts the evidence of Witness GCB, and it dismisses this submission by the Defence.

1351. Notwithstanding the above, the Chamber has considerable misgivings about Witness GCB’s claim that the attack of 13 April 1994 led to the killings of hundreds of refugees at the college.2364 According to Witness WG, a few dozen refugees arrived at the college on 8 April 1994.2365 He did not indicate in his testimony that the number of those refugees rose considerably between 8 April and 13 April 1994. Witness WG’s evidence clearly suggests that the number of refugees at the college was considerably lower than that suggested by Witness GCB. Given his close monitoring of the refugee situation at the college, the Chamber considers Witness WG’s estimate of a few dozen refugees present at the college to be more reliable. The Chamber cannot therefore accept the evidence of Witness GCB that the attack of 13 April led to the death of several hundred civilians. 2360 T. 7 June 2005, pp. 3-7, 33. 2361 T. 7 June 2005, p. 33. 2362 T. 15 September 2005, pp. 69-71. 2363 T. 6 June 2005, p. 37. 2364 T. 15 September 2005, p. 4. 2365 T. 6 June 2005, p. 34. 17 May 2011 302/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1352. The Chamber notes that Witness GCB was subjected to a lengthy cross-examination regarding the claim in his pre-trial statement that a gendarme shot him five times in his left hand during the attack at St. André College on 13 April 1994. The Defence contended that the scars on the witness’s left hand do not support his claim that he was indeed shot five times on his hand using a military weapon loaded with high velocity bullets fired from close range.2366 The witness did not deny the fact that he made the above claim during his interview by the investigators of the Tribunal.

1353. The Chamber observes that in cross-examination on the above issue, the witness at times sought to affirm the veracity of his claim as recorded in the pre-trial statement and at times appeared to disown any knowledge of the details of the attack that was inflicted on him.2367 The witness explained that, during the attack, he lost consciousness after he discovered that the person next to him had been shot and that he could not see because he had lost his spectacles and his eyes were filled with dust. For these reasons, he could not tell the number of times that he was shot by a gendarme or the extent of the injuries that were inflicted on him during that attack.2368 1354. Having weighed Witness GCB’s evidence, the Chamber does not consider his inability to recall with sufficient clarity the details of the attack that was inflicted on him at St. André College to undermine his evidence. His uncertainty can be plausibly explained by the intensity of the attack. Furthermore, the Chamber is in no doubt that the witness was shot by a gendarme during the attack against the refugees at St. André College on 13 April 1994. This finding is corroborated by the eyewitness account of Witness WG.2369 However, the Chamber finds it difficult to understand why the witness, who claims not to have any knowledge of the exact details of the attack that he suffered at the college, informed the investigators of the Tribunal that he was shot five times. Given the difficulties that pervade this aspect of his evidence, the Chamber is unable to accept that Witness GCB was shot five times on his left hand.

1355. The Defence also challenged Witness GCB’s testimony that, during the attack at St. André College, gendarmes attacked the refugees using a weapon known as a STRIM gun. The Defence contends that the UNAMIR inventory of the weapons available to forces operating in Rwanda at the time indicates that the gendarmerie did not have STRIM weapons.2370 The Defence also relies on the evidence of Witness CBP 46, a former officer in the gendarmerie, who testified that the Gendarmerie did not possess such weapons.

1356. The Defence additionally contends that, even if one were to accept Witness GCB’s evidence that gendarmes attacked the refugees using a STRIM, his account of the manner in which the weapon was used by those gendarmes raises doubts about his claim. The Defence claims that it is difficult to countenance that gendarmes would have fired the STRIM, which is a grenade launcher, in an open compound. Such a manoeuvre would have had fatal consequences for the gendarmes.2371 2366 T. 15 September 2005, pp. 55-56. 2367 T. 15 September 2005, pp. 56-61. 2368 T. 14 September 2005, p. 66; T. 15 September 2005, p. 59. 2369 T. 6 June 2005, p. 38. 2370 T. 14 September 2005, pp. 64-65, T. 15 September 2005, p. 51. 2371 T. 15 September 2005, pp. 53-55. 17 May 2011 303/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1357. The Chamber is not satisfied that the UNAMIR inventory provides proof that the gendarmerie did not have STRIM guns in its arsenal. Furthermore, the Chamber was not offered any evidence on the methodology that was employed to compile the UNAMIR inventory. The lack of such information makes it difficult to determine its reliability. Additionally, the Chamber’s reluctance to accord definitive weight to the above inventory is compounded by the evidence of Witness KJ, a gendarme based in Kibuye in April 1994, who testified that STRIM guns were available to gendarmes at the time.2372 The Chamber therefore accepts that it is a reasonable possibility that gendarmes may have been armed with STRIM weapons during the period pertinent to the Indictment.

1358. Notwithstanding the above finding, the Chamber has doubts as to whether gendarmes did in fact use a STRIM to attack the refugees at the college. The Chamber finds it inconceivable that the gendarmes would have fired a grenade launcher in an open compound without any cover, as suggested by Witness GCB. Furthermore, the Chamber finds it infeasible that gendarmes would have sought to use that weapon to attack only the refugees who were lying down in the compound. The Chamber observes that had such an attack occurred, it is highly unlikely that Witness WG would have overlooked it during his detailed testimony on the events that transpired at the college on 13 April 1994. For the foregoing reasons, the Chamber is extremely reluctant to accept Witness GCB’s claim that gendarmes attacked the refugees at the college using a STRIM weapon.

1359. The Chamber now turns to the evidence of Defence witnesses. The Chamber recalls that Witness CBP 72, a gendarme based at the Nyamirambo brigade of the gendarmerie, denied the allegations by Witnesses WG and GCB that gendarmes killed Tutsi refugees at St. André College on 13 April 1994. His contravening evidence is drawn from the observations he made during his alleged visits to the college in the course of regular patrols that he claimed to have conducted in the Nyamirambo area during April and May 1994. According to the witness, gendarmes posted at St. André College protected the refugees there and repelled a number of attacks against them by Interahamwe.2373 The Chamber notes that his evidence is supported by the testimony of Ndindiliyimana.2374 1360. The Chamber recalls that it has heard firsthand and credible evidence from Witnesses WG and GCB that, prior to 14 April 1994, there were no gendarmes stationed at the college to protect the refugees.2375 According to Witness WG, gendarmes were only assigned to the college following a request that he made to the Army Headquarters for security at the college on 14 April 1994.2376 He subsequently learned that those gendarmes did in fact protect the refugees at the college.2377 In light of the firsthand evidence of Witness WG, the Chamber is reluctant to accept the claims by Witness CBP 72 and Ndindiliyimana that there were

gendarmes posted at the college prior to 15 April 1994 and that those gendarmes protected the refugees there. Their evidence does not therefore negate the credibility of Witnesses WG and GCB’s accounts regarding the role of gendarmes in the killing of Tutsi civilians at the college on 13 April 1994. 2372 T. 27 March 2006, pp. 29-30. 2373 T. 25 February 2008, pp. 12, 18, 21, 23. 2374 T. 18 June 2008, p. 38. 2375 T. 6 June 2005, p. 40; T. 14 September 2005, p. 60. 2376 T. 6 June 2005, p. 40. 2377 T. 6 June 2005, p. 40. 17 May 2011 304/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1361. Furthermore, the Chamber notes that the fact that members of the RPF carried out a successful evacuation of a large number of refugees from St. André College on 14 April 1994 without any resistance reinforces its finding above that there were no gendarmes stationed at the college before 14 April 1994.2378 1362. Even if the Chamber were to accept that Witness CBP 72 visited the college in the month of April 1994, the fact that his visits lasted for only a short period of time suggests that the attack may have occurred at the college without his knowledge. The Chamber recalls his testimony that during his stops at the college in the course of patrol, neither the commander nor the witness entered the college; they only stopped at the entrance gate where the commander had a brief conversation with the gendarmes stationed there.2379 In light of this admission, the Chamber does not consider Witness CBP 72’s evidence to provide a decisive basis for negating the eyewitness accounts of Witnesses WG and GCB.

1363. In his brief testimony on the events at St. André College, Ndindiliyimana denied the allegations of Witnesses WG and GCB that gendarmes killed Tutsi civilians at that location on 13 April 1994.2380 Ndindiliyimana claimed that, contrary to their accusations, gendarmes protected the refugees at the college.2381 The Chamber is not satisfied that sparsely detailed denials by Ndindiliyimana are sufficient to cast doubt on the credible and eyewitness accounts of Prosecution Witnesses WG and GCB regarding the role of gendarmes in the attack against Tutsi civilians at the college on 13 April 1994. The Chamber therefore does not accept the evidence of Ndindiliyimana.

1364. Having considered the entirety of the evidence available to it, the Chamber is satisfied beyond reasonable doubt that gendarmes from the Nyamirambo brigade acting in collaboration with Interahamwe, killed Tutsi civilians at St. André College on 13 April 1994. 1.5.2.2.3.2 Ndindiliyimana’s Superior Responsibility 1365. The Chamber will now determine whether Ndindiliyimana knew or had reason to know that his subordinates had committed or were about to commit these crimes. The Chamber will consider the full contours of Ndindiliyimana’s superior responsibility in the legal findings section of the Judgement.

1366. The Chamber notes that the Prosecution did not adduce direct evidence to prove that Ndindiliyimana knew or had reason to know of the implication of gendarmes in the crimes that were committed against Tutsi refugees at St. André College. However, the Prosecution submits that Ndindiliyimana’s knowledge of these crimes can be inferred from his testimony that he received regular reports from his units throughout the country. The Prosecution further submits that Ndindiliyimana’s testimony that he was aware of a request made by Witness WG for assistance with security at the college is indicative of the fact that he kept himself abreast of events at the college. Given his knowledge, it is implausible that Ndindiliyimana would not have known of the killings of Tutsi civilians at the college by 2378 T. 25 February 2008, p. 13. 2379 T. 25 February 2008, p. 11. 2380 T. 18 June 2008, p. 38. 2381 T. 18 June 2008, p. 38. 17 May 2011 305/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T gendarmes around the time that Witness WG is alleged to have made the request for assistance.2382 1367. The Chamber is not satisfied that Ndindiliyimana’s admission that he received situation reports at the time of the events pleaded in the Indictment, by itself, provides a sound basis for ascribing to him notice of the involvement of gendarmes in the crimes that are alleged to have occurred at St. André College. As none of these situation reports were in fact tendered into evidence, the Chamber is unable to find that the reports contained information that would have put Ndindiliyimana on notice of the prospect that gendarmes may have committed crimes at the college.

1368. The Chamber recalls that Ndindiliyimana gave evidence that that he was aware that Witness WG had made a request to the gendarmerie to provide security at the college. His evidence is not clear as to how he came to learn of this fact. Irrespective of the source of his knowledge, the Chamber considers that his knowledge of the request made by Witness WG indicates that he was aware of the involvement of gendarmes in the crimes that were committed against Tutsi civilians at St. André College.

1369. In his evidence, Ndindiliyimana denied that Witness WG’s request was prompted by security concerns at the college. According to Ndindiliyimana, the request by Witness WG was a ploy designed to avert perception on the part of the Rwandan authorities that Witness WG was complicit in the RPF operation to evacuate refugees from the college. The Chamber is not persuaded by the testimony of Ndindiliyimana regarding the motives that prompted Witness WG to make that request. Having weighed the evidence available to it, the Chamber is satisfied that it was the degenerating security situation at the college, exemplified by the events of 13 April 1994, that led the witness to make that request. This being the case, the Chamber finds it difficult to believe that Ndindiliyimana would have known of the request made by Witness WG and yet failed to know of the situation that prompted Witness WG’s call for the authorities to intervene at the college.

1370. The Chamber further notes that there are other indications in the evidence that Ndindiliyimana kept abreast of the events that unfolded at the college in April 1994. The Chamber recalls his evidence that he was aware of the attempts by the RPF to evacuate its partisans who were among the refugees who had gathered in various places in Kigali, including St. André College.2383 Ndindiliyimana testified that these operations started from 13 April 1994.2384 Ndindiliyimana further testified that during a meeting with members of his immediate staff held after his return to Kigali on 14 April, he discussed and explored feasible responses to these operations.2385 The Chamber has heard concordant evidence from both Prosecution and Defence witnesses that the RPF evacuated a large number of refugees from the college on 14 April. There is no evidence that members of the RPF carried out further evacuation operations at the college after 14 April 1994.

1371. The fact that the gendarmes who attacked the refugees at the college were led by a Second Lieutenant from the Nyamirambo brigade of the Gendarmerie suggests that the assailants were operating in an organised manner and within the orders and knowledge of 2382 Prosecution Closing Brief, pp. 171-172. 2383 T. 18 June 2008, p. 38. 2384 T. 18 June 2008, p. 38. 2385 T. 18 June 2008, p. 38. 17 May 2011 306/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T their immediate commanders.2386 The attack by gendarmes and Interahamwe at the college on 13 April 1994 also led to the killing and injury of a significant number of refugees at the college. In light of his knowledge of the events that unfolded at the college, as is suggested by his awareness of the request made by Witness WG and the RPF operation there, the Chamber finds it difficult to believe that Ndindiliyimana would not have known of the organised killing of a number of Tutsi civilians at the college by gendarmes. It strains credulity to believe that Ndindiliyimana, who was aware of less notable events at the college such as the request made by Witness WG, would have failed to know of an incident of this magnitude.

1372. The Chamber is therefore satisfied that Ndindiliyimana knew or at least had information at his disposal that alerted him to the strong prospect that his subordinates may have committed crimes against Tutsi civilians at St. André College on 13 April 1994. The fact that Ndindiliyimana denied that gendarmes perpetrated such crimes at the college indicates that he did not take any measures to address the crimes committed by his subordinates. 1.5.2.3 Killing of Tutsi from CELA by Gendarmes and Interahamwe 1.5.2.3.1 Introduction 1373. The Indictment alleges that “on or about 22 April 1994, a group of about 60 Tutsi was selected at CELA, where they had sought refuge, and led to the Muhima gendarmerie unit purportedly for questioning. In fact, the gendarmes instead of questioning them handed them over to Interahamwe militiamen who killed them on the road leading to the CND. Not more than five people survived that massacre. Those gendarmes were under Augustin Ndindiliyimana’s command”.2387 The Indictment alleges that Ndindiliyimana bears superior responsibility for these crimes.2388 1.5.2.3.2 Evidence 1.5.2.3.2.1 Prosecution Evidence Prosecution Witness ATW 1374. Witness ATW, a Tutsi, sought refuge at CELA from 7 to 20 April 1994.2389 He testified that on 20 April, around 11.00 a.m., the witness was informed by one of the other refugees that a large number of assailants had

gathered at CELA and were about to attack them.2390 Half an hour later, one of the guards at CELA informed him that Francis Renzaho, the préfet of Kigali, had arrived at CELA and wanted to speak with him.2391 1375. Witness ATW testified that while on his way to meet with Préfet Renzaho, he noted that a group of about 600 Interahamwe armed with guns, grenades and traditional weapons, together with about 10 to 12 soldiers, had surrounded CELA.2392 The witness also testified to 2386 T. 6 June 2005, pp. 36-37. 2387 Indictment, para. 77. 2388 Indictment, para. 61. 2389 T. 12 June 2006, pp. 18, 20, 58. 2390 T. 12 June 2006, pp. 22-23. 2391 T. 12 June 2006, pp. 19-20, 22. 2392 T. 12 June 2006, pp. 22-23. 17 May 2011 307/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T having seen a group of gendarmes at CELA as he went to speak with Renzaho.2393 The witness stated that during the conversation, Renzaho questioned him as to whether there were any RPF collaborators among the people who had sought refuge at CELA.2394 The witness denied that accomplices of the RPF were being sheltered at CELA.2395 1376. The witness also testified to having heard Préfet Renzaho inform the Interahamwe at CELA that members of the international community were following the events unfolding in Rwanda through satellite media. Renzaho therefore urged the Interahamwe to desist from actions that would tarnish the image of the Rwandan government internationally.2396 Renzaho then dissuaded the Interahamwe from attacking the refugees at CELA and instead requested that they identify the refugees whom they perceived to be RPF collaborators and take them to Muhima Brigade of the Gendarmerie for further interrogation. Renzaho also told the Interahamwe that in the event that any of those refugees were found to have collaborated with the RPF, they would be tried before a military tribunal.2397 1377. Following Renzaho’s suggestions, the Interahamwe proceeded to identify about 40 mainly Tutsi civilians, including the witness, and took them to Muhima Brigade of the Gendarmerie. The witness stated that the

Interahamwe who selected those refugees came from areas in the vicinity of CELA.2398 After their selection, the refugees were driven to Muhima Brigade of the Gendarmerie aboard a minibus driven by Interahamwe and a double cabin pick-up driven by a gendarme who was dressed in the official uniform of the Gendarmerie. Four additional gendarmes rode in the vehicle.2399 According to the witness, Renzaho did not accompany them when they were taken to Muhima gendarmerie station.2400 1378. The witness testified that once they arrived at Muhima Brigade, they were received by about eight gendarmes who detained them in a room for approximately five minutes.2401 The gendarmes then ordered them to leave the room, and both the gendarmes and Interahamwe ordered them to board a minibus that was parked at the brigade.2402 1379. The Interahamwe then drove the refugees in the direction of the Rugege secteur office. However, their vehicle was stopped at a roadblock manned by Interahamwe armed with guns. The roadblock was situated about 70 metres from the tarred road leading to the Rugege secteur office.2403 Witness ATW recalled that the Interahamwe manning the roadblock ordered the refugees to disembark from the vehicle, and the refugees were then shot at as they alighted from the vehicle.2404 The witness testified that he escaped from the attack after the Interahamwe had killed 10 individuals and

he fled towards St. Paul Centre, where he stayed from 20 April to 17 June 1994.2405 2393 T. 13 June 2006, p. 19. 2394 T. 12 June 2006, p. 25. 2395 T. 12 June 2006, p. 25. 2396 T. 12 June 2006, pp. 25-26; T. 13 June 2006, p. 23. 2397 T. 12 June 2006, pp. 25-26; T. 13 June 2006, p. 23. 2398 T. 12 June 2006, p. 27. 2399 T. 12 June 2006, pp. 29-30. 2400 T. 12 June 2006, p. 30. 2401 T. 12 June 2006, pp. 29-30. 2402 T. 12 June 2006, p. 30. 2403 T. 12 June 2006, p. 30. 2404 T. 12 June 2006, p. 31. 2405 T. 12 June 2006, pp. 31, 34. 17 May 2011 308/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.2.3.2.2 Defence Evidence Defence Witness CBP 62 1380. Witness CBP 62 was an officer of the Gendarmerie deployed at Muhima Brigade in May 1994. He denied that refugees from CELA were detained at Muhima Brigade.2406 He further testified that during his deployment at the brigade, he gave firm instructions to gendarmes not to allow members of militia or criminal gangs to enter the brigade.2407 The Accused Ndindiliyimana 1381. Ndindiliyimana disputed the account given by Witness ATW regarding the events that took place at CELA in April 1994.2408 He testified that he was informed that on 21 April, a large number of people had gathered at CELA in order to attack the refugees there whom they suspected of being armed members of the RPF. He also testified that he was informed that the gendarmes who guarded the refugees at CELA were overwhelmed by the assailants and that the gendarmes requested the intervention of the préfet of Kigali, Renzaho. Ndindiliyimana was further informed that Préfet Renzaho did eventually arrive at CELA and managed to restore order.2409 1382. Ndindiliyimana testified that at the prompting of the assailants at CELA, a search was carried out in order to ascertain whether the refugees there were armed, and it was discovered that some of them were. According to Ndindiliyimana, the weapons

were then confiscated and the refugees at CELA were transferred to the St. Paul Centre where they were guarded by gendarmes.2410 1.5.2.3.3 Deliberations 1.5.2.3.3.1 The Abduction and Killing of Tutsi Civilians from CELA 1383. The Chamber notes that Witness ATW gave a firsthand and consistent account of the removal of about 40 mainly Tutsi refugees from CELA, their brief detention at the Muhima Brigade of the Gendarmerie and their subsequent killing by Interahamwe on 20 April 1994. Witness ATW testified that the removal of those civilians from CELA was done at the behest of Préfet Renzaho, who directed the Interahamwe to identify the refugees whom they considered to be collaborators of the RPF and take them to Muhima Brigade for further questioning. At Muhima Brigade, the refugees were briefly detained by eight gendarmes and later released to the same Interahamwe, who then drove them in the direction of Rugege. At some point during their journey, the refugees were attacked and a number of them were killed by Interahamwe manning a roadblock.

1384. In considering the credibility of Witness ATW’s account of the events pleaded in paragraph 77 of the Indictment, the Chamber has carefully considered the submissions of the Defence. In one of its submissions, the Defence questioned the plausibility of Witness ATW’s evidence that he heard one of the Interahamwe who had abducted the refugees from 2406 T. 27 May 2008, pp. 6, 42 (ICS). 2407 T. 27 May 2008, p. 42 (ICS). 2408 T. 18 June 2008, pp. 42-43. 2409 T. 18 June 2008, p. 42. 2410 T. 18 June 2008, p. 42. 17 May 2011 309/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CELA state that they intended to take the refugees to the CND. The Defence argued that it is inconceivable that the Interahamwe would have taken those civilians to the CND, which was at the time occupied by a battalion of the RPF and which was also the seat of the Rwandan National Assembly.

1385. The Chamber notes that contrary to the Defence rendition of Witness ATW’s evidence, the witness testified that Interahamwe used the acronym “CND” to denote a place in Kigali where they killed Tutsi civilians during the genocide of 1994. His evidence is clear that the place in question was not the building where the Rwandan National Assembly was housed and where the RPF battalion in Kigali was based at the time. The Chamber therefore considers this aspect of Witness ATW’s evidence to be plausible.2411 1386. The Chamber recalls that Witness ATW was cross-examined quite extensively on variances between his testimony and his account of the events that transpired at CELA featured in a publication of a human rights organisation dated April 1994.2412 Having weighed the divergences between Witness ATW’s evidence and his statement in that publication, the Chamber does not find them to be of such gravity that they undermine the credibility of his evidence. Furthermore, the Chamber finds that these variances can plausibly be explained by the difficulties of recollecting precise details several years after the occurrence of the events and the traumatic nature of the events. For these reasons, the Chamber does not consider that these variances undermine the credibility of Witness ATW.

1387. The Chamber also recalls that Witness ATW was questioned about contradictions between his oral evidence and his pre-trial statement regarding the manner in which the events at CELA unfolded. The Chamber notes that Witness ATW vacillated between two positions. On the one hand, the witness suggested that the refugees at CELA were attacked by the assailants prior to the arrival of Préfet Renzaho at CELA, and on the other hand he testified that the assailants were about to attack the refugees but were dissuaded from doing so by Préfet Renzaho. While this discrepancy was never adequately explained, the Chamber does not consider his lack of clarity on this issue to corrode his overall credibility regarding the events at CELA. The Chamber further finds that Witness ATW’s lack of clarity on this issue can reasonably be explained by the stressful nature of the events and the considerable lapse of time between the events and his testimony.

1388. The Defence further submitted that Witness ATW had links with the RPF and could not therefore be expected to give an impartial account of the events that transpired at CELA. The Defence contended that Witness ATW’s association with the RPF is evidenced by the fact that he travelled to Butaro commune in 1993, which was under RPF control at the time.2413 The Defence also asserted that the fact that the witness was armed with a loaded pistol while at CELA further suggests that he had received military training with the RPF. According to the Defence, it is difficult to countenance that a witness with no prior experience using weapons would have been able to handle a loaded pistol and use it to repulse assailants attacking the refugees at CELA.

1389. The Chamber is not satisfied that it has been provided with cogent evidence proving that the witness was in fact an operative of the RPF at the time of the events. Furthermore, in 2411 T. 12 June 2006, pp. 28-29, 31-32. 2412 T. 13 June 2006, pp. 53, 57-59 (ICS); T. 13 June 2006, pp. 85, 87. 2413 T. 13 June 2006, p. 84. 17 May 2011 310/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the Chamber’s view, the fact that the witness may have had links with the RPF should not a priori lead to the rejection of his evidence for lack of impartiality, and the Chamber fails to discern any bias in Witness ATW’s evidence.

1390. The Chamber has also weighed the testimony of Ndindiliyimana. He testified that, contrary to the evidence of Witness ATW, none of the refugees at CELA were killed.2414 Ndindiliyimana gave evidence that he was informed that a large number of assailants had assembled at CELA in order to attack the refugees there whom they suspected of being armed collaborators of the RPF.2415 He further testified that at the prompting of those assailants, a search was carried out at CELA and weapons were discovered and confiscated.2416 Subsequently, the refugees at CELA were transferred to the St. Paul Centre were they were protected by gendarmes. Ndindiliyimana also stated that he was informed that at some point during the events at CELA, gendarmes who were stationed there were overwhelmed by the assailants and the gendarmes requested Préfet Renzaho to intervene. Ndindiliyimana testified that Renzaho did eventually intervene and managed to restore order at CELA.

1391. The Chamber notes that some aspects of Ndindiliyimana’s evidence are confirmed by the evidence of Witness ATW. They both agree that a large number of assailants surrounded the refugees at CELA and intended to attack them. They also agree that during the events at CELA, Préfet Renzaho arrived. However, they disagree on how the fraught situation at CELA was finally resolved and on the role of Renzaho during the events in question.

1392. Given the large number of assailants amassed at CELA and the previous Interahamwe attacks that had been repelled by the refugees at CELA, some of whom were armed, the Chamber finds it difficult to believe Ndindiliyimana’s claim that the fraught situation was resolved without any detriment to the refugees.

1393. The possibility that Préfet Renzaho would have averted any adverse action against the refugees is difficult to accept given that there is no suggestion that he arrived at CELA with a force capable of preventing a large number of Interahamwe from taking action against the refugees. The claim that the refugees were transferred en masse from CELA to St. Paul is also difficult to accept in the absence of any explanation of how the transfer of a large number of people was executed. Given the lack of information supporting Ndindiliyimana’s claims on how the situation at CELA was resolved, the Chamber prefers the firsthand evidence of Witness ATW over the evidence of Ndindiliyimana on this point.

1394. The Chamber is satisfied based on the evidence of Witness ATW that 40 civilians, the overwhelming majority of whom were of Tutsi ethnicity, were removed from CELA on the instruction of Préfet Renzaho and taken to Muhima Brigade of the Gendarmerie ostensibly for further questioning. The Chamber will now determine the conduct of gendarmes at Muhima Brigade towards those civilians before turning to consider Ndindiliyimana’s knowledge or reason to know of their conduct. 2414 T. 18 June 2008, p. 43. 2415 T. 18 June 2008, p. 42. 2416 T. 18 June 2008, p. 42. 17 May 2011 311/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.5.2.3.3.2 The Role of Gendarmes in the Events that Led to the Killing of Tutsi Civilians Abducted from CELA 1395. The Chamber recalls the evidence of Witness ATW that Interahamwe acting at the behest of Préfet Renzaho identified about 40 mainly Tutsi civilians from CELA, where they had sought refuge, and took them to Muhima Gendarmerie brigade ostensibly for further questioning. At Muhima Brigade, the refugees were detained for a few minutes by gendarmes stationed at that brigade and then ordered to board a minibus. The refugees were driven away from Muhima Brigade in the direction of Rugege secteur. At some point during their journey, they were stopped at a roadblock manned by a different set of Interahamwe who then killed about 10 of those refugees.

1396. The Chamber has considered the evidence of Defence Witness CBP 62, who was an officer of the Gendarmerie at the time of the events. The witness disputed the evidence of Witness ATW that on 20 April 1994, 40 civilians who were removed from CELA were briefly detained at Muhima Gendarmerie brigade before they were turned over to Interahamwe, who subsequently killed some of them.2417 Having weighed his evidence, the Chamber is not satisfied that the testimony of Witness CBP 62, who was away from the brigade during the relevant period, is sufficient to undermine the firsthand evidence of Witness ATW. Witness CBP 62 testified that from 7 April to early May he was deployed at Camp Kacyiru where he was involved in the effort to repel RPF attacks against that camp.2418 He was only transferred from Camp Kacyiru to Muhima Brigade in the month of May 1994.2419 Witness CBP 62’s evidence does not therefore raise doubts about the veracity of Witness ATW’s account of the events that transpired at Muhima Brigade on 20 April 1994.

1397. Based on the firsthand evidence of Witness ATW, the Chamber is satisfied that the Tutsi civilians who were removed from CELA were taken to Muhima Brigade where they were briefly detained before being turned over to Interahamwe. The Chamber recalls that the civilians were handed over to the same Interahamwe who had earlier removed them from CELA. The Chamber also believes Witness ATW’s evidence that those civilians were taken towards Rugege where at least 10 of them were killed by Interahamwe at a roadblock.

1398. The Chamber is satisfied that the gendarmes at Muhima Brigade must have been aware of the context in which those refugees were removed from CELA and brought to the brigade. In the Chamber’s view, the gendarmes must have known that the refugees were suspected of being accomplices of the RPF and that they had been found with weapons. The Chamber also finds that the gendarmes must have been aware of the prominent and widely- publicised role of the Interahamwe in the killing of Tutsi civilians on the pretext that they were accomplices of the RPF. Given the gendarmes’ knowledge of these circumstances, the Chamber considers that they must have been aware of the strong likelihood that the Interahamwe would kill the refugees if the gendarmes were to hand the refugees over to the Interahamwe.

1399. Having found that gendarmes at Muhima Brigade were complicit in the crimes committed against Tutsi civilians who were removed from CELA on 20 April 1994, the Chamber will now determine whether the evidence is sufficient to find Ndindiliyimana 2417 T. 27 May 2008, p. 42 (ICS). 2418 T. 27 May 2008, p. 40 (ICS). 2419 T. 27 May 2008, p. 41. 17 May 2011 312/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T criminally responsible as a superior pursuant to Article 6(3) of the Statute for the role of gendarmes in these crimes. 1.5.2.3.3.3 Ndindiliyimana’s Superior Responsibility 1400. The Chamber will now determine whether Ndindiliyimana knew or had reason to know that his subordinates had committed or were about to commit these crimes. The Chamber will consider the full contours of Ndindiliyimana’s superior responsibility in the legal findings section of the Judgement.

1401. The Chamber notes that the Prosecution did not lead direct evidence to prove that Ndindiliyimana had knowledge of the role of the gendarmes at Muhima Brigade. However, the Prosecution submits that Ndindiliyimana’s knowledge of these events can be inferred from his testimony that he was aware of the events that unfolded at CELA and his admission that he received intelligence reports concerning events at CELA.2420 1402. The Chamber recalls that Ndindiliyimana testified to having been aware of the fact that a large number of assailants had gathered at CELA intending to attack the refugees there on suspicion that they were armed accomplices of the RPF. Ndindiliyimana also admitted that he knew of Préfet Renzaho’s intervention at CELA during the events, as well as admitting that he knew that a search was conducted at CELA during the events and that some of the refugees were found to be armed. Their weapons were confiscated and the refugees were transferred to St.. Paul Centre where they were protected by gendarmes.

1403. Having reviewed the evidence on the events at CELA, the Chamber is not satisfied that the fact that Ndindiliyimana had information, albeit limited, on the events that transpired at CELA is sufficient to conclude that he knew or had reason to know of the complicity of the gendarmes at Muhima Brigade in the eventual killing of the refugees who were abducted from CELA.

1404. The Chamber notes that Ndindiliyimana’s overall command of the Gendarmerie suggests some distance from the daily operations of the various gendarmerie brigades in Rwanda. In light of this fact, the Chamber cannot automatically assume that he would have been aware of the myriad actions of lower echelon gendarmes in various brigades in Rwanda in the absence of sufficient evidence to that effect. This fact, taken in concert with the wide occurrence of events similar to the one pleaded in paragraph 77 of the Indictment, leaves the Chamber with considerable reservations regarding the Prosecution’s claim that Ndindiliyimana was aware of the events at Muhima Brigade. The fact that Ndindiliyimana admitted in general terms to having received SITREPs from his units around the country does not dispel the Chamber’s reservations. Ndindiliyimana’s admission that he received SITREPs, in the absence of additional evidence, is insufficient to ground a definitive finding that Ndindiliyimana knew or had reason to know of the events at Muhima Brigade.

1405. Consequently, the Chamber finds that the Prosecution has not adduced sufficient evidence to prove that Ndindiliyimana had knowledge or reason to know of the role of his subordinates at Muhima Brigade in the sequence of events that led to the killings of the Tutsi refugees who had earlier been abducted from CELA. 2420 Prosecution Closing Brief, pp. 173-174. 17 May 2011 313/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6 Murder as a Crime Against Humanity 1.6.1 Introduction 1406. Count 4 of the Indictment charges all four Accused with murder as a crime against humanity pursuant to Article 3(a) of the Statute. In support of the allegations of murder as a crime against humanity set out in paragraphs 82 to 91 of the Indictment against Bizimungu, the Prosecution relies upon the same underlying conduct and evidence that it led in relation to the allegations of genocide (and complicity in genocide in the alternative) pleaded in paragraphs 68 and 69 of the Indictment against Bizimungu.

1407. In its factual findings for genocide, the Chamber set out in detail the evidence that underlies the allegations of killings at ETO-Nyanza,2421 CHK,2422 Charles Lwanga Church,2423 the Josephite Brothers compound,2424 ESI/Kabgayi Primary School,2425 Musambira commune office and dispensary,2426 and TRAFIPRO.2427 The Chamber will not repeat that evidence in its factual findings for murder as a crime against humanity. The Chamber found that of all the factual allegations relating to these seven crime sites, only four allegations have been proved beyond reasonable doubt in relation to the crime of genocide. These are the killings at the Josephite Brothers compound on 7 June 1994 and the killings at ESI/Kabgayi Primary School, the Musambira commune office and dispensary, and TRAFIPRO during April and May 1994. In the legal findings section of the Judgement, the Chamber will analyse whether the evidence relating to these four allegations supports the charge of murder as a crime against humanity in addition to the charge of genocide as alleged by the Prosecution.

1408. The Chamber notes that paragraphs 83 and 108 of the Indictment allege that Bizimungu, Nzuwonemeye and Sagahutu are responsible as superiors for killings of Tutsi civilians committed by soldiers of the RECCE Battalion at CHK. In its factual findings for genocide, the Chamber found that the Prosecution had not presented sufficient evidence to prove that soldiers of the Rwandan Army murdered Tutsi civilians at CHK. It follows from this finding that the allegations of murder as a crime against humanity in paragraphs 83 and 108 of the Indictment have not been proved beyond reasonable doubt against Bizimungu, Nzuwonemeye and Sagahutu.

1409. The Chamber will now consider the remaining allegations of murder as a crime against humanity set out in Count 4 of the Indictment. 2421 Indictment, para. 82. 2422 Indictment, para. 83. 2423 Indictment, para. 84. 2424 Indictment, para. 85. 2425 Indictment, para. 86. 2426 Indictment, para. 87. 2427 Indictment, para. 88. 17 May 2011 314/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.2 Bizimungu 1.6.2.1 Killing of Four Tutsi by Militiamen at Ruhengeri Agronomic Centre 1.6.2.1.1 Introduction 1410. The Indictment alleges that between 11 and 14 April 1994, Augustin Bizimungu went to a roadblock located near the Ruhengeri Agronomic Centre with four bound Tutsi in the rear cabin of his vehicle. It is alleged that soldiers escorting Bizimungu were “stamping” on the four Tutsi, that Bizimungu asked the Interahamwe who were manning the roadblock to kill the four Tutsi, and that the Interahamwe complied with Bizimungu’s request.2428 1.6.2.1.2 Evidence 1.6.2.1.2.1 Prosecution Evidence Prosecution Witness GFA 1411. Witness GFA was a member of the Interahamwe in Mukingo commune from 1991 to 1994.2429 The witness met Bizimungu at a number of meetings at the house of Nzirorera’s mother and at other meetings during 1992 and 1993.2430 He testified that he knew Bizimungu “very well”.2431 1412. On 9 April 1994, the Interahamwe set up three roadblocks in the Busogo secteur, including one on the main road downhill from the agriculture and livestock breeding school (the Institut supérieur d’agronomie et d’élevage, or ISAE).2432 Witness GFA testified that these roadblocks were set up to seek out the Tutsi “enemy”.2433 At the roadblocks, the witness and his fellow Interahamwe would check the identity

cards of passers-by and kill any Tutsi among them. They would also kill anyone who did not have an identity card because they suspected them of being accomplices of the RPF or Inkotanyi.2434 The witness testified that he would go to all three roadblocks on a daily basis because of his position in the Interahamwe.2435 These roadblocks were removed four days after they were established.2436 1413. Around 10 or 11 April 1994, Witness GFA met Bizimungu at the ISAE Busogo roadblock.2437 The witness identified Witness GFC as being among the Interahamwe present at the roadblock at that time.2438 Witness GFA testified that Bizimungu arrived in a camouflage-coloured Land Rover jeep with around five soldiers in the back of the vehicle.2439 Bizimungu asked the Interahamwe to “look at these Inkotanyi” in the rear or the jeep.2440 The witness did this and saw that there were three or four Tutsi lying down in the vehicle and that 2428 Indictment, para. 81. 2429 T. 30 January 2006, pp. 61-62; T. 1 February 2006, p. 30 (ICS). 2430 T. 30 January 2006, pp. 58, 71. 2431 T. 31 January 2006, p. 60. 2432 T. 31 January 2006, pp. 8-9. 2433 T. 31 January 2006, p. 8. 2434 T. 31 January 2006, p. 8. 2435 T. 31 January 2006, p. 8. 2436 T. 31 January 2006, p. 9. 2437 T. 31 January 2006, p. 12. 2438 T. 31 January 2006, p. 11; Prosecution Exhibit 77. 2439 T. 31 January 2006, pp. 12-13. 2440 T. 31 January 2006, p. 13. 17 May 2011 315/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the Tutsi were being “trampled [on] by the soldiers.”2441 Bizimungu ordered his soldiers to remove the Tutsi from the back of the jeep and hand them over to the Interahamwe at the roadblock. Bizimungu told the witness that the Interahamwe should decide the fate of the Tutsi. Bizimungu then left.2442 As soon as the soldiers had handed over the Tutsi, Witness GFA and his fellow Interahamwe started slapping them and hitting them with clubs. The witness testified that an Interahamwe member known as Musafiri then shot and killed the four Tutsi.2443 Prosecution Witness GFC 1414. Witness GFC was a member of the Interahamwe in 1994.2444 He testified that he knew Bizimungu and that in 1993, Bizimungu was the operational sector commander in Ruhengeri préfecture.2445 1415. Following the death of President Habyarimana on 7 April 1994, Witness GFC together with other Interahamwe manned the roadblock located near the ISAE, between the Gahanga and Rwangeri areas. While at this roadblock, they intercepted any Tutsi who passed by and handed them over to soldiers from the military position at Rubaka, after which the Tutsi were never seen again.2446 1416. Witness GFC testified that on or around 14 April 1994, after the killing of a large number of Tutsi at the ISAE Busogo roadblock,2447 Bizimungu and around six soldier

escorts arrived at the roadblock aboard a military jeep with four Tutsi in the back of the vehicle.2448 Witness GFC stated, “Bizimungu’s batmen were trampling upon [the four Tutsi]”.2449 Bizimungu told Witness GFC and the other Interahamwe who were at the roadblock, “Take care of these people, eliminate them, and I don’t want to see them again when I come back this way.”2450 1417. The witness recalled that Alexis Rukundo, the vice chairman of the Interahamwe in his commune,2451 shot one of the Tutsi in the presence of Bizimungu, at which point Bizimungu left in his vehicle.2452 Another individual, whom the witness knew as Bararwerekana, shot another Tutsi.2453 The Interahamwe then beat the remaining Tutsi with clubs and sticks.2454 Witness GFC testified that he participated in the beating of one of the victims using a stick.2455 Interahamwe together with local residents then buried the bodies.2456 2441 T. 31 January 2006, p. 13. 2442 T. 31 January 2006, p. 13. 2443 T. 31 January 2006, p. 14. 2444 T. 1 March 2005, p. 12. 2445 T. 1 March 2005, p. 21. 2446 T. 1 March 2005, pp. 26-27. 2447 T. 7 March 2005, p.

61. In his first statement of 29 October 2002, Witness GFC gave an approximate date of on or about 14 April 1994. In cross-examination, the witness was unable to recall the exact date, but stated that “it was after the killing of the large number of people that I referred to that Bizimungu brought these four persons”. 2448 T. 1 March 2005, p. 27; T. 8 March 2005, p. 21. 2449 T. 1 March 2005, p. 27. 2450 T. 1 March 2005, p. 27. 2451 T. 1 March 2005, p. 13. 2452 T. 1 March 2005, p. 27. 2453 T. 1 March 2005, p. 27. 2454 T. 1 March 2005, p. 27. 2455 T. 8 March 2005, p. 9. 17 May 2011 316/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness GFC stated, “If Bizimungu had not brought [the Tutsi to the roadblock], we would not have seen them, much less kill[ed] them. It is therefore Bizimungu who incited us to kill those four persons.”2457 1.6.2.1.2.2 Defence Evidence The Accused Bizimungu 1418. Bizimungu denied that he visited the ISAE Busogo roadblock between 8 and 11 April 1994 with four Tutsi in the back of his vehicle.2458 He stated that he was involved in other activities at that time and in any case he was travelling in a red pickup rather than a jeep. Bizimungu further stated, “I never brought somebody to be walked over by members of my escort.”2459 Defence Witness CBP99 1419. Witness CBP99 raised accusations of fabrication against certain witnesses, including Prosecution Witnesses GFC and GFA. Witness CBP99 was arrested on 16 December 1997 and detained for more than six years, mainly in Ruhengeri Prison, before he was released without charge on 23 January 2003.2460 He testified that Rwandan prosecutors encouraged detainees at Ruhengeri Prison to falsely incriminate former officials.2461 Specifically, the prosecutors gave the detainees a list of names of high-profile accused individuals, including Augustin Bizimungu, and pressured the detainees to implicate those individuals.2462 1420. During Witness CBP99’s time in Ruhengeri

Prison, he was in regular contact with Witnesses GFA, GFC and GFV.2463 Witness CBP99 testified that these three witnesses collaborated to falsely implicate Bizimungu in criminal acts. The witness stated, “[Witness GFA] was the one who attempted to organise the co-accused with a view to preparing scenarios that might be sold, in inverted commas, to the Gacaca jurisdiction and also before the various courts.”2464 According to Witness CBP99, these three witnesses told him that Bizimungu was not in fact involved in their criminal activities. Witness CBP99 testified, “[GFC, GFA and GFV] all confided in me, saying that Augustin Bizimungu was never present at any of the locations where they had acted, and that he was never part of the preparatory work for their actions.”2465 2456 T. 8 March 2005, p. 8. 2457 T. 3 March 2005, p. 10. 2458 Defence Counsel mistakenly put it to Bizimungu that paragraph 81 of the Indictment alleged that the killing of four Tutsi at the ISAE Busogo roadblock took place between 8 and 11 April 1994, when in fact the Indictment alleges that those killings took place between 11 and 14 April 1994: T. 11 December 2007, p. 25. 2459 T. 11 December 2007, p. 27. 2460 T. 3 March 2008, pp. 38-63. 2461 T. 3 March 2008, pp. 45, 57-58. 2462 T. 3 March 2008, pp. 45-58. 2463 T. 3 March 2008, pp. 65, 77. 2464 T. 3 March 2008, pp. 65, 77. 2465 T. 3 March 2008, pp. 58, 77. 17 May 2011 317/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness DB11-2 1421. Witness DB11-2 is a relative of Prosecution Witness GFA.2466 Witness DB11-2 testified that Witness GFA was not an Interahamwe in 1994, “in view of the fact that he was still a student”,2467 and that he did not undergo any military training.2468 1422. Witness DB11-2 followed Gacaca proceedings closely in his area and was never absent from the hearings. No mention was ever made during Gacaca proceedings of the killing of four Tutsi at a roadblock at ISAE Busogo.2469 The witness expressed the view that there was never any roadblock at the ISAE Busogo site and that the alleged killing of four Tutsi never took place. According to the witness, “If the incident had occurred, it would have been revealed. It would have been stated before the Gacaca courts”.2470 1423. Witness DB11-2 further testified that while he was in Ruhengeri Prison, employees of the Ruhengeri public prosecutor’s office visited and asked him to testify at the ICTR against Nzirorera and Zigiranyirazo. The prosecutors told him that if he agreed to testify before the ICTR, they would tell him what to say and then he would be released.2471 According to the witness, the prosecutors made the same offer to several other detainees, and those who accepted were removed from the general prison population and told what they

should say before the Tribunal.2472 The witness refused because he did not want to testify on matters that were unknown to him and because he was focused on his own case.2473 Defence Witness DE9-7 1424. Witness DE9-7 worked at the ISAE Busogo.2474 The witness went to the ISAE regularly during April 1994, and when he arrived each morning the staff would inform him of what had transpired during the previous night.2475 1425. Witness DE9-7 saw a roadblock near the ISAE on the way to Busugo in the morning of 7 April 1994. He testified that the individuals manning the roadblock were armed with clubs.2476 He asked the individuals to move the roadblock so that they were not close to the compound of the ISAE, and within approximately 30 minutes they had dismantled the roadblock and moved it away.2477 The witness testified that he was not aware of the killing of four Tutsi at the ISAE Busogo roadblock2478 or of the burial of their bodies nearby.2479 2466 T. 12 June 2007, p. 3 (ICS). 2467 T. 12 June 2007, pp. 35-36 (ICS). 2468 T. 12 June 2007, pp. 40-42 (ICS). 2469 T. 12 June 2007, pp. 43-44 (ICS). 2470 T. 12 June 2007, p. 44 (ICS). 2471 T. 12 June 2007, p. 42 (ICS). 2472 T. 12 June 2007, p. 43 (ICS). 2473 T. 13 June 2007, p. 16 (ICS). 2474 T. 6 June 2007, pp. 23-24 (ICS). 2475 T. 6 June 2007, pp. 40-41 (ICS). 2476 T. 6 June 2007, pp. 39-40 (ICS). 2477 T. 6 June 2007, pp. 39-40 (ICS). 2478 T. 6 June 2007, pp. 40-41 (ICS). 2479 T. 6 June 2007, p. 7. 17 May 2011 318/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.2.1.3 Deliberations 1426. The Prosecution relies exclusively on the evidence of Witnesses GFA and GFC to support the allegation in paragraph 81 of the Indictment regarding the killing of four Tutsi at the ISAE Busogo roadblock in Ruhengeri préfecture. Because they are accomplice witnesses, the Chamber will consider their testimony with caution. Witness GFA 1427. Before this Chamber, Witness GFA gave a detailed account of Bizimungu’s role in the killing of four Tutsi at the ISAE roadblock, as alleged in paragraph 81 of the Indictment. However, after his testimony before this Chamber, the witness was recalled in the Karemera et al. trial, where he specifically recanted his earlier testimony regarding Bizimungu’s role in the killing of the four Tutsi at the roadblock near ISAE.2480 In Chapter III of this Judgement, the Chamber set out in detail the background to Witness GFA’s recantation in the Karemera et al. trial and the relevant events that have occurred since that recantation. The Chamber considers that this clear recantation renders his evidence on this particular incident unreliable. The Chamber therefore excludes any consideration of Witness GFA’s evidence in this regard. Witness GFC 1428. The Chamber’s rejection of Witness GFA’s evidence in relation to the killing of four Tutsi at the ISAE

Busogo roadblock leaves only the testimony of Witness GFC in support of this allegation against Bizimungu. The Chamber recalls that Witness GFC gave a firsthand account of Bizimungu ordering the killing of the four Tutsi at the roadblock. His evidence seemed largely consistent with his account of this incident given in his pre-trial statements. As Witness GFC is the key witness in relation to this allegation, the Chamber will set out in detail its assessment of his credibility.

1429. The Chamber notes that Witness GFC was arrested and detained in Ruhengeri Prison in 1996 and accused of genocide.2481 Following his release, the witness denied participation in the genocide before the Rwandan prosecutors.2482 On 29 October 2002, ICTR investigators met with Witness GFC at Ruhengeri Prison, and the witness provided a detailed statement in which he confessed to having committed acts of genocide.2483 On 30 October 2002, the witness confessed to the Rwandan authorities that he had committed acts of genocide,2484 and he was provisionally released from prison on 29 January 2003.2485 At the time of his testimony, the witness was awaiting sentencing by the Gacaca courts.2486 1430. The Defence raised a number of submissions challenging Witness GFC’s credibility. In particular, the Chamber recalls the Defence submission that Witness GFC lacks credibility in light of the false statements that he gave to Rwandan prosecutors prior to his confession on 30 October 2002 and the circumstances surrounding his statements to Rwandan prosecutors 2480 Defence Exhibit 689A. 2481 T. 1 March 2005, pp. 8-9 (ICS). 2482 T. 2 March 2005, p. 36. 2483 T. 2 March 2005, p. 16; T. 3 March 2005, pp. 5-7. 2484 T. 1 March 2005, p. 9 (ICS). 2485 T. 2 March 2005, p. 19. 2486 T. 3 March 2005, p. 39. 17 May 2011 319/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T and ICTR investigators during 2002 and 2003.2487 In cross-examination, Defence counsel for Bizimungu noted that it was a remarkable coincidence that Witness GFC confessed to Rwandan prosecutors the day after his meeting with ICTR investigators on 29 October 2002, given the witness’s claim that he had made his decision to confess several weeks earlier on 25 September 2002.2488 Defence counsel suggested that the witness had heard that co-detainees were making deals with the ICTR and that he asked to meet with ICTR investigators to see if he could secure a deal himself.2489 Counsel further suggested that it was only once Witness GFC had secured certain guarantees from the ICTR investigators that he decided to confess to the Rwandan prosecutors.2490 The witness refuted these assertions and maintained that it was after 25 September 2002, when the Rwandan authorities explained the benefits of confession, that he decided to confess in order to “appease his conscience”.2491 1431. The Chamber has carefully considered the Defence submission regarding Witness GFC’s pre-trial statements and does not find that submission, by itself, to negate the credibility of his testimony. The Chamber is satisfied with the witness’s explanations for his initial denial of any involvement in the genocide. The Chamber notes that the

witness gave two reasons for his decision to confess to his crimes in 2002: that he wanted to appease his conscience and that he had learned of the advantages of a confession, namely that it might lead to a reduction in sentence and the avoidance of the death penalty.2492 The Chamber considers these explanations to be credible. Furthermore, given the immense personal significance of the witness’s decision to confess, the Chamber considers it plausible that he waited six weeks before providing his confessional statements to ICTR investigators and then to Rwandan prosecutors the following day. Therefore, the Chamber does not consider that the circumstances surrounding his pre-trial statements impair his credibility.

1432. The Defence also sought to impugn the credibility of Witness GFC by pointing out that the witness described Bizimungu’s role in ordering the killing of four Tutsi at the ISAE roadblock in his first statement to ICTR investigators on 29 October 2002, but the witness did not mention this incident in his first confessional statement to Rwandan prosecutors the following day. The witness explained this difference by stating that his confession to the Rwandan prosecutors related only to his own participation in the crimes, and therefore it did not refer to Bizimungu.2493 The Chamber considers this explanation reasonable. Thus, the Chamber does not consider that the variances between his statements impair his credibility.

1433. Notwithstanding the above, the Chamber is reluctant to rely on the evidence of Witness GFC, who is a confessed accomplice in the alleged killings at the ISAE Busogo roadblock, in the absence of credible corroborating evidence. At the time of his testimony before this Chamber, the witness was on provisional release from prison in Rwanda and was awaiting sentencing by the Gacaca courts.2494 The witness had a vested interest in inculpating Bizimungu in these killings and thereby minimising his own participation. In these circumstances, the Chamber finds that it is precarious to ground a finding of fact regarding the alleged killings at the ISAE Busogo roadblock solely on the uncorroborated evidence of 2487 Bizimungu Closing Brief, paras. 776-780. 2488 T. 2 March 2005, p. 16; T. 3 March 2005, pp. 5-7. 2489 T. 3 March 2005, p. 5. 2490 T. 3 March 2005, pp. 5-7, 18. 2491 T. 2 March 2005, pp. 41-43; T. 3 March 2005, pp. 3-7; T. 7 March 2005, pp. 21-22. 2492 T. 2 March 2005, pp. 41-43; T. 3 March 2005, pp. 3-7; T. 7 March 2005, pp. 21-22. 2493 T. 3 March 2005, pp. 9, 29. 2494 T. 3 March 2005, p. 39. 17 May 2011 320/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness GFC, a confessed accomplice. Accordingly, the Chamber finds that the Prosecution has not proved beyond reasonable doubt that Bizimungu bears responsibility for the killing of four Tutsi at the ISAE Busogo roadblock in Ruhengeri préfecture. 1.6.2.2 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Butare 1.6.2.2.1 Introduction 1434. The Indictment alleges that in Butare starting on 19 April 1994, soldiers from the Rwandan Army and Interahamwe abducted and killed many civilians from the préfecture office, the Episcopal Church of Rwanda (EER), Gishamvu Church and Nyumba Parish.2495 The Indictment also alleges that in Butare starting on 19 April 1994, soldiers from the Rwandan Army and Interahamwe went on a regular basis to the préfecture office, EER, Gishamvu Church and Nyumba Parish to abduct female refugees and rape them. It is alleged that these rapes were often accompanied by humiliating and degrading treatment.2496 The Indictment alleges that Bizimungu bears superior responsibility for these crimes.2497 1.6.2.2.2 Evidence Prosecution Witness LN 1435. Witness LN lived in Butare from 27 April to 12 June 1994.2498 During that period, he observed that many people had sought refuge at the Butare préfecture office.2499 The witness testified that at the préfecture office, “the people were

saying that rape incidents were very frequent and that they happened in full view of everybody.”2500 Sometime between 27 April and 15 May 1994, the witness saw a man, possibly a member of the Interahamwe, rape a young female refugee aged less than 13 in the open space in front of the préfecture office.2501 Witness LN stated that the incident occurred in broad daylight and “in full view of everybody”.2502 No one expressed disapproval or sought to prevent the man from raping the girl, including the soldiers who were present at the scene of the attack.2503 The witness subsequently heard that other children who had sought refuge at the préfecture office were also victims of rape.2504 Prosecution Witness QBP 1436. Witness QBP, a Tutsi, lived in Butare préfecture in 1994. In late May 1994, following attacks during which three of her children were killed, the witness and her remaining four 2495 Indictment, para. 89. 2496 Indictment, para. 116. 2497 Indictment, paras. 78, 110. 2498 T. 12 September 2005, p. 40 (ICS); T. 12 September 2005, p. 79. 2499 T. 12 September 2005, p. 82. 2500 T. 12 September 2005, p. 82. 2501 T. 12 September 2005, pp. 82-83. 2502 T. 12 September 2005, p. 82. 2503 T. 12 September 2005, p. 83. 2504 T. 12 September 2005, p. 83. 17 May 2011 321/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T children sought refuge at the Butare préfecture office.2505 When she arrived at the préfecture office, she was informed that the Tutsi refugees had moved to EER.2506 1437. Witness QBP immediately went to EER, where there were around six classrooms full of Tutsi refugees. She stayed there for a period of one to two weeks.2507 During that time, soldiers and Interahamwe came regularly to EER and killed refugees.2508 Witness QBP testified, “The soldiers and the Interahamwe would come during the daytime when we had come out of the classrooms and then they would take – or grab the men.”2509 At one point, the witness saw soldiers kill seven male refugees in front of classrooms.2510 1438. In addition, Witness QBP testified that soldiers and Interahamwe came to EER both day and night and took female refugees away to rape them. When the girls returned to EER, the witness observed that they were “in a pitiful state” and they had difficulty walking.2511 The witness recalled that a young girl named Suzanne, who was the daughter of the witness’s neighbour, was abducted by the Interahamwe. When Suzanne returned the following day, she was crying and she could hardly walk.2512 At one point, Witness QBP gave one of her children to Suzanne to hold so that the rapists would leave her alone, but this ploy did not work and

the rapists continued to take Suzanne away to rape her.2513 The witness added that Suzanne’s sisters also suffered the same atrocities.2514 1439. The EER pastor told the refugees that they had to leave EER, so they moved to the Butare préfecture office.2515 Witness QBP testified that assailants came to the préfecture office at night to rape the female refugees.2516 One night, Minister Pauline Nyiramasuhuko arrived with her son Shalom. They were accompanied by a number of soldiers wearing camouflage uniforms and other people unknown to the witness.2517 Nyiramasuhuko asked the soldiers at the préfecture office, “Are these the remaining accomplices?” Nyiramasuhuko then told them, “[T]hese young Tutsi girls were arrogant, so the time has come for them to be raped, so you have to seize this opportunity.” On that instruction, the soldiers and Interahamwe attacked the refugees and started raping them.2518 Soldiers raped three daughters of the witness’s neighbour, Mathias, and then took the three girls, including Suzanne, to their parents’ house in Ndora commune, where they were killed by Interahamwe.2519 The witness also heard from other people that some refugees had been taken in a big van to a place called Kabutare to be killed on the orders of Nyiramasuhuko.2520 2505 T. 5 September 2005, p. 36; Defence Exhibit 54, p. 5. 2506 T. 5 September 2005, p. 40. 2507 T. 5 September 2005, p.

41. 2508 T. 5 September 2005, pp. 41-42. 2509 T. 5 September 2005, p. 42. 2510 T. 5 September 2005, p. 44. 2511 T. 5 September 2005, p. 45. 2512 T. 5 September 2005, p. 45; T. 6 September 2005, p. 83. 2513 T. 5 September 2005, p. 45. 2514 T. 6 September 2005, p. 84. 2515 T. 5 September 2005, p. 45. 2516 T. 7 September 2005, p. 34. 2517 T. 5 September 2005, pp. 52-53; T. 7 September 2005, p. 34. 2518 Defence Exhibit 54, p. 5; T. 5 September 2005, pp. 52-53. 2519 Defence Exhibit 54, p. 5. 2520 Defence Exhibit 54, p. 5. 17 May 2011 322/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1440. The following day, the préfet told the refugees to leave the Butare préfecture office.2521 The refugees were then driven aboard a bus owned by ONATRACOM to Rango Forest, accompanied by Bourgmestre Kanyabashi and one Interahamwe.2522 When they arrived at the forest, each refugee was given a hoe and told to dig their own grave.2523 The Interahamwe asked the refugees to assemble, but the refugees hid behind the trees in the forest.2524 The witness testified that the impending attack by the Interahamwe was foiled when RPF Inkotanyi soldiers arrived and the Interahamwe subsequently fled.2525 Those soldiers then took the refugees to another location.2526 Prosecution Witness XY 1441. Witness XY, a Tutsi, lived with her family in Butare town in April 1994.2527 On 22 April 1994, following an attack on her house during which her father and brother were killed, the witness fled to the University Hospital in Butare.2528 The witness testified that about two weeks after her arrival at the hospital, she and approximately 800 other refugees were relocated to the Butare préfecture office.2529 1442. The witness stayed at the préfecture office for about three weeks, together with a large number of Tutsi refugees.2530 During that period, soldiers and Interahamwe came to the préfecture office every day and night to

pick up male and female refugees.2531 The witness identified the soldiers by their military uniforms, military boots and black berets.2532 1443. Witness XY testified that on one occasion she saw two soldiers and three Interahamwe take her friend Marie and other refugees from the préfecture office. When Marie returned the following morning, she was fully dressed but her clothes were dirty and she was wounded on her head.2533 Marie told the witness that she had been raped in the woods in Rwabayanga, “near the pit where bodies were being thrown”, and that the people who were taken away at the same time as Marie were killed in the Rwabayanga woods.2534 1444. Numerous other female refugees were taken by soldiers and subsequently returned to the préfecture office. Witness XY testified, “The soldiers took their victims … to the woods and raped them but the victims came back and they did not fail to tell us what had happened.”2535 Some of the girls came back wounded from the attacks.2536 2521 Defence Exhibit 54, p. 5; T. 5 September 2005, p. 79. 2522 T. 5 September 2005, pp. 79-81. 2523 T. 5 September 2005, p. 80. 2524 T. 5 September 2005, p. 81. 2525 T. 5 September 2005, p. 81. 2526 T. 5 September 2005, pp. 81-82. 2527 T. 13 March 2006, p. 7. 2528 T. 13 March 2006, pp. 7-8. 2529 T. 13 March 2006, pp. 9-10. 2530 T. 13 March 2006, pp. 11-12; T. 15 March 2006, p. 3. 2531 T. 13 March 2006, p. 11. 2532 T. 13 March 2006, pp. 11-12. 2533 T. 13 March 2006, pp. 12-13; T. 15 March 2006, pp. 6-9, 11. 2534 T. 15 March 2006, p. 6; T. 13 March 2006, pp. 11-13. 2535 T. 14 March 2006, p. 39. 2536 T. 15 March 2006, p. 4. 17 May 2011 323/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1445. Witness XY and other refugees were subsequently transferred to EER by soldiers who were the préfet’s bodyguards.2537 She estimated that there were approximately 200 refugees at EER.2538 The witness testified that rapes and abductions were committed at EER by soldiers in collaboration with Interahamwe.2539 Soldiers came to EER on a daily basis to rape women and girls, but the Interahamwe came less frequently.2540 1446. The witness was herself raped by a soldier about three weeks after she arrived at EER.2541 She testified that she was sitting with a group of young girls when a soldier approached them and asked the witness if her name was XY.2542 The soldier took her into the woods about 300 metres from the group and raped her while hitting her and calling her a “wicked Inyenzi”.2543 The witness stayed at EER for another week after this incident.2544 1.6.2.2.3 Deliberations 1447. Based on the evidence of Prosecution Witnesses LN, XY and QBP, the Chamber finds that several hundred Tutsi civilians sought refuge at the préfecture office and EER in Butare during late April and May 1994. The Chamber will now address the allegations of murder before turning to address the allegations of rape and humiliating and degrading treatment at the Butare préfecture office and EER. The Chamber notes that the

Indictment also alleges that soldiers and Interahamwe committed abductions, murders and rapes at Gishamvu Church and Nyumba Parish in Butare préfecture. However, the Prosecution did not lead any evidence regarding the alleged crimes at those locations. 1.6.2.2.3.1 Abduction and Murder of Refugees at the Butare Préfecture Office and EER 1448. Witnesses XY and QBP both testified about the abduction and murder of refugees at the préfecture office and EER in Butare. At the préfecture office, Witness XY saw soldiers and Interahamwe take her friend Marie and other refugees away, and when Marie returned she told Witness XY that the other refugees had been killed in the Rwabayanga woods.2545 Witness QBP testified about an incident when Minister Nyiramasuhuko came to the préfecture office and a number of refugees were subsequently taken away and killed by soldiers and Interahamwe. Three of the victims were Witness QBP’s neighbours.2546 Similarly, at EER, Witnesses XY and QBP both saw soldiers and Interahamwe take away male refugees,2547 and at one point Witness QBP saw soldiers kill seven male refugees.2548 The evidence of Witnesses XY and QBP regarding the abduction and killing of refugees in Butare préfecture was broadly consistent, and the Chamber considers it to be credible. 2537 T. 13 March 2006, p. 13. 2538 T. 15 March 2006, p. 10. 2539 T. 13 March 2006, p. 14. 2540 T. 13 March 2006, p. 18. 2541 T. 13 March 2006, p. 15. 2542 T. 13 March 2006, p. 15. 2543 T. 13 March 2006, pp. 15-17; T. 14 March 2006, pp. 46-47. 2544 T. 13 March 2006, p. 17. 2545 T. 15 March 2006, p. 6; T. 13 March 2006, pp. 12-13. 2546 Defence Exhibit 54, p. 5. 2547 T. 5 September 2005, p. 42; T. 13 March 2006, p. 14. 2548 T. 5 September 2005, p. 45. 17 May 2011 324/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.2.2.3.2 Rape of Female Refugees at the Butare Préfecture Office and EER 1449. Witnesses LN, XY and QBP all testified about rapes committed against female refugees at the Butare préfecture office during late April and May 1994. Witness XY testified that soldiers and Interahamwe came to the préfecture office every day and night to pick up refugees.2549 The female refugees subsequently returned, often wounded, and told the other refugees that they had been raped.2550 Witness XY saw soldiers and Interahamwe take her friend Marie from the préfecture office, and when Marie returned she was wounded in the head and she told Witness XY that soldiers had raped her in the woods nearby.2551 Similarly, Witness QBP testified that assailants came to the préfecture office at night to rape the female refugees.2552 She also testified about an incident when Minister Nyiramasuhuko came to the office and, on Nyiramasuhuko’s instructions, soldiers and Interahamwe raped a number of refugees.2553 Witness LN testified that he witnessed the rape of a young female refugee in broad daylight in front of the préfecture office, in full view of a number of soldiers.2554 1450. Witnesses XY and QBP also testified that soldiers and Interahamwe raped a number of female refugees at EER during late April and May 1994.2555 Witness XY was

herself raped by a soldier about three weeks after she arrived at EER.2556 Witness QBP saw a number of girls taken out of EER by soldiers and Interahamwe, and when they returned they were “in a pitiful state” and they had difficulty walking.2557 Three of the rape victims, including a girl named Suzanne, were the daughters of Witness QBP’s neighbour.2558 1451. The Chamber notes that the evidence of Witnesses XY, QBP and LN regarding the rapes of female refugees in Butare préfecture is broadly consistent and the Chamber considers it to be credible. 1.6.2.2.3.3 Bizimungu’s Superior Responsibility 1452. In his testimony before the Chamber, Bizimungu knew or had reason to know of the implication of his subordinates in the rapes and murders committed at the préfecture office and EER in Butare, starting on 19 April 1994. The Chamber will consider the full contours of Bizimungu’s superior responsibility in the legal findings section of the Judgement.

1453. The Chamber recalls that the Prosecution presented a number of documents showing that Bizimungu was alerted to the dire situation in Rwanda at large and to crimes committed against Tutsi civilians in other parts of Rwanda. For example, the Prosecution tendered a report of the UN High Commissioner for Human Rights, José Ayala-Lasso, regarding his mission to Rwanda from 11 to 12 May 1994. Lasso’s report states, “General Bizimungu 2549 T. 13 March 2006, pp. 11-12. 2550 T. 13 March 2006, p. 11; T. 14 March 2006, p. 39; T. 15 March 2006, p. 4. 2551 T. 13 March 2006, p. 12; T. 15 March 2006, pp. 6-9, 11. 2552 T. 7 September 2005, p. 34. 2553 Defence Exhibit 54; T. 5 September 2005, pp. 52-53. 2554 T. 12 September 2005, pp. 82-83. 2555 T. 13 March 2006, p. 14. 2556 T. 13 March 2006, p. 15. 2557 T. 5 September 2005, p. 45. 2558 T. 5 September 2005, p. 45; T. 6 September 2005, pp. 83-84. 17 May 2011 325/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T recognized the fact, and expressed regret, that massacres had been committed by forces linked to the Government which he termed as excesses (‘débordements’).”2559 1454. In his testimony before this Chamber, Bizimungu acknowledged that between April and July 1994, he received situation reports (SITREPs) twice daily from all Rwandan Army units across the country. The Prosecution presented no evidence regarding the content of those SITREPs. However, Bizimungu admitted that the SITREPs contained information not only about the hostilities between the Rwandan Army and the RPF, but also about the security situation affecting the civilian population of the relevant area.2560 In relation to Butare, Bizimungu testified: [I]n Butare there were events which unfortunately occurred when I was taking up my post as chief of staff. On the 19th I arrived in Kigali. No, in fact I arrived on the 18th, and on the 19th I took over command. So, in Butare there were disturbances and unfortunately, I received reports, but I wasn't told whether such and such a soldier was implicated, but I received reports from soldiers who were on location.2561 1455. In addition to Bizimungu’s admission set out above, the Chamber will now consider whether it has circumstantial evidence suggesting that Bizimungu in fact knew that his subordinates had committed or were about to commit crimes similar to those alleged in paragraphs 89 and 116 of the Indictment.

1456. The Chamber notes that the crimes established by the testimony of Prosecution Witnesses LN, XY and QBP were committed on a regular basis from mid-April until early June 1994. Rwandan soldiers were present at the Butare préfecture office and EER throughout this period, and many soldiers were themselves perpetrators of the crimes. Based on the evidence of these Prosecution witnesses, the Chamber is satisfied that soldiers committed these crimes in a systematic manner. Furthermore, these crimes were committed in premises owned by the government and religious organisations, often in broad daylight and in open locations. During one of these incidents, Pauline Nyiramasuhuko, a minister of the interim government, arrived at the préfecture office and incited soldiers to rape the refugees.2562 In the view of the Chamber, these factors indicate that the crimes that underpin the alleged superior responsibility of Bizimungu were a coordinated series of events as opposed to random crimes.

1457. Having carefully weighed these factors, together with Bizimungu’s admission that he received information about “disturbances” that “unfortunately” occurred in Butare at that time, the Chamber is satisfied that Bizimungu must have known of the crimes alleged in paragraphs 89 and 116 of the Indictment. At the very least, Bizimungu certainly possessed information that was sufficiently alarming to put him on notice of the risk that crimes of this nature might be carried out by his subordinates in Butare, thus necessitating further 2559 Prosecution Exhibit 194, p.

8. See also Prosecution Exhibit 186; Prosecution Exhibit 187; Prosecution Exhibit 191; Prosecution Exhibit 192; Prosecution Exhibit 193; Prosecution Exhibit 195; Prosecution Exhibit 196; Prosecution Exhibit 206. 2560 T. 13 December 2007, pp. 29-30. 2561 T. 14 December 2007, p. 24. 2562 T. 5 September 2005, pp. 52-53; T. 7 September 2005, p. 36. 17 May 2011 326/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T inquiry.2563 Nonetheless, the Chamber finds that Bizimungu did not take reasonable and necessary measures to prevent these crimes or to punish the perpetrators. 1.6.2.3 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Gisenyi 1.6.2.3.1 Introduction 1458. The Indictment alleges that on 7 April 1994, Anatole Nsengiyumva (the military commander of Gisenyi) held a meeting at Camp Gisenyi and ordered “certain political leaders, local authorities and militiamen ... to kill all RPF accomplices and Tutsi.” The Indictment further alleges that Anatole Nsengiyumva “ordered his subordinates to distribute rifles and grenades to militiamen” and that between April and July 1994 militiamen acting under those orders “tracked down, abducted and killed several members of the Tutsi and moderate Hutu population of Gisenyi.”2564 The Indictment alleges that Bizimungu bears superior responsibility for these crimes.2565 1.6.2.3.2 Evidence Prosecution Witness DO 1459. Witness DO testified that in 1994 he was a taxi driver living in Gisenyi.2566 On 7 April 1994, the witness drove a soldier named Captain Bizumuremyi together with a number of other soldiers, Interahamwe leaders and conseillers to Camp Gisenyi, where they attended a meeting with the camp commander Colonel Anatole Nsengiyumva.2567 The witness did not

take part in the meeting but he was situated close to where the meeting was held.2568 1460. When the participants emerged from the meeting, the witness was close enough to hear Nsengiyumva ask Bizumuremyi to provide the Interahamwe with the equipment that they needed “to do their job”. The witness also heard Nsengiyumva ask the participants to “distribute ammunition and grenades equipment”.2569 Bizumuremyi then went about distributing firearms, ammunition and grenades to the Interahamwe and soldiers who were present, in accordance with Nsengiyumva’s instructions. The Interahamwe and soldiers formed a number of groups in order to distribute the weapons in Gisenyi town.2570 The witness was assigned to be the driver for a group consisting of three soldiers and a number of Interahamwe.2571 2563 Hadžihasanović Appeal Judgement, para. 30; Strugar Appeal Judgement, para.

301. See Čelebići Appeal Judgement, para. 238 (The Appeals Chamber has made it clear in a number of cases that the information available to the Accused does not need to provide specific details about the unlawful acts committed or about to be committed by his subordinates); Bagilishema Appeal Judgement, para. 42; Krnojelac Appeal Judgement, para. 155; Media Appeal Judgement, para. 791; Strugar Appeal Judgement, para. 298. 2564 Indictment, para. 90. 2565 Indictment, para. 78. 2566 T. 11 May 2006, p. 32 (ICS). 2567 T. 11 May 2006, pp. 44-46. 2568 T. 11 May 2006, p. 47. 2569 T. 11 May 2006, p. 47. 2570 T. 11 May 2006, pp. 47-48, 58. 2571 T. 11 May 2006, pp. 58-59. 17 May 2011 327/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1461. The witness also testified that the participants emerged from the meeting carrying “lists of people who should be killed on that day.”2572 The list that was given to the witness’s group contained about 40 to 45 names of Tutsi and Hutu persons who were to be killed. The leader of the witness’s group told the witness that the lists had been drawn up in advance by Nsengiyumva “and his corroborators”.2573 According to the witness, “We had to kill the enemy of the country. And by the word, ‘enemy’, we were to understand all Tutsi.”2574 1462. The witness and his group left Camp Gisenyi armed with grenades, pistols and Kalashnikovs as well as traditional weapons.2575 They drove first to Bugoyi cellule, where they killed a Tutsi teacher whose name was on their list together with his daughter.2576 They also killed a Hutu businessman who they claimed was an accomplice of the Tutsi.2577 They took the body of the Hutu man to the cemetery located towards the north of Gisenyi town, which became known as “commune rouge” because of the killings that took place there during the genocide.2578 They then travelled to Munduha cellule, where soldiers in their group shot and killed a man. The witness’s group encountered another group of assailants and together they attacked two Tutsi using machetes.2579 One of those

victims subsequently died from his wounds. Next, the group travelled to Gibunyi cellule, where they met another group of assailants and together they killed a Tutsi businessman on their list.2580 The group then killed a Tutsi businesswoman on their list together with her daughter in Kivumo cellule.2581 Finally, the group killed a Hutu man in Buguye cellule.2582 1463. Later in the afternoon, the witness returned to Camp Gisenyi, where Nsengiyumva had convened a meeting of the heads of the various groups.2583 During the meeting, Nsengiyumva stated, “I learned that some people are trying to hide the enemy of Rwanda, and I warn you that anybody who tries to do that once again, shall be killed, together with the person they tried to hide … In particular, I would like to warn the conseiller du secteur of Gisenyi that if these people continue ... to hide the enemy, we will punish them.”2584 Following the meeting, the witness and his group “carried on with the killings.”2585 1464. On 8 and 9 April, the witness picked up corpses from Camp Gisenyi and took them to the “commune rouge” cemetery.2586 At some point, the witness encountered Nsengiyumva at commune rouge, where Nsengiyumva could see people being killed.2587 2572 T. 11 May 2006, p. 48; T. 16 May 2006, p. 5. 2573 T. 16 May 2006, pp. 5-9. 2574 T. 11 May 2006, p. 48. 2575 T. 11 May 2006, pp. 58-59. 2576 T. 11 May 2006, pp. 59-60. 2577 T. 11 May 2006, pp. 60-65. 2578 T. 11 May 2006, pp. 61-62. 2579 T. 11 May 2006, pp. 65-67; T. 16 May 2006, p. 37. 2580 T. 11 May 2006, pp. 70-71. 2581 T. 11 May 2006, pp. 71-72. 2582 T. 11 May 2006, pp. 72-74. 2583 T. 11 May 2006, p. 74. 2584 T. 11 May 2006, p. 74. 2585 T. 11 May 2006, p. 74. 2586 T. 15 May 2006, pp. 8, 15. 2587 T. 17 May 2006, p. 5. 17 May 2011 328/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness OX 1465. Witness OX testified that on 7 April 1994, he saw Colonel Anatole Nsengiyumva, the commander of Camp Gisenyi, with a soldier named Bizimuremyi and a large number of Interahamwe leaders at the Gisenyi bus station.2588 While at the bus station, he saw Bizumuremyi distributing firearms and grenades to Interahamwe.2589 Prosecution Witness Isaie Murashi 1466. Witness Murashi was a member of the Rwandan parliament living in Gisenyi préfecture in April 1994.2590 He testified that the Rwandan authorities distributed weapons to Interahamwe and other civilians in Gisenyi from late 1992 onwards.2591 At some point during that period, Anatole Nsengiyumva became the operational sector commander in Gisenyi and he was also widely considered to be “the coordinator of the Interahamwe” in the area.2592 1467. During the weeks preceding the death of the President, Witness Murashi heard from a parish priest in Gisenyi, Father Augustin Ntagara, that lists of individuals to be killed were circulating in Gisenyi and that the witness’s name was included on those lists.2593 The witness heard about the death of the President in the morning of 7 April 1994, and he and his family then sought refuge in the Nyundo seminary.2594 Later in the afternoon, the witness heard reports of people being killed at

Rwambura Parish in Gisenyi. He phoned Father Ntagara, who was in Gisenyi, who told him that following a meeting attended by Anatole Nsengiyumva and Interahamwe at the Gisenyi taxi park in the morning of 7 April, Interahamwe had started to kill Tutsi.2595 Shortly after the witness’s conversation with Father Ntagara, Interahamwe attacked the parish where the witness and his family had taken refuge and killed a number of people.2596 1468. After the Interahamwe had left, the witness and his family moved to a nearby chapel.2597 The Interahamwe returned that evening and attacked the chapel, killing a number of people including the witness’s four children.2598 The witness moved to the Nyundo cathedral, where he found his wife who had been seriously injured in the attack. The following day, a group of Interahamwe led by a Rwandan soldier named Lieutenant Eugene attacked the cathedral.2599 This was followed by another Interahamwe attack on 9 April, during which a number of people were killed including the witness’s wife.2600 Subsequently, the witness was able to escape from the cathedral by posing as a priest.2601 He later learned 2588 T. 14 June 2006, pp. 7-8. 2589 T. 14 June 2006, pp. 8, 66. 2590 T. 7 September 2006, p. 3. 2591 T. 7 September 2006, pp. 25-28. 2592 T. 7 September 2006, pp. 28, 43, 62. 2593 T. 7 September 2006, pp. 36-37. 2594 T. 7 September 2006, pp. 37-38. 2595 T. 7 September 2006, pp. 38-39, 43-44, 62. 2596 T. 7 September 2006, p. 39. 2597 T. 7 September 2006, pp. 39, 41. 2598 T. 7 September 2006, pp. 39-41. 2599 T. 7 September 2006, pp. 52, 54. 2600 T. 7 September 2006, p. 54. 2601 T. 7 September 2006, p. 56. 17 May 2011 329/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T from a local nun named Sister Fayda that Anatole Nsengiyumva had been moving around Nyundo while the witness and his wife were in the cathedral in Nyundo.2602 1.6.2.3.3 Deliberations 1469. The Chamber recalls the testimony of Witness DO that Nsengiyumva held a meeting at Camp Gisenyi on 7 April 1994. After the meeting, the witness heard Nsengiyumva order Captain Bizumuremyi to provide Interahamwe with the equipment they needed “to do their job”. He also testified that the soldiers and Interahamwe who had attended the meeting were provided with lists bearing the names of Hutu and Tutsi individuals who were to be killed. Witness DO’s evidence regarding the meeting held at Camp Gisenyi and the activities of Anatole Nsengiyumva during that meeting is not corroborated by the evidence of other Prosecution witnesses.

1470. The Chamber notes that Prosecution Witnesses OX and Murashi gave evidence regarding the killings of civilians in Gisenyi. However, their evidence does not reliably implicate Nsengiyumva in those crimes. Witness Murashi testified that he heard from Father Ntagara that Interahamwe had started the killings of Tutsi in Gisenyi after their meeting with Nsengiyumva at a “taxi park” in the morning of 7 April, but Murashi’s evidence provides no details of that meeting. Witness OX testified that he witnessed Nsengiyumva’s subordinate, Bizimuremye, distributing firearms to Interahamwe at the Gisenyi bus station on 7 April, but his evidence lacks any suggestion that Nsengiyumva was present during that meeting. Given that the evidence provided by Witnesses OX and Murashi fails to implicate Anatole Nsengiyumva either in the distribution of weapons to Interahamwe or in the crimes that were committed by them, the Chamber finds that the charge contained in paragraph 90 of the Indictment stands or falls on the evidence of Witness DO.

1471. The Chamber recalls that at the time of his testimony, Witness DO was convicted and sentenced to life in prison in Rwanda for his role in genocide-related crimes and was in custody pending his appeal.2603 Given Witness DO’s complicity in the crimes that underlie the charge of superior responsibility against Bizimungu and his desire to exculpate himself, the Chamber will consider his testimony with caution.

1472. The Chamber further recalls that there are a number of significant discrepancies between Witness DO’s pre-trial statements, his evidence before the Chamber and the account that he gave during his trial before the Rwandan courts.2604 In particular, before the Rwandan courts the witness failed to mention significant aspects of his evidence presented to the Chamber such as his visit to Camp Gisenyi in the morning of 7 April 1994, where Nsengiyumva is alleged to have held a meeting with soldiers and Interahamwe, as well as the distribution of lists of people to be killed and the provision of weapons to Interahamwe immediately following the meeting at the military camp. Contrary to his pre-trial statements and his oral evidence, the witness’s statements to the Rwandan courts suggest that he started driving only at around 1.30 p.m. on 7 April rather than in the morning of that day.2605 1473. When confronted with these discrepancies, the witness explained that during the Rwandan trials, “[W]e were afraid to tell the truth because we feared that we would be 2602 T. 7 September 2006, p. 62. 2603 T. 11 May 2006, pp. 32-36 (ICS). 2604 Defence Exhibit 110. 2605 T. 15 May 2006, pp. 49-50. 17 May 2011 330/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T handed down heavy sentences in relation to the atrocities committed against Tutsis … If I hadn't lied I would have been handed down the death sentence.”2606 While the Chamber accepts this as a plausible explanation for the witness’s general failure to tell the truth before the Rwandan courts, it is not sufficient to account for the above discrepancies.

1474. The Chamber recalls that Witness DO stated before the Rwandan courts that he drove assailants to several locations in Gisenyi starting on 7 April and that those people killed Tutsi.2607 However, his statement contains no reference to the events at Camp Gisenyi in the morning of 7 April. The Chamber finds this omission to be noteworthy given the importance that the witness accorded to the events at Camp Gisenyi when testifying before this Tribunal about the attacks on Tutsi in Gisenyi. His failure to disclose the information regarding events at the camp is not plausibly explained by his desire to avoid the prospect of a harsh sentence given his admission that he drove the assailants to various locations where they committed atrocities against Tutsi civilians. The Chamber therefore finds that this discrepancy between his statement to the Rwandan courts and his account to the Tribunal raises doubts about this aspect of his evidence.

1475. The Chamber also notes that Witness DO previously testified before this Tribunal in the Bagosora et al. case in relation to the events in Gisenyi préfecture. During that trial, the Bagosora et al. Trial Chamber made a finding that “Witness DO did not give a correct account about whether he had met with members of the Prosecution before commencing his testimony’’.2608 The witness was cross-examined on the reasons that led him to deny meeting with members of the Prosecution prior to his testimony in the Bagosora et al. trial, and the witness responded that he had not known the names of the Prosecutors in question.2609 The Chamber notes that it is not bound by findings of other trial chambers and it must make its own independent findings based on the evidence adduced in this case. That said, the Chamber is not convinced by the explanation that Witness DO put forward in cross-examination before this Chamber and finds that this raises further doubts about his credibility.

1476. For these reasons, the Chamber is unwilling to rely exclusively on the contradictory and uncorroborated evidence of Witness DO to substantiate the allegation in paragraph 90 of the Indictment. Accordingly, the Chamber finds that the Prosecution has not proved this charge beyond reasonable doubt. 1.6.2.4 Abduction and Killing of Tutsi by Soldiers and Interahamwe in Cyangugu 1.6.2.4.1 Introduction 1477. The Indictment alleges that during the months of April and May 1994 in Cyangugu préfecture, members of the Tutsi population who were being hunted down in their communes sought refuge at Cyangugu Stadium, as well as in the Camp Nyarushishi compound. It is alleged that soldiers from the Rwandan Army and Interahamwe abducted and killed many of those civilian refugees.2610 The Indictment also alleges that during the months of April and May 1994 in Cyangugu préfecture, soldiers from the Rwandan Army and Interahamwe regularly abducted Tutsi refugee women at Cyangugu Stadium and raped them and “assaulted 2606 T. 15 May 2006, pp. 49, 65; T. 11 May 2006, pp. 34-35. 2607 T. 15 May 2006, pp. 49-50. 2608 T. 15 May 2006, pp. 27-31; Defence Exhibit 115; Bagosora Decision on Alleged False Testimony. 2609 T. 15 May 2006, pp. 27, 29. 2610 Indictment, para. 91. 17 May 2011 331/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T them morally”.2611 The Indictment alleges that Bizimungu bears superior responsibility for these crimes.2612 1.6.2.4.2 Evidence 1.6.2.4.2.1 Prosecution Evidence Prosecution Witness LBC 1478. Witness LBC, a Tutsi, went to Cyangugu Stadium between 20 and 30 April 1994.2613 The witness testified that she thought she would be protected at the stadium because she had heard that other Tutsi, including members of her family, had sought refuge there.2614 She estimated that there were approximately 4,000 refugees at the stadium when she first arrived.2615 She saw soldiers guarding the entrance to the stadium as well as a number of gendarmes wearing red berets.2616 1479. A girl named Fifi told the witness that the soldiers on guard wanted to see her but that she should not go because they would rape her.2617 The witness then learned from other refugees that many women were being raped by soldiers at the stadium.2618 Upon hearing about the rapes, the witness fled the stadium through a hole in a door2619 and sought refuge in the home of a Hutu acquaintance named André, who is no longer alive.2620 She stayed at André’s house for three days, but then left because he said that soldiers or gendarmes had told him that they had seen her at his house.2621 1480. The witness returned to the stadium and stayed there until

May 1994.2622 She testified that during her stay at the stadium, she was raped on several occasions by soldiers guarding the stadium.2623 She also claimed to have witnessed soldiers guarding the stadium rape a number of other women.2624 1481. Witness LBC further testified that Préfet Bagambiki and Lieutenant Imanishimwe regularly visited the stadium and that they were always accompanied by soldiers who wore military uniforms and black berets.2625 The witness stated, “The officials would come with a 2611 Indictment, para. 117. 2612 Indictment, paras. 78, 110.. 2613 T. 10 October 2005, pp. 7, 45. The witness initially testified that she arrived at the stadium between 20 and 24 April, but when asked again in cross-examination, she stated that she arrived between 24 and 30 April. 2614 T. 10 October 2005, pp. 7, 41-42, 47-48. 2615 T. 10 October 2005, p. 7. 2616 T. 10 October 2005, pp. 11-12. 2617 T. 10 October 2005, pp. 11, 69. 2618 T. 10 October 2005, pp. 11-12. 2619 T. 10 October 2005, pp. 72-73. 2620 T. 10 October 2005, pp. 13-14. 2621 T. 10 October 2005, pp. 14, 71-72. In her testimony in chief, the witness referred to “soldiers”, but during cross-examination she referred to “gendarmes”. 2622 T. 10 October 2005, p. 14. 2623 T. 10 October 2005, pp. 13, 70. During cross-examination, the witness stated that when she was first interviewed by ICTR investigators, she did not tell them about the rape because she was not brave enough at that time. 2624 T. 10 October 2005, pp. 11-12. 2625 T. 10 October 2005, pp. 8, 10-11, 54, 61-62. 17 May 2011 332/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T list, a list which contained names of persons who had been reported on.”2626 The préfet and the Lieutenant would gather Tutsi men whose names were on that list and take them away.2627 The witness saw a number of her Tutsi neighbours and acquaintances taken away from the stadium and she has not seen them since.2628 1482. The witness was told that on the penultimate occasion when the préfet and the Lieutenant came to the stadium, the Cyangugu Bishop Thadée Ntihinyurwa arrived and spoke to the two men. After this conversation, the préfet and the Lieutenant left without taking any refugees. The witness later heard from other refugees that a refugee in the stadium had called Bishop Ntihinyurwa to inform him that the authorities were on their way.2629 1483. On the last occasion when the préfet and the Lieutenant came to the stadium, the witness heard from other refugees that the guards disconnected the telephone line to prevent the refugees from making telephone calls.2630 The witness had not seen any telephone lines at the stadium prior to that time, but she had been told by other refugees that telephone lines existed.2631 1484. On or about 10 May 1994, some of the refugees attempted to flee to the Democratic Republic of the Congo (“DRC”) because they were exhausted by the daily removal of people.2632 The

witness testified that the soldiers guarding the main entrance tried to prevent the refugees from leaving, but the refugees forced their way out of the stadium.2633 When the refugees reached the Cyangugu Prison, they came across a group of soldiers who shot at the refugees.2634 The witness and other refugees ran back towards the stadium. Near the stadium entrance, they encountered Interahamwe who hacked a number of refugees to death with machetes.2635 The witness saw her mother killed by Interahamwe outside the stadium.2636 1485. Following this incident, the witness stayed in the stadium until Lieutenant Imanishimwe told the refugees that they had to go to another place where they would be settled.2637 The witness and the other refugees were then transported in buses to Camp Nyarushishi in the Cyangugu préfecture.2638 2626 T. 10 October 2005, p. 8. 2627 T. 10 October 2005, pp. 8, 10, 54, 61-62. 2628 T. 10 October 2005, p. 10. 2629 T. 10 October 2005, pp. 9, 53. 2630 T. 10 October 2005, pp. 9, 67-68. 2631 T. 10 October 2005, pp. 67-69. 2632 T. 10 October 2005, p. 15. 2633 T. 10 October 2005, p. 78. 2634 T. 10 October 2005, p. 15. 2635 T. 10 October 2005, p. 15. 2636 T. 10 October 2005, pp. 19, 80. In cross-examination, when asked why she did not mention that her mother was killed in her first statement to ICTR investigators, the witness stated that the interview did not last long enough for her to provide all the details of her account. 2637 T. 10 October 2005, p. 15. 2638 T. 10 October 2005, pp. 15-16, 79-80. 17 May 2011 333/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness LAV 1486. Witness LAV, a Tutsi, arrived at Cyangugu Stadium in mid-April 1994.2639 When she arrived at the stadium, she saw that all the stands and the football pitch were full of people.2640 1487. The witness stayed at Cyangugu Stadium for one to one and a half months.2641 During this period, soldiers and Interahamwe would come to select men and remove them from the stadium using a list of names.2642 The witness testified that the soldiers were wearing black berets and military uniform, while the Interahamwe were wearing uniforms sewn in green kitenge cloth with the inscription "MRND".2643 The witness identified a number of men who were removed in this way, namely, Bernard Nkata, Ananea Gatake, Joseph Karemera, Augustin Kubwayo and a man named Benoit.2644 The men who were removed from the stadium were not seen alive again.2645 The witness testified that the families of some of the men, whom she knew personally, found their remains in 2000 and that she took part in the burial of those remains.2646 1488. During her time at the stadium, Witness LAV also saw soldiers and Interahamwe select female refugees, take them out of the stadium and then bring them back inside again.2647 The witness observed that the women were walking normally when they left the stadium. However, “When they came

back their gait had changed. They were walking with their legs opened. They were walking with their thighs open as if they were infirm.”2648 The witness testified that “those who engaged in these removals would do this both daytime and nighttime”.2649 The witness also saw Préfet Bagambiki take a number of female refugees outside the stadium and then bring them back again, including a young girl named Mariana.2650 1489. The witness subsequently spoke to some of these women and they told her that soldiers had raped them outside the stadium.2651 The witness provided the names of four young girls who told her that they had been raped in this way, namely Mukantiwali, Mado Mukayiranga, Fifi and Umulisa.2652 One woman told the witness that soldiers had taken her to some buildings located behind the stadium and ordered her at gunpoint to remove her clothes and lie down on the ground.2653 The witness herself was not raped during this time.2654 2639 T. 23 June 2005, pp. 44-46. 2640 T. 23 June 2005, p. 46. 2641 T. 27 June 2005, p. 10. 2642 T. 23 June 2005, p. 46; T. 27 June 2005, pp. 8-9. 2643 T. 23 June 2005, p. 35. 2644 T. 27 June 2005, p. 9. 2645 T. 27 June 2005, p. 10. 2646 T. 27 June 2005, pp. 10-11. 2647 T. 23 June 2005, pp. 53-54. 2648 T. 27 June 2005, p. 6. 2649 T. 27 June 2005, p. 6. 2650 T. 27 June 2005, pp. 49-53. 2651 T. 27 June 2005, p. 5. 2652 T. 27 June 2005, p. 7. 2653 T. 27 June 2005, p. 6. 2654 T. 28 June 2005, p. 44. 17 May 2011 334/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1490. The witness testified that during her time at the stadium, employees of the Catholic organisation Caritas brought food to the refugees there.2655 She also recalled that employees of the Red Cross came and evacuated the dying refugees and removed the dead bodies.2656 The witness did not tell these individuals about the rapes and murders that were taking place at the stadium because she did not think they could help the refugees.2657 1491. In cross-examination, Defence counsel challenged the witness as to the presence of Interahamwe and soldiers inside the stadium. She confirmed that uniformed soldiers were inside the stadium, but she could not recall whether Interahamwe were inside or outside the stadium.2658 1492. At one point, some of the refugees at the stadium attempted to flee to the DRC.2659 A large number of refugees left the stadium before dawn. On their way to the border, the refugees encountered Interahamwe and soldiers who attacked them.2660 The witness testified that she was in front of the Cyangugu Prison during the attack, less than five minutes from the stadium on foot. She saw a number of refugees killed at that location. Other refugees subsequently told her that refugees had also been killed close to the border.2661 1493. Witness LAV returned to the stadium together with other

refugees who had not travelled far.2662 Once back in the stadium, the refugees were told that they were going to be taken far from the camp because they were making the town dirty.2663 A large number of soldiers surrounded the stadium and loaded the refugees onto buses. The soldiers were hitting the refugees and poking them with their guns.2664 The witness and the other refugees were then taken to another camp in the forest at Nyarushishi.2665 1494. The witness stayed in Camp Nyarushishi for between one and one and a half months. During that time, she saw soldiers select and remove Tutsi men from the camp. The men who were removed were not seen again.2666 She testified that she believed that the soldiers took the men in order to “kill them”.2667 1495. Witness LAV also testified that a number of Tutsi women, including a woman named Mado Mukayiranga, told her that they had been raped by soldiers in the plastic shelters at the camp.2668 Some of the women who had been raped warned the witness, “If you see soldiers approaching the makeshift shelters, try and hide … do your best to hide because they can do to you what they are doing to us.”2669 2655 T. 28 June 2005, pp. 41-42. 2656 T. 28 June 2005, pp. 43-44. 2657 T. 28 June 2005, pp. 49-50. 2658 T. 28 June 2005, p. 48. 2659 T. 27 June 2005, p. 11. 2660 T. 27 June 2005, p. 19. 2661 T. 27 June 2005, p. 19. 2662 T. 27 June 2005, p. 12. 2663 T. 27 June 2005, p. 19. 2664 T. 27 June 2005, p. 20. 2665 T. 27 June 2005, p. 20. 2666 T. 27 June 2005, p. 22. 2667 T. 27 June 2005, p. 21. 2668 T. 27 June 2005, pp. 21-22. 2669 T. 27 June 2005, p. 21. 17 May 2011 335/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness DEA 1496. Witness DEA, a Tutsi, arrived at Cyangugu Stadium on 17 or 18 April 1994. When he arrived, he saw that gendarmes were guarding the gates to the stadium and that there were around 3,000 to 4,000 persons inside the stadium.2670 1497. The witness testified that the day after his arrival, Préfet Bagambiki came to the stadium accompanied by gendarmes and soldiers. The préfet read out the names of approximately 30 Tutsi men from a list, and the soldiers and gendarmes then took those men outside the stadium.2671 Witness DEA explained that there was a telephone at the stadium and that, when these men were removed, the witness saw one of the refugees head towards the telephone. Shortly afterwards, a bishop named Thadde arrived at the stadium.2672 The Bishop observed that the men had been taken away, and then he left. The men who had been taken away did not return.2673 1498. Witness DEA recalled that the soldiers later came back and removed another four men from the stadium, including a man the witness recognised named Georges who worked in the Cyangugu Department of Public Prosecution.2674 The witness once again saw a refugee head towards the telephone, and moments later Bishop Thadde arrived at the stadium.2675 The witness testified that the Bishop asked the préfet and the soldiers

what they were going to do with the men who had been taken out of the stadium, and they told him that the men were going to be interviewed and then brought back. Those four men subsequently returned to the stadium.2676 Witness DEA later saw a soldier disconnect the telephone line.2677 1499. The soldiers and gendarmes returned to the stadium and selected another 30 men, including the witness, this time without mentioning their names.2678 The soldiers and gendarmes took the witness and the other selected men outside the stadium and ordered them to go to Gatandara on foot.2679 As the men were walking towards Gatandara, a gendarme arrived aboard a Land Rover and ordered the soldiers and gendarmes to take the men back to the stadium. The men turned around and started walking towards the stadium. After the gendarme had left in his vehicle, the soldiers and gendarmes once again told the men to go to Gatandara. On the way, the soldiers and gendarmes were beating the men and ordering them to walk more quickly.2680 1500. When the refugees arrived at Gatandara, they found a roadblock manned by Interahamwe.2681 The Interahamwe said that they wanted to start killing the refugees, but the soldiers and gendarmes told them to wait. The soldiers and gendarmes told the refugees to 2670 T. 27 September 2005, pp. 82-83. 2671 T. 27 September 2005, pp. 83-84; T. 28 September 2005, pp. 3-4, 43. 2672

T. 28 September 2005, pp. 4, 47. 2673 T. 28 September 2005, p. 4. 2674 T. 28 September 2005, pp. 4, 46-47. 2675 T. 28 September 2005, p. 47. 2676 T. 28 September 2005, pp. 4, 49. 2677 T. 28 September 2005, pp. 5, 49. The witness testified that the telephone was located in a small room at the stadium, and he was near the room at the time. The door to the room was open and the witness saw a soldier severe the telephone line using his hands. 2678 T. 28 September 2005, p. 5. 2679 T. 28 September 2005, pp. 5-6. 2680 T. 28 September 2005, pp. 6, 8. 2681 T. 28 September 2005, pp. 8, 50-51. 17 May 2011 336/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T hand over all of their possessions, and the refugees gave them their watches and money. Witness DEA handed over 5,000 Rwandan francs, some documents and a watch.2682 The refugees were then placed into two lines and the soldiers ordered the Interahamwe “to start cutting them up”.2683 The soldiers stood around the refugees as the Interahamwe started killing them.2684 The witness testified, “I saw people who were in front of me being cut up. I realised that I was going to suffer the same fate, and at that time, I decided to run. And the others who were with me ran.”2685 1501. The witness and the other men ran towards Gatandara River. An armed soldier started chasing the witness and he heard grenade explosions and sounds of gunfire. The witness threw himself into the river, where he hid behind some bushes. At that point it was around 7.00 p.m. and it was getting dark.2686 1502. The witness estimated that it was after midnight when he came out of the river. As he had nowhere else to go, he went back to Cyangugu Stadium. The witness was afraid of passing through the entrance where the gendarmes were stationed, so he scaled the wall on the side of the stadium.2687 He found a number of refugees, including his parents, inside the stadium. He did not meet the men who had been with him at Gatandara, except for one

man named Mugabo.2688 The witness thought that the other men who had left with him had been killed.2689 1503. Witness DEA saw the gendarmes and soldiers return to remove other men from the stadium.2690 At one point, the witness saw a soldier pointing at him and speaking to a gendarme, who then started to approach the witness. The witness fled and hid in the crowd, borrowing a jacket and a cap to disguise himself from the gendarme.2691 1504. After approximately one week, the witness left the stadium because he was afraid of being found.2692 He hid in a friend’s house for a few days, but was discovered by Interahamwe who said they were going to kill him.2693 The witness managed to escape and hid in the forest for approximately one week. He then returned to the stadium because he had nowhere else to go.2694 After his return to the stadium, the witness did not see any further selection of persons to be taken outside.2695 1505. Sometime later, the préfet came to the stadium and told the refugees that they had to go to Nyarushishi. At that point, Witness DEA estimated that they had been at Cyangugu Stadium for between two and three months.2696 The witness and other refugees were 2682 T. 28 September 2005, p. 8. 2683 T. 28 September 2005, p. 8. 2684 T. 28 September 2005, pp. 8-9. 2685 T. 28 September 2005, p. 8. 2686 T. 28 September 2005, pp. 8-9. 2687 T. 28 September 2005, pp. 9, 52-53. 2688 T. 28 September 2005, p. 9. 2689 T. 28 September 2005, p. 10. 2690 T. 28 September 2005, pp. 10-11. 2691 T. 28 September 2005, pp. 10, 53-56. 2692 T. 28 September 2005, pp. 11, 57. 2693 T. 28 September 2005, pp. 11-13, 58-61. 2694 T. 28 September 2005, p. 14. 2695 T. 28 September 2005, p. 15. 2696 T. 28 September 2005, p. 15. 17 May 2011 337/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T transported to Nyarushishi in ONATRACOM buses escorted by soldiers.2697 When the witness arrived at Nyarushishi, he observed that there were gendarmes guarding the camp and that there were a large number of refugees inside.2698 He remained in the camp until the end of July.2699 1.6.2.4.2.2 Defence Evidence The Accused Bizimungu 1506. During cross-examination, Prosecution counsel referred Bizimungu to Prosecution Exhibit 191, a United States declassified document dated 13 May 1994. The document contains the content of a conversation between Bizimungu and Prudence Bushnell, the Assistant Secretary of State for African Affairs in the United States Government. During that conversation, Bushnell advised Bizimungu that the United States Government would hold him, Colonel Bagosora and the President of Rwanda personally accountable for whatever happened to the people who had sought refuge from the massacres in Rwanda, including those individuals in Cyangugu Stadium. Bizimungu responded by listing a number of reasons why he was powerless to control events in Rwanda. In response to Bizimungu’s claim that a ceasefire was needed for him to restore order, Bushnell suggested that he release everyone in Cyangugu Stadium as a gesture of the Rwandan government’s sincere intentions. Bizimungu retorted that he had no

communications with Cyangugu and that he could only communicate by telephone with the outside world.2700 1507. When confronted with this document in cross-examination, Bizimungu stated, “The Cyangugu Stadium—we knew that there were more than 5,000 persons at the Cyangugu Stadium. Although I may not know the exact number of people who were in Cyangugu, I did not know who they were, but all I knew was that there was no problem with those people because they were held in a refugee – in a camp for displaced persons.”2701 1.6.2.4.3 Deliberations 1508. Based on the evidence of Prosecution Witnesses LBC, LAV, DEA and Bizimungu himself, the Chamber finds that following the death of President Habyarimana on 6 April 1994, approximately 4,000 to 5,000 Tutsi civilians sought refuge at Cyangugu Stadium from the violence against Tutsi in their areas.2702 The Chamber will now determine whether refugees at Cyangugu Stadium were abducted and killed, as alleged in paragraph 91 of the Indictment, and then whether refugees were raped at the stadium, as alleged in paragraph 117. 2697 T. 28 September 2005, pp. 14-15. 2698 T. 28 September 2005, p. 15. 2699 T. 28 September 2005, pp. 17, 81-82. 2700 Prosecution Exhibit 191; T. 13 December 2007, pp. 52-53. 2701 T. 13 December 2007, p. 53. 2702 T. 27 September 2005, p. 83; T. 10 October 2005, p. 7; T. 13 December 2007, p. 53. 17 May 2011 338/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.2.4.3.1 Abduction and Killing of Refugees at Cyangugu Stadium 1509. Prosecution Witnesses LBC, LAV and DEA gave first hand accounts of a number of instances when uniformed soldiers came to Cyangugu Stadium and selected Tutsi men from among the refugees using a list of names, after which the selected men were removed.2703 The witnesses’ evidence regarding the removal of Tutsi men from the stadium was largely consistent and the Chamber finds it to be credible.

1510. Notwithstanding the above finding, the Chamber notes that there are certain discrepancies between the accounts of the three witnesses regarding the involvement of Interahamwe and gendarmes in the removal of Tutsi men from the stadium. In particular, Witness LAV testified that Interahamwe assisted with the removal process,2704 whereas Witness DEA testified that gendarmes were involved but he did not implicate the Interahamwe.2705 Witness LBC explicitly stated that gendarmes were not involved in the removal of Tutsi men from the stadium.2706 1511. Regarding the role of Interahamwe inside the stadium, the Prosecution alleges that both soldiers and Interahamwe abducted and killed civilians who had taken refuge at Cyangugu Stadium.2707 The Chamber notes that Witness LAV did not mention the presence of Interahamwe inside the stadium in the statement that she gave to ICTR investigators in 1999.2708 The Chamber also recalls the equivocal response of Witness LAV when cross- examined about the presence of Interahamwe inside the stadium.2709 The witness’s uncertainty on this point contrasted with her insistence that soldiers of the Rwandan Armed Forces were present inside the stadium.2710 Given that Witness LAV’s testimony was not corroborated on this point, the Chamber considers that there is not sufficient credible and reliable evidence to find that Interahamwe assisted with the removal of Tutsi men from the stadium. The Chamber accepts, however, that Interahamwe were present in the immediate environs of the stadium.

1512. The Chamber will now assess the Prosecution evidence regarding the killing of Tutsi male refugees who were removed from the stadium.2711 The Chamber notes that Witness DEA was the only witness to provide a first-hand account of what happened to the men after they were removed from the stadium. He testified that soldiers and gendarmes took him and 29 other men from the stadium to a roadblock manned by Interahamwe at Gatandara, where the soldiers and gendarmes took the refugees’ possessions and then ordered the Interahamwe to kill them.2712 The Interahamwe killed some of the men in front of the witness, but he managed to escape.2713 2703 T. 23 June 2005, p. 46; T. 27 June 2005, pp. 8-9; T. 27 September 2005, pp. 83-84; T. 28 September 2005, pp. 3-4, 43; T. 10 October 2005, pp. 8, 10-11, 54, 57, 61-62. 2704 T. 23 June 2005, p. 46; T. 27 June 2005, pp. 8-9. 2705 T. 27 September 2005, pp. 83-84; T. 28 September 2005, pp. 3-4, 43. 2706 T. 10 October 2005, p. 73. 2707 Indictment, para. 91. 2708 T. 28 June 2005, p. 48. 2709 T. 28 June 2005, p. 48. 2710 T. 28 June 2005, pp. 48-49. 2711 T. 27 June 2005, p. 10; T. 28 September 2005, p. 4; T. 10 October 2005, p. 10. 2712 T. 28 September 2005, pp. 5-8. 2713 T. 28 September 2005, pp. 8-9. 17 May 2011 339/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1513. In the view of the Chamber, Witness DEA tended to exaggerate some aspects of his testimony, particularly when describing his numerous close escapes from death. The Chamber notes, however, that his testimony is corroborated in important respects by the testimony of Witnesses LBC and LAV.2714 Regarding events inside the stadium, all three witnesses testified that soldiers would select Tutsi men from among the refugees using a list of names, after which the selected men were removed from the stadium. Witnesses DEA and LBC both testified about an incident when the refugees telephoned the Cyangugu Bishop, who then came to the stadium.2715 Witnesses DEA and LBC also testified that the telephone lines at the stadium were subsequently disconnected.2716 Regarding what happened to the Tutsi men who were removed from the stadium, the Chamber considers that the evidence of Witnesses LAV and LBC corroborates Witness DEA’s testimony. Witnesses LAV and LBC both testified that the men who were removed from the stadium were never seen again. Some of the selected men were their acquaintances. Witness LAV identified five of the men whom she knew personally. She testified that remains of some of the men were discovered by their families in 2000, and that she took part in the burial of those remains.2717 In view of this strong corroboration of Witness DEA’s evidence, the Chamber finds that his embellishment of some aspects of his account does not in itself impair the overall credibility of his testimony.

1514. The Defence notes that Witness DEA previously testified before this Tribunal in the Ntagerura et al. case against three Accused, including Préfet Bagambiki, in relation to the events at Cyangugu Stadium and surrounding areas.2718 The Bizimungu Defence emphasises that the Trial Chamber in that case did not find Witness DEA to be a credible and reliable witness and that it considered his testimony to be exaggerated.2719 The Defence submits that this Chamber should adopt the same position as the Trial Chamber in the Ntagerura et al. case. The Chamber is not persuaded by this submission. This Chamber makes its own independent findings based on evidence tendered in this case. It is not bound by findings of other trial chambers and it must not merely accept the credibility assessments of a previous trial chamber.

1515. Based on the evidence of Prosecution witnesses, the Chamber is satisfied that on numerous occasions male Tutsi refugees were removed from the stadium by soldiers and then killed by soldiers and Interahamwe. The eyewitness account of Witness DEA, taken in conjunction with the evidence of Witnesses LAV and LBC that the refugees who were led out of the stadium by the soldiers were never seen again, leads the Chamber to conclude that the only reasonable inference is that those refugees were killed by soldiers and Interahamwe. The Chamber is satisfied that the Prosecution witnesses’ claim that the refugees who were removed from the stadium were never seen again is predicated on a reliable basis of knowledge. The three Prosecution witnesses were natives of Cyangugu and were acquainted with some of the victims.

1516. The Chamber recalls that Witnesses LBC and LAV also testified about an incident that took place when the refugees tried to leave Cyangugu Stadium to go to the DRC. 2714 This stands in contrast to the Ntagerura et al. case, where the witness’s testimony regarding the events in the Kamarampaka stadium was not corroborated. See Ntagerura et al. Trial Judgement, para. 327. 2715 T. 28 September 2005, pp. 4, 47; T. 10 October 2005, p. 53. 2716 T. 28 September 2005, pp. 5, 49; T. 10 October 2005, p. 9. 2717 T. 27 June 2005, pp. 10-11. 2718 T. 28 September 2005, p. 30. 2719 T. 28 September 2005, pp. 31, 34. 17 May 2011 340/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness LBC estimated that this occurred on or about 10 May 1994,2720 whereas Witness LAV did not provide a specific date. Both witnesses testified that on their way to the DRC the refugees encountered Interahamwe who hacked a number of refugees to death.2721 Witness LBC saw her mother killed by Interahamwe just outside the stadium.2722 The witnesses’ accounts of this incident were broadly consistent, and the Chamber considers that this bolsters the witnesses’ credibility. 1.6.2.4.3.2 Rapes at Cyangugu Stadium 1517. Witnesses LBC and LAV testified about a number of incidents where soldiers selected female refugees at Cyangugu Stadium, took them outside and raped them, and then brought them back inside the stadium.2723 Witness LBC testified that she was raped more than once by soldiers guarding the stadium2724 and that she personally saw a number of other women being raped by those soldiers.2725 1518. The Chamber considers that Witnesses LBC and LAV provided consistent and credible evidence concerning the rapes committed by soldiers at the stadium. Both witnesses referred to a girl named Fifi,2726 and Witness LAV provided the names of three other women who she said were also rape victims.2727 Based on the evidence of these two witnesses, the Chamber finds that soldiers raped a number of Tutsi refugee women at Cyangugu Stadium during April and May 1994.

1519. Regarding the involvement of Interahamwe in the rapes, the Chamber recalls that Witness LAV initially testified that both soldiers and Interahamwe took women outside the stadium and then brought them back in again.2728 For the remainder of her testimony, however, the witness described only the role of soldiers in raping women at the stadium, without repeating her earlier statement about the role of Interahamwe in those rapes.2729 When asked whether women at the stadium were raped by “other civilians apart from the soldiers”, the witness responded, “No, just soldiers did that.”2730 The Chamber also recalls that Witness LAV did not mention the presence of Interahamwe inside the stadium in her statement to ICTR investigators in 19992731 and that she appeared uncertain when cross- examined on this point.2732 Given that Witness LBC did not testify about rapes committed by Interahamwe in the stadium and that the testimony of Witness LAV appeared equivocal on this point, the Chamber considers that there is insufficient evidence to find that Interahamwe raped women at Cyangugu Stadium. 2720 T. 10 October 2005, pp. 15, 78. 2721 T. 27 June 2005, p. 19; T. 10 October 2005, p. 15. 2722 T. 10 October 2005, p. 19. 2723 T. 10 October 2005, pp. 11-12. 2724 T. 10 October 2005, p. 13. 2725 T. 10 October 2005, pp. 11-12. 2726 T. 27 June 2005, p. 7; T. 10 October 2005, pp. 11, 69. 2727 T. 27 June 2005, p. 7. 2728 T. 23 June 2005, pp. 53-54. 2729 T. 27 June 2005, pp. 5-7. 2730 T. 27 June 2005, p. 7. 2731 T. 28 June 2005, p. 48. 2732 T. 28 June 2005, p. 48. 17 May 2011 341/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.2.4.3.3 Abduction and Killing of Refugees from the Nyarushishi Camp Compound 1520. The three Prosecution witnesses also testified that at some point they were transferred from Cyangugu Stadium to Camp Nyarushishi compound. Witness LAV testified that, during her time at Camp Nyarushishi, soldiers would select and remove Tutsi men from the camp and the selected men did not return.2733 The Chamber recalls that neither Witness LBC nor Witness DEA gave evidence regarding the selection and removal of men from Camp Nyarushishi.

1521. The Chamber notes that the time period of the allegation in paragraph 91 of the Indictment is limited to April and May 1994. Witness LAV estimated that the refugees were transferred from Cyangugu Stadium to Camp Nyarushishi in mid- to late May 19942734 and she testified that she remained at Camp Nyarushishi for one to one and a half months thereafter.2735 Witness LBC did not specify when the refugees were transferred, but she stated that it was after the killings that took place outside the stadium on our around 10 May 1994.2736 Witness DEA testified that he arrived at Cyangugu Stadium on 17 or 18 April2737 and he estimated that he was transferred to Camp Nyarushishi approximately two to three months later.2738 1522. In view of the uncertainty regarding the date on which the refugees were transferred to Camp Nyarushishi, the vagueness of Witness LAV’s testimony regarding the selection and removal of men from the camp, and the lack of corroboration on this point, the Chamber considers that there is not sufficient evidence to find that soldiers and Interahamwe selected and removed men from Camp Nyarushishi in the course of April and May 1994. 1.6.2.4.3.4 Bizimungu’s Superior Responsibility 1523. The Chamber will now determine whether Bizimungu knew or had reason to know of the role of his subordinates in the crimes committed against Tutsi refugees at Cyangugu Stadium. The Chamber will consider the full contours of Bizimungu’s superior responsibility in the legal findings section of the Judgement.

1524. The Chamber notes that on 13 May 1994, Bizimungu had a telephone conversation with Prudence Bushnell. During that conversation, Bushnell expressed concern for the welfare of the refugees at the stadium and advised Bizimungu that the United States Government would hold him personally accountable for whatever happened to those refugees.2739 In the view of the Chamber, this conversation put Bizimungu on notice that his subordinates had committed crimes against refugees at the stadium.

1525. The Chamber recalls that Bizimungu acknowledged in cross-examination that he knew in May 1994 that there were about 5,000 refugees at the stadium.2740 The Chamber 2733 T. 27 June 2005, pp. 21-22. 2734 T. 23 June 2005, p. 38; T. 27 June 2005, p.

21. Witness LAV testified that she arrived at the stadium around 15 April 1994 and she estimated that she was transferred to the Nyarushishi camp approximately one to one and a half months later. 2735 T. 27 June 2005, p. 21. 2736 T. 10 October 2005, pp. 14-15, 78. 2737 T. 27 September 2005, p. 82. 2738 T. 28 September 2005, p. 15. 2739 Prosecution Exhibit 191. 2740 T. 13 December 2007, p. 53. 17 May 2011 342/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T considers that the large number of refugees present at the stadium, the scale and systematic nature of the crimes committed against those refugees, and the presence of soldiers of the Rwandan Army provide further evidence that Bizimungu knew or had reason to know about the crimes that were committed at the stadium.

1526. The Defence submits that Bizimungu was never informed of the crimes committed at Cyangugu Stadium and was therefore unable to take the necessary measures to punish the perpetrators.2741 The Defence further submits that the international organisations that were present at the stadium, most notably the Red Cross and Caritas, never alerted Army Headquarters about the crimes committed by the soldiers.2742 In support of this submission, the Defence points to Witness LAV’s testimony that she did not report the rapes and murders to the Red Cross and Caritas employees present at the stadium.2743 The Defence also points to Witness LBC’s testimony that neither she nor the other women who were raped at the stadium had the courage to mention the rapes to anyone at the time.2744 1527. The Chamber is not persuaded by the submissions of the Defence. As the Chamber noted earlier in the Judgement, the failure of the rape victims to report the crimes is understandable given the situation at the time, particularly the fact that the perpetrators were still present at the stadium. In the view of the Chamber, Bizimungu’s telephone conversation with Bushnell on 13 May 1994, considered together with evidence of the large number of refugees at the stadium, the scale and systematic nature of the crimes committed against those refugees, and the presence of Rwandan soldiers, show that Bizimungu knew

or had reason to know about the crimes that were committed against refugees at the stadium. Nonetheless the Chamber finds that Bizimungu did not take reasonable and necessary measures to prevent the crimes or to punish the perpetrators. 1.6.3 Ndindiliyimana 1.6.3.1 Killing of Ignace Habimana and Célestin Munyanshagore in Nyaruhengeri 1.6.3.1.1 Introduction 1528. The Indictment alleges that on 5 May 1994, Ndindiliyimana ordered that two Tutsi men called Ignace Habimana and Célestin Munyanshagore be killed. It is alleged that this order was then carried out by a group of Interahamwe that included Pierre Kajuga.2745 1.6.3.1.2 Evidence 1.6.3.1.2.1 Prosecution Evidence Prosecution Witness GFR 1529. For reasons already set out in Chapter III of the Judgement, the Chamber has excluded Prosecution Witness GFR’s evidence in arriving at its conclusions. 2741 Bizimungu Closing Brief, para. 1094. 2742 Bizimungu Closing Brief, para. 1094. 2743 T. 28 June 2005, pp. 49-50. 2744 T. 10 October 2005, pp. 69-70. 2745 Indictment, paras. 78, 93. 17 May 2011 343/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness FAV 1530. Witness FAV testified that he knew both Ignace Habimana and Célestin Munyanshagore and that both of them were Tutsi. He explained that after 21 April 1994, Habimana and Munyanshagore went into hiding. Witness FAV provided differing accounts as to the location of their hideout. Initially, he claimed that they both took refuge in the house of Kaleinijabo’s mother, that their hideout was not far from the place where he himself was hiding, and that he would meet Habimana and Munyanshagore at night.2746 Witness FAV later stated that “these two persons were hiding at my maternal grandfather’s place”.2747 He also testified that “the two men would go to Kalinijabo’s place or be at my grandfather’s house”.2748 Finally, the witness stated, “Ignace and Célestin first lived at Hakizayezu’s place. Ignace and Célestin hid in Hakizayezu’s home and it was six metres away from where I was hiding”.2749 1531. Witness FAV testified that on 5 May, Ndindiliyimana visited Kabeza, who was the bourgmestre of Nyaruhengeri. According to the witness, Ndindiliyimana instructed Kabeza to track down and kill Ignace Habimana and Célestin Munyanshagore.2750 The witness claimed that he saw Ndindiliyimana in Nyaruhengeri on 5 May “riding a ... Pajero vehicle”.2751 However, the witness was not present when Ndindiliyimana visited Kabeza.

1532. When asked how he knew of the order given by Ndindiliyimana, Witness FAV explained that he heard Interahamwe openly talking about it while he was “lying down in a sorghum field”.2752 The witness claimed that he heard the attackers say “that they have come to look [for] Ignace and Célestin and ... Ndindiliyimana has instructed that these people be killed”.2753 In addition, the witness claimed that he subsequently learned of Ndindiliyimana’s order to kill Ignace Habimana and Célestin Munyanshagore because “those who committed those murders have confessed [to] having committed those crimes, and they have indicated the name of the person who gave them the orders to do so”.2754 1533. The witness then testified that on 5 May, Interahamwe visited Hakizayezu at his home and informed him of Ndindiliyimana’s order to kill Ignace Habimana and Célestin Munyanshagore.2755 The witness explained that at the time this conversation took place, he was hiding in a sorghum field situated about six metres away from Hakizayezu’s house and could therefore overhear the conversation between Hakizayezu and the Interahamwe.2756 He explained that the bean field had stalks that were 40 to 45 centimetres high and that he would hold his breath when the Interahamwe were around so that they did not see or hear him.2757 1534. Witness FAV provided differing accounts as to the number of Interahamwe who came

to Hakizayezu’s house to look for Ignace Habimana and Célestin Munyanshagore , as well as 2746 T. 21 September 2004, p. 33. 2747 T. 23 September 2004, pp. 51-52. 2748 T. 23 September 2004, p. 56. 2749 T. 23 September 2004, p. 59. 2750 T. 21 September 2004, pp. 33-34. 2751 T. 23 September 2004, p. 55. 2752 T. 21 September 2004, p. 34; T. 23 September 2004, pp. 51-53, 56. 2753 T. 23 September 2004, pp. 53, 55. 2754 T. 23 September 2004, p. 55. 2755 T. 23 September 2004, pp. 57-58, 64. 2756 T. 21 September 2004, p. 34; T. 23 September 2004, p. 53. 2757 T. 23 September 2004, pp. 58-59, 62-63. 17 May 2011 344/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T differing accounts as to the identity of those Interahamwe. For example, the witness stated, “The Interahamwe came looking for them in the company of somebody, whose name we didn’t mention; namely Gilbert and Hakizayezu”.2758 He then testified, “Ignace and Célestin were picked up by two men”.2759 He also claimed that three men named Kajuga, Gasper Gubanana and Rubamenpasa “went and killed these two people”.2760 Finally, he suggested that he “saw five Interahamwe”, including Kajuga and Gilbert Kabilizi, come and look for Habimana and Munyanshagore.2761 1535. He testified that at some unspecified point in time, Ignace Habimana and Célestin Munyanshagore left their hiding place and returned to their houses at the suggestion of Hakizayezu.2762 1536. The witness then provided specific details in relation to the killing of Ignace Habimana. It is unclear, however, how he came to learn these details. The witness explained that Habimana returned home and hid in the ceiling of his house. He testified that Habimana’s attackers were beating Habimana’s wife and that this prompted Habimana to reveal himself and say, “If you are looking for me, here I am. You can arrest me rather than beat up my wife”. Habimana was then killed.2763 The witness did not provide detailed evidence in relation to the manner in which

Célestin Munyanshagore was killed. Prosecution Witness GFS 1537. Witness GFS was a relative of Célestin Munyanshagore.2764 She testified that on 22 April 1994, she fled the violence in Nyaruhengeri and went to Ndora commune in Gisagara, where she remained until the end of May.2765 While in Gisagara, the witness heard that Munyanshagore had been killed by “people of Nyaruhengeri that worked in Gisagara”. She testified that Munyanshagore was hiding in the house of his friend Augustin Hakizayezu when he was killed around 5 May. She did not, however, know the circumstances of his death.2766 1538. At the end of May (sometime after 22 May), Witness GFS returned to Nyaruhengeri in order to resume work.2767 Her evidence in this regard was different from her prior written statement, which stated, “In early May 1994, I heard that [Célestin Munyanshagore] was killed on May 5th; so I returned to my commune”.2768 The witness explained this difference by claiming that her prior written statement was wrong and that she did not agree with everything that was contained in it.2769 2758 T. 21 September 2004, p. 33. 2759 T. 23 September 2004, p. 53. 2760 T. 21 September 2004, pp. 33-34; T. 23 September 2004, p. 52. 2761 T. 23 September 2004, pp. 61, 63. 2762 T. 21 September 2004, pp. 33-34. 2763 T. 21 September 2004, p. 34. 2764 T. 27 September 2004, pp. 19, 26. 2765 T. 27 September 2004, pp. 23-24; T. 29 September 2004, pp. 15, 20. 2766 T. 27 September 2004, p. 36; T. 27 September 2004, pp. 44, 46-47 (ICS); T. 16 February 2009, p. 40; T. 29 September 2004, p. 23. 2767 T. 28 September 2004, pp. 43-44; T. 29 September 2004, pp. 15-17. 2768 Defence Exhibit 2; T. 29 September 2004, p. 20. 2769 T. 28 September 2004, pp. 43-44, 48-50. 17 May 2011 345/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1539. After returning to Nyaruhengeri, the witness was informed by Kabeza’s wife about the circumstances of Célestin Munyanshagore’s death.2770 Kabeza’s wife informed her that Ndindiliyimana, who thought that Kabeza was hiding Munyanshagore, had come to their house looking angry and asked Kabeza to give up Munyanshagore so that he could be killed like other Tutsi.2771 Ndindiliyimana further threatened to treat Kabeza as an “Inkotanyi accomplice” unless he complied with that order.2772 1540. According to the witness, Kabeza’s wife claimed to have been present when Ndindiliyimana ordered Kabeza to surrender Célestin Munyanshagore.2773 Kabeza’s wife also informed Witness GFS that Kabeza knew that Munyanshagore was hiding at the house of Augustin Hakizayesu and that following Ndindiliyimana’s order, Kabeza sent a message to Hakizayesu requesting him to surrender Munyanshagore.2774 Following Kabeza’s order, Munyanshagore together with Ignace Habimana were ousted from Hakizayesu’s house and killed. 2775 The witness stated that she believed that Munyanshagore was killed “because he was a Tutsi”.2776 However, she was “surprised” to learn that Ndindiliyimana “personally went to look for [Célestin Munyanshagore]”.2777 1541. She also testified that at the end of the war, other neighbours corroborated the story

recounted to her by Kabeza’s wife. This included the wife of Ignace Habimana, who confirmed that both Munyanshagore and Habimana had been taken from Hakizayesu’s house to Habimana’s house, where they “were killed” in the “presence” of Habimana’s wife.2778 Prosecution Witness GFT 1542. Witness GFT was a relative of Ignace Habimana. She testified that on 22 April, following the grenade attack at the secteur office in Nyaruhengeri, she went to hide at her friend Joseph Kagenza’s house.2779 She claimed that Habimana and Célestin Munyanshagore went to hide in the house of a person known as Augustin Hakizayesu.2780 1543. On 3 May, Hakizayezu visited Witness GFT at Kagenza’s house and told her that she could return to her family home where Ignace Habimana was and that Hakizayezu would ensure their safety.2781 Consequently, the witness returned to her home.

1544. On 5 May, Hakizayezu once again contacted the witness and asked her to call Munyanshagore and Habimana. Hakizayezu then met Munyanshagore and Habimana in an alley between the two houses and told them that they should find another place to hide because Ndindiliyimana had given an order for them to be killed.2782 Following this 2770 T. 29 September 2004, pp. 23-25. 2771 T. 27 September 2004, pp. 44-46 (ICS). 2772 T. 27 September 2004, p. 44 (ICS). 2773 T. 27 September 2004, pp. 45-46 (ICS). 2774 T. 27 September 2004, pp. 44-46 (ICS). 2775 T. 27 September 2004, pp. 45-47 (ICS). 2776 T. 28 September 2004, p. 32. 2777 T. 28 September 2004, p. 32. 2778 T. 27 September 2004, p. 47 (ICS). 2779 T. 10 January 2005, p. 21. 2780 T. 10 January 2005, pp. 22, 27. 2781 T. 10 January 2005, pp. 27-28. 2782 T. 10 January 2005, p. 28. 17 May 2011 346/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T information, Habimana hid in the ceiling of his house. Munyanshagore went to hide in a nearby unused house and the witness went to hide in her neighbour Ntangorane’s house.2783 1545. Witness GFT testified that at some point in the afternoon of 5 May, Kajuga arrived at the house where the witness was hiding and demanded that she inform him of the whereabouts of Habimana. Kajuga also informed the witness that Hakizayesu had received an order from Ndindiliyimana for Habimana and Munyanshagore to be killed.2784 1546. The witness provided two accounts of what happened after this encounter with Kajuga. Initially, she claimed that Kajuga forcibly took her to a sorghum field where she saw the dead body of Munyanshagore and took her back to her home. In cross-examination, however, she clarified that Kajuga forcibly took her and that they first passed by her house before he led her to the dead body of Munyanshagore. There the witness and Kajuga met the “murderous accomplices” who informed them that Munyanshagore had been chased over a fence before being killed. The witness recalled that Kajuga was armed when he came to the home.2785 1547. The witness was then taken back to her house where a group of about 15 people had gathered.2786 There, Kajuga kicked the door of the house open and searched for Habimana but

could not find him. Kajuga then began to beat Habimana’s wife. This prompted Habimana to come out of his hiding place and reveal himself.2787 1548. The witness testified that thereafter, Habimana was attacked by Kajuga and the group of approximately 15 other people who had gathered at the house.2788 While they were attacking him, the witness managed to escape and again went to hide in the house of Kagenza.2789 She testified that she was later informed by her neigbours that Habimana had been killed. 2790 1549. Around 7 May, one of Witness GFT’s neighbours told her that a decision had been made to kill her. This prompted the witness to go to Ndindiliyimana’s house. She explained that she had a good relationship with Ndindiliyimana’s wife and family, and she therefore believed that they would help her. After going to Ndindiliyimana’s house, the witness spoke to Ndindiliyimana’s wife and informed her that her life was at risk. The witness testified that she did not speak about Ignace Habimana’s death because it was “common knowledge” and because it was “very painful” for her. According to the witness, Ndindiliyimana’s wife did indeed help her.2791 1550. When asked why she believed that Ndindiliyimana’s family would help her in light of the fact that she had previously been told that Ndindiliyimana had ordered the death of Ignace Habimana, Witness GFT testified that she did not believe those rumours about 2783 T. 10 January 2005, p. 29. 2784 T. 10 January 2005, p. 29. 2785 T. 10 January 2005, pp. 29, 45-46. 2786 T. 10 January 2005, pp. 29-30, 45-46. 2787 T. 10 January 2005, pp. 29, 45-46. 2788 T. 10 January 2005, p. 29. 2789 T. 10 January 2005, pp. 29-30. 2790 T. 10 January 2005, p. 30. 2791 T. 10 January 2005, pp. 30-31, 38, 41-43, 51. 17 May 2011 347/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana and was “not convinced because those events were reported to me by someone else”.2792 1551. In June, the witness returned to her home. She testified that after her return, she heard further accounts from others in Nyaruhengeri that Ndindiliyimana had himself gone to look for Célestin Munyanshagore and Ignace Habimana.2793 Prosecution Witness ANB 1552. Witness ANB, a Tutsi, testified that from around 15 April 1994, she went to stay with Kabeza at his house in Nyaruhengeri.2794 According to the witness, on 24 or 25 April she saw Ndindiliyimana visit Kabeza at his house. Kabeza’s wife was also present in the house at the time.2795 1553. The witness explained that Ndindiliyimana and Kabeza went into the living room, after which Ndindiliyimana accused Kabeza of “hiding Tutsis”. Kabeza responded by claiming that “he was not hiding any Tutsis”. This scared the witness and prompted her to hide in a wardrobe. She claimed that she “could hear the conversation ... I was listening with no difficulty to the conversation”.2796 The witness testified that Ndindiliyimana did not say anything else and she heard him leave the house a few minutes later.2797 The next day, she went to hide at the house of Kabeza’s brother, where she remained until the end of June.2798 1.6.3.1.2.2 Defence Evidence The Accused

Ndindiliyimana 1554. Ndindiliyimana testified that on 22 April 1994, he returned to his home in Nyaruhengeri.2799 On his way home, he went to see Charles Kabeza who was the bourgmestre of Nyaruhengeri. Ndindiliyimana claimed that he arrived at Kabeza’s house when it was dark.2800 There, Ndindiliyimana met Kabeza’s wife who informed him that “people were being killed”. Ndindiliyimana then met Kabeza who informed him that “the situation was very serious [and that the] RPF was launching attacks, and people were embarking on reprisals.”2801 Ndindiliyimana claimed that he instructed Kabeza to “try to manage that situation”.2802 He then briefly returned to his family before leaving Nyaruhengeri.

1555. Ndindiliyimana next visited Nyaruhengeri on 3 May. On this occasion, he stayed with his family for one night and returned to Kigali the next day.2803 Ndindiliyimana testified that he knew Ignace Habimana and Célestin Munyanshagore but at no time was he informed by 2792 T. 10 January 2005, pp. 34, 36. 2793 T. 10 January 2005, p. 37. 2794 T. 7 February 2005, pp. 21-22. 2795 T. 8 February 2005, pp. 13, 17-18. 2796 T. 7 February 2005, pp. 22-23; T. 8 February 2005, pp. 15-17, 21-22, 25. 2797 T. 7 February 2005, pp. 22-23; T. 8 February 2005, pp. 18, 25. 2798 T. 7 February 2005, p. 24. 2799 T. 18 June 2008, pp. 18-21. 2800 T. 18 June 2008, p. 20. 2801 T. 18 June 2008, pp. 20-21. 2802 T. 18 June 2008, pp. 20-21. 2803 T. 18 June 2008, pp. 51-53. 17 May 2011 348/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Kabeza that they had been killed. He claimed that he only learned of their death while he was in exile in Europe.2804 Defence Witness CBP44 1556. Witness CBP44 testified that he knew Ignace Habimana and Célestin Munyanshagore.2805 He stated that he was informed, although it is unclear by whom, that Habimana and Munyanshagore had been in hiding together and that Pierre Kajuga had killed both men in order to steal from them. According to the witness, Kajuga was “a bandit or a rogue who had been guilty of several murders in the region”.2806 The witness had never heard that Ndindiliyimana was involved in the killing of Habimana or Munyanshagore.2807 Defence Witness Marie Nakure 1557. Witness Marie Nakure testified that she was in Nyaruhengeri following the President’s death on 6 April 1994 and remained there until early May.2808 The witness knew both Ignace Habimana and Célestin Munyanshagore as well as both of their wives.2809 1558. Witness Nakure testified that she knew that both Ignace Habimana and Célestin Munyanshagore had been killed. She explained that a relative of Habimana’s informed her that Habimana had been killed by “bandits from Burundi” and other assailants. The witness was also informed that the assailants had threatened to kill Habimana’s wife unless she told them where he was hiding. This

threat prompted Habimana to reveal himself.2810 1559. Witness Nakure did not explain how she came to learn of the death of Célestin Munyanshagore. Furthermore, she claimed that allegations that her husband was implicated in the murder of Munyanshagore and Ignace Habimana were “lies”. In support, she recounted a story in which she claimed that following the death of the two men, Habimana’s older brother helped her to flee the country. She claimed that this would not have happened had there been rumours that her husband had given orders to kill the two men.2811 Defence Witness CBP78 1560. Witness CBP78 testified that he knew Ignace Habimana “very well” and that he also knew Célestin Munyanshagore.2812 He recalled that he learned of Habimana and Munyanshagore’s death from three sources. First, around 5 May 1994, the witness “heard people” say that Habimana had been hiding at home and that he had been taken from his home and killed. The witness also heard that Munyanshagore had been “hunted down and flushed out of the same hiding point as Ignace” and that he had been killed in a banana 2804 T. 23 June 2008, pp. 26-27. 2805 T. 14 February 2008, pp. 65-66. 2806 T. 14 February 2008, p. 66. 2807 T. 14 February 2008, p. 66. 2808 T. 2 June 2008, p. 14. 2809 T. 2 June 2008, pp. 10-11. 2810 T. 2 June 2008, pp. 10-11, 29. 2811 T. 2 June 2008, pp. 11-13. 2812 T. 18 February 2008, pp. 26-28. 17 May 2011 349/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T plantation.2813 After hearing this, the witness took his bicycle and went to Habimana’s house where he saw that Habimana had been buried in a pit formerly used for maturing bananas.2814 1561. Second, the witness stated that he obtained information from the Gacaca proceedings and that he learned that Célestin Munyanshagore had been killed by a person called Nkabara.2815 1562. Finally, the witness testified that he knew the wife of Ignace Habimana and claimed that he lived with her in a refugee camp in Burundi. According to the witness, Habimana’s wife informed him that both men had initially hid in the house of Charles Kabeza, who was the bourgmestre of Nyaruhengeri commune. He was further informed that persons called Hakizayezu and Kajuga had wanted to “do away” with the two men in order to steal their motorcycles and that Habimana had been killed with a knife.2816 1563. Witness CBP78 had never heard that Ndindiliyimana or gendarmes at Ndindiliyimana’s house were implicated in the killings of Habimana and Munyanshagore, and he testified that no such allegations were made in the Gacaca proceedings that he was aware of.2817 However, in cross-examination, the witness appeared to admit that he heard that Hakizayezu had asked Kajuga to kill Habimana on the order of Ndindiliyimana.2818 1564. In

cross-examination, the witness was shown statements he made in relation to separate proceedings in Rwanda as well as other documents suggesting that he was not in Nyaruhengeri when Ignace Habimana and Célestin Munyanshagore were killed. Those statements suggested that the witness left Nyaruhengeri on 21 April and did not return until the middle or end of May.2819 The witness denied this and claimed that he left Nyaruhengeri on 21 April but returned two days later on 23 April 1994.2820 Defence Witness CBP15 1565. Witness CBP15 was a relative of Ndindiliyimana.2821 She testified that Célestin Munyanshagore’s wife gave evidence regarding her husband’s death at Gacaca hearings. The witness was present when Munyanshagore’s wife gave this evidence. According to the witness, at no time did Munyanshagore’s wife implicate Ndindiliyimana in the death of her husband.2822 1566. Witness CBP15 recalled that at the Gacaca hearings, she learned that Munyanshagore had been hiding “with some old ladies” and that “Hakizayezu” had informed Munyanshagore that people were looking for him. The witness also learned that Munyanshagore was killed in May 1994 because he was a Tutsi. 2823 2813 T. 18 February 2008, pp. 29-30. 2814 T. 18 February 2008, pp. 29-30; T. 25 February 2008, pp. 14-16. 2815 T. 18 February 2008, p. 30. 2816 T. 18 February 2008, pp. 29-31. 2817 T. 18 February 2008, pp. 30, 32. 2818 T. 18 February 2008, pp. 34. 2819 T. 21 February 2008, pp. 81, 93, 97, 101-102; T. 25 February 2008, p. 2. 2820 T. 21 February 2008, pp. 81, 97; T. 25 February 2008, p. 2. 2821 T. 5 February 2008, p. 3 (ICS). 2822 T. 5 February 2008, pp. 9-11, 33 (ICS). 2823 T. 5 February 2008, pp. 10-11 (ICS). 17 May 2011 350/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1567. The witness further testified that she knew the wife of Ignace Habimana and that following the onset of violence, she hid with Habimana’s wife at a friend’s house and then at her own house. The witness could not remember the date on which Habimana was killed. However, Habimana’s wife informed her that a man known as Kajuga had killed him. The witness described Kajuga as having a “bad reputation”.2824 The witness stated that: “He was someone who was ill-disciplined and mean to others”.2825 The witness also testified that Habimana’s wife gave evidence in relation to the death of her husband at Gacaca hearings, but at no time did Habimana’s wife implicate Ndindiliyimana in the death of the witness’s husband.2826 1.6.3.1.3 Deliberations 1568. The Chamber notes that there is no dispute that Ignace Habimana and Célestin Munyanshagore were murdered around 5 May 1994. However, the parties disagree on whether Ndindiliyimana was implicated in the killings of these two individuals.

1569. Prosecution Witnesses FAV, GFS and GFT all claimed that they heard or were informed by others that in early May 1994, Ndindiliyimana visited the house of Charles Kabeza, the bourgmestre of Nyaruhengeri commune, and ordered the killings of Ignace Habimana and Célestin Munyanshagore because of their Tutsi ethnicity. Having considered their evidence, the Chamber is unwilling to find Ndindiliyimana culpable for the killings of Habimana and Munyashongore based solely on the hearsay evidence of these witnesses.

1570. The Chamber has considered whether the evidence provided by Prosecution Witness ANB, who claimed to have been present when Ndindiliyimana is alleged to have ordered that Habimana and Munyashongore be killed, corroborates the indirect evidence of Witnesses FAV, GFS and GFT. The Chamber notes that despite her claim that she could hear the conversation between Ndindiliyimana and Kabeza with relative ease,2827 her evidence lacks any suggestion that she heard Ndindiliyimana order Kabeza to have Habimana and Munyanshagore killed.2828 The Chamber therefore finds that Witness ANB’s evidence does not corroborate the hearsay evidence of Witnesses FAV, GFS and GFT implicating Ndindiliyimana in the killings of Habimana and Munyashongore.

1571. The Chamber also finds that Witness GFT’s evidence generates further doubt about the claims made by Prosecution witnesses that Ndindiliyimana ordered the killings of Ignace Habimana and Célestin Munyanshagore. Witness GFT testified that shortly after the killing of Habimana, she went to Ndindiliyimana’s residence in Nyaruhengeri where she was assisted by Ndindiliyimana’s wife. The witness stated that at the time, she did not believe the suggestion that Ndindiliyimana had ordered the killing of Habimana.2829 1572. The Chamber finds it difficult to believe that the witness would have gone to Ndindiliyimana’s house and sought assistance from his family had it been widely believed in the Nyaruhengeri area that Ndindiliyimana was implicated in the killing of her relative Ignace Habimana. Had that been the case, the natural reaction of Witness GFT would have been to 2824 T. 14 February 2008, p. 66. 2825 T. 5 February 2008, pp. 11-13, 31 (ICS). 2826 T. 5 February 2008, pp. 12-13 (ICS). 2827 T. 7 February 2005, pp. 22-23; T. 8 February 2005, pp. 15-17, 21-22, 25. 2828 T. 7 February 2005, p. 22. 2829 T. 10 January 2005, pp. 34, 36. 17 May 2011 351/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T avoid contact with anyone close to Ndindiliyimana, least of all Ndindiliyimana’s wife, because this would have placed Witness GFT at risk. This aspect of Witness GFT’s evidence raises further doubts about the veracity of the Prosecution witnesses’ claims that Ndindiliyimana ordered the killings of Habimana and Munyanshagore.

1573. In addition to the weaknesses of the Prosecution evidence noted above, the Chamber finds that Witness FAV embellished and exaggerated his testimony. This helps to explain the myriad inconsistencies in his evidence. The Chamber recalls that Witness FAV provided inconsistent accounts in relation to the location of Ignace Habimana and Célestin Munyanshagore’s hideout, the manner in which he was informed about the meeting and conversation between Ndindiliyimana and Charles Kabeza, the location of his hideout, and the number and identity of the assailants who attacked Habimana and Munyanshagore.

1574. Given the limited and contradictory evidence provided by Prosecution witnesses regarding this allegation, the Chamber is not satisfied that the Prosecution has proved beyond reasonable doubt that Ndindiliyimana ordered the killings of Ignace Habimana and Célestin Munyanshagore and that the two men were killed as a result. 1.6.3.2 Killing of Civilians by Interahamwe at a Roadblock Near Camp Kacyiru 1.6.3.2.1 Introduction 1575. The Indictment alleges that in the month of April 1994, militiamen under the supervision of two non-commission officers (“NCOs”) from the Gendarmerie “erected a roadblock near Camp Kacyiru, the Headquarters of the Gendarmerie.” The Indictment further alleges that several Tutsi as well as some Hutu who had all “come to seek refuge at the camp” were handed over to the militiamen by the gendarmes and then killed at the roadblock.2830 1.6.3.2.2 Evidence Prosecution Witness KF 1576. Witness KF was a member of the Gendarmerie based at Camp Kacyiru in April 1994.2831 She testified that on 16 April 1994, she observed a roadblock situated approximately 200 metres from the camp manned by Interahamwe.2832 According to the witness, the Interahamwe at the roadblock were armed with clubs, firearms and machetes.2833 The Interahamwe wore “dirty clothes”; one wore a beret and others wore military trousers and camouflage uniforms.2834 1577. The witness testified that

she did not see members of the civilian population in the immediate vicinity of the roadblock. She expressed the view that it was unlikely that members of the civilian population would have moved around in the area near Camp Kacyiru. 2835 2830 Indictment, para. 96. 2831 T. 17 January 2006, pp. 8, 10 (ICS). 2832 T. 17 January 2006, pp. 21-22. 2833 T. 17 January 2006, p. 22. 2834 T. 17 January 2006, p. 22. 2835 T. 17 January 2006, p. 22. 17 May 2011 352/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1578. Regarding the relationship between gendarmes and Interahamwe, the witness stated, “[T]here was cooperation between the Interahamwes within the camp and those outside the camp as well as between gendarmes working with them and who were in fact coordinating, or representing them.”2836 1.6.3.2.3 Deliberations 1579. The Chamber notes that Witness KF is the only Prosecution witness to have testified on the events pleaded in paragraph 96 of the Indictment. Having reviewed the evidence of Witness KF, the Chamber finds that it is not sufficient to prove the Prosecution’s allegation. While Witness KF’s evidence suggests that Interahamwe manned a roadblock in the vicinity of Camp Kacyiru where she was based, there is no suggestion that those Interahamwe operated the roadblock under the supervision of two NCO gendarmes from the camp. Furthermore, her evidence contains no suggestion that several Tutsi as well as some Hutu who had sought refuge at the camp were handed over by gendarmes to the Interahamwe at that roadblock and then killed, as alleged in paragraph 96 of the Indictment.2837 1580. The Chamber notes that there is a suggestion in Witness KF’s testimony that gendarmes within the camp coordinated the activities of Interahamwe in the area.2838 The Chamber finds that this suggestion on its own is insufficient to implicate gendarmes in the crimes that may have been committed by Interahamwe at the roadblock in question.

1581. For these reasons, the Chamber is not satisfied that the testimony of Witness KF, by itself, is sufficient to prove beyond reasonable doubt the allegation contained in paragraph 96 of the Indictment. 1.6.3.3 Killing of Gahoki 1.6.3.3.1 Introduction 1582. The Indictment alleges that in late April 1994 gendarmes who were based at Ndindiliyimana’s Nyaruhengeri residence, together with Ndindiliyimana’s uncle Antoine Bisomimbwa, killed a local Tutsi tradesman known as Gahoki and stole his motorcycle.2839 The Indictment alleges that Ndindiliyimana bears superior responsibility for this crime.2840 1.6.3.3.2 Evidence 1.6.3.3.2.1 Prosecution Evidence Prosecution Witness GFR 1583. For reasons set out in Chapter III of the Judgement, the Chamber has not considered Prosecution Witness GFR’s evidence in arriving at its conclusions. 2836 T. 17 January 2006, p. 29. 2837 Indictment, para. 96. 2838 T. 17 January 2006, p. 29. 2839 Indictment, para.

99. The Chamber notes that references to Gahoki in the transcripts are also spelled “Gashogi” and “Gashugi”. These names are used interchangeably to refer to the same person. 2840 Indictment, para. 78. 17 May 2011 353/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witness GFT 1584. Witness GFT testified that on 22 April 1994, she went to hide at her friend Joseph Kagenza’s house. She explained that Kagenza’s house neighboured the house of Ndindiliyimana’s uncle, Antoine Bisomimbwa, who was the conseiller of Nyaruhengeri.2841 1585. On an unspecified date, while at Kagenza’s house, Witness GFT saw a man she knew as Nepomucéne Kimonyo visit Bisomimbwa. The witness claimed that she heard Kimonyo inform Bisomimbwa that “members of the Mudoboli population had refused to kill [a man called] Gashugi”.2842 1586. Witness GFT then saw Bisomimbwa leave his house on a bicycle and go into Ndindiliyimana’s residence in Nyaruhengeri. The witness stated that she could see what was happening from Kagenza’s house.2843 Subsequently, the witness saw Bisomimbwa leave Ndindiliyimana’s residence together with three gendarmes. The group then headed in the direction of “Gashugi’s house”. Shortly thereafter, the witness heard the sound of a gun being fired.2844 1587. Witness GFT testified that she was not sure what happened at Gashugi’s house.2845 She explained, however, that she was later informed that people had gone to Gashugi’s house to loot his possessions.2846 She was also told by her neighbours that gendarmes had taken Gashugi to the secteur office and killed him.2847

She testified that she did not know exactly who killed Gashugi, but that he had been arrested by a gendarme who took him to the secteur office where he was killed.2848 Witness GFT stated that she later saw gendarmes who had been stationed at Ndindiliyimana’s house riding Gashugi’s motorcycle.2849 1.6.3.3.2.2 Defence Evidence Ndindiliyimana Defence Witness CBP44 1588. Witness CBP44 testified that he knew Gashugi as a trader in the area and that he was informed by “someone” whom he met in Kibilizi that Gashugi had been killed. Specifically, the witness was told that the same group of people who had killed Ignace Habimana, Célestin Munyanshagore and a person named Theobald had sought out Gashugi at his house and killed him because they wanted to steal his motorcycle. The witness later saw Theobald driving Gashugi’s motorcycle in the area.2850 Ndindiliyimana Defence Witness CBP15 1589. Witness CBP15 testified that she learned at Gacaca hearings that a man named Kajuga was among the assailants who had killed Gashugi, but she was not certain who was 2841 T. 10 January 2005, p. 22. 2842 T. 10 January 2005, p. 23; T. 11 January 2005, p. 10. 2843 T. 10 January 2005, pp. 23-24; T. 11 January 2005, pp. 10-11. 2844 T. 10 January 2005, pp. 23-24; T. 11 January 2005, pp. 10-11. 2845 T. 10 January 2005, p. 24. 2846 T. 10 January 2005, p. 27. 2847 T. 10 January 2005, p. 27. 2848 T. 10 January 2005, p. 27. 2849 T. 10 January 2005, p. 27. 2850 T. 14 February 2008, pp. 66-67. 17 May 2011 354/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the ultimate perpetrator. Furthermore, she stated that at no time did she hear of the involvement of gendarmes in this killing.2851 1590. Witness CBP15 recalled that following the onset of violence in Nyaruhengeri, she hid with Prosecution Witness GFT first at Kagenza’s house and then later at Witness CBP15’s own house.2852 Witness CBP15 rejected claims by Witness GFT that one could see what was happening at Ndindiliyimana’s residence from Kagenza’s house. On the contrary, Witness CBP15 stated, “It was not possible to see Ndindiliyimana’s residence in view of the fact that there was a banana plantation between the two houses [and] ... there were other houses located between [the two houses]”.2853 1.6.3.3.3 Deliberations 1591. In assessing the allegation in paragraph 99 of the Indictment, the Chamber will first consider whether Gashugi was murdered, before turning to the question of whether gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence were involved in Gashugi’s murder.

1592. Prosecution Witness GFT and Defence Witness CBP15 agree that following the onset of violence in Nyaruhengeri, they heard that a local Tutsi trader called Gashugi was murdered. The Chamber rejects the Defence submission that there is no evidence that Gashugi was killed. The Chamber finds that the evidence provided by these two witnesses establishes beyond reasonable doubt that a Tutsi trader named Gashugi was in fact killed in Nyaruhengeri. The key question, therefore, is whether Gashugi was killed by gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence.

1593. The Chamber notes that the Prosecution evidence regarding the murder of Gashugi is limited to hearsay and circumstantial evidence given by Witness GFT. Specifically, the Prosecution relies upon the following evidence: (i) the witness being informed by others that Gashugi was killed; (ii) the witness seeing gendarmes from Ndindiliyimana’s Nyaruhengeri residence walking in the direction of Gashugi’s house; (iii) the witness hearing a gun being fired shortly thereafter;2854 and (iv) the witness subsequently seeing gendarmes using Gashugi’s motorcycle.

1594. The Chamber has already set out its approach when assessing hearsay evidence. In this instance, the Chamber considers that the circumstantial evidence provided by Witness GFT, even if accepted as true, is insufficient to corroborate what is in the Chamber’s view tenuous hearsay evidence. In addition, the Chamber finds Witness GFT’s concession that she did not know “who exactly” killed Gashugi raises further doubts about her evidence on this point.

1595. For these reasons, the Prosecution has failed to prove beyond reasonable doubt that gendarmes guarding Ndindiliyimana’s Nyaruhengeri residence killed Gashugi. An analysis of the Defence evidence is, therefore, unnecessary. 2851 T. 5 February 2008, pp. 13-14 (ICS). 2852 T. 5 February 2008, pp. 11-13, 31 (ICS). 2853 T. 5 February 2008, p. 18 (ICS). 2854 The Chamber notes that if this evidence was intended to imply that Gashugi was killed by gunshot at his home, it is in conflict with Witness GFT’s testimony that he was later killed at the secteur office. 17 May 2011 355/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.3.4 The Killing of Aloys Niyoyita and Phocus Kananeri by Gendarmes in Kigali 1.6.3.4.1 Introduction 1596. The Indictment alleges that in early May 1994, gendarmes under the command of Augustin Ndindiliyimana killed Aloys Niyoyita, a Tutsi civilian and a member of the Liberal Party.2855 The Indictment further alleges that in early May 1994, gendarmes under Ndindiliyimana’s command killed Phocus Kananeri, a Tutsi civilian, inside his house.2856 The Indictment alleges that Ndindiliyimana bears superior responsibility for these crimes.2857 1.6.3.4.2 Evidence Prosecution Witness GLJ 1597. Witness GLJ was a resident of Kigali town in 1994.2858 He testified that he was informed by local residents in his neighbourhood that a gendarme known as Morokore was responsible for the death of Phocus Kananeri, a Tutsi civilian who was his neighbour.2859 The witness stated that Kananeri was killed around the first week of May 1994. The witness claimed to have seen the slain body of Kananeri lying in front of his house shortly after he was killed.2860 1598. Witness GLJ testified that Morokore was for a considerable period posted as a guard at the house of Froduald Karamira, a prominent politician allied with the MDR. The witness regularly saw Morokore at Karamira’s house while on his way to his workplace.2861 1599. The

witness also testified to having been informed that Morokore was in pursuit of a child called Kanamugira, who lived at Kananeri’s house.2862 Upon receiving this information, the witness immediately left in order to inform people who lived uphill from Kananeri’s house to intercept Morokore.2863 The witness claimed that he pursued Morokore for a distance of 150 metres from the witness’s house and halted his pursuit at a place near the Electrogaz building, where he found the dead body of Kanamugira.2864 1600. Witness GLJ also testified about the killing of his neighbour Aloys Niyoyita, a Tutsi politician affiliated with the PL party. According to the witness, Niyoyita was a self- employed lawyer who was expected to become the Minister of Justice in the transitional government that was to be established under the Arusha Accords.2865 1601. Witness GLJ recalled that around the last week of April or first week of May 1994, he was informed by members of Karerangabo’s family, who were Niyoyita’s immediate 2855 Indictment, para. 100. 2856 Indictment, para. 101. 2857 Indictment, para. 78. 2858 T. 14 June 2005, p. 33-34 (ICS). 2859 T. 15 June 2005, pp. 40, 42. 2860 T. 15 June 2005, pp. 40-41. 2861 T. 15 June 2005, pp. 40, 42. 2862 T. 15 June 2005, p. 40. 2863 T. 15 June 2005, pp. 40-41. 2864 T. 15 June 2005, pp. 41-42. 2865 T. 15 June 2005, p. 43. 17 May 2011 356/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T neighbours, that the latter had been killed by two gendarmes.2866 The witness’s informants claimed to have seen the gendarmes who had killed Niyoyita.2867 Upon receiving this information, the witness visited Niyoyita’s house and found members of the Red Cross retrieving Niyoyita’s dead body from the house.2868 1.6.3.4.3 Deliberations 1602. The Chamber accepts that Niyoyita and Kananeri were killed between April and May 1994, based on Witness GLJ’s firsthand observation of their dead bodies in the immediate aftermath of their killing. However, the Chamber is not satisfied that Witness GLJ’s evidence reliably establishes that gendarmes were responsible for these killings.

1603. The Chamber recalls that at the time that he gave his testimony, Witness GLJ was in detention in Rwanda where he was accused of participation in genocide-related crimes in 1994.2869 The witness also admitted to having provided weapons to the assailants who killed two Tutsi civilians during the events of 1994.2870 The Chamber has therefore evaluated his testimony with caution.

1604. Furthermore, the Chamber notes that Witness GLJ’s evidence regarding the killing of Niyoyita is drawn from information that was relayed to him by members of Karerangabo’s family.2871 His evidence is not clear as to whether his informants actually witnessed the killing of Niyoyita or whether they simply saw gendarmes near Niyoyita’s house at the time. Furthermore, the Chamber is not satisfied that there is sufficient evidence suggesting that the identification by Witness GLJ’s neighbour of the assailants as gendarmes is predicated on a reliable basis of knowledge. The witness did not indicate whether that identification was based on either extraneous markings such as uniforms worn by the assailants or on prior familiarity with those assailants. For these reasons, the Chamber is not satisfied that Witness GLJ’s limited evidence is sufficient to find that Niyoyita was in fact killed by gendarmes.

1605. Similarly, the Chamber notes that Witness GLJ’s evidence that Phocus Kananeri was killed by a gendarme known as Morokore is also drawn from information that he received from unidentified local residents who had gathered at Kananeri’s house shortly after he was killed.2872 While the Chamber accepts that the witness may have been acquainted with Morokore, the witness did not claim to have seen Morokore in the area around Kananeri’s residence on the day that he was killed. Although the witness claimed to have pursued Morokore after the latter had allegedly killed Kananeri, the witness did not state that he actually saw Morokore in the course of his pursuit. The Chamber is not persuaded that the limited and uncorroborated evidence of Witness GLJ is sufficient to support a finding that a gendarme known as Morokore was responsible for the killing of Kananeri.

1606. The Chamber therefore finds that the Prosecution has failed to prove beyond reasonable doubt the allegations described in paragraphs 100 and 101 of the Indictment. 2866 T. 15 June 2005, pp. 43-44. 2867 T. 15 June 2005, p. 43. 2868 T. 15 June 2005, p. 44. 2869 T. 14 June 2005, pp. 32-33 (ICS). 2870 T. 14 June 2005, p. 33 (ICS). 2871 T. 15 June 2005, pp. 43-44. 2872 T. 15 June 2005, pp. 40, 42. 17 May 2011 357/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.3.5 Killing of Tutsi by Gendarmes at a Roadblock in Nyamirambo 1.6.3.5.1 Introduction 1607. The Indictment alleges that “in April 1994, at Nyamirambo, gendarmes under the command of Augustin Ndindiliyimana occupied one of the many roadblocks erected in that secteur. They would check the ethnic origin of the passers-by at the roadblock by examining their identity cards. Anyone who was of Tutsi origin or was suspected of belonging to that ethnic group was summarily executed. The executioners would then invariably accuse their victims of being ‘Inkotanyi accomplices’.”2873 The Indictment alleges that Ndindiliyimana bears superior responsibility for these crime.2874 1.6.3.5.2 Evidence Prosecution Witness GLJ 1608. Witness GLJ, a local official in Kigali town, testified that he attended a meeting convened by the préfet of Kigali, Renzaho, on 10 April 1994.2875 While on his way to the meeting and on his way back to his residence after the meeting, the witness was stopped at a number of roadblocks, one of which was situated near the Belgian school controlled by gendarmes.2876 1609. Between 10 and 20 April, Witness GLJ attended another meeting held at Préfet Renzaho’s office.2877 During this meeting, the préfet informed the officials attending the meeting that the security council of Kigali had instructed

them to establish roadblocks in areas under their control.2878 The préfet also informed the attendees that they were required by the Council to collect guns from the Ministry of Defence in order to distribute them to the individuals who were expected to control the roadblocks.2879 The witness explained that the rationale behind the establishment of the roadblocks was to intercept and thwart the activities of the RPF infiltrators.2880 1610. In compliance with the instructions given by the préfet at the meeting, Witness GLJ established roadblocks in every cellule in Nyamirambo secteur.2881 According to the witness, members of the Tutsi ethnic group who passed through these roadblocks were arrested and killed.2882 Prosecution Witness DA 1611. Witness DA was a member of the RECCE Battalion in April 1994.2883 He testified that on 7 April 1994, he accompanied Sagahutu on a trip around Kigali town. In the course of 2873 Indictment, para. 102. 2874 Indictment, para. 78. 2875 T. 15 June 2005, pp. 1-3. 2876 T. 15 June 2005, pp. 2-3, 5-8. 2877 T. 15 June 2005, p. 11. 2878 T. 15 June 2005, p. 17. 2879 T. 15 June 2005, p. 17. 2880 T. 15 June 2005, p. 26. 2881 T. 15 June 2005, p. 26. 2882 T. 15 June 2005, p. 30. 2883 T. 11 January 2005, pp. 26-28. 17 May 2011 358/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T their journey, they stopped at a number of roadblocks where Sagahutu distributed guns to Interahamwe who were stationed there.2884 The witness further testified that armed soldiers and gendarmes were also present at these roadblocks.2885 1612. One of these roadblocks was located at the junction of the road leading from Nyamirambo to CHK.2886 The witness recalled that in addition to Interahamwe, about four to five soldiers from Camp Kigali and about two gendarmes from Camp Muhima were present at the roadblock when the witness stopped.2887 The soldiers and gendarmes were armed with R4 rifles and light automatic machine guns, while the Interahamwe were armed with rifles and traditional weapons such as clubs, bludgeons and knives.2888 The witness testified that they did not spend a great deal of time at this roadblock as they were in a hurry to proceed to other areas in Kigali. However, while at the roadblock, he noted that members of the population who passed by were asked to present their identity cards.2889 He also observed that a group of civilians whom he believed to be Tutsi had been gathered on the side of the roadblock. He further noted a number of bodies lying in the immediate vicinity; some of those bodies appeared to be alive while about 20 appeared to be dead.2890 1613. Witness DA testified that

they also stopped at a roadblock near the ONATRACOM building. Like the previous roadblock, the witness noted the presence of armed soldiers, gendarmes and Interahamwe at this roadblock.2891 The witness testified that civilians who passed by the roadblock were also asked to present their identity cards.2892 He observed that a number of civilians whom he believed to be Tutsi were ordered to stand on the side of the roadblock once their identity cards had been checked.2893 He also saw a pile of dead bodies lying on the side of the roadblock.2894 In line with his earlier testimony, the witness believed that the victims at this roadblock were Tutsi.2895 1614. The witness recalled that in the course of this trip, he observed a number of smaller roadblocks in the Nyamirambo area.2896 One of these roadblocks was situated near the Nyamirambo Mosque.2897 Prosecution Witness DY 1615. Witness DY was a soldier attached to Squadron C of the RECCE battalion.2898 He testified that between 15 and 20 April 1994, he was assigned to work as a bodyguard to Brigadier General Gratien Kabiligi, who was a G3 officer in the army’s General Staff in charge of military operations.2899 During this period, the witness escorted Kabiligi to Mount 2884 T. 12 January 2005, pp. 9-10. 2885 T. 12 January 2005, pp. 9-11. 2886 T. 12 January 2005, pp. 10, 13. 2887 T. 12 January 2005, pp. 10-11. 2888 T. 12 January 2005, p. 11. 2889 T. 12 January 2005, p. 15. 2890 T. 12 January 2005, pp. 11-12. 2891 T. 12 January 2005, pp. 14-15. 2892 T. 12 January 2005, p. 15. 2893 T. 12 January 2005, p. 14. 2894 T. 12 January 2005, pp. 14-15. 2895 T. 12 January 2005, pp. 14-15. 2896 T. 12 January 2005, p. 16. 2897 T. 12 January 2005, p. 16. 2898 T. 23 January 2006, pp. 27-28. 2899 T. 23 January 2006, p. 69. 17 May 2011 359/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Kigali. In the course of this trip, they passed through the Nyamirambo area where he observed a number of roadblocks, mainly controlled by Interahamwe.2900 These roadblocks were situated in various places including near the Nyamirambo brigade of the Gendarmerie, near the Nyamirambo filling station, at a place called Cosmos, at a place called Cemutawi, at another place opposite the stadium and at a place called Terminus.2901 At the last roadblock, the witness observed Interahamwe and soldiers, and he also noted a number of dead bodies lying on the side of the road.2902 1.6.3.5.3 Deliberations 1616. The Chamber notes that at the time that Witness GLJ gave his testimony, he was detained in Rwanda on accusations that he was involved in genocide-related crimes in 1994.2903 Given his alleged complicity in the crimes underpinning the Indictment against the Accused, the Chamber has weighed his evidence with caution.

1617. Having carefully reviewed the evidence of Witness GLJ, the Chamber finds that it lacks any suggestion that gendarmes who controlled the roadblock located near the Belgian school in Kigali on 7 April perpetrated crimes against Tutsi civilians. His evidence also lacks any suggestion that gendarmes were implicated in the crimes that were committed at any of the roadblocks that he claimed to have established in the Nyamirambo secteur pursuant to Préfet Renzaho’s instructions.2904 His evidence is clear that these roadblocks were controlled by Interahamwe rather than gendarmes.2905 For these reasons, the Chamber finds that Witness GLJ’s evidence does not support the Prosecution’s allegation described in paragraph 102 of the Indictment.

1618. The Chamber recalls that Witness DA testified to having seen gendarmes as well as soldiers and Interahamwe at various roadblocks in Kigali, including in Nyamirambo secteur. His evidence suggests that Tutsi civilians who passed through these roadblocks were identified and killed. In particular, the Chamber recalls Witness DA’s testimony that he saw a number of dead bodies lying on the side of these roadblocks.2906 1619. However, the Chamber is not satisfied that his evidence establishes that gendarmes were involved in perpetrating these crimes. Although he claimed that a few gendarmes were present during his brief stops at these roadblocks, Witness DA’s evidence fails to link gendarmes to the crimes committed there. The lack of direct evidence linking gendarmes to these crimes, the brevity of Witness DA’s stops at the roadblocks, and the simultaneous presence of soldiers and Interahamwe leave the Chamber with doubts as to whether gendarmes were implicated in the crimes that were committed at these roadblocks on 7 April 1994.

1620. The Chamber has also reviewed Witness DY’s evidence, but finds that it lacks any suggestion that gendarmes perpetrated crimes at any of the roadblocks that he observed in the 2900 T. 23 January 2006, p. 75. 2901 T. 23 January 2006, p. 75. 2902 T. 23 January 2006, p. 75. 2903 T. 14 June 2005, pp. 32-33 (ICS). 2904 T. 15 June 2005, pp. 26, 30. 2905 T. 15 June 2005, p. 3. 2906 T. 12 January 2005, pp. 11-12. 17 May 2011 360/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nyamirambo area as he was travelling to Mount Kigali in the company of General Kabiligi in April 1994.2907 1621. For these reasons, the Chamber is not satisfied that the Prosecution has adduced sufficient evidence to prove beyond reasonable doubt the allegation described in paragraph 102 of the Indictment. 1.6.4 Nzuwonemeye and Sagahutu 1.6.4.1 Killing of Prime Minister Agathe Uwilingiyimana 1.6.4.1.1 Introduction 1622. The Indictment alleges that on 7 April 1994, elements of the RECCE Battalion under the command of Major Nzuwonemeye and Captain Sagahutu, “acting in concert with members of the Presidential Guard and Interahamwe militiamen hunted down, tortured and killed Prime Minister Agathe Uwilingiyimana ... [and] three members of [her] entourage”.2908 The Indictment alleges that Nzuwonemeye and Sagahutu bear direct responsibility and superior responsibility for this crime.2909 1.6.4.1.2 Prosecution Evidence Prosecution Witness DA 1623. Witness DA was a soldier of the RECCE Battalion in April 1994. He testified that shortly after the plane carrying President Habyarimana was shot down on 6 April 1994, he attended an assembly of approximately 300 to 350 RECCE Battalion soldiers held at their Headquarters within Camp Kigali.2910 Nzuwonemeye, the battalion commander, addressed the assembled soldiers.2911

The witness testified that Sagahutu also attended the assembly.2912 In his address, Nzuwonemeye informed the soldiers that “the President’s plane had been shot down … and that the soldiers should remain on stand-by”.2913 Nzuwonemeye also stated that “the Prime Minister would have to answer for this accident” and ordered that “vehicles ... be brought out to block the roads leading to the Prime Minister’s residence”.2914 1624. Thereafter, four armoured vehicles belonging to the RECCE Battalion were sent to the residence of the Prime Minister under the leadership of Warrant Officer (W.O.) Bizimungu in order to block access to the Prime Minister’s residence, as ordered by Nzuwonemeye. Other soldiers who were also part of this mission included drivers Sindikubwabo and Semakuba, as well as a gunner named Corporal “Afrika”.2915 According to 2907 T. 23 January 2006, p. 75. 2908 Indictment, para. 103. 2909 Indictment, para. 78. 2910 T. 11 January 2005, pp. 38-39. 2911 T. 11 January 2005, p. 39. 2912 T. 11 January 2005, p. 39. 2913 T. 11 January 2005, p. 40. 2914 T. 11 January 2005, p. 40. 2915 In some parts of the transcript, this name is spelled “Africa”. For consistency, the Chamber will use “Afrika” throughout this Judgement. 17 May 2011 361/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the witness, W.O. Bizimungu sent a radio message to inform Nzuwonemeye and Sagahutu that the armoured vehicles had arrived at the Prime Minister’s residence.2916 1625. The witness testified that while standing next to a vehicle equipped with a radio communication set2917 in the early morning of 7 April, he overheard a radio exchange between Sagahutu and W.O. Bizimungu2918 in which the latter informed Sagahutu that Belgian UNAMIR soldiers were attempting to gain access to the Prime Minister’s residence and asked whether he should grant them access to the residence.2919 The witness recalled that in the course of the exchange, Nzuwonemeye intervened and responded to W.O. Bizimungu’s query by stating that the Belgians should be allowed to enter the residence but that they should not leave the residence with anything.2920 Witness DA heard a second radio message in which W.O. Bizimungu indicated that Belgian soldiers had already entered the Prime Minister’s residence and that he had started shooting in the direction of the residence.2921 1626. The witness testified to having heard a third message in which W.O. Bizimungu said that Presidential Guard soldiers had also entered the residence of the Prime Minister looking for the Prime Minister but could not find her. However, they found a man whom they

killed.2922 The witness stated that Nzuwonemeye and Sagahutu responded to W.O. Bizimungu’s radio message by asking him why he had not yet finished the “operation” that had began early in the morning and informing him about “other operations” that remained to be carried out.2923 Witness DA also heard a fourth radio message in which Nzuwonemeye ordered RECCE Battalion soldiers guarding the National Radio Station not to allow anyone to enter the Station.2924 1627. At about 8.00 a.m. on 7 April, on the orders of Sagahutu, Witness DA drove to the residence of the Prime Minister in order to deliver ammunition and a radio set to W.O. Bizimungu.2925 Witness DA delivered the ammunition to W.O. Bizimungu, who was in an armoured vehicle parked at the junction of the roads leading to the National Bank of Rwanda and the Prime Minister’s residence.2926 The witness specified that the vehicle was located approximately 10 metres away from the junction with its cannon pointed towards the Prime Minister’s residence.2927 From this position, Witness DA saw between 8 and 11 unarmed Belgian UNAMIR soldiers exiting the residence with their hands in the air.2928 He also saw those soldiers being searched by soldiers of the Rwandan Army units based at Camp Kigali 2916 T. 11 January 2005, pp. 40-44. 2917 T. 11 January 2005, pp. 50-51. 2918 The Chamber notes that paragraphs 106 and 107 of the Indictment

refer to “Sergeant Major Bizimungu”, but that throughout the trial all Parties were in agreement that this individual was the same as the “Warrant Officer Bizimungu” referred to by several Prosecution and Defence witnesses. 2919 T. 11 January 2005, pp. 48-51 (“Q: What time did you hear that conversation, if you recall? A: At about dawn, very early in the morning. It was dawn.”). 2920 T. 11 January 2005, pp. 49-51 2921 T. 11 January 2005, pp. 51-53. 2922 T. 11 January 2005, p. 53. 2923 T. 11 January 2005, p. 53. 2924 T. 11 January 2005, p. 55. 2925 T. 11 January 2005, p. 56. 2926 T. 11 January 2005, p. 58. 2927 T. 11 January 2005, p. 58. 2928 T. 11 January 2005, pp. 58-59. 17 May 2011 362/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T and Presidential Guard soldiers.2929 Thereafter, the Belgian soldiers were ordered to board a minibus driven by W.O. Kanuma.2930 Witness DA later learned that the Belgian soldiers were taken to Camp Kigali.2931 Witness DA returned to Camp Kigali after delivering the ammunition to W.O. Bizimungu.2932 1628. Sometime between 11.00 a.m. and 12.00 noon on 7 April, Witness DA escorted Sagahutu to the Prime Minister’s residence.2933 Upon arrival, they met W.O. Bizimungu who gave Sagahutu a piece of paper containing what the witness believed was a speech that the Prime Minister was expected to deliver at the time.2934 1629. Witness DA also saw the naked body of the Prime Minister lying on the road outside the front gate of the Prime Minister’s residence.2935 The witness stated that the body was riddled with bullet wounds.2936 He also noticed that an empty Fanta bottle had been thrust into her genitals. Sagahutu removed the bottle from the Prime Minister’s dead body and threw it on the side of the road.2937 1630. Witness DA testified to having heard Sagahutu report to Nzuwonemeye via radio that he had seen the Prime Minister’s dead body.2938 The witness stated that at the instruction of Sagahutu, he and another RECCE soldier transported the dead body of the Prime Minister from her residence to Kanombe military

hospital.2939 Prosecution Witness HP 1631. Witness HP was a soldier attached to Squadron A of the RECCE Battalion in April 1994.2940 On 6 April 1994, shortly after 8.00 p.m., the witness attended an assembly convened by Sagahutu at which the latter addressed the soldiers and told them to be alert and wait for further instructions.2941 Following Sagahutu’s instructions at the assembly, four armoured vehicles under the leadership of W.O. Bizimungu left Camp Kigali between 12.30 and 1.00 a.m. on 7 April and were deployed to President Habyarimana’s residence in the Kiyovu neighbourhood of Kigali.2942 1632. Later that day, at about 6.00 a.m., while standing about two to three metres away from Sagahutu in the parking lot,2943 Witness HP heard W.O. Bizimungu inform Sagahutu over the radio that UNAMIR soldiers had arrived at the Prime Minister’s residence and were 2929 T. 11 January 2005, pp. 59-60. Witness DA explained later that the soldiers he saw at Camp Kigali included some from the senior military academy, RECCE Battalion, Huye Battalion and Presidential Guard. He estimated that there were 80 to 100 soldiers at the Prime Minister’s residence that morning. See T. 11 January 2005, p. 61. 2930 T. 11 January 2005, p. 61. 2931 T. 11 January 2005, pp. 61, 65. 2932 T. 11 January 2005, p. 65. 2933 T. 12 January 2005, p. 8. 2934 T. 12 January 2005, p. 8. 2935 T. 12 January 2005, pp. 23, 27-28. 2936 T. 12 January 2005, p. 23. 2937 T. 12 January 2005, pp. 23-24. 2938 T. 12 January 2005, p. 30. 2939 T. 12 January 2005, p. 28. 2940 T. 9 May 2005, pp. 11-12 (ICS). 2941 T. 9 May 2005, p. 16; T. 10 May 2005, pp. 32-34. 2942 T. 9 May 2005, pp. 18-19, 41. 2943 T. 9 May 2005, p. 20. 17 May 2011 363/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T shooting.2944 In reply, Sagahutu told W.O. Bizimungu that they should shoot back if they were attacked.2945 1633. Between 9.00 and 9.30 a.m., Witness HP was again standing about three metres away from Sagahutu, who was seated on a jeep parked at the parking lot in front of his office.2946 The witness heard W.O. Bizimungu inform Sagahutu over the radio that they had found Prime Minister Agathe Uwilingiyimana. W.O. Bizimungu then asked Sagahutu whether he should take her to Camp Kigali. Sagahutu responded, “Why do you want to bring her here? What do you want to do?”2947 1634. Between 12.00 and 1.00 p.m., Witness HP left Camp Kigali in order to supply food to RECCE Battalion soldiers who were deployed outside the camp, including W.O. Bizimungu who was at the Prime Minister’s residence.2948 There, the witness saw W.O. Bizimungu standing along the road, about 20 metres away from the Prime Minister’s residence. He also saw between 40 and 50 soldiers at the residence, including Presidential Guard soldiers.2949 Witness HP testified that W.O. Bizimungu stated that they had found the “bitch” they were looking for and asked the witness to go inside the Prime Minister’s residence and see for himself.2950 When the witness entered the premises, he saw four dead bodies including that of Prime Minister Agathe

Uwilingiyimana, her husband and another individual. The witness explained that the victims had bullet wounds on various parts of their bodies including the mouth, abdomen and head.2951 Thereafter, at about 1.30 p.m., Witness HP returned to Camp Kigali.2952 1635. At about 4.00 or 4.30 p.m., Witness HP again left the camp to take “provisions” to W.O. Bizimungu and the soldiers at the Prime Minister’s residence. Upon arrival, he saw UNAMIR troops in armoured cars trying to get into the residence and W.O. Bizimungu and the other soldiers trying to prevent the UNAMIR troops from doing so.2953 The witness then heard W.O. Bizimungu ask Sagahutu via radio whether he should allow the UNAMIR troops to enter the residence and whether they should remove the dead bodies from the residence. Sagahutu instructed W.O. Bizimungu to “load the bodies on to a vehicle and take them to Kanombe”.2954 W.O. Bizimungu then ordered Witness HP to load the bodies onto his vehicle and take them to Kanombe. The witness refused and returned to Camp Kigali.2955 Upon his return to the camp, Sagahutu ordered him to go to the Prime Minister’s residence and transport the bodies to Kanombe military hospital.2956 Consequently, the witness transported 2944 T. 9 May 2005, p.

20. Witness HP clarified that W.O. Bizimungu sent this message from a radio set mounted on his armoured vehicle and that Sagahutu replied through a P13 radio fitted on a jeep parked in front of his office. 2945 T. 9 May 2005, pp. 36, 42; T. 10 May 2005, p. 9. 2946 T. 9 May 2005, p. 21. 2947 T. 9 May 2005, pp. 21, 39; T. 10 May 2005, p. 11. 2948 T. 9 May 2005, pp. 21-22. 2949 T. 9 May 2005, p. 22. 2950 T. 9 May 2005, pp. 22, 43. 2951 T. 9 May 2005, pp. 22-23. 2952 T. 9 May 2005, p. 24. 2953 T. 9 May 2005, p. 24. 2954 T. 9 May 2005, p. 24. 2955 T. 9 May 2005, pp. 24-25; T. 10 May 2005, pp. 16-18. 2956 T. 9 May 2005, p. 25. 17 May 2011 364/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the bodies from the Prime Minister’s residence to the morgue at Kanombe military hospital and returned to Camp Kigali.2957 Prosecution Witness AWC 1636. Witness AWC was a member of the RECCE Battalion stationed at Camp Kigali in April 1994.2958 On 6 April 1994, between 10.00 and 11.00 p.m., the witness was at home when he learned over the radio that President Habyarimana’s plane had crashed. Following the news, the witness left his home and went to his office at Camp Kigali.2959 While in his office, Witness AWC received a telephone call from Colonel Bagosora, who asked the witness to inform Nzuwonemeye that he was invited to join a meeting that was to be held at the Rwandan Army Headquarters.2960 Since Nzuwonemeye was present at the camp, the witness called him so that he could attend to Bagosora’s call.2961 According to the witness, Nzuwonemeye spoke to Bagosora and then left his office and headed towards the location of the meeting.2962 Nzuwonemeye returned to his office at Camp Kigali approximately between 4.00 and 5.00 a.m.2963 1637. Following his return from the meeting at Army Headquarters, Nzuwonemeye convened a meeting with the RECCE Battalion squadron leaders. The witness estimated that the meeting lasted a few minutes.2964 The witness further testified that sometime after the meeting with his

squadron commanders, Nzuwonemeye summoned Sagahutu into his office and ordered him to take measures to reinforce the Presidential Guards who were stationed at Prime Minister Agathe Uwilingiyimana’s house.2965 The witness then heard Sagahutu issue orders over the Motorola radio for two armoured vehicles that were deployed at Radio Rwanda to head towards the Prime Minister’s residence in order to reinforce the Presidential Guards there.2966 1638. Approximately an hour later, Witness AWC heard the sound of gunfire and was later informed by soldiers that the gunfire had been caused by RECCE Battalion soldiers using their armoured vehicles to fire at the Belgian soldiers who were positioned at the Prime Minister’s residence.2967 1639. The witness testified that on 7 April, at around 3.00 p.m., he boarded a jeep driven by Witness HP to the Prime Minister’s residence in order to see what was happening. Witness AWC stated that when he arrived at the Prime Minister’s residence, he saw a dead body lying in the yard and he was told that it belonged to the Prime Minister’s brother.2968 Witness AWC 2957 T. 9 May 2005, pp. 25-26. 2958 T. 18 January 2006, p. 24 (ICS). 2959 T. 18 January 2006, p. 28. 2960 T. 18 January 2006, p. 29. 2961 T. 18 January 2006, p. 29. 2962 T. 18 January 2006, pp. 29-30. 2963 T. 18 January 2006, pp. 28-30 (Witness AWC was unable to provide exact timings of events: “I will reiterate that it really is difficult for me to remember the times, but if I were to give you an estimate -- I'm sorry, it's only an estimate, it was between 4.00 and 5.00 a.m., so it is not precise. This is just an estimate.”). 2964 T. 18 January 2006, p. 30. 2965 T. 18 January 2006, p.

31. Witness AWC explained that his office was situated opposite Nzuwonemeye’s office and that he was able to hear the conversation between Nzuwonemeye and Sagahutu because Nzuwonemeye’s office door was left open. 2966 T. 18 January 2006, pp. 31-32. 2967 T. 18 January 2006, p. 32. 2968 T. 19 January 2006, pp. 51-52. 17 May 2011 365/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T did not enter the Prime Minister’s residence but was told that the bodies of the Prime Minister and her husband “were inside the house”.2969 1640. Witness AWC further testified that at the Prime Minister’s residence, he met the drivers of the RECCE armoured vehicles who were originally deployed at the President’s residence in Kiyovu and also at Radio Rwanda.2970 Among them was a man named “Afrika”, a crew member of the armoured vehicle stationed at the President’s residence at Kiyovu. The witness further testified that Afrika gave him information about the shooting at the Prime Minister’s residence and about the movement of armoured vehicles from Radio Rwanda and Kiyovu to the Prime Minister’s residence.2971 Prosecution Witness ALN 1641. Witness ALN was a member of the RECCE Battalion stationed at Camp Kigali in April 1994.2972 On 7 April 1994, between 5.00 and 6.00 a.m., Witness ALN testified that he was situated approximately two metres away from Sagahutu and Nzuwonemeye who were at the entrance to the latter’s office, when he overheard Nzuwonemeye order Sagahutu to send two armoured vehicles to the Prime Minister’s residence in order to reinforce the Presidential Guard soldiers who were already there.2973 The witness further testified that the purpose of the additional deployment to the Prime

Minister’s residence was to ensure that the Prime Minister did not flee, and if necessary to kill her.2974 1642. In response to Nzuwonemeye’s instructions, Sagahutu immediately ordered the deployment of two RECCE Battalion armoured vehicles that were positioned opposite Nzuwonemeye’s office to the Prime Minster’s residence.2975 The witness testified that later that day, the RECCE Battalion soldiers who were asked to deploy those armoured vehicles made a radio call confirming that they had arrived at the Prime Minister’s residence, although the witness did not specify how he knew of this radio call.2976 1643. Witness ALN also testified that he was present when Nzuwonemeye attended a meeting of officers of the Rwandan Armed Forces, which started at about 9.30 a.m.2977 During that meeting, Witness ALN stayed by a vehicle in the parking lot next to the conference room at ESM.2978 While at the parking lot, the witness heard gunshots coming from the direction of the Prime Minister’s residence, which was located a short distance away from ESM.2979 Shortly thereafter, approximately between 9.50 and 10.00 a.m.,2980 Nzuwonemeye came out of the meeting and took a Motorola radio from the vehicle by which 2969 T. 19 January 2006, p. 51. 2970 T. 19 January 2006, p. 48. 2971 T. 19 January 2006, p. 48. 2972 T. 29 September 2004, pp. 38-39. 2973 T. 30 September 2004, pp. 33-37. See also T. 29

September 2004, pp. 44-46; T. 30 September 2004, pp. 35- 37; T. 5 October 2004, pp. 19, 23. 2974 T. 29 September 2004, p. 45; T. 30 September 2004, p. 35; T. 5 October 2004, pp. 20-22. 2975 The armoured vehicles deployed were MR60 and MR90 vehicles. T. 5 October 2004, pp. 20-21. See also T. 29 September 2004, pp. 45-46; T. 30 September 2004, p. 37; T. 4 October 2004, p. 30; T. 5 October 2004, pp. 20-21. 2976 T. 30 September 2004, p. 36. 2977 T. 29 September 2004, pp. 50-51. 2978 T. 29 September 2004, p. 50. 2979 T. 4 October 2004, p. 30. 2980 T. 29 September 2004, p. 52. 17 May 2011 366/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Witness ALN was standing.2981 According to the witness, Nzuwonemeye then called RECCE Battalion soldiers from Squadron A who had an armoured vehicle stationed at the Prime Minister’s residence and asked them whether they had located her. The soldiers responded that the Prime Minister had been killed.2982 Witness ALN testified that he was approximately two metres away from Nzuwonemeye when he overhead the latter’s conversation.2983 Thereafter, Nzuwonemeye returned to the venue of the meeting.2984 Prosecution Witness AP 1644. Witness AP was a soldier attached to the RECCE Battalion in April 1994.2985 He testified to having attended an assembly of RECCE Battalion soldiers held at Camp Kigali following the death of President Habyarimana on 6 April 1994. The assembly commenced around 10.00 p.m. and lasted for about 30 minutes. Nzuwonemeye addressed the assembled soldiers and informed them that the President’s plane had crashed and that “the plane ... [had been] attacked by the Inyenzi; that is the Tutsi.”2986 Nzuwonemeye then ordered the soldiers to collect their weapons and remain alert and wait for further instructions.2987 1645. Approximately one hour later, the witness heard noises suggesting that armoured vehicles were leaving the camp. Witness AP did not see the vehicles leaving, but believed them to

be armoured vehicles from the engine noise.2988 Witness AP was later told by another RECCE soldier that he had seen armoured vehicles leaving the camp that night.2989 Prosecution Witness DY 1646. Witness DY was a soldier in the RECCE Battalion in 1994.2990 The witness testified that he attended an assembly of RECCE Battalion soldiers at Camp Kigali on the night of 6 April 1994.2991 Both Nzuwonemeye and Sagahutu attended the assembly.2992 Nzuwonemeye addressed the soldiers and told them that “the President’s plane had been shot down by Inyenzi.”2993 1647. Shortly thereafter, the witness saw a warrant officer arrive at the assembly ground and inform Nzuwonemeye that there was a telephone call for him from the Army Headquarters.2994 Witness DY was standing about three metres away from Nzuwonemeye at this time. The witness recalled that Nzuwonemeye left the assembly ground in order to 2981 T. 29 September 2004, p. 51; T. 5 October 2004, p. 48. 2982 T. 5 October 2004, p.

48. See also T. 29 September 2004, p. 51; T. 4 October 2004, p. 30; T. 5 October 2004, p. 24. 2983 T. 29 September 2004, p. 51. 2984 T. 29 September 2004, p. 51; T. 5 October 2004, p. 48. 2985 T. 7 September 2005, p. 72 (ICS). 2986 T. 7 September 2005, p. 75. 2987 T. 7 September 2005, p. 75. 2988 T. 7 September 2005, p. 78. 2989 T. 7 September 2005, p. 78. 2990 T. 23 January 2006, pp. 27-28. 2991 T. 23 January 2006, p. 35. 2992 T. 23 January 2006, p. 35. 2993 T. 23 January 2006, p. 35; T. 24 January 2006, p. 61. 2994 T. 23 January 2006, p. 36. 17 May 2011 367/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T answer the telephone call. Shortly thereafter, Nzuwonemeye returned and informed Sagahutu that he was going to attend a meeting at the Army Headquarters.2995 1648. Witness DY also testified that at about 3.00 p.m. on 7 April, while at the RECCE Headquarters at Camp Kigali, he was informed by Corporal “Afrika” that he had gone to Prime Minister Agathe Uwilingiyimana’s residence and undressed the Prime Minister and shot her.2996 Prosecution Witness ANK/XAF 1649. Witness ANK/XAF, a soldier in the RECCE Battalion in April 1994, testified that at about 11.00 a.m. on 7 April 1994, he met with Corporal Fiachre “Afrika” and other soldiers in the parking lot in front of the battalion commander’s office at Camp Kigali.2997 The witness had known Afrika, who was an armoured vehicle gunner and a member of Squadron A of RECCE, since 1989.2998 The witness testified that Afrika told the witness in a boastful manner that he had killed Prime Minister Agathe Uwilingiyimana. Afrika also told him that the Prime Minister had offered to give him money to spare her life but that he had refused and shot her to death.2999 Prosecution Witness DCK 1650. Witness DCK was a soldier attached to the Music Company based at Camp Kigali in April 1994.3000 The witness testified that between 9.00 and 10.00 p.m. on 6 April 1994, following an

assembly at Camp Kigali, he saw vehicles belonging to the RECCE Battalion leaving the camp.3001 1651. The witness testified that on 7 April 1994, between 9.00 and 10.00 a.m., he was told by soldiers of the RECCE battalion, including one “Afrika”, that they had killed Prime Minister Agathe Uwilingiyimana.3002 They also informed him about the killing of other senior government or political figures including Kavaruganda who was President of the Supreme Court, Frederic Nzamurambaho, Landouald Ndasingwa, and Félicien Ngango and added that they were searching for one Twagiramungu.3003 The witness testified that the soldiers harped on the role in these killings “again and again, and boasted of their exploits.” 3004 Prosecution Witness DP 1652. Witness DP was a member of the Para Commando battalion stationed at Camp Kanombe in April 1994.3005 He testified that on 7 April 1994, he was at Kanombe hospital when the dead bodies of Prime Minister Agathe Uwilingiyimana and two other men were 2995 T. 23 January 2006, p. 36. 2996 T. 23 January 2006, p. 42; T. 25 January 2006, p. 13. 2997 T. 31 August 2005, pp. 76-77 (ICS); T. 1 September 2005, pp. 17-18. 2998 T. 1 September 2005, p. 17. 2999 T. 1 September 2005, p. 18; T. 2 September 2005, p. 8. 3000 T. 8 March 2005, pp. 30-31 (ICS), p. 33. 3001 T. 9 March 2005, p. 3. 3002 T. 9 March 2005, pp. 3-4. 3003 T. 9 March 2005, pp. 4-5. 3004 T. 9 March 2005, p. 51. 3005 T. 22 September 2005, p. 45 (ICS). 17 May 2011 368/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T brought in a “Silver Mark” jeep driven by a soldier of the RECCE Battalion whom he knew well, accompanied by three or four other soldiers of the RECCE battalion.3006 The witness later learned that one of the bodies was that of the Prime Minister’s husband.3007 Later, the witness saw the Prime Minister’s body in the morgue and noticed that she had been shot in the forehead.3008 Prosecution Witness LN 1653. Witness LN was a soldier attached to the Medical company at Camp Kanombe in April 1994.3009 He testified that on 7 April 1994, while at Kanombe, the commander of the Medical company, Lieutenant Colonel Baransaritse, told him and other soldiers that the Prime Minister’s dead body had just been brought to the mortuary at Kanombe hospital and invited them to go and view it.3010 1654. The witness testified that Baransaritse also informed him that he had been present when the Prime Minister was attacked at her residence.3011 Baransaritse told the witness that a platoon of ESM soldiers had initially attacked the Prime Minister’s residence but were repelled by Belgian UNAMIR soldiers.3012 Baransaritse further informed him that the Prime Minister was eventually killed once the assailants were reinforced by a company of RECCE Battalion soldiers led by Captain Sagahutu.3013 Prosecution Witness Roméo Dallaire

1655. Witness Dallaire testified that in the evening of 6 April 1994, Prime Minister Agathe Uwilingiyimana called him over the phone and informed him that the plane carrying President Habyarimana had crashed.3014 At around 10.00 p.m., Dallaire received another telephone call from Prime Minister Agathe Uwilingiyimana who informed him that she could not contact MRND ministers.3015 At around 11.30 p.m. or 12.00 midnight, Dallaire received another telephone call from Prime Minister Agathe Uwilingiyimana in which she expressed her grave concern in light of the fact that she could not contact members of the transitional government led by her.3016 In the course of this conversation, they also discussed the rapidly deteriorating situation and the possibility of the Prime Minister making a radio address to the nation the following morning in order to reassure the population that “a political leadership structure” was in place.3017 Dallaire added that at approximately 3.00 or 4.00 a.m., he spoke to the Prime Minister again. At this time, he was negotiating with the government radio station to allow the Prime Minister to make a radio announcement.3018 3006 T. 22 September 2005, p. 72. 3007 T. 22 September 2005, p. 73. 3008 T. 22 September 2005, p. 73. 3009 T. 12 September 2005, p. 39 (ICS). 3010 T. 12 September 2005, p. 70. 3011 T. 12 September 2005, pp. 70-71; T. 14 September 2005, p. 24. 3012 T. 12 September 2005, p. 70; T. 14 September 2005, p. 26. 3013 T. 12 September 2005, p. 70; T. 14 September 2005, pp. 25-26. 3014 T. 20 November 2006, p. 51. 3015 T. 20 November 2006, p. 51. 3016 T. 20 November 2006, p. 52. 3017 T. 20 November 2006, p. 52. 3018 T. 20 November 2006, p. 52. 17 May 2011 369/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1656. In the morning of 7 April, while on his way to a meeting of the officers of the Rwandan Armed Forces at ESM, Dallaire received reports that a “VIP” was in the UNDP compound. Upon receiving this information, he went to the UNDP Headquarters but could not locate anyone there. He then proceeded to ESM to attend the meeting.3019 Dallaire testified that he left the ESM meeting at about 12.00 noon and went to the Ministry of Defence.3020 From there, he called the UNAMIR Headquarters and was informed that Prime Minister Agathe Uwilingiyimana was at the UNDP compound (not the Headquarters). Dallaire therefore drove to the UNDP compound where he found a Senegalese UNAMIR Captain and about 20 “very hysterical … staff.”3021 While at the compound, Dallaire was informed that Prime Minister Agathe Uwilingiyimana and her husband had sought refuge in the compound earlier that morning. He was further informed that Presidential Guard soldiers had come to the compound and killed the Prime Minister and her husband.3022 Prosecution Expert Witness Alison Des Forges 1657. Expert Witness Des Forges testified that according to her review of the Belgian and Rwandan judicial documents, Captain Hategekimana and a “more junior officer” from ESM were directly responsible for killing the Prime Minister.3023 1.6.4.1.3 Defence

Evidence 1.6.4.1.3.1 Nzuwonemeye Defence Witnesses Nzuwonemeye Defence Witness Kwesi Doe 1658. Witness Kwesi Doe was a member of the Ghanaian contingent of UNAMIR. In April 1994, the witness and four other members of that contingent were assigned to provide security for Prime Minister Agathe Uwilingiyimana.3024 The witness testified that five to ten Rwandan gendarmes were also assigned to guard the Prime Minister.3025 1659. Witness Doe recalled that between 4.30 and 5.30 a.m. on 7 April 1994, Belgian soldiers arrived at the Prime Minister’s residence aboard four cars and knocked on the door in a bid to contact the Prime Minister, but she did not respond.3026 The Belgian soldiers parked two jeeps outside and two inside the Prime Minister’s compound and waited for about two or three hours.3027 1660. Between 8.00 and 9.00 a.m. on 7 April,3028 Rwandan Army soldiers entered the residence and fired small arms. At the same time, the witness saw gendarmes who were assigned to provide security to the Prime Minister cut through the barbed wire fence at the back of the Prime Minister’s residence in order to allow her and her family to escape to a 3019 T. 22 November 2006, p. 26. 3020 T. 20 November 2006, p. 58. 3021 T. 20 November 2006, p. 59. 3022 T. 20 November 2006, p. 59. 3023 T. 11 October 2006, p. 32. 3024 T. 8 July 2008, p. 51. 3025 T. 8 July 2008, pp. 51-52. 3026 T. 8 July 2008, p. 58. 3027 T. 8 July 2008, p. 58. 3028 T. 8 July 2008, p. 69. 17 May 2011 370/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T neighbouring residence.3029 The Rwandan soldiers ordered the Belgian and Ghanaian soldiers of UNAMIR to put down their arms and get into a white minibus that was parked on the road outside the residence.3030 The witness testified that they were then driven to Camp Kigali.3031 1661. While at the Prime Minister’s residence, the witness did not see any armoured vehicles around the residence or any roadblocks along the road.3032 However, the witness added that from his position inside the Prime Minister’s residence, he could not see outside the residence.3033 Nzuwonemeye Defence Witness Sandow Zambulugu 1662. Witness Sandow Zambulugu, a Ghanaian UNAMIR soldier assigned to protect Prime Minister Agathe Uwilingiyimana,3034 testified that on 6 April 1994, he was on sentry duty at the entrance gate of the Prime Minister’s residence.3035 1663. Witness Zambulugu stated that in the course of his duties at the residence on the night of 6 April, he did not see any armoured vehicles around the residence.3036 Around 5.00 to 6.00 a.m. on 7 April, the witness again went outside where he saw a new roadblock some 60 to 70 metres away from the Prime Minister’s main gate. The witness described this as a “snap” roadblock, not a deliberate check, and stated that this was the first time that he had noticed the roadblock.3037

1664. A few minutes later, Belgian UNAMIR soldiers arrived at the residence aboard four jeeps. They parked two of the vehicles in the yard and the other two in front of the gate.3038 The witness heard the Belgian soldiers tell the guard commander of the Ghanaian troops that they wanted to see the Prime Minister, and then the Belgians proceeded to knock on her door. However, the Prime Minister did not answer.3039 Shortly thereafter, Witness Zambulugu saw gendarmes who were assigned to protect the Prime Minister cut the barbed wire on the left side of the residence and leave the residence together with the Prime Minister, her husband and two of her children.3040 1665. About 15 minutes after the Belgian soldiers arrived at the residence, the witness saw between 10 and 20 Rwandan Army soldiers enter the Prime Minister’s residence. The Prime Minister had by then left her residence. The Rwandan Army soldiers asked the Belgian and Ghanaian soldiers to drop their weapons and get into a minibus that was waiting outside the gate.3041 The witness and the other UNAMIR soldiers were then driven to Camp Kigali. On 3029 T. 8 July 2008, p. 60. 3030 T. 8 July 2008, pp. 59-60. 3031 T. 8 July 2008, p. 64. 3032 T. 8 July 2008, pp. 60, 64, 71. 3033 T. 8 July 2008, p. 58. 3034 T. 8 July 2008, p. 77. 3035 T. 8 July 2008, pp. 79-80. 3036 T. 8 July 2008, pp. 80-81. 3037 T. 8 July 2008, p. 92. 3038 T. 8 July 2008, p. 82. 3039 T. 8 July 2008, p. 82. 3040 T. 8 July 2008, pp. 83-84. 3041 T. 8 July 2008, pp. 82-85. 17 May 2011 371/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T their way out, Witness Zambulugu did not see any armoured vehicles or roadblocks around the residence.3042 Nzuwonemeye Defence Witness DE8-10/F9 1666. Witness DE8-10/F9 was a senior military officer in the Rwandan Army in April 1994.3043 He testified that on 7 April 1994, on three occasions between 6.00 a.m. and 10.00 a.m.,3044 he drove on Avenue de l’Armée, which is parallel to the street on which the Prime Minister’s residence is located (Paul VI Avenue) approximately 60 metres from the Prime Minister’s residence.3045 According to the witness, it is not possible to view the Prime Minister’s residence from that road.3046 However, at no time during any of his trips on that road did he hear any gunshots in the area of the Prime Minister’s house. He further stated that the security situation in Kiyovu neighbourhood, where the Prime Minister’s residence was located, was calm and normal, and that he did not see any roadblocks in the vicinity of her residence.3047 1667. Witness DE8-10/F9 explained that sometime after 10.00 a.m. on 7 April, he attended a meeting at ESM which was chaired by Colonel Bagosora and attended by General Dallaire. Approximately 60 other Rwandan officers were present, including Ndindiliyimana.3048 During the meeting, the witness heard gunshots coming from the direction of the Prime

Minister’s residence.3049 The witness stated that he did not see Nzuwonemeye during the meeting,3050 but saw him after the meeting standing near a light armoured vehicle parked at the back entrance to ESM.3051 Nzuwonemeye Defence Witness Y1 1668. Witness Y1 was a senior military officer in the Rwandan Army in April 1994.3052 He testified that he first learned about the death of Prime Minister Agathe Uwilingiyimana from his driver on 7 April 1994. Later that evening, he telephoned Colonel Marcel Gatsinzi who confirmed the death of the Prime Minister.3053 On 8 April, Witness Y1 was told by a senior Rwandan Army officer at Camp Kanombe that the Prime Minister’s body had been brought to the Kanombe mortuary.3054 1669. With respect to radio communications, Witness Y1 testified that his unit had a total of about 40 Motorola radio sets, which they used to communicate with unit commanders throughout the Kigali operational sector. This included the commander of the RECCE Battalion, who also had a Motorola radio.3055 According to the witness, the Motorola radios 3042 T. 8 July 2008, pp. 86-87. 3043 T. 10 May 2007, pp. 8-9 (ICS). 3044 T. 10 May 2007, pp. 26, 29, 31-32. 3045 T. 10 May 2007, p. 26. 3046 T. 11 May 2007, p. 9. 3047 T. 10 May 2007, pp. 27, 32-33; T. 11 May 2007, p. 18. 3048 T. 10 May 2007, pp. 32-33, 35. 3049 T. 11 May 2007, pp. 69-70. 3050 T. 10 May 2007, p. 34. 3051 T. 10 May 2007, p. 35. 3052 T. 25 June 2008, p. 5 (ICS); Defence Exhibit 527, under seal. 3053 T. 25 June 2008, p. 17. 3054 T. 25 June 2008, p. 17. 3055 T. 25 June 2008, p. 15. 17 May 2011 372/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T had six channels, but from 8 April 1994, they could only use one channel because their relay station at Kimihurura had been destroyed as a result of shelling by the RPF. He added that the Motorola radios were of poor quality and that anyone with the same equipment, including subordinates, could listen to or otherwise hear their messages.3056 In fact, according to Witness Y1, the subordinates were listening to the radio messages on a permanent basis because unit commanders were busy with other responsibilities and each commander had a soldier to handle his radio, monitor messages and give the radio to the commander where necessary.3057 Nzuwonemeye Defence Witness B13/CBP7 1670. Witness B13/CBP7 was a senior gendarmerie officer in Rwanda in 1994.3058 He attended the meeting of the officers of the Rwandan Armed Forces convened shortly after the death of President Habyarimana on the night of 6 April 1994. According to the witness, Nzuwonemeye did not attend this meeting.3059 1671. Witness B13/CBP7 testified to having attended another meeting with officers of the Rwandan Armed Forces, including Ndindiliyimana and Nzuwonemeye, held at ESM on 7 April.3060 The meeting started at about 10.00 a.m. and was chaired by Colonel Bagosora.3061 The witness testified that General Dallaire also attended the meeting but

arrived shortly after it had started. Dallaire addressed the gathered officers but did not mention the fact that he had visited the UNDP compound before attending the meeting, nor did he refer to any telephone conversation between himself and the Prime Minister the previous night.3062 The witness further testified that the participants in the meeting were not informed about the death of Prime Minister Agathe Uwilingiyimana during the meeting.3063 The witness claimed to have learned of the Prime Minister’s death at about 1.00 p.m. after the meeting at ESM had ended. He was later informed that she had been killed by the Presidential Guard soldiers.3064 Nzuwonemeye Defence Witness Ntivuguruzwa 1672. Witness Ntivuguruzwa was a member of the Gendarmerie’s Security company, which had the responsibility of protecting high profile politicians in Rwanda. He was assigned to protect Prime Minister Agathe Uwilingiyimana in April 1994.3065 According to the witness, a 3056 T. 25 June 2008, p. 15. 3057 T. 25 June 2008, pp. 15-16 (Witness Y1 explained this procedure as follows: “[A]n operational commander, or the commander of a unit, according to military procedure, has a person at his disposal who holds the radio set. Since the commander is always moving around, he’s not always available to listen to the radio set. And this is why in the different army posts there is one individual who

cooperates with the commander, the operational commander, and, when there is a call, that person gives the set to the commander for him to be able to answer.”). 3058 T. 7 July 2008, p. 18 (ICS). 3059 T. 7 July 2008, pp. 25-26 (ICS). 3060 T. 7 July 2008, pp. 26-27 (ICS). 3061 T. 7 July 2008, pp. 26-27 (ICS). 3062 T. 7 July 2008, p. 33 (ICS). 3063 T. 7 July 2008, p. 29 (ICS). 3064 T. 7 July 2008, p. 29 (ICS). 3065 T. 16 July 2008, pp. 4-5. 17 May 2011 373/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T group of ten gendarmes as well UNAMIR soldiers were assigned to protect the Prime Minister.3066 1673. Witness Ntivuguruzwa testified that while carrying out his duties at the Prime Minister’s residence on the night of 6 April 1994, he did not see any armoured vehicles approach the residence.3067 He did, however, notice a roadblock that had been set up about 100 metres away from the residence on the lower side of ESM.3068 The roadblock was manned by approximately 11 persons whom the witness believed were soldiers who were studying at ESM.3069 1674. At around 5.00 a.m. on 7 April, while on guard at the entrance of the Prime Minister’s residence, approximately ten “white” UNAMIR soldiers arrived at the residence aboard four UNAMIR escort jeeps.3070 The witness believed that the Belgian soldiers had skirmished with the ESM students who manned the roadblock referred to above. The Belgians parked two of their jeeps inside the residence immediately after they arrived.3071 The other two jeeps remained outside the residence.3072 At the time, the witness did not see any armoured vehicles in the direction of ESM or on the avenue leading to the President’s residence.3073 1675. At around 8.00 or 8.30 a.m., Witness Ntivuguruzwa was informed by his guard commander, Sergeant Major Gasamaza, that members of the

Presidential Guard were killing opposition politicians in Kimihurura and that the Prime Minister must be evacuated.3074 Six gendarmes, including Gasamaza, were assigned to evacuate the Prime Minister while four gendarmes, including the witness, were assigned to remain at the Prime Minister’s residence.3075 1676. At around 9.30 a.m., the witness heard gunshots and saw approximately 35 to 50 soldiers, some of whom were armed, enter the Prime Minister’s residence.3076 Some of those soldiers were members of the Presidential Guard.3077 Thereafter, those soldiers disarmed the gendarmes and UNAMIR soldiers, and entered the residence leaving three soldiers to guard the witness and the other disarmed gendarmes and UNAMIR soldiers.3078 The witness testified that at no point in time did he see any armoured vehicles in the vicinity of the Prime Minister’s residence.3079 1677. At around 10.30 a.m., a white minibus with army registration numbers arrived at the Prime Minister’s residence and the Ghanaian and other UNAMIR soldiers were instructed to board that vehicle.3080 The witness and other gendarmes remained at the residence under 3066 T. 16 July 2008, pp. 8, 11-12, 20. Witness Ntivuguruzwa testified that the UNAMIR contingent of soldiers consisted of approximately five Ghanaian soldiers. 3067 T. 16 July 2008, p. 11. 3068 T. 16 July 2008, pp. 11, 16. 3069 T. 16 July 2008, pp. 12, 43, 49. 3070 T. 16 July 2008, pp. 12, 19. 3071 T. 16 July 2008, pp. 23-24. 3072 T. 16 July 2008, p. 20. 3073 T. 16 July 2008, p. 12. 3074 T. 16 July 2008, pp. 13, 15. 3075 T. 16 July 2008, p. 15. 3076 T. 16 July 2008, pp. 16, 32. 3077 T. 16 July 2008, p. 32. 3078 T. 16 July 2008, p. 16. 3079 T. 16 July 2008, p. 18. 3080 T. 16 July 2008, pp. 16-17. 17 May 2011 374/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T guard but escaped once the Prime Minister was found and returned to Camp Kacyiru, where they were based.3081 On the way to Kacyiru, the witness saw an armoured vehicle stationed at the National Bank of Rwanda.3082 Nzuwonemeye Defence Witness Deo Munyaneza 1678. Witness Deo Munyaneza was a student at ESM in April 1994.3083 He testified that on 7 April 1994, at around 5.00 a.m., he heard the sound of gunshots coming from around Paul VI Avenue. The witness walked in the direction from which the gunfire came.3084 As he did so, he did not see any armoured vehicles in the vicinity of ESM.3085 The witness then stopped at a roadblock on Paul VI Avenue, which had been set up by soldiers from Camp Kigali together with armed students from ESM.3086 The witness was informed by the soldiers at the roadblock that they had fired shots in the air because UNAMIR peacekeepers had broken through the roadblock.3087 1679. Approximately three hours later, about 10 soldiers of the Presidential Guard, led by Captain Hategekimana, arrived at the junction of Paul VI and Nyarugungu Avenues not far from the roadblock.3088 Hategekimana and his men were very angry and said that they wanted to see Prime Minister Agathe Uwilingiyimana as she was one of the causes of President Habyarimana’s death.3089 A soldier called Jean Claude, whom

the witness knew, was among the group of soldiers led by Hategekimana. Jean Claude informed the witness that “Hategekimana and his group were trying to get Agathe Uwilingiyimana”.3090 Witness Munyaneza and about 30 other ESM students then joined the soldiers and advanced towards the Prime Minister’s residence. The soldiers were firing in the air towards the roof of the Prime Minister’s residence.3091 Witness Munyaneza testified that on their way to the Prime Minister’s residence, he did not see any armoured vehicles.3092 1680. Upon arrival at the Prime Minister’s residence, the soldiers led by Hategekimana ordered the soldiers guarding the residence to lay down their weapons. They then entered the compound and ordered the UNAMIR soldiers to lay down their weapons. Witness Munyaneza testified that he saw two UNAMIR vehicles parked outside the gate and that upon entering the residence, he saw 13 or 14 UNAMIR soldiers who had been disarmed.3093 1681. Thereafter, a Rwandan Army major arrived at the residence and asked the soldiers led by Hategekimana not to threaten the UNAMIR soldiers. The major suggested that the UNAMIR soldiers be handed over to him so that he could take them to his superior officers. 3081 T. 16 July 2008, p. 17. 3082 T. 16 July 2008, p. 18. 3083 T. 9 July 2008, p. 67. 3084 T. 9 July 2008, p. 74. 3085 T. 9 July 2008, p. 74. 3086 T. 9 July 2008, pp. 74-75. 3087 T. 9 July 2008, p. 74. 3088 T. 9 July 2008, p. 75. 3089 T. 9 July 2008, p. 76. 3090 T. 9 July 2008, p. 75. 3091 T. 9 July 2008, p. 76. 3092 T. 9 July 2008, p. 76-77. 3093 T. 9 July 2008, p. 78. 17 May 2011 375/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The UNAMIR soldiers were then taken away by the major, while Hategekimana and his men continued their search for the Prime Minister.3094 1682. Subsequently, Witness Munyaneza heard people shouting that they had found the Prime Minister in the building behind her residence.3095 The Prime Minister was then brought back to her house. Some of the soldiers referred to her as an “accomplice” and others taunted her by saying that they would “take her to the CND so that she would be able to take an oath.”3096 Witness Munyaneza testified that an ESM student called David shot the Prime Minister using his personal weapon.3097 The witness was standing about three to four metres away from the Prime Minister when she was killed.3098 He estimated that the Prime Minister was shot between 10.00 and 10.30 a.m.3099 Nzuwonemeye Defence Witness N1 1683. Witness N1 was a senior military officer in Rwanda in 1994.3100 He testified that he travelled around the area near the residence of the Prime Minister in the morning of 7 April 1994. However, he did not see any armoured vehicles during his travels in that area except for one light armoured vehicle parked at ESM.3101 Nzuwonemeye Defence Witness Adrian Havugimana 1684. Witness Havugimana was a member of the Infantry company of the RECCE Battalion in 1994.3102 He testified

that in the night of 6 April 1994, he attended an assembly of soldiers at Camp Kigali.3103 After the assembly, Havugimana collected his weapon and went to the office of Nzuwonemeye.3104 Thereafter, the witness remained awake outside Nzuwonemeye’s office throughout the night of 6 April 1994. The witness stated that Nzuwonemeye briefly left his office about four times during the night to inspect his soldiers and then returned to his office.3105 The witness further testified that during the night, Captain Sagahutu, Captain Dukuzumuremyi, Lieutenant Baziramwabo, Second Lieutenant Rwangoga and Chief W.O. Shumbusho arrived at Nzuwonemeye’s office and had a meeting with Nzuwonemeye.3106 1685. On the same night, the witness saw four armoured vehicles belonging to Squadron A led by Sagahutu leave Camp Kigali. He was later informed by an unidentified individual that the armoured vehicles were sent out to protect the Radio Rwanda station.3107 1686. At about 6.00 or 7.00 a.m. on 7 April 1994, Witness Havugimana saw Nzuwonemeye leaving his office in a light armoured vehicle (“VBL”) driven by Sergeant Major 3094 T. 9 July 2008, pp. 78-79. 3095 T. 9 July 2008, p. 79. 3096 T. 9 July 2008, p. 80. 3097 T. 9 July 2008, p. 80. 3098 T. 9 July 2008, p. 81. 3099 T. 9 July 2008, p. 81. 3100 T. 8 September 2008, pp. 7-8 (ICS). 3101 T. 8 September 2008, pp. 16-21. 3102 T. 14 July 2008, p. 4. 3103 T. 14 July 2008, pp. 5-6. 3104 T. 14 July 2008, p. 6. 3105 T. 14 July 2008, pp. 7, 23. 3106 T. 14 July 2008, p. 7. 3107 T. 14 July 2008, pp. 7-8. 17 May 2011 376/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndyanabo.3108 At approximately 8.00 a.m., the witness went to Nzuwonemeye’s house. The journey from Camp Kigali to Nzuwonemeye’s house took between 8 and 10 minutes. Upon arrival, Witness Havugimana saw the VBL driven by Ndyanabo. Nzuwonemeye came out of his house and ordered Witnesses Havugimana to be responsible for the safety and security of his family and residence. Nzuwonemeye then left aboard the VBL.3109 Nzuwonemeye Defence Witness NGT 1687. Defence Witness NGT, a soldier in the RECCE Battalion in 1994, testified that the RECCE Battalion was assigned to protect sensitive areas in Kigali such as Radio Rwanda, the State House, the Presidential residence and the National Bank of Rwanda.3110 The witness was mostly assigned to guard the State House and Radio Rwanda.3111 According to the witness, there were three armoured vehicles deployed at the State House, two deployed to guard Radio Rwanda and one deployed to the National Bank.3112 Nzuwonemeye Defence Witness K4 1688. Witness K4 worked at the Headquarters of the RECCE Battalion at Camp Kigali in April 1994.3113 The witness testified that Nzuwonemeye could not deploy RECCE squadrons without the authorisation of the Chief of Staff of the Rwandan Army.3114 The witness also stated that neither “junior officer[s] …, subordinate officer[s] … no[r] other

units” could hear orders that were communicated by the battalion commander unless they were closely located to the person receiving the order over the radio affixed to the vehicle. In particular, Witness K4 disagreed with Prosecution Witness DA’s assertion that a soldier could listen in on conversations using alternative radios mounted in vehicles and on “walkie-talkies.”3115 Witness K4 further told the Chamber that in 1994, the RECCE Battalion possessed only one freestanding Motorola radio, which was used by Nzuwonemeye to communicate with other commanders or the operations centre. Other RECCE Battalion soldiers did not have their own personal radio equipment and used the radio sets that were affixed to RECCE vehicles.3116 1689. The witness also testified about Nzuwonemeye’s conduct at Camp Kigali on the night of 6 April 1994. According to the witness, Nzuwonemeye arrived at the camp sometime between 9.30 and 10.00 p.m. and spoke to RECCE Battalion soldiers in front of his office.3117 Thereafter, Nzuwonemeye held a meeting in his office with Sagahutu, Dukumuremya [sic], Baziramwabo and the Regimental Sergeant Major, the leaders of RECCE Battalion squadrons. Witness K4 disputed Prosecution Witness ALN’s evidence that one could hear the conversation between the participants of this meeting from the parking lot in front of the RECCE Battalion Headquarters.3118 After the meeting,

Sagahutu left Camp Kigali with 3108 T. 14 July 2008, p. 8. 3109 T. 14 July 2008, pp. 9-10. 3110 T. 14 July 2008, pp. 10-14. 3110 T. 23 September 2008, p. 28. 3111 T. 23 September 2008, pp. 29-30. 3112 T. 23 September 2008, p. 28. 3113 T. 30 June 2008, p. 4 (ICS). 3114 T. 30 June 2008, p. 9. 3115 T. 30 June 2008, pp. 23-24, 51. 3116 T. 30 June 2008, pp. 23, 47, 51. 3117 T. 30 June 2008, pp. 10-12. Witness K4 explained that he had been told by a messenger that Nzuwonemeye “was telling the soldiers that they should be on standby so that they could intervene if such a need arose”. 3118 T. 30 June 2008, pp. 11, 13-14. 17 May 2011 377/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T members of his squadron in order to protect sensitive areas in Kigali. Witness K4 did not see him return to the camp throughout 6 and 7 April. The witness disputed Prosecution Witness ALN’s evidence that Nzuwonemeye ordered Sagahutu to send armoured vehicles to the Prime Minister’s residence.3119 1690. Witness K4 further testified that he and Nzuwonemeye remained at the RECCE Battalion throughout the night of 6 to 7 April. At about 6.30 a.m. on 7 April, Nzuwonemeye told the witness that he was going home to prepare for a meeting to be held at ESM later that morning, and that Captain Dukumuremya (sic) would be in charge of the battalion. Nzuwonemeye was driven home in a light armoured vehicle by Sergeant Major Ndyanabo.3120 Nzuwonemeye Defence Witness TCB1 1691. Witness TCB1 was a soldier with the Signals company of the Rwandan Army in 1994.3121 In April 1994, the witness carried out various missions, including monitoring the Motorola radio network within the Kigali operational sector so as to ensure the quality of its signals. He also installed communication/signals equipment on armoured vehicles or command jeeps, and inspected or carried out repairs to the radio networks of other operational sectors.3122 1692. Witness TCB1 testified that the RECCE Battalion had a transmission or signals centre, which

was used to listen in on communications. The battalion used the MX340 transmitter to listen to messages on the OPS network and the HF372 to communicate with leaders of its squadrons and companies. The company commanders in the RECCE Battalion used TRC352 radios, while the platoon commanders had TRVP213.3123 1693. According to Witness TCB1, only the commander of the RECCE Battalion had a Motorola radio, which he used to communicate with the General Staff Headquarters, and an HF transmitter to communicate with the squadron commanders who also had HF transmitters.3124 Squadron commanders used VHF radios to communicate with the platoon commanders.3125 Witness TCB1 testified that no other member of the RECCE Battalion could listen to communications sent from the commander’s Motorola radio because he was the only one who had that type of radio within the battalion.3126 1694. The witness testified that RECCE Battalion commanders could not listen in to communications between a squadron commander and a section chief because they had no access to the radio networks used by the commanders of those units. According to the witness, the battalion commander could not have direct radio contact with subordinates below the squadron commanders.3127 3119 T. 30 June 2008, pp. 15-17, 21. 3120 T. 30 June 2008, pp. 16, 18-19. 3121 T. 29 September 2008, p. 6. 3122 T. 29 September 2008, p. 7. 3123 T. 29 September 2008, p. 25. 3124 T. 29 September 2008, pp. 26-27. 3125 T. 29 September 2008, pp. 26-27. 3126 T. 29 September 2008, p. 32. 3127 T. 29 September 2008, p. 33. 17 May 2011 378/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nzuwonemeye Expert Witness Thomas Kubic 1695. Defence Expert Witness Thomas Kubic testified that he carried out investigations on two sites in Kigali, namely Camp Kigali and the Prime Minister’s residence.3128 1696. According to Kubic, the investigation that he carried out at the residence of the Prime Minister does not support the contention that the residence was subjected to a gun attack, either from small or large calibre weapons. He further testified that his investigation did not yield any physical evidence or trace on any part of the residence suggesting that it came under such an attack. Furthermore, there was no evidence suggesting that the building had been repaired following such an attack beyond normal repair due to water damage or something similarly minimal.3129 1697. Kubic also testified that one could not view the residence from a distance of 300 metres away because the view was obstructed by other houses on the street. It is even more difficult to see the Prime Minister’s residence from the intersection of Avenue de la Jeunesse and Avenue Paul VI.3130 For this reason, an armoured vehicle located at that intersection would not have had a clear line of fire to be able to attack the Prime Minister’s residence effectively.3131 The Accused Nzuwonemeye 1698. Nzuwonemeye testified that at some

point during the meeting held at ESM in the morning of 7 April, he heard the sound of gunfire.3132 The gunfire led the participants at the meeting to think that the ESM building was under attack.3133 Colonel Bagosora asked Colonel Rusatira and an officer of the Rwandan Army to see what was happening. Nzuwonemeye stated, “[S]ome minutes later, Colonel Rusatira [returned and] said that maybe it was simply a volley of shots which had accidentally been fired by soldiers”.3134 Nzuwonemeye testified that while participating in the meeting at ESM, he did not receive any information suggesting that the Prime Minister had been killed.3135 1699. Nzuwonemeye testified that after the meeting, he met Colonel Nubaha who told him that there were rumours circulating that the Prime Minister had been murdered by Presidential Guards and students at ESM.3136 1700. Nzuwonemeye denied the allegations levelled against him by the Prosecution that he told soldiers under his command that the Prime Minister was responsible for the death of President Habyarimana. He also denied that he ordered armoured vehicles to be sent to block access into the Prime Minister’s residence or that he ordered Sagahutu to takes measures 3128 T. 23 June 2008, p. 73. 3129 T. 24 June 2008, p. 29. 3130 T. 24 June 2008, pp. 31-33. 3131 T. 24 June 2008, pp. 34, 49. 3132 T. 6 October 2008, p. 59. 3133 T. 6 October 2008, p. 59. 3134 T. 6 October 2008, p. 60. 3135 T. 6 October 2008, p. 60. 3136 T. 6 October 2008, p. 62; T. 7 October 2008, p. 4. 17 May 2011 379/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T leading to the assassination of the Prime Minister.3137 He further denied having been informed that the Prime Minister was expected to deliver a radio address.3138 1701. According to Nzuwonemeye, it was widely believed after 7 April 1994 in Rwanda that soldiers of the Presidential Guard, the FAR and students at ESM were responsible for killing the Prime Minister.3139 Nzuwonemeye also claimed to have heard at the time a communiqué aired over the radio by the Chief of Staff of the Rwandan Army, Colonel Gatsinzi, that unruly soldiers of the Presidential Guard were responsible for the death of the Prime Minister.3140 1702. Nzuwonemeye testified that given the different radio sets that were used within the RECCE battalion, it was not technically possible for him to overhear radio communication between Sagahutu and his subordinates.3141 He further testified that at no time during the period relevant to the events pleaded in the Indictment did he receive reports indicating that Sagahutu was implicated in criminal activities.3142 1.6.4.1.3.2 Sagahutu Defence Witnesses Sagahutu Defence Witness UDS 1703. Witness UDS was an officer of the RECCE Battalion in April 1994.3143 He testified about the communication system in the RECCE battalion. According to the witness, the battalion commander communicated with his

squadron commanders using a shortwave radio called TRC352,3144 while squadron commanders communicated with platoon heads using VP213 radio, which operated on the FM band.3145 He further testified that squadron commanders had two different types of radios that enabled them to communicate with the battalion commander on the one hand and with platoon heads on the other. In turn, platoon heads used FM radios to communicate with soldiers under their command, but used a different frequency from the one used to communicate with squadron commanders. According to the witness, squadron commanders could not directly communicate with members of sections or crews of armoured vehicles since they had no radio access to members of those units.3146 Sagahutu Defence Witness CSS 1704. Witness CSS, a member of Squadron A of the RECCE battalion, testified that Nzuwonemeye and Sagahutu communicated in codes that made it difficult for outsiders to decipher the contents of their communication.3147 3137 T. 6 October 2008, p. 42. 3138 T. 8 October 2008, pp. 22, 33. 3139 T. 7 October 2008, p. 8. 3140 T. 6 October 2008, p. 22. 3141 T. 7 October 2008, pp. 13, 65-66. 3142 T. 7 October 2008, p. 25. 3143 T. 27 October 2008, p. 37 (ICS). 3144 T. 27 October 2008, p. 44 (ICS). See also Defence Exhibit 599. 3145 T. 27 October 2008, p. 44 (ICS). 3146 T. 27 October 2008, p. 44 (ICS). 3147 T. 23 October 2008, pp. 41, 58-59. 17 May 2011 380/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1705. Witness CSS testified that no member of Squadron A went to the Prime Minister’s house in the morning of 7 April 1994. However, the witness conceded that he was not present at the Prime Minister’s residence when she was killed.3148 The witness later learned that soldiers of the Presidential Guard were responsible for the death of the Prime Minister.3149 Sagahutu Defence Witness RNS 1706. Witness RNS, a soldier of the Rwandan Army in April 1994, testified that on 7 April 1994, between 2.00 and 3.00 p.m. while at Camp Kanombe, he saw a double-cabin Volkswagen pick-up vehicle arrive at the camp. Aboard that vehicle was Colonel Hitimana from ESM and other soldiers. The witness was informed that the vehicle had brought the dead body of Prime Minister Agathe Uwilingiyimana to the camp, but he did not actually see the body.3150 Sagahutu Defence Witness Habimana 1707. Witness Habimana was a platoon leader within the RECCE Battalion in 1994.3151 He denied that an assembly of RECCE Battalion soldiers was convened at Camp Kigali on the night of 6 April 1994 and he also denied seeing Sagahutu at Camp Kigali on that night.3152 The Accused Sagahutu 1708. Sagahutu testified that no members of his unit were involved in killing the Prime Minister.3153 He further testified that the area where the Prime Minister’s

residence was located did not fall within the area that he was required to defend following the death of President Habyarimana.3154 Sagahutu stated that he heard about the death of the Prime Minister in the afternoon of 7 April 1994. He was told that some people who were at Camp Kigali had gone to the “Prime Minister’s [residence], and in the melee, the Prime Minister had been murdered”.3155 1709. Sagahutu testified that it was implausible that members of the RECCE Battalion would have been ordered to carry out a mission such as killing the Prime Minister, since such missions did not fall within the remit of the battalion’s duties.3156 He also denied having informed Nzuwonemeye over the radio on 7 April 1994 that everyone had been killed except for Prime Minister Agathe Uwilingiyimana and Faustin Twagiramungu.3157 1710. Sagahutu also denied that he instructed a corporal from the RECCE Battalion to transport the dead body of the Prime Minister to Kanombe military hospital. He testified that, in fact, he was informed while in Rwanda by Chief W.O. Ntahomkiye that her dead body had 3148 T. 23 October 2008, p. 44. 3149 T. 23 October 2008, p. 44. 3150 T. 28 October 2008, pp. 11-12. 3151 T. 13 November 2008, p. 3. 3152 T. 13 November 2008, p. 6. 3153 T. 1 December 2008, p. 16. 3154 T. 1 December 2008, p. 47; T. 2 December 2008, p. 12; T. 3 December 2008, p. 35. 3155 T. 1 December 2008, p. 16. 3156 T. 1 December 2008, p. 47. 3157 T. 1 December 2008, pp. 47-48. 17 May 2011 381/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T been transported from her residence to Kanombe military hospital by a senior officer serving at ESM.3158 1711. According to Sagahutu, Witness DA, who claimed to have carried out errands to the residence of the Prime Minister, was an orderly who occasionally drove Sagahutu’s civilian vehicle, but he did not drive a military vehicle.3159 Sagahutu also disputed claims by Prosecution witnesses that Corporal Afrika was involved in the attack against the Prime Minister in the morning of 7 April 1994. According to Sagahutu, Corporal Afrika was a gunner on an AML 90 vehicle who was stationed at the Milles Collines crossroads at the time of the killing of the Prime Minister and never left that position.3160 1.6.4.1.4 Deliberations 1712. The Chamber notes that the Defence does not contest the fact that Prime Minister Agathe Uwilingiyimana was killed in the morning of 7 April 1994 by soldiers of the Rwandan Army. However, the Defence contests the Prosecution’s allegation that RECCE Battalion soldiers under the command of Nzuwonemeye and Sagahutu took part in the attack that led to the death of the Prime Minister.

1713. The Chamber will now consider whether the Prosecution has adduced sufficient evidence to establish that RECCE Battalion soldiers acting at the behest of Nzuwonemeye and Sagahutu did in fact take part in the killing of Prime Minister Agathe Uwilingiyimana. The Chamber will first consider whether Nzuwonemeye and Sagahutu ordered RECCE Battalion armoured vehicles to the Prime Minister’s residence in the morning of 7 April 1994. The Chamber will then consider whether RECCE Battalion soldiers participated in the attack at the Prime Minister’s residence and the role that Nzuwonemeye and Sagahutu played during that attack. 1.6.4.1.4.1 Order by Nzuwonemeye and Sagahutu to Deploy RECCE Armoured Vehicles to the Residence 1714. The Chamber has heard evidence from Witnesses AWC and ALN that early in the morning of 7 April, they heard Nzuwonemeye instruct Sagahutu to deploy armoured vehicles to the residence of the Prime Minister. Specifically, the Chamber recalls that Witness AWC testified that early in the morning of 7 April, he heard Nzuwonemeye order Sagahutu to send RECCE Battalion soldiers to reinforce Presidential Guard units who were at the Prime Minister’s residence. He also testified that he heard Sagahutu send a radio message ordering two armoured vehicles located at Radio Rwanda to be deployed at the Prime Minister’s residence and that he subsequently heard gunfire, which

he later learned was from RECCE Battalion soldiers and directed toward Belgian UNAMIR forces positioned at the Prime Minister’s residence.3161 The Chamber recalls that Witness ALN testified that on 7 April, at about 6.30 a.m. while at Camp Kigali, he heard Nzuwonemeye order Sagahutu to send two armoured vehicles to support the Presidential Guard soldiers at the Prime Minister’s residence. Witness ALN added that in compliance with this order, Sagahutu deployed two armoured vehicles from the camp.3162 Witness ALN also heard a radio call from the RECCE 3158 T. 1 December 2008, p. 17. 3159 T. 3 December 2008, p. 5. 3160 T. 2 December 2008, pp. 17-18. 3161 T. 18 January 2006, pp. 31-32. 3162 T. 29 September 2004, p. 45; T. 30 September 2004, p. 35; T. 5 October 2004, p. 20. 17 May 2011 382/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T armoured vehicles confirming that they had arrived at the Prime Minister’s residence later that day.3163 1715. The Chamber has carefully reviewed the evidence and submissions adduced by the Defence in a bid to impugn the credibility of Witnesses ALN and AWC’s evidence discussed above. In particular, the Chamber has heard evidence from a number of Defence Witnesses disputing Witness ALN’s claim to have been present at Camp Kigali. The Chamber notes that the evidence of these witnesses does not contravene Witness ALN’s testimony that he was present at Camp Kigali at 6.30 a.m., when he heard Nzuwonemeye order Sagahutu to deploy armoured vehicles to reinforce the Presidential Guard soldiers at the Prime Minister’s residence. Their evidence therefore does not impair the credibility of Witness ALN on this point.

1716. The Chamber has also considered the discrepancy between the evidence of Witnesses AWC and ALN regarding the location from which RECCE Battalion armoured vehicles were deployed to the residence of the Prime Minister. Whereas Witness AWC testified that the armoured vehicles were sent from Radio Rwanda, Witness ALN testified that they were sent from RECCE Headquarters at Camp Kigali. The Chamber is not satisfied that the mere fact that these witnesses gave a slightly different account of the location from which the armoured vehicles were deployed impairs their overall credibility in light the fact that their evidence converges in important respects. Furthermore, the Chamber finds that this discrepancy can reasonably be explained by the time lapse between 1994 and the dates of the witnesses’ testimony.

1717. In assessing whether Nzuwonemeye and Sagahutu ordered RECCE Battalion armoured vehicles to the Prime Minister’s residence in the morning of 7 April, the Chamber has considered the evidence of Prosecution Witness Dallaire that the Prime Minister intended to make a radio address to the nation that morning in order to calm fears and reassure the population that a political leadership structure remained in place. This is corroborated by the evidence of Defence Witness Marchal, who testified that Dallaire instructed him to deploy a contingent of UNAMIR soldiers to escort the Prime Minister to make a radio address at about 5.30 a.m. on 7 April.3164 Marchal therefore sent Belgian UNAMIR soldiers to the residence of the Prime Minister. The evidence suggests that members of the RECCE Battalion attempted to prevent the Belgian soldiers from reaching the residence of the Prime Minister. However, the Belgian soldiers eventually arrived at the residence where they were later disarmed by Rwandan Army soldiers, taken to Camp Kigali and eventually killed. In the Chamber’s view, it is a reasonable inference from this evidence that Nzuwonemeye may have ordered Sagahutu to reinforce the Presidential Guard soldiers at the residence of the Prime Minister in order to prevent her from reaching the radio station where she was expected to deliver a radio speech calling for calm in the country.

1718. Based on the evidence set out above, the Chamber is satisfied that early in the morning of 7 April 1994, Nzuwonemeye and Sagahutu ordered RECCE Battalion armoured vehicles to deploy to the Prime Minister’s residence in order to reinforce the Presidential Guard soldiers present at that location. 3163 T. 30 September 2004, p. 36. 3164 T. 17 January 2008, pp. 49, 59, 61, 66. 17 May 2011 383/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.6.4.1.4.2 Involvement of RECCE Battalion Soldiers in the Attack at the Residence 1719. The Chamber will now consider the evidence of Prosecution witnesses implicating RECCE Battalion soldiers in the attack that led to the death of the Prime Minister at her residence. The Chamber recalls that Prosecution Witnesses DA and HP provided eyewitness testimony that RECCE Battalion soldiers were involved in the attack that led to the killing of the Prime Minister. In particular, these witnesses provided corroborating evidence that a RECCE armoured unit led by W.O. Bizimungu and including Corporal Fiacre “Afrika” was located on Paul VI Avenue, within close proximity of the Prime Minister’s residence, on the night of 6 to 7 April 1994. Both Witnesses DA and HP claimed to have taken “supplies” to W.O. Bizimungu at this location on 7 April. According to these witnesses, this unit collaborated with other Rwandan Army soldiers in attacking the Prime Minister at her residence. After the attack, both witnesses claimed to have seen the Prime Minister’s dead body and transported her dead body to Kanombe hospital on the order of Sagahutu.

1720. The Defence submits that Witness DA’s claim to have visited the Prime Minister’s residence during the events is difficult to accept in light of the fact that the witness failed to notice a number of incidents at the residence.3165 In particular, the Defence points to Witness DA’s failure to see Ghanaian soldiers of UNAMIR who, as the evidence suggests, were present at the residence of the Prime Minister early in the morning of 7 April; his failure to see that at least one of the Belgian soldiers retained his weapon while other UNAMIR soldiers had been disarmed by Rwandan soldiers, loaded on a bus and taken from the Prime Minister’s residence to Camp Kigali; his failure to correctly identify the person who drove the bus that took the UNAMIR soldiers from the Prime Minister’s residence to Camp Kigali; and finally, the fact that he allegedly saw two UNAMIR jeeps at the Prime Minister’s residence whereas all other witnesses testified that the Belgians arrived in four vehicles.

1721. The Chamber is not persuaded that the witness’s failure to notice these facts renders his evidence not credible. The incidents that the witness allegedly failed to notice are not of such weight that they can be deemed to affect his overall credibility. Given the chaotic circumstances at the Prime Minister’s residence that morning and the lapse of time between the events and the witness’s testimony, it is difficult to expect the witness to recall the events that transpired at the Prime Minister’s residence in exhaustive detail.

1722. The Defence also submits that Witness DA’s pre-trial statement contains no reference to his alleged trip to the Prime Minister’s residence in the morning of 7 April, nor does the statement mention that he saw Belgian soldiers being taken away from the residence. During cross-examination, Witness DA explained that he in fact mentioned these issues during his interview but that Defence Exhibit 7 is a short version of a much longer document, and that the Belgians who interviewed him chose to leave out certain aspects of his story. The Chamber is not convinced by this explanation. The Chamber finds that since the Belgian investigation was directed at ascertaining the circumstances surrounding the death of members of the Belgian UNAMIR contingent, it is unlikely that the investigators would have overlooked Witness DA’s account of the removal of Belgian soldiers from the residence of the Prime Minister had he in fact referred to this incident. In the view of the Chamber, the fact that Witness DA’s alleged trip to the Prime Minister’s residence is not mentioned in his 3165 See Sagahutu Closing Brief, paras. 479-506; Nzuwonemeye Closing Brief, paras. 424, 543-552, 565-571, 608-614. 17 May 2011 384/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T statement suggests that the witness did not speak about it during his interview, thereby suggesting fabrication.

1723. The Chamber also notes that there are other significant variances between Witness DA’s statement and his testimony. For example, in his testimony, the witness claimed that Nzuwonemeye ordered armoured vehicles to be deployed to block the road leading to the Prime Minister’s house. However, in his pre-trial statement, the witness claimed that he heard a radio message that armoured vehicles of the RECCE Battalion and Presidential Guard had surrounded the residence. Furthermore, in his statement, Witness DA indicated that after returning from patrol with Sagahutu on 7 April at about 9.30 a.m., he heard a radio conversation in which W.O. Bizimungu told Nzuwonemeye that he had gone to the Prime Minister’s house but could not find her and that he would return to that location to search for her. His statement contains no suggestion that he visited the Prime Minister’s residence, or that he saw W.O. Bizimungu’s armoured vehicle parked at the junction leading to the residence, or that he saw the Prime Minister’s dead body. The Chamber finds that these inconsistencies between Witness DA’s pre-trial statement and his sworn testimony raise doubts about the veracity of his account of the events surrounding the death of Prime Minister Agathe Uwilingiyimana. In light of these discrepancies, the Chamber will only accept Witness DA’s testimony about these events where it is corroborated by other reliable evidence.

1724. The Chamber will now consider the Defence submissions regarding the credibility of Witness HP. The Chamber recalls the Defence submission that this witness lacks credibility because he was evasive in his answers regarding time and also because his evidence diverged from that of Witness DA regarding the position of W.O. Bizimungu’s armoured vehicle, the location of the Prime Minister’s dead body within her residence, and the identity of the soldiers who transported the body to Kanombe military hospital.3166 1725. The Chamber is not persuaded that Witness HP’s failure to provide specific information on the timing of the events that he claimed to have witnessed vitiates the credibility of his evidence. The Chamber accepts as plausible the explanations advanced by the witness to explain his difficulties in giving precise time information. The witness stated that he only gave estimates about time because he had no way of recalling the timing since he was not wearing a watch in April 1994.3167 More significantly, the Chamber finds that given the difficulty of the events about which he testified and the considerable time lapse between the events and the dates of his testimony, it is unreasonable to expect the witness to provide precise information regarding the timing of the events forming the subject of his testimony.

1726. Contrary to the submissions of the Defence, the Chamber is not satisfied that there is significant divergence between the evidence of Witnesses HP and DA regarding the location of W.O. Bizimungu’s armoured vehicle when they saw him in the morning of 7 April 1994. The Chamber notes that both witnesses gave concordant evidence that they found W.O. Bizimungu’s armoured vehicle stationed in close proximity to the Prime Minister’s residence. Similarly, the Chamber is not persuaded that the fact that Witnesses DA and HP gave different accounts of the position of the Prime Minister’s dead body inside her residence renders their evidence unreliable. The Chamber considers that this difference is of marginal 3166 See Sagahutu Closing Brief, paras. 507-519; Nzuwonemeye Closing Brief, paras. 425, 529; T. 9 May 2005; T. 10 May 2005. 3167 T. 9 May 2005, p. 35. 17 May 2011 385/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T weight and is plausibly explained by the fact that these witnesses visited the residence at different times and that the Prime Minister’s body may have been moved between their visits.

1727. The Chamber has also considered the Defence submission that the presence of Witnesses HP and DA at the Prime Minister’s residence is called into question in light of the fact that Witness HP was unable to recall whether he saw Witness DA at the time that the dead body of the Prime Minister was transported from her residence to Kanombe hospital. The Chamber is not convinced by this submission. The Chamber recalls that Witness HP did not exclude the possibility that Witness DA may have been present at the residence when the dead body of the Prime Minister was being transported to Kanombe. Given the significant time that has elapsed between 1994 and the time when these witnesses testified, it is unlikely that Witness HP would be able to recall the names of everyone who was at the residence when the Prime Minister’s dead body was being transported away.

1728. The evidence of Witnesses DA and HP regarding the involvement of RECCE Battalion soldiers such as Corporal “Afrika” in this attack is corroborated to some extent by the indirect evidence of Witnesses DY, ANK/XAF and DCK, who testified that on 7 April at Camp Kigali, they heard Corporal “Afrika”, who was known to them as a member of Squadron A of the RECCE battalion, boasting about his participation and that of other RECCE Battalion soldiers in the killing of the Prime Minister. The Chamber recalls that the Defence argued that Witness DY’s evidence about the boastful remarks made by Afrika regarding his role in the killing of the Prime Minister is inconsistent with his pre-trial statement, in which he declared that he did not know anything about the attack on the Prime Minister’s residence.3168 During cross-examination, Witness DY did not attempt to explain the contradiction but maintained that his evidence was based on what he had heard.3169 The Chamber notes that Witness DY’s claim in his statement that he did not have direct knowledge of the attack on the Prime Minister’s residence is consistent with his testimony before the Chamber. Furthermore, the Chamber recalls that Prosecution Witnesses ANK/XAF and DCK also testified to having heard Afrika make remarks similar to that reported by Witness DY in his testimony before the Chamber. For these reasons, the Chamber is not satisfied that this submission by the Defence casts doubt on the testimony of Witness DY.

1729. The Chamber recalls that Witnesses HP and DA, both members of the RECCE battalion, testified that they were involved in transporting the dead body of the Prime Minister from her residence to Kanombe hospital on the orders of Sagahutu. The Chamber considers that their concordant evidence about the transportation of the Prime Minister’s dead body reinforces the credibility of their claim to have visited the Prime Minister’s residence at the time. This evidence also supports the view that the Accused were closely involved in the events that led to the killing of the Prime Minister.

1730. Witness HP’s evidence that he transported the Prime Minister’s body to Kanombe from Paul VI Avenue sometime between 4.00 and 4.30 p.m. is corroborated by the evidence of Witness DP, who testified that while at Camp Kanombe at about 5.30 p.m. on 7 April, he witnessed the arrival of a RECCE Battalion jeep carrying the dead body of the Prime Minister. He further testified that the vehicle was driven by a RECCE soldier whom he had personally known for many years. The Chamber notes that the Defence called Witness RNS 3168 Nzuwonemeye Closing Brief, para. 564. 3169 T. 24 January 2006, p. 50. 17 May 2011 386/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T in order to discredit the evidence of Witnesses HP and DP regarding the transportation of the Prime Minister’s dead body to Kanombe hospital. Witness RNS testified that while at Camp Kanombe between 2.00 and 3.00 p.m. on 7 April, he witnessed the arrival of Colonel Hitimana from ESM and other soldiers aboard a double-cabin Volkswagen pick-up vehicle. The witness heard that Hitimana’s vehicle had brought the dead body of the Prime Minister, but he did not actually see the bodies that were brought in the vehicle.3170 Having weighed Witness RNS’s account of events, the Chamber is not satisfied that his hearsay evidence is sufficient to discredit the firsthand and corroborated account of Prosecution Witnesses HP and DA.

1731. In addition to the Prosecution witnesses discussed above, the Chamber has considered the evidence of Prosecution Witness LN that Lieutenant Colonel Baransaritse told him and other soldiers at Camp Kanombe that the Prime Minister had been killed by a platoon of ESM soldiers with the support of RECCE Battalion soldiers led by Sagahutu. Witness LN is the only witness who testified that Baransaritse and Sagahutu were present and directly participated in the attack on the Prime Minister. Given that Witness LN’s hearsay evidence is not corroborated by other evidence before the Chamber and in fact contradicts the direct evidence of other witnesses whom the Chamber has found to be credible, the Chamber does not accept Witness LN’s evidence on this point.

1732. In assessing whether RECCE Battalion soldiers acting on the orders of Nzuwonemeye and Sagahutu were involved in the killing of the Prime Minister, the Chamber has carefully weighed the accounts advanced by the Defence suggesting that the Prime Minister was killed by soldiers other than those of the RECCE battalion. According to the Defence, the evidence of Prosecution Witnesses Dallaire and Des Forges indicates that the Prime Minister was killed by Presidential Guards and/or soldiers from ESM. In light of the firsthand and credible evidence elicited from other Prosecution witnesses implicating RECCE Battalion soldiers in the killing of the Prime Minister, the Chamber is unwilling to absolve RECCE Battalion soldiers of any responsibility for the killing based on the indirect evidence of Des Forges and Dallaire. Furthermore, the evidence of Des Forges and Dallaire is not necessarily inconsistent with the Prosecution case that the Prime Minister was killed by soldiers of various units of the Rwandan Army including those of the RECCE battalion. The Prosecution does not contend that her killing was perpetrated exclusively by soldiers under the command of Nzuwonemeye and Sagahutu.

1733. Similarly, the testimony of Defence Witness Munyaneza that a student from ESM shot the Prime Minister with his personal weapon does not absolve Nzuwonemeye and Sagahutu from criminal responsibility for this crime. The Chamber considers that the killing of the Prime Minister was a well-coordinated operation involving soldiers from various units of the Rwandan Army, including members of the RECCE Battalion led by Nzuwonemeye and Sagahutu. As detailed above, the Prosecution evidence suggests that Nzuwonemeye and Sagahutu directed their subordinates to take part in the operation that led to the death of the Prime Minister. The fact that the fatal blow that led to the death of the Prime Minister may have been inflicted by a soldier from another unit of the Rwandan Army does not negate the culpability of the Accused and their subordinates for their role in the operation that led to her death. 3170 T. 28 October 2008, pp. 11-12. 17 May 2011 387/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1734. The Chamber is also not satisfied that Defence Witnesses Kwesi Doe, Sandow Zambulugu, Munyaneza and Ntivuguruzwa’s testimony that they did not see any armoured vehicles located at the junction of the roads leading to the National Bank of Rwanda and Paul VI Avenue prior to the killing of the Prime Minister raises doubts about the involvement of W.O. Bizimungu, Corporal “Afrika” and possibly other RECCE Battalion soldiers in the attack that led to the death of the Prime Minister. Based on the evidence on record and the Chamber’s observations during the site visit, the Chamber considers that these Defence witnesses who were located at the entrance gate of the Prime Minister’s residence would not have been able to see armoured vehicles located at the junction of the roads leading to the National Bank of Rwanda and Paul VI Avenue, a distance of approximately 150 to 200 metres. The evidence of these Defence witnesses does not therefore impair the credibility of Prosecution witnesses’ evidence that on the orders of Nzuwonemeye and Sagahutu, RECCE Battalion armoured vehicles were deployed to the Prime Minister’s residence and that members of that battalion were involved in the attack that led to the death of the Prime Minister.

1735. Similarly, it is the Chamber’s view that the evidence of Defence Witnesses DE8- 10/F9 and N1 that they went through Avenue de L’armée, which is parallel to Paul VI Avenue, in the morning of 7 April but did not detect anything unusual or abnormal fails to raise a doubt in regard to the Prosecution case. Neither Witness DE8-10/F9 nor N1 actually drove or walked on Paul VI Avenue that morning. Therefore, the Chamber considers that their broad assertions of normality are at best speculative.

1736. The Chamber has also considered Defence Expert Witness Kubic’s testimony that his examination of the Prime Minister’s residence showed no physical evidence that it was struck by gunfire, and that an armoured vehicle located near the junction of the roads leading to the National Bank of Rwanda and the Prime Minister’s residence would not have had a clear line of fire to the residence. The Chamber is not persuaded that the results of Kubic’s investigations cast doubt on the Prosecution evidence that the Prime Minister was shot to death by soldiers of the Rwandan Army including members of the RECCE battalion. The Chamber recalls that Witnesses DA and HP testified that they saw the Prime Minister’s dead body with bullet wounds. Kubic’s evidence regarding the physical condition of the Prime Minister’s residence has little bearing on the events that transpired at the Prime Minister’s residence on 7 April 1994.

1737. The Chamber has also considered the evidence of Defence Witnesses UDS and CSS disputing the involvement of RECCE Battalion soldiers in the attack that led to the death of the Prime Minister. The Chamber notes that these witnesses conceded that they were not present at the residence of the Prime Minister at the time that she was killed. The Chamber is therefore unwilling to discard the firsthand and corroborated evidence of Prosecution witnesses implicating RECCE Battalion soldiers in the death of the Prime Minister in favour of the hearsay evidence of Witnesses UDS and CSS.

1738. Finally, the Chamber has reviewed Nzuwonemeye and Sagahutu’s evidence that W.O. Bizimungu and other crew of the RECCE armoured vehicles could not have been present at the attack on the Prime Minister’s residence because they were tasked with the responsibility of protecting other important sites in Kigali from 6 to 7 April. In the view of the Chamber, the fact that RECCE Battalion soldiers had been tasked with defending important sites near the Prime Minister’s residence does not in itself preclude their involvement in the death of the Prime minister at her residence on 7 April, as established by the firsthand and credible 17 May 2011 388/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T evidence elicited from a number of Prosecution witnesses. In the absence of cogent evidence to the contrary, the Chamber is unwilling to cast aside the credible and firsthand evidence of Prosecution witnesses based on this submission advanced by the Accused.

1739. The Chamber notes that it has heard credible evidence from Prosecution Witnesses DA and HP suggesting that, following the deployment of RECCE Battalion armoured vehicles at the residence of the Prime Minister, Nzuwonemeye and Sagahutu kept themselves abreast of the events unfolding at the residence before and after the Prime Minister’s death through radio communication with their subordinates, especially W.O. Bizimungu who led the armoured vehicles unit deployed at the residence. The Chamber has set out this evidence in detail in its summary of the evidence and need not repeat it at this stage. The Chamber is satisfied that both Nzuwonemeye and Sagahutu maintained contact with their subordinates who were at the residence of the Prime Minister, both before and after she was killed, and issued directives of an operational nature to their subordinates in the course of their communication with them. Based on these exchanges, the Chamber is satisfied that both Nzuwonemeye and Sagahutu ordered and were implicated to a significant extent in the events that led to the death of the Prime Minister.

1740. In reaching this finding, the Chamber has not relied upon the evidence of Witness ALN that at some point during the meeting held at ESM in the morning of 7 April he heard gunfire emanating from the direction of the Prime Minister’s residence. Witness ALN testified that shortly thereafter, Nzuwonemeye emerged out of the venue of the meeting and used a Motorola radio that was mounted on the witness’s vehicle to call the crew of the RECCE Battalion armoured vehicle. In his message, Nzuwonemeye inquired if the Prime Minister had been found. The person to whom Nzuwonemeye was speaking replied that they had found and killed the Prime Minister.3171 The Chamber notes that it has heard a considerable amount of evidence casting doubt on Witness ALN’s testimony on this point. Having reviewed this evidence, the Chamber has doubts about Witness ALN’s evidence that he saw Nzuwonemeye communicate by radio with RECCE armoured units located at the Prime Minister’s residence while attending the meeting at ESM in the morning of 7 April.

1741. The Chamber has also considered whether the evidence of Defence witnesses, especially TCB1, regarding the radio communication system that was used by members of the RECCE Battalion raises doubts about claims made by Prosecution witnesses regarding the implication of Nzuwonemeye and Sagahutu in the killing of the Prime Minister. The Defence submits that the Prosecution witnesses should not be believed because they testified that the messages they heard from W.O. Bizimungu to Nzuwonemeye and Sagahutu were from a Motorola radio and that this was impossible given that only Nzuwonemeye had this type of radio within the RECCE battalion.3172 Contrary to this submission, the Chamber notes that it has received strong evidence that Motorola radios were used for communications throughout the Kigali operational sector and other combat zones. The RECCE Battalion was located within the Kigali operational sector and was engaged in active combat operations in 1994. It is therefore reasonable to assume that the battalion utilised Motorola radios for the purpose of their wartime communications. From the evidence of both Defence Witnesses TCB1 and Y1, it is clear that communications within the Motorola network were not very secure; anyone with similar equipment could listen to communications on that network. 3171 T. 5 October 2004, pp. 24, 48; T. 29 September 2004, pp. 51-52; T. 5 October 2004, p. 24; T. 4 October 2004, p. 30. 3172 Nzuwonemeye Closing Brief, paras. 235-247; Sagahutu Closing Brief, paras. 291-292, 296-311. 17 May 2011 389/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Indeed, Defence Witness Y1 testified that subordinates routinely listened to such radio communications either because they handled their superior officers’ radios or simply, according to Witness TCB1, because they were equipped with the same type of radio and could listen to the conversations, although they could not participate in the discussions.3173 In light of this evidence, the Chamber finds it to be a reasonable possibility that Prosecution Witnesses DA, HP and AWC would have been able to overhear various radio communications between W.O. Bizimungu and the Accused persons.

1742. Even assuming that the Defence submission is correct that combat units could not communicate directly with the battalion commander, the Chamber is not satisfied that this negates the fact that Nzuwonemeye received information through Sagahutu of the events that led to the death of the Prime Minister. The Chamber is convinced beyond reasonable doubt that while at the Prime Minister’s residence, W.O. Bizimungu maintained regular radio contact with Sagahutu, his immediate superior. The Defence does not contend that there is any technical impediment to radio communications between Sagahutu as squadron head and W.O. Bizimungu who was directly under his command. This is clear from Witness TCB1’s evidence that squadron commanders communicated with their platoons and sections using VHF radios.3174 Given that the order to deploy the armoured vehicles to the Prime Minister’s residence emanated from Nzuwonemeye, the Chamber considers it implausible that Sagahutu would not have kept Nzuwonemeye regularly informed of the information he received from his subordinates at the Prime Minister’s residence. The Chamber recalls that the evidence adduced by the Defence does not challenge the fact that Sagahutu as a squadron commander could communicate with Nzuwonemeye, the RECCE Battalion commander.

1743. Having considered the entirety of the evidence relevant to these events, the Chamber finds that not only did Nzuwonemeye order Sagahutu to deploy RECCE troops to reinforce Presidential Guard units at the Prime Minister’s residence, an order with which Sagahutu complied, but that Nzuwonemeye and Sagahutu were kept fully informed of the activities of their subordinates at the residence, sent supplies to those subordinates and issued operational instructions to them. The involvement of Nzuwonemeye and Sagahutu, senior officers of the RECCE battalion, and the fact that they kept themselves abreast of the events unfolding at the Prime Minister’s residence before and after she was killed suggests in the strongest possible manner that the killing of the Prime Minister was an organised operation. The evidence precludes any suggestion that the RECCE Battalion soldiers who participated in the killing of the Prime Minister were acting outside the orders and knowledge of the two Accused in their capacity as commanders of this battalion.

1744. The Chamber is therefore satisfied that the Prosecution has proved beyond reasonable doubt that Nzuwonemeye and Sagahutu bear both direct and superior responsibility for the killing of the Prime Minister on 7 April 1994. 1.6.4.2 Killing of Belgian UNAMIR Soldiers 1.6.4.2.1 Introduction 1745. The Indictment alleges that in the morning of 7 April 1994, soldiers of the RECCE Battalion, who were under the command of Nzuwonemeye and Sagahutu and assisted by 3173 T. 25 June 2008, pp. 15-16; T. 29 September 2008, pp. 20-21. 3174 T. 29 September 2008, pp. 26-27. 17 May 2011 390/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T elements from the Presidential Guard, arrested ten Belgian UNAMIR soldiers from the residence of Prime Minister Agathe Uwilingiyimana, disarmed them, and took them to Camp Kigali where they were killed and mutilated by soldiers from the RECCE Battalion, the Presidential Guard and the Music Company.3175 The Indictment further alleges that throughout the morning of 7 April, Sergeant Major Bizimungu, who led the RECCE Battalion unit that participated in the arrest of the peacekeepers, remained in radio contact with Sagahutu.3176 The Indictment alleges that Nzuwonemeye and Sagahutu bear superior responsibility for these crimes.3177 1.6.4.2.2 Evidence 1.6.4.2.2.1 Prosecution Evidence Prosecution Witness AWC 1746. Witness AWC, a member of the RECCE Battalion in April 1994, testified that at about 9.00 a.m. on 7 April 1994, he saw Rwandan Army soldiers surrounding Belgian soldiers at Camp Kigali. Another Rwandan soldier informed Witness AWC that Major Ntuyahaga, who was standing close by, had brought the Belgians to the camp. Witness AWC was also shown the minibus in which the Belgians were said to have arrived.3178 Witness AWC testified that the crowd of Rwandan soldiers consisted of injured and convalescent soldiers as well as several other soldiers who appeared to have left their posts. Several Rwandan

officers were also present, including Major Gaston Lyamuremye, and the witness saw Major Ntuyahaga “speak to those officers explaining to them why those Belgians were present.”3179 1747. Witness AWC testified that the Rwandan soldiers then began to attack the Belgians. The officer on duty did not request any intervention, and the witness observed other Rwandan Army officers leaving. The witness felt threatened and so he also left the area.3180 In cross- examination, Witness AWC stated that due to the type of soldiers present and the departure of officers from the scene, he was under the impression that the soldiers were in mutiny.3181 1748. Witness AWC testified that later in the morning, Corporal Masonga, who was a member of the secretariat of the RECCE Battalion,3182 entered the office close to the witness and stated, “[T]hey are killing those people.”3183 Later, Corporal Nzeyimana, a marksman from Squadron A and Captain Sagahutu’s driver, found Sagahutu and told him that “there were some Belgian soldiers who had just been killed and some who had put up resistance”.3184 In reply, Witness AWC said that Sagahutu ordered “that they should all be 3175 Indictment, para. 105. 3176 Indictment, para. 106. 3177 Indictment, para. 78. 3178 T. 18 January 2006, p. 33; T. 20 January 2006, p. 3. 3179 T. 19 January 2006, p. 16. 3180 T. 18 January 2006, pp. 33-34; T. 19 January 2006, pp. 13,

16; T. 20 January 2006, p. 3. 3181 T. 20 January 2006, p. 2 (This statement was made as a result of a leading question from Defence counsel, who first suggested the notion of mutiny: “Q: Let's deal with the facts, Witness. From your observation, did this gathering of soldiers not bear a closer resemblance to the military mutiny?”). 3182 T. 18 January 2006, p. 25 (ICS). 3183 T. 20 January 2006, p. 5. 3184 T. 18 January 2006, pp. 34-35; T. 20 January 2006, p. 3. 17 May 2011 391/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T killed because they had put up resistance.”3185 Witness AWC testified that he was told that a Lieutenant had retreated into a “house” and had not yet been killed.3186 As a result of Sagahutu’s orders, at around 11.00 a.m. Corporal Nzeyimana entered Sagahutu’s office, took a multiple grenade launcher (MGL) and left.3187 1749. The witness left his office for the mess at around 12.00 noon and returned at 1.30 p.m.3188 Between 3.00 and 4.00 p.m., Corporal Nzeyimana and Corporal Masonga returned to the witness’s office where Masonga reported that they had killed all the Belgians and had therefore “completed their mission”.3189 Masonga further told Witness AWC that he had opened fire on the building but had not achieved his objective. As a result, Nzeyimana and another unknown soldier used a ladder to climb into the building and kill the remaining Belgian soldier.3190 Witness DA 1750. Witness DA was a member of the RECCE Battalion in 1994.3191 He testified that at about 8.00 a.m. on 7 April 1994 Sagahutu sent him to make a delivery to the Prime Minister's residence.3192 Upon arrival at the residence, Witness DA saw between 8 and 11 unarmed Belgian UNAMIR soldiers coming out of the residence with their hands in the air.3193 The Belgians were searched by soldiers who came from units within Camp Kigali and

elements of the Presidential Guard.3194 The Belgian troops were placed on board a Coaster minibus driven by W.O. Kanuma. Witness DA later found out that the Belgian soldiers were then taken to Camp Kigali.3195 1751. Witness DA returned to Camp Kigali after the delivery at the Prime Minister’s residence. Upon arrival, however, he found that he could not enter the camp through the main entrance because a crowd of soldiers had gathered.3196 He saw white people sitting on the ground without their shoes or uniforms. The witness entered the camp through another gate and then walked from a RECCE Battalion building towards the main gate.3197 There he observed about eight Belgian UNAMIR troops sitting on the ground being kicked and beaten with crutches by disabled Rwandan soldiers. Because of the large number of soldiers attacking them, the Belgian troops who were sitting on the ground could not defend themselves and merely pleaded with their attackers.3198 3185 T. 18 January 2006, p.

34. See also T. 19 January 2006, p. 14, where Witness AWC said that Sagahutu ordered the killing of the Belgian soldier who had put up resistance. 3186 T. 19 January 2006, p. 14. 3187 T. 18 January 2006, p. 34; T. 20 January 2006, pp. 3-5. 3188 T. 18 January 2006, p. 35; T. 20 January 2006, p. 3. 3189 T. 19 January 2006, p. 14. 3190 T. 20 January 2006, p. 6. 3191 T. 11 January 2005, p. 28 (ICS). 3192 T. 11 January 2005, p. 56. 3193 T. 11 January 2005, pp. 58-59. 3194 T. 11 January 2005, pp. 59-60. Witness DA later explained that the soldiers he saw at Camp Kigali included some from the senior military academy, RECCE Battalion, Huye Battalion and the Presidential Guard. He estimated that there were approximately 80 to 100 soldiers at the Prime Minister’s residence that morning. See T. 11 January 2005, p. 61. 3195 T. 11 January 2005, p. 61. 3196 T. 11 January 2005, p. 65. 3197 T. 11 January 2005, pp. 65-66. 3198 T. 11 January 2005, p. 66. 17 May 2011 392/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1752. Witness DA also observed that Rwandan soldiers were shooting at two Belgian soldiers who were inside a building and that those Belgians were firing back.3199 He testified that Rwandan soldiers threw grenades at the two Belgian soldiers inside the building and then used a grenade launcher to kill them.3200 Although Witness DA was not present when the grenade launcher was used, upon his arrival he saw a soldier from the Huye Battalion carrying that weapon and he also noticed that the roof of the building had collapsed.3201 The witness observed the scene at the camp for about 20 minutes before leaving.3202 1753. Witness DA explained that when he arrived at Camp Kigali that morning, the Belgian soldiers had been under attack for some time.3203 He saw Major Nubaha, commander of Camp Kigali, and several RECCE Battalion soldiers at the entrance of Camp Kigali during the attack on the Belgian soldiers.3204 The witness testified that by 3.00 p.m. all the Belgian soldiers had been killed.3205 Witness DCK 1754. Witness DCK was a soldier with the Music Company based at Camp Kigali in 1994. He testified that throughout the night of 6 April 1994, he was positioned near a wall in Camp Kigali close to Paul VI Avenue.3206 At about 12.00 noon on 7 April, soldiers who had brought food to Witness DCK and his

colleagues informed him that Belgian soldiers had been killed at the camp entrance.3207 At about 2.00 p.m., Witness DCK went to the camp entrance to see what had happened.3208 Upon arrival, he saw the dead bodies of about eight Belgian UNAMIR soldiers in front of the UNAMIR office at Camp Kigali. Some of the bodies had open wounds on their faces, and at least one skull had been split open.3209 Approximately 50 Rwandan soldiers from all units in Camp Kigali, including the RECCE Battalion, the Music Company and the Headquarters Company, were standing around the dead bodies “looking on”.3210 Witness DCK learned from the other soldiers present that the Belgian soldiers were attacked by “wounded soldiers” with crutches, gun butts and knives.3211 According to Witness DCK, the dead Belgian soldiers were wearing UNAMIR military uniforms and bullet proof vests.3212 1755. Witness DCK also saw that there were other Belgian soldiers shooting from inside the UNAMIR building.3213 During this gunfire exchange, Witness DCK saw a Rwandan soldier who he was told came from the RECCE Battalion bring out a grenade launcher and fire six grenades into the UNAMIR building. A few minutes later the shooting from inside the 3199 T. 11 January 2005, p. 66. 3200 T. 11 January 2005, pp. 70-71. 3201 T. 11 January 2005, pp. 71-72. 3202 T. 11 January 2005, p. 69. 3203 T. 11 January 2005, pp. 69-70. 3204 T. 11 January 2005, p. 67. 3205 T. 11 January 2009, p. 69. 3206 T. 8 March 2005, p. 58; T. 9 March 2005, p. 3. 3207 T. 9 March 2005, p. 7. 3208 T. 9 March 2005, p. 7; T. 10 March 2005, pp. 6-7. 3209 T. 9 March 2005, pp. 7-8. 3210 T. 9 March 2005, p. 8. 3211 T. 8 March 2005, p. 8. 3212 T. 9 March 2005, p. 8. 3213 T. 9 March 2005, pp. 8-9. 17 May 2011 393/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T building stopped.3214 Corporal Nzeyimana, who was Sagahutu’s driver, then looked into the building and told the other soldiers “[I]t’s over”, meaning that the last Belgian soldier had died.3215 Witness DCK tried to enter the building but could not do so due to heavy tear gas smoke. However, he observed from the door that the Belgian soldiers were dead.3216 He also observed that the wall of the building was riddled with bullets and that the two windows were damaged by gunfire.3217 1756. During cross-examination, Witness DCK confirmed that other soldiers at Camp Kigali informed him that senior officers at the camp had tried to stop the attack on the Belgian soldiers but had been threatened by Rwandan soldiers.3218 The witness added that the situation “was that of total disorder.”3219 Witness DY 1757. Prosecution Witness DY testified that at about 8.00 a.m. on 7 April 1994, he was informed by Corporal Afrika, a member of the RECCE Battalion,3220 that Belgian soldiers were killed at Camp Kigali.3221 At about 10.00 a.m. that morning, he heard sustained gunfire and went towards the office of the Camp Kigali commander.3222 Upon arrival, he saw the bodies of nine Belgian soldiers lying on the ground.3223 He also saw a large number of Rwandan soldiers from various units, including wounded or invalid

soldiers.3224 Witness DY further noticed that one of the Belgian soldiers was “in the office” talking to Lieutenant Colonel Jean-Marie Vianney Ndahimana and Lieutenant Colonel Nubaha of the Rwandan Army.3225 The witness, who was standing approximately 15 metres away, could not hear what they were saying. Shortly thereafter, he saw the two Rwandan officers leave the Belgian soldier in the office.3226 Witness DY also saw Major Ntuyahaga on the scene and heard him tell W.O. Sebuhira that he was the one who had brought the Belgian soldiers to the camp. The witness also heard Ntuyahaga say in reference to the Belgian soldier in the office, “Don’t let that one get away either.”3227 After Ntuyahaga’s remarks, Rwandan soldiers began firing at the building into which the Belgian soldier had retreated. Immediately after the shooting started, Witness DY left the scene and returned to the RECCE Battalion Headquarters. The witness estimated that he spent about 30 minutes at the site where the Belgians were attacked.3228 Witness ANK/XAF 3214 T. 9 March 2005, p. 9. 3215 T. 9 March 2005, p. 9; T. 9 March 2005, p. 10. 3216 T. 9 March 2005, p. 10. 3217 T. 9 March 2005, p. 9. 3218 T. 10 March 2005, p. 11. 3219 T. 10 March 2005, pp. 14-15. 3220 T. 23 January 2006, p. 46; T. 25 January 2006, p. 6. 3221 T. 23 October 2006, p. 39. 3222 T. 23 October 2006, p. 39; T. 24 October 2006, p. 45. 3223 T. 23 October 2006, p. 39; T. 24 October 2006, p. 46. 3224 T. 23 October 2006, pp. 39-40. 3225 T. 23 October 2006, p. 40; T. 24 January 2006, p. 46. 3226 T. 23 October 2006, p. 41. 3227 T. 23 October 2006, p. 41. 3228 T. 23 October 2006, p. 41. 17 May 2011 394/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1758. Witness ANK/XAF was a member of the RECCE Battalion in April 1994.3229 He testified that at about 10.00 a.m. on 7 April 1994, he was informed by a soldier named Nkurikiyinka3230 that unarmed UNAMIR troops at Camp Kigali were being killed because they were being accused of having shot down the presidential plane.3231 Nkurikiyinka told the witness that he had seen the UNAMIR soldiers in Major Ntuyahaga’s vehicle. Witness ANK/XAF subsequently went to the office at Camp Kigali in order to see what was happening.3232 1759. Upon arrival at the office, Witness ANK/XAF observed four white UNAMIR soldiers being beaten with crutches by approximately five disabled soldiers of the headquarters unit.3233 The Rwandan soldiers were accusing the UNAMIR soldiers of having shot down President Habyarimana’s plane.3234 Two of the UNAMIR troops were already dead from blows to the head when the witness arrived, while the other two who were still alive were begging the Rwandan soldiers to spare them.3235 Between 70 and 100 other Rwandan soldiers were trying to prevent the UNAMIR soldiers from escaping3236 and were also attempting to get other UNAMIR troops hiding in the building, including white soldiers as well as soldiers who the witness thought were Bangladeshi,3237 to come out so that they could kill them.3238 Two

UNAMIR soldiers tried to escape, but they were both shot down, one of them by a soldier with a submachine gun guarding the entrance to the camp.3239 When the “Bangladeshi” UNAMIR troops came out of the building, two white UNAMIR soldiers also came out trying to hide behind them.3240 The “Bangladeshi” soldiers were allowed to escape from the camp on foot, but the able-bodied soldiers caught up with the white soldiers and pushed them onto the ground, allowing the disabled soldiers to hit them to death with their crutches.3241 1760. According to Witness ANK/XAF several officers, including Colonel Nubaha, Major Ntuyahaga, Captain Ndangurura and Lieutenant Munana, were present at the UNAMIR office in Camp Kigali when the Belgian soldiers were being killed.3242 He testified that none of them tried to prevent or stop the killings.3243 Major Ntuyahaga, who had brought the UNAMIR soldiers to Camp Kigali, told the officers that the soldiers were being killed because they had shot down President Habyarimana’s plane.3244 3229 T. 31 August 2005, pp. 81-82. 3230 He is also referred to as “Nkurinkiika”. T. 5 September 2005, p. 3. 3231 T. 1 September 2005, p. 7; T. 2 September 2005, p. 5. 3232 T. 1 September 2005, p. 7. 3233 T. 1 September 2005, pp. 7-8, 63. 3234 T. 1 September 2005, pp. 8, 63. 3235 T. 1 September 2005, pp. 7-8. 3236 T. 1 September 2005, pp. 7-8. 3237 In cross-examination, it

was put to the witness that he saw Ghanaians and not Bangladeshis that day in Camp Kigali. Following questioning by Defence Counsel and the Chamber, Witness ANK/XAF admitted that he could not distinguish the skin colour of the Bangladeshis from those who come from other countries in Africa. See T. 2 September 2005, pp. 31, 45. 3238 T. 1 September 2005, pp. 8-9. 3239 T. 1 September 2005, p. 8. 3240 T. 1 September 2005, pp. 8-9. 3241 T. 1 September 2005, pp. 8-9; T. 5 September 2005, p. 3. 3242 T. 1 September 2005, p. 9. 3243 T. 1 September 2005, pp. 9, 58-63. 3244 T. 1 September 2005, p. 9. 17 May 2011 395/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1761. After watching the incident for between 10 and 30 minutes, Witness ANK/XAF saw a Rwandan soldier try to remove the remaining UNAMIR soldiers from the building by force, because they refused to exit the building after they saw their colleagues being killed.3245 The witness testified that a UNAMIR soldier killed the Rwandan soldier by hitting him with his elbow. The UNAMIR soldier then took the Rwandan soldier’s gun, hid behind the door of the building and began to fire at everyone outside, injuring several soldiers. The crowd then fled to take cover. Witness ANK/XAF left the camp and immediately proceeded to the transport depot of the RECCE Battalion.3246 1762. Later that day, Witness ANK/XAF was at the transport depot where he saw Major Ntuyahaga enter Nzuwonemeye’s office.3247 After a very brief period, Ntuyahaga and Nzuwonemeye left the office and stood talking near Ntuyahaga’s vehicle.3248 Shortly thereafter, two soldiers of Squadron C of the RECCE Battalion armed with an MGL gun,3249 as well as Ntuyahaga and two soldier escorts, got into the vehicle and drove away in the direction of Camp Kigali where the UNAMIR soldiers had been killed.3250 1763. Witness ANK/XAF testified that a few moments later, at approximately 4.00 p.m., he heard an unfamiliar gun sound. Arriving at the scene of the

gunfire, he saw big bullet holes in the walls of the building in which the UNAMIR soldiers had been hiding. Witness ANK/XAF and the others present at the scene recognised the holes as having been caused by the MGLs as well as another submachine gun.3251 Witness ANK/XAF was unable to see what was in the office; however, a Rwandan soldier went inside and dragged out the bodies of two UNAMIR troops who had wounds to their heads and lower limbs. The soldier then removed their boots, flak jackets and identification papers, placed them next to the bodies of the other deceased UNAMIR soldiers and covered them with tarpaulin.3252 Witness ANK/XAF testified that 10 UNAMIR soldiers in total were killed on that day.3253 Witness ALN 1764. Witness ALN was a member of the RECCE Battalion in April 1994. He testified that in the morning of 7 April 1994 Nzuwonemeye sent him to his home, which was approximately 80 metres from Camp Kigali.3254 The witness stated that as he drove out of Camp Kigali around 6.30 a.m., he observed ten Belgian soldiers arriving from the Kiyovu area.3255 The Belgian soldiers were forced to remove their shoes and were also being beaten with gun butts by Rwandan soldiers.3256 The witness overheard the Rwandan soldiers saying that the Belgians were suspected of being involved in the downing of the President’s plane.3257 Witness ALN observed that some of the Rwandan

soldiers appeared to be 3245 T. 1 September 2005, p. 9; T. 2 September 2005, p. 7; T. 5 September 2005, p. 21. 3246 T. 1 September 2005, pp. 9-10. 3247 T. 1 September 2005, pp. 10-11. 3248 T. 1 September 2005, p. 10. 3249 The witness described the MGL as a grenade launcher, a short gun with a circular-shaped magazine, which could contain between 6 and 12 grenades. T. 1 September 2005, p. 11. 3250 T. 1 September 2005, pp. 10-12. 3251 T. 1 September 2005, p. 12; T. 2 September 2005, p. 7. 3252 T. 1 September 2005, pp. 12-13. 3253 T. 1 September 2005, p. 13. 3254 T. 29 September 2004, pp. 47-48. 3255 T. 29 September 2004, p. 47; T. 30 September 2004, pp. 22-23, 30; T. 5 October 2004, pp. 27-28. 3256 T. 29 September 2004, p. 47; T. 30 September 2004, pp. 22-23, 27; T. 5 October 2004, pp. 27-28. 3257 T. 29 September 2004, p. 47; T. 30 September 2004, pp. 24-25. 17 May 2011 396/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T injured.3258 He added that as he arrived at Camp Kigali, he observed that two of the Belgian soldiers were already dead.3259 Neither Nzuwonemeye nor Sagahutu was present at that stage.3260 1765. Witness ALN testified that on his return from Nzuwonemeye’s home he saw Nzuwonemeye, Sagahutu, Colonel Nubaha (the commander of Camp Kigali) and other General Staff officers watching the Rwandan soldiers beating the Belgian soldiers to death.3261 Witness ALN stated that eight Belgian soldiers and two Rwandan soldiers were dead,3262 and he recalled seeing a ninth Belgian soldier killed.3263 1766. Witness ALN recalled that when the tenth Belgian soldier arrived, he grabbed a rifle from a Rwandan soldier and shot another soldier. He then retreated into a building approximately two metres away, close to the camp commander’s office.3264 Witness ALN stated that he was close by when Major Nzuwonemeye ordered Captain Sagahutu to bring an armoured vehicle to kill the remaining Belgian solider.3265 1767. Witness ALN stated that he watched as Sagahutu executed Nzuwonemeye’s order. The armoured vehicle was positioned approximately ten metres from the building containing the Belgian soldier, and the mounted machine guns were used to shoot at the building.3266 The camp commander then ordered a Rwandan soldier to use a rocket

launcher to shoot at the building to ensure that the Belgian soldier was dead.3267 After the rocket launcher was used, Witness ALN recalled that a Rwandan soldier went inside the building to make sure the Belgian soldier was dead.3268 Witness ALN estimated that the whole incident occurred before 12.00 noon.3269 1768. Nzuwonemeye then ordered Witness ALN to drive him to a meeting at ESM.3270 Witness ALN stated that as Commander of one of the most important battalions in Rwanda, Nzuwonemeye held the respect of many and as such he could have stopped the killing of the soldiers if he wanted to.3271 Witness General Roméo Dallaire 1769. Witness Dallaire testified that on his way to ESM in the morning of 7 April, he saw from the second gate of Camp Kigali what looked like two individuals in Belgian soldier uniforms lying on the ground in the compound.3272 He requested that his vehicle stop to 3258 T. 30 September 2004, p. 24. 3259 T. 29 September 2004, p. 47; T. 4 October 2004, p. 31. 3260 T. 29 September 2004, p. 48. 3261 T. 29 September 2004, p. 48; T. 30 September 2004, pp. 24, 27-28; T. 4 October 2004, p. 31; T. 5 October 2004, pp. 29, 35-36, 39; T. 6 October 2004, p. 6. 3262 T. 29 September 2004, p. 48; T. 5 October 2004, p. 29. 3263 T. 29 September 2004, pp. 48-49; T. 4 October 2004, p. 33. 3264 T. 29 September 2004, pp. 48-49; 30 September 2004, pp. 26-27 ; T. 4 October 2004,

p. 33. 3265 T. 29 September 2004, p. 49; T. 5 October 2004, pp. 35-36. 3266 T. 29 September 2004, p. 49; T. 30 September 2004, pp. 27-28. 3267 Witness ALN stated that Lieutenant Colonel Nubaha was the Kigali Camp Commander. T. 29 September 2004, p. 49. 3268 T. 29 September 2004, p. 49; T. 5 October 2004, p. 46. 3269 T. 29 September 2004, p. 50. 3270 T. 29 September 2004, p. 50; T. 30 September 2004, p. 32; T. 5 October 2004, p. 46. 3271 T. 5 October 2004, p. 36. 3272 T. 22 November 2006, p. 15. 17 May 2011 397/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T investigate but the driver of the vehicle, an officer of the Rwandan Armed Forces, refused because there was too much chaos and risk in the camp. The driver continued about 100 to 150 metres further to ESM.3273 Dallaire estimated that he entered the meeting at ESM at around 11.00 a.m., after it had already commenced. Colonel Bagosora was chairing the meeting and the vast majority of the general command structure of the Rwandan Army was present.3274 1770. On several occasions during the afternoon, Dallaire requested information on his missing troops at Camp Kigali. He was told that those troops were working to stop the riots and regain control of the camp, and that he was not to intervene.3275 At 10.00 p.m., after the Crisis Committee meeting, Dallaire was told by the Ndindiliyimana that the Belgian soldiers were at the Kigali hospital. Dallaire, Ndindiliyimana and a number of other officers walked to the hospital, from where they were directed to the morgue.3276 Outside the morgue, Dallaire saw the bodies of the dead Belgian soldiers, many of them half-naked, piled together in a gruesome fashion.3277 Dallaire testified that Ndindiliyimana and the other Rwandan officers were visibly shocked at the state of affairs. Dallaire ordered that the bodies be properly laid out to be picked up the next day. He

then returned to his headquarters with an escort offered by Ndindiliyimana, who showed concern for his safety.3278 1771. Dallaire subsequently ordered a board of enquiry into the deaths of the Belgian soldiers. The board concluded that some of the officers at Camp Kigali had tried to persuade the Rwandan soldiers to disperse and stop the massacres, but their attempts were in vain. Dallaire testified that he had also received this information verbally from other sources.3279 He acknowledged that it was possible that the attacks against the Belgians were carried out by mutinous soldiers at Camp Kigali.3280 1.6.4.2.2.2 Defence Evidence 1.6.4.2.2.2.1 Nzuwonemeye Defence Evidence Witness F5 1772. Witness F5 was an officer in the Rwandan Army General Staff in Camp Kigali in 1994.3281 He testified that at approximately 8.00 a.m. on 7 April 1994, Witness F5 left Camp Kigali in order to attend to a family matter at CHK.3282 He returned to Camp Kigali between 9.00 a.m. and 9.30 a.m.3283 Upon his return, he saw a large crowd gathered at the entrance to the camp, and he saw that Rwandan soldiers had surrounded a group of “blue helmets”.3284 Witness F5 stated that there was a rumour spreading through Camp Kigali at that time that 3273 T. 22 November 2006, p. 16. 3274 T. 22 November 2006, p. 17. 3275 T. 21 November 2006, p. 14. 3276 T. 21 November 2006, pp. 14-15. 3277 T. 21 November 2006, p. 15. 3278 T. 21 November 2006, p. 15. 3279 T. 22 November 2006, p. 22. 3280 T. 22 November 2006, p. 23. 3281 T. 9 July 2008, p. 3 (ICS). 3282 T. 9 July 2008, p. 8. 3283 T. 9 July 2008, pp. 8, 15. 3284 T. 9 July 2008, pp. 8-10. 17 May 2011 398/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Belgian soldiers were responsible for shooting down the President’s plane.3285 The witness heard that the peacekeepers had arrived at Camp Kigali with Major Ntuyahaga from the Prime Minister’s residence.3286 1773. According to Witness F5, the crowd surrounding the blue berets consisted of soldiers disabled by the war as well as other active soldiers from Camp Kigali, including some from his unit.3287 The group of blue berets consisted of white and black soldiers. He recalled that there were Ghanaians and Togolese UNAMIR soldiers present at the camp at the time. The witness remained with the crowd for a few minutes before heading to his office.3288 1774. At his office, Witness F5 received a phone call from Captain Nyararwimo from the General Staff asking about the crowd at the camp entrance. Witness F5 explained that Rwandan soldiers had surrounded the blue helmets in front of the UNAMIR office.3289 Captain Nyararwimo asked Witness F5 to go to the site and do his best to disband the soldiers. The witness duly complied and went back to the crowd.3290 1775. Witness F5 together with a number of non-commissioned officers attempted to tell the Rwandan soldiers not to harm the blue helmets. However, the witness soon realised that the situation was becoming more complex, so he went back to his office to call

the General Staff.3291 He explained to Captain Nyararwimo from the General Staff that the situation had become worse and requested that the General Staff intervene.3292 A UNAMIR Captain joined the witness in his office to help explain the situation to the General Staff.3293 1776. Witness F5 returned to the crowd after a few minutes. Shortly thereafter, two senior officers, Lieutenant Colonel Ndahimana and Colonel Kanyandekwe, arrived and tried to break up the crowd.3294 Witness F5 testified that the crowd was uncontrollable because the soldiers were disobeying orders from everyone.3295 Kanyandekwe tried to explain that the UNAMIR soldiers were not to be harmed.3296 While Kanyandekwe was addressing the crowd, a soldier shot at the wall behind him.3297 As a result, the senior officers felt threatened as they too were becoming targets.3298 Witness F5 also recalled officers Kagango and Sebutiyongera trying to intervene.3299 He estimated that the senior officers remained at the site for about 30 minutes.3300 3285 T. 9 July 2008, pp. 12, 57. 3286 T. 9 July 2008, pp. 56, 59. 3287 T. 9 July 2008, pp. 11-12, 23. 3288 T. 9 July 2008, p. 16. 3289 T. 9 July 2008, pp. 10, 16. 3290 T. 9 July 2008, p. 10. 3291 T. 9 July 2008, pp. 10, 16, 51. 3292 T. 9 July 2008, pp. 10-11, 19, 51, 53. No military reinforcement came. 3293 T. 9 July 2008, pp. 10-11. 3294 T. 9 July 2008, pp. 10-11, 15, 17-18,

21. Colonel Kanyandekwe worked at the G3 office, and Colonel Ndahimana worked at the base of the Rwandan Army. 3295 T. 9 July 2008, pp. 13, 53. 3296 T. 9 July 2008, pp. 10-11. 3297 Witness F5 could not identify the soldier who shot at the officer. See T. 9 July 2008, p. 52. 3298 T. 9 July 2008, pp. 10-11. 3299 T. 9 July 2008, p. 11. 3300 T. 9 July 2008, pp. 19, 53-54. Witness F5 stated that no bugle or alarm was sounded as he did not have them at his disposal, nor were shots fired into the air to disperse the crowd. 17 May 2011 399/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1777. Witness F5 testified that during the attack on the Belgian soldiers, the Ghanaian soldiers were taken away through the crowd to ESM.3301 One Belgian soldier retreated into the UNAMIR office, where he located a machine gun and started firing into the crowd. Some of the soldiers in the crowd were injured and some fled.3302 Witness F5 stated that he left the scene to go to his office after the UNAMIR soldier shot into the crowd, but he understood that a group of soldiers continued to shoot at the Belgian contingent and others attempted to lob grenades into the UNAMIR building.3303 According to the witness the incident ended before 12.00 noon when the last Belgian soldier died.3304 Witness Y1 1778. Witness Y1 was a senior Rwandan Army officer in 1994. He testified that he learned of the death of the 10 Belgian UNAMIR soldiers in the evening of 7 April 1994 when he entered Camp Kigali and saw their corpses.3305 Major Nubaha, the Camp Kigali commander, told Witness Y1 that it was Major Ntuyahaga who had brought the Belgians to the camp.3306 The witness was told that Ntuyahaga had been driving past the Prime Minister’s residence when the UNAMIR troops requested that he transport them to the UNAMIR post at Camp Kigali. As the Belgians exited from the vehicle and entered the camp, a Rwandan soldier at the

guard post reportedly said that “those are the Belgian soldiers who have killed the President of the Republic.”3307 The witness was told that other Rwandan soldiers, including the war-wounded, then attacked the Belgians with clubs, batons, weapons and grenades.3308 1779. According to Witness Y1, the Rwandan soldiers “were in mutiny”. The witness stated: “officers who attempted to stop them from attacking the 10 Belgian soldiers were driven off, and some almost lost their lives.”3309 The witness was informed that the officers who tried to stop the attack included Major Nubaha the camp commander, Major Ndahimana, the Logistics and Services commander, and Major Kanyandekwe, G3 in charge of training operations.3310 1780. Witness Y1 testified that he did not know the exact time the Belgians were killed, but assumed it was between 10.00 a.m. and late evening on 7 April 1994 when he, Nzuwonemeye, and other senior military officers were attending a meeting at ESM.3311 He further testified that those attending the meeting were at no time informed about the killing of the Belgians or the events at Camp Kigali. However, Witness Y1 noticed that during the meeting, Major Nubaha came in and spoke privately to Colonel Bagosora, but he did not know what Nubaha had said.3312 Witness D1 3301 T. 9 July 2008, p. 13. 3302 T. 9 July 2008, pp. 14, 54-55. 3303 T. 9 July 2008, pp. 14, 54-55. 3304 T. 9 July 2008, p. 14. 3305 T. 25 June 2008, p. 37. 3306 T. 25 June 2008, pp. 37-38. 3307 T. 25 June 2008, p. 38. 3308 T. 25 June 2008, p. 38. 3309 T. 25 June 2008, p. 38. 3310 T. 25 June 2008, pp. 38-39. 3311 T. 25 June 2008, p. 39. 3312 T. 25 June 2008, p. 39. 17 May 2011 400/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1781. Witness D1 was attached to the General Staff Company at Camp Kigali in April 1994.3313 At about 7.00 a.m. on 7 April, Witness D1 left his office to shower and eat breakfast at his quarters inside Camp Kigali.3314 As he passed the guard post near the camp entrance, he saw a group of soldiers gathered on the tarmac near the gate.3315 Witness D1 returned to his office at about 8.00 a.m. At around 9.00 a.m., he heard noise coming from the direction of Camp Kigali. The noise intensified at about 9.30 a.m.3316 At this point he left his office and went towards the camp entrance to find out what was happening.3317 Upon arrival, he saw about four to six UNAMIR soldiers in uniform lying on the ground. The UNAMIR soldiers had been surrounded and were being beaten by handicapped Rwandan soldiers using crutches and pieces of wood.3318 1782. At the scene, Witness D1 saw Lieutenant Munana, head of the Headquarters Company, and an officer named Sebutiyongera. These two officers unsuccessfully tried to stop the attack on the UNAMIR soldiers. According to Witness D1, the more the officers tried to dissuade the Rwandan soldiers, the more furious the soldiers became.3319 Witness D1 also observed Rwandan soldiers on the tarmac exchanging fire with two UNAMIR soldiers who were inside a room.3320 At approximately 10.00

a.m., Colonels Kanyandekwe and Nahimana arrived and tried to stop the attack on the UNAMIR soldiers.3321 In response, the Rwandan soldiers told the officers: “These people killed our President. They have just killed another soldier right here, and you want to stop us from killing them?”3322 A Rwandan soldier then began shooting at the roof and the two Colonels retreated.3323 The Rwandan soldiers retreated to a position behind a tree and continued to exchange fire with the UNAMIR troops inside the room.3324 Witness D1 ran to safety towards his office and continued to observe the events from behind a wall for between 30 and 60 minutes.3325 1783. Witness D1 testified that around 11.00 a.m., Colonel Nubaha, commander of Camp Kigali, addressed the crowd of Rwandan soldiers and asked them to calm down.3326 Again, the soldiers replied that the UNAMIR troops had killed the President and that Nubaha should not “try and save their lives.”3327 At this point, the Rwandan soldiers threw grenades into the room holding the UNAMIR troops and Nubaha withdrew from the location. The Rwandan soldiers continued firing and throwing grenades into the building until the shooting from inside the room had stopped.3328 Witness D1 testified that the attack on the Belgian soldiers ended around 12.00 noon.3329 3313 T. 9 September 2008, pp. 8-9 (ICS). 3314 T. 9 September 2008, pp. 12-13. 3315 T. 9 September

2008, p. 13. 3316 T. 9 September 2008, p. 15. 3317 T. 9 September 2008, p. 15. 3318 T. 9 September 2008, pp. 15, 21. 3319 T. 9 September 2008, p. 15 3320 T. 9 September 2008, p. 15. 3321 T. 9 September 2008, pp. 15, 17. 3322 T. 9 September 2008, p. 15. 3323 T. 9 September 2008, p. 15. 3324 T. 9 September 2008, p. 15. 3325 T. 9 September 2008, pp. 15, 17, 28. 3326 T. 9 September 2008, pp. 15, 17. 3327 T. 9 September 2008, pp. 15-16. 3328 T. 9 September 2005, pp. 15-16. 3329 T. 9 September 2008, p. 21. 17 May 2011 401/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1784. Witness D1 further explained that in addition to the handicapped soldiers, he saw “able-bodied” soldiers among the crowd. He said he recognised some of the disabled soldiers as well as men from the General Staff and Services Company.3330 According to Witness D1, most of the soldiers who were armed during the attack on the UNAMIR soldiers came from the General Staff and Services Battalion.3331 The witness testified that he knew Nzuwonemeye but did not see him at scene of the attack, nor did he see any armoured vehicle at that location.3332 Witness Luc Marchal 1785. Witness Marchal testified that at around 6.00 a.m. on 7 April 1994, he was informed that Rwandan radio had announced that the Belgians were responsible for shooting down the President’s plane.3333 This information spread quickly throughout Kigali, and Marchal was aware that the Belgian soldiers could become targets.3334 1786. Marchal testified that he only heard that the Belgian soldiers were assassinated after the fact.3335 Based on the reports and dossiers that he received after the incident, Marchal agreed with General Dallaire’s description of the killers of the Belgian UNAMIR soldiers as “crazed Rwandan Army rogue elements”.3336 Marchal added that he himself had referred to those soldiers as mutinous elements.3337 He also testified

that he was tried and acquitted by a military court in Belgium for negligence in connection with the killing of the ten Belgian troops.3338 Witness Laetitia Umulisa 1787. Witness Laetitia Umulisa is the wife of Nzuwonemeye.3339 She testified that on 6 April 1994, she worked as a secretary at the Prosecutor’s office of the Kigali Appeals Court and lived with her family in the UN Quarters near Camp Kigali.3340 On that day, Nzuwonemeye returned home from work at about 6.00 p.m.3341 At approximately 9.00 p.m., the witness heard a radio announcement that the President’s plane had been shot down.3342 Shortly thereafter, Nzuwonemeye left for his office at Camp Kigali and did not return until 7.00 a.m. the next morning.3343 Ndyanabo, a RECCE Battalion driver, waited for Nzuwonemeye to take a short rest at his home and then drove him from the house at about 9.30 a.m. to attend a meeting at ESM.3344 Witness Doe Kwesi 3330 T. 9 September 2008, pp. 18-19. The witness wrote down three names of soldiers whom he recognised. These names are contained in Defence Exhibit 558, under seal. 3331 T. 9 September 2008, p. 25. 3332 T. 9 September 2008, p. 21. 3333 T. 17 January 2008, p. 50. 3334 T. 17 January 2008, p. 50. 3335 T. 18 January 2008, p. 50. 3336 T. 18 January 2008, pp. 50-51. See also Defence Exhibit 327. 3337 T. 18 January 2008, p. 50. 3338 T. 16 January 2008, p. 25; T. 17 January 2008, p. 60; T. 21 January 2008, p. 2. 3339 T. 22 September 2008, p. 6. 3340 T. 22 September 2008, pp. 7, 26-27. 3341 T. 22 September 2008, p. 7. 3342 T. 22 September 2008, p. 8. 3343 T. 22 September 2008, pp. 8-9. 3344 T. 22 September 2008, pp. 9-10, 22. 17 May 2011 402/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1788. Witness Doe Kwesi was a member of the Ghanaian UNAMIR contingent assigned to provide security for Prime Minister Agathe Uwilingiyimana in April 1994.3345 Between 8.00 and 9.00 a.m. on 7 April 1994,3346 Rwandan government soldiers firing small arms in the air entered the front gate of the residence, ordered the Belgians and Ghanaians to put down their arms and packed all 15 UNAMIR soldiers into a white minibus which then took them to Camp Kigali.3347 1789. Witness Kwesi explained that after entering Camp Kigali, members of his unit and the Belgians alighted from the minibus and were ordered to sit down.3348 The witness observed that there was a vehicle parked in front of the Camp Kigali gate and a Togolese UN military observer was also present.3349 According to Witness Kwesi, while the Ghanaian and Belgian soldiers were sitting they were suddenly attacked by Rwandan soldiers from the camp with fists, gun butts and iron bars.3350 As a result of the violent onslaught, four Belgian soldiers collapsed before the UN Togolese observer ushered the remaining group into the gate guards’ resting room.3351 Witness Kwesi further explained that although the UN observer locked the door and attempted to block the entrance, the Rwandan soldiers forced the observer to leave, fired through the windows and succeeded

in shooting one of the Belgian soldiers at close range.3352 Witness Kwesi and his colleagues had to lie down on the ground in order to avoid being hit by gunfire.3353 At this point, a soldier identified as Aloys appeared through the window and directed the Ghanaians, along with the UN observer, to go to the office of the camp commander located about 10 to 30 metres away.3354 The commander provided a vehicle which then took the Ghanaians to the UNAMIR Headquarters.3355 1790. Witness Kwesi testified he did not hear or see anyone issuing orders to the attacking soldiers, who appeared to be uncontrollable and acting on their own.3356 He added that the soldiers were dressed in army uniforms and fired small-arms.3357 He later learned that the Belgian soldiers they had left behind had all been killed.3358 Witness Zambulugu Sandow 1791. Witness Zambulugu Sandow was a Ghanaian UNAMIR soldier assigned to protect the Prime Minister in 1994.3359 He testified that on 7 April 1994, he was on sentry duty at the entrance gate of the Prime Minister’s residence.3360 Early in the morning he saw Belgian UNAMIR soldiers arrive in four jeeps.3361 About 15 minutes later, he saw between 10 and 20 Rwandan soldiers enter the residence. These soldiers ordered the Belgian and Ghanaian 3345 T. 8 July 2008, p. 51. 3346 T. 8 July 2008, p. 69. 3347 T. 8 July 2008, pp. 59-60, 64. 3348 T. 8 July 2008, p. 64. 3349 T. 8 July 2008, p. 64. 3350 T. 8 July 2008, p. 64. 3351 T. 8 July 2008, pp. 64-65. 3352 T. 8 July 2008, p. 65. 3353 T. 8 July 2008, p. 65. 3354 T. 8 July 2008, p. 65-66. 3355 T. 8 July 2008, p. 66. 3356 T. 8 July 2008, pp. 65-66, 74. 3357 T. 8 July 2008, p. 66. 3358 T. 8 July 2008, p. 66. 3359 T. 8 July 2008, p. 77. 3360 T. 8 July 2008, pp. 79-80. 3361 T. 8 July 2008, p. 82. 17 May 2011 403/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T soldiers to drop their weapons and marched them to a minivan that was waiting outside the gate, which then took them to Camp Kigali.3362 1792. Upon arrival at Camp Kigali, the Belgians and Ghanaians were ordered to sit down and were attacked by Rwandan soldiers in the camp armed with “AK rifles” and stones.3363 Four Belgians collapsed as a result of the attack while the other UNAMIR soldiers took shelter in a nearby restroom.3364 According to Witness Sandow, while the soldiers were in the restroom a disabled Rwandan soldier in a wheelchair entered the room and shot and killed a Belgian soldier at close range.3365 Following this shooting, a senior Rwandan Army officer came and sent all the attacking soldiers from the room and locked the door.3366 After some time, another person asked the Ghanaians to come forward. Witness Sandow and his compatriots followed him and later saw a UN military observer named Apedo, who took them to a safe place within Camp Kigali.3367 The witness explained that as they moved, he heard a lot of small arms fire coming from the direction of the camp gate.3368 Witness Ntivuguruzwa 1793. Witness Ntivuguruzwa was a member of the Security Company assigned to protect Prime Minister Agathe Uwilingiyimana in April 1994.3369 He testified that on 6 April 1994, there were 10 gendarmes

guarding the Prime Minister’s residence.3370 There were also around five Ghanaian UNAMIR soldiers assigned to guard the Prime Minister.3371 At around 5.00 a.m. on 7 April, white UNAMIR soldiers arrived at the Prime Minister’s residence in four jeeps.3372 Later that morning, at around 10.30 a.m., soldiers of the Presidential Guard arrived at the premises, firing shots into the air, and told the gendarmes to put down their weapons. They then entered the compound and disarmed the Ghanaian and white UNAMIR soldiers.3373 Shortly thereafter, a white minibus with army registration numbers arrived at the Prime Minister’s residence. An unidentified Major was in the minibus, along with a driver. The major told the UNAMIR soldiers to board the minibus which, then drove off.3374 Witness B1/BB13/CBP7 1794. Witness B1/BB13/CBP7 was a senior Gendarmerie officer in Rwanda in 1994.3375 He testified that he attended a meeting at ESM on 7 April 1994, which started at about 10.00 a.m. and was chaired by Colonel Bagosora. Ndindiliyimana, Nzuwonemeye and General Dallaire also attended.3376 The witness testified that during the meeting on 7 April, they were not informed of the killing of the Belgian soldiers and Dallaire did not mention anything 3362 T. 8 July 2008, pp. 82-87. 3363 T. 8 July 2008, p. 87. 3364 T. 8 July 2008, p. 87. 3365 T. 8 July 2008, p. 87. 3366 T. 8 July 2008, pp. 87-88. 3367 T. 8 July 2008, p. 88. 3368 T. 8 July 2008, p. 88. 3369 T. 16 July 2008, pp. 4-5. 3370 T. 16 July 2008, p. 8. 3371 T. 16 July 2008, p. 20. 3372 T. 16 July 2008, pp. 11-12, 23. 3373 T. 16 July 2008, p. 16. 3374 T. 16 July 2008, pp. 16-17, 54. 3375 T. 7 July 2008, p. 17 (ICS). 3376 T. 7 July 2008, pp. 26-27 (ICS). 17 May 2011 404/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T about his men being in trouble at Camp Kigali.3377 However, as the meeting went on, he heard gunfire coming from outside the building.3378 The witness testified that the meeting ended around 12.30 p.m.3379 and that he subsequently learned that the Belgian soldiers had been attacked by disabled Rwandan soldiers at Camp Kigali who were acting on rumours spread by RTLM that the Belgians were responsible for shooting down President Habyarimana’s plane.3380 Witness DE8-19/F8 1795. Witness DE8-19/F8 was a retired senior officer of the Rwandan Armed Forces in 1994.3381 He testified that an MGL is a multiple grenade launcher. He explained that the Rwandan Army obtained MGLs after the weapons embargo was lifted on Rwanda in 1990.3382 However, he stated that at the time of his departure in June 1992, the RECCE Battalion did not possess any MGLs.3383 Witness F10 1796. Witness F10 was a technical assistant for equipment with the Rwandan Armed Forces in 1994.3384 He testified that the RECCE Battalion never possessed MGLs.3385 Furthermore, in his opinion such a weapon would not be useful to a battalion like the RECCE Battalion and would not have been used.3386 He also confirmed that the RECCE Battalion did not possess AK-47 rifles.3387 Witness DE8-10/F9 1797. Witness DE8-10/F9 was a senior officer in the Rwandan

Armed Forces in 1994.3388 He testified that he arrived at ESM sometime after 10.00 a.m. on 7 April 1994 for a meeting that was chaired by Colonel Bagosora and attended by General Dallaire. There were approximately 60 other Rwandan officers present at the meeting, including Ndindiliyimana and Nzuwonemeye.3389 After the meeting, Witness DE8-10/F9 walked back to Army Headquarters.3390 1798. Witness DE8-10/F9 testified that as he approached Camp Kigali, he could hear people shouting. He saw a group of Rwandan soldiers surrounding white UNAMIR soldiers with two UNAMIR soldiers lying on the ground.3391 The witness stopped and observed the scene for a short time before proceeding to his office at Army Headquarters.3392 He saw Lieutenant 3377 T. 7 July 2009, pp. 29, 33 (ICS). 3378 T. 7 July 2008, p. 33 (ICS). 3379 T. 7 July 2008, p. 28 (ICS). 3380 T. 7 July 2008, p. 30 (ICS). 3381 T. 5 November 2007, p. 8 (ICS). 3382 T. 7 November 2007, pp. 44-45 (ICS). 3383 T. 7 November 2007, p. 45 (ICS). 3384 T. 24 October 2008, p. 5 (ICS). 3385 T. 24 October 2008, pp. 8-9. 3386 T. 24 October 2008, pp. 16, 18. 3387 T. 24 October 2008, p. 9. 3388 T. 10 May 2007, p. 8 (ICS). 3389 T. 10 May 2007, pp. 32-33, 35. 3390 T. 10 May 2007, p. 35. 3391 T. 10 May 2007, p. 35. 3392 T. 10 May 2007, p. 35. 17 May 2011 405/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Colonels Nubaha and Kanyandekwe, along with several officers, struggling to disperse the club-wielding soldiers who were attempting to attack the remaining Belgian soldiers.3393 However, he testified that he did not see Nzuwonemeye or Colonel Murasapongo at this scene.3394 The witness further testified that he was informed that the Rwandan soldiers suspected the Belgian soldiers of killing President Habyarimana.3395 At Army Headquarters, he learned that Major Ntuyaga [sic] had brought the Belgian soldiers to Camp Kigali.3396 He also stated that the Commander of Camp Kigali was responsible for maintaining security and discipline within the camp.3397 1799. Witness DE8-10/F9 testified that he was aware of a letter dated 9 April 1994 and signed by General Gatsinzi,3398 which requested details of the murder of the Belgian UNAMIR soldiers.3399 The witness explained that the letter was addressed to the commander of the AL base because Lieutenant Colonel Nubaha had been transferred from his former position of Camp Kigali commander following the killing of his wife and children by RPF soldiers on 7 April.3400 He testified that Nzuwonemeye was not copied in the letter and therefore could not have received it.3401 He explained, however, that if a report had informed Nzuwonemeye that soldiers of the RECCE Battalion

were involved in killing the Belgians, he would have had to initiate an investigation.3402 Witness UKL 1800. Witness UKL, an employee at the Centre Hôspitalier de Kigali (CHK), testified that he was aware of the arrival of dead white soldiers at CHK between 2.00 p.m. and 4.00 p.m. on 7 April 1994.3403 The witness stated that he was unsure how the bodies were brought to CHK but they were placed outside the hospital morgue.3404 Witness UKL could not recall why the bodies were outside rather than inside the morgue.3405 He also could not recall whether the soldiers were in uniform or exactly how many bodies there were.3406 The witness stated it was his understanding that the soldiers died in combat fighting government forces.3407 Witness SGD 1801. Witness SGD was a senior military officer assigned to the Music Company in 1994.3408 He testified that he arrived at Camp Kigali at about 10.30 a.m. on 7 April and noticed that he could not enter at the main entrance because a large number of rowdy soldiers 3393 T. 10 May 2007, p. 36. 3394 T. 10 May 2007, p. 36. 3395 T. 10 May 2007, p. 36. 3396 T. 10 May 2007, p. 37. 3397 T. 10 May 2007, p. 37. 3398 Defence Exhibit 234. 3399 T. 10 May 2007, p. 38. 3400 T. 10 May 2007, pp. 38-39. 3401 T. 10 May 2007, p. 39. 3402 T. 10 May 2007, p. 39. 3403 T. 1 July 2008, p. 25. 3404 T. 1 July 2008, p. 50. 3405 T. 1 July 2008, pp. 25, 50. 3406 T. 1 July 2008, p. 26. 3407 T. 1 July 2008, p. 26. 3408 T. 14 July 2008, p. 31 (ICS). 17 May 2011 406/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T had gathered there.3409 Therefore, he used the staff headquarters entrance to get to his office.3410 While at the office, Witness SGD was told by his deputy that “some white soldiers” were fighting with Rwandan soldiers because the “white soldiers” were thought to have been involved in the attack on the Presidential plane.3411 Witness SGD and his colleagues chose to stay at their base because they were told that the situation was dangerous and that senior Rwandan officers, including Colonels Nubaha, Kanyandekwe and Ndahimana, who had attempted to intervene, had been threatened with death.3412 According to Witness SGD, the incident involving the UNAMIR soldiers ended at about 12.00 noon when he heard that the Belgian soldiers had been killed.3413 The witness stated that he did not see Nzuwonemeye, Sagahutu or any armoured vehicles at the entrance of Camp Kigali during the fighting.3414 He testified, however, that Lieutenant Munana, the commander of the Headquarters Company, was present.3415 Witness B1/BB1 1802. Witness B1/BB1 worked at CHK during April 1994 until the evacuation of the hospital at the end of May 1994.3416 She testified that she heard that the bodies of Belgian UNAMIR soldiers were brought to the hospital’s morgue on 8 April and taken away the same evening. She did not know the number of

dead bodies, who brought the bodies into the morgue, who took the bodies away or whether Belgian officers arrived at the morgue to view the bodies.3417 Expert Witness Kubic 1803. Witness Kubic is an expert in forensic science, firearms and crime scene reconstruction.3418 He was asked by the Defence to provide his opinion as to whether photographs taken by Belgian investigators of the UNAMIR building in which the Belgian soldiers were killed could indicate what type of weapons were discharged and fired at the building and he was also asked whether it was possible for an armoured vehicle to have fired large calibre weapons from 10 metres away considering the amount of damage done to the building.3419 1804. Witness Kubic explained that the UNAMIR building has a concrete floor and hollow- core cement walls with a stucco finish.3420 From Kubic’s evaluation of the holes in the building, he concluded that although they looked quite large, the holes were actually small because a portion of the structure had collapsed due to the force of the projectile, giving the impression of larger holes. He concluded that the holes were caused by a 30-calibre or 7.62 3409 T. 14 July 2008, p. 36. 3410 T. 14 July 2008, pp. 35-36. 3411 T. 14 July 2008, pp. 36-37, 47. 3412 T. 14 July 2008, pp. 36-37, 48. 3413 T. 14 July 2008, p. 38. 3414 T. 14 July 2008, pp. 38, 42. 3415 T. 14 July 2008, p. 51. 3416 T. 15 July 2008, pp. 31, 34. This witness testified openly under her name Providence Nyiramondo. For the sake of brevity the Chamber will use her assigned pseudonym throughout this Judgement. She was a common witness for Nzuwonemeye and Sagahutu. 3417 T. 15 July 2008, pp. 15-16. 3418 T. 23 June 2008, pp. 68-70. 3419 T. 23 June 2008, pp. 72-73. 3420 T. 24 June 2008, pp. 4-5. 17 May 2011 407/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T millimetre round, which was confirmed by the finding of residue still inside one of the holes.3421 He further concluded that due to the patterns of marks left by the impact of gunfire on the wall, the gunfire did not originate from a fixed machine gun mount, but from a regular machine gun.3422 1805. Witness Kubic testified that there were four areas on the UNAMIR building that showed the probable impact of a grenade. He stated that none of the explosions that took place outside the building actually penetrated the building. 3423 According to Kubic, only one small hole penetrated both sides of the western wall. If the explosive round had been used on that wall, there would have been a large amount of damage. Therefore he concluded that a large-calibre weapon was not used on the western wall.3424 He further supported this conclusion by explaining that mortars could not have been used on the building due to the distance of the building and the projectile nature of mortars, as well as the risk to the person dropping a mortar from such a short distance.3425 1806. Witness Kubic concluded from subsequent experiments in the United States that the 7.62 millimetre NATO-type round would have penetrated both sides of the walls. He also concluded from both the offsite experiments and the onsite evidence that there

was no indication that the impacts were made by projectiles launched from an AML60 or an AML90 armoured vehicle, and in any case that this would not have been possible. Upon questioning from the Bench, Kubic added that it would have been possible, however, for a soldier to have fired a weapon from inside an armoured vehicle, through a port. It was Kubic’s impression that the weapons inside the vehicles would have been FAL weapons and there was no indication that those were used in this case.3426 1807. As part of his investigation, Witness Kubic examined the holes of the UNAMIR building quite extensively and recovered at least eight jacketed and non-jacketed fragments of bullets from 30-calibre or 7.62 rounds. They recovered no rounds from 9-millimetre handguns, but could not be sure that such weapons were not used due to the lack of penetration into the walls.3427 Several tests and reconstructions were done in the United States following the visit to assist in making these determinations.3428 1808. Witness Kubic agreed that his findings indicated that other than the one bullet hole found, nothing else that hit the outside walls, including an MGL launched grenade, assault rifles or machine gun fire, penetrated through the interior of the building where the Belgian soldiers were located.3429 He further agreed that the marks left by the impact of gunfire on the wall could have

indicated rapid fire on the building, especially due to what appeared to be poor marksmanship.3430 3421 T. 24 June 2008, pp. 5-6. 3422 T. 24 June 2008, pp. 7, 10. 3423 T. 24 June 2008, p. 8. 3424 T. 24 June 2008, pp. 9-10. 3425 T. 24 June 2008, p. 10. 3426 T. 24 June 2008, p. 12. 3427 T. 24 June 2008, pp. 13-14, 36-37, 63. 3428 T. 24 June 2008, pp. 13-15. 3429 T. 24 June 2008, pp. 16-17. 3430 T. 24 June 2008, pp. 37-38. 17 May 2011 408/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1809. Witness Kubic testified that he could not make any conclusions about the roof or the ceiling because they had been replaced subsequent to the events.3431 He also testified that the roof had to be replaced because there were large holes and damage to it, which were seen in the pictures from the separate Belgian investigation. The pictures show light inside the building, which led the witness to conclude that there was a large hole in the roof, although no actual damage can be seen in the photos.3432 1810. Regarding the inside of the building, Witness Kubic testified that most of the shooting came through the windows and struck the blackboard, on the southern wall.3433 He concluded that the gunfire came from the west, primarily from the northwest with at least one shot fired from the southwest through the window at an angle.3434 He testified that a 9-millimetre, a 7.62 millimetre or even rocks could have broken the glass.3435 1811. Witness Kubic testified that the damage to the northeast corner of the room was caused by hand-thrown grenade detonations.3436 From his investigation of the trajectories, Kubic’s conclusion was that the grenades were thrown through the roof, which must have been open.3437 He testified that it was not very likely that a grenade launched by an MGL could have created the

damage to the northeast corner of the room due to the trajectory and the damage to the floor.3438 He added that this could have only happened if the grenade was launched from 70 metres away, the roof was already damaged and one of those rounds fell through the hole. He believed that this did not happen as the shooters were having difficulty firing shots through a window from close range and therefore would not have had the ability to launch grenades through a hole in the roof from 70 metres away.3439 1812. Witness Kubic testified that upon reading the autopsy conclusions, he found nothing inconsistent with what he had found at the sites and the subsequent conclusions in his report.3440 He concluded that grenades launched outside the building, as opposed to hand- thrown grenades, were not the cause of the Belgians deaths.3441 The grenades detonated in the UNAMIR building were hand-thrown and not launched grenades.3442 1813. Ultimately, Witness Kubic presented the following conclusions to the Chamber. First, there is no evidence indicating that any weapons, machine guns, mounted machine guns or heavier armaments were fired from a distance of approximately 10 metres from an armoured vehicle at the UNAMIR building.3443 Second, the damage to the UNAMIR building was caused by small arms fire, likely to be AK-47 type ammunition.3444 3431 T. 24 June 2008, p. 17. 3432 T. 24 June 2008,

pp. 55-56. 3433 T. 24 June 2008, p. 18. 3434 T. 24 June 2008, pp. 18-19. Kubic explained the process of reaching his conclusions at p. 20 of the transcript. 3435 T. 24 June 2008, p. 24. 3436 T. 24 June 2008, pp. 18, 64. 3437 T. 24 June 2008, pp. 21-24. 3438 T. 24 June 2008, pp. 24-25, 64. 3439 T. 24 June 2008, pp. 66-67. 3440 T. 24 June 2008, pp. 26, 34. 3441 T. 24 June 2008, pp. 24-25. 3442 T. 24 June 2008, p. 34. 3443 T. 24 June 2008, p. 34. 3444 T. 24 June 2008, p. 34. 17 May 2011 409/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The Accused Nzuwonemeye 1814. Nzuwonemeye stated that he commanded the RECCE Battalion from November 1993 to July 1994.3445 He estimated that on 7 April 1994 there were approximately 150 to 200 RECCE Battalion soldiers present in Camp Kigali.3446 He explained that no other companies or units were under his control on that day and that security for the camp was the responsibility of camp commander Colonel Nubaha.3447 1815. Nzuwonemeye confirmed that in the evening of 6 April 1994, he was invited to attend a meeting at ESM at 10.00 a.m. the next day.3448 On 7 April, between 5.30 a.m. and 6.30 a.m., Nzuwonemeye asked for and subsequently received a situation report from Sagahutu, who had been sent to guard sensitive points in Kigali the previous evening.3449 At 6.30 a.m., Sergeant Major Ndyanabo drove Nzuwonemeye from his office to his home. Having changed and rested, Nzuwonemeye then departed for the ESM meeting at approximately 9.30 a.m.3450 He testified that on his way to the meeting, he decided to go into Kigali, in particular to the area defended by his squadron.3451 He stopped just past the École belge as he saw Sagahutu’s vehicle parked nearby. Sagahutu came over and they had a conversation.3452 1816. Nzuwonemeye confirmed that he attended the meeting at ESM and that it finished between 12.00 noon

and 12.30 p.m.3453 After the ESM meeting, Nzuwonemeye’s driver, Sergeant Major Nyadabwa, told him that he had heard gunshots coming from the direction of Camp Kigali. Nzuwonemeye therefore decided to go straight to the camp, but he avoided going directly to the guard post as he was told that there were problems there. Instead, he crossed ESM, went behind the guard post, passed by the parade ground and continued up to the RECCE Battalion.3454 3445 T. 6 October 2008, p. 3. 3446 Nzuwonemeye stated that at the time, one third of the RECCE Battalion was on leave, Squadron C was at Rambura and Squadron A was defending sensitive locations. See T. 6 October 2008, p. 20. 3447 T. 6 October 2008, p. 37. 3448 T. 6 October 2008, p. 48. 3449 T. 6 October 2008, pp. 48-49. Nzuwonemeye testified that he sent Sagahutu out in the evening of 6 April 1994 to defend sensitive locations as a result of learning of the Prime Minister’s death. 3450 T. 6 October 2008, pp. 49, 51. 3451 See T. 6 October 2008, p. 52 (Nzuwonemeye stated: “So I left my home, went through Gitega, and on to a private clinic called Bon Samaritain or Good Samaritan. I turned right and took the road between the Lycée de Notre Dame de Cîteaux or the École Belge or the Belgian school. And at the top of that road I turned left, went behind Radio Rwanda, continued behind the presidency of the republic, in front and went past the

ministry of posts, and in front of the Rwandan national parks authority, in front of a service station which at the time was called Shell. I went in front of the ministry of foreign affairs, and then the ministry of finance, and went on. I passed in front of Radio Rwanda, between Radio Rwanda and the embassy of the United States of America, and I continued right to the SONARWA company, the national insurance company of Rwanda, and then I turned right. At the end of that road was the ESM. I entered into the ESM where the meeting had to take place.”). 3452 T. 6 October 2008, p. 52. 3453 T. 6 October 2008, p. 60. 3454 T. 6 October 2008, pp. 60-61; T. 8 October 2008, pp. 41-44. 17 May 2011 410/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1817. On his way back to Camp Kigali, Nzuwonemeye met the camp commander Colonel Nubaha at the basketball field located below the guard post where the camp duty officer worked.3455 Nzuwonemeye explained that Nubaha was walking up and down, deep in thought. Nzuwonemeye asked Nubaha why he was there. Nubaha replied that soldiers, particularly disabled soldiers of the Headquarters Company under his command, had murdered Belgian blue helmets. Nubaha told Nzuwonemeye that, as far as he was concerned, there was a mutiny because most of the persons who took part in the killings were his own soldiers who had refused to obey him. Nubaha added that when the Belgian soldiers were dropped off at Camp Kigali, it was rumoured that they had shot down President Habyarimana's plane.3456 1818. Nzuwonemeye testified that he asked Nubaha a number of questions, including “why, when he came to talk with Colonel Bagosora, he did not make the information known to everybody so that we could intervene.” Nubaha replied that his non-commissioned officers “did everything possible” to control the Rwandan soldiers who were attacking the Belgians, and that he, who before then was respected by everybody, “could do nothing”.3457 Nubaha told Nzuwonemeye that he went to ESM to inform Bagosora of the situation and that the latter stated

that he would “find out about the situation himself”. However, Bagosora did not show up. Finally, Nubaha told Nzuwonemeye, “When I came back to the guard post unfortunately all the Belgians had been killed.”3458 Nzuwonemeye testified that after this conversation, he and Nubaha went to the Camp Kigali guard post together.3459 1819. On arrival at the guard post with Nubaha, Nzuwonemeye saw ten dead Belgian soldiers: eight outside and two in the room that UNAMIR used as an office, as well as one dead Rwandan solider. Nubaha told Nzuwonemeye that the Belgian soldiers had been taken there by Major Ntuyahaga from the Prime Minister’s residence.3460 Nzuwonemeye recalled other officers passing by and trying to obtain information about the situation. Colonel Ndahimana, who was the commander of the base, assisted in carrying the bodies that were outside into the UNAMIR office.3461 Rwandan soldiers were shouting and trying to stop him from putting the corpses of the eight soldiers in the office.3462 Nzuwonemeye estimated that he remained there for 40 minutes.3463 1820. Once back at the RECCE Battalion, Nzuwonemeye asked officers what they knew of the killings. The officers stated that as far as they knew, RECCE Battalion soldiers did not take part in the mutiny.3464 Nzuwonemeye then called the General Staff, the services squadron and the infantry to ask what had happened. He was told that

they had heard gunshots at the guard post and were told that they could do nothing because soldiers of the ESO Company were in mutiny.3465 3455 T. 6 October 2008, pp. 60-61. 3456 T. 6 October 2008, p. 62. 3457 T. 6 October 2008, pp. 62-63. 3458 T. 6 October 2008, pp. 62-63. 3459 T. 6 October 2008, pp. 62-63. 3460 T. 6 October 2008, p. 63. 3461 T. 6 October 2008, p. 63. 3462 T. 8 October 2008, p. 45. 3463 T. 6 October 2008, p. 63. 3464 T. 6 October 2008, p. 64. 3465 T. 6 October 2008, p. 64. 17 May 2011 411/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1821. Finally, Nzuwonemeye testified that he did not receive any order from either the General Staff or the commander of Camp Kigali to assess the security or intervene in the security of the Belgian soldiers, nor did he hear any noise coming from Camp Kigali while at ESM.3466 Nzuwonemeye also denied that the RECCE Battalion possessed MGLs.3467 According to Nzuwonemeye, although infantry in the RECCE Battalion were used to protect the armoured vehicles, the Battalion was not equipped with MGLs because they were given as a priority to units at the frontline and there were not enough to supply to the RECCE Battalion.3468 1.6.4.2.2.2.2 Sagahutu Defence Evidence Witness CSS 1822. Witness CSS was a member of Squadron A of the RECCE Battalion in 1994. He testified that in the morning of 7 April 1994 he was at the RECCE transport depot and did not leave that area until 8 April.3469 On 7 April, before 2.00 p.m., while stationed at the RECCE transport depot, he heard gunshots from the entrance to Camp Kigali. At around 3.00 p.m., people bringing supplies told him that Belgian soldiers had been shot at the camp.3470 Witness CSS testified that he could not see the entrance to Camp Kigali from the RECCE transport depot as there were several obstacles blocking the view.3471 1823. On 8 April, at around 11.00 a.m.,

Witness CSS was part of Sagahutu’s convoy that went to the mortuary at CHK where the bodies of the Belgian soldiers lay. He stated that Sagahutu was accompanied by a Belgian Lieutenant Colonel who looked at the bodies and took pictures.3472 The bodies were then loaded into an ambulance and Sagahutu’s convoy headed for Kiyovu.3473 1824. Witness CSS testified that no weapons were stored in Sagahutu’s office.3474 He recalled seeing an MGL in Mutara but denied that the RECCE Battalion possessed MGLs.3475 Witness UDS 1825. Witness UDS was a senior military officer attached to the RECCE Battalion in 1994.3476 He testified that he was absent from the camp when the Belgian UNAMIR soldiers were killed.3477 He received information, however, that the Belgians were killed by invalid soldiers at the guard post who thought the Belgians were responsible for shooting down the President’s plane.3478 Witness UDS further testified that his squadron had pistols, FAL rifles and UZI machine guns, but not MGLs. He said they did not need MGLs because they had 3466 T. 6 October 2008, p. 65; T. 8 October 2008, p. 41. 3467 T. 6 October 2008, p. 19; T. 7 October 2008, pp. 29-30, 54. 3468 T. 7 October 2008, pp. 64-65. 3469 T. 24 October 2008, p. 27. 3470 T. 24 October 2008, p. 27. 3471 T. 23 October 2008, p. 32. 3472 T. 23 October 2008, pp. 35-36, 38. 3473 T. 23 October 2008, p. 36. 3474 T. 23 October 2008, p. 41. 3475 T. 23 October 2008, pp. 41-42, 47. 3476 T. 27 October 2008, p. 37 (ICS). 3477 T. 27 October 2008, p. 69 (ICS). 3478 T. 27 October 2008, p. 70 (ICS). 17 May 2011 412/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T more powerful machine guns that could fire at long distances.3479 They also had jeeps and light armoured vehicles.3480 The weapons were kept in a weapons store located near the assembly area. He added that at no point were weapons kept in the office.3481 Witness Faustin Habimana 1826. Witness Faustin Habimana was a platoon leader attached to the RECCE Battalion in 1994.3482 Upon hearing the news of the Presidential plane crash on 6 April 1994, Witness Habimana immediately went to Camp Kigali and arrived there at about 9.30 p.m. He reported to Lieutenant Baziramwabo, who ordered him to stand by and wait for further instructions.3483 1827. On 7 April, Witness Habimana remained on standby at RECCE Headquarters in Camp Kigali.3484 At about 10.00 a.m. he heard gunshots and was later informed that those shots were fired at Belgian UNAMIR soldiers. The witness did not go to the site of the attack.3485 1828. During cross-examination, Witness Habimana confirmed that the RECCE Battalion had a small armoury in which its weapons were stored.3486 He explained that the Battalion had armoured vehicles, anti-tank missiles and various types of rifles, but denied that they had MGLs.3487 Witness Mathieu Setabaruka 1829. Witness Mathieu Setabaruka was a Sergeant Major in the Rwandan Army working in the printing press at

Rwandan Army Headquarters and based at Camp Kigali.3488 He confirmed that in April 1994, Lieutenant Nubaha was Camp Kigali commander and Second Lieutenant Munana was Nubaha’s deputy. In his role as deputy, Munana was in charge of the administration of the headquarters.3489 1830. Witness Setabaruka stated that on the night of 6 April 1994, he was at the non- commissioned officers’ mess in Camp Kigali. At approximately 8.30 p.m., he heard a number of explosions coming from the Kanombe area. Following the explosions, the witness heard the camp bugle sound.3490 He rushed out of the mess to a pre-determined spot within the camp, where he was joined by other members of his unit.3491 Soon after assembling, Second Lieutenant Munana and a member of UNAMIR arrived at the weapons store. The UNAMIR soldier gave the store keys to Munana, who unlocked the camp’s weapons store.3492 Munana 3479 T. 27 October 2008, pp. 48-49 (ICS). 3480 T. 27 October 2008, p. 49 (ICS). 3481 T. 27 October 2008, p. 49 (ICS). 3482 T. 13 November 2008, p. 3. 3483 T. 13 November 2008, pp. 5-6. 3484 T. 13 November 2008, p. 6. 3485 T. 13 November 2008, pp. 7-8. 3486 T. 13 November 2008, pp. 23-24. 3487 T. 13 November 2008, p. 26. 3488 T. 10 July 2008, pp. 48-49. 3489 T. 10 July 2008, p. 49. 3490 T. 10 July 2008, pp. 49-50; T. 11 July 2008, p. 4. 3491 T. 10 July 2008, p. 50; T. 11 July 2008, pp. 4, 27. 3492 T. 10 July 2008, p. 50; T. 11 July 2008, pp. 8-9. 17 May 2011 413/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T told the soldiers to collect their weapons and go to their positions, and the witness and the other soldiers obeyed this order.3493 1831. Setabaruka testified that he spent the night of 6 April guarding his position in the southern part of Camp Kigali.3494 In the morning of 7 April, at around 9.00 a.m., he was at his position when he heard gunshots “here and there”. As Munana was not present and the witness was the most senior soldier in his platoon, he decided to collect information about the situation. He appointed another soldier in charge of the position and then went to the camp duty office, where he found the head of his platoon and officers Sebutiyongera and Kagango.3495 After a brief discussion lasting approximately ten minutes, the witness observed the crossbar at the entrance to Camp Kigali open and a white vehicle enter, head towards the General Staff area and park.3496 The witness confirmed that all entrances to Camp Kigali are guarded.3497 1832. Setabaruka observed that the door of the vehicle opened from the inside and a number of soldiers alighted from the vehicle.3498 The witness was standing in front of the guard post, about 40 metres away. He estimated there were at least 10 men in uniform. There were both white and black soldiers, and all were wearing military jackets and UN insignia

armbands.3499 The witness did not see any soldiers exit the vehicle wearing Rwandan Army uniform.3500 He believed that the bus was driven by a Rwandan soldier, but the driver of the vehicle did not get out the vehicle.3501 1833. Setabaruka testified that there were a number of Rwandan soldiers in the vicinity of the guard office when the vehicle arrived at the camp.3502 Armed members of the Huye Battalion formed the majority of the crowd, and there were also a number of wounded soldiers and members of the General Staff who did not have weapons.3503 The Rwandan soldiers were standing in front of the white soldiers when the witness heard someone say, “They are those who killed the President”, to which someone else replied, “Well, they should be shot.”3504 The witness was unable to identify the individuals who made these statements.3505 1834. The white soldiers then sat down and the wounded Rwandan soldiers began beating them with crutches, canes and stones.3506 Setabaruka did not hear anyone give orders to attack the white soldiers.3507 He recalled that Second Lieutenant Munana arrived just as the attack started, but Colonel Nubaha was not present.3508 The witness stated that he and his fellow 3493 T. 10 July 2008, p. 50; T. 11 July 2008, p. 8. 3494 T. 10 July 2008, p. 50; T. 11 July 2008, p. 9. 3495 T. 10 July 2008, p. 51; T. 11 July 2008, pp. 9-10. 3496 T. 10 July 2008, p. 51;

T. 11 July 2008, pp. 9, 11-12. 3497 T. 10 July 2008, p. 67; T. 10 July 2008, p. 67. 3498 T. 10 July 2008, p. 63; T. 11 July 2008, pp. 11-12. 3499 T. 11 July 2008, p. 11. 3500 T. 11 July 2008, p. 12. 3501 T. 11 July 2008, p. 12. 3502 T. 11 July 2008, p. 11. 3503 T. 11 July 2008, pp. 12-13. 3504 T. 10 July 2008, pp. 51-52. 3505 T. 10 July 2008, pp. 58-59. 3506 T. 10 July 2008, p. 52. 3507 T. 10 July 2008, p. 55. 3508 T. 11 July 2008, p. 15. 17 May 2011 414/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T officers, including Munana, tried to stop the attack but the soldiers refused to listen.3509 The senior warrant officer was hit on his back with a cane because he was trying to prevent the Rwandan soldiers from harming the white soldiers. Someone in the crowd of Rwandan soldiers stated, “Why are you preventing us from killing them, because they are those who killed our president?”3510 The witness described the attack by the Rwandan soldiers as a “collective action” with a “unanimous attitude”,3511 and he described the Rwandan soldiers as “mutineers”.3512 1835. Setabaruka stated that when they came under attack, some of the UN soldiers headed towards the Camp Kigali UNAMIR building, entered the building and closed the door while the Rwandan soldiers continued to attack. An estimated four or five white soldiers remained on the ground, but the witness could not tell whether these soldiers were dead or alive.3513 The witness testified that a corporal from General Staff, who worked in signals, went and opened the door of the UNAMIR building and invited the UN soldiers to come out. The witness then observed the black UN soldiers exit the building through a window.3514 Once out of the building, the black soldiers went into the ESM Camp via the road between the building and the guardroom.3515 The witness then

recalled the Rwandan corporal from General Staff at the door of the UNAMIR building inviting the white soldiers to come out. A few moments later, the witness heard the corporal shouting “I am dead. I am dead. Help.”3516 The witness did not know what happened to the corporal other than hearing him scream for help.3517 1836. The armed Rwandan soldiers began shooting at the UNAMIR building, and the white soldiers inside the building shot back. Realising that the white soldiers were armed, the Rwandan soldiers moved back. The witness overheard the Rwandan soldiers saying that those in the house had killed their colleague.3518 The Rwandan soldiers subsequently fired many bullets at the UNAMIR building.3519 At approximately 9.30 a.m., Colonel Ndahimana and Colonel Kanyandekwe arrived and tried to intervene, but the Rwandan soldiers continued firing on the UNAMIR building. Bullets passed above the heads of Ndahimana and Kanyandekwe, who were forced to flee.3520 The witness believed that he was also under attack and he therefore fled to his original position guarding the south side of Camp Kigali. He recalled hearing further gunshots on his journey back to his position and then hearing grenade explosions and gunshots until 12.00 noon.3521 Later on, at around 3.00 p.m., the witness received a visit from Sergeant Major Twajembere, who told him that all the white soldiers had been

killed.3522 3509 T. 10 July 2008, pp. 53-54; T. 11 July 2008, pp. 15, 19. 3510 T. 10 July 2008, pp. 51-52. 3511 T. 10 July 2008, p. 59. 3512 T. 11 July 2008, p. 26. 3513 T. 10 July 2008, p. 52. 3514 T. 10 July 2008, pp. 52, 65-66. The witness stated he was opposite the guard room at an estimated 15 metres away when the Rwandan soldier entered the UNAMIR building. 3515 T. 10 July 2008, p. 60. 3516 T. 10 July 2008, pp. 51-52. 3517 T. 10 July 2008, pp. 65-66. 3518 T. 10 July 2008, pp. 51-52. The witness did see any Rwandan soldier shooting through the window of the UNAMIR office. See T. 10 July 2008, p. 64; T. 10 July 2008, pp. 64-65. 3519 T. 10 July 2008, pp. 63-64. 3520 T. 10 July 2008, pp. 52-53, 62-63. 3521 T. 10 July 2008, pp. 52-53. 3522 T. 10 July 2008, pp. 52-53. 17 May 2011 415/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1837. Setabaruka testified that he did not see any armoured vehicles present with the crowd at Camp Kigali.3523 Although the witness knew most of the members of the RECCE Battalion by sight, he did not see any of them at the scene of the attack when the events took place.3524 The witness further testified that he knew Major Nzuwonemeye and Captain Sagahutu, but he did not see either individual at Camp Kigali in the morning of 7 April.3525 Witness CBAS 1838. Witness CBAS worked for the Rwandan Ministry of Defence in 1994.3526 He testified that at about 8.30 a.m. on 7 April 1994, he saw a number of white UNAMIR soldiers arrive at Camp Kigali.3527 Witness CBAS was told that Major Ntuyahaga, who was standing nearby, had brought the UNAMIR soldiers to Camp Kigali in a white minibus, and the witness saw the last two of the UNAMIR soldiers exit the bus.3528 The witness was not able to count the number of white UNAMIR soldiers, but he recalled that there were not less than five.3529 He also saw a number of dark-skinned UNAMIR soldiers at the camp, but he testified that “sometime later I didn't see them anymore.”3530 1839. Witness CBAS saw Ntuyahaga take one of the white UNAMIR soldiers into the UNAMIR office.3531 The witness heard rumours that this was the group’s leader and that he had shot down the

President’s plane.3532 The UNAMIR soldier that Ntuyahaga took into his office was armed with a pistol, but the rest of the UNAMIR soldiers did not have weapons.3533 1840. The witness testified that the Rwandan soldiers made the UNAMIR soldiers sit down, after which the Rwandan soldiers threw rocks at them and beat them with sticks.3534 Ntuyahaga asked the Rwandan soldiers to stop the attack, but they did not listen.3535 The Rwandan soldiers threatened Ntuyahaga so he left and walked towards the General Staff office, while the Rwandan soldiers continued the attack.3536 The witness testified that the Rwandan soldiers attacking the UNAMIR soldiers were mostly people who had been wounded in war, but some of them were healthy and active.3537 1841. When the witness was leaving Camp Kigali, he saw Corporal Ndangamyambi go into the office where Ntuyahaga had taken the UNAMIR soldier.3538 The UNAMIR soldier pulled Ndangamyambi by his uniform into the office and shot him with his pistol, possibly killing him. This made the Rwandan soldiers outside angry and they started firing their own 3523 T. 10 July 2008, p. 54. 3524 T. 10 July 2008, p. 55; T. 11 July 2008, p. 22. 3525 T. 10 July 2008, pp. 55, 68. 3526 T. 4 November 2008, p. 6 (ICS). 3527 T. 4 November 2008, p. 11. 3528 T. 4 November 2008, p. 14. 3529 T. 4 November 2008, p. 18. 3530 T. 4 November 2008, p. 15. 3531 T. 4 November 2008, pp. 14-15. 3532 T. 4 November 2008, p. 14. 3533 T. 4 November 2008, p. 18. 3534 T. 4 November 2008, p. 14. 3535 T. 4 November 2008, p. 14. 3536 T. 4 November 2008, pp. 14-15. 3537 T. 4 November 2008, p. 15. 3538 T. 4 November 2008, p. 16. 17 May 2011 416/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T weapons.3539 The witness then left but he noted that the situation was tense and he heard many shots fired.3540 1842. Witness CBAS further testified that when he arrived at Camp Kigali in the morning of 7 April, the Rwandan soldiers were armed because they had forced open the armoury and retrieved their weapons.3541 While he was there, the witness did not see Sagahutu at the entrance of Camp Kigali, nor did he see an armoured vehicle at that location.3542 The Accused Bizimungu 1843. Bizimungu testified that on 18 April 1994, having just taken over command of the Rwandan Army, he received a briefing from General Gatsinzi on the killing of the Belgian soldiers. Bizimungu stated that Gatsinzi did not go into any details, simply telling him that the Belgian soldiers had been murdered within Camp Kigali by mutineering soldiers. Gatsinzi also told Bizimungu that an investigation was underway in order to determine what had happened.3543 1844. Bizimungu testified that in the morning of 19 April, Gatsinzi showed him a number of documents including a letter he had written to some officers connected to the killings.3544 The letter was dated 9 April 1994 and was addressed to the commander of the AR base (the base of the Rwandan Army) and copied to the Minister of National Defence and to the commander of Camp Kigali

and the QG Company. The subject was “Assassination of Belgian soldiers of the UNAMIR”. The letter was signed by General Gatsinzi, Chief of Staff of the Rwandan Army. The document was “minuted” to G1 MEMAR, indicating that a copy of this document was found at the G1. The base commander to whom the letter was addressed was Lieutenant Colonel Nubaha, who had been the commander of Camp Kigali at the time of the events.3545 1845. Bizimungu recalled the Rwandan Army high command transferring Nubaha from the command of Camp Kigali to AR base between 8 and 9 April 1994.3546 Bizimungu testified that the Chief of Staff decided to transfer Nubaha because he had run into problems when the Belgians were killed at Camp Kigali. According to Bizimungu, the letter is important as it states: On the 7th of April, while you were commander of Kigali camp and the QG company, Belgian soldiers of the UNAMIR were savagely massacred in front of your office, and their dead bodies were not evacuated to the C CMSK.3547 In the afternoon, six other Belgian soldiers who had barricaded themselves up in some location within the Kigali camp were also killed by grenades. Please provide further details on this tragic incident which may tarnish our relations with the United Nations and with the Kingdom of Belgium.3548 3539 T. 4 November 2008, p. 16. 3540 T. 4 November 2008, p. 16. 3541 T. 4 November 2008, p. 15. 3542 T. 4 November 2008, pp. 16-17. 3543 T. 11 December 2007, pp. 46-47. 3544 T. 11 December 2007, p. 47; Defence Exhibit 234. 3545 T. 11 December 2007, p. 47. 3546 T. 11 December 2007, pp. 47-48. 3547 Bizimungu testified that C CMSK stood for the Kanombe hospital. See T. 11 December 2007, pp. 47-48. 3548 Defence Exhibit 234; T. 11 December 2007, pp. 47-48. 17 May 2011 417/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1846. Bizimungu testified that following the killings, Colonel Murasampongo at G1 began leading an investigation with a view to ascertaining what had happened. In addition, a second investigation was underway to enable the commander of Camp Kigali to give his version of events. Bizimungu explained that the command would have then taken measures to establish whether there had been any disciplinary shortcomings and, if so, it would have taken disciplinary measures.

1847. In addition, the G1 (in charge of administration) was tasked with organising a commission so that the killings could be analysed and so that the G1 could hear from Colonel Nubaha, independently of the explanation requested from him by the General Staff.3549 Bizimungu testified that the G1’s investigation commenced, but since he left Kigali and arrived in the Congo, the investigation never reached a conclusion.3550 Bizimungu added that once in the refugee camps in Zaire, Colonel Murasampongo attempted to fill in the gaps within the file.3551 Bizimungu stated that he does not contest the fact that Rwandan soldiers killed the blue berets.3552 The Accused Ndindiliyimana 1848. Ndindiliyimana testified that he attended a meeting at ESM from 10.00 a.m. until around 12.30 p.m. on 7 April 1994. At around 10.45 a.m., the commanding officer of Camp Kigali, Colonel Nubaha, entered the meeting room and had a brief discussion with Colonel Bagosora. Ndindiliyimana could hear their conversation. According to Ndindiliyimana, Nubaha stated, “Colonel this situation is tense at the Camp”, to which Bagosora replied, “Go and calm the situation. Immediately [after] the meeting is over I will come and see.” Nubaha then left while Bagosora continued the meeting.3553 General Dallaire subsequently entered the meeting room and sat next to Bagosora. Around 10 to 15 minutes later, they heard the sound

of gunfire lasting a couple of seconds, and everyone stood up to see what was happening. Ndindiliyimana saw an African blue helmet running in the direction of ESM. Those in charge of security at ESM went to see what was happening while the others continued their meeting.3554 1849. Later that day at 6.00 p.m., Ndindiliyimana held another meeting at ESM to appeal for assistance in order to defend the Gendarmerie.3555 Following the meeting, General Dallaire told Ndindiliyimana that he had not yet been able to locate his men at Camp Kigali. Ndindiliyimana called Colonel Murasampongo, the interim Chief of Staff, and asked him why Dallaire’s men had not been handed back to him. Murasampongo replied that they were at the mortuary.3556 Ndindiliyimana, Dallaire and other officers went to Kigali hospital, from where they were directed to the mortuary. Behind the clinic they saw the dead bodies of the Belgian blue berets. Ndindiliyimana told Dallaire to take his escort to return home while Ndindiliyimana organised for the bodies to be properly wrapped and laid out.3557 3549 T. 11 December 2007, p. 48. 3550 T. 11 December 2007, pp. 48-49. 3551 T. 11 December 2007, p. 49. 3552 T. 12 December 2007, p. 50. 3553 T. 17 June 2008, p. 36. 3554 T. 17 June 2008, pp. 35-36. 3555 T. 17 June 2008, p. 41. 3556 T. 17 June 2008, p. 42. 3557 T. 17 June 2008, pp. 42-43. 17 May 2011 418/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T The Accused Sagahutu 1850. Sagahutu testified that in the morning of 7 April 1994, he went home from his command post in town to eat breakfast at his apartment in Camp Kigali. After breakfast, at around 8.00 a.m., he returned to his command post with his men. He left after 1.00 p.m. to pick up his wife, who was an officer at the Army Staff Command, for lunch and then learned what had happened to the Belgian soldiers at Camp Kigali.3558 His wife told him that there had been sporadic shooting outside her office. He later learned the source of the shooting from KIBAT reports.3559 He claimed that his men were never present at the location where the Belgian blue berets were killed.3560 Sagahutu was in regular contact with the members of his squad who were located at the transport depot base but he was never told that these men were present at the scene of the Belgian peacekeepers’ murders.3561 1851. Sagahutu testified that based on the information circulating at the time, the Belgian soldiers were not killed because they came from Belgium; rather they were attacked by disabled soldiers who thought that they were responsible for President Habyarimana’s death.3562 He testified that his battalion had MGLs, but his squadron did not use that weapon.3563 1.6.4.2.3 Deliberations 1.6.4.2.3.1 Introduction 1852. Having considered the evidence in its totality, the Chamber is satisfied that in the morning of 7 April 1994, ten UNAMIR soldiers of Belgian nationality were murdered at Camp Kigali. The evidence before the Chamber supports the following chronology of events.

1853. Between 8.00 a.m. and 9.00 a.m. on 7 April, approximately 15 Belgian and Ghanaian UNAMIR soldiers present at the Prime Minister’s residence were disarmed, arrested and conveyed to Camp Kigali in a vehicle driven by Major Ntuyahaga, a Rwandan soldier.3564 At approximately 9.00 a.m., the vehicle was driven into Camp Kigali and parked close to the office used by the UNAMIR mission (the “UNAMIR building”), which is located near the entrance gate of the camp. A large number of Rwandan soldiers from different units within Camp Kigali, as well as injured and disabled soldiers, were present when the vehicle arrived.3565 3558 T. 1 December 2008, pp. 11-13. 3559 T. 1 December 2008, pp. 13-14; T. 3 December 2008, pp. 29-30. 3560 T. 1 December 2008, p. 15. 3561 T. 1 December 2008, p. 44; T. 3 December 2008, pp. 31-32. 3562 T. 1 December 2008, p. 46. 3563 T. 2 December 2008, pp. 19-20. 3564 T. 9 July 2008, p. 56; T. 9 July 2008, p. 59; T. 25 June 2008, pp. 37-38; T. 18 January 2006, p. 33. 3565 The identity of the soldiers involved is discussed below in further detail. 17 May 2011 419/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1854. Having disembarked, the UNAMIR soldiers were forced to sit on the floor and were then attacked by Rwandan soldiers using a variety of crude instruments including canes, rifle butts and rocks. From the evidence before the Chamber, it appears that the attack was triggered by the Rwandan soldiers’ belief, due to announcements made on the radio and rumours within Camp Kigali, that the Belgians were responsible for shooting down the President’s plane.3566 This attack led to the death of between six and eight Belgian soldiers.

1855. Between two and four Belgian soldiers together with five Ghanaian soldiers were able to retreat into the UNAMIR building. As the attack on that building unfolded, the Rwandan soldiers allowed the Ghanaian soldiers to leave the UNAMIR building and subsequently to leave the camp. This left only the Belgian soldiers under attack. In coming to this conclusion, the Chamber finds credible the evidence of Kwesi Doe and Zambulugu Sandow that Rwandan soldiers allowed Captain Apedo, a UNAMIR police officer, to take them away from the scene of the attack. The Chamber sees no reason for these Defence witnesses to lie to the Chamber about the manner in which they escaped from the attack at Camp Kigali. The Chamber further finds that the evidence of Defence Witness F5 confirmed the presence of Ghanaian soldiers. In light of this clear and consistent Defence evidence, the Chamber cannot believe the evidence of Prosecution Witness ANK/XAF that it was UNAMIR Bangladeshi troops who were allowed to leave the scene of the attack, particularly since Witness ANK/XAF admitted in cross-examination that he could not distinguish the skin colour of the Bangladeshis from those who come from countries in Africa.3567 1856. The evidence suggests that once in the UNAMIR building, the Belgian soldiers were able to obtain a weapon, which they then used to fire at the Rwandan soldiers in order to repel the

attack. This led to the death of at least one Rwandan soldier. Consequently, the Rwandan soldiers renewed and intensified their attack. It further appears from the evidence that a number of Rwandan Army officers unsuccessfully attempted to quell the crowd and dissuade the Rwandan soldiers from attacking the Belgians. In the end, Rwandan soldiers used a combination of weaponry to kill the remaining Belgian soldiers in the UNAMIR building. This brought the total number of dead Belgian soldiers to 10—in other words, the entire group that had been sent to the Prime Minister’s residence early in the morning of 7 April and subsequently brought to Camp Kigali in the minibus driven by Major Ntuyahaga.

1857. The Chamber will now consider whether RECCE Battalion soldiers participated in the attack on the Belgian soldiers and, if so, whether Nzuwonemeye and/or Sagahutu played any role in that crime. 1.6.4.2.3.2 Participation of RECCE Battalion Soldiers in the Attack 3566 See, e.g., T. 17 January 2008, p.

50. The evidence of Defence Witness Luc Marchal that at around 6.00 a.m. on 7 April 1994, he was informed that Rwandan radio had announced that the Belgians were responsible for shooting down the President’s plane,. Similarly, Prosecution Witnesses ANK/XAF and ALN both testified that the Belgian soldiers were attacked because of a rumour that they were involved in the downing of the President’s plane. More generally, the evidence of Defence Witnesses Doe and Sandow that they were allowed to leave during the attack lends credibility to the suggestion that the UNAMIR soldiers were targeted not for being part of the United Nations mission but rather because they were Belgian. 3567 T. 2 September 2005, pp. 31, 45. 17 May 2011 420/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1858. There is no dispute that RECCE Battalion soldiers were present at the scene of the killings at various times during the morning of 7 April.3568 The Chamber is not satisfied, however, that the mere presence of RECCE Battalion soldiers is enough to indicate their participation in the attack against the Belgian UNAMIR soldiers.

1859. The Chamber recalls that Prosecution Witness DCK explicitly linked at least two RECCE Battalion soldiers with the attack. First, Witness DCK testified that he saw a soldier, who he was later told came from the RECCE Battalion, bring out a MGL and fire six grenades into the UNAMIR building into which the Belgians had retreated.3569 The Chamber notes that the identification of the unnamed soldier as a RECCE soldier was not made by Witness DCK but by an unidentified person. Given that this constitutes hearsay evidence and that the identification was made in an atmosphere of violence and insecurity, the Chamber considers this evidence with caution. That said, the Chamber notes that Witness DCK’s evidence regarding the RECCE soldier and the use of an MGL is corroborated by the evidence of Prosecution Witnesses AWC and ANK/XAF, who both testified that an MGL was taken from the RECCE Battalion although they name different people as the source of that weapon.3570 1860. Second, Witness DCK identified another RECCE soldier, Corporal Nzeyimana, whom the witness claims to have known quite well as Sagahutu’s driver. According to Witness DCK, Nzeyimana went and looked into the UNAMIR building and stated to the attacking Rwandan soldiers, “[I]t’s over”, which confirmed that the last Belgian soldier in the building had died.3571 The Chamber observes that there is no doubt about Nzeyimana’s membership of the RECCE Battalion in 1994 and his position as Sagahutu’s driver. Indeed, Sagahutu himself admitted these facts when he testified before the Chamber. This lends credence to Witness DCK’s identification of Corporal Nzeyimana as a member of RECCE battalion and Sagahutu’s driver.

1861. Witness DCK’s evidence regarding Nzeyimana’s role and the use of the MGL by another RECCE soldier is also consistent with Witness AWC’s testimony that it was Nzeyimana and Corporal Masonga, another RECCE soldier, who took an MGL from Sagahutu’s office in order to kill the Belgian soldiers who were reportedly putting up resistance at the entrance of Camp Kigali. Considering Witness AWC’s functions in 1994, the Chamber finds that he was very well situated to know the identity of Nzeyimana and Masonga.3572 While Witness AWC’s account regarding the role of Nzeyimana and Masonga in the death of the remaining Belgian soldiers differs slightly from Witness DCK’s explanation, both witnesses are consistent that these two RECCE Battalion soldiers used the MGL to fire at the Belgians and that Nzeyimana then climbed over a wall either to inflict the final deadly blow (according to Witness AWC) or to confirm that the last Belgian soldier had been killed (according to Witness DCK). The Chamber is less concerned about the minute details of how the Belgian soldiers were killed than about the role and identity of the persons who were responsible for that unlawful act. Therefore, the Chamber finds that the slight 3568 T. 18 January 2006, p. 33; T. 20 January 2006, p. 3; T. 11 January 2005, pp. 38-39; T. 23 January 2006, p. 39; T. 24 January 2006, p. 46; T. 2 September 2005, p. 5; T. 29 September 2004, p. 47; T. 9 March 2005, p. 8. 3569 T. 9 March 2005, p. 9. 3570 The evidence of Witnesses AWC and ANK/XAF regarding the source of the MGL is discussed in more detail below. 3571 T. 9 March 2005, p. 9; T. 9 March 2005, p. 10. 3572 For reasons relating to witness protection, the Chamber will not refer explicitly to the function that Witness AWC performed in 1994. 17 May 2011 421/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T difference in the evidence of Witnesses DCK and AWC does not detract from the fact that they both testified to the direct participation of at least two RECCE Battalion soldiers in the attack on the Belgian UNAMIR soldiers.

1862. Having found that the Prosecution evidence shows that at least two RECCE Battalion soldiers actively participated in the attack on the Belgian soldiers at Camp Kigali, the Chamber will now consider whether the Defence evidence raises any doubt about the participation of those soldiers.

1863. A number of Defence witnesses testified that disabled and war-wounded Rwandan soldiers from the General Staff Company were responsible for the attack on the Belgian soldiers.3573 The Defence evidence was also directed at showing that the RECCE Battalion did not have MGLs in its arsenal,3574 that many senior Rwandan Army officers including the camp commander Colonel Nuhaba unsuccessfully attempted to stop the attack on the Belgians,3575 and finally that neither Nzuwonemeye nor Sagahutu was present during the attack.3576 1864. Having carefully reviewed the evidence outlined above, the Chamber considers that the attack on the Belgian soldiers effectively took place in two phases. The first phase was the attack on the whole UNAMIR group using a variety of crude instruments including canes, rifle butts and rocks.3577 The Chamber is satisfied that this initial attack was launched by Rwandan soldiers from several units within Camp Kigali. Prominent among these attackers was a group of war-wounded soldiers from the General Staff Company. As a result of this initial attack, at least six Belgian soldiers were killed while between two and four Belgian soldiers, despite suffering injuries, managed to retreat into the UNAMIR building along with five Ghanaian soldiers.

1865. The attack then moved into a second phase, during which the Ghanaians were allowed to leave while Rwandan soldiers began lobbing grenades and firing small arms onto the UNAMIR building in which the Belgians were sheltering. The Chamber believes that this second phase of the attack could not have been perpetrated exclusively by war-wounded soldiers. Rather, at this stage, many healthy and active Rwandan soldiers became involved. The Chamber therefore finds that the Defence evidence regarding the role of the wounded soldiers does not cast doubt on the Prosecution evidence regarding the involvement of RECCE Battalion soldiers as well as other unidentified active soldiers from various units within Camp Kigali.

1866. With respect to the weapons used during the second phase of the attack, the Chamber has considered the expert opinion of Prosecution Witness Kubic, based on his examination of the scene of the attack and pictures of the UNAMIR building, that hand-held grenades were used to attack the inside of the building whereas launched grenades such as those used in MGLs were the likely cause of some of the damage to the outside of the building. The Chamber accepts Kubic’s expert opinion, which is consistent with the evidence of 3573 See in particular Defence Witnesses F5, D1, Y1, B1/BB13/CBP7, UDS, Setabaruka, CBAS and the Accused Nzuwonemeye and Sagahutu. 3574 See the evidence of Defence Witnesses F8, F10, CSS, UDS, Habimana, Nzuwonemeye. Cf. the Accused Sagahutu testified that RECCE had MGLs, but not Squadron A, which he commanded. 3575 See evidence of Defence Witnesses F5, D1, Luc Marchal, DE8-10/F9, Y1, SGD and Nzuwonemeye. 3576 See the evidence of Defence Witnesses D1, SGD, Nzuwonemeye and Sagahutu. 3577 Defence Exhibit 517. 17 May 2011 422/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution Witnesses AWC, DCK and DA regarding the presence of an MGL at the scene of the attack. The evidence of expert Kubic is also consistent with the autopsy reports on the Belgian soldiers, which found that six of the Belgian soldiers appeared to have succumbed to injuries as a result of beatings while the remaining four soldiers died as a result of probable grenade explosions.3578 1867. Furthermore, Kubic’s conclusion that the damage to the UNAMIR building was caused by small arms fire, likely from AK-47 type ammunition, 30 calibre or 7.62 millimetre guns and MGLs, is consistent with the Chamber’s own observations during the site visit. The Chamber observed that the UNAMIR building is located close to the entrance gate of Camp Kigali. Visible on the exterior wall of the building are multiple large and small bullet holes, which appeared to have been inflicted by automatic small arms fire and possibly grenades. The Chamber also observed that the interior wall of one of the rooms shows several small bullet holes which appeared to have been caused by the explosive impact of small projectiles. Finally, the Chamber observed that a new roof seemed to have been constructed for the building and, upon inquiry, was informed by attendants at the Belgian memorial that the Kingdom of Belgium had financed the construction of the new roof after the former one was destroyed in 1994. The construction of a new roof is also supported by the expert evidence of Witness Kubic.

1868. Based on the evidence of Kubic, Prosecution Witnesses AWC, ANK/XAF and DCK, as well as the autopsy reports and the Chamber’s own observations during the site visit, the Chamber is satisfied that one of the weapons used during the second phase of the attack on the Belgian soldiers was an MGL. The Chamber finds that Kubic’s evidence and its own observations rule out the possibility that either a rocket launcher or armoured vehicle was used to fire at the Belgians holed up in the UNAMIR building, as testified by Witness ALN. The Chamber will therefore not rely on this aspect of Witness ALN’s evidence.

1869. With respect to the source of the MGL, Prosecution Witnesses AWC and ANK/XAF both testified that an MGL was taken from the RECCE Battalion, but they name different people as the source of that weapon. Witness AWC stated that the MGL was taken from Sagahutu’s office by RECCE Corporals Nzeyimana and Masonga,3579 whereas ANK/XAF testified that the MGL was taken from Nzuwonemeye’s office by two soldiers of RECCE Squadron C, who then left together with Major Ntuyahaga in the direction of the Camp Kigali entrance.3580 Therefore both Witnesses AWC and ANK/XAF are consistent that the weapon came from the highest echelons of the RECCE Battalion, but they are inconsistent as to the precise source of that weapon. The Chamber will consider the inconsistencies between the evidence of these two witnesses below in assessing the responsibility of Nzuwonemeye and Sagahutu.

1870. The Chamber recalls that while Nzuwonemeye and the majority of Defence witnesses denied that MGLs were part of the RECCE Battalion’s arsenal, Prosecution Witness AWC testified that the Battalion did indeed have such a weapon in 1994. Sagahutu also testified that the RECCE Battalion did have MGLs in its arsenal, but he denied that Squadron A, which he commanded, had such weapons. Based on the evidence of Prosecution Witness AWC and Sagahutu, the Chamber is satisfied that the RECCE Battalion had MGLs in its 3578 Defence Exhibit 517. 3579 T. 18 January 2006, p. 34; T. 20 January 2006, pp. 3-5. 3580 T. 1 September 2005, pp. 10-11. 17 May 2011 423/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T arsenal. The availability of this weapon within the RECCE Battalion lends credence to the claim by Prosecution witnesses that RECCE Battalion soldiers used an MGL during the attack against Belgian soldiers at Camp Kigali. Sagahutu’s denial that Squadron A had MGLs does not discredit the corroborated evidence of Prosecution Witnesses AWC and ANK/XAF that such a weapon was collected from the RECCE Battalion and used during the attack on the Belgian soldiers. Accordingly, the Defence evidence denying the existence of MGLs within the RECCE Battalion fails to raise a reasonable doubt with regard to the Prosecution evidence.

1871. Having considered the totality of the Prosecution and Defence evidence, the Chamber is satisfied that one of the weapons used during the attack on the Belgian soldiers was an MGL and that this weapon came from a RECCE office at Camp Kigali. The Chamber will now consider the question of whether Nzuwonemeye and Sagahutu played any role in the attack or whether they had any knowledge of the attack upon which they should have acted. 1.6.4.2.3.3 Superior Responsibility of Nzuwonemeye and Sagahutu 1872. The Chamber will now consider whether Nzuwonemeye and Sagahutu knew or had reason to know that their subordinates had committed or were about to commit these crimes. The Chamber will consider the full contours of their superior responsibility in the legal findings section of the Judgement.

1873. The Chamber notes that none of the witnesses testified that they received orders from either Nzuwonemeye or Sagahutu to participate in the killings. However, three Prosecution witnesses provided testimony that potentially links the Accused with the attack: Witnesses AWC, ANK/XAF and ALN.

1874. Prosecution Witness ALN is the only witness who testified to the presence of both Accused at the scene of the attack. However, for the reasons given below, the Chamber does not believe the evidence of Witness ALN on this point. The Chamber is equally unconvinced about Witness ALN’s uncorroborated evidence that while at the scene of the attack, Nzuwonemeye ordered Sagahutu to bring an armoured vehicle to be used to fire on the Belgians inside the UNAMIR building. This evidence is even less credible considering that Prosecution Witnesses AWC, DA, DY and ANK/XAF, who were all RECCE Battalion soldiers and could easily identify Nzuwonemeye and Sagahutu, did not testify to seeing them at that location. The same considerations go to discredit Witness ALN’s uncorroborated evidence regarding an alleged order from Colonel Nubaha to use a rocket launcher after the armoured vehicle had fired onto the UNAMIR building. The fact that Defence Witness Umulisa testified that Witness ALN was with her at another location for most of the day on 7 April, while coming from a self-interested witness, adds to the Chamber’s doubts about Witness ALN’s evidence. Finally, the expert evidence of expert Kubic regarding the unlikelihood of an armoured vehicle being used to fire onto the UNAMIR building from a distance of ten metres further reinforces the Chamber’s concerns. In sum, the Chamber finds that the aspects of Witness ALN’s evidence regarding the armoured vehicle, the rocket launcher, and the presence of Nzuwonemeye and Sagahutu at the scene of the attack on the Belgians are not credible.

1875. Contrary to Witness ALN’s evidence, the Chamber is satisfied from the evidence of various Prosecution and Defence witnesses that Nzuwonemeye left Camp Kigali for a meeting at ESM at about 9.30 a.m. and returned to the camp after 12.00 noon on 7 April. The 17 May 2011 424/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Chamber has not heard any convincing Prosecution evidence that Sagahutu was present at the entrance of Camp Kigali when the Belgians were brought in or during the course of the attack on them. However, as discussed below, Witness AWC testified that Sagahutu was present in his office within the RECCE Headquarters at some point during the attack.

1876. The Chamber will now consider the evidence linking the Accused to the MGL that was used in the attack against the Belgian soldiers. While the Chamber recalls its finding that the MGL came from a RECCE office at Camp Kigali, it also notes the inconsistencies between the evidence of Prosecution Witnesses ANK/XAF and AWC in regard to the exact provenance of the MGL. Witness ANK/XAF testified that he saw two RECCE Squadron C soldiers take the MGL from Nzuwonemeye’s office, whereas Witness AWC testified that he saw Corporal Nzeyimana, a member of RECCE Squadron A, and Corporal Masonga, who worked at the RECCE secretariat, take the MGL from Sagahutu’s office. Witness AWC also testified to hearing Nzeyimana expressly inform Sagahutu of the attack on the Belgian soldiers, to which Sagahutu replied that the Belgian soldiers who were resisting must be killed. Finally, Witness AWC stated that Masonga informed him later in the afternoon of 7 April that they had “completed their mission”, which was to kill all the Belgian soldiers.

1877. The Chamber is therefore presented with testimony from two witnesses who remain consistent on the provision of an MGL and the fact that it came from the RECCE Battalion, but inconsistent on the precise source of that weapon. The Chamber has carefully considered the evidence of Witnesses AWC and ANK/XAF, and it finds the evidence of AWC to be more credible for the following reasons.

1878. First, the timing of events put forward by Witness AWC is consistent with the totality of the evidence. Witness AWC stated that the initial conversation between Nzeyimana, Masonga and Sagahutu took place in the morning and that Nzeyimana then left with the MGL around 11.00 a.m. This timing is consistent with the Chamber’s finding that the attack on the Belgians took place approximately between 9.00 a.m. and 12.30 p.m. In contrast, Witness ANK/XAF places the incident at around 4.00 p.m., which is inconsistent with the evidence of most other witnesses who testified about this issue.

1879. Second, the Chamber finds that the identification evidence provided by Witness AWC is more convincing than that provided by Witness ANK/XAF. The Chamber notes that Witness AWC identified by name both Sagahutu and the two RECCE Battalion soldiers, Corporals Masonga and Nzeyimana, who reported the attack to Sagahutu and who then took away the MGLs. This stands in contrast to Witness ANK/XAF, who stated that two unnamed RECCE Squadron C soldiers took away the MGL shortly after he saw Nzuwonemeye speaking to Major Ntuyahaga. The Chamber also notes the proximity of Witness AWC’s office to that of Sagahutu, placing him in a good position to see and hear the events.3581 Witness ANK/XAF’s identification of Nzuwonemeye, Ntuyahaga and the alleged two soldiers from Squadron C took place from his position in the Transport Depot, which was further away than Witness AWC’s position when he identified Sagahutu. The Chamber also notes that, at the time of the incident, Witness AWC held a position within the RECCE Battalion that enabled him to interact closely with the senior RECCE commanders and 3581 T. 18 January 2006, p.

34. Witness AWC testified, “My office and Sagahutu’s were located very close to each other. … As soon as I saw the RECCE battalion troops rushing over, I went and stood on the threshold of the door because my office door was opposite that of the RECCE battalion. Between us, there was a distance of about eight or nine metres, … So I was standing by my office door, I could see them and hear what they were saying.” 17 May 2011 425/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T soldiers, and he testified that he knew Masonga well. Although as a RECCE soldier Witness ANK/XAF was also expected to know Nzuwonemeye quite well, the reliability of his identification is undermined by the greater distance between the two men, the circumstances that prevailed at the camp at the time and the fact that Witness ANK/XAF did not name the Squadron C soldiers who allegedly took away the MGL. The Chamber therefore finds the identification by Witness AWC of Sagahutu and Corporals Masonga and Nzeyimana to be the more credible.

1880. Finally, the Chamber considers the evidence of Witness AWC to be more credible than the evidence of Witness ANK/XAF due to the corroboration provided by Prosecution Witness DCK regarding the presence of Corporal Nzeyimana at the scene of the attack. The Chamber considers that Witness DCK’s evidence corroborates the evidence of Witness AWC that Corporal Nzeyimana was actively involved in the attack on the Belgian soldiers. Sagahutu confirmed that Nzeyimana was his driver and therefore would have ordinarily been under his direct command at the time.

1881. The Chamber has considered the testimony of Witness DA that it was a soldier from the Huye Battalion who was carrying an MGL when he arrived at the scene.3582 The Chamber finds that this is not a material inconsistency. Witness DA was clear in his evidence that he was not present when the MGL was fired during the attack and he was not able to identify the Huye Battalion soldier he claimed he saw with the MGL. In the view of the Chamber, the fact the Witness DA saw this weapon with an unnamed Huye Battalion soldier does not detract from Witness AWC’s clear evidence that two identified RECCE Battalion soldiers who were personally well known to him took that weapon to the scene of the attack on the Belgians.

1882. The Chamber has also considered the Defence submission that Sagahutu would not have kept an MGL in his office because there was a weapons store at Camp Kigali. The Chamber has heard evidence from several witnesses that after the President’s plane crashed the previous evening, the weapons stores within Camp Kigali were opened and the soldiers were issued with weapons in order to defend the camp and other operational areas in Kigali. In this context, the Chamber accepts that Sagahutu or another member of the RECCE Battalion could have obtained an MGL. Indeed, the prevailing security situation required soldiers within the camp to have convenient access to their weapons. Therefore it is plausible, in the Chamber’s view, that an MGL or other type of weapon may have been found within the offices of Squadron A.

1883. The Chamber finds incredible Sagahutu’s explanation that on 7 April he not only went home to eat breakfast and lunch, but only learned of the death of the Belgians after 1.00 p.m. when he went to pick up his wife from her workplace at the Army Staff command. The seemingly routine activities described by Sagahutu contrast sharply with the momentous and horrific events that took place at Camp Kigali on 7 April 1994.

1884. For the above reasons, the Chamber finds Witness AWC’s evidence to be credible and discounts the majority of Witness ANK/XAF’s evidence. The Chamber therefore finds that RECCE Corporals Nzeyimana and Masonga participated in the attack on the Belgian soldiers and that Sagahutu issued orders to Nzeyimana to counter any Belgian resistance and to kill those putting up such resistance. The Chamber further finds that Sagahutu either provided or 3582 T. 11 January 2005, pp. 71-72. 17 May 2011 426/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T knew that Nzeyimana took an MGL from his office to the scene of the attack on the UNAMIR building.3583 1885. Finally, the Chamber has considered the evidence of several witnesses that officers of the Rwandan Army, including the Camp Kigali commander Colonel Nubaha, unsuccessfully tried to stop the attack on the Belgians. A number of witnesses also testified that the environment at the camp was chaotic and that the Rwandan soldiers who were attacking the Belgians appeared to be in mutiny.3584 Prosecution Witness Dallaire and Defence Witness Marchal both agreed, based on the information that they received after the incident, that the killers of the Belgian soldiers were “crazed Rwandan Army rogue elements” who may have been in mutiny.3585 The Chamber believes that the environment at Camp Kigali was chaotic and that Nubaha and other senior officers attempted to dissuade the Rwandan soldiers from attacking the Belgians. However, Sagahutu was not among the officers who tried to stop the attack. In the Chamber’s view, the efforts by Nubaha and his colleagues to stop the attack do not detract from the Prosecution evidence that Sagahutu supplied the MGL or gave approval for it to be used in the attack on the Belgian soldiers who were in the UNAMIR building.

1886. It follows that the Prosecution has proved beyond reasonable doubt that RECCE Battalion soldiers participated in the attack and killing of at least two Belgian soldiers at Camp Kigali on 7 April 1994 and that Sagahutu provided those RECCE Battalion soldiers with a weapon or consented to them taking a weapon from his office for that purpose.

1887. With regard to Nzuwonemeye, the Chamber notes that it has no evidence before it of his direct participation in the attack. Nzuwonemeye admitted that he learned about the killings of the Belgian soldiers on his return to Camp Kigali from the meeting at ESM on 7 April. However, he denied that RECCE Battalion soldiers were involved in those killings.

1888. Having carefully reviewed the evidence before it, the Chamber finds that Nzuwonemeye had reason to know of the involvement of RECCE Battalion soldiers in the attack. In reaching this finding, the Chamber has considered, among other factors, the short distance between Nzuwonemeye’s office and the location in Camp Kigali where the Belgian soldiers were killed; the fact that the attack involved soldiers from various units based at Camp Kigali; Nzuwonemeye’s presence at the camp for at least two hours during the attack; the use of an MGL from the RECCE Battalion’s arsenal in the attack; and the normal command, control and reporting structures within the RECCE Battalion. The Chamber recalls Nzuwonemeye’s testimony that he asked officers if any RECCE Battalion soldiers had been involved and received a negative response.3586 In light of the active involvement of RECCE Battalion soldiers in the attack against the Belgians, the Chamber considers Nzuwonemeye’s explanation to be unlikely. Even if the Chamber were to believe this explanation, it does not consider that Nzuwomeye’s actions constitute a sufficient enough investigation to absolve him of his obligation to investigate the matter and punish those perpetrators under his command. The Chamber therefore finds that Nzuwonemeye failed in his duty to punish the crimes committed by RECCE Battalion soldiers under his command. 3583 T. 20 January 2006, pp. 3-5; T. 19 January 2006, p. 1; T. 18 January 2006, p. 34. 3584 T. 20 January 2006, p. 2; T. 25 June 2008, p. 38; T. 11 July 2008, p. 26; T. 6 October 2008, p. 62; T. 11 December 2007, pp. 46-47. 3585 T. 18 January 2008, pp. 50-51; 22 November 2006, p. 23; Defence Exhibit 327. 3586 T. 6 October 2008, p. 64. 17 May 2011 427/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.7 Extermination as a Crime Against Humanity 1889. Count 5 of the Indictment charges Bizimungu and Ndindiliyimana with extermination as a crime against humanity pursuant to Article 3(b) of the Statute. In support of this charge, the Prosecution relies upon the same underlying conduct and evidence that it led in relation to allegations of genocide and murder as a crime against humanity pleaded in paragraphs 73, 82, 84, 85, 89, 90 and 102 of the Indictment. 3587 The Indictment therefore charges Bizimungu and Ndindiliyimana cumulatively for genocide, murder as a crime against humanity and extermination as a crime against humanity.

1890. The Chamber has set out the law applicable to cumulative convictions in the legal findings section of the Judgement. It suffices to say that it is permissible to hold an accused criminally responsible for multiple crimes based on the same underlying conduct only where each crime may be distinguished by a materially distinct element. In this instance, cumulative convictions may be entered for the crimes of genocide and extermination. The same is not true for murder as a crime against humanity and extermination as a crime against humanity.

1891. The Chamber notes that of all the factual allegations that underpin the charge of extermination as a crime against humanity proffered against the Accused, only three allegations have been proved beyond reasonable doubt in relation to either the crime of genocide or the crime of murder as a crime against humanity. These are the killings at Kansi Parish;3588 the killings at the Josephite Brothers compound in Kigali;3589 and the killings in Butare.3590 1892. The Chamber will not repeat its factual findings at this point. The Chamber will consider whether its factual findings, and the evidence underlying those findings, also give rise to convictions for extermination as a crime against humanity in the legal findings section of the Judgement. 1.8 Rape as a Crime against Humanity 1893. Count 6 of the Indictment charges Bizimungu, Nzuwonemeye and Sagahutu with rape as a crime against humanity pursuant to Article 3(g) of the Statute. In support of the allegations of rape as a crime against humanity set out in paragraphs 111 to 117 of the Indictment, the Prosecution relies upon the same underlying conduct and evidence that it led in relation to the allegations of genocide (and complicity in genocide in the alternative) and murder as a crime against humanity.

1894. The Chamber notes that the allegations against Bizimungu of rape as a crime against humanity in Butare3591 and Cyangugu3592 are closely related to the allegations of murder as a crime against humanity at those locations.3593 Accordingly, the Chamber considered the allegations of rape in Butare and Cyangugu in conjunction with the corresponding allegations 3587 Indictment, para. 109. 3588 Indictment, para. 73. 3589 Indictment, para. 85. 3590 Indictment, para. 89. 3591 Indictment, para. 116. 3592 Indictment, para. 117. 3593 Indictment, paras. 89 and 91. 17 May 2011 428/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T of murder in its factual findings for murder as a crime against humanity.3594 As set out in that section, the Chamber has found that the allegations of rapes at the préfecture office and EER in Butare and the allegations of rapes at Cyangugu Stadium have been proved beyond reasonable doubt against Bizimungu.

1895. In its factual findings for genocide, the Chamber set out in detail the evidence that underlies the allegations against Bizimungu of rapes committed at CHK in Kigali,3595 ESI/Kabgayi Primary School,3596 Musambira commune office and dispensary,3597 and TRAFIPRO3598 in Gitarama. The Chamber will not repeat that evidence at this point. The Chamber found that the allegations of rapes at ESI/Kabgayi Primary School, the Musambira commune office and dispensary, and TRAFIPRO have been proved beyond reasonable doubt in relation to the charges of genocide against Bizimungu.

1896. The Chamber notes that paragraph 112 of the Indictment alleges that Bizimungu, Nzuwonemeye and Sagahutu are responsible as superiors for rapes committed by soldiers of the RECCE Battalion against Tutsi women at CHK. In its factual findings for genocide, the Chamber found that the Prosecution had not presented sufficient evidence to prove that soldiers of the Rwandan Army committed rapes against Tutsi women at CHK. It follows from this finding that the allegation of rape as a crime against humanity in paragraph 112 of the Indictment has not been proved beyond reasonable doubt against Bizimungu, Nzuwonemeye and Sagahutu.

1897. The Chamber also considered, in its factual findings for genocide, the allegation of rapes at the Kicukiro conseiller’s office. The Chamber found that the Prosecution presented no evidence to support this allegation.3599 1898. Therefore, the Chamber finds that the Prosecution has proved beyond reasonable doubt the allegations against Bizimungu of rape as a crime against humanity at ESI/Kabgayi Primary School, Musambira commune office and dispensary, and TRAFIPRO in Gitarama, at the préfecture office and EER in Butare, and at Cyangugu Stadium. The Chamber will analyse Bizimungu’s superior responsibility for these crimes in detail in the legal findings section of the Judgement. 1.9 Murder as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II 1.9.1 Introduction 1899. Count 7 of the Indictment charges Bizimungu and Ndindiliyimana with murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(a) of the Statute. In support of this charge, the Prosecution relies upon the same underlying conduct and evidence that it led in relation to the allegations of genocide and murder as a crime against humanity. 3594 See the factual findings for murder as a crime against humanity. 3595 Indictment, para. 112. 3596 Indictment, para. 113. 3597 Indictment, para. 114. 3598 Indictment, para. 115. 3599 Indictment, para. 111. 17 May 2011 429/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1900. The specific incidents that underlie this charge are pleaded in paragraphs 66, 76, 77, 86-88, 90 and 102-108 of the Indictment.3600 The Chamber has already set out the evidence adduced by the parties relating to these incidents in its factual findings for genocide and murder as a crime against humanity. It will not repeat that evidence at this point. 1.9.2 Allegations Considered in the Chamber’s Factual Findings for Genocide and Crimes Against Humanity 1901. In its factual findings for genocide and murder as a crime against humanity, the Chamber found Bizimungu responsible pursuant to Article 6(3) of the Statute for the killings at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama during April and May 1994.3601 The Chamber also found Ndindiliyimana responsible pursuant to Article 6(3) for the killings of Tutsi civilians by gendarmes at St. André College on 13 April 1994.3602 1902. In its factual findings for murder as a crime against humanity, the Chamber found Nzuwonemeye and Sagahutu responsible pursuant to Article 6(1) for ordering and aiding and abetting the killing of Prime Minister Agathe Uwilingiyimana on 7 April 1994.3603 The Chamber also found both Accused criminally responsible as superiors pursuant to Article 6(3) for the role of their subordinates in this crime.

1903. In regard to the allegation against Nzuwonemeye and Sagahutu pleaded in paragraph 105 of the Indictment, which relates to the killings of the Belgian UNAMIR soldiers on 7 April 1994, the Chamber found both Accused responsible as superiors pursuant to Article 6(3) of the Statute for the role of their subordinates in this crime. 1.9.3 Responsibility of Nzuwonemeye and Sagahutu under Article 6(1) for the Killings of the Belgian Soldiers 1904. The Chamber notes that Count 7 of the Indictment (murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II) alleges that Nzuwonemeye and Sagahutu are responsible for the killings of the Belgian soldiers under both Article 6(1) and Article 6(3) of the Statute.3604 In line with the Indictment, the Chamber will now consider whether the two Accused can be held responsible under Article 6(1) for the killings of the Belgian soldiers under Count 7 of the Indictment (murder as a violation of Article 3 common to the Geneva Conventions and Additional Protocol II).

1905. The Chamber has found that on 7 April 1994, soldiers from the RECCE Battalion under the command of Nzuwonemeye and Sagahutu participated in the attack on the Belgian UNAMIR soldiers at Camp Kigali. This attack eventually led to the death of the Belgian soldiers. The Chamber has not heard any evidence of Nzuwonemeye’s direct involvement in the attack on the Belgians either by issuing orders or instructions or by providing assistance or encouragement to the direct perpetrators of the attack. The Chamber therefore concludes that there is no basis for holding Nzuwonemeye responsible under Article 6(1) in respect to this crime. 3600 Indictment, para. 118. 3601 Indictment, paras. 68-70, 86-88. 3602 Indictment, para. 76. 3603 Indictment, paras. 103-104, 105-108. 3604 Indictment, para. 118. 17 May 2011 430/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1906. With respect to Sagahutu, the Chamber has found that on 7 April, while at the RECCE Headquarters at Camp Kigali, Corporals Nizeyimana and Masonga reported to Sagahutu that there was an ongoing attack against Belgian soldiers near the entrance gate to Camp Kigali and that those soldiers were resisting the attack. In response, Sagahutu instructed them to put down the resistance, and in his presence these two soldiers took a MGL from his office in order to participate in the attack in which the Belgian soldiers were killed. The Chamber therefore finds that Sagahutu ordered the attack on the Belgians and aided and abetted the direct perpetrators of the crime. 1.10 Rape as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II 1907. Count 8 of the Indictment charges Bizimungu, Nzuwonemeye and Sagahutu with rape as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(e) of the Statute. In support of this charge, the Prosecution relies upon the same underlying conduct and evidence that it led in relation to the allegations of genocide and rape as a crime against humanity.

1908. The specific incidents that underlie this charge are pleaded in paragraphs 111 to 117 of the Indictment.3605 The Chamber has already set out the evidence relating to these incidents in its factual findings for genocide and rape as a crime against humanity, and it will not repeat that evidence at this point. In the legal findings section of the Judgement, the Chamber will analyse whether this evidence supports the charges of rape as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II, in addition to the charges of genocide and rape as a crime against humanity as alleged by the Prosecution. 3605 Indictment, para. 119. 17 May 2011 431/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER V: LEGAL FINDINGS 1909. The Prosecution has charged Bizimungu, Ndindiliyimana, Sagahutu and Nzuwonemeye with conspiracy to commit genocide, genocide, complicity in genocide, crimes against humanity (murder, extermination and rape) and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II (murder and rape, humiliating and degrading treatment). The Indictment includes both charges of direct responsibility under Article 6(1) and charges of superior responsibility under Article 6(3) of the Statute. 1.11 Legal Principles 1.11.1 Direct Responsibility Under Article 6(1) 1910. Article 6(1) of the Statute provides that a person who plans, instigates, orders, commits or otherwise aids and abets in the planning, preparation or execution of a crime referred to in Articles 2 to 4 shall be individually responsible. In the present case, the Chamber considers that only ordering, committing, and aiding and abetting are relevant to the crimes under review. The Chamber will now consider each of these forms of participation before determining which form of participation best reflects the conduct of the Accused in question. 1911. “Ordering” requires that a person in a position of authority instruct another to commit an offence. Unlike superior responsibility under Article

6(3), “ordering” does not require a superior-subordinate relationship between the accused and the perpetrator of the crime. The accused will incur responsibility if the Prosecution proves that he holds a position of authority, which may be informal or of a purely temporary nature, and that he used that authority to compel another to commit a crime.3606 1912. “Committing” covers the direct and physical perpetration of a crime (with criminal intent) or a culpable omission of an act that is mandated by a rule of criminal law, and participation in a joint criminal enterprise.3607 1913. “Instigating” implies an actus reus of prompting another person to commit an offence. The Prosecution must prove that the acts of the accused contributed substantially to the commission of the crime, but they need not be a condition precedent for its commission. The mens rea is the intent to instigate another person to commit a crime or, at a minimum, the awareness of the substantial likelihood that a crime will be committed in the execution of the act or omission instigated.3608 3606 Media Appeal Judgement, para. 481; Ntagerura et al. Appeal Judgement, para. 365; Semanza Appeal Judgement, paras. 361, 363 ; Bagosora et al. Trial Judgement, para. 2008. 3607 Media Appeal Judgement, para. 478; Gacumbitsi Appeal Judgement, para.

60. But see Seromba Appeal Judgement, para. 161, holding that in the context of genocide, “committing” goes beyond direct and physical perpetration of the crime, and includes those situations in which the actions of the accused “were as much an integral part of the genocide as were the killings [they] enabled.” In that case, Seromba was found to have committed genocide because he approved and embraced as his own the decision to commit the crime. See also Gacumbitsi Appeal Judgement, para. 60, holding that in the context of genocide, “direct and physical perpetration” need not mean physical killing. 3608 Media Appeal Judgement, paras. 480, 660; Ndindabahizi Appeal Judgement, para. 117. 17 May 2011 432/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1914. “Aiding and abetting” requires that the Prosecution prove that the accused committed acts specifically aimed at assisting, encouraging or lending moral support for the perpetration of a specific crime, and that this support had a substantial effect on the perpetration of the crime. The actus reus need not serve as a condition precedent for the crime and may occur before, during or after the principal crime has been perpetrated.3609 The Appeals Chamber has held that the actus reus of aiding and abetting may, in certain circumstances, be perpetrated through an omission, or by a commander permitting the use of resources under his or her control, including personnel, to facilitate the perpetration of the crime.3610 The mens rea for aiding and abetting is knowledge that the acts performed assist in the commission of the specific crime of the principal perpetrator.3611 In cases of specific intent crimes such as persecution or genocide, the aider and abettor must know of the principal perpetrator’s specific intent.3612 1915. The Chamber will assess these forms of liability where relevant in its legal findings. 1.11.2 Superior Responsibility Under Article 6(3) 1916. The Appeals Chamber has explained that for an accused to be held responsible under Article 6(3) of the Statute for a crime within the

jurisdiction of the Tribunal, the Prosecution must prove that: (a) the accused was a de jure or de facto superior of the perpetrator of the crime and had effective control over this subordinate; (b) the accused knew or had reason to know that the crime was going to be committed or had been committed; and (c) the accused did not take necessary and reasonable measures to prevent or punish the commission of the crime by a subordinate.3613 1917. A superior-subordinate relationship is established by showing a formal or informal hierarchical relationship. The superior must have the power or the authority, de jure or de facto, to prevent or punish an offence committed by his subordinates. At the time that the offence is committed, the superior must have had effective control in terms of the material ability to prevent the commission of the offence or to punish the principal offenders. Effective control is not satisfied by a showing of general influence on the part of the accused.3614 1918. The mens rea for superior responsibility under Article 6(3) exists where the Prosecution proves that: (i) the superior had actual knowledge, established through direct or circumstantial evidence, that his subordinates had committed or were about to commit a crime under the statute; or (ii) the superior had reason to know that his subordinates had committed or were about to commit a crime under the

statute. 3609 Blagojević and Jokić Appeal Judgement, para. 127; Blaškić Appeal Judgement, para. 48; Simić Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372. 3610 Ntagerura et al. Appeal Judgement, para. 370; Blagojević and Jokić Appeal Judgement, para. 127; Bagosora et al. Trial Judgement, para. 2009. 3611 Ntagerura et al. Appeal Judgement, para. 370 ; Simić Appeal Judgement, para. 86; Vasiljević Appeal Judgement, para. 102; Blaškić Appeal Judgement, paras. 45, 46. 3612 BIagojević and Jokić Appeal Judgement, para. 127, citing Simić Appeal Judgement, para. 86; Krstić Appeal Judgement, paras. 140-141. 3613 Media Appeal Judgement, para. 484; Gacumbitsi Appeal Judgement, para. 143; Bagosora et al. Trial Judgement, para. 2011. 3614 Ntagerura et al. Appeal Judgement, para. 341 ; Kajelijeli Appeal Judgement, paras. 84, 85; Bagosora et al. Trial Judgement, para. 2012. 17 May 2011 433/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1919. In determining whether an accused possessed actual knowledge of the role of his subordinates in the crime, the Chamber may consider the following factors: the number, type and scope of illegal acts committed by the subordinates; the time during which the illegal acts occurred; the number, type of troops and logistics involved; the geographical location of the acts; whether the acts were widespread; the tactical tempo of the operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the superior at the time.3615 1920. In determining whether an accused had reason to know of the role of his subordinates in the crime, the test is “whether, in the circumstances of a case, a superior possessed information that was sufficiently alarming to put him on notice of the risk that similar crimes might subsequently be carried out by subordinates and justify further inquiry.”3616 The Appeals Chamber has made it clear in a number of cases that the information available to the accused does not need to provide specific details about the unlawful acts committed or about to be committed by his subordinates.3617 However, the Appeals Chamber has emphasised that it is “necessary to make a distinction between the fact that the Accused had information about the general

situation that prevailed in Rwanda at the time, and the fact that he had in his possession general information which put him on notice that his subordinates might commit crimes.”3618 1.12 Augustin Ndindiliyimana’s Superior Responsibility 1.12.1 Authority: General Considerations 1921. The Indictment alleges that Ndindiliyimana was Chief of Staff of the Gendarmerie at the time of the events in question and that he exercised authority over the entire Gendarmerie and had disciplinary power over all gendarmes, even when the latter were on temporary detachment.3619 The Defence acknowledges that Ndindiliyimana was Chief of Staff of the Gendarmerie during the events in question. However, the Defence submits that Ndindiliyimana did not have effective command and control of the Gendarmerie after hostilities with the RPF resumed on the night of 6 April 1994, when operational command over the majority of gendarmerie units was transferred to the Rwandan Army and Ndindiliyimana was left with only administrative and disciplinary powers over the gendarmes in those units.3620 1.12.2 De Jure Authority 1922. Ndindiliyimana was appointed Chief of Staff of the Gendarmerie by presidential order in June 1992 and took up that position in September 1992.3621 He remained Chief of 3615 Ntagerura et al. Trial Judgement, para. 648; Bagosora et al. Trial Judgement, para. 2014. 3616 Hadžihasanović Appeal Judgement, para. 30; Strugar Appeal Judgement, para. 301 (emphasis added). 3617 See Čelebići Appeal Judgement, para. 238; Bagilishema Appeal Judgement, para. 42; Krnojelac Appeal Judgement, para. 155; Media Appeal Judgement, para. 791; Strugar Appeal Judgement, para.

298. See also Bagosora et al. Trial Judgement, para. 2013; Ntagerura et al. Trial Judgement, para. 629. 3618 Bagilishema Appeal Judgement, para. 42. 3619 Indictment, para. 6. 3620 Ndindiliyimana Closing Brief, paras. 166-168. 3621 T. 16 June 2008, p. 38. 17 May 2011 434/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Staff until 5 June 1994, when he was relieved of his post and appointed ambassador to Germany.3622 Ndindiliyimana left Rwanda in mid-June.3623 1923. The legislative decree of 23 January 1974 entitled “Creation of the Gendarmerie” set out the organisation and functions of the Gendarmerie.3624 Pursuant to that decree, the Chief of Staff was the head of the Gendarmerie, but the Gendarmerie was under the supervisory authority of the Ministry of Defence. The primary function of the Gendarmerie was to maintain public law and order and to enforce the laws in force in Rwanda.3625 However, Article 47 of the decree provided that, in times of war, the Gendarmerie “participates in the defence of the territory” as determined by the Minister of Defence.3626 1924. In times of war, the participation of the Gendarmerie in the defence of territory was triggered by an order of the Minister of Defence to the Chief of Staff of the Gendarmerie. This effectively transferred operational command over the selected gendarmerie units from the Chief of Staff of the Gendarmerie to the Chief of Staff of the Rwandan Army. Those gendarmerie units thus became operational units within the Rwandan Army, and took their orders from the Chief of Staff of the army. The Gendarmerie retained authority over the units deployed to assist the army

with regard to administrative and disciplinary matters.3627 Those gendarmerie units that were not deployed to assist the army in combat remained under the full command of the Chief of Staff of the Gendarmerie and continued to fulfil the Gendarmerie’s primary function of maintaining public law and order and enforcing the laws in force in Rwanda.3628 1925. A number of Prosecution and Defence witnesses testified that following the RPF attacks of 7 April 1994, gendarmerie units were placed under the operational command of the Rwandan Army. Prosecution Witness General Roméo Dallaire testified that after 7 April, the country was “reverting to a war footing again … the command of the Gendarmerie was reverting to the command of the army”.3629 Prosecution Expert Witness Alison Des Forges likewise testified that a number of gendarmerie units were integrated into the regular army command following the resumption of hostilities on 7 April.3630 Defence Witness Luc 3622 T. 18 June 2008, p. 68. 3623 T. 18 June 2008, pp. 71-72. 3624 Defence Exhibit 305. 3625 Defence Exhibit 305, article 3. 3626 Defence Exhibit 305, article 47. See also Indictment, para. 20; Prosecution Closing Brief, para. 60; Ndindiliyimana Closing Brief, paras. 116, 230; T. 23 June 2008, pp. 11-13; T. 25 January 2008, pp. 12, 42; 10 T June 2008, p. 28; T. 23 January 2008, pp. 30, 32 (ICS). 3627 T. 17 January 2008, pp. 53-54;

T. 23 January 2008, p. 46 (ICS); T. 28 January 2008, p. 6; T. 18 February 2009, pp. 10, 48-50; T. 10 June 2008, p. 28; T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 255; Chamber’s Exhibit 12A, pp. 11-12. Chamber’s Exhibits 6 through 17 were admitted into evidence on 12 April 2011 pursuant to its Decision on the Admission of Written Statements Disclosed by the Prosecutor Pursuant to Rule 68(1) of the Rules of Procedure and Evidence (with Strictly Confidential Annex). The Chamber notes that the exculpatory statements were disclosed by the Prosecution pursuant to Rule 68 after the trial had finished. In this regard, the Chamber recalls that a Trial Chamber may, where the Prosecution’s violation of its disclosure obligation is so extensive or occurs at such a late stage of the proceedings that it would violate the right of the accused to trial without undue delay, or where it would be impossible or impractical to recall Prosecution witnesses without effectively re-opening the case in its entirety, opt to draw reasonable inferences from the disclosed material at the stage of its definitive evaluation of the evidence. See Orić Decision on Ongoing Complaints, para. 35. 3628 T. 28 January 2008, p. 43; T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 123. 3629 T. 6 December 2006, p. 50. 3630 T. 11 October 2006, p. 56. 17 May 2011 435/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Marchal, who was commander of the UNAMIR Kigali secteur, confirmed that Ndindiliyimana no longer had operational command over the majority of gendarmerie units after 7 April.3631 Colonel Léonidas Rusatira, a senior Rwandan Army officer, Witness CBP46, a gendarmerie unit commander in Kigali, and Witness CBP63, who worked closely with Ndindiliyimana in the Gendarmerie in 1994, also confirmed that a number of gendarmerie units passed under the operational command of the army following the RPF attacks of 7 April.3632 1926. AA-2, who was an officer in the General Staff of the Gendarmerie and the liaison to UNAMIR, stated that Ndindiliyimana’s powers were “whittled down” after 7 April. According to AA-2, “all gendarmerie units in Kigali were turned into combat units and placed under army operations control.” On the other hand, AA-2 stated that Ndindiliyimana maintained control and authority over the gendarmes who were not in combat zones.3633 AA- 5, the commanding officer of the Kigali Gendarmerie group, confirmed that most of the gendarmes in Kigali were sent to the war front, despite the fact that Kigali was the most “difficult” secteur in terms of maintaining law and order.3634 He further testified that after 7 April, from the operational standpoint his gendarmerie unit was under the General Staff of the

Army and their “boss” was the commander of operations for Kigali town. However, from the administrative standpoint, they still took orders from the Gendarmerie.3635 Nzapfakumunsi added that the staff commander of the Gendarmerie retained disciplinary powers over the Kigali gendarmes after 7 April.3636 1927. AA-3, who was a gendarme in Butare, stated that on 21 April 1994, the Ministry of Defence ordered 100 gendarmes from Butare to report to Kigali to fight against the RPF, leaving only 50 gendarmes in Butare.3637 AA-9, who was also a gendarme in Butare, similarly testified that gendarmes from Butare were sent to Kigali to fight the RPF.3638 This was confirmed by Witnesses Nzapfakumunsi,3639 B13,3640 CBP673641 and Ndindiliyimana himself,3642 all of whom testified that two companies of the Gendarmerie from Kibuye and Butare were requested to reinforce the defence of Camp Kacyiru against the RPF onslaught.

1928. There is no doubt that as Chief of Staff of the Gendarmerie, Ndindiliyimana had de jure authority over the entire Gendarmerie. However, based on the evidence outlined above, the Chamber is satisfied that operational command over the majority of gendarmerie units was transferred to the Rwandan Army following the RPF attacks of 7 April 1994. As a result, the scope of Ndindiliyimana’s de jure authority over the majority of gendarmerie units was dramatically reduced. In particular, the Chamber finds that after 7 April, Ndindiliyimana no longer had operational command over the gendarmes who had been deployed to assist the 3631 T. 17 January 2008, pp. 53-54. 3632 Chamber’s Exhibit 16A, p. 15; T. 28 January 2008, pp. 25, 48; T. 23 January 2008, pp. 46-47 (ICS); T. 24 January 2008, pp. 43-44 (ICS). 3633 Chamber’s Exhibit 12A, p. 11; Chamber’s Exhibit 7A, p. 8. 3634 Chamber’s Exhibit 10A, pp. 12-13. 3635 T. 18 February 2009, pp. 10, 48. 3636 T. 18 February 2009, pp. 49-50. 3637 Chamber’s Exhibit 8A, p. 3. 3638 Chamber’s Exhibit 17A, p. 6. 3639 T. 18 February 2009, p. 16. 3640 T. 7 July 2008, p. 48 (ICS). 3641 T. 6 February 2008, p. 41. 3642 T. 18 June 2008, pp. 23-25. 17 May 2011 436/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T army, although he retained de jure authority over those gendarmes with regard to administrative and disciplinary matters.

1929. Ndindiliyimana retained full de jure authority over the gendarmes who were not deployed to assist the army in combat. In this regard, Ndindiliyimana estimated that after 7 April, he retained full command over approximately 200 gendarmes (100 men in Kigali and 100 men in the rest of the country). The remainder of the gendarmes were engaged in battle under the operational command of the Rwandan Army.3643 1.12.3 De Facto Authority 1930. In his capacity as Chief of Staff of the Gendarmerie, Ndindiliyimana attended a number of meetings with Rwandan military and government officials, UNAMIR representatives and foreign diplomats during the period from 6 April 1994 until he was relieved of his post on 5 June 1994. It is clear from Ndindiliyimana’s activities during this period that he was in fact leading and representing the Gendarmerie and that he was considered by senior military and government officials, both within Rwanda and in the international community, to be the most appropriate person to do so.

1931. While there is no doubt that Ndindiliyimana continued to act as the head of the Gendarmerie following the death of the President on 6 April 1994, the Chamber considers that his actual authority over the gendarmes was dramatically reduced after that time. In assessing Ndindiliyimana’s de facto authority, the Chamber will first consider his authority over those gendarmes who had been deployed to assist the Army in combat, before considering Ndindiliyimana’s authority over those gendarmes who remained under his full de jure command and control. 1.12.3.1 Gendarmes Deployed to Assist the Army in Combat 1932. The evidence before the Chamber shows that the transfer of operational command over the majority of gendarmerie units to the Rwandan Army effectively removed Ndindiliyimana’s material ability to exercise day-to-day and operational control over those units after 7 April 1994. In this regard, Defence Witness Luc Marchal testified: [W]ith the exception of very few gendarmerie units, most gendarmerie units went under military command for reasons of coordination and optimal use of the means available. So, in concrete terms, that means that the chief of general staff of the gendarmerie was in a fraction of a moment in the blink of an eye, was stripped of his means of command. And because of operational procedures, all his commanding officers passed under the orders of a

different structure and, therefore, did react de facto. He has no further orders to give his men who are now under another command. That was the situation at the time of resumption of hostilities [on 7 April].3644 1933. Similarly, General Dallaire stated that it was clear that after 7 April, most of the gendarmes in Rwanda “were no more really under [Ndindiliyimana’s] command, except some elements in general security around the country”.3645 3643 T. 23 June 2008, pp. 11-13; Ndindiliyimana Closing Brief, para. 103. 3644 T. 17 January 2008, p. 54. 3645 T. 6 December 2006, p. 51. 17 May 2011 437/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1934. The Chamber further notes that although Ndindiliyimana retained de jure disciplinary authority over the gendarmes who had been deployed to assist the army, his actual ability to punish those gendarmes was conditional upon the matter first being reported to the operational commander (of the army) in the field, before being reported to the higher command within the army, and finally being reported to Ndindiliyimana.

1935. Having considered the evidence in its entirety, the Chamber finds that after 7 April 1994, Ndindiliyimana no longer had effective control over the majority of gendarmes who had been transferred under the operational command of the Rwandan Army to engage in combat against the RPF. 1.12.3.2 Gendarmes Not Deployed to Assist the Army in Combat 1936. Turning to the gendarmes who were not deployed to assist the army and who therefore remained under Ndindiliyimana’s de jure operational command, the Chamber notes that Ndindiliyimana’s actual ability to control those gendarmes decreased significantly as the war progressed. In particular, there is a significant body of evidence suggesting that the Gendarmerie suffered from a serious lack of resources, that it faced grave difficulties in communication and that it was infiltrated by rogue elements. Many of these problems predated April 19943646 but were exacerbated by the onset of the conflict.

1937. Defence Witnesses Colonel Luc Marchal and CBP63 testified that the gendarmes under Ndindiliyimana’s command suffered from a serious lack of means and of troops.3647 The lack of available gendarmes rendered it impossible for the General Staff to provide reinforcements.3648 According to Witness CBP63, the gendarmes were particularly hampered by a shortage of vehicles and communications equipment.3649 1938. Ndindiliyimana testified that the gendarmerie command faced difficulties in communicating with units on the ground. He conceded that throughout April, he received regular reports from the gendarmerie units based in other préfectures, but he stated that those reports were often contradictory.3650 Reports from small units were irregular and often reached him belatedly. Ndindiliyimana stated, “The situation worsened as the war evolved.”3651 The Gendarmerie’s most important installation in Kigali, Camp Kacyiru, which served as the logistical hub of the Gendarmerie, came under sustained RPF attack from 9 April. Ndindiliyimana was forced to move his Headquarters to Kimihurura. In addition, the territorial unit of Remera, also in Kigali, was completely overrun by the RPF. The wireless transmission facilities at the General Staff office were destroyed, telephone lines were cut off, and the Gendarmerie’s Alcatel system was shut down at Camp Kacyiru. Ndindiliyimana stated that the

gendarmerie command could still get messages through the KAKI wireless system. However, “[A]part from that wireless or radio system in the camp that the army had, those who were at the border, those who were with members of the population in the parishes, in Shyangi, in Nyarushishi, well, those officers could not communicate with their 3646 T. 25 January 2008, p. 5 (ICS); T. 5 March 2008, p. 6; Defence Exhibit 153, paras. 97-103. 3647 T. 17 January 2008, pp. 51, 54; T. 23 January 2008, pp. 46-47 (ICS); T. 24 January 2008, pp. 43-44 (ICS). 3648 T. 23 January 2008, p. 47 (ICS). 3649 T. 23 January 2008, pp. 33-37 (ICS). 3650 T. 17 June 2008, p. 65; Chamber’s Exhibit 12A, pp. 11-12. AA-2, a senior gendarmerie officer and the liaison to UNAMIR, confirmed that the gendarmerie general staff continued to receive reports from gendarmerie units in the field after 7 April 1994. 3651 T. 23 June 2008, p. 9. 17 May 2011 438/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T commanding officer.” Ndindiliyimana testified, “[T]here weren’t really any means of communication between those small units operating on the ground and the command post.”3652 1939. This is corroborated by Witness Nzapfakumunsi, who was a Lieutenant Colonel based at Camp Kacyiru from April to July 1994. He stated: [W]ith the situation of 6th April, first, we had lost all contact with the staff command of the Gendarmerie, for purposes of logistics of personnel. So communication with the Gendarmerie staff command was done by -- by couriers, by gendarmes that we sent to carry the messages. But before communication with the Gendarmerie staff command was done through an Alcatel network. Now, when the RPF took Mount Kigali the network broke down, so nothing was left. And then our signal station did not work again at the camp. First, there was no current. Then the building, as such, had been shelled, so it was no longer working. So there was communication with the Gendarmerie staff command. Now, with the operational command, we had communication by means of a portable post, a portable handset, Motorola, I believe. The only means of communication by radio, that was the only one. And that was our only link to military operations in Kigali, that was all.3653 1940. Witness CBP62, an officer who worked in the

General Staff of the Gendarmerie in Kigali, confirmed that the RPF attacked Camp Kacyiru on 9 April and that the territorial camp in Remera subsequently fell.3654 Witness CBP62 also testified to a breakdown of communication within the Gendarmerie, with the result that the General Staff could not reach some of its units.3655 1941. Ndindiliyimana further testified that during late April and most of May, the gendarmerie command and General Staff made a number of trips to the field in order to identify and resolve problems in various préfectures.3656 Ndindiliyimana recalled that on 15 April, he travelled to Butare and met with the unit commander Habyarabatuma, who informed him that the gendarmes were trying to intervene but that it was difficult as they did not have enough resources.3657 Ndindiliyimana also stated that in early to mid-May he visited Kibuye3658 and Gitarama3659 préfectures twice and Butare3660 and Cyangugu3661 préfectures once.

1942. In response to the information that he received, Ndindiliyimana set up a small team in April 1994 to conduct “investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth”.3662 Ndindiliyimana testified, “[W]e set up a group which moved about, visiting units to see what was happening and then report to the general staff … and the chief of staff would also visit troops on the ground and make his own 3652 T. 18 June 2008, pp. 48-49. 3653 T. 18 February 2009, p. 27. 3654 T. 27 May 2008, pp. 36-37 (ICS). 3655 T. 27 May 2008, pp. 36-37, 57 (ICS). 3656 T. 18 June 2008, p. 47. 3657 T. 17 June 2008, p. 66. 3658 T. 18 June 2008, pp. 50, 59. 3659 T. 18 June 2008, pp. 53, 59. 3660 T. 18 June 2008, p. 51. 3661 T. 18 June 2008, p. 56. 3662 T. 17 June 2008, p. 66. 17 May 2011 439/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T assessment.”3663 Ndindiliyimana recalled that he was aware of three gendarmes who had participated in the massacres, and he had those three men arrested in Kigali for their involvement in the killings. Ndindiliyimana stated that besides those three men, he did not have any evidence indicating the involvement of gendarmes in the killings.3664 1943. General Dallaire testified that by mid to late April, Ndindiliyimana “essentially didn’t have a command left”. Dallaire described Ndindiliyimana as “sort of like a floater. He did the Crisis Committee and then he bounced around”.3665 Dallaire also testified that in the areas out of the operational area, such as in certain parts of Kigali, Dallaire had the impression that the Gendarmerie included “rogue elements, or deserters, or people just using the uniforms at the time”. Dallaire stated, “It didn't look structured in any way”.3666 Dallaire also testified that he had been told that the Gendarmerie had been infiltrated by extremists, which made it difficult for the Gendarmerie to act as a counter force to extremists.3667 Nzapfakumunsi confirmed that there were rogue elements in the Gendarmerie, referring to reports of two NCOs defecting from Camp Kacyiru and then participating in massacres.3668 1944. AA-6, a gendarmerie officer and director of external

security, attended a meeting of the gendarmerie General Staff chaired by Ndindiliyimana in late May or early June 1994. According to AA-6, Ndindiliyimana “appeared to be powerless” with regard to the situation in Rwanda. AA-6 stated, “The officers denounced the fact that the gendarmes and soldiers manned the roadblocks with the Interahamwe.”3669 1945. The Chamber accepts that Ndindiliyimana suffered from a lack of resources during the events in question, that he faced difficulties in communicating with gendarmerie units operating on the ground, and that his force was infiltrated by extremists and rogue elements. The Chamber is also satisfied that Ndindiliyimana’s material ability to control the gendarmes under his command decreased as the war progressed. In these circumstances, the Chamber acknowledges that Ndindiliyimana did not exercise effective control over all gendarmes under his de jure operational command from April to June 1994. Rather, the Chamber finds that Ndindiliyimana’s material ability to prevent and/or punish crimes committed by gendarmes under his de jure operational command varied considerably between different gendarmerie units.

1946. That said, the Chamber finds that Ndindiliyimana did exercise de facto authority over the gendarmes who committed the crimes alleged in paragraphs 73 and 76 of the Indictment. As noted above, the Chamber has found that the attack at Kansi Parish in Nyaruhengeri on 21 and 22 April 1994 was carried out by gendarmes who were guarding Ndindiliyimana’s residence in Nyaruhengeri. The gendarmes guarding Ndindiliyimana’s residence were “gathered” by Ndindiliyimana’s wife.3670 Ndindiliyimana himself admitted that “he would have known” had those gendarmes participated in the attack at Kansi Parish. In these circumstances, the Chamber considers that Ndindiliyimana had de facto authority over the gendarmes in question. 3663 T. 17 June 2008, p. 66. 3664 T. 23 June 2008, p. 21. 3665 T. 6 December 2006, p. 59. 3666 T. 6 December 2006, p. 58. 3667 T. 6 December 2006, p. 50. 3668 Chamber’s Exhibit 10A, p. 11. 3669 Chamber’s Exhibit 14A, pp. 4-5. 3670 T. 20 June 2008, p. 60. 17 May 2011 440/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1947. The Chamber is also satisfied that Ndindiliyimana had de facto authority over the gendarmes who were implicated in the killings of Tutsi refugees at St. André College on 13 April 1994. These killings took place in Kigali, where Ndindiliyimana spent a large proportion of his time. Ndindiliyimana admitted that he received reports from his General Staff regarding events at St. André College and that he issued orders to his subordinates operating at that location around the time of the attack.3671 Ndindiliyimana also testified that he was aware that Prosecution Witness WG, a priest, had previously requested the Gendarmerie for protection at St. André College.3672 The Chamber finds that in light of the fact that Ndindiliyimana received information and issued orders to his subordinates regarding St. André College, he maintained command and control over the gendarmes operating at that location. 1.12.4 Superior – Subordinate Relationship 1948. The gendarmes implicated in the killings at Kansi Parish and St. André College all belonged to units under the operational command of the Gendarmerie. Their operations entailed a degree of organisation. It follows from Ndindiliyimana’s position as Chief of Staff of the Gendarmerie that the gendarmes in question were his subordinates under his effective control.

1.12.5 Knowledge 1949. The Chamber acknowledges that Ndindiliyimana faced difficulties communicating with some gendarmerie units on the ground, particularly during May and June 1994, and that he was not always able to obtain information about the activities of all gendarmes around the country. However, based on the evidence before it, the Chamber is satisfied beyond reasonable doubt that Ndindiliyimana knew or had reason to know that gendarmes under his command had committed the crimes alleged in paragraphs 73 and 76 of the Indictment.

1950. With regard to the gendarmes guarding his family home in Nyaruhengeri, as discussed above, Ndindiliyimana admitted that he “would have known” had those gendarmes participated in the attack at Kansi Parish. The Chamber has also found that Ndindiliyimana was aware of the gathering of Tutsi refugees at Kansi Parish following his two visits on 15 April and on 22 April. With regard to the crimes at St. André College on 13 April, Ndindiliyimana indicated in his testimony that he received information regarding gendarmes’ activities at the college in early April. In light of these admissions, it is reasonable to infer that Ndindiliyimana knew or had reason to know of the crimes that were committed by gendarmes at those locations.

1951. The Chamber finds, however, that there is no evidence indicating that Ndindiliyimana knew or had reason to know in advance that crimes were about to be committed at Kansi Parish or St. André College. 3671 T. 18 June 2008, p. 38. 3672 T. 18 June 2008, p. 38. 17 May 2011 441/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.12.6 Failure to Punish 1952. There is a significant body of evidence before the Chamber suggesting that Ndindiliyimana took measures to stop the killings in Rwanda using the resources that were available to him at the time, particularly during April 1994. A number of witnesses also testified that Ndindiliyimana was known as a moderate Hutu who advocated for the Arusha Accords and cooperated with UNAMIR. The Chamber will consider the evidence of Ndindiliyimana’s general efforts to prevent and/or punish killings when determining the appropriate sentence. At this point, the Chamber will limit its analysis to the question of whether Ndindiliyimana took measures that were necessary and reasonable to punish the crimes committed by his subordinates at Kansi Parish and St. André College.

1953. In assessing whether Ndindiliyimana failed in his duty to punish these crimes, the Chamber must bear in mind the degree of effective control that he in fact exercised over his subordinates at the time – that is, his material ability to punish the crimes.3673 The Chamber notes that although a superior is not obliged to perform the impossible, he is obliged to take all measures that are within his material possibility.3674 1954. The Chamber recognises that Ndindiliyimana had a relatively small window of opportunity in which to punish the gendarmes who committed crimes at Kansi Parish and St. André College. The Chamber also recognises that Ndindiliyimana faced a shortage of resources and did not always have the full support of the government, and this made it more difficult for him to punish his subordinates effectively. Notwithstanding these difficulties, the Chamber considers that he retained the material ability to take at least basic measures to punish the gendarmes under his effective control who committed the crimes at Kansi Parish and St. André College.

1955. The Chamber notes that there is no evidence that Ndindiliyimana took any measures to punish the gendarmes under his effective control who committed the crimes at Kansi Parish and St. André College. Accordingly, the Chamber finds that Ndindiliyimana failed in his duty to punish these crimes. 1.13 Augustin Bizimungu’s Superior Responsibility 1.13.1 Authority : General Observations 1956. The Indictment alleges that Bizimungu was appointed Chief of Staff of the Rwandan Army on 16 April 1994. The Indictment further alleges that during his tenure as Chief of Staff, Bizimungu exercised authority over soldiers of the Rwandan Army and members of the Interahamwe. The Defence acknowledges that Bizimungu was appointed Chief of Staff of the Rwandan Army on 16 April and took up that post on 19 April 1994.3675 However, the Defence submits that Bizimungu’s authority was considerably affected by the ongoing combat with the RPF, the lack of adequate resources and other adverse factors resulting from the war situation.3676 The Defence further submits that as long as hostilities with the RPF continued, there was very little that Bizimungu could do to prevent and punish crimes.3677 3673 Milutinović et al. Trial Judgement, para. 122. 3674 Blagojević and Jokić Trial Judgement, para. 793. 3675 T. 4 December 2007, p. 5; T. 13 December 2007, p. 4. 3676 T. 12 December 2007, p. 64. 3677 T. 13 December 2007, pp. 30-33. 17 May 2011 442/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Bizimungu also claimed that his primary mission was to prosecute the war against the RPF and that maintenance of order was the responsibility of the Gendarmerie and other institutions of the government, although he acknowledged that the Gendarmerie was unable to fulfil that function because most of its units were engaged in the war against the RPF.3678 1957. The Prosecution strongly disputes Bizimungu’s claim that he could not prevent and/or punish the crimes charged in the Indictment against him without the cessation of hostilities with the RPF. The Prosecution maintains that despite the ongoing combat with the RPF, there were a number of measures available to Bizimungu to prevent and punish crimes. Therefore, the Prosecution argues, his claim that he needed a ceasefire before he could invoke those measures is not sufficient to absolve him of criminal culpability as a superior.3679 1.13.2 Retroactive Command Responsibility 1958. The Chamber notes that some of the crimes underlying the charges of superior responsibility against Bizimungu are alleged to have been committed by soldiers and Interahamwe prior to Bizimungu’s appointment to the position of Chief of Staff of the Rwandan Army on 16 April 1994 and his assumption of office on 19 April 1994. Of those underlying factual allegations, the Chamber has

found that only two have been proved beyond reasonable doubt: these are the killings of Tutsi civilians committed by soldiers and Interahamwe at the Josephite Brothers compound on 8 April 1994;3680 and the killings of Tutsi civilians committed by soldiers and Interahamwe at the ETO complex at Nyanza Hill (“ETO-Nyanza”) on 11 April 1994.3681 1959. While the Chamber is not satisfied beyond reasonable doubt that Bizimungu knew or had reason to know of the crimes committed by soldiers and Interahamwe at the Josephite Brothers compound on 8 April, the Chamber is convinced that Bizimungu knew or had reason to know of the killings of Tutsi civilians, most of whom were refugees, by soldiers and Interahamwe at ETO-Nyanza on 11 April 1994. The manner in which thousands of Tutsi civilians were marched to Nyanza Hill and subjected to a protracted gun attack, the possible involvement of Colonel Bagosora (then the Chef de Cabinet at the Ministry of Defence), the number of victims (approximately 2,400 Tutsi civilians) and the fact that these killings were partly triggered by the withdrawal of the Belgian detachment of UNAMIR from Rwanda, combine to leave the Chamber satisfied beyond reasonable doubt that Bizimungu knew or had reason to know of the involvement of his subordinates in the killings at ETO-Nyanza.

1960. Nonetheless, the Chamber does not find Bizimungu guilty of the crimes committed at ETO-Nyanza on 11 April 1994 because the current jurisprudence precludes finding a superior responsible for failing to punish crimes that were committed before he assumed the position of command over the perpetrators. The Appeals Chamber’s decision in Hadžihasanović et al. emphasises that there must be a temporal coincidence between a superior’s exercise of effective control, or lack thereof, and the time when the crimes in relation to which he is charged were committed.3682 3678 T. 12 December 2007, p. 64. 3679 Prosecution Closing Brief, paras. 1501-1524. 3680 Indictment, para. 69. 3681 Indictment, paras. 69, 82. 3682 Hadžihasanović et al. Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility. 17 May 2011 443/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1961. In the view of the Chamber, the position that a superior should not be held criminally responsible for failing to punish crimes that were committed by his subordinates before the commencement of his command has the potential to undermine the interests that the doctrine of superior responsibility seeks to protect. The insistence upon a temporal concurrence between a superior’s effective control and the time when the crimes were committed conflates the distinct duties of prevention and punishment into a unitary obligation. While the duty to prevent presupposes that a superior has the material ability to prevent the crimes of his subordinates proscribed under the Statute of the Tribunal, the Chamber is not persuaded that a superior’s duty to punish his subordinates for committing such crimes requires him to be vested with effective control at the time when the crimes were committed. Therefore, a superior’s duty to punish crimes does not necessarily require coincidence in time between his effective control and the commission of the crimes in relation to which he is charged.

1962. This argument is particularly persuasive in situations where the commission of crimes occurs shortly before the superior assumes command. A superior who is informed of his subordinates’ commission of crimes proscribed under the Statute should be required to punish the perpetrators provided that he has the material ability to do so. The requirement of a temporal coincidence between a superior’s effective control and the commission of crimes is likely to allow superiors to escape criminal sanction for the role of their subordinates in the commission of grave crimes, even where the superiors knew or had reason to know of those crimes and had the material ability to punish the perpetrators.

1963. The limitations of the current jurisprudence on retroactive command responsibility are particularly clear in this case. The killings of thousands of Tutsi civilians at ETO-Nyanza occurred approximately one week before Bizimungu assumed command over the Rwandan Army as Chief of Staff. There is no suggestion that Bizimungu could have prevented the commission of the killings at ETO-Nyanza because there is no evidence that he had prior knowledge of plans to commit those crimes. However, the evidence is clear that Bizimungu knew or had reason to know of the crimes that had been committed by his subordinates at ETO-Nyanza on 11 April and had the material ability to punish the perpetrators of those crimes. That Bizimungu’s failure to sanction his subordinates who killed thousands of Tutsi civilians is not a punishable offence is a sharp indictment of the jurisprudence on retroactive command responsibility as it currently stands. 1.13.3 De Jure Authority 1964. It is not disputed by the parties in this trial that Bizimungu was simultaneously appointed Chief of Staff of the Rwandan Army and promoted to the rank of Major General on 16 April 19943683 and that he took up his position as Chief of Staff on 19 April 1994.3684 Bizimungu occupied that position until mid-July 1994, when he fled to the former Zaire following the Rwandan government’s defeat by the RPF.

1965. While occupying the position of Chief of Staff, Bizimungu was legally authorised to exercise overall command over soldiers of the Rwandan Army. The Chamber is therefore satisfied that during his tenure as Chief of Staff, Bizimungu exercised de jure authority over soldiers of the Rwandan Army who were legally considered to be his subordinates. 3683 T. 4 December 2007, p. 5. 3684 T. 13 December 2007, p. 4. 17 May 2011 444/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.13.4 De Facto Authority 1966. In addition to exercising de jure authority over soldiers of the Rwandan Army, the Chamber is satisfied that Bizimungu, while Chief of Staff, exercised de facto authority over soldiers of the Rwandan Army as well as members of the Interahamwe who collaborated with those soldiers in committing the crimes underlying the charges against him.

1967. A review of the evidence indicates that Bizimungu was a well-trained officer with substantial experience in command of the Army.3685 Prior to becoming the Chief of Staff of the Rwandan Army in April 1994, Bizimungu occupied a number of operational and high- profile advisory positions. Among those positions was his role as the commander of the Ruhengeri Para Commando Battalion and his responsibility for the Ruhengeri operational sector.3686 While occupying those positions, Bizimungu played a significant role in commanding the Rwandan government forces during the war against the RPF.

1968. In addition, Bizimungu was appointed to serve in a number of important commissions during his career in the Rwandan Army. The Chamber recalls Bizimungu’s evidence that he was appointed to serve as a member of a military committee that was charged with the responsibility of assessing the political and military situation that prevailed in Rwanda in 1992.3687 This committee was established by James Gasana, who was the Minister of Defence at the time. The Chamber also notes that Bizimungu represented the Rwandan Army in the high command council that was established to oversee the process of forming a new Army composed of both FAR and RPF forces under the auspices of the Arusha Accords.3688 This council was composed of officers from both the Rwandan Army and the RPF.3689 1969. Bizimungu’s ability and power as a commander are also evidenced by the accounts given by a number of Defence witnesses who worked with him at the time. In particular, the Chamber recalls the evidence of Defence Witness Silas Gatambiye, who testified that Bizimungu was held in high regard among the soldiers because he was considered to be a good commander.3690 Witness Gatambiye’s testimony regarding the considerable deference that soldiers accorded Bizimungu as a commander is corroborated by the evidence of Defence Witnesses DB15-6,3691 DB8-193692 and DE4-33.3693 The considerable reputation of Bizimungu

as a commander is also supported by Rwandan Minister of Defence, James Gasana, who described Bizimungu in his book as “a highly respected officer, who distinguished himself at the front, and who has the respect of the troops and the population.”3694 1970. Bizimungu’s competence as a commander is also demonstrated by his account, which is corroborated to a significant extent by excerpts of Gasana’s book that were tendered into evidence in this trial, that at the end of 1992 he was appointed by the council of ministers, at 3685 T. 4 December 2007, pp. 2-5. 3686 T. 4 December 2007, p. 5. 3687 T. 4 December 2007, p. 6; T. 5 December 2007, p. 36. 3688 T. 6 December 2007, pp. 10-12. 3689 T. 6 December 2007, pp. 11-12. 3690 T. 16 April 2007, p. 77. 3691 T. 30 October 2007, p. 28. 3692 T. 5 November 2007, pp. 12-13 (ICS). 3693 T. 16 May 2007, p. 10. 3694 T. 5 December 2007, pp. 51-52. 17 May 2011 445/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the request of President Habyarimana, to become a military advisor in the Office of the President. However, Gasana opposed his appointment to that position because his removal from operational engagements at the war front was likely to affect the Rwandan Army’s ability to fight the RPF in the event that hostilities resumed. At Gasana’s insistence, Bizimungu was retained in his position as the commander of the Ruhengeri operational sector.3695 1971. Further demonstrating his authority, as Chief of Staff of the Rwandan Army Bizimungu represented the interim government in a number of meetings with various international figures who visited Rwanda after the resumption of hostilities between the FAR and the RPF. There is clear evidence that Bizimungu met with José Ayala-Lasso, the UN High Commissioner for Human Rights, in the company of General Roméo Dallaire during Ayala-Lasso’s visit to Rwanda on 12 May 1994.3696 Bizimungu testified that he accompanied Ayala-Lasso during a visit to Hôtel des Mille Collines, where a number of people had sought refuge from the violence. Bizimungu also met with Bernard Kouchner, a French humanitarian of considerable international standing, during the latter’s visit to Rwanda.3697 On 24 May, Bizimungu met Shaharyar Khan, the UN Secretary General’s Special Envoy to Rwanda, who

was accompanied by a senior officer from the DPKO.3698 According to Bizimungu, the objective of Khan’s visit was to get the parties to the Rwandan conflict to agree to a ceasefire.3699 1972. The Chamber notes that the extent of Bizimungu’s authority is clear from his evidence that he had full power to negotiate a ceasefire with the RPF.3700 Bizimungu further testified that following Shaharyar Khan’s visit, plans were made to negotiate a ceasefire. Bizimungu gave evidence that he took part, together with the Minister of Defence, in the deliberations that led to the designation of the officers who were to lead the Rwandan government forces’ delegation in the negotiations for a ceasefire with the RPF.3701 The Chamber considers this to be indicative of his actual authority at the time.

1973. Bizimungu’s prominence is also inferable from the fact that he was sought out by a number of important personalities in order to put an end to the massacres. For example, the Chamber recalls that Prudence Bushnell, the United States Deputy Secretary of State for African Affairs, personally contacted Bizimungu and asked him to prevent the massacres of civilians in Rwanda.3702 1974. The evidence also suggests that General Roméo Dallaire, the force commander of UNAMIR, sought the assistance of Bizimungu in resolving a number of problems such as the evacuation and exchange of refugees between the government forces and the RPF. In particular, the Chamber refers to Bizimungu’s own evidence regarding Dallaire’s 3695 Defence Exhibit 177; T. 4 December 2007, p. 6. 3696 T. 12 December 2007, pp. 54-55. 3697 See T. 21 November 2006, p. 48. 3698 T. 7 December 2007, p. 6. 3699 T. 7 December 2007, p. 9. 3700 T. 7 December 2007, p. 10. 3701 T. 7 December 2007, p. 9. 3702 Prosecution Exhibit 191; Prosecution Exhibit 192. 17 May 2011 446/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T consultations with him concerning the evacuation of about 60 refugees from Hôtel des Mille Collines in May 1994.3703 1975. The evidence before the Chamber suggests that Bizimungu had a considerable role in leading the combat operations against the RPF and that the Minister of Defence deferred to his recommendations on issues that had a significant bearing on those operations. In this regard, the Chamber refers to Bizimungu’s evidence that he recommended to the Minister of Defence to suspend a number of senior officers whom he considered to be militarily incompetent, which is discussed in detail below.

1976. Having considered the evidence reviewed above, the Chamber finds that Bizimungu exercised de facto authority over soldiers of the Rwandan Army during his tenure as Chief of Staff in 1994.

1977. In addition to exercising de facto authority over soldiers of the Rwandan Army, the Chamber is satisfied that Bizimungu exercised similar authority over members of the Interahamwe.

1978. The Chamber recalls that Bizimungu denied that he had de facto authority over members of the Interahamwe. However, the evidence elicited from Prosecution witnesses, taken in concert with documentary evidence, strongly suggests that Bizimungu exercised considerable authority over members of the Interahamwe during his tenure as Chief of Staff of the Rwandan Army. The Chamber has heard substantial evidence regarding the role of the Rwandan Army in training and providing arms to the civil defence programs. The evidence suggests that these civilian structures were initially established in order to reinforce the Army in its campaign against the RPF, but that they later morphed into structures that were used in the genocide against Tutsi. In particular, the Chamber refers to the evidence of Expert Witness Des Forges3704 and Prosecution Exhibits 210, 208, 211 and 212. The Chamber has imparted particular weight to Prosecution Exhibit 208, a record of an interview between Jean Kambanda, the former Prime Minister in the Rwandan interim government, and the investigators of the Tribunal, in which Kambanda stated that youth wings affiliated with the MRND and CDR parties were provided with military training by the Rwandan Army.

1979. A review of Prosecution Exhibits 201 and 202 indicates the authority that Bizimungu wielded over members of the Interahamwe. Prosecution Exhibit 201 is a report of a meeting chaired by Bizimungu that was attended by a number of senior officers of FAR. The meeting was held in Goma, in the former Zaire, between 29 March and 3 April 1994. A review of the report suggests that the attendees at the meeting, who were discussing the reorganisation of the FAR, considered the possibility of integrating Interahamwe into the reorganised Army. Prosecution Exhibit 202 is a report of a meeting of members of the high command of the exiled Rwandan Army held from 2 to 6 September 1994 in Goma. This report was sent by Bizimungu to the President of the exiled Rwandan government. A review of this report also suggests that the inclusion of the Interahamwe within the newly reorganised Army was considered by the officers attending this meeting.

1980. Bizimungu’s authority over members of the Interahamwe is also supported by the evidence of Witness Dallaire that between April and July 1994, many of his contacts with the 3703 T. 6 December 2007, p. 54. 3704 T. 18 September 2006; T. 20 September 2006; Prosecution Exhibit 107. 17 May 2011 447/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T national leaders of the Interahamwe were organised through the intermediary of Bizimungu.3705 Dallaire further testified that at the time, he observed that soldiers of the Rwandan Army and members of the Interahamwe fought alongside each other and also manned checkpoints jointly.3706 1981. The fact that Bizimungu had the material ability to restrain members of the Interahamwe is also demonstrated by his own account of his intervention at Hôtel des Mille Collines following a report of an attack by Interahamwe against the refugees at the hotel on 17 June.3707 Following his arrival at the hotel, Bizimungu ordered the assailants, who were armed, to halt their attack against the people at the hotel or he would shoot at them.3708 His evidence suggests that the assailants complied with his orders and ceased the attack.3709 1982. Based on the evidence discussed above, the Chamber is satisfied beyond reasonable doubt that Bizimungu exercised authority over soldiers and Interahamwe during the period that he served as Chief of Staff of the Rwandan Army. The Chamber finds that he had the material ability to prevent Rwandan Army soldiers and Interahamwe from committing, or to punish them for having committed, the crimes forming the basis of the charges against him. 1.13.5 Superior–Subordinate Relationship 1983. Having weighed the evidence adduced in this trial, the Chamber is satisfied beyond reasonable doubt that soldiers of the Rwandan Army and members of the Interahamwe under Bizimungu’s effective control were responsible for committing the crimes underlying his responsibility as a superior.

1984. In arriving at this conclusion, the Chamber has considered Bizimungu’s submissions seeking to impugn the evidence of Prosecution witnesses who testified that the perpetrators of these crimes were his subordinates. Recalling his evidence in broad terms, the Chamber notes that Bizimungu denied that civilians were massacred during the period that he served as the Chief of Staff of the Rwandan Army.3710 To the extent that he conceded that crimes were committed against civilians, Bizimungu stated that those crimes were not committed by soldiers under his command, but were instead committed by assailants purporting to be soldiers of the Rwandan Army by dressing in the uniforms of those soldiers.3711 Bizimungu also claimed that RPF soldiers dressed in Rwandan Army uniforms committed crimes against civilians in order to tarnish the image of his force.3712 He further stated that gangs, taking advantage of the dissolution of the governing structures at the time, also committed crimes against civilians.3713 1985. The Chamber is not persuaded by Bizimungu’s submissions. The Chamber recalls that Bizimungu presented no evidence to support his contentions seeking to absolve his subordinates of the crimes committed against civilians. In the absence of such evidence, 3705 T. 21 November 2007, p. 41. 3706 T. 21 November 2006, p. 54. 3707 T. 7 December 2007, pp. 12-16. 3708 T. 7 December 2007, pp. 13-17. 3709 T. 7 December 2007, p. 15. 3710 T. 13 December 2007, p. 18. 3711 T. 12 December 2007, p. 49; T. 13 December 2007, p. 18. 3712 T. 12 December 2007, p. 55. 3713 T. 12 December 2007, p. 49; T. 13 December 2007, p. 18. 17 May 2011 448/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Bizimungu’s bare submissions cannot impugn the credible and firsthand evidence of Prosecution witnesses who identified the perpetrators of these crimes as members of the Rwandan Army acting in conjunction with Interahamwe. The Chamber is satisfied that the evidence of these Prosecution witnesses, most of whom were victims of these crimes, provides a clear evidentiary basis for a finding beyond reasonable doubt that the perpetrators of the crimes underlying Bizimungu’s culpability as a superior were soldiers of the Rwandan Army and members of the Interahamwe. 1.13.6 Knowledge 1986. Based on the evidence before it, the Chamber is satisfied beyond reasonable doubt that Bizimungu knew or had reason to know that his subordinates had committed or were about to commit crimes at the Josephite Brothers in Kigali on 7 June 1994, at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama during April and May 1994, at the préfecture office and EER in Butare after 19 April 1994 and at Cyangugu Stadium after 19 April 1994.

1987. The accounts offered by Prosecution witnesses regarding the crimes committed by soldiers and Interahamwe against Tutsi civilians at these locations contain a number of circumstantial indicia supporting the inference that Bizimungu must have known of these crimes. These include the modus operandi of the commission of the crimes, the wide scale and frequency of the crimes, the number of people killed, and the fact that the crimes were committed against Tutsi civilians who had gathered at schools, churches, medical centres, stadiums and the offices of local authorities, all of which are located in areas that are not geographically remote. This circumstantial evidence indicates that the crimes were not random acts of errant soldiers and militia unknown to the authorities, but were in fact organised and systematic crimes.

1988. The Chamber also recalls that Bizimungu admitted in his testimony that during his tenure as Chief of Staff of the Rwandan Army, he received SITREPs from his units on a daily basis.3714 1989. In relation to the crimes committed at the Josephite Brothers in Kigali on 7 June 1994, the Chamber has found Bizimungu’s admissions that he was aware of reprisal attacks against civilians who had gathered at religious centres in Kigali in early June 1994, and that some of the perpetrators of those attacks were dressed in military uniforms, to be a probative indication of his knowledge or notice of those crimes. Similarly, in relation to the crimes committed against Tutsi refugees at the préfecture office and EER in Butare, the Chamber recalls Bizimungu’s admission that he received information about “disturbances” that “unfortunately” occurred in Butare at that time.

1990. In relation to the crimes committed at Cyangugu Stadium, the Chamber recalls that the plight of the Tutsi civilians who were detained at the stadium was brought to Bizimungu’s attention by Prudence Bushnell during her telephone conversation with Bizimungu in May 1994. Finally, in relation to the crimes committed at the Musambira commune office and dispensary, ESI and TRAFIPRO in Gitarama, the Chamber notes that these crimes were committed on a regular basis throughout April and May 1994. The Chamber finds it difficult 3714 T. 13 December 2007, p. 29. 17 May 2011 449/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T to believe that crimes of this scale and frequency would not have been reported to Bizimungu in the daily SITREPs that he received at the time.

1991. Given the manner in which these crimes were committed and the means of communication available to him, the Chamber finds it implausible that Bizimungu would not have been aware or at least had notice of the strong prospect that his subordinates were implicated in these crimes.

1992. The Chamber notes that its finding that Bizimungu knew or had reason to know of the implication of soldiers in these crime is further reinforced by its review of a number of exhibits tendered into evidence by the Prosecution. The Chamber considered these exhibits in detail in its discussion of the allegations pleaded in paragraphs 68 to 70 of the Indictment. The Chamber will not repeat that analysis in this section of the Judgement. It suffices to note that the Chamber found these exhibits, which include excerpts from reports by Human Rights Watch written at the time of the events and records of conversations and meetings between Bizimungu and representatives of the United States government and the UN, to be indicative of Bizimungu’s knowledge or reason to know of the implication of his subordinates in the crimes in relation to which he is charged. 1.13.7 Failure to Prevent Crimes or Punish the Perpetrators 1993. Based on the evidence adduced in this trial, the Chamber is satisfied that Bizimungu, despite his effective control over soldiers and Interahamwe, failed to prevent the crimes detailed above or to punish his subordinates for their role in those crimes. In reaching this finding, the Chamber has considered Bizimungu’s claim that his material ability to prevent and punish crimes was considerably affected by the ongoing combat with the RPF and other adverse factors related to the war.

1994. The Chamber notes that a determination of a superior’s failure to prevent the commission of crimes or punish its perpetrators is not an objective test drawn in the abstract. Rather, the Chamber must consider the actual situation of the commander and the means available to him at the time when the underlying crimes were committed.

1995. The Chamber recalls that Bizimungu claimed repeatedly during his testimony that due to the ongoing combat with the RPF, it was difficult for him to prevent and punish crimes.3715 He testified that his situation was further exacerbated by desertions from the Army and a lack of reserve troops,3716 and that the availability of adequate reserves would have allowed gendarmerie units, most of which were deployed to the war front, to be relieved from combat engagements and to resume their normal duties of maintaining order.3717 Bizimungu also claimed that his means of communication and the number of staff available to him diminished as the war progressed.3718 He testified that this confluence of factors impaired his ability to exercise command with respect to the crimes that were being committed against civilians. He claimed, therefore, that a cessation of hostilities was necessary for him to effectively restore order; however, the RPF refused to agree to a ceasefire. 3715 T. 13 December 2007, pp. 31-32. 3716 T. 12 December 2007, pp. 64-66. 3717 T. 7 December 2007, p. 3; T. 11 December 2007, pp. 35-36. 3718 T. 11 December 2007, p. 41. 17 May 2011 450/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1996. While the Chamber has considered the impact of the prevailing situation on Bizimungu’s exercise of effective control over Rwandan Army soldiers and Interahamwe, it is not persuaded that the ongoing war with the RPF negated his material ability to prevent and/or punish the crimes underlying the charges against him to the extent that he could not reasonably be expected to address those crimes. In terms of resources, the Chamber recalls that Bizimungu admitted in the course of his testimony that as of April 1994, the forces under his command numbered between 39,000 and 40,000 soldiers.3719 Not all of those troops were engaged in combat operations against the RPF. For example, Bizimungu admitted that in Cyangugu he had troops that were not engaged in combat.3720 1997. In addition, the fact that Bizimungu managed to suspend a number of senior officers of the Rwandan Army while serving as Chief of Staff indicates that he had the material ability to prevent and punish crimes. The Chamber recalls Bizimungu’s evidence that on his recommendations, the Minister of Defence suspended Nkundiye, who was the Mutara operational sector commander, and Colonels Ndendinga and Munyamegama.3721 According to Bizimungu, he proposed the suspension of those officers in order to stabilise the command structure and ensure

disciplinary control over his subordinates.3722 He also testified that around 18 or 19 May 1994, he requested the Minister of Defence to appoint Colonel Ndindingira to become the commander of the Mugesera operational sector.3723 However, Bizimungu later requested the suspension of Ndindingira because the latter had failed to stabilise the situation in Mugesera and had disobeyed Bizimungu’s specific operational instructions.3724 1998. The Chamber has also taken note of Bizimungu’s evidence that following reports that soldiers in Bugesera had committed unlawful acts, he proposed that the officer in command of those soldiers be suspended, and subsequently that officer was, in fact, replaced.3725 The Chamber considers this evidence to be a telling indication of Bizimungu’s ability to prevent and/or punish the crimes that underlie the charges against him.

1999. The fact that representatives of the UN, the United States government and Human Rights Watch considered Bizimungu to be capable of halting the massacres in Rwanda reinforces the Chamber’s finding. The Chamber has already considered the evidence regarding the meetings between Bizimungu and these international figures in other parts of the Judgement. The Chamber finds it unlikely that these high-profile representatives would have directed their requests for the cessation of the massacres against civilians to Bizimungu unless they thought he was capable of acting on their requests.

2000. Further evidencing Bizimungu’s material ability to prevent and punish crimes are his intervention at the Hôtel des Mille Collines, discussed above,3726 his issuance of firm instructions via telegram to the commander of the Gisenyi operational sector to arrange for the evacuation of clergymen to Goma following reports that those clergymen were being held 3719 T. 13 December 2007, pp. 1-2. 3720 T. 12 December 2007, pp. 84-85. 3721 T. 11 December 2007, p. 39. 3722 T. 11 December 2007, p. 39. 3723 T. 13 December 2007, p. 26. 3724 T. 13 December 2007, p. 26. 3725 T. 12 December 2007, p. 75. 3726 T. 7 December 2007, pp. 12-15. 17 May 2011 451/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T against their wishes in Gisenyi,3727 and his issuance of instructions via telegram to the Camp Bigogwe commander to stop plans to attack Tutsi civilians who had sought refuge at the camp.3728 2001. Bizimungu’s intervention to stop Lieutenant Colonel Sebahire, the commander of the Rulindo operational sector, from being ousted from his position on account of his rumoured links with the RPF also adds weight to the Chamber’s finding that Bizimungu had the material ability to prevent and punish crimes.3729 Due to Bizimungu’s intervention, Sebahire remained in his position as the operational sector commander.3730 2002. Based on the evidence set out above, the Chamber is not persuaded that Bizimungu’s material ability to prevent and punish crimes was substantially affected due to the war with the RPF. His own testimony strongly suggests that he had the ability to prevent the large- scale killings committed by soldiers and Interahamwe. Having reviewed the entirety of his evidence, the Chamber considers that Bizimungu’s failure to prevent or punish the crimes underlying the charges against him may be explained by his culpable indifference to Tutsi lives and his decision to relegate the protection of civilian lives to a position of less importance than the prosecution of the war against the RPF.

2003. His order of priorities is clearly evidenced by the selective manner in which he chose to wield his considerable authority. The Chamber notes that while Bizimungu was willing to take the necessary steps to get a number of senior officers suspended because of operational lapses while prosecuting the war, he was unwilling to employ his authority to restrain his subordinates or sanction them for crimes committed against Tutsi civilians. His evidence suggests that he refrained from adopting stern disciplinary measures against his subordinates because of concerns that such action would have negative consequences for his effort to fight the RPF.

2004. This tendency is exemplified by Bizimungu’s explanations for his failure to take any action against Major Mpiranya, the commander of the Presidential Guard, whose subordinates were accused of perpetrating the killing of a number of high-profile Rwandan politicians. Bizimungu himself admitted to having known of the implication of Presidential Guard soldiers in crimes.3731 Bizimungu testified that he refrained from taking any action against Mpiranya, who was engaged in combat against the RPF at the time, because of concerns that such action may have had a negative effect on the war campaign against the RPF.3732 In his evidence, Bizimungu intimated that Mpiranya was likely to face disciplinary measures after the end of the war.3733 However, Prosecution Exhibit 202, a report of a meeting of former officers of the Rwandan Armed Forces chaired by Bizimungu in September 1994 while in exile in the former Zaire, indicates that Mpiranya was included in the reorganised Rwandan Armed Forces led by Bizimungu and that he was actually assigned some responsibilities within that force. 3727 T. 13 December 2007, p. 58. 3728 T. 13 December 2007, p. 58. 3729 T. 13 December 2007, pp. 25-26. 3730 T. 13 December 2007, p. 26. 3731 T. 6 December 2007, p. 25. 3732 T. 13 December 2007, p. 24. 3733 T. 13 December 2007, p. 25. 17 May 2011 452/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2005. The Chamber further recalls that Bizimungu stated, “People died, Prime Minister Agathe died, blue berets died, other people died … do you really think that one could have a grip over such impunity, over such acts? ... we are fighting ... when somebody is killed, you don’t look around you, he is dead. You carry on”.3734 In the Chamber’s opinion, this is a clear indication that he viewed the protection of civilian lives as less important than military considerations. The Chamber considers that the protection of civilian lives cannot simply be subordinated to other considerations, military or otherwise. Even in a desperate situation, the protection of civilians is of fundamental importance. As stated above, the Chamber is not satisfied the ongoing war with the RPF negated Bizimungu’s material ability to prevent and punish crimes to such an extent that he could not reasonably be expected to take measures to protect civilian lives. Under these circumstances, the Chamber finds no plausible explanation for Bizimungu’s gross failure to honour his duties as a commander other than his disregard for civilian lives.

2006. Bizimungu’s implausible assessment of the situation in Rwanda at the time of the events relevant to the charges in the Indictment is indicative of his indifference to the lives of Tutsi civilians. The Chamber recalls that in the face of a considerable body of evidence to the contrary, Bizimungu asserted that although there were sporadic killings on some days during his tenure as the Chief of Staff of the Rwandan Army, it would be incorrect to “make the generalisation” that those killings were continuous and connected massacres.3735 He testified that allegations of massacres committed by his subordinates were lies concocted by the RPF and its allies,3736 and he characterised the massacres of Tutsi civilians as “on and off killings that took place here and there” and nothing more than “a situation of unrest in which some people perished”.3737 2007. In assessing Bizimungu’s superior responsibility, the Chamber has considered the measures that Bizimungu claimed to have taken in order to stop the killings. In particular, the Chamber recalls his evidence that on 22 April 1994, a few days after he took up his post as Chief of Staff of the Army, he issued a radio broadcast addressed to soldiers and civilians calling for the maintenance of order.3738 Bizimungu also claimed to have sent a letter on 1 May 1994 to the Minister of Defence emphasising the need to address the

disturbances that were occurring in the country.3739 Bizimungu further testified to having repeatedly asked the Prime Minister to intervene to get the political parties to restrain their respective militias, especially the Interahamwe, from committing crimes.3740 In support of this contention, Bizimungu’s Defence Counsel referred to a document authored by Jean Kambanda in which the latter confirms having been requested repeatedly by Bizimungu and General Kabiligi to urge the political parties to stop the Interahamwe from killing civilians in the country.3741 Bizimungu also claimed to have sent telegrams and issued written instructions to various units of the Army emphasising the importance of maintaining discipline.3742 3734 T. 13 December 2007, p. 24. 3735 T. 14 December 2007, pp. 22-23. 3736 T. 12 December 2007, pp 58-59, 68-69. 3737 T. 13 December 2007, pp. 18, 31. 3738 T. 11 December 2007, pp. 34-35. 3739 T. 11 December 2007, p. 35. 3740 T. 11 December 2007, p. 35. 3741 T. 11 December 2007, p. 36. 3742 T. 13 December 2007, p. 27. 17 May 2011 453/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2008. The Chamber notes that international law does not provide a detailed list of preventive mechanisms or modes of punishment that a superior is bound to adopt in order to fulfil his duties. The law only requires that a superior adopt measures that are necessary and reasonable in order to prevent or punish crimes committed by his subordinates. A determination of what constitutes necessary and reasonable measures in a specific case will depend on the circumstances of that case, and in particular on the extent of the superior’s material ability to take action to prevent or punish crimes.3743 2009. After careful consideration, the Chamber is not satisfied that the measures that Bizimungu purported to have taken are sufficient to relieve him of criminal responsibility as a superior. Given the scale of the crimes committed by his subordinates, the means available to him and the extent of his authority as suggested by the evidence, the Chamber finds that it was open to Bizimungu to adopt additional measures in order to avert the large-scale crimes committed against Tutsi civilians and/or to punish the perpetrators of those crimes who were his subordinates. The Chamber therefore considers that the measures adopted by Bizimungu fall far below what could be deemed necessary and reasonable given the means available to him.

2010. The insufficiency of the measures adopted by Bizimungu is demonstrated by the fact that none of the measures that he claims to have taken included disciplinary or punitive actions against his subordinates for their implication in crimes. His refusal to punish the offenders must have been viewed by his subordinates as implicit acquiescence on the part of the Army’s high command in their crimes. In the view of the Chamber, this would have greatly diminished the force of the numerous orders and instructions that Bizimungu claimed to have issued to his troops regarding discipline.

2011. For reasons articulated above, the Chamber is satisfied that Bizimungu had the material ability to prevent and/or punish crimes. Nonetheless, he failed to honour his obligations as a commander. 1.14 François-Xavier Nzuwonemeye’s Superior Responsibility 1.14.1 Authority: General Considerations 2012. The Indictment alleges that François-Xavier Nzuwonemeye was a Major in the Rwandan Army and commander of the RECCE Battalion at the time of the events and that he exercised authority over all units of the battalion.3744 Nzuwonemeye’s Defence concedes that he was appointed commander of the RECCE Battalion in November 1993 and continued to hold that position during the period covered by the Indictment.3745 The Defence further concedes that squadron and unit commanders with the RECCE Battalion were answerable to the battalion commander.3746 However, the Defence submits that the RECCE Battalion was under the operational and administrative command of the Chief of Staff of the Rwandan Army, from whom Nzuwonemeye received orders and to whom he reported. In addition, the Defence argues that the RECCE Battalion commander was under the command of the 3743 Blaškić Trial Judgement, para. 302; Aleksovski Trial Judgement, para. 78; Strugar Trial Judgement, para. 378. 3744 Indictment, paras. 8-9, 21. 3745 Nzuwonemeye Closing Brief, para. 3. 3746 Nzuwonemeye Closing Brief, para. 201. 17 May 2011 454/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T operational sector commander for Kigali and reported to the commander of Camp Kigali for matters dealing with activities within the camp.3747 1.14.2 De Jure Authority 2013. It is common ground between the parties that Nzuwonemeye assumed the position of commander of the RECCE Battalion in November 1993 and continued to hold it until July 1994. By Nzuwonemeye’s own admission, the battalion consisted of approximately 350 to 400 soldiers divided into three squadrons (A, B, and C) and two companies (a general staff and services company and an infantry company) when hostilities broke out on 6 April 1994. As a specialised unit of the Rwandan Army, the battalion used armoured vehicles as combat weapons and was directly responsible for supporting the Rwandan Army in its war against the RPF. The battalion also served as the vanguard of the army at the battlefront, collected military intelligence and controlled strategic points in Kigali. Considering the mission assigned to it, the RECCE Battalion was regarded as a specialised force comprised of soldiers with exemplary discipline.3748 It is clear that as commander of the RECCE Battalion, Nzuwonemeye had de jure authority over that force. 1.14.3 De Facto Authority 2014. The evidence before the Chamber demonstrates that Nzuwonemeye in fact acted as a person of

authority over members of the RECCE Battalion during the events in question. On the night of 6 to 7 April, soon after the death of the President, Nzuwonemeye attended a meeting of senior military officers at the Army Headquarters in his capacity as RECCE commander. The next day, Nzuwonemeye again attended a meeting of the most senior officers of the Rwandan Armed Forces at ESM. Nzuwonemeye testified that before his departure for the ESM meeting in the morning of 7 April, he instructed Captain Dukuzumuremyi to be in charge of the battalion. In the Chamber’s view, Nzuwonemeye was not only formally appointed as RECCE Battalion commander, but was also recognised by his peers as the legitimate head and representative of the battalion.

2015. Furthermore, the Chamber believes the evidence of several Prosecution witnesses that soon after the presidential plane crashed on 6 April, Nzuwonemeye convened and addressed an assembly of RECCE Battalion soldiers within Camp Kigali, informed the troops about the death of the President and issued operational instructions to his squadron commanders. Later that evening, after returning from the meeting at the Army Headquarters, Nzuwonemeye met in his office with squadron commanders of the RECCE Battalion, including Sagahutu. Among other things, he ordered Sagahutu to ensure protection of the sensitive points within Kigali. This order was carried out with the deployment of several RECCE armoured vehicles from the camp that evening. Early in the morning of 7 April, Nzuwonemeye ordered the re- deployment of RECCE armoured vehicles from sensitive points such as Radio Rwanda to reinforce Presidential Guard troops at the residence of the Prime Minister. This order, which was given to Sagahutu in the latter’s capacity as head of Squadron A, was also carried out. By his own admission, Nzuwonemeye also received a SITREP from Sagahutu on 7 April indicating that his instructions regarding protection of the sensitive points had been carried out. In addition, on the basis of Nzuwonemeye’s instructions, Prosecution Witness ALN and 3747 Nzuwonemeye Closing Brief, para. 200. 3748 Nzuwonemeye Closing Brief, paras. 204, 207, 260. 17 May 2011 455/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence Witness LLO were deployed to provide protection to Nzuwonemeye’s family and subsequently escorted them from Kigali on 11 April 1994.

2016. Based on the factors outlined above, the Chamber finds that Nzuwonemeye exercised de facto authority over all members of the RECCE Battalion from 6 to 7 April; he issued instructions to his subordinates, including Sagahutu, the instructions were carried out and reports were sent back to him in his capacity as commander. 1.14.4 Superior – Subordinate Relationship 2017. The Chamber has found that on 6 April 1994, on the basis of an order issued by Nzuwonemeye to Sagahutu, a RECCE Battalion armoured unit under the leadership of Warrant Officer Boniface Bizimungu and including Corporal Fiacre Afrika was deployed to protect sensitive points in Kigali City. Subsequently, in compliance with a further order from Nzuwonemeye, Sagahutu instructed this unit to move towards the Prime Minister’s residence so as to support Presidential Guard soldiers located there. The Chamber has heard convincing and corroborated evidence that this unit collaborated with Presidential Guard and other Rwandan soldiers to attack and kill Prime Minister Agathe Uwilingiyimana. The Chamber is satisfied that the RECCE Battalion soldiers who directly or indirectly participated in the attack on the Prime Minister, including W.O. Bizimungu, Corporal Afrika and Captain Sagahutu, were subordinates of Nzuwonemeye on 6 to 7 April 1994.

2018. The Chamber recalls that within a few hours after the death of the Prime Minister, a group of Belgian UNAMIR soldiers were brutally murdered at Camp Kigali. The evidence demonstrates that several RECCE Battalion soldiers were present during this attack and that at least two RECCE Battalion soldiers, namely Nzeyimana and Masonga, directly participated in the attack and killing of the Belgian soldiers who were holed up in the UNAMIR building. Nzeyimana and Masonga were armed with a MGL taken from Sagahutu’s office with Sagahutu’s consent and instruction to kill Belgian soldiers who were putting up resistance at the entrance of Camp Kigali. The Chamber is satisfied that Nzeyimana, Masonga and Sagahutu were all RECCE Battalion soldiers on 7 April 1994 and therefore subordinates of Nzuwonemeye. 1.14.5 Knowledge 2019. The Chamber is satisfied that Nzuwonemeye had actual knowledge that his subordinates were about to commit or had committed a crime with respect to the death of Prime Minister. This conclusion is borne out by the organised nature of the deployment of RECCE troops to the vicinity of Prime Minister Agathe Uwilingiyimana’s residence on Nzuwonemeye’s instructions, the regular communication between W.O. Bizimungu and senior RECCE officers including Sagahutu throughout the attack, as well as the supply of food and materials from RECCE Headquarters to W.O. Bizimungu while he was at the Prime Minister’s residence. The Chamber is satisfied that the involvement of RECCE Battalion soldiers in such an organised operation required authorisation from the highest levels of the battalion.

2020. Regarding the killings of the Belgian soldiers, the Chamber finds that Nzuwonemeye had reason to know that RECCE Battalion soldiers had participated in that crime. The Chamber has found that Nzuwonemeye attended the ESM meeting of senior military officers in the morning of 7 April between 10.00 a.m. and 12.30 p.m., after which he returned to 17 May 2011 456/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Camp Kigali. Based on his own testimony, he took the longer route through ESM which, as the Chamber found earlier, would have placed him at Camp Kigali sometime between 12.40 and 12.45 p.m. The Chamber also found that the attack on the Belgian soldiers lasted from about 9.00 or 9.30 a.m. until about 2.30 or 3.00 p.m. on 7 April. In particular, the crucial second phase of the attack, which involved RECCE Battalion soldiers firing heavy weapons into the UNAMIR building, took place between 2.00 and 3.00 p.m. By this time, Nzuwonemeye had returned to his office from ESM.

2021. The Chamber notes that Nzuwonemeye does not deny that he knew of the killings of the Belgian soldiers at Camp Kigali on 7 April 1994. He only denied the involvement of his subordinates in those killings.

2022. Nzuwonemeye told the Chamber that upon his arrival at the camp, he tried but failed to contact Captain Dukuzumuremyi, whom he had left in charge of the battalion. He then made inquiries to the General Staff and Services Company, but was not told about the involvement of RECCE Battalion soldiers in the attack on the Belgians. In the view of the Chamber, the fact that he inquired about the involvement of RECCE Battalion soldiers in the killings is itself an indication of his notice of the possibility that they were implicated in those killings. Given the short distance between Nzuwonemeye’s office and the location in Camp Kigali where the Belgian soldiers were killed; the fact that the attack involved soldiers from various units based at Camp Kigali; Nzuwonemeye’s presence at the camp for at least two hours during the attack; the use of an MGL from the RECCE Battalion’s arsenal in the attack; as well as the normal command, control and reporting structures within the RECCE Battalion, the Chamber is satisfied that Nzuwonemeye had reason to know about the participation of RECCE Battalion soldiers in that attack. 1.14.6 Failure to Prevent or Punish 2023. The Chamber has concluded that the attack on the Prime Minister was a highly organised military operation. The participation of RECCE Battalion soldiers in that operation required authorisation of the highest levels of the

battalion. As battalion commander, Nzuwonemeye failed to prevent his subordinates from committing this crime or to punish them thereafter. Considering the material and human resources at his disposal as RECCE commander, the disciplinary reputation of RECCE Battalion soldiers, and the fact that all his orders were dutifully obeyed by Sagahutu and other RECCE Battalion soldiers, the Chamber considers that Nzuwonemeye had the material ability to prevent or punish this crime but failed to do so.

2024. Regarding the killing of the Belgian soldiers, the Chamber has found that members of the RECCE Battalion were present during the first phase of the attack and actively participated in the second phase of the attack. The Chamber is not satisfied that Nzuwonemeye took sufficient measures to punish those RECCE members who were involved in the killings. 17 May 2011 457/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.15 Innocent Sagahutu’s Superior Responsibility 1.15.1 Authority: General Considerations 2025. The Indictment alleges that Captain Innocent Sagahutu was second-in-command of the RECCE Battalion and commander of Company A.3749 It is further alleged that in these capacities, he exercised authority over all units in the battalion.3750 The Defence concedes that Sagahutu commanded Squadron A of the RECCE Battalion at the time of the events relevant to the Indictment, but it disputes that he was second-in-command or acting battalion commander.3751 1.15.2 De Jure Authority 2026. The Chamber has considered the Prosecution evidence regarding Sagahutu’s alleged position as second-in-command of RECCE, but is not convinced that such a position existed within the battalion. Evidence from Prosecution Witnesses DA, HP and ANK/XAF that Sagahutu acted, deputised for or replaced the battalion commander in the latter’s absence is inconclusive on the issue. On the other hand, both Nzuwonemeye and Defence Expert Witness Bernard Lugan clearly testified that the position of second-in-command never existed within the RECCE Battalion and that Sagahutu only had authority over soldiers of Squadron A.3752 Moreover, Defence Exhibit 3, which lists the officers of the Rwandan Army as of 5 March 1994, indicates that the position of second-in-command did not exist in the RECCE Battalion’s organisational hierarchy. The Chamber therefore finds that the Prosecution has failed to prove beyond reasonable doubt that Sagahutu held the position of second-in-command or acting commander of the RECCE Battalion.

2027. The Chamber, however, finds that Sagahutu exercised de jure authority over members of Squadron A of the RECCE Battalion. 1.15.3 De Facto Authority 2028. The evidence shows that on 6 April, Sagahutu ordered elements of Squadron A to deploy to sensitive points within Kigali city. In particular, it is clear that Sagahutu carried out orders from Nzuwonemeye to deploy RECCE armoured units to protect specific locations in the Kiyovu neighbourhood of Kigali including Radio Rwanda, the National Bank of Rwanda, the National Telecommunications Centre and the President’s office. One such unit from Squadron A was led by W.O. Boniface Bizimungu and included corporal Fiacre Afrika, a gunner. On Sagahutu’s instructions, this unit was initially deployed to the Milles Collines Junction, near Radio Rwanda, and subsequently to Paul VI Avenue, within close proximity of the Prime Minister’s residence. There is other evidence showing Sagahutu’s de facto authority over Squadron A soldiers: on his instructions, Witnesses DA and HP took ammunition, food and other supplies to W.O. Bizimungu during the latter’s deployment on Paul VI Avenue; Sagahutu gave operational instructions to Bizimungu regarding, inter alia, 3749 The Chamber notes that although the Indictment refers to Sagahutu as head of “Company A”, it is common ground among Prosecution and Defence witnesses that Sagahutu was head of Squadron A. As discussed previously, the RECCE Battalion was made up of three squadrons (A, B, C) and two companies (the Infantry Company and the General Staff and Services Company). 3750 Indictment, paras. 11, 12. 3751 Nzuwonemeye Closing Brief, paras. 86-91, 131-141. 3752 T. 7 October 2008, pp. 25, 26; T. 26 November 2008, pp. 71-75; Defence Exhibit 663, pp. 52-57. 17 May 2011 458/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T whether to allow Belgian soldiers access to the Prime Minister’s residence; and significantly, following the Prime Minister’s arrest, Bizimungu asked Sagahutu whether she should be taken to Camp Kigali. Finally, it was on the basis of Sagahutu’s orders that RECCE Battalion soldiers removed the Prime Minister’s body from her residence to Kanombe Hospital on 7 April 1994. The Chamber therefore finds that Sagahutu had de facto authority over RECCE Battalion soldiers from Squadron A who participated in killing the Prime Minister. The Chamber has clear evidence of multiple operational orders issued by him that were dutifully obeyed by his subordinates.

2029. Regarding the killing of the Belgian soldiers, the Chamber is again satisfied that Sagahutu had de facto authority over Corporals Nzeyimana and Masonga, two RECCE Battalion soldiers who were directly involved in the final assault on the Belgians. The Chamber accepts the Prosecution evidence that Sagahutu was present when these two soldiers took the MGL from his office to attack the Belgians. The Chamber is also satisfied that he specifically instructed them to put down any resistance from the Belgians. Sagahutu’s presence at the RECCE office at the time the MGL was taken, his consent to their participation in the attack, as well as his specific instructions to the principal perpetrators (which were acted upon), demonstrate his de facto authority over these soldiers. 1.15.4 Superior – Subordinate Relationship 2030. The Chamber is satisfied from the totality of evidence that W.O. Bizimungu led a unit of Squadron A soldiers located on Paul VI Avenue from 6 to 7 April. This unit collaborated with the Presidential Guard and other Rwandan Army elements to attack and kill the Prime Minister. The direct perpetrators of that crime were therefore subordinates of Sagahutu.

2031. Regarding the killing of the Belgian soldiers, the Chamber has no doubt that Corporal Nzeyimana and Masonga were also subordinates of Sagahutu. By his own admission, Sagahutu told the Chamber that Nzeyimana was a marksman within Squadron A and often acted as Sagahutu’s driver. This places Nzeyimana in a direct superior-subordinate relationship with Sagahutu. Similarly, it is clear that Corporal Masonga worked as an orderly in the Secretariat of the RECCE Battalion. While it is unclear whether he was specifically assigned to Squadron A, the Chamber is satisfied that his position at the RECCE Secretariat, combined with the fact that he received and acted upon specific instructions from Sagahutu on 7 April, placed him in a superior-subordinate relationship with Sagahutu. 1.15.5 Knowledge 2032. The Chamber is satisfied beyond reasonable doubt that Sagahutu had actual knowledge that his subordinates were about to commit or had committed a crime regarding Prime Minister Agathe Uwilingiyimana. First, Sagahutu gave the order for W.O. Bizimungu’s unit to redeploy from Radio Rwanda to a position near the Prime Minister’s residence on Paul VI Avenue, and to collaborate with the Presidential Guard in attacking the Prime Minister. Subsequently, when Belgian UNAMIR soldiers were on their way to the Prime Minister’s residence, Sagahutu was informed about their arrival by W.O. Bizimungu who sought his instructions on whether to allow the Belgians through. Most importantly, after the Prime Minister was arrested, Sagahutu was informed by W.O. Bizimungu who again requested his permission to bring the Prime Minister to Camp Kigali. To this question, Sagahutu gave the rhetorical answer, “[T]o do what?” Shortly thereafter, the Prime Minister 17 May 2011 459/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T was killed. Finally, Sagahutu saw the Prime Minister’s dead body at her residence on 7 April and arranged for its removal from there to Kanombe hospital.

2033. The Chamber is also satisfied that Sagahutu had direct knowledge of the involvement of Squadron A soldiers in the killing of the Belgian soldiers. Sagahutu was present, gave Corporals Nzeyimana and Masonga permission to take the MGL, and specifically instructed them to put down the alleged Belgian resistance. 1.15.6 Failure to Prevent or Punish 2034. The killing of the Prime Minister resulted from a highly organised and specifically authorised military operation involving elements of the RECCE Battalion, especially the Squadron A unit headed by W.O. Bizimungu. Members of this unit could not have participated in the killing of such a senior political figure without the permission of their superiors. Sagahutu failed to prevent his subordinates from committing this crime and failed to punish them thereafter. Similarly, Sagahutu failed to prevent the killing of the Belgian UNAMIR soldiers or to punish his subordinates who participated in that crime. 1.16 Cumulative Convictions 1.16.1 Introduction 2035. The Chamber notes that Count 5 of the Indictment charging extermination as a crime against humanity and Count 7 charging murder as a war crime3753 are based on the same underlying conduct and allegations relied on by the Prosecution in support of Count 2 charging genocide and Count 4 charging murder as a crime against humanity. Similarly, Count 8 of the Indictment charging rape as a war crime is based upon the same underlying conduct and allegations relied on by the Prosecution in support of Count 6 charging rape as a crime against humanity. This practice is referred to as cumulative charging.

2036. It is well established in the Tribunals’ jurisprudence that multiple criminal convictions may be entered under different statutory provisions on the basis of the same conduct only if each of those statutory provisions has a materially distinct element not contained in the other. For this purpose, an element is materially distinct from another if it requires proof of a fact not required by the other element.3754 Where this test is not met, a conviction will be entered only under the more specific provision. The more specific offence subsumes the less specific offence because the commission of the former necessarily entails the commission of the latter.3755 The Chamber will now consider whether it may enter cumulative convictions for the killings charged in Counts 2, 4, 5 and 7 and for the rapes charged in Counts 6 and 7 of the Indictment. 3753 The term “war crimes” is used broadly to encompass violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. 3754 Čelebići Appeal Judgement, para. 412. 3755 Popović et al. Trial Judgement, para. 2111, citing Galić Appeal Judgement, para. 163; Krstić Appeal Judgement, para. 218. 17 May 2011 460/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.16.2 Murder as a Crime Against Humanity and Extermination as a Crime Against Humanity 2037. The crimes against humanity of murder and extermination (Counts 4 and 5) are treated as distinct crimes under Article 3(a) and 3(b) of the Statute. The Chamber recalls that it is not permissible to convict an accused of both murder and extermination as crimes against humanity based on the same set of facts.3756 This is because murder as a crime against humanity does not contain a materially distinct element from extermination. It is well established that the elements of murder are subsumed by the crime of extermination as a crime against humanity and are thus not materially distinct. It follows that where the crimes against humanity of murder and extermination have been cumulatively charged, the Chamber will only enter a conviction under the more specific provision. 1.16.3 Genocide and Extermination as a Crime Against Humanity 2038. The crimes of genocide (Count 2) and extermination as a crime against humanity (Count 5) are treated as distinct crimes by Article 2(3)(a) and Article (3)(b) of the Statute. It is well established that genocide and crimes against humanity contain materially distinct elements.3757 The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a

national, ethnic, racial or religious group.3758 The materially distinct element of a crime against humanity is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population.3759 Convictions for both genocide and crimes against humanity are therefore permissible even where both crimes are based on the same underlying conduct.3760 1.16.4 War Crimes and Crimes Against Humanity 2039. War crimes (Counts 7 and 8) and crimes against humanity (Counts 4 to 6) are treated as distinct crimes by Articles 3 and 4 of the Statute. The Chamber recalls that war crimes and crimes against humanity contain materially distinct elements.3761 The materially distinct element of a war crime is the existence of a nexus between the alleged crime and the armed conflict, satisfying the requirements of Common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II.3762 The materially distinct element of a crime against humanity is the requirement that the crime was committed as part of a widespread or systematic attack against a civilian population.3763 Convictions for both war crimes and 3756 Ntakirutimana Appeal Judgement, para. 542, citing Kayishema and Ruzindana Trial Judgement, paras. 647- 650; Rutaganda Trial Judgement, para. 422; Musema Trial Judgement, para. 957; Semanza Trial Judgement, paras. 500-505. 3757 Kordić and Čerkez Appeal Judgement, para. 1033; Semanza Appeal Judgement, para. 368. 3758 Semanza Appeal Judgement, para. 368. 3759 Ntakirutimana Appeal Judgement, para. 542, citing Musema Appeal Judgement, para.

366. See also Media Appeal Judgement, para. 1029; Ntagerura et al. Appeal Judgement, para. 426; Semanza Appeal Judgement, para. 318. 3760 Ntakirutimana Appeal Judgement para. 542, citing Musema Appeal Judgement, para. 370. 3761 Semanza Appeal Judgement, para. 368. 3762 Semanza Appeal Judgement, para. 368. 3763 Ntakirutimana Appeal Judgement, para. 542, citing Musema Appeal Judgement, para.

366. See also Media Appeal Judgement, para. 1029; Ntagerura et al. Appeal Judgement, para. 426; Semanza Appeal Judgement, para. 318. 17 May 2011 461/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T crimes against humanity are therefore permissible even where crimes are based on the same conduct.3764 1.16.5 War Crimes and Genocide 2040. War crimes (Counts 7 and 8) and genocide (Count 2) are treated as distinct crimes by Articles 4 and 2 of the Statute. It is well established that war crimes and genocide contain materially distinct elements.3765 The materially distinct element of a war crime is the existence of a nexus between the alleged crime and the armed conflict, satisfying the requirements of Common Article 3 of the Geneva Conventions and Article 1 of Additional Protocol II.3766 The materially distinct element of genocide is the specific intent to destroy, in whole or in part, a national, ethnic, racial or religious group. Convictions for both war crimes and genocide are therefore permissible even where both crimes are based on the same conduct.3767 1.17 Count 1: Conspiracy to Commit Genocide 1.17.1 Introduction 2041. Count 1 of the Indictment charges all four Accused with conspiracy to commit genocide pursuant to Article 2(3)(b) of the Statute.3768 It is alleged that all four Accused are criminally responsible pursuant to Article 6(1) because they “decided and executed a common scheme” with their co-Accused and others listed in paragraph 22 of the Indictment to “destroy, in whole or in part,

the Tutsi ethnic group which was one of the component elements of the Rwandan population”.3769 2042. In support of the charge of conspiracy, the Prosecution does not rely on direct evidence of the conspiracy itself. Instead, it relies on several alleged events and circumstantial evidence that it argues evince the existence of the conspiracy. In particular, the Prosecution contends that the “visible components” of the conspiracy to commit genocide included defining the Tutsi ethnic group as the enemy, the “incitement to hatred and vindication of ethnically motivated crimes”, the training and arming of militia groups, the establishment of lists of people to be eliminated, opposition to the Arusha Accords and the refusal to restore order once massacres had begun. 3770 2043. The Defence challenges the charge of conspiracy by arguing that the Indictment improperly pleads conspiracy to commit genocide and fails to identify an agreement to conspire.3771 Furthermore, the Defence denies that the Accused were part of any conspiracy to commit genocide.3772 The Defence also maintains that the Prosecution failed to tender any credible evidence, “visible” or otherwise, of such an agreement during the trial, and that the Prosecution employs alleged facts and circumstances to improperly infer an agreement 3764 Ntakirutimana Appeal Judgement, para. 542, citing Musema Appeal Judgement, para. 370. 3765 Semanza Appeal Judgement, para. 368. 3766 Semanza Appeal Judgement, para. 368. 3767 Ntakirutimana Appeal Judgement, para. 542, citing Musema Appeal Judgement, para. 370. 3768 Indictment, para. 22. 3769 Indictment, para. 22. 3770 Indictment, paras. 22, 25. 3771 Ndindiliyimana Closing Brief, para. 9. 3772 Bizimungu Closing Brief, para. 39. 17 May 2011 462/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T through concerted action when other reasonable explanations exist.3773 The Defence therefore argues that the necessary elements of conspiracy to commit genocide have not been met and that this failure compels an acquittal on Count 1. 1.17.2 Law 2044. Conspiracy to commit genocide is “an agreement between two or more persons to commit the crime of genocide”.3774 As an inchoate crime, conspiracy to commit genocide is punishable even if the crime of genocide has not been committed.

2045. The actus reus of the crime is “an agreement between individuals to commit genocide”.3775 The agreement need not be formal.3776 An agreement may be proved by direct evidence of the conspiracy itself, such as evidence of planning meetings for the genocide, or may be inferred from circumstantial evidence.3777 The concerted or coordinated action of a group of individuals may also constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important: it is not sufficient to simply show similarity of conduct.3778 In certain cases the existence of a conspiracy to commit genocide between individuals controlling institutions could be inferred from the interaction between these institutions.3779 When based on circumstantial evidence, the finding of a conspiracy must be the only reasonable inference based on the totality of the evidence.3780 2046. The Chamber notes that a number of the alleged events relied on by the Prosecution to show a conspiracy took place prior to 1994. The Chamber recalls that the Statute precludes the conviction of an accused for offences that occured outside the Tribunal’s temporal jurisdiction of 1 January to 31 December 1994. Nonetheless, it is now well established that evidence of events prior to 1994 may be considered if such evidence is relevant and of probative value and there is no compelling reason to exclude it. Such evidence

can be relevant to: clarifying a given context; establishing by inference the elements (in particular, criminal intent) of criminal conduct occurring in 1994; and demonstrating a deliberate pattern of conduct.3781 In this instance, the Accused are charged with a conspiracy that was alleged to be of a continuing nature. It is alleged that the conspiracy commenced prior to 1994 and continued into that year, culminating in the commission of the acts contemplated by the conspiracy. Therefore, evidence of a conspiracy prior to 1994 is admissible.

2047. In addition to the actus reus, conspiracy to commit genocide requires that an accused possess the requisite mens rea. The members of a conspiracy must be “aware of its existence, their participation in it, and its role in furtherance of their common purpose [to commit genocide]”.3782 The accused must also possess the mens rea for genocide, that is the specific 3773 Ndindiliyimana Closing Brief, para. 10. 3774 Seromba Appeal Judgement, paras. 218, 221; Media Appeal Judgement, para. 894; Ntagerura et al. Appeal Judgement, para. 92; Kajelijeli Trial Judgement, para. 787; Niyitegeka Trial Judgement, para. 423; Ntakirutimana Trial Judgement, para. 798; Musema Trial Judgement, para. 191. 3775 Seromba Appeal Judgement, para. 221; Media Appeal Judgement, para. 896. 3776 Bikindi Trial Judgement, para. 405; Media Appeal Judgement, para. 898. 3777 Seromba Appeal Judgement, para. 221; Media Appeal Judgement, para. 896. 3778 Media Appeal Judgement, paras. 896-897. 3779 Media Appeal Judgement, para. 907. 3780 Seromba Appeal Judgement, para. 221; Media Appeal Judgement, para. 896. 3781 Media Appeal Judgement, paras. 313, 315-316. In that case, the Appeals Chamber did consider pre-1994 evidence in assessing whether a conspiracy existed. Media Appeal Judgement, paras. 905, 908. 3782 Media Trial Judgement, para. 1047. 17 May 2011 463/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T intent to destroy in whole or in part a national, ethnic, racial or religious group as such.3783 An in-depth analysis of the mens rea for genocide can be found below, in the Chamber’s legal findings for genocide. 1.17.3 Deliberations 2048. The Chamber’s legal analysis in respect of the charge of conspiracy to commit genocide is limited to considering whether the Prosecution has proved beyond reasonable doubt that the four Accused conspired to commit genocide with some or all of the individuals listed in paragraph 22 of the Indictment.

2049. An analysis of paragraphs 22 and 23 of the Indictment as well as the Prosecution Pre- Trial Brief and opening statement suggests that “in late 1990” and following an attack by the Rwandan Patriotic Front, “Hutu military officers in positions of authority ... conceived the idea that the neutralization, indeed even the extermination of the Tutsi ... would be the best approach”. The Chamber therefore finds that the Prosecution’s conspiracy allegation is that at some point after 1990, a conspiracy to commit genocide against the Tutsi existed, and that at some point after 1990, the four Accused were part of that conspiracy.

2050. In relation to the participants in the alleged conspiracy, paragraph 22 lists a number of individuals with whom the four Accused are alleged to have conspired. However, there is only limited evidence on record with respect to many of the named individuals. The Chamber recalls that there is no requirement that it be proved that all of the Accused conspired together. It suffices that the Prosecution establish beyond reasonable doubt that they conspired with at least one other named person to commit genocide.

2051. The Chamber notes that the Prosecution did not adduce any direct evidence of the conspiracy itself. Rather, the Prosecution’s case is built on circumstantial evidence. The Prosecution submits that the only reasonable inference that may be drawn from the evidence is that there was a conspiracy to commit genocide and that the four Accused, as demonstrated by their speeches and conduct, were part of that conspiracy. The Chamber emphasises that the Prosecution’s reliance on circumstantial evidence is not a bar to a finding that a conspiracy existed or that the four Accused are criminally culpable. The key question that must be answered is whether any of the “visible components” of the conspiracy as proved by the Prosecution, either individually or collectively, allow any reasonable inference other than the involvement of the Accused in such a conspiracy. The Chamber will now summarise the “visible components” underpinning the allegation of conspiracy to commit genocide. 1.17.3.1 The Enemy Commission Document 2052. The Prosecution alleges that the depiction of Tutsi in their entirety as enemies or accomplices of the “enemy” in the ENI Document, together with the measures proposed in the ENI Document to address the threat posed by the Tutsi, provide evidence of a conspiracy to commit genocide. The Prosecution further alleges that the Rwandan military elites, including the Accused in this case, subscribed and supported the anti-Tutsi ideology expressed in the ENI Document. The Chamber concluded that this was not proved beyond reasonable doubt. Moreover, there is no evidence that any of the Accused served on the 3783 Seromba Appeal Judgement, para. 175. 17 May 2011 464/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Enemy Commission, nor is there any evidence to suggest that any of the Accused authored the ENI Document or disseminated it to their respective units. 1.17.3.2 Provision of Military Training and Distribution of Weapons to Militia 2053. The Prosecution alleges that between 1992 and 1994, political and military authorities including Augustin Bizimungu and Innocent Sagahutu provided military training and weapons to Interahamwe militiamen. Following analysis of the facts, the Chamber concluded that it is satisfied beyond reasonable doubt that the Rwandan military and civilian authorities did indeed provide such training and weapons. Furthermore, both Bizimungu and Sagahutu played key roles in these activities.

2054. However, when viewed against the backdrop of war that prevailed in Rwanda from 1 October 1990, the Chamber found that a large number of Interahamwe and other civilians received such training and weapons as part of Rwanda’s civilian self-defence programme that took place between 1992 and 1994. Consequently, it was not proved beyond reasonable doubt that the only reasonable inference based on the totality of the evidence is that the provision of military training and weapons during this period was pursuant to a conspiracy to commit genocide. The possibility remains that both Accused were acting independently in the interests of civil defence. 1.17.3.3 Meetings to Devise Strategies for Exterminating Tutsi 2055. The Prosecution alleges that between 1992 and 1994, Augustin Bizimungu participated in several meetings and gatherings at which he devised with others a strategy for fighting the Tutsi enemy and also informed others that he did not want to see Tutsi alive. The Chamber found that certain allegations in the Indictment were defective for lack of specificity. Furthermore, the Prosecution failed to prove beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that the purpose of any alleged meetings or comments made at those meetings was to further a conspiracy to commit genocide. For example, it is conceivable that the purpose of the

alleged meetings related to civilian defence issues or to the shooting down of the President’s plane. 1.17.3.4 Opposition to the Successful Implementation of the Arusha Accords 2056. The Prosecution alleges that the Accused opposed and obstructed the implementation of the Arusha Accords consecrating the return to peace and institutionalised power-sharing between the various political and/or military factions. Specifically, the Prosecution alleges that Ndindiliyimana took part in a meeting at the MRND Headquarters to oppose the disarmament program that was included in the Arusha Accords and took measures calculated to compromise the effectiveness of the Kigali Weapons Security Area (KWSA). The Prosecution also alleges that Nzuwonemeye hid RECCE armoured vehicles during UNAMIR weapons inspections. The Chamber found that the Prosecution presented no evidence in support of the allegation that Ndindiliyimana participated in a meeting at the MRND Headquarters. The Chamber also found that the Prosecution failed to prove beyond reasonable doubt that Ndindiliyimana took measures calculated to compromise the effectiveness of the KWSA.

2057. In relation to Nzuwonemeye, the Chamber found that RECCE armoured vehicles were indeed hidden in an attempt to evade UNAMIR inspections. However, opposition to the 17 May 2011 465/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Arusha Accords or acts expressing such opposition, such as evading UNAMIR inspections by hiding vehicles, is not in and of itself evidence of a conspiracy. The Chamber found that the Prosecution failed to prove beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that there was conspiracy to commit genocide. The evidence could have equally allowed for alternative inferences. 1.17.3.5 Transfer of Gendarmerie Unit Commanders Opposed to the Massacres 2058. The Prosecution alleges that Ndindiliyimana transferred gendarmerie unit commanders to the frontline because they did not participate in the massacres against Tutsi and did not share the anti-Tutsi ideology. It is also alleged that Ndindiliyimana issued laissez- passers to Interahamwe to enable them to massacre Tutsi. The Chamber found that the Prosecution did not adduce credible and corroborated evidence in support of these allegations and therefore failed to prove them beyond reasonable doubt. 1.17.3.6 Formation of the Crisis Committee, the Interim Government and Killing of “Moderate” Political Leaders and Belgian UNAMIR Peacekeepers 2059. The Prosecution alleges that following the death of the President, Ndindiliyimana chaired the Military Crisis Committee and also supported the establishment of an interim

government comprised of Hutu extremists. It is also alleged that Ndindiliyimana failed to intervene in the killing of ten Belgian UNAMIR soldiers and that this was motivated by his desire to provoke the withdrawal of Belgian soldiers and thereby remove an obstacle to the conspiracy to commit genocide. The Chamber found that the Prosecution failed to adduce credible and consistent evidence proving any of these allegations beyond reasonable doubt. It was not proved that Ndindiliyimana was appointed chairman of the Crisis Committee. It was further not proved that Ndindiliyimana had any significant role in the establishment of the interim government or that he was aware that Belgian soldiers were being killed. On the contrary, the Chamber concluded that the evidence on record suggested that Ndindiliyimana was worried about the withdrawal of Belgian soldiers from Rwanda.

2060. The Prosecution also alleges that Ndindiliyimana failed in his duty to protect politicians who were allied with opposition parties and who were expected to take prominent positions in the broad-based transitional government. In relation to this allegation, the Chamber found that Ndindiliyimana was aware that politicians were being killed. However, it was not proved that Ndindiliyimana or his subordinates were complicit in the killings or that the killings were in any way part of a conspiracy to commit genocide to which Ndindiliyimana was party. Rather, the evidence suggested that Ndindiliyimana and gendarmes tried to forewarn certain politicians and were overwhelmed by the situation. 1.17.3.7 Allegations Related to Radio Télévision Libre de Milles Collines 2061. The Prosecution submits that RTLM regularly broadcast anti-Tutsi messages. It alleges that Sagahutu purchased shares in RTLM and encouraged other soldiers to do so. The Prosecution also alleges that Ndindiliyimana avoided investigating the criminal offences committed by journalists at RTLM. The Prosecution contends that these actions are indicative of a larger conspiracy to commit genocide of which the two Accused were part. The Chamber found that the Prosecution failed to prove this allegation against Ndindiliyimana. The Chamber also concluded that Sagahutu did purchase shares in RTLM. Purchasing RTLM shares or encouraging others to do so is not, however, direct evidence of a conspiracy to 17 May 2011 466/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T commit genocide. Furthermore, it was not proved beyond reasonable doubt that the only reasonable inference that could be drawn from the evidence is that these actions were carried out pursuant to a conspiracy. It is quite possible that Sagahutu was acting independently. 1.17.3.8 The Killing of the Prime Minister and Belgian UNAMIR Soldiers 2062. The Chamber has found Nzuwonemeye and Sagahutu guilty of crimes against humanity for the killings of Prime Minister Agathe Uwilingiyimana and the 10 Belgian soldiers who had been assigned to escort her. The Prosecution submits that evidence of these killings together with comments made by Nzuwonemeye allows the Chamber to infer Nzuwonemeye’s and Sagahutu’s participation in a conspiracy to commit genocide. It is submitted that the killings were part of the plan and were committed in order to remove obstacles to the genocide.

2063. The Chamber notes that the killing of the Prime Minister and the second phase of the attack against the 10 Belgian soldiers required a level of sophistication and organisation. However, the Chamber found the Prosecution’s submissions that these acts were evidence of a conspiracy to be without merit. The evidence in this instance is circumstantial in nature. A finding of conspiracy to commit genocide based on this evidence must, therefore, be the only reasonable inference that could be drawn. The Chamber cannot rule out the possibility that the killings were triggered by the assassination of President Habyarimana and were not part of a pre-conceived conspiracy to commit genocide. Consequently, the Chamber is not satisfied that the only reasonable inference that may be drawn is that these killings were committed pursuant to a conspiracy to commit genocide. 1.17.3.9 Augustin Bizimungu’s Anti-Tutsi Remarks and Conduct 2064. The Prosecution alleges that following 6 April 1994, Bizimungu made several remarks encouraging and praising militiamen who had killed Tutsi. Specifically, the Prosecution alleges that Bizimungu congratulated a conseiller of Mukamira for killing Tutsi, and that he attended meetings held on 7 and 8 April and on or about 18 and 21 May, at which he praised and encouraged militiamen who had killed Tutsi. The Chamber found that the Prosecution failed to prove

beyond reasonable doubt that Bizimungu congratulated the conseiller of Mukamira. There is also insufficient evidence to prove beyond reasonable doubt that Bizimungu made anti-Tutsi remarks at meetings held on 8 April and on or about 18 May. However, the Chamber did find that Bizimungu made anti-Tutsi remarks at meetings held on 7 April and on or about 21 May. Notwithstanding these findings, the Prosecution failed to prove beyond reasonable doubt that the only reasonable inference to be drawn from this evidence is that these remarks were made pursuant to a conspiracy. As the Chamber has explained, it is quite possible that the meeting on 7 April was called spontaneously following the death of the President and that the substance of the meeting related to the prevailing situation rather than a plan to destroy in whole or in part the Tutsi ethnic group. Similarly, comments made on or about 21 May, such as those that urged soldiers to keep up the fighting, were consistent with Bizimungu’s role as Chief of Staff and were potentially made to boost the morale of soldiers fighting the RPF.

2065. The Prosecution also alleges that between mid-April and late June, Bizimungu deliberately abstained from ensuring that the Rwandan Army under his command restored order and further that he refused to stop the killings following a request from the United States Department of State. The Chamber found that the Prosecution failed to prove certain 17 May 2011 467/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T elements of these allegations beyond reasonable doubt, and in some cases failed to adduce any evidence at all. However, the Chamber did find that Bizimungu failed to prevent or punish soldiers under his command from committing atrocities. The Chamber also found that a telephone conversation between Bizimungu and the United States Department of State did take place. Notwithstanding these findings, the Chamber found that the Prosecution failed to prove beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that there was conspiracy to commit genocide. 1.17.4 Conclusion 2066. It is undisputed that following the death of the President on 6 April 1994, Rwanda descended into a tragic situation that resulted in massacres of Tutsi civilians. There is no doubt that some of these killings required a certain level of coordination, planning and sophistication. For this reason, the Chamber cannot rule out the possibility of the existence of plans to commit genocide.

2067. However, the Chamber emphasises that the key question in relation to this charge is whether the “visible components” as alleged by the Prosecution prove beyond reasonable doubt that a conspiracy to commit genocide did exist and that the four Accused were party to this conspiracy. For this purpose, the Chamber emphasises that no direct evidence of the existence of a conspiracy was ever adduced. The Chamber is therefore confronted with circumstantial evidence and may only convict where a conspiracy to commit genocide of which the four Accused were part is the only reasonable inference.

2068. As discussed above, the Chamber has already found that no “visible component” individually allows it to conclude that the only reasonable inference that could be drawn is that there was a conspiracy to commit genocide and that the four Accused were part of that conspiracy. The Chamber has now considered the totality of evidence and the cumulative effect of all proven “visible components”. The Chamber finds that while certain elements proved by the Prosecution could collectively be suggestive of a conspiracy to commit genocide, they are also consistent with reasonable alternative explanations. For example, in the context of an ongoing war with the RPF, the “visible components” are arguably consistent with a political and military power struggle against the RPF. The Chamber also finds that while the evidence in this case implicates the Accused to varying degrees in the massacres, the evidence does not demonstrate beyond reasonable doubt that any of the four Accused were party to a conspiracy to commit genocide as set out in paragraph 22 of the Indictment.

2069. Consequently, the Chamber concludes that the Prosecution has not proved beyond reasonable doubt that the only reasonable inference to be drawn from the evidence is that there was a conspiracy to commit genocide. The Prosecution has also failed to prove beyond reasonable doubt that the four Accused conspired among themselves or with others to commit genocide. 1.18 Counts 2 and 3: Genocide and Complicity in Genocide 1.18.1 Introduction 2070. Count 2 of the Indictment charges Augustin Bizimungu and Augustin Ndindiliyimana with genocide pursuant to Article 2(3)(a) of the Statute. The Prosecution alleges that pursuant to both Article 6(1) and Article 6(3), the two Accused are criminally responsible for causing 17 May 2011 468/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T serious bodily or mental harm and killing members of the Tutsi population. It is further alleged that these acts of violence were committed against the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group.

2071. These crimes are also charged in the alternative under Count 3 as complicity in genocide pursuant to Article 2(3)(e) of the Statute. 1.18.2 Law 2072. It is well established that in order to find an accused guilty of genocide, it must be established that the accused committed at least one of the enumerated acts in Article 2(2) of the Statute with the specific intent to destroy, in whole or in part, a group, as such, that is defined by one of the protected categories of nationality, race, ethnicity or religion.3784 Although there is no numeric threshold, the perpetrator must act with the intent to destroy at least a substantial part of the group.3785 The perpetrator need not be solely motivated by a criminal intent to commit genocide, nor does the existence of personal motive preclude him from having the specific intent to commit genocide.3786 2073. In the absence of direct evidence, a perpetrator’s intent to commit genocide may be inferred from relevant facts and circumstances that lead beyond reasonable doubt to the existence of the intent. Factors that may establish the specific intent include the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a protected group, or the repetition of destructive and

discriminatory acts.3787 2074. The Chamber recalls that killing members of a group pursuant to Article 2(2)(a) of the Statute requires a showing that the principal perpetrator intentionally killed one or more members of the group.3788 For this purpose, it is firmly established in the jurisprudence of this Tribunal that the Tutsi ethnicity is a protected group.3789 2075. The Chamber further recalls that pursuant to Article 2(2)(b) of the Statute, a conviction for genocide may be based on causing serious bodily or mental harm to members of a group. The Appeals Chamber has noted that the term “serious bodily or mental harm” is 3784 Bagosora et al. Trial Judgement, para. 2115, citing Media Appeal Judgement, paras. 492, 496, 522-523; Gacumbitsi Appeal Judgement, para. 39; Brđanin Trial Judgement, paras. 681, 695. 3785 Bagosora et al. Trial Judgement, para. 2115, citing Seromba Appeal Judgement, para. 175; Gacumbitsi Appeal Judgement, para. 44; Simba Trial Judgement, para. 412; Semanza Trial Judgement, para. 316. 3786 Bagosora et al. Trial Judgement, para. 2115, citing Simba Appeal Judgement, para. 269; Ntakirutimana Appeal Judgement, paras. 302-304; Niyitegeka Appeal Judgement, para. 53; Krnojelac Appeal Judgement, para. 102, referring to Jelisić Appeal Judgement, para. 49. 3787 Bagosora et al. Trial Judgement, para. 2116, citing Seromba Appeal Judgement, para. 176, referring to

Seromba Trial Judgement, para. 320; Media Appeal Judgement, paras. 524-525; Simba Appeal Judgement, para. 264; Gacumbitsi Appeal Judgement, paras. 40-41; Rutaganda Appeal Judgement, para. 525; Semanza Appeal Judgement, para. 262, citing Jelisić Appeal Judgement para. 47; Kayishema and Ruzindana Appeal Judgement, paras. 147-148. 3788 Bagosora et al. Trial Judgement, para. 2117, citing Simba Trial Judgement, para. 414, referring to Kayishema and Ruzindana Appeal Judgement, para. 151. 3789 Bagosora et al. Trial Judgement, para. 2117. 17 May 2011 469/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T not defined in the Statute. 3790 However, the term “causing serious bodily harm” refers to acts of “sexual violence” and “serious physical violence” falling short of killing that seriously damage the health, disfigure or cause any serious injury to the external or internal organs or senses.3791 According to the Appeals Chamber, “the quintessential examples of serious bodily harm are torture, rape, and non-fatal physical violence that causes disfigurement or serious injury to the external or internal organs.”3792 Serious mental harm refers to “more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat”.3793 The serious bodily or mental harm need not be an injury that is permanent or irremediable.3794 This harm can include crimes of sexual violence, including rape.3795 To support a conviction for genocide, the bodily or mental harm inflicted on members of a group must be of such a serious nature as to threaten its destruction in whole or in part.3796 1.18.3 Deliberations 1.18.3.1 Massacres in Nyaruhengeri: Kansi Parish, 20, 21 and 22 April 2076. It is undisputed that in the days leading up to 21 April 1994, a significant number of Tutsi refugees from neighbouring communes gathered at Kansi Parish. There is also no dispute that Tutsi refugees were killed at Kansi Parish.

2077. On 21 April, gendarmes who were guarding Ndindiliyimana’s residence in Nyaruhengeri distributed weapons to Interahamwe and accompanied other gendarmes and Interahamwe to Kansi Parish. Thereafter, the gendarmes attacked and killed refugees who were there. This attack continued on 22 April.

2078. Given the manner in which these attacks unfolded, the Chamber finds that the gendarmes guarding Ndindiliyimana’s residence intentionally killed members of the Tutsi ethnic group. In view of the large number of Tutsi victims and the manner of the attack, including the distribution of weapons to Interahamwe in advance of the attack, the only reasonable conclusion is that the gendarmes who physically perpetrated these attacks possessed the specific intent to destroy, in whole or in substantial part, the Tutsi group.

2079. In light of Ndindiliyimana’s admission that had gendarmes guarding his residence participated in the attack at Kansi Parish, “he would have known”, and given his awareness of the gathering of Tutsi refugees at Kansi Parish following his two visits on 15 April and on 3790 Seromba Appeal Judgement, para.

46. See also Kayishema and Ruzindana Trial Judgement, paras. 111, 113, holding “that ‘causing serious mental harm’ should be interpreted on a case-by-case basis in light of the relevant jurisprudence.” 3791 Bagosora et al. Trial Judgement, para. 2117, citing Seromba Appeal Judgement, paras. 46-49; Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, para. 320, citing Kayishema and Ruzindana Trial Judgement, para. 110. 3792 Seromba Appeal Judgement, para. 46. 3793 Seromba Appeal Judgement para. 46, citing Kajelijeli Trial Judgement, para. 815, citing Kayishema and Ruzindana Trial Judgement, para. 110; Semanza Trial Judgement, para. 321. 3794 Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, paras. 320, 322. 3795 Seromba Appeal Judgement, para. 46; Gacumbitsi Trial Judgement, para. 292; Akayesu Trial Judgement, paras. 706-707. 3796 Seromba Appeal Judgement, para. 46, citing Kajelijeli Trial Judgement, para. 184; Krajišnik Trial Judgement, para. 851; Report of the International Law Commission on the Work of its Forty-Eighth Session 6 May - 26 July 1996, UN GAOR International Law Commission, 51st Sess., Supp. No. 10, p. 91, UN Doc. A/51/10 (1996). 17 May 2011 470/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 22 April, the Chamber has found that Ndindiliyimana bears superior responsibility for these crimes. Given the circumstances of the attacks, described above, the Chamber is satisfied that Ndindiliyimana was aware of the gendarmes’ genocidal intent. 1.18.3.2 Massacres in Kigali: St. André College, 13 April 1994 2080. Between 7 and 8 April 1994, hundreds of people, mainly Tutsi, sought refuge at St. André College in Kigali. On or about 13 April 1994, gendarmes from the Nyamirarnbo brigade acting in collaboration with Interahamwe selected Tutsi men from the college and then killed those men outside.

2081. The Chamber finds that, given the nature of the attacks, the assailants intentionally killed members of the Tutsi ethnic group. The number of Tutsi victims at the college and the deliberate selection of Tutsi men based on their identity cards, considered in conjunction with the extensive evidence concerning the targeting of Tutsi in Rwanda, show that the assailants who physically perpetrated these attacks possessed the specific intent to destroy, in whole or in substantial part, the Tutsi group.

2082. The fact that the gendarmes who attacked the refugees at St. André College were led by a Second Lieutenant from the Nyamirambo brigade of the Gendarmerie suggests that the assailants were operating in an organised manner and within the orders and knowledge of their immediate commanders. The Chamber has concluded that Ndindiliyimana acted as their superior. Ndindiliyimana admitted that he received reports from his General Staff and issued orders to his subordinates regarding events at St. André College around the time that these crimes were committed.

2083. The Chamber has found that Ndindiliyimana bears superior responsibility for the crimes committed by gendarmes at St. André College. Given the circumstances surrounding the attacks at the college, the Chamber is satisfied that Ndindiliyimana was aware of the perpetrators’ genocidal intent. 1.18.4 Conclusion: Count 2 2084. Pursuant to Article 6(3) of the Statute, the Chamber finds Augustin Ndindiliyimana guilty of the crime of genocide committed at Kansi Parish and St. André College. 1.18.5 Conclusion: Count 3 2085. Count 3 of the Indictment charges both Bizimungu and Ndindiliyimana with complicity in genocide in the alternative. In light of the Chamber’s finding in relation to genocide under Count 2, the Chamber makes no finding in relation to the charges of complicity in genocide. 1.19 Counts 4, 5 and 6: Crimes Against Humanity 1.19.1 Introduction 2086. Counts 4, 5 and 6 of the Indictment charge the Accused with murder, persecution and rape as crimes against humanity pursuant to Article 3(a), (b) and (g) of the Statute. 17 May 2011 471/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.19.2 Widespread or Systematic Attack 2087. In order to secure a conviction for a crime listed under Article 3 of the Statute, the Prosecution must prove that the crimes were committed as part of a widespread or systematic attack against the civilian population on national, political, ethnic, racial or religious grounds.3797 An “attack” against a civilian population means the perpetration against that population of a series of acts of violence or of the kind of mistreatment referred to in sub- paragraph (a) to (i).3798 “Widespread” refers to the large-scale nature of the attack and the number of targeted persons, while “systematic” describes the organised nature of the acts of violence and the improbability of their random occurrence.3799 The requirements of “widespread” or “systematic” are disjunctive elements, such that proof of either element suffices for liability.3800 2088. The mens rea for crimes against humanity is that the perpetrator must have acted with knowledge of the broader context and knowledge that his acts formed part of the attack, but need not share the purpose or goals of the broader attack.3801 The additional requirement that crimes against humanity be committed “on national, political, ethnic, racial or religious grounds” does not mean that a discriminatory mens rea must be

established.3802 2089. The Chamber has considered the totality of the evidence before it, particularly the evidence concerning the ethnic composition of the individuals who were killed or who sought refuge at various locations in Rwanda, as well as the actual or perceived political leanings of many of those killed or singled out at roadblocks during the events in this case. The Chamber is satisfied that widespread and systematic attacks were launched against members of the civilian population in Rwanda on ethnic and political grounds following the death of President Habyarimana. As high-ranking military officers, the Accused would have been familiar with the situation both nationally and in areas under their control. Considering the highly organised and broad-based nature of the attacks on civilians, it is inconceivable that the Accused and the principal perpetrators did not know that their actions formed part of the larger attacks. 3797 Bagosora et al. Trial Judgement, para. 2165, citing Semanza Appeal Judgement, paras. 326-332; Akayesu Appeal Judgement, paras. 467, 469; Ntakirutimana, Appeal Judgement, para. 516. 3798 Media Appeal Judgement, paras. 915-918; Kordić and Čerkez Appeal Judgement, para. 666; Kunarac et al. Appeal Judgement, para. 89; Kunarac et al. Trial Judgement, para. 415. 3799 Media Appeal Judgement, para. 920, quoting Kordić and Čerkez Appeal Judgement, para.

94; Mpambara Trial Judgement, para. 11; Semanza Trial Judgement, paras. 328-329; Kunarac et al. Trial Judgement, paras. 428-429; Kunarac et al. Appeal Judgement, para. 94; Gacumbitsi Appeal Judgement, para. 101, citing Gacumbitsi Trial Judgement, para. 299; Stakić Appeal Judgement, para. 246; Blaškić Appeal Judgement, para. 101; Limaj et al. Trial Judgement, para. 180. 3800 Setako Trial Judgement, para. 476; Bagosora et al. Trial Judgement, para. 2165; Media Appeal Judgement, para. 920. 3801 Bagosora et al. Trial Judgement, para. 2166, citing Gacumbitsi Appeal Judgement, paras. 86, 103; Galić Appeal Judgement, para. 142; Simba Trial Judgement, para. 421; Kordić and Čerkez Appeal Judgement, para. 99; Kunarac et al. Trial Judgement, para. 434; Kunarac et al. Appeal Judgement, para. 102; Blaškić Appeal Judgement, paras. 124-127. 3802 Bagosora et al. Trial Judgement, para. 2166, citing Akayesu Trial Judgement, paras. 464-469, 595; Bagilishema Trial Judgement, para. 81. 17 May 2011 472/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.19.3 Count 4: Murder 1.19.3.1 Introduction 2090. Count 4 of the Indictment charges the Accused with murder as a crime against humanity under Article 3(a) of the Statute. 1.19.3.2 Law 2091. Murder is the intentional killing of a person without any lawful justification or excuse or the intentional infliction of grievous bodily harm leading to death with knowledge that such harm will likely cause the victim’s death.3803 1.19.3.3 Deliberations 1.19.3.3.1 Killing of Prime Minister Agathe Uwilingiyimana 2092. The Chamber has found that on 7 April 1994, RECCE Battalion soldiers under the command of Nzuwonemeye and Sagahutu participated in the attack on and killing of Prime Minister Agathe Uwilingiyimana. The killing of the Prime Minister was an organised military operation carried out with the authorisation of senior military officers. Specifically, the involvement of an armoured unit from the RECCE Battalion was ordered by Nzuwonemeye and carried out by Sagahutu. Throughout the attack, Nzuwonemeye and Sagahutu remained in contact with the troops on the ground, sending them supplies and issuing operational instructions. Based on the evidence before it, the Chamber finds that Nzuwonemeye and Sagahutu are responsible under Article 6(1) of the Statute for ordering the killing of the Prime Minister and also aiding and abetting the direct perpetrators.

2093. The Chamber has also concluded that both Nzuwonemeye and Sagahutu bear superior responsibility for this killing under Article 6(3). The direct perpetrators and the Accused were aware that this killing formed part of a systematic attack against the civilian population on political grounds.

2094. Having found there is a basis for finding Nzuwonemeye and Sagahutu guilty under both Articles 6(1) and 6(3) for the killing of the Prime Minister, the Chamber will only enter a conviction under Article 6(1) and will consider their command responsibility in determining an appropriate sentence. 1.19.3.3.2 Killing of the Belgian Soldiers 2095. The Chamber has found that on 7 April 1994, RECCE Battalion soldiers under the command of Nzuwonemeye and Sagahutu participated in the attack on and killing of UNAMIR soldiers belonging to the Belgian contingent at Camp Kigali. The Belgian peacekeepers had been dispatched to escort Prime Minister Agathe Uwilingiyimana to Radio Rwanda during an attack on her residence by Rwandan soldiers. The evidence demonstrates that the mandate of the UNAMIR peacekeeping force under Chapter VI of the UN Charter did not include active combat. Moreover, it is clear that in the morning of 7 April, the Belgian 3803 Bagosora et al. Trial Judgement, para. 2169; Karera Trial Judgement, para.

558. See also Bagilishema Trial Judgement, para. 86; Ntagerura et al. Trial Judgement, para. 700; Semanza Trial Judgement, para. 339 requiring an element of pre-meditation. 17 May 2011 473/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T soldiers were disarmed and taken to Camp Kigali where they were brutally murdered. The Chamber is satisfied, therefore, that at the time of the attack the victims could not be considered combatants.3804 2096. The Belgian peacekeepers were arrested and disarmed during the course of an attack on the Prime Minister, which was clearly part of the broader attack against the civilian population on political grounds. Furthermore, various witnesses testified that there were widespread rumours within Camp Kigali on 6 and 7 April that the Belgians were responsible for shooting down President Habyarimana’s plane and that the attack on them was, at least initially, provoked by this erroneous belief. It is therefore clear that the killing of the peacekeepers formed part of the widespread and systematic attack on political and ethnic grounds.

2097. The Chamber has not heard any evidence of Nzuwonemeye’s direct involvement in the attack on the Belgian soldiers. Although Nzuwonemeye was not present at Camp Kigali during the attack, he admitted to learning about the killings on his return from the meeting at ESM around 12.00 noon. The Chamber has found that Nzuwonemeye bears superior responsibility under Article 6(3) for failing to punish the crimes committed by his subordinates against the Belgian peacekeepers under Article 6(3). The direct perpetrators and Nzuwonemeye were aware that these attacks formed part of a widespread and systematic attack against the civilian population on ethnic and political grounds.

2098. Regarding Sagahutu, the Chamber has found that on 7 April 1994, while at the RECCE Headquarters, Corporals Nzeyimana and Masonga reported to Sagahutu that Belgian soldiers were putting up a resistance in the UNAMIR building. Sagahutu instructed them to put down the resistance, and in his presence the two soldiers took a MGL from his office and went to participate in the attack during which the remaining Belgian soldiers were killed. Based on this evidence, the Chamber has found that Sagahutu bears superior responsibility for the crimes committed against the Belgian peacekeepers under Article 6(3). The direct perpetrators and Bizimungu were aware that these attacks formed part of a widespread and systematic attack against the civilian population on ethnic and political grounds. 1.19.3.3.3 Killing at the Josephite Brothers Compound 2099. On or about 7 June 1994, soldiers from the Rwandan Army surrounded the Josephite Brothers compound in Kigali. The soldiers forced those who were inside the house to come outside and shot them.

2100. The Chamber has concluded that Bizimungu bears responsibility for the killings of the Josephite Brothers in Kigali as a superior under Article 6(3). The direct perpetrators and Bizimungu were aware that these killings formed part of a widespread and systematic attack against the civilian population on ethnic and political grounds. 3804 See Martić Appeal Judgement, paras. 302, 313 (referring to Article 5 of the ICTY Statute concerning crimes against humanity). In the Martić case, the Appeals Chamber determined that the definition of civilians contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying crimes against humanity. The term civilian in that context does not include persons hors de combat. The Appeals Chamber held that, according to the Statute, a person hors de combat may be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a widespread or systematic attack against any civilian population. 17 May 2011 474/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.19.3.3.4 Killings at the Préfecture Office and Episcopal Church of Rwanda in Butare 2101. During late April and May 1994, several hundred Tutsi civilians sought refuge at the préfecture office and the Episcopal Church of Rwanda (EER) in Butare préfecture. The Chamber has found that soldiers and Interahamwe abducted and killed many of the refugees at these locations during this period.

2102. It has also concluded that Bizimungu bears responsibility for the crimes committed at the Butare préfecture office and EER as a superior under Article 6(3). The direct perpetrators and Bizimungu were aware that these killings formed part of a widespread and systematic attack against the civilian population on ethnic and political grounds. 1.19.3.3.5 Killings at Cyangugu Stadium 2103. Following the death of President Habyarimana on 6 April 1994, approximately 4,000 to 5,000 members of the civilian Tutsi population sought refuge at Cyangugu Stadium. The Chamber has found that on numerous occasions during April and May 1994, male Tutsi refugees were removed from Cyangugu Stadium by soldiers and then killed by soldiers and Interahamwe.

2104. The Chamber has also concluded that Bizimungu bears responsibility for the crimes committed at Cyangugu Stadium as a superior under Article 6(3). The direct perpetrators and Bizimungu were aware that these attacks formed part of a widespread and systematic attack against the civilian population on ethnic and political grounds. 1.19.3.4 Conclusion 1.19.3.4.1 Bizimungu 2105. The Chamber finds Bizimungu guilty of murder as a crime against humanity as a superior under Article 6(3) for the killings at the Josephite Brothers compound in Kigali on 7 June 1994, the killings committed at Cyangugu Stadium during April and May 1994, and the killings committed at the préfecture office and EER in Butare after 19 April 1994. 1.19.3.4.2 Nzuwonemeye 2106. The Chamber finds Nzuwonemeye guilty under Article 6(1) for ordering and for aiding and abetting murder as a crime against humanity in respect of the killing of Prime Minister Agathe Uwilingiyimana on 7 April 1994. Nzuwonemeye’s superior responsibility under Article 6(3) will be considered in sentencing. The Chamber also finds Nzuwonemeye guilty under Article 6(3) for murder as a crime against humanity in respect of the killing of the Belgian soldiers at Camp Kigali on 7 April 1994. 1.19.3.4.3 Sagahutu 2107. The Chamber finds Sagahutu guilty under Article 6(1) for ordering and aiding and abetting the murder of Prime Minister Agathe Uwilingiyimana as a crime against humanity. Sagahutu’s superior responsibility for this crime will be considered in sentencing. In addition, the Chamber finds Sagahutu guilty under Article 6(3) for murder as a crime against humanity in respect of the killing of the Belgian soldiers at Camp Kigali. 17 May 2011 475/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.19.4 Count 5: Extermination 1.19.4.1 Introduction 2108. Count 5 of the Indictment charges Ndindiliyimana and Bizimungu with extermination as a crime against humanity under Article 3(b) of the Statute. 1.19.4.2 Law 2109. The crime of extermination requires large-scale killing or the subjection to conditions of life calculated to kill members of any civilian population.3805 The actus reus consists of any act, omission or combination thereof that contributes directly or indirectly to the killing of a large number of individuals.3806 Although extermination is the act of killing a large number of people, such a designation does not suggest that a numerical minimum must be reached.3807 The mens rea of extermination requires that the accused intend to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death.3808 The perpetrator must be aware of the “broader context” of their participation, but need not share the underlying rationale or goals of the killings.3809 1.19.4.3 Deliberations 1.19.4.3.1 Killings at Kansi Parish 2110. The evidence relied on in support of this allegation is set out in the Chamber’s factual findings for genocide. The Chamber recalls that the Prosecution proved beyond reasonable doubt that on 21 April 1994, thousands

of Tutsi civilians were killed at Kansi Parish. The Prosecution also proved that gendarmes residing at Ndindiliyimana’s Nyaruhengeri residence were directly involved in the large scale killing. In light of the manner in which the attacks unfolded, it was proved beyond reasonable doubt that the gendarmes guarding Ndindiliyimana’s residence intended to kill civilians taking refuge at the parish on a massive scale. It was further proved that Ndindiliyimana bore superior criminal responsibility for these crimes pursuant to Article 6(3) of the Statute.

2111. The Chamber finds that the elements required to enter a conviction for extermination, namely the direct or indirect killing of a large number of individuals and the intention to kill persons on a massive scale or to subject a large number of people to conditions of living that would lead to their death, are fulfilled. The Chamber therefore finds Ndindiliyimana criminally responsible as a superior for extermination as a crime against humanity in addition to the crime of genocide. The direct perpetrators and Ndindiliyimana were aware that the 3805 Simba Trial Judgement, para. 422, citing Ntakirutimana, Appeal Judgement, para. 522; Ndindabahizi Trial Judgement, para. 480. 3806 Bagosora et al. Trial Judgement, para. 2191, citing Seromba Appeal Judgement, para. 189; Ndindabahizi Appeal Judgement, para. 123. 3807 Bagosora et al. Trial Judgement, para. 2191; citing Brđanin Appeal Judgement, para. 470; Gacumbitsi Appeal Judgement, para 86; Ntakirutimana Appeal Judgement, para. 522; Simba Trial Judgement, para. 422; Seromba Appleals Judgement, paras. 268-269. 3808 Bagosora et al. Trial Judgement, para. 2191, citing Brđanin Appeal Judgement, para. 476; Stakić Appeal Judgement, paras. 259-260; Gacumbitsi Appeal Judgement, para. 86l; Ntakirutimana Appeal Judgement, para. 522. 3809 Simba Trial Judgement, para. 421, citing Ndindabahizi Trial Judgement, para. 478; Semanza Trial Judgement, para. 332; Semanza Appeal Judgement, para. 268-269. 17 May 2011 476/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T killings at Kansi Parish formed part of a widespread and systematic attack against the population on ethnic and political grounds. 1.19.4.3.2 Killings at the Josephite Brothers Compound in Kigali 2112. The evidence relied on in support of this allegation is set out in the Chamber’s factual findings for genocide. As discussed above, the Prosecution proved beyond reasonable doubt that on 7 June 1994, soldiers of the Forces Armées Rwandaises killed civilians at the Josephite Brothers compound. The Chamber recalls that credible evidence was adduced proving beyond reasonable doubt that the killings at the Josephite Brothers compound were committed on a large scale and that a mass grave was subsequently discovered. The Chamber has already found that the evidence led by the Prosecution is sufficient to sustain convictions for genocide and murder as a crime against humanity pursuant to Article 6(3) of the Statute. The Chamber recalls that while it is possible to enter cumulative convictions for the crimes of genocide and extermination, it is not possible to enter cumulative convictions for both murder and extermination.

2113. Given the large number of victims, the Chamber finds that a conviction for extermination may be entered against Bizimungu. Upon consideration, the Chamber finds it more appropriate to hold Bizimungu guilty of the crime of extermination as a crime against humanity rather than murder as a crime against humanity.

2114. The Chamber therefore finds Bizimungu criminally responsible pursuant to Article 6(3) of the Statute for extermination as a crime against humanity in addition to the crime of genocide for crimes that were committed by soldiers at the Josephite Brothers compound. 1.19.4.3.3 Killings in Butare 2115. The evidence relied on in support of this allegation is set out in the Chamber’s factual findings for murder as a crime against humanity. The Chamber recalls that the Prosecution proved beyond reasonable doubt that refugees at the préfecture office and EER in Butare were taken away and killed by soldiers and Interahamwe. It was also proved beyond reasonable doubt that Bizimungu bore superior criminal responsibility for these crimes pursuant to Article 6(3) of the Statute.

2116. However, while the evidence permits a conviction for murder as a crime against humanity, it is insufficient to enter a conviction for extermination as a crime against humanity. The Chamber recalls that no numerical threshold is required for the crime of extermination. However, a key element for the crime of extermination is the act of killing a large number of people. In this instance the Chamber finds that the Prosecution failed to establish that the proven killings were committed on a large scale.

2117. The Chamber finds that the only evidence available about the abduction and murder of refugees at the préfecture office and EER in Butare is Witness XY’s testimony that she was told that refugees had been killed in the Rwabayanga woods and Witness QBP’s evidence that a number of refugees were taken away and that she saw soldiers kill seven male refugees.3810 Witnesses XY and QBP provided little insight as to the scale of the murders. As a result, the evidence available is too vague and insufficient to make a finding that the 3810 T. 5 September 2005, p. 44. 17 May 2011 477/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T killings in Butare were committed on a large scale. The Chamber will not, therefore, enter a conviction for extermination as a crime against humanity but will enter a conviction for these crimes under Count 4 (murder as a crime against humanity) of the Indictment. 1.19.4.4 Conclusion 1.19.4.4.1 Ndindiliyimana 2118. The Chamber finds Ndindiliyimana guilty of extermination as a crime against humanity as a superior under Article 6(3) for the mass killings committed at Kansi Parish. 1.19.4.4.2 Bizimungu 2119. The Chamber finds Bizimungu guilty of extermination as a crime against humanity as a superior under Article 6(3) for killings at the Josephite Brothers compound. 1.19.5 Count 6: Rape 1.19.5.1 Introduction 2120. Count 6 of the Indictment charges Bizimungu, Nzuwonemeye and Sagahutu with rape as a crime against humanity under Article (3)(g) of the Statute. 1.19.5.2 Law 2121. Rape as a crime against humanity requires proof of the non-consensual penetration, however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any other object used by the perpetrator, or of the mouth of the victim by the penis of the perpetrator.3811 Consent for this purpose must be consent given voluntarily and freely and is assessed within the context of the surrounding circumstances.3812 Force or

threat of force provides clear evidence of non-consent, but force is not an element per se of rape.3813 2122. The mens rea for rape as a crime against humanity is the intention to effect the prohibited sexual penetration with the knowledge that it occurs without the consent of the victim.3814 1.19.5.3 Deliberations 2123. Following the death of President Habyarimana on 6 April 1994, approximately 4,000 to 5,000 members of the civilian Tutsi population sought refuge at Cyangugu Stadium. The Chamber has found that soldiers raped a number of Tutsi refugee women at Cyangugu Stadium during April and May 1994.

2124. In addition, several hundred Tutsi civilians sought refuge at the préfecture office and EER in Butare during late April and May 1994. The Chamber has found that soldiers and Interahamwe raped a number of female refugees at these locations during this period. 3811 Kunarac et al. Appeal Judgement, paras. 127-128; Semanza Trial Judgement, para. 344. 3812 Kunarac et al. Appeal Judgement, paras. 127-133; Semanza Trial Judgement, para. 344. 3813 Kunarac et al. Appeal Judgement, para. 129. 3814 Kunarac et al. Appeal Judgement, para. 127; Semanza Trial Judgement, para. 346. 17 May 2011 478/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2125. Given the circumstances surrounding these attacks, it is clear that there was no consent for these acts of sexual violence and that the perpetrators would have been aware of this fact. The Chamber has determined that the crimes at these locations were committed as part of a widespread and systematic attack on ethnic and political grounds.

2126. The Chamber has also concluded that Bizimungu bears superior responsibility for these crimes under Article 6(3). As noted above, the direct perpetrators and the Accused were aware that these attacks formed part of widespread and systematic attacks against the civilian population on ethnic and political grounds. 1.19.5.4 Conclusion 1.19.5.4.1 Bizimungu 2127. The Chamber finds Bizimungu guilty of rape as a crime against humanity as a superior under Article 6(3) for the rapes committed at Cyangugu Stadium during April and May 1994, and at the préfecture office and EER in Butare. 1.20 Counts 7 and 8: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II 1.20.1 Introduction 2128. Count 7 of the Indictment charges the four Accused with murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(a) of the Statute. Count 8 charges Bizimungu, Nzuwonemeye and Sagahutu with rape as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(e) of the Statute. 1.20.2 Law 1.20.2.1 Threshold Requirements 2129. Article 4 of the Statute prescribes that the Tribunal has the power to prosecute persons who committed or ordered serious violations of Common Article 3 or Additional Protocol II. In order for a crime to fall within the scope of Article 4, the

Prosecution must prove, as a threshold matter, the following elements: (1) the existence of a non-international armed conflict at the time of the commission of the alleged breach; (2) the existence of a nexus between the alleged breach and the armed conflict; and (3) that the victims were not direct participants to the armed conflict.3815 1.20.2.1.1 Non-International Armed Conflict 2130. The Prosecution must establish beyond reasonable doubt that an armed conflict existed at the time the alleged violation was committed. The jurisprudence establishes that “an armed conflict exists whenever there is a resort to armed force between States or 3815 Akayesu Appeal Judgement, para. 438; Bagosora et al. Trial Judgement, para. 2229; Ntagerura et al. Trial Judgement, para. 766; Kamuhanda Appeal Judgement, para. 737; Renzaho Trial Judgement, para. 796. 17 May 2011 479/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”3816 2131. The Chamber notes that the existence of a non-international armed conflict between the Rwandan government and forces of the RPF between 1 January 1994 and 17 July 1994 is a judicially recognised fact not subject to reasonable dispute.3817 Accordingly, the Chamber has taken judicial notice of the existence of a non-international armed conflict during this period.3818 The Chamber therefore finds, for the purpose of assessing the threshold requirements of Article 4 of the Statute, that a non-international armed conflict existed during the period relevant to the events underlying the Indictment against the Accused. 1.20.2.1.2 Nexus Between the Alleged Violation and the Armed Conflict 2132. A nexus exists between the armed conflict and the alleged offence when the offence is “closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.”3819 In this regard, the Appeals Chamber has stated: The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator’s ability to commit it, his decision to

commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established … that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict.3820 2133. The evidence before the Chamber shows that open hostilities between the Rwandan government forces and the RPF began on 7 April 1994, when the RPF troops moved out of their barracks at the CND, and continued until July 1994. The Chamber notes that the RPF was identified with the Tutsi minority and with many members of the political opposition in Rwanda. The evidence adduced during this trial, as well as the previous jurisprudence of this Tribunal, makes it clear that the armed conflict between the Rwandan government forces and the RPF created the environment and provided a pretext for the extensive killings and other abuses of members of the civilian population, particularly Tutsi.3821 The killings began on 7 April 1994 within hours of the death of President Habyarimana, and hostilities resumed between the RPF and government forces later that day.3822 3816 Tadić Appeal Judgement, para. 70; Kunarac et al. Appeal Judgement, para. 56; Stakić Appeal Judgement, para. 568; Semanza Trial Judgement, paras. 355-356; Krstić Appeal Judgement, para. 481; Musema Trial Judgement, paras. 247-248. 3817 Renzaho Trial Judgement, para.

797. See also Semanza Appeal Judgement, para. 192 (“the Chamber took notice only of general notorious facts not subject to reasonable dispute, including, inter alia: … that there was an armed conflict not of an international character in Rwanda between 1 January 1994 and 17 July 1994 …”). 3818 See Chapter II. 3819 Renzaho Trial Judgement, para. 798; Tadić Appeal Judgement, para. 70; Semanza Appeal Judgement, para. 369; Rutaganda Appeal Judgement, paras. 569-571; Kunarac Appeal Judgement, para. 55; Akayesu Appeal Judgement, para. 438. 3820 Bagosora et al. Trial Judgement, para. 2231; Semanza Trial Judgement, para. 517, quoting Kunarac et al. Appeal Judgement, para. 58. 3821 Renzaho Trial Judgement, para. 799; Bagosora et al. Trial Judgement para. 2232, citing Semanza Trial Judgement, para. 518, affirmed by Semanza Appeal Judgement, para. 369. 3822 Setako Trial Judgement, para. 486; Bagosora et al. Trial Judgement, para. 2232, citing Semanza Trial Judgement para. 518, affirmed by Semanza Appeal Judgement, para. 369. 17 May 2011 480/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2134. The Chamber has found that the main perpetrators of the crimes against Tutsi were Rwandan Army soldiers, often acting in conjunction with militia groups. The main victims were non-combatant civilians. Many Tutsi civilians were killed at places of refuge, such as religious sites and schools, or at roadblocks while fleeing the hostilities or other attacks. In regard to the crimes committed at roadblocks, the Chamber notes that a large number of militiamen were armed and trained by military authorities and then dispatched to roadblocks ostensibly to defend against RPF operatives in the area. In some cases, the pretext of the killings at roadblocks and places of refuge was to identify RPF infiltrators.

2135. The Chamber is satisfied that the killings of the Prime Minister and the Belgian soldiers were closely related to the conflict between Rwandan government forces and the RPF. Both the Prime Minister and the Belgian soldiers were killed by Rwandan government soldiers in Kigali in the morning of 7 April 1994, within a few hours after the death of the country’s President. The hostilities between Rwandan government forces and the RPF resumed later that day.

2136. The Chamber has previously stated that Prime Minister Agathe Uwilingiyimana was a prominent opposition member of the government. The evidence shows that at the time of the attack on her residence, the Prime Minister was planning to go to Radio Rwanda in order to address the population, urge them to remain calm and reassure them that despite the President’s death a political leadership structure remained in place in the country. The Chamber considers that an address of this nature by the Prime Minister, broadcast on national radio at such a crucial time, could have substantially calmed the situation in the country. Instead, hostilities between the Rwandan government forces and the RPF resumed later that day in Kigali. The organised nature of the attack on the Prime Minister has led the Chamber to conclude that it was a military operation planned and executed by forces of the Rwandan Army. According to the Defence evidence, Rwandan government soldiers taunted the Prime Minister after her arrest on 7 April and told her that she would be taken to the CND in order to take an oath. The Chamber finds this to be a veiled reference to the seat of the Rwandan Parliament, where both government and opposition members were meant to sit pursuant to the transitional government institutions agreed upon under the Arusha Accords, as well as the Kigali base of the RPF forces. Therefore, the Chamber considers that the armed conflict between government forces and the RPF not only provided a pretext for government soldiers to kill the opposition Prime Minister, but it also provided the context of hostility and lawlessness within which that crime was committed.

2137. The Belgian peacekeepers were killed at Camp Kigali after they had first been disarmed in the course of the attack on the Prime Minister’s residence earlier that day. The evidence shows that at the time of their arrest, the Belgian soldiers had been sent to the Prime Minister’s residence in order to escort her to Radio Rwanda, where she intended to address the population to call for calm. Moreover, at the time of the attack on the Belgian soldiers, there were widespread rumours among the assailants at Camp Kigali that the Belgians were responsible for shooting down the President’s plane. The downing of the President’s plane in the evening of 6 April 1994 was clearly a catalyst for the escalation of hostilities between the government forces and the RPF the following day.

2138. In the Chamber’s view, the Accused and the other military and civilian assailants who committed these crimes were acting in furtherance of the armed conflict or under its guise. Accordingly, the Chamber finds that the alleged violations of Articles 4(a) and (e) of the 17 May 2011 481/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Statute had the requisite nexus to the armed conflict between Rwandan government forces and the RPF. 1.20.2.1.3 Victims Not Taking a Direct Part in Hostilities 2139. The Chamber notes that the victims of the crimes alleged in the Indictment were primarily unarmed civilians who were attacked either in their homes, at places of refuge such as religious sites and schools, or at roadblocks while fleeing the violence. No evidence was adduced at trial showing that the victims used violence or resisted in a way that would negate their non-combatant status.

2140. It is clear that Prime Minister Agathe Uwilingiyimana was a civilian member of the transitional government who was not taking any part in hostilities between the government and RPF forces at the time that she was killed by Rwandan soldiers. In regard to the killing of the Belgian UNAMIR soldiers, the Chamber notes that the mandate of the UNAMIR peacekeeping force under Chapter VI of the UN Charter did not include active combat. In the morning of 7 April, the Belgian soldiers were disarmed before being taken to Camp Kigali where they were brutally murdered. The fact that one of the Belgians was able to obtain a weapon and use it for self-defence during the attack does not alter the non-combatant status of the Belgian soldiers.

2141. Accordingly, the Chamber finds that it has been established beyond reasonable doubt that the victims of the alleged violations of Articles 4(a) and (e) of the Statute were not taking an active part in the hostilities. 1.20.3 Count 7: Murder as a Violation of Article 3 Common to the Geneva Conventions and of Additional Protocol II 1.20.3.1 Introduction 2142. Count 7 of the Indictment charges the four Accused with murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(a) of the Statute. 1.20.3.2 Law 2143. Article 4(a) of the Statute prescribes that the Tribunal has the power to prosecute persons who committed or ordered serious violations of Common Article 3 or Additional Protocol II amounting to: “Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment.” Murder is the unlawful, intentional killing of a human being.3823 There is no requirement that the killing be premeditated, only that the killing be intentional.3824 3823 Bagosora et al. Trial Judgement, para. 2242. 3824 Ntagerura et al. Trial Judgement, para. 765; Semanza Trial Judgement, para. 373. 17 May 2011 482/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.20.3.3 Deliberations 2144. As set out in the legal findings for genocide and murder as a crime against humanity, the Chamber has found Bizimungu responsible under Article 6(3) for the killings at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama préfecture during April and May 1994, among other crimes. The Chamber has found Ndindiliyimana responsible under Article 6(3) for the killings at St. André College on 13 April 1994, among other crimes.

2145. In regard to Nzuwonemeye and Sagahutu, the Chamber has found both Accused responsible under Article 6(1) for ordering and aiding and abetting the killing of Prime Minister Agathe Uwilingiyimana on 7 April 1994. The Chamber has also found both Accused responsible as superiors under Article 6(3) for this crime. Having found that there is a basis for finding Nzuwonemeye and Sagahutu guilty under both Article 6(1) and Article 6(3) for the killing of the Prime Minister, the Chamber will only enter a conviction under Article 6(1) as it considers that this mode of liability most accurately reflects their roles in this crime. The Chamber will consider their superior responsibility in sentencing. In addition, the Chamber has found Nzuwonemeye and Sagahutu responsible under Article 6(3) for the killings of the Belgian UNAMIR soldiers on 7 April 1994.

2146. It follows that the killings of the Prime Minister and the Belgian UNAMIR soldiers also amount to murder under Article 4(a) of the Statute. As discussed above, it is clear from the circumstances of these attacks that the perpetrators were aware that the victims were not taking an active part in the hostilities. Furthermore, each of these crimes had a nexus to the non-international armed conflict between the Rwandan government and the RPF.

2147. The Chamber notes that Count 7 of the Indictment (murder as a violation of Article 3 common to the Geneva Conventions and Additional Protocol II) alleges that Nzuwonemeye and Sagahutu are responsible for the killings of the Belgian soldiers under both Article 6(1) and Article 6(3) of the Statute.3825 In its legal findings for Count 4 (murder as a crime against humanity), the Chamber found both Accused responsible under Article 6(3) for murder as a crime against humanity for the killings of the Belgian soldiers. In line with the Indictment, the Chamber will now consider whether the two Accused can be held responsible under Article 6(1) for murder as a violation of Article 3 common to the Geneva Conventions and Additional Protocol II for the killings of the Belgian soldiers.

2148. The Chamber has found that on 7 April 1994, soldiers from the RECCE Battalion under the command of Nzuwonemeye and Sagahutu participated in the attack on the Belgian UNAMIR soldiers at Camp Kigali. This attack eventually led to the death of the Belgian soldiers. The Chamber has not heard any evidence of Nzuwonemeye’s direct involvement in the attack on the Belgian soldiers either by issuing orders or instructions or by providing assistance or encouragement to the direct perpetrators of the attack. The Chamber therefore concludes that there is no basis for holding Nzuwonemeye responsible under Article 6(1) for this crime.

2149. With respect to Sagahutu, the Chamber has found that on 7 April, while at the RECCE Headquarters at Camp Kigali, Corporals Nizeyimana and Masonga reported to Sagahutu that there was an ongoing attack against Belgian soldiers near the entrance gate to 3825 Indictment, para. 118. 17 May 2011 483/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Camp Kigali and that those soldiers were resisting the attack. In response, Sagahutu instructed them to put down the resistance, and in his presence these two soldiers took a MGL from his office to participate in the attack on the Belgian soldiers. The Chamber therefore finds that Sagahutu ordered the attack on the Belgians and aided and abetted the direct perpetrators of the crime.

2150. Having found that there is a basis for finding Sagahutu guilty under both Article 6(1) and Article 6(3) for the killings of the Belgian soldiers, the Chamber will only enter a conviction against Sagahutu under Article 6(1) as it considers that this mode of liability most accurately reflects his role in this crime. The Chamber will consider his superior responsibility as an aggravating factor when determining his sentence. 1.20.3.4 Conclusions 1.20.3.4.1 Ndindiliyimana 2151. The Chamber finds Ndindiliyimana guilty under Article 6(3) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of Tutsi refugees at St. André College. 1.20.3.4.2 Bizimungu 2152. The Chamber finds Bizimungu guilty under Article 6(3) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of Tutsi refugees at ESI, TRAFIPRO and the Musambira commune office and dispensary. 1.20.3.4.3 Nzuwonemeye 2153. The Chamber finds Nzuwonemeye guilty under Article 6(1) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of Prime Minister Agathe Uwilingiyimana.

2154. The Chamber also finds Nzuwonemeye guilty under Article 6(3) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of the Belgian UNAMIR soldiers. 1.20.3.4.4 Sagahutu 2155. The Chamber finds Sagahutu guilty under Article 6(1) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of Prime Minister Agathe Uwilingiyimana.

2156. The Chamber also finds Sagahutu guilty under Article 6(1) of the Statute for violations of Article 3 common to the Geneva Conventions and of Additional Protocol II for the murder of the Belgian UNAMIR soldiers. 17 May 2011 484/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.20.4 Count 8: Rape as a Violation of Article 3 Article 3 common to the Geneva Conventions and Additional Protocol II 1.20.4.1 Introduction 2157. Count 8 of the Indictment charges Bizimungu, Nzuwonemeye and Sagahutu with rape as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 4(e) of the Statute. 1.20.4.2 Law 2158. Article 4(e) of the Statute prescribes that the Tribunal has the power to prosecute persons who committed or ordered serious violations of Common Article 3 or Additional Protocol II amounting to: “Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault.” The elements of rape as a war crime under Article 4(e) are the same as those required for rape as a crime against humanity, discussed above.3826 1.20.4.3 Deliberations 2159. In its legal findings for genocide and rape as a crime against humanity, the Chamber has found Bizimungu responsible as a superior under Article 6(3) for the rape of women at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama during April and May 1994, at the préfecture office and EER in Butare starting on 19 April 1994 and at Cyangugu Stadium during April and May 1994.

2160. It follows that these rapes also amount to rape under Article 4(e) of the Statute. As discussed above, it is clear from the circumstances of these attacks that the perpetrators were aware that the victims were not taking an active part in the hostilities. Furthermore, each of these crimes had a nexus to the non-international armed conflict between the Rwandan government and the RPF. 1.20.4.4 Conclusions 1.20.4.4.1 Bizimungu 2161. The Chamber finds Bizimungu guilty under Article 6(3) of the Statute for violations of Article 3 common to the Geneva Conventions and Additional Protocol II for the rape of women at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama during April and May 1994, at the préfecture office and EER in Butare starting on 19 April 1994 and at Cyangugu Stadium during April and May 1994. 3826 Musema Appeal Judgement, para. 285. 17 May 2011 485/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER VI: VERDICT 2162. For the reasons set out in this Judgement, and having considered all the evidence adduced at trial and the Parties’ arguments, the Chamber finds: Augustin Ndindiliyimana Count 1: Not Guilty of Conspiracy to Commit Genocide; Count 2: Guilty of Genocide; Count 3: Dismisses the charge of Complicity in Genocide; Count 4: Guilty of Murder as a Crime Against Humanity; Count 5: Guilty of Extermination as a Crime Against Humanity; and Count 7: Guilty of Murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. Augustin Bizimungu Count 1: Not Guilty of Conspiracy to Commit Genocide; Count 2: Guilty of Genocide; Count 3: Dismisses the charge of Complicity in Genocide; Count 4: Guilty of Murder as a Crime Against Humanity; Count 5: Guilty of Extermination as a Crime Against Humanity; Count 6: Guilty of Rape as a Crime Against Humanity; Count 7: Guilty of Murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II; and Count 8: Guilty of Rape as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. François-Xavier Nzuwonemeye Count 1: Not Guilty of Conspiracy to Commit Genocide; Count 4: Guilty of Murder as a Crime Against Humanity; Count 6: Not Guilty of Rape as a Crime Against Humanity; Count 7: Guilty of Murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II; and Count 8: Not Guilty of Rape as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 17 May 2011 486/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Innocent Sagahutu Count 1: Not Guilty of Conspiracy to Commit Genocide; Count 4: Guilty of Murder as a Crime Against Humanity; Count 6: Not Guilty of Rape as a Crime Against Humanity; Count 7: Guilty of Murder as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II; and Count 8: Not Guilty of Rape as a Violation of Article 3 common to the Geneva Conventions and of Additional Protocol II. 17 May 2011 487/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T CHAPTER VII: SENTENCING 1.21 Introduction 2163. Having found the Accused criminally responsible for the crimes discussed above, the Chamber must now determine an appropriate sentence for each Accused. For this purpose, Article 23(2) of the Statute provides that when imposing sentences, the Trial Chamber should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person. Additionally, Rule 101 of the Rules provides that the Trial Chamber shall, in determining the sentence, take into account any aggravating or mitigating circumstances, including substantial cooperation with the Prosecution by the convicted person before or after conviction. Lastly, general practice regarding prison sentences in the courts of Rwanda shall be observed. 1.22 Submissions 1.22.1 Prosecution 2164. The Prosecution submits that the four Accused are charged with crimes of the utmost gravity and that this should be reflected in the sentences imposed.3827 The Prosecution requests that the Chamber impose a sentence of life imprisonment for each of the four Accused.3828 The Chamber will now summarise the aggravating factors that the Prosecution submits in respect to each Accused. 1.22.1.1 Bizimungu 2165. The Prosecution refers to several factors that they claim aggravate the

culpability of Bizimungu. These are Bizimungu’s position as the highest military authority in active service from 19 April to 17 July 1994; the increase and spread of the genocide after Bizimungu’s appointment to Chief of Staff of the Rwandan Army; his past acts of violence against Tutsi in Ruhengeri; the influence he commanded over the Army and his failure or refusal to use it to halt the genocide; and his influence in his community and the fact that this constituted a clear betrayal of the trust that the people had placed in him.3829 Additionally, the Prosecution contends that Bizimungu’s resentment towards Tutsi was conceived at a very young age, as suggested by his own evidence regarding his childhood memories of his relationship with Tutsi, his use of derogatory terms when referring to Tutsi in his dissertation at the Military Academy in Belgium in 1984, and his refusal to acknowledge the genocide of the Tutsi.3830 The Prosecution also points to the premeditated nature of Bizimungu’s crimes3831 and his absence of remorse.3832 1.22.1.2 Ndindiliyimana 2166. The Prosecution submits that as Chief of Staff of the Gendarmerie, Ndindiliyimana enjoyed the trust and respect of his fellow senior officers and troops. According to the 3827 Prosecution Closing Brief, paras. 1665-1667. 3828 Prosecution Closing Brief, para. 1709. 3829 Prosecution Closing Brief, paras. 1668-1672. 3830 Prosecution Closing Brief, paras. 1287-1289, 1704. 3831 Prosecution Closing Brief, para. 1704. 3832 Prosecution Closing Brief, para. 1705. 17 May 2011 488/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecution, Ndindiliyimana had the capacity to exert great influence over gendarmerie officers and troops, and yet he failed to use that influence to protect Tutsi; instead, “he used this authority to further the genocidal agenda of the former Rwandan government and armed forces”. The Prosecution further contends that Ndindiliyimana used the trust he had engendered with General Dallaire and other UNAMIR officers to mislead them in respect to the true objectives and goals of the new government and the armed forces. The Prosecution submits that “most aggravating is the significant contributing factor the actions of the gendarmes in 1994 must have had on the flourishing culture of impunity in Rwanda.”3833 In addition, the Prosecution points to the premeditated nature of Ndindiliyimana’s crimes3834 and his absence of remorse.3835 1.22.1.3 Nzuwonemeye 2167. The Prosecution submits that Nzuwonemeye, who was the commander of one of the most specialised and well-equipped units of the Rwandan Army, had sufficient human and material resources to save many human lives but instead used those means only to look after the security of his own family and friends. According to the Prosecution, when his battalion assembled at Camp Kigali in the night of 6 April 1994 following the announcement of the death of the

President, Nzuwonemeye had already decided the fate of the Prime Minister whom he openly accused of being responsible for the President’s death in complicity with the Tutsi.3836 The Prosecution also points to the premeditated nature of Nzuwonemeye’s crimes3837 and his absence of remorse.3838 1.22.1.4 Sagahutu 2168. The Prosecution submits that Sagahutu, who was commander of Squadron A of the RECCE Battalion and also the most senior field officer holding the highest rank within the battalion after Nzuwonemeye, failed to use the personnel and resources at his disposal to save human lives. Instead, the Prosecution submits that Sagahutu used the means available to him to further various crimes.3839 The Prosecution also points to the premeditated nature of Sagahutu’s crimes3840 and his absence of remorse.3841 1.22.2 Defence 1.22.2.1 Bizimungu 2169. In its Closing Brief, the Defence submits that before determining Bizimungu’s sentence, the Chamber should conduct a pre-sentence hearing.3842 In this regard, the Chamber notes that Rule 86(C) of the Rules states that sentencing submissions shall be addressed in closing arguments. The Chamber therefore finds that the Defence for Bizimungu failed to make any sentencing submissions. 3833 Prosecution Closing Brief, paras. 1673-1693. 3834 Prosecution Closing Brief, para. 1704. 3835 Prosecution Closing Brief, para. 1705. 3836 Prosecution Closing Brief, para. 1694. 3837 Prosecution Closing Brief, para. 1704. 3838 Prosecution Closing Brief, para. 1705. 3839 Prosecution Closing Brief, para. 1695. 3840 Prosecution Closing Brief, para. 1704. 3841 Prosecution Closing Brief, para. 1705. 3842 Bizimungu Closing Brief, paras. 1174-1177. 17 May 2011 489/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2170. Although the Bizimungu Defence Closing Brief contains no sentencing submissions, the Chamber has considered the factors set out elsewhere in the brief in assessing Bizimungu’s sentence. In particular, the Defence submits that Bizimungu made concerted efforts to prevent the killings of civilians and restore peace. The Defence refers to the fact that Bizimungu made repeated requests to halt the conflict between ethnic groups in Rwanda, that he undertook dangerous missions in order to save lives, and that he collaborated with General Dallaire, the commander of UNAMIR, to restore peace in Rwanda.3843 1.22.2.2 Ndindiliyimana 2171. The Ndindiliyimana Defence submits that Ndindiliyimana is a man of integrity who served his country with honour and dignity, and whom a number of witnesses described as moderate, trustworthy, competent, professional and cooperative. According to the Defence, Ndindiliyimana supported the Arusha Accords and cooperated with UNAMIR throughout the events of 1994. He took positive measures within his power to oppose the political forces that supported the genocide, at times risking his own safety to do so, and he was eventually relieved of his post as a result of his refusal to cooperate with extremists. Ndindiliyimana tried to exert his personal and professional influence to stop

killings and he saved the lives of a number of Tutsi civilians.3844 1.22.2.3 Nzuwonemeye 2172. The Nzuwonemeye Defence submits that during his tenure as commander of the RECCE Battalion, Nzuwonemeye neither discriminated against nor exhibited animosity toward members of the Tutsi ethnic group within the battalion. Furthermore, the Defence submits that Nzuwonemeye favoured the implementation of the Arusha Accords and had begun to implement the provisions of the Accords with respect to the RECCE Battalion. The Defence draws the Chamber’s attention to Nzuwonemeye’s good character and the fact that he has no previous criminal convictions and “has exhibited good conduct and character while in detention at the United Nations Detention Facility (“UNDF”).”3845 1.22.2.4 Sagahutu 2173. The Sagahutu Defence submits that Sagahutu is a man of good character and it points to the testimony of various witnesses who stated that Sagahutu was a disciplined officer who had a reputation for being brave, valiant, trustworthy, courageous, respectful, kind and not prejudiced. The Defence asks the Chamber to consider the evidence of several witnesses who testified to Sagahutu’s good deeds following the resumption of hostilities with the RPF on 6 April 1994. These good deeds included assisting in the evacuation of the Belgian Ambassador, intervening to protect Belgian soldiers at a Belgian School,

helping Tutsi and Hutu to evacuate, assisting refugees with services and resources, protecting a convoy of Belgian soldiers and successfully conducting an operation against looting in Kigali town.3846 3843 Bizimungu Closing Brief, paras. 1164-1172. 3844 Ndindiliyimana Closing Brief, paras. 596-606. 3845 Nzuwonemeye Closing Brief, pp. 182-184. 3846 Sagahutu Closing Brief, paras. 561-591. 17 May 2011 490/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23 Deliberations 2174. Under Article 1 of the Statute, the Tribunal is vested with the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda. The penalty imposed should reflect the aims of retribution, deterrence and, to a lesser extent, rehabilitation.3847 In determining the penalty to be accorded to the Accused, the Chamber has taken into account the general practice regarding prison sentences in the courts of Rwanda, the gravity of the offences (the gravity of the crimes of which the Accused have been convicted and the form or degree of responsibility for these crimes) and the individual circumstances of the convicted person.3848 The Chamber has also considered the Appeals Chamber’s direction that “sentences of like individuals in like cases should be comparable.”3849 However, it has noted the inherent limits to this approach because “any given case contains a multitude of variables, ranging from the number and type of crimes committed to the personal circumstances of the individual.”3850 Having considered sentencing practice in this Tribunal, the Chamber notes that a sentence of life imprisonment is generally reserved for those who planned or ordered atrocities as well as the most senior authorities.3851 2175. The

Chamber also recalls that in determining the penalty to be accorded to the Accused, it must take into account any aggravating and mitigating circumstances.3852 For this purpose, aggravating circumstances must be proved beyond reasonable doubt while mitigating circumstances must be proved on a balance of probabilities.3853 The Chamber has broad discretion in determining what constitutes mitigating circumstances and the weight to be accorded to those circumstances.3854 Proof of mitigating circumstances does not automatically entitle the accused to a “credit” in the determination of the sentence; it simply requires the Trial Chamber to consider such mitigating circumstances in its final determination.3855 1.23.1 Bizimungu 1.23.1.1 Gravity of Offences 2176. The Chamber has determined that on or about 7 April 1994, Bizimungu attended a meeting at the home of Nzirorera’s mother. During the meeting, Bizimungu made a speech in which he instructed those present to start killing all the Tutsi. Some of the persons present at the meeting then went to Byangabo market where, based on the contents of the meeting, they implored the gathered audience to begin killing Tutsi. As a direct result, Interahamwe began a killing spree including in the secteur of Rwankeri. The Chamber found that Bizimungu had a substantial effect on the outcome of the killings by making a speech that was acted upon by

participants at the meeting. He is therefore guilty of aiding and abetting the killings in Rwankeri. 3847 Media Appeal Judgement, para. 1057; Stakić Appeal Judgement, para. 402. 3848 Bikindi Trial Judgement, para. 443. 3849 Kvočka et al. Appeal Judgement, para. 681. 3850 Kvočka et al. Appeal Judgement, para. 681. 3851 Musema Appeal Judgement, para. 383. 3852 Serushago Appeal Judgement, para. 23; Ntaregura et al. Appeal Judgement, para. 430. 3853 Kajelijeli Appeal Judgement, para. 294; Serugendo Trial Judgement, para. 40; Bisengimana Trial Judgement, para. 111; Simba Trial Judgement, para. 438; Kalimanzira Trial Judgement, para. 748. 3854 Kalimanzira Trial Judgement, para. 748. 3855 Niyitegeka Appeal Judgement, para. 267. 17 May 2011 491/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2177. In addition, the Chamber has found that from mid-April to late June 1994, while Bizimungu was Chief of Staff of the Rwandan Army, soldiers and Interahamwe militia under his effective control killed a large number of Tutsi in various parts of Rwanda. In particular, the Chamber found that killings occurred at the Josephite Brothers compound on 7 June 1994, at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama during April and May 1994, at the préfecture office and EER in Butare starting on 19 April 1994, and at Cyangugu Stadium during April and May 1994. The Chamber has also found soldiers and Interahamwe under the control of Bizimungu responsible for multiple instances of rapes of Tutsi women between the months of April and June 1994. These rapes took place at ESI, TRAFIPRO and the Musambira commune office and dispensary in Gitarama préfecture, at the préfecture office and EER in Butare, and at Cyangugu Stadium. The Chamber has found that Bizimungu knew or had reason to know that his subordinates were about to commit or had committed these crimes. His multiple failures to prevent or punish these atrocities constitute grave breaches of his superior responsibility. 1.23.1.2 Aggravating Factors 2178. The Chamber finds that the influence that Bizimungu derived from his position and status in Rwanda made it likely that others would follow his example.3856 Had Bizimungu used his influence to reign in the troops under his control, this would have substantially mitigated the slaughter taking place in Rwanda. The Chamber finds that Bizimungu’s failure to take action to halt the killing of Tutsi civilians, as required by his superior position, is an aggravating factor.

2179. The Chamber notes that following Bizimungu’s promotion to Chief of Staff, the killings in Rwanda did not slow down, but actually accelerated in certain regions of the country. This acceleration could be explained, at least in part, by his refusal to address the killings. It is clear from Bizimungu’s own evidence that he was focused on waging war against the RPF and was not concerned about the killings of civilians. His obstinate refusal to stop the killings is further evidenced by his failure to heed the persistent calls on him from representatives of foreign governments and international organisations to take action to protect the Tutsi. His indifference to the killings was so extreme that one might reasonably conclude that he saw the killings of Tutsi to be an extension of the war against the RPF. 1.23.1.3 Mitigating Factors 2180. The Chamber has carefully considered and weighed the mitigating factors put forward by the Bizimungu Defence. However, the Chamber finds that several of the mitigating factors have not been proved on the balance of probabilities. For example, the Chamber considers that Bizimungu’s repeated actions and inactions during the relevant events in 1994 stand in stark contrast to his claim that he was committed to peace.

2181. That said, the Chamber recognises that Bizimungu exercised his command in a context marked by understaffing, desertions and difficulties in communication. The Chamber also recalls that General Dallaire gave evidence that Bizimungu lacked the experience necessary to run the General Staff of the Army. In addition, the Chamber has considered the 3856 The Appeals Chamber has held that an accused’s abuse of his superior position or influence may be considered as an aggravating factor. See Simba Appeal Judgement, paras. 284-285. 17 May 2011 492/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T testimony of character witnesses who testified for Bizimungu, as well as his marriage and children, which lend credence to the possibility of rehabilitation if released. 1.23.1.4 Sentencing Consideration 2182. Having considered the totality of the circumstances, the Chamber finds that the gravity of Bizimungu’s crimes and the aggravating factors greatly outweigh any mitigating factors. The Chamber recognises that Bizimungu had an exemplary education and military background, as set out in Chapter I of the Judgement. Bizimungu was in a position to use his personal ability, education and military experience to stop the killings of Tutsi. However, the Chamber considers that Bizimungu not only failed to take action to halt the killings of Tutsi, but in fact endorsed and actively encouraged the genocide in 1994. In exercising its discretion, the Chamber has imposed a sentence to reflect this. 1.23.2 Ndindiliyimana 1.23.2.1 Gravity of Offences 2183. The Chamber has found that gendarmes assigned to guard Ndindiliyimana’s family home in Nyaruhengeri, acting in conjunction with other gendarmes and Interahamwe, perpetrated killings against a large number of Tutsi at Kansi Parish in Nyaruhengeri on 21 and 22 April 1994. The Chamber has also determined that Ndindiliyimana exercised effective control over the

gendarmes who were guarding his residence in Nyaruhengeri. In his evidence, Ndindiliyimana admitted that his wife had personally “gathered” the gendarmes who were guarding his home and that “he would have known” had those gendarmes participated in the attack at Kansi Parish. The Chamber has found that Ndindiliyimana knew or had reason to know of the killings of Tutsi civilians at Kansi Parish that were committed by gendarmes assigned to guard his home. Nonetheless, there is no evidence that Ndindiliyimana took any measures to punish the gendarmes who were involved in the killings at the parish.

2184. In regard to the killings of Tutsi refugees at St. André College, the Chamber has found that gendarmes from the Nyamirambo brigade acting in collaboration with Interahamwe killed Tutsi civilians at St. André College on or around 13 April 1994. The Chamber is satisfied that Ndindiliyimana exercised control over the gendarmes who perpetrated the killings at St. André College. The Chamber is also satisfied, based on the evidence of Witness WG and Ndindiliyimana himself, that Ndindiliyimana knew or at least had reason to know that his subordinates had committed crimes against Tutsi civilians at St. André College. Nonetheless, there is no evidence that Ndindiliyimana took any measures to punish the gendarmes who were involved in the killings at the college.

2185. The Chamber recalls that criminal responsibility for these crimes is attributed to Ndindiliyimana based solely on a failure to punish killings that his subordinates had already committed. There is no evidence on record demonstrating that he knew or had reason to know in advance that his subordinates were about to commit crimes at Kansi Parish and St. André College. For this purpose, the Chamber recalls that the “duty to prevent and the duty to punish are separable”.3857 3857 Hadžihasanović et al. Command Responsibility Appeal, para. 55. 17 May 2011 493/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23.2.2 Aggravating Factors 2186. Ndindiliyimana has been convicted pursuant to Article 6(3) of the Statute as a result of his failure to punish his subordinates. In this regard, the Chamber notes that Ndindiliyimana’s role as Chief of Staff of the Gendarmerie carried a duty to protect and serve the people of Rwanda.

2187. The Chamber has also assessed the other aggravating factors put forward by the Prosecution, but it finds that they have not been proved beyond reasonable doubt. For example, the Chamber finds that the evidence does not support the Prosecution’s submissions that “the possibility of losing his position and authority … motivated Ndindiliyimana to oppose the peace process”;3858 that “the only way to maintain his place was to plan, promote, order and facilitate the extermination of the Tutsi and Hutu opposition population of Rwanda”;3859 that “he used the trust he had engendered with General Dallaire and other UNAMIR officers to mislead him respecting the true objectives and goals of the new government and the armed forces”;3860 and that “he used this authority to further the genocidal agenda of the former Rwandan government and armed forces”.3861 1.23.2.3 Mitigating Factors 2188. In mitigation, the Chamber has considered the background and individual circumstances of Ndindiliyimana, with particular reference to the mitigating factors submitted by the Defence. The Chamber has carefully reviewed the submissions regarding Ndindiliyimana’s character, his reputation as a political moderate who attempted to oppose extremist forces, his support for the Arusha Accords, his cooperation with UNAMIR, and his attempts to stop the killings and to save the lives of Tutsi during the events

of 1994. The Chamber has also assessed the degree of control that Ndindiliyimana actually exercised over the gendarmes in Rwanda between April and June 1994, in particular his material ability to prevent and punish crimes. For this purpose, the Chamber has examined evidence suggesting that Ndindiliyimana was politically sidelined and even threatened in the lead-up to the termination of his post as Chief of Staff of the Gendarmerie in June 1994. In addition to the events of 1994, the Chamber has closely examined the circumstances of Ndindiliyimana’s indictment and arrest by this Tribunal and the conduct of the Prosecution during his trial.

2189. For the reasons set out below, the Chamber finds that several mitigating factors relating to Ndindiliyimana have been proved on the balance of probabilities. When considered together, these factors carry considerable weight. The Chamber considers that these circumstances are unique and distinguish Ndindiliyimana from the other Accused in this case and indeed from other Accused who have come before this Tribunal. The Chamber will now set out in detail its analysis of the background and individual circumstances of Ndindiliyimana as relevant to the determination of his sentence. 3858 Prosecution Closing Brief, para. 1675. 3859 Prosecution Closing Brief, para. 1680. 3860 Prosecution Closing Brief, para. 1683. 3861 Prosecution Closing Brief, para. 1685. 17 May 2011 494/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23.2.3.1 Prosecutorial Conduct Towards Ndindiliyimana 2190. The Defence submits that Ndindiliyimana’s indictment and arrest “were motivated by political reasons”.3862 The Chamber recalls that before this Chamber, the Defence stated that the Prosecution made every effort to encourage Ndindiliyimana to testify against Colonel Bagosora, but Ndindiliyimana refused.3863 The Prosecution did not deny this. Following his initial refusal to testify, the Prosecution produced a far-reaching Indictment charging Ndindiliyimana with a number of crimes pursuant to Article 6(1) of the Statute. Most of those charges were eventually dropped. The Defence further alleges that the Prosecution made repeated offers during the trial to drop the charges against Ndindiliyimana if he would agree to testify against Bagosora, but Ndindiliyimana repeatedly refused.3864 2191. The Chamber also recalls that the Prosecution disclosed a large quantity of exculpatory material to Ndindiliyimana at a very late stage of the trial and, in some cases, after the trial had concluded. The most recent disclosure of exculpatory material was on 18 March 2011. Many of these documents are highly relevant to the case against Ndindiliyimana and had been in the possession of the Prosecution for a number of years before they were disclosed.

2192. On 22 September 2008, the Chamber ruled that the Prosecution had violated its disclosure obligations under Rule 68 of the Rules with respect to a large number of documents that were in its possession and ordered the Prosecution to immediately disclose the relevant documents to the Defence. The Chamber also ruled that the Prosecution’s failure to disclose this material, whether it was deliberate or due to negligence, caused prejudice to Ndindiliyimana. In particular, the Chamber found that the material may have been useful to Ndindiliyimana’s Defence counsel in cross-examining other Prosecution witnesses who had appeared before the Chamber during the trial, and it may have helped to identify additional Defence witnesses at an earlier stage of proceedings.3865 2193. The Chamber recalls that “[u]nder the jurisprudence of this Tribunal, where ... [it is] found ... that an accused’s rights have been violated, but not egregiously so, it ... [may] reduce the accused’s sentence if the accused is found guilty at trial”.3866 In accordance with the established jurisprudence, the Chamber has taken the Prosecution’s violations of Ndindiliyimana’s rights into account when considering his sentence.3867 2194. The Chamber emphasises, however, that even if it did not consider the Prosecution’s violations of Ndindiliyimana’s rights as a mitigating factor, there exist several compelling

mitigating circumstances that are in the Chamber’s view sufficient to impose the sentence determined by the Chamber. These are discussed in detail below. 3862 Ndindiliyimana Closing Brief, para. 3. 3863 Ndindiliyimana Closing Statement; T. 16 January 2008, pp. 11-12. 3864 Ndindiliyimana Closing Statement; T. 16 January 2008, pp. 11-12. 3865 Ndindiliyimana Decision on Prosecutor’s Disclosure Obligations. 3866 Kajelijeli Appeal Judgement, para. 255. 3867 The Appeals Chamber has held in a number of cases that violations of an accused’s fair trial rights may be taken into consideration as mitigating factors in sentencing. See Kajelijeli Appeal Judgement, paras. 323-324; Semanza Appeal Judgement, paras. 325-328; Media Appeal Judgement, paras. 1072-1075. 17 May 2011 495/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23.2.3.2 Ndindiliyimana’s Control Over the Gendarmes 2195. In its legal findings for Ndindiliyimana’s superior responsibility, the Chamber has found that as Chief of Staff of the Gendarmerie, Ndindiliyimana had de jure authority over the entire Gendarmerie. However, the scope of his de jure authority over the gendarmes was significantly reduced after the resumption of hostilities with the RPF on 7 April 1994, when operational command over the majority of gendarmerie units was transferred to the General Staff of the Rwandan Army. The Chamber notes that once gendarmerie units were deployed to assist the army, Ndindiliyimana lost his de jure authority to instruct or issue orders to those units in the field. Ndindiliyimana did, however, retain de jure authority over those gendarmes in regard to administrative and disciplinary matters. He also retained full de jure authority over the gendarmes who were not deployed to assist the army.

2196. The Chamber has also found that Ndindiliyimana’s de facto authority over the gendarmes was significantly reduced after 7 April 1994. First, the transfer of operational command over the majority of gendarmerie units to the Rwandan Army effectively removed Ndindiliyimana’s material ability to control those units after 7 April. Consequently, the Chamber has found that Ndindiliyimana did not exercise effective control over those gendarmerie units that were deployed to assist the army in combat.

2197. Second, while the gendarmerie units that were not deployed to assist the army remained under Ndindiliyimana’s command, his actual ability to control those gendarmes decreased significantly as the war progressed. In particular, the Chamber is satisfied based on the evidence that Ndindiliyimana suffered from a serious lack of resources, that he faced difficulties in communicating with gendarmerie units operating on the ground, and that his force was infiltrated by extremists and rogue elements. The Chamber has found that Ndindiliyimana did not in fact exercise effective control over all gendarmes under his de jure command from April to June 1994. Rather, the Chamber considers that Ndindiliyimana’s material ability to prevent and/or punish crimes committed by gendarmes under his command varied considerably between different gendarmerie units. However, this finding does not affect the Chamber’s determination that Ndindiliyimana did in fact exercise effective control over gendarmes who committed killings at Kansi Parish in Nyaruhengeri and St. André College in Kigali. 1.23.2.3.3 Evidence that Ndindiliyimana was a Political Moderate Who Supported the Arusha Accords and Cooperated with UNAMIR 2198. There is considerable evidence that Ndindiliyimana was known as a moderate Hutu who opposed extremist elements, advocated for the Arusha Accords and cooperated with UNAMIR during the events of 1994. In this regard, the Chamber will now consider the evidence of Ndindiliyimana’s conduct prior to April 1994, the events immediately following the death of the President on 6 April 1994 and finally the evidence of Ndindiliyimana’s general support for UNAMIR and the Arusha Accords between April and June 1994.

2199. A number of witnesses testified to Ndindiliyimana’s support for the Arusha Accords and UNAMIR prior to April 1994. Defence Witness Luc Marchal, who was the commander of the UNAMIR units in Kigali secteur, testified that Ndindiliyimana played an important role in the negotiation and drafting of the KWSA in late 1993.3868 Marchal also stated that 3868 T. 16 January 2008, pp. 42-44. 17 May 2011 496/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana was fully supportive of the KWSA and that he issued “very clear orders and instructions” to all gendarmerie units in December 1993 regarding the implementation of the KWSA.3869 Marchal noted that on 28 December 1993, the Gendarmerie played a crucial role in the success of “operation clean corridor”, which led to the installation of the RPF battalion and its representatives in Kigali. This operation entailed close coordination between UNAMIR and officers of the Gendarmerie General Staff, and Marchal stated that Ndindiliyimana “must have given orders and instructions in relation thereto”.3870 According to Marchal, during January and February 1994, Ndindiliyimana “really devoted much effort to achieving the peace process” and not only “compl[ied] to the letter” with the KWSA, “but also with the spirit”.3871 2200. Defence Witness André Vincent, who was a Belgian Lieutenant-Colonel in the Belgian military cooperation programme in Rwanda in 1994, testified that during the negotiations of the Arusha Accords, Ndindiliyimana “was in favour of implementing the Arusha Accords. He must have understood that it was the only way out of the crisis for Rwanda.”3872 Vincent also stated that “the Gendarmerie cooperated fully with UNAMIR in the implementation of the [Arusha Accords], fully, indeed. Whatever

assistance UNAMIR sought … from the Gendarmerie … was granted.”3873 2201. According to Inspector-General Mahundi, the Tanzanian police commander and former head of INTERPOL for Africa, Ndindiliyimana was expecting the two sides, political leaders of the two sides, having agreed to come to a table and to negotiate their conflict and finding a solution to their conflict. He was very much hopeful that that negotiation is likely to end up successfully. And if they successfully finish their negotiation, he was very much hoping that at the end of the negotiation there would definitely – each side would not like to abandon their forces completely. They would definitely need these forces to be integrated and form one, which will continue to save their country.3874 2202. Defence Witness CBP63 testified about a meeting held on 16 November 1993 between senior commanders of UNAMIR and the Gendarmerie, during which Ndindiliyimana made a speech explaining how the Gendarmerie would be integrated into the new force in line with the Arusha Accords.3875 Defence Witness Claudien Ndagijimana, who was a Lieutenant in the Gendarmerie, testified that his unit received orders from Ndindiliyimana to prepare the troops “in the spirit of the Accords”.3876 He also stated that the Gendarmerie hoped for peace and was happy about UNAMIR’s arrival.3877 Similarly, AA-9 stated that before April 1994,

Ndindiliyimana went to Butare and “addressed all the gendarmes and discussed the Arusha Accords, saying that it was necessary to reconcile with 3869 T. 16 January 2008, p. 61. 3870 T. 16 January 2008, pp. 65-67. Dallaire confirmed that the Gendarmerie played a key role in operation clean corridor. See T. 6 December 2006, p. 46. 3871 T. 17 January 2008, p. 60. 3872 T. 10 June 2008, p. 19. 3873 T. 10 June 2008, p. 20. 3874 T. 5 March 2008, p. 8. 3875 T. 23 January 2008, pp. 37-38 (ICS). 3876 T. 5 June 2008, p. 7. 3877 T. 5 June 2008, p. 9. 17 May 2011 497/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the RPF soldiers and incorporate them. He also said that the undisciplined elements should leave the Gendarmerie.”3878 2203. Belgian Ambassador Swinnen testified that Ndindiliyimana was supportive of the Arusha Accords and of a stronger exercise of UNAMIR’s mandate.3879 Swinnen stated that he had no doubt about Ndindiliyimana’s commitment to reconciliation at the time.3880 2204. Ndindiliyimana testified that during late 1993 and 1994, he considered the Arusha Accords to be the only viable way to achieve peace3881 and that his view was that “the Arusha Accords needed to be implemented at all costs”.3882 He therefore went to see the President on 17 February 1994 with his entire General Staff.3883 They told the President, “[Y]ou need to implement the Arusha Peace Accords.” They also tried to tell the President that they were headed for catastrophe and wanted him to do something. However, Ndindiliyimana stated, “[B]y the time we left, we were not hopeful that what we had called for was going to happen … So we left quietly, silently, wondering what was going to happen.”3884 2205. In assessing the cooperation between the Gendarmerie and UNAMIR between March and April 1994, Ndindiliyimana stated, “We spared no effort to convince UNAMIR and to demonstrate our good faith in the search for a solution for proper

accomplishment of the mission of UNAMIR.”3885 However, Ndindiliyimana testified that the Gendarmerie was experiencing serious problems during this period.3886 During March 1994, Ndindiliyimana appealed for help from other countries, particularly Belgium and France, but he was unsuccessful. He returned to Kigali around 24 March “to continue to try to see how the Accords [could] be implemented, because we had no other choice.”3887 2206. Based on the evidence outlined above, the Chamber is satisfied that Ndindiliyimana was in favour of implementing the Arusha Accords and cooperating closely with UNAMIR prior to April 1994.

2207. Ndindiliyimana’s continuing support for the Arusha Accords after that time is evidenced in particular by his comments during meetings held between 6 and 8 April. In this regard, the Chamber recalls that Prosecution Expert Witness Alison Des Forges testified, “In the early days of April, it appears that General Ndindiliyimana made efforts to organise some form of opposition, in meetings was in opposition to Bagosora and in addition made efforts to save lives.”3888 According to Des Forges, at the crisis committee meeting in the evening of 7 April, Ndindiliyimana, Gatsinzi and Rusatira “made some plans for bringing the Presidential 3878 Chamber’s Exhibit 17 A, p. 7. 3879 T. 22 October 2008, pp. 8-11, 26. 3880 T. 22 October 2008, p. 31. 3881 T. 16 June 2008, p. 57; T. 25 January 2008, p. 5 (ICS); T. 10 June 2008, p. 19. 3882 T. 16 June 2008, pp. 62-64. 3883 T. 16 June 2008, pp. 60-61. 3884 T. 16 June 2008, pp. 62-64. 3885 T. 16 June 2008, p. 60. 3886 T. 16 June 2008, p. 61. 3887 T. 16 June 2008, pp. 64-66. 3888 T. 11 October 2006, p. 55. 17 May 2011 498/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Guard under control and setting up the government based on Arusha Accords.”3889 She also testified that Ndindiliyimana was seen as an opponent to the people in power.3890 2208. The Chamber notes that the Expert Report by Des Forges tendered in this trial differs significantly from her Expert Report tendered in the Bagosora et al. (“Military I”) trial. In particular, Des Forges’s Expert Report in this case omitted a significant amount of material that was exculpatory to Ndindiliyimana.3891 The Chamber recalls that Counsel for Ndindiliyimana cross-examined Des Forges extensively about the differences between the two reports and the reasons for those differences.3892 Des Forges responded: The request to prepare a report for this trial was not particularly specific and the original request was that I confine my report to the period ending in the early months of 1994. So I had not, in fact, originally intended to include anything about the period after April. When this was reconsidered, I, rather, quickly wrote the final section without going back to refer to the previous texts that I had written related to this period. I think that probably accounts for it. I did not intend any … what shall I say … any change in position, and it would be wrong to suppose that there had been a change of position in the

evaluation that I made of General Ndindiliyimana's conduct in those early days, which are, in fact, the only period of which I have substantial information.3893 2209. The Chamber is troubled that the Prosecution’s Expert Witness would exclude highly exculpatory material regarding one of the Accused from her expert report to the Chamber in this case, particularly when the excluded information had been included in a previous expert report by the witness in the Military I case. The Chamber relies on expert witnesses for their specialised knowledge within a field, and thus they have a special duty to inform the Chamber of relevant facts. The Chamber recalls that expert witnesses are “obliged to testify with the utmost neutrality and with scientific objectivity.”3894 2210. Defence Witness Luc Marchal, the Commander of the UNAMIR Kigali secteur, testified about the meeting held at Army Headquarters in the evening of 6 April 1994. He stated that the meeting was “very full of goodwill as concerns the Arusha Accords. And it was summarised by General Ndindiliyimana on behalf of all those officers in attendance.”3895 Balthazar Ndengeyinka, an RPA Officer and Technical Advisor to the MINADEF, stated that two factions developed at the meeting, with Bagosora trying to impose a military government and others wanting a solution in line with the Arusha Accords. Ndindiliyimana was fully in

favour of complying with the Arusha Accords and wanted a meeting with UN Special Representative Booh-Booh.3896 2211. A number of witnesses also testified about the meeting held at ESM in the morning of 7 April 1994, at which Ndindiliyimana expressed support for the Arusha Accords and opposed Bagosora’s extreme stance. Jean Marie Vianney Nzapfakumunsi, the commanding officer of the Kigali gendarmerie group, stated that two sides emerged at the meeting; the 3889 T. 11 October 2006, p. 57. 3890 T. 12 October 2006, p. 7. 3891 Prosecution Exhibit 107. 3892 T. 11 October 2006. 3893 T. 11 October 2006, pp. 55-56. 3894 Media Appeal Judgement, para. 199 (internal quotations omitted). 3895 T. 17 January 2008, pp. 46-47. 3896 Chamber’s Exhibit 9A, p. 4; T. 17 June 2008, p. 22. 17 May 2011 499/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T side favouring the implementation of the Arusha Accords was led by Ndindiliyimana.3897 In a similar vein, AA-10, who was in charge of the Gendarmerie VIP protection unit, stated that Bagosora essentially wanted a coup d’etat whereas Ndindiliyimana said that it was necessary to calm the members of the Presidential Guard and to bring together the political leaders.3898 This is corroborated by the evidence of Ndindiliyimana himself.3899 2212. Belgian Ambassador Swinnen testified that on 7 April, Ndindiliyimana pleaded with Swinnen not to evacuate the Belgian forces and people. Swinnen stated that it was a highly emotional conversation, which he found to be very credible.3900 Des Forges expressed the view that this conversation between Ndindiliyimana and Swinnen revealed a sincere desire on the part of Ndindiliyimana for the international forces to remain in Rwanda, and she stated this may have been due to Ndindiliyimana’s concerns for his own safety as well as the safety of “people of a different ethnic group”.3901 2213. Ndindiliyimana testified that in the evening of 7 April, he accompanied Dallaire to the Kigali Hospital and then the morgue, where they found the corpses of the Belgian peacekeepers. Ndindiliyimana stated that he provided Dallaire with his personal escort and arranged for the bodies to be

properly wrapped.3902 Dallaire testified that Ndindiliyimana was visibly shocked at the sight of the corpses. Dallaire confirmed that Ndindiliyimana gave Dallaire his personal escort after the killing of the Belgians.3903 Likewise, AA-7 stated that Ndindiliyimana arranged for the bodies of the dead soldiers to be washed, and that Ndindiliyimana also appointed and paid people to make the remains decent.3904 2214. In the night of 7 to 8 April 1994, there was a meeting of the crisis committee at ESM. AA-7 stated that Ndindiliyimana ultimately chaired the meeting while Bagosora sulked and did not really participate.3905 This is corroborated by Ndindiliyimana3906 and also by Des Forges, who testified that at this meeting Bagosora “wished to assert his predominance … and was refused, and instead General Ndindiliyimana took the chair of the committee.”3907 According to AA-7, “[D]ecisions at the meeting were taken to see how to restore discipline within the Presidential Guard and facilitate contact between high-ranking government officials, politicians and the RPF with the help of UNAMIR, in order to form a transitional government within the framework of the Arusha Peace Accords.”3908 AA-7 also stated, “Thanks to the intervention of General Ndindiliyimana … the government finally agreed that the FAR military commander would meet the RPF military commander.”3909 The Chamber considers

that this evidence shows that, contrary to the Prosecution’s allegations, Ndindiliyimana in his chairmanship of the crisis committee was in favour of forming a government in line with the Arusha Accords and was in favour of a peaceful resolution of the conflict between the Rwandan Armed Forces and the RPF. 3897 T. 18 February 2009, p. 31; Chamber’s Exhibit 10A, p. 10. 3898 Chamber’s Exhibit 11, p. 6. 3899 T. 20 June 2008, p. 70. 3900 T. 22 October 2008, pp. 10-11, 13. 3901 T. 12 October 2006, p. 19. 3902 T. 17 June 2008, pp. 42-43. 3903 T. 21 November 2006, p. 15. 3904 Chamber’s Exhibit 15A, p. 3. 3905 Chamber’s Exhibit 15A, p. 3. 3906 T. 20 June 2008, p. 70. 3907 T. 20 October 2006, p. 47; T. 20 October 2006, p. 54. 3908 Chamber’s Exhibit 15A, p. 3. 3909 Chamber’s Exhibit 15A, p. 3. 17 May 2011 500/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 2215. The Chamber also recalls the testimony of Defence Witness François Nzabahimana, who stated that Ndindiliyimana went to see President Sindikubwabo on 9 April and told him, “[W]e should try to put an end to these killings.” Ndindiliyimana also told the President that he should address the nation in order to stop the massacres.3910 2216. In addition to the specific accounts of events following the President’s death outlined above, the Chamber recalls that a number of witnesses testified about Ndindiliyimana’s general support for the Arusha Accords and UNAMIR during the events of 1994.3911 Both Prosecution Witnesses Dallaire and Des Forges testified that Ndindiliyimana facilitated UNAMIR search operations and cooperated with peacekeeping efforts.3912 Defence Witness CBP7, a high-ranking officer in the Gendarmerie, testified that the gendarmes worked very closely with UNAMIR to carry out joint patrols, particularly the Kigali group, which occupied the most sensitive points in the capital city.3913 AA-2 stated that a platoon of gendarmes was sent to the Hotel des Milles Collines to assist the UNAMIR unit there.3914 Defence Witness CBP63, who worked very closely with Ndindiliyimana in 1994, testified that the Gendarmerie worked collaboratively with UNAMIR and that it was “a frank and honest collaboration

which unfolded smoothly”.3915 Witness CBP63 also stated that Ndindiliyimana fully supported the 12 May 1994 ceasefire proposal by UNAMIR, which included proposals to disarm the population and dismantle roadblocks.3916 Similarly, Defence Witness CBP62 described Ndindiliyimana as a “man of dialogue”.3917 2217. Regarding the communiqué from the Rwandan Armed Forces command office dated 12 April 1994 calling for a ceasefire with the RPF, Ndindiliyimana stated that he agreed with the content of the document and conveyed that opinion to Colonel Gatsinzi. Ndindiliyimana also expressed his support to Dallaire. On 13 April, Ndindiliyimana asked the government to endorse the initiative taken by the armed forces.3918 AA-7 confirmed that Ndindiliyimana supported the communiqué.3919 This is corroborated by the testimony of Des Forges, who stated that “Ndindiliyimana was said to have supported the [communiqué of 12 April 1994] but did not sign it.”3920 Dallaire testified that Ndindiliyimana told him that he supported the communiqué and would have signed it had he been in Kigali at the time;3921 however, Ndindiliyimana told Dallaire that “he’d been stuck in Butare helping some Tutsis escape from the country and hadn’t been able to get back in time to sign.”3922 2218. Ndindiliyimana also testified about a letter dated 17 April, which he prepared jointly with Colonel Gatsinzi. The letter

contained proposals from the Rwandan Armed Forces to the RPF.3923 Ndindiliyimana envisaged the integration of the Rwandan Armed Forces, the RPF and UNAMIR with a view to carrying out joint operations against wrongdoers and criminals. 3910 T. 3 June 2008, pp. 29-30. 3911 See T. 23 January 2008, pp. 37-38 (ICS); T. 5 June 2008, pp. 7, 9; Chamber’s Exhibit 17A, p. 7. 3912 T. 11 October 2006, pp. 55-56; T. 6 December 2006, pp. 43, 53, 56. 3913 T. 7 July 2008, p. 42 (ICS). 3914 Chamber’s Exhibit 12A, p. 11. 3915 T. 23 January 2008, pp. 37-38 (ICS). 3916 T. 25 January 2008, pp. 7-8 (ICS). 3917 T. 27 May 2008, p. 16 (ICS); T. 5 March 2008, p. 8. 3918 T. 17 June 2008, pp. 59-61; Defence Exhibit 230. 3919 Chamber’s Exhibit 15A. See also T. 6 December 2006, p. 59. 3920 T. 11 October 2006, pp. 61-62. 3921 T. 6 December 2006, p. 59. 3922 T. 6 December 2006, p. 57. 3923 Defence Exhibit 210. 17 May 2011 501/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana stated, “Be it on our side or on the RPF side, we needed judicial and administrative investigations in the cases of all people killed … These were concrete actions and these were actions which cannot be categorised as just empty words or lies.” At that time, Ndindiliyimana thought that peace, security and maintenance of law and order could not be restored without the implementation of these conditions.3924 2219. Ndindiliyimana testified that he remained in contact with Dallaire until he left the country in mid-June. On 16 May, they had just completed the new protocol and were awaiting the new UN force of 5,500 soldiers. Ndindiliyimana tried to recruit new gendarmes to work with the new UN force. Ndindiliyimana testified, “I continued working with Dallaire and we still had hope, the hope of attaining peace, or at least of saving people’s lives by creating a protection area where people could be brought together and, therefore, be safe from being killed.”3925 2220. Throughout these events, the Gendarmerie under Ndindiliyimana’s leadership had a significant number of Tutsi in its ranks. The Chamber also notes that Ndindiliyimana’s own personal secretary was a Tutsi.3926 2221. The Chamber is satisfied that the evidence outlined above proves that Ndindiliyimana was a political moderate who

supported the Arusha Accords and cooperated with UNAMIR. The actions taken by Ndindiliyimana demonstrate that he had a desire for the restoration of peace and was concerned for the safety of the population. 1.23.2.3.4 Evidence that Ndindiliyimana was Sidelined and Threatened 2222. The Chamber notes that there is a significant body of evidence showing that Ndindiliyimana was politically sidelined and even threatened in the weeks leading up to the termination of his post in early June 1994. Fidèle Uwizeye, the préfet of Gitarama, stated that he attended a meeting in Gitarama on 14 or 15 April at which Ndindiliyimana and Colonel Rusatira addressed political leaders. Uwizeye stated, “The two military officers said that they had a message from some army leaders. They wanted the massacre of people to end, because the army could only feel strong if the people themselves were strong and united.” Rusatira in turn painted a very bleak picture of the military situation and asked the politicians to negotiate a cease-fire. According to Uwizeye, the politicians merely castigated the fear expressed by Ndindiliyimana and Rusatira while glorifying the intervention of the Interahamwe.3927 2223. Ndindiliyimana testified that on 22 April, he went with the Gitarama préfet and Colonel Rusatira to a meeting with the government in Gitarama. Ndindiliyimana called on the government to increase its

efforts towards the pacification of the country.3928 Des Forges discussed this meeting of 22 April in her book, “Leave None to Tell the Story”. Des Forges wrote that Rusatira and Ndindiliyimana went to Gitarama on 22 April “to try to convince officials of the interim government and political party leaders that the genocide was destroying the morale of the troops … they argued that the slaughter was ‘a prelude to 3924 T. 17 June 2008, pp. 63-64. 3925 T. 18 June 2008, p. 62. 3926 See T. 18 June 2008, pp. 31-33; T. 13 October 2006, p. 17; Defence Exhibit 507. 3927 Chamber’s Exhibit 13A, p. 8. 3928 T. 18 June 2008, pp. 17-18. 17 May 2011 502/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T defeat’.”3929 Ndindiliyimana further testified that in the evening of 22 April, he met with the President and the Minister of Defence in Gitarama regarding the breakdown of peace in the country. They had “a rather stormy meeting, during which people demonstrated high levels of animosity.”3930 2224. Ndindiliyimana stated that after 22 April, “[t]here were several events which took on, say, something like a defiance of the Gendarmerie, wariness or suspicion of the Chief of Staff of the Gendarmerie.”3931 According to Ndindiliyimana, people made it clear that they “felt that the Gendarmerie should be abolished”.3932 2225. On 26 April, Édouard Karemera sent Ndindiliyimana a letter criticising certain aspects of his conduct, particularly the fact that he had Tutsi as part of his personal entourage, and stating that it was Ndindiliyimana’s responsibility to take over by leading a group of officers who were in favour of change. Karemera expressed concern about Ndindiliyimana’s personal security and stated that he wished to put an end to any “misunderstanding” between Ndindiliyimana and the Minister of Defence. Ndindiliyimana testified that the difficulties between him and the Minister of Defence did not end with Karemera’s letter; rather, they were on the rise.3933 Des Forges interpreted Karemera’s letter to

Ndindiliyimana as “very threatening”. Des Forges stated: I would read this clearly as a threat, as a very threatening letter, to General Ndindiliyimana saying, “You need to get on board with the programme. You need to stop the representations you've been making to us. You need to more publicly demonstrate your support for what's going on, and you need to do something about these people who were supposed to be Tutsi who are part of your personal staff”. So I think it's important to appreciate the pressure that was being brought to bear by a person who has no official responsibility, but who is an extraordinarily powerful figure at this time.3934 2226. In the view of the Chamber, the letter from Karemera corroborates the testimony of Ndindiliyimana and Des Forges regarding the meeting with members of the government on 22 April. Specifically, the letter suggests that members of the government were unhappy with the presentations made by Ndindiliyimana and Rusatira at the meeting, and that the relationship between Ndindiliyimana and Bizimana, the Minister for Defence, was particularly strained. Based on this evidence, the Chamber is satisfied that Ndindiliyimana did not have the support of the government at that time.

2227. Ndindiliyimana testified that on or around 15 May, he met with the Prime Minister to tell him as follows: “What you see, what you hear about the Gendarmerie and about myself, what do you intend to do about it? What are we? What are we doing?” The Prime Minister replied, “I’ve heard people who felt that the Gendarmerie should be abolished. I know that you’re facing problems.” People in the Prime Minister’s office were telling Ndindiliyimana that it was “rather delicate” and that he “had to be careful”. Ndindiliyimana realised that the Prime Minister’s warning was serious as he knew “what happens to people who are described 3929 T. 11 October 2006, pp. 58-59. 3930 T. 18 June 2008, p. 21. 3931 T. 18 June 2008, p. 30. 3932 T. 18 June 2008, p. 31. 3933 T. 18 June 2008, pp. 31-33; Defence Exhibit 507. 3934 T. 13 October 2006, p. 17. 17 May 2011 503/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T as accomplices”. At the same time, another gendarmerie officer had received similar threats. Ndindiliyimana testified that he was afraid.3935 2228. AA-6 stated that in late May or early June, Ndindiliyimana summoned him, together with Karangwa, and informed them that a list of officers to be eliminated had been submitted to President Sindikubwabo; on that list appeared, among others, the names of Rutayisire, Karangwa and Ndindiliyimana. AA-6 stated, “The Chief of Staff told us to take the matter seriously, to establish a list of trusted gendarmes for the protection of the General Staff and to be on our guard.”3936 Similarly, AA-2 stated that Ndindiliyimana summoned him and Rutayisire to Ndindiliyimana’s office early in the morning “one day”. Ndindiliyimana informed the officers that President Sindikubwabo had shown him a list of officers to be eliminated and that Ndindiliyimana, Rutayisire and Karangwa were all on that list. Ndindiliyimana said he was “wary”. According to AA-2, it was alleged that the MRND had proposed that the Gendarmerie be dissolved and be replaced by the Interahamwe because they were more efficient.3937 2229. Ndindiliyimana testified that on 5 June, he attended a meeting chaired by the Prime Minister at the Army General Staff office. The Minister of Defence, the Minister of the

Interior, the heads of the General Staff and the secteur commanders were all present at the meeting. The Prime Minister announced that he had decided to replace the gendarmerie Chief of Staff with Colonel Muberuka, and Ndindiliyimana was appointed ambassador to Bonn. With that decision, Ndindiliyimana’s career came to an end.3938 Ndindiliyimana left the country in mid-June.3939 2230. Considering the totality of the events of 1994, Ndindiliyimana explained: I wanted peace in a situation of conflict; political conflict, war conflict, that neutral stance which was taken in order to be able to bring opposing groups together. First of all, is not an easy stance to take. And, secondly, it is not a stance that allows the neutral person to be easily accepted by one or the other of the conflicting parties, particularly when the problem has been solved in one way or the other.3940 2231. The fact that Ndindiliyimana was marginalised and ultimately forced out is also evident from Dallaire’s statement before the Belgian Commission of Inquiry into the killing of the Belgian UNAMIR soldiers. Dallaire stated, “During the war, [Ndindiliyimana] saved a number of the Rwandans and was always as responsible as possible to the [UNAMIR] force commander ... [Ndindiliyimana] fled in late June as extremists were eliminating suspected moderates, and he was being targeted.” Dallaire confirmed this

statement in his testimony before this Chamber.3941 2232. Further demonstrating that he was not an extremist who encouraged the killings, Ndindiliyimana testified that in August or September 1994, Dallaire contacted him and asked 3935 T. 18 June 2008, p. 60. 3936 Chamber’s Exhibit 14A, p. 4. 3937 Chamber’s Exhibit 7A, 6 November 1997, p. 9; see also Chamber’s Exhibit 12A, p. 12. 3938 T. 18 June 2008, p. 68. 3939 T. 18 June 2008, pp. 71-72. 3940 T. 19 June 2008, p. 7. 3941 T. 6 December 2006, p. 43. 17 May 2011 504/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T him to join the RPF along with Colonel Rusatira, Colonel Gatsinzi and a large number of gendarmes.3942 2233. Based on the evidence outlined above, the Chamber is satisfied that Ndindiliyimana did not have the support of the Rwandan Government and that he was marginalised and threatened due to his moderate stance in the lead-up to his departure from Rwanda in mid- June 1994. The Chamber notes that it has convicted Ndindiliyimana based on his failure to punish crimes committed by his subordinates at Kansi Parish and St. André College in April 1994. The Chamber recognises that Ndindiliyimana’s lack of governmental support during the time of the events underlying his convictions would have hampered his material ability to punish the perpetrators. 1.23.2.3.5 Evidence of Ndindiliyimana’s Efforts to Save Tutsi and Prevent or Punish Killings 2234. In assessing Ndindiliyimana’s sentence, the Chamber will also consider as mitigating factors any measures that he took to save Tutsi and to prevent or punish killings during the genocide in 1994. In this regard, Des Forges testified “General Ndindiliyimana saved the lives of a number of people ... I am sure that he did, in fact, save lives.”3943 Des Forges also stated that Ndindiliyimana tried to persuade journalists from RTLM and Radio Rwanda to stop calling for

violence against Tutsi and discrediting military officers opposed to the genocide.3944 2235. Witness CBL104, who was one of Ndindiliyimana’s drivers, stated that Ndindiliyimana saved the life of a Tutsi army major named Kambanda at a roadblock between Nyabugogo and Gitikinyoni, and that Ndindiliyimana then took Kambanda to Gitarama to a hotel owned by a Tutsi. According to CBL104, this was only one of “many” examples of Ndindiliyimana saving Tutsi lives.3945 AA-1, a demobilized gendarme and driver, stated that in May 1994, Ndindiliyimana decided of his own volition to evacuate the Kigali population to Gitarama.3946 He also testified that Ndindiliyimana stationed gendarmes at the Hôtel Tourisme Sport in Gitarama in order to protect the Tutsi hiding there.3947 Witness CPL101, a gendarme in Ndindiliyimana’s escort, confirmed that gendarmes were stationed at the Hôtel Tourisme Sport.3948 The Chamber also heard evidence from Antoine Nemeyabahizi, the hôtelier of the Hôtel Tourisme Sport in Gitarama, who testified that Ndindiliyimana left gendarmes to protect Tutsi civilians who were hidden in the hotel.3949 This evidence was confirmed by other members of Ndindiliyimana’s escort such as Witness CBL104.3950 2236. Ndindiliyimana testified that on 22 April, he addressed the nation in a radio interview and called on the population “to abstain from killing members of the population,

because this might encourage the enemy.”3951 Ndindiliyimana also stated that he protected a number of 3942 T. 19 June 2008, pp. 5-7. 3943 T. 13 October 2006, pp. 17-18. 3944 T. 11 October 2006, p. 60. 3945 T. 4 June 2008, p. 11 (ICS). 3946 Chamber’s Exhibit 6, p. 4. 3947 Chamber’s Exhibit 6, p. 5. 3948 T. 18 February 2008, pp. 66-67, 71-77. 3949 T. 22 January 2008, pp. 41-42. 3950 T. 4 June 2008, p. 12 (ICS). 3951 T. 18 June 2008, p. 15; Defence Exhibit 504. 17 May 2011 505/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Tutsi at his own home, including Tutsi women, clergy and 20 to 30 orphans.3952 Witness CBP63 testified that these nuns and priests were evacuated to Gitarama along with 37 orphans.3953 Witnesses CBP15 and CBP48 confirmed that Ndindiliyimana housed Tutsi in his home in Nyaruhengeri.3954 2237. Dallaire testified to a private meeting with Ndindiliyimana on 20 May, during which Ndindiliyimana discussed rescuing and saving Tutsi and how to combat the killings at roadblocks.3955 Ndindiliyimana stated that he and Dallaire “had a number of meetings to try and find a solution to the issue of the members of the population who were dying like flies because we desired to find a way to peace.”3956 In short, Ndindiliyimana stated, “[W]e tried to do what we could with the resources available”.3957 2238. Regarding the investigation and punishment of killings, Ndindiliyimana testified that in April 1994 he set up a small team to conduct “investigations into the massacres, into the killings, and to all acts of violence, criminal acts and so forth”.3958 Ndindiliyimana explained, “[W]e set up a group which moved about, visiting units to see what was happening and then report to the general staff … and the Chief of Staff would also visit troops on the ground and make his own assessment.”3959 Ndindiliyimana stated that he

was aware of three gendarmes who had participated in the massacres and that he had those three men arrested in Kigali for their involvement in the killings. According to Ndindiliyimana, these types of measures, as well as his calls for calm, were not well received by the population and by some hostile politicians. Besides those three men, Ndindiliyimana stated that they did not have any evidence indicating the involvement of gendarmes in the killings.3960 2239. Based on the evidence outlined above, the Chamber is satisfied that Ndindiliyimana did take measures to save lives and did in fact save the lives of Tutsi civilians. His actions are consistent with his desire for the restoration of peace. 1.23.2.4 Sentencing Consideration 2240. The Chamber has carefully examined the evidence that Ndindiliyimana was known as a moderate Hutu who advocated for the Arusha Accords and cooperated with UNAMIR. A number of Prosecution and Defence witnesses testified that Ndindiliyimana faced serious difficulties in attempting to exercise control over the gendarmes throughout Rwanda and that he did in fact take measures to prevent or punish crimes against Tutsi, particularly during April 1994. As the genocide progressed, Ndindiliyimana was sidelined and even threatened by his political opponents. He was relieved of his post on 5 June and he left the country in mid-June 1994.

2241. The Chamber further recalls that Ndindiliyimana has been convicted pursuant to Article 6(3) of the Statute as a result of his failure to punish his subordinates. In this regard, 3952 T. 18 June 2008, pp. 43-44. Prosecution Witness ANC testified that he visited Ndindiliyimana’s house in Nyaruhengeri in mid-April 1994 and he “saw young men and girls come out.” See T. 29 May 2006, pp. 60-61. 3953 T. 23 January 2008, pp. 44-45 (ICS). 3954 T. 5 February 2008, p. 14 (ICS); T. 5 February 2008, p. 14 (ICS). 3955 T. 6 December 2006, pp. 60-61. 3956 T. 17 June 2008, p. 69; T. 23 January 2008, p. 46 (ICS). 3957 T. 23 June 2008, pp. 11-13. 3958 T. 17 June 2008, p. 66. 3959 T. 17 June 2008, p. 66. 3960 T. 23 June 2008, p. 21. 17 May 2011 506/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the Chamber recognises that Ndindiliyimana had limited resources to investigate and punish crimes by his subordinates and that he had a very narrow window of time during which he was in a position to do so.

2242. As noted above, the Chamber considers that these mitigating factors distinguish Ndindiliyimana from the other Accused in this case and from other Accused that have come before this Tribunal. The sentence imposed reflects this difference notwithstanding the gravity of Ndindiliyimana’s crimes. 1.23.3 Nzuwonemeye 1.23.3.1 Gravity of Offences 2243. The Chamber has determined that on 7 April 1994, RECCE Battalion soldiers under the command of Nzuwonemeye participated in the attack on and killing of Prime Minister Agathe Uwilingiyimana. Nzuwonemeye ordered RECCE troops to reinforce Presidential Guard soldiers at the Prime Minister’s residence, and was kept fully informed via radio communications of events as they unfolded at the residence. The Chamber has found that Nzuwonemeye bears both direct responsibility under Article 6(1) and superior responsibility under Article 6(3) for this crime. However, the Chamber has chosen to convict Nzuwonemeye pursuant to Article 6(1) because it considers that this form of liability more accurately reflects his role in this crime. The Chamber will consider Nzuwonemeye’s superior responsibility in determining an appropriate sentence.3961 2244. The Chamber has also found Nzuwonemeye guilty under Article 6(3) for his role in failing to punish the killing of the Belgian soldiers at Camp Kigali on 7 April. The Chamber found that Nzuwonemeye had

reason to know of the involvement of his subordinates in the killings of the Belgian soldiers but failed to punish them for those killings. 1.23.3.2 Aggravating Factors 2245. In aggravation, the Chamber has considered Nzuwonemeye’s role as a superior and leader of the RECCE Battalion, and the fact that he abused that position of authority.3962 2246. The killing of the Prime Minister, a figurehead of the Rwandan government, carried particular symbolic weight and removed opposition to the ensuing genocide and other crimes that ultimately occurred. The Chamber also considers aggravating the calculated and premeditated nature of the killing of the Prime Minister. This is evidenced by the fact that the operation took place over a number of hours and required the movement of troops, equipment, provisions and ammunition.

2247. Finally, the Chamber finds aggravating Nzuwonemeye’s lack of remorse for the crimes, his continual denial of his role in the crimes and his failure to apologise for his actions.3963 3961 Media Appeal Judgement, para. 487 (“When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both Articles and the accused could be found [responsible] under both provisions, the Trial Chamber should rather enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance.”). 3962 Kamuhanda Appeal Judgement, para. 347. 17 May 2011 507/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23.3.3 Mitigating Factors 2248. The Chamber has already discussed the background and individual circumstances of Nzuwonemeye in Chapter I of the Judgement. In considering an appropriate sentence, the Chamber has considered the mitigating factors submitted by the Defence. In particular, it has considered the Defence evidence of Nzuwonemeye’s good character,3964 including witness testimony describing him as a humanist, a decent person3965, devoted, honest, sociable, courageous3966 and balanced.3967 2249. In regard to Nzuwonemeye’s treatment of Tutsi in the RECCE Battalion, the Chamber recalls that Prosecution Witness DY, a Tutsi soldier in the RECCE Battalion, testified that although he was Tutsi, a fact known to Nzuwonemeye and to his fellow soldiers, Nzuwonemeye “had the same confidence in [him] as he had in other members of his unit.”3968 The Chamber has also considered the testimony of Witness Y2, stated that he never heard of Tutsi in the RECCE Battalion being discriminated against and that everyone was treated equally.3969 Similarly, Witness NGT testified that Nzuwonemeye did not discriminate against Tutsi in the RECCE Battalion,3970 and Witnesses F103971 and DB8-193972 both testified that they never observed any anti-Tutsi sentiments from Nzuwonemeye. In addition, Witness K4 stated that he never

saw Nzuwonemeye with a list of Tutsi to be eliminated.3973 2250. The Chamber has also reviewed the evidence regarding Nzuwonemeye’s attitude toward the Arusha Accords. In particular, the Chamber recalls the testimony of Witness F10 that Nzuwonemeye was relieved and happy when he thought there would be national reconciliation and that he had begun planning the process of training RPF soldiers to be integrated into the army.3974 The Chamber also recalls the evidence of Nzuwonemeye himself that he was “wholeheartedly for the implementation of the Accords”.3975 3963 Rutaganda Appeal Judgement, para. 590 (“The other factors which weighed in favour of a heavier penalty were that the Appellant … never showed remorse for the commission of the crimes.”). 3964 T. 6 November 2007, p. 39 (ICS). 3965 T. 7 July 2008, p. 20 (ICS). Witness B13 stated that Nzuwonemeye is a “humanist” and a “decent person” who does not have a negative attitude towards any group of people. 3966 T. 6 November 2007, p. 39 (ICS) (Witness F8 stated that Nzuwonemeye was “discrete, devoted, honest, sociable, … energetic and … courageous” as well as “very professional and … a man of good character”). 3967 T. 24 October 2008, p. 6 (ICS) (Witness F10 testified that Nzuwonemeye was “a very balanced person, [and] a very calm person” who was pleased with the reconciliation that was taking place in Rwanda); T. 25 June 2008,

p. 9 (Witness Y1 testified that Nzuwonemeye was a “very sociable officer, reserved, who did not want any problem with anyone ... [h]e like talking to his colleagues, respected his superiors” and was sociable, and a friendly and exemplary officer); T. 11 December 2007, p. 44 (co-Accused Bizimungu testified that his assessment of Nzuwonemeye was “very positive” and that “he was an intelligent, available, disciplined and very respectful officer”); T. 19 June 2008, p. 31 (co-Accused Ndindiliyimana testified that Nzuwonemeye was a “very good cadet officer”, “a very balanced young man”, and a “conscientious officer” who was appreciated by many). 3968 T. 24 January 2006, pp. 16-17; Prosecution Exhibit 74. 3969 T. 15 September 2008, p. 12. 3970 T. 23 September 2008, p. 8. 3971 T. 24 October 2008, p. 7 (ICS). 3972 T. 7 November 2007, p. 35 (ICS). 3973 T. 30 June 2008, p. 26. 3974 T. 24 October 2008, p. 10. 3975 T. 7 October 2008, p. 30. 17 May 2011 508/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.23.3.4 Sentencing Consideration 2251. The Chamber has carefully considered the mitigating factors set out above. However, it finds that they have little impact when weighed against Nzuwonemeye’s direct responsibility under Article 6(1) and the aggravating factors of the crimes attributed to him. 1.23.4 Sagahutu 1.23.4.1 Gravity of Offences 2252. The Chamber recalls that Sagahutu was the commander of Squadron A of the RECCE Battalion. On 7 April 1994, acting on instructions from Nzuwonemeye, Sagahutu sent armoured vehicles and troops to the Prime Minister’s residence. Sagahutu then maintained frequent radio contact with RECCE Battalion soldiers at the residence of the Prime Minister, particularly W.O. Bizimungu. Sagahutu instructed W.O. Bizimungu that the Belgians should be allowed to enter the Prime Minister’s residence but that they should not leave the residence with anything, and that RECCE Battalion soldiers should shoot back at the Belgians if attacked. He was therefore fully informed of the operation that resulted in the Prime Minister’s assassination.

2253. The Chamber recalls that the Prosecution charges Sagahutu with both direct responsibility under Article 6(1) and superior responsibility under Article 6(3) for the killing of the Prime Minister. The Chamber has chosen to convict Sagahutu under Article 6(1) because it considers that this form of liability more accurately reflects his role in this crime. The Chamber will consider Sagahutu’s command responsibility in determining an appropriate sentence.3976 2254. The Chamber has also found that on 7 April 1994, RECCE Battalion soldiers under Sagahutu’s command participated in arresting, disarming, killing and mutilating Belgian UNAMIR soldiers. The members of the UNAMIR force were first beaten by war-wounded soldiers with a variety of instruments including canes, rifle butts and rocks, resulting in the death of at least six UNAMIR peacekeepers. RECCE Battalion soldiers were present during this attack, but the Chamber is not satisfied beyond reasonable doubt that they participated in it. Those Belgian UNAMIR soldiers who escaped this attack sought refuge in a nearby building, where they too were ultimately killed by a combination of weaponry including firearms and grenades. The Chamber is satisfied that RECCE Battalion soldiers participated in this phase of the attack. Furthermore, Sagahutu was personally informed of this attack and gave orders that the RECCE Battalion soldiers should counter any UNAMIR resistance. The Chamber has found that an MGL used in the attack came from Sagahutu’s office and that Sagahutu was aware that it was to be used to attack the UNAMIR soldiers.

2255. The Chamber recalls that the Prosecution charges Sagahutu with both direct responsibility under Article 6(1) and superior responsibility under Article 6(3) for murder as a war crime in relation to the killings of the Belgian soldiers. In addition, the Prosecution charges Sagahutu with superior responsibility under Article 6(3) for murder as a crime against humanity in relation to these killings. The Chamber has convicted Sagahutu under 3976 Media Appeal Judgement, paras. 487 (“When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both Articles and the accused could be found [responsible] under both provisions, the Trial Chamber should rather enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance.”). 17 May 2011 509/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Article 6(1) for murder as a war crime for his role in ordering as well as aiding and abetting the killing of the Belgian soldiers at Camp Kigali on 7 April. In addition, in line with the Indictment, the Chamber has convicted Sagahutu as a superior under Article 6(3) for failing to prevent or punish these crimes. 1.23.4.2 Aggravating Factors 2256. As aggravating circumstances, the Chamber considers Sagahutu’s role as a superior and leader of Company A of the RECCE Battalion who gave orders relating to the killings of the Prime Minister and the UNAMIR soldiers.3977 Sagahutu could have used his influence and position of authority to prevent these crimes. Instead, he ordered armoured vehicles to move to the Prime Minister’s residence and ordered RECCE Battalion soldiers to return fire if attacked and to counter forcefully any UNAMIR resistance. Soldiers at the Prime Minister’s residence sought his guidance as to transporting the Prime Minister and as to allowing UNAMIR soldiers into the Prime Minister’s residence. It stands to reason that in a unit as specialised and disciplined as the RECCE Battalion, actions would not have been taken without the permission of the company commander and that, conversely, Sagahutu’s authority would have gone a long way had he taken measures to prevent these crimes.

2257. The Chamber finds that the identities of the victims enhance the penalty that should be applied. The killings of the Prime Minister, a figurehead of the Rwandan government, and the UNAMIR peacekeepers, international representatives ensuring adherence to the Arusha Accords, carried particular symbolic weight and removed impediments to the genocide and other crimes that ultimately occurred. It is additionally aggravating that the UNAMIR peacekeepers were sent to Rwanda by the UN Security Council under its Chapter VI peacekeeping authority and were engaged in protecting the Prime Minister under that authority at the time of their capture.

2258. The Chamber also considers aggravating the calculated and premeditated nature of both the killing of the Prime Minister and the killing of the Belgian soldiers. This is evidenced by the fact that both operations took place over a number of hours and required the movement of troops, equipment, provisions and ammunition.

2259. The Chamber further notes as aggravating circumstances the particular sadism with which the Prime Minister’s body was violated and Sagahutu’s lack of remorse.3978 1.23.4.3 Mitigating Factors 2260. The Chamber has already discussed Sagahutu’s background and individual circumstances in Chapter I of the Judgement. The Chamber takes note of the mitigating factors submitted by the Defence. In particular, the Chamber recalls the evidence that 3977 Media Appeal Judgement, paras. 487-488 (“When, for the same count and the same set of facts, the accused’s responsibility is pleaded pursuant to both Articles and the accused could be found [responsible] under both provisions, the Trial Chamber should rather enter a conviction on the basis of Article 6(1) of the Statute alone and consider the superior position of the accused as an aggravating circumstance.”); Karera Trial Judgement, para. 583 (“Life imprisonment [has] ... been imposed on those at a lower level who planned or ordered atrocities or if they participated in the crimes with particular zeal or sadism.”). 3978 Rutaganda Appeal Judgement, para. 590 (“The other factors which weighed in favour of a heavier penalty were that the Appellant … never showed remorse for the commission of the crimes.”). 17 May 2011 510/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Sagahutu was a disciplined officer3979 who was one of the best commanders in the Army3980 and was brave, valiant, trustworthy, courageous,3981 respectful,3982 kind3983 and not prejudiced.3984 2261. The Chamber also recalls that a number of witnesses testified to Sagahutu’s good deeds during the war. In particular, Sagahutu’s co-Accused Nzuwonemeye testified that Sagahutu assisted in the evacuation of the Belgian ambassador, intervened to protect Belgian soldiers at a Belgian school, and successfully conducted an operation against looting in Kigali town.3985 Witness CSS recounted an episode where, at risk to personal safety, Sagahutu prevented citizens from attacking a convoy of Belgian soldiers and cleared a roadblock so that the convoy could continue.3986 Witness SMS testified that Sagahutu rescued a boy named Rashid whom he had discovered next to the boy’s dead mother. Rashid subsequently lived with Sagahutu’s family in Bukavu.3987 Additionally, a number of witnesses testified that Sagahutu helped Tutsi and Hutu to evacuate and assisted refugees with services and resources.3988 1.23.4.4 Sentencing Consideration 2262. The Chamber has considered the evidence regarding Sagahutu’s character and his selective assistance to some of those in need during the course of the war.3989 However, the Chamber finds

that these mitigating factors have little impact when weighed against Sagahutu’s direct responsibility under Article 6(1) and the aggravating factors of the crimes attributed to him. 3979 T. 7 October 2008, pp. 26-27. 3980 T. 24 October 2008, p. 14 (ICS). 3981 T. 13 November 2008, p. 16; T. 10 November 2008, p. 52; T. 11 November 2008, p. 21. 3982 T. 23 October 2008, pp. 43, 45. 3983 T. 30 October 2008, p. 62. 3984 T. 23 October 2008, pp. 43, 45. 3985 T. 7 October 2008, pp. 26-27. 3986 T. 23 October 2008, p. 36. 3987 T. 10 November 2008, pp. 48-49. 3988 T. 30 October 2008, pp. 57-62 (Witness RTS testified that Sagahutu helped him and a group, comprised of both Hutu and Tutsi, to evacuate Rwanda); T. 11 November 2008, pp. 20-21 (Witness Théophile Twagiramungu testified that he was in contact with Sagahutu regarding evacuating persons from Kigali in April or May 1994, that Sagahutu helped both Hutu and Tutsi to evacuate, and that he met a man named Rubayiza in September 1994 who was a Tutsi that Sagahutu had helped escape); T. 17 November 2008, pp. 36-37 (Witness Emmanuel Nsanzubuhoro testified that Sagahutu protected the family of Rubayiza even though he knew that Rubayiza was a supporter of the RPF); T. 22 October 2008, pp. 70-72; Prosecution Exhibit 586 (Witness RVS, a Tutsi, testified that men were coming to shoot him at the house he was hiding at and Sagahutu transported him

to safety at Sagahutu’s army house in Camp Kigali, knowing he was a Tutsi. The Witness spent two months there.); T. 17 November 2008, pp. 6-12 (Witness FSS testified that Sagahutu helped the Witness and others, both Hutus and Tutsi, including one Rubayiza, to evacuate and later to retrieve their possessions from Kigali. The Witness also saw Sagahutu in Nairobi in December 1997 and learned that Sagahutu had been assisting refugees there and gave the Witness $50). 3989 Nzabirinda Trial Judgement, para. 77; Bagosora et al. Trial Judgement, para. 2273. 17 May 2011 511/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 1.24 Conclusion 2263. The Chamber has the discretion to impose a single sentence “[w]here the crimes ascribed to an accused, regardless of their characterisation, form part of a single set of crimes committed in a given geographic region during a specific time period.”3990 The Chamber notes that the convictions for genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II are based largely on the same underlying criminal acts.

2264. Considering all the relevant circumstances discussed above: 2265. The Chamber SENTENCES Augustin Bizimungu to 30 years imprisonment. Augustin Bizimungu shall receive credit for the time served since he was arrested in Angola on 2 August 2002.

2266. The Chamber notes that Ndindiliyimana has spent just over 11 years in custody since he was arrested in Belgium on 28 January 2000. The Chamber decides that the sentence to be imposed on Ndindiliyimana is commensurate with the time he has already spent in custody to date. The Chamber therefore SENTENCES Ndindiliyimana to time served.

2267. The Chamber SENTENCES François-Xavier Nzuwonemeye to 20 years imprisonment. François-Xavier Nzuwonemeye shall receive credit for the time served since he was arrested in France on 15 February 2000.

2268. The Chamber SENTENCES Innocent Sagahutu to 20 years imprisonment. Innocent Sagahutu shall receive credit for the time served since he was arrested in Denmark on 15 February 2000. 1.24.1 Consequential Order 2269. Augustin Bizimungu, François-Xavier Nzuwonemeye and Innocent Sagahutu shall serve their sentences in a State designated by the President of the Tribunal in consultation with the Chamber. The Government of Rwanda and the designated State shall be notified of the designation by the Registrar. Pending their transfer, Bizimungu, Nzuwonemeye and Sagahutu shall be kept at the UNDF under their current terms of detention.

2270. Pursuant to Rule 102(B) of the Rules, upon notice of appeal by the Parties, the sentences of Bizimungu, Nzuwonemeye and Sagahutu shall be stayed until the Appeals Chamber renders a final decision or judgement. Bizimungu, Nzuwonemeye and Sagahutu shall remain in detention pending the conclusion of the appeals process.

2271. The Chamber has sentenced Ndindiliyimana to time served and orders his immediate release.

2272. The Chamber requests that the Registry make the necessary arrangements. 3990 Media Appeal Judgement, paras. 1042-1043, quoting Kambanda, paras. 110-112. 17 May 2011 512/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 17 May 2011. Done in English. Asoka de Silva Tagrid Hikmet Seon Ki Park Presiding Judge Judge Judge (Seal of the Tribunal) 17 May 2011 513/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T PARTIALLY DISSENTING OPINION OF JUDGE PARK 1. With due respect, I disagree with the majority of the Chamber in its finding that the Prosecution has failed to adduce sufficient evidence to prove that Ndindiliyimana knew or had reason to know of the implication of his subordinates in the events that led to the killing of some members of a group of about 40 civilians, mainly of Tutsi ethnicity, by Interahamwe.3991 2. Like the majority of the Chamber, I accept the firsthand and credible account of Witness ATW of the events that led to the killing of a number of Tutsi civilians who were abducted from CELA. I also share the majority’s finding regarding the complicity of gendarmes at Muhima Brigade in the killing of those civilians.

3. However, I disagree with the majority’s conclusion that Ndindiliyimana had no reason to know of the risk that those civilians might be killed in the event that gendarmes under his command failed to protect them. In my view, Ndindiliyimana’s own account of the events at CELA indicates that he must have been aware of the fact that a group of Tutsi civilians were removed from CELA and taken to the Muhima Gendarmerie brigade for questioning on their ties with the RPF at the behest of Préfet Renzaho.

4. In reaching this finding, I have placed particular weight on Ndindiliyimana’s admitted knowledge of the presence of a large number of assailants at CELA who intended to attack the refugees on the suspicion that some of the refugees were accomplices of the RPF. I have also considered his admission that he knew of the intervention of Préfet Renzaho at CELA shortly after the assailants had gathered there. Ndindiliyimana further testified that a search was conducted at CELA and weapons were found among the refugees. Witness ATW, himself a Tutsi refugee at CELA, confirmed that some of the refugees at CELA were armed and used those arms to repulse attacks by Interahamwe prior to 20 April 1994. In my view, the fact that those refugees were found to be armed would have reinforced the belief of the assailants that they were in fact armed members of the RPF.

5. Against this backdrop, I agree with the majority that Ndindiliyimana’s account of how the fraught situation at CELA was resolved is implausible. Ndindiliyimana’s claim that those refugees were transferred to St. Paul, where they were protected by gendarmes, is an unconvincing attempt to disavow knowledge of the removal and detention of the civilians at CELA.

6. I am therefore convinced that given his knowledge of the events that transpired at CELA, Ndindiliyimana must have been aware of the removal and transfer of those civilians from CELA to Muhima Gendarmerie brigade. I recall Ndindiliyimana testifying that he was aware of the presence of gendarmes at CELA during the attack. Witness ATW also testified to having seen gendarmes at CELA after the arrival of Renzaho. His evidence of the presence of gendarmes at CELA during the events in question further heightens the possibility of their involvement in removing those civilians from CELA to Muhima Brigade. 3991 Indictment, para. 77. 17 May 2011 514/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 7. This being the case, Ndindiliyimana must have been aware of the grave risk that the Tutsi civilians who were transferred from CELA to Muhima Gendarmerie brigade by Interahamwe might be killed in the event that gendarmes failed to protect them. The fact that those civilians were accused of being armed accomplices of the RPF compounded the risk of them being killed. Ndindiliyimana must have been aware of the prominent and widely- publicised role of the Interahamwe in the killing of Tutsi civilians mainly on the ground that they were accomplices of the RPF. This leads me to conclude that Ndindiliyimana was on notice of the strong prospect that civilians who were transferred from CELA to Muhima Brigade might be killed by Interahamwe in the event that gendarmes at Muhima Brigade failed to protect them.

8. In reaching this conclusion, I have deferred to the insightful findings of the Appeals Chamber in Čelebići, which held that even general information in the possession of the commander that would put him on notice of possible unlawful acts by his subordinates would be sufficient.3992 This information does not need to provide specific details about unlawful acts committed or about to be committed; the information need only be “sufficient to justify further inquiry.”3993 In other words, the information need not be such that, by itself, it would be sufficient to compel the conclusion of the existence of such crimes, but it must be sufficiently clear and alarming to indicate the strong likelihood that the offences charged had been or were about to be committed in order to trigger the commander’s duty to act.3994 Thus, the fact that Ndindiliyimana did not have dispositive information on the eventual killing of the Tutsi refugees by Interahamwe at Rugege does not negate the attribution of notice for the purposes of superior responsibility.

9. In view of the information available to Ndindiliyimana alerting him about the strong prospect that the civilians who were abducted from CELA and taken to Muhima Brigade might be killed in the event that they were not protected by the gendarmes at the brigade, he should have carried out or ordered further investigation to determine whether gendarmes under his command may have been complicit in the killing of those Tutsi civilians by Interahamwe. The information available to Ndindiliyimana was of a nature that, at a minimum, should have “indicated to any reasonable commander a need for additional investigation in order to ascertain whether offences were being committed or were about to be committed by his subordinates.”3995 The fact that he denied that any of the Tutsi refugees at CELA were killed on or about 22 April 1994 indicates that he did not carry out any investigation to determine the role of his subordinates in the killing of the Tutsi civilians who were removed from CELA.

10. I also recall that Ndindiliyimana testified to having received regular SITREPs from his units in the field throughout April 1994. According to Ndindiliyimana, these SITREPs contained “information on the situation that prevailed in the préfecture where [the Gendarmerie] had [its] units”.3996 I find it implausible that an event such as the detention of a group of about 40 mainly Tutsi civilians would not have been reported to Ndindiliyimana in the SITREPs that he received at the time. This further bolsters my conclusion that he had 3992 Čelebići Appeal Judgement, para. 238; see also Halilović Trial Judgement, para. 68. 3993 Čelebići Appeal Judgement, para. 238; Kordić and Čerkez Trial Judgement, para. 437; Halilović Trial Judgement, para. 68. 3994 Kordic Trial Judgement, para. 437, Strugar Trial Judgement, paras. 369-370; Čelebići Trial Judgement, para. 393; CDF Trial Judgement, para. 244; AFRC Trial Judgement, para. 794. 3995 Galić Trial Judgement, para. 706 3996 T. 23 June 2008, p. 9, confirming his testimony in Bagambiki, T. 17 February 2003, p. 69. 17 May 2011 515/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T reason to know that his subordinates might have been complicit in the killing of the Tutsi civilians who were abducted from CELA.

11. I would therefore conclude that the Prosecution has proved beyond reasonable doubt that Ndindiliyimana had a reason to know of the implication of gendarmes at Muhima Brigade in the events that led to the killing of Tutsi civilians who were abducted from CELA on or about 22 April 1994. 17 May 2011. Done in English. Seon Ki Park Judge 17 May 2011 516/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T ANNEX A: PROCEDURAL HISTORY 1) The Tribunal and Its Jurisdiction 1. The Judgement in the case of The Prosecutor v. Ndindiliyimana, et al. is issued by Trial Chamber II (“the Chamber”) of the International Criminal Tribunal for Rwanda (“the Tribunal”), composed of Judge Asoka De Silva, Presiding, Judge Taghrid Hikmet and Judge Seon Ki Park.

2. The UN Security Council established the Tribunal after official UN reports indicated that genocide and widespread, systematic and flagrant violations of international humanitarian law had been committed in Rwanda.3997 The Security Council determined that this situation constituted a threat to international peace and security; resolved to put an end to such crimes and to bring to justice the persons responsible for them; and expressed conviction that the prosecution of such persons would contribute to the process of national reconciliation and to the restoration of peace. Consequently, on 8 November 1994, the Security Council acting under Chapter VII of the UN Charter adopted Resolution 955 establishing the Tribunal.3998 3. The Tribunal is governed by the Statute annexed to UN Security Council Resolution 955 (“the Statute”) and by its Rules of Procedure and Evidence (“the Rules”).3999 4. The Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the Republic of Rwanda, and Rwandan citizens responsible for such violations committed in the territory of neighbouring States.4000 Articles 2, 3 and 4 of the Statute provide the Tribunal with subject-matter jurisdiction over acts of genocide, crimes against humanity and serious violations of Article 3 common to the Geneva Conventions and of Additional Protocol II. The Tribunal’s temporal jurisdiction is limited by Article 1 of the Statute to acts committed between 1 January 1994 and 31 December 1994.

2) Pre-Trial Phase 5. On 28 January 2000, Judge Laïty Kama confirmed an Indictment dated 20 January 2000 against Augustin Ndindiliyimana, Augustin Bizimungu, Protais Mpiranya, François- Xavier Nzuwonemeye, and Innocent Sagahutu, and ordered that Count 3, Complicity in Genocide, should not be charged concurrently with Count 2, genocide, but should be amended and pleaded as an alternative to Count 2. The Chamber also issued an order of non- disclosure of the Indictment until it had been served on all the Accused.4001 3997 UNSG Report on Rwanda, 1994/924; Expert Report Pursuant UNSC Resolution 935, 1994/1125; Special Rapporteur Reports, 1994/1157, Annexes I and II. 3998 UN Doc. S/RES/955 (1994). 3999 Originally adopted by the Judges of the Tribunal on 5 July 1995, the Rules were last amended on 21st May 2005 during the Fifthteenth Plenary Session. The Statute and the Rules are available at the Tribunal’s website: <http://www.ictr.org>. 4000 Articles 1, 5 of the Statute. 4001 Ndindiliyimana Decision Confirming the Indictment. 17 May 2011 517/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 3) Arrests and Initial Appearances of the Accused a) Ndindiliyimana 6. On 28 January 2000, Judge Kama issued a Warrant of Arrest and Order for Transfer and Detention against Augustin Ndindiliyimana.4002 7. Augustin Ndindiliyimana was arrested on 29 January 2000 in Belgium and transferred from Belgium to the UNDF in Arusha, Tanzania on 22 April 2000.4003 He made his initial appearance before Judge Pavel Dolenc on 27 April 2000 and entered a plea of not guilty. b) Bizimungu 8. On 12 April 2002, Judge Pavel Dolenc issued a Warrant of Arrest and Order of Transfer and Detention against Augustin Bizimungu.

9. Augustin Bizimungu was arrested on 2 August 2002 in Angola and transferred to the UNDF in Arusha, Tanzania on 14 August 20024004 He made his initial appearance before Judge Pavel Dolenc on 21 August 2002 and entered a plea of not guilty. c) Nzuwonemeye 10. On 2 February 2000, Judge Kama issued a Warrant of Arrest and Order for Transfer and Detention against François-Xavier Nzuwonemeye.4005 11. François-Xavier Nzuwonemeye was arrested in France on 15 February 2000 and transferred to the UNDF in Arusha, Tanzania on 23 May 2000.4006 He made his initial appearance on 25 May 2000 before Judge Pavel Dolenc and entered a plea of not guilty. d) Sagahutu 12. On 2 February 2000, Judge Kama issued a Warrant of Arrest and Order for Transfer and Detention against Innocent Sagahutu.4007 13. Innocent Sagahutu was arrested on 15 February 2000 in Denmark and transferred to the UNDF on 24 November 2000.4008 He made his initial appearance before Judge Mehmet Güney on 28 November 2000 and entered a plea of not guilty.

4) Other Pre-Trial Proceedings 14. On 19 October 2000, Trial Chamber II denied a purportedly preliminary motion brought by the Defence for Ndindiliyimana.4009 In its motion, the Defence for Ndindiliyimana submitted that the Tribunal lacked jurisdiction over Ndindiliyimana as the underlying issues 4002 Ndindiliyimana Warrant of Arrest for Ndindiliyimana. 4003 ICTR Detainees—Status on 16 August 2005. 4004 ICTR Detainees—Status on 16 August 2005. 4005 Ndindiliyimana Warrant of Arrest for Nzuwonemeye. 4006 ICTR Detainees—Status on 16 August 2005. 4007 Ndindiliyimana Warrant of Arrest for Sagahutu. 4008 ICTR Detainees—Status on 16 August 2005. 4009 Ndindiliyimana Decision on Urgent Motion to Stay Indictment. 17 May 2011 518/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T had already been examined by the Belgian Commission de Recours des Réfugiés. Therefore, the Defence submitted that the impending trial would contravene the prohibition of double jeopardy as set out in Article 9(2) of the Statute. The Defence further submitted that the trial would violate the principle of res judicata, which precludes the re-litigation of the same issues in order to prevent inconsistent findings on the same issues, and that the Indictment against Ndindiliyimana was defective. The Defence further argued that the Prosecution had violated its disclosure obligations and had therefore materially prejudiced Ndindiliyimana’s fair trial rights to be informed of the charges against him.

15. In its Decision, the Chamber refused to consider the motion as a preliminary motion within the meaning of Rule 72 of the Rules on the ground that the time for filing such motions had elapsed and Ndindiliyimana failed to show good cause for not filing the motion within time. Consequently, the Chamber addressed the issues raised in this motion under Rule 73. With respect to the Defence arguments that the Chamber lacked jurisdiction, the Chamber found that the proceedings against Ndindiliyimana in this Tribunal did not violate the prohibition against double jeopardy set out in Rule 9(2) of the Rules since he was neither charged with any crime brought before the Tribunal in the asylum proceedings before the Belgian Commission, nor convicted of any crimes as the commission lacked criminal jurisdiction. The Chamber also found that the impending trial against Ndindiliyimana before the Tribunal did not contravene the doctrine of res judicata since the parties before the Tribunal and the Commission were not the same. As to the defects in the Indictment, the Chamber found that the consideration of defects in the form of the Indictment was time- barred, and to the extent that some of the alleged defects were not defects in the form of the Indictment but rather defects in the Indictment itself the Chamber concluded that the Defence could broach these issues in the course of the

trial.4010 16. On 10 April 2002, the Chamber composed of Judges William Sekule, presiding, William C. Matanzima Makutu and Arlette Ramaroson, denied the Defence for Ndindiliyimana’s request for the immediate release of the Accused and stay of all charges against him on the basis that the Prosecution had not complied with its disclosure obligations and that the evidence disclosed at that time lacked probative value and was inadmissible.4011 On 16 April 2002, the Chamber issued a corrigendum to the above decision.4012 17. On 25 September 2002, the Chamber partially granted a preliminary motion brought by the Defence for Sagahutu and ordered the Prosecution to delete the introductory phrase before each count and to mention in each count only the specific paragraphs that directly concern the allegations against the Accused throughout the Indictment. The Chamber found that several paragraphs of the Indictment lacked specificity and ordered that they be clarified if the Prosecution intended to rely on them. Moreover, the Chamber ordered the Prosecution to amend Count 1 of the Indictment so as to complete the phrase “conspired with others” and to precisely indicate the names of some of the co-conspirators of the Accused. The Chamber also ordered the Prosecution to verify the official position occupied by Sagahutu at the time of the events. The Chamber rejected the remainder of the

Defence requests.4013 On 23 March 2003, the Appeals Chamber denied the Defence for Sagahutu’s request for leave to appeal the 4010 Ndindiliyimana Decision on Urgent Motion to Stay Indictment. 4011 Ndindiliyimana Decision on Motion for Immediate Release. 4012 Ndindiliyimana Corrigendum to Decision on Motion for Immediate Release. 4013Ndindiliyimana Decision on Sagahutu’s Preliminary Motion. 17 May 2011 519/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Trial Chamber’s refusal to grant the request for provisional release of the Accused.4014 The Appeals Chamber reasoned that the Defence for Sagahutu had failed to demonstrate good cause within the meaning of Rule 65(D) of the Rules which requires a party seeking leave to appeal a Trial Chamber’s refusal to grant a request for provisional release to show that the Trial Chamber may have erred in making its impugned decision.

18. On 12 December 2002, the Chamber denied a preliminary motion brought by the Defence for Nzuwonemeye, noting that many of the issues raised in this motion had been addressed in its 25 September 2002 Decision regarding Sagahutu’s preliminary motions.4015 19. On 26 March 2004, Trial Chamber II granted the Prosecution leave to amend the Indictment and decided that the Defence should be granted a further appearance in accordance with Rule 62 in order to enter a new plea on the new charges pursuant to Rule 50(B).4016 On 30 April 2004, all the Accused made further appearances before Judge Arlette Ramaroson and pleaded not guilty to the new charges pleaded in the Amended Indictment. Ndindiliyimana refrained from entering a plea and the Chamber entered a plea of not guilty pursuant to Rule 62(A)(iii) of the Rules. The rest of the Accused pleaded not guilty to all counts. The Chamber suggested the date of 20 September 2004 for the commencement of the trial.

20. On 26 March 2004, the Chamber denied the Defence for Ndindiliyimana’s urgent oral motion for a stay of the Indictment, or in the alternative, a reference to the Security Council.4017 The Chamber reasoned that the Defence for Ndindiliyimana had failed to meet its burden of showing the Prosecution’s impermissible motive in indicting and prosecuting the Accused.

21. On 10 June 2004, the President of the Tribunal, Judge Erik Møse, declined the application by the Defence for Bizimungu for review of the Registrar’s decision denying the assignment of Emmanuel Rwirangira as an investigator for the Defence for Bizimungu.4018 The President stated that the Registrar’s exercise of discretion in this instance was not unreasonable or based on extraneous factors and had not therefore prejudiced the rights of the Accused.

22. On 15 July 2004, the Chamber ordered the Prosecution to make a few typographical revisions to the Amended Indictment and denied the rest of Bizimungu’s preliminary motions.4019 23. On 20 August 2004, the Chamber granted the Prosecution’s request to sever Protais Mpiranya from the impending trial of Ndindiliyimana, Bizimungu, Nzuwonemeye and Sagahutu in view of the fact that he remained at-large. The Chamber reasoned that the severance of Mpiranya from the trial was warranted in order to safeguard the rights of the 4014 Ndindiliyimana Decision on Sagahutu’s Leave to Appeal. 4015 Ndindiliyimana Decision on Sagahutu’s Preliminary Motion. 4016 Ndindiliyimana Decision on Prosecution Rule 50 Motion. 4017 Ndindiliyimana Decision on Urgent Oral Motion to Stay Indictment. 4018 Ndindiliyimana Decision on Assignment of Rwirangira. 4019 Ndindiliyimana Decision on Bizimungu’s Preliminary Motion. 17 May 2011 520/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T remaining Accused.4020 The Prosecution filed an Amended Indictment reflecting this change on 23 August 2004.

24. On 16 September 2004, the Chamber partially granted the Defence for Nzuwonemeye’s request for the disclosure of the prior statements of Prosecution Witness General Dallaire and ordered the Prosecution to disclose the transcripts of his previous testimony before the Tribunal. With respect to the Defence submissions regarding the Pre- Trial Brief, the Chamber referred those issues to the Pre-trial conference to be held under Rule 73bis of the Rules. The Chamber further requested the Defence to specify, if it so desired, the nature and the legal basis of its request for the disclosure of the statements of Witnesses XXN, AN and DBQ.4021 5) The Indictment of 23 August 2004 a) Ndindiliyimana 25. The Indictment, as amended on 23 August 2004, charges Augustin Ndindiliyimana with six counts: conspiracy to commit genocide (Count 1) pursuant to Article 6(1) of the Statute; genocide (Count 2), or alternatively complicity in genocide (Count 3) pursuant to Articles 6(1) and 6(3) of the Statute; murder as a crime against humanity (Count 4) pursuant to Articles 6(1) and 6(3) of the Statute; extermination as a crime against humanity (Count 5) pursuant to Article 6(3) of the Statute; and murder as a violation of Article 3 common to the Geneva Conventions and Additional Protocol II (Count 7) pursuant to Articles 6(1) and 6(3) of the Statute.

26. The Indictment alleges that in his capacity as Chief of Staff of the Gendarmerie nationale, Augustin Ndindiliyimana exercised authority and disciplinary power over all gendarmes. b) Bizimungu 27. The Indictment, as amended on 23 August 2004, charges Augustin Bizimungu with eight counts: conspiracy to commit genocide (Count 1) pursuant to Article 6(1) of the Statute; genocide (Count 2), or alternatively complicity in genocide (Count 3) pursuant to Articles 6(1) and 6(3) of the Statute; murder as a crime against humanity (Count 4) pursuant to Articles 6(1) and 6(3) of the Statute; extermination as a crime against humanity (Count 5) pursuant to Article 6(3) of the Statute; rape as a crime against humanity (Count 6) pursuant to Article 6(3) of the Statute; murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7) pursuant to Articles 6(1) and 6(3) of the Statute; and rape, humiliating and degrading treatment as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(3) of the Statute.

28. The Indictment alleges that in his capacity as Chief of Staff of the Rwandan Army, Augustin Bizimungu exercised authority over all soldiers in the Army. 4020 Ndindiliyimana Decision on Motion for Separate Trial. 4021 Ndindiliyimana Decision on Rule 73 Motion. 17 May 2011 521/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T c) Nzuwonemeye 29. The Indictment, as amended on 23 August 2004, charges François-Xavier Nzuwonemeye with five counts: conspiracy to commit genocide (Count 1) pursuant to Article 6(1) of the Statute; murder as a crime against humanity (Count 4) pursuant to Articles 6(1) and 6(3) of the Statute; rape as a crime against humanity (Count 6) pursuant to Article 6(3) of the Statute; murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7) pursuant to Articles 6(1) and 6(3) of the Statute; and rape, humiliating and degrading treatment, as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(3) of the Statute.

30. The Indictment alleges that in his capacity as Commander of the RECCE Battalion of the Rwandan Army, François-Xavier Nzuwonemeye exercised authority over all the soldiers within that battalion. d) Sagahutu 31. The Indictment, as amended on 23 August 2004, charges Innocent Sagahutu with five counts: conspiracy to commit genocide (Count 1) pursuant to Article 6(1) of the Statute; murder as a crime against humanity (Count 4) pursuant to Articles 6(1) and 6(3) of the Statute; rape as a crime against humanity (Count 6) pursuant to Article 6(3) of the Statute; murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II (Count 7) pursuant to Articles 6(1) and 6(3) of the Statute; and rape, humiliating and degrading treatment, as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II pursuant to Article 6(3) of the Statute.

32. The Indictment alleges that in his capacity as Second-in-Command or acting commander of the RECCE Battalion, Innocent Sagahutu exercised authority over all soldiers in the Battalion.

6) Trial Phase 33. On 17 September 2004, a pre-trial conference and a status conference were held where, inter alia, the Chamber confirmed 20 September 2004 as the scheduled date for the commencement of the trial. The Prosecution filed its Pre-Trial Brief on 17 June 2004.

34. On 20 September 2004, the trial began before Trial Chamber II. In the course of 395 trial days, the Chamber heard a total of 216 witnesses, 72 for the Prosecution and 144 for the Defence.

35. On 24 September 2004, the Chamber denied motions by the Defence for Bizimungu, Ndindiliyimana and Nzuwonemeye alleging the Prosecutions’s failure to comply with its disclosure obligations pursuant to Rule 66 and discriminatory exercise of its prosecutorial discretion.4022 The Chamber found that the Prosecution had complied with its Rule 66 disclosure obligation and that the Defence had not substantiated its claim that the Prosecution had abused its prosecutorial discretion. It therefore denied requests for the stay of the proceedings against any of the Accused, adjournment of the trial and the transfer of Ndindiliyimana to a national jurisdiction for trial. On 6 April 2005, the Chamber denied the Defence for Ndindiliyimana’s request for certification to appeal the Chamber’s decision 4022 Ndindiliyimana Decision on Motions for Stay of Proceedings. 17 May 2011 522/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T dated 24 September 2004 dismissing Ndindiliyimana’s request for transfer of his trial to a national jurisdiction.4023 36. On 7 October 2004, the Registrar withdrew the assignment of Michel Crossier as Lead Counsel for the Accused Augustin Bizimungu. 4024 On 12 October 2004, the Registrar withdrew the assignment of Antoine Berraud as Co-Counsel for François-Xavier Nzuwonemeye.4025 On 26 January 2005, the Registrar withdrew the assignment of Didier Patry as Co-Counsel for Innocent Sagahutu.4026 On 21 April 2005, the Registrar withdrew the assignment of Andre Ferran as Lead Counsel for François-Xavier Nzuwonemeye.4027 37. At a status conference held on 11 October 2004 following the withdrawal of Lead Counsel for Bizimungu, the Chamber granted the Defence request to adjourn the proceedings for two months to allow Bizimungu’s new Lead Counsel to prepare for the Defence.4028 38. On 25 January 2005, the Chamber denied the Defence for Bizimungu’s motion for certification to appeal its Decision dated 3 November 2004.4029 The Chamber reasoned that the arguments advanced by the Defence were either similar to those pleaded in its motion that led to the impugned Decision or that they relate to grounds of appeal that were premature and irrelevant.

39. On 11 February 2005, the Chamber granted the Prosecution’s motions to add Witnesses XXQ, ATZ and AWC to its witness list and remove seven others, noting that this variance promoted judicial economy and would not prejudice the Accused.4030 On 21 September 2005, the Chamber granted another Prosecution Motion to replace deceased Witness HM with Witness ATW, to add Witness ANC, and withdraw Witnesses DAO, IG, CE, QZ, DAY and BA.4031 On 26 October 2005, the Chamber dismissed the Defence for Ndindiliyimana’s request for certification to appeal the Chamber’s decision rendered on 21 September 2005, which gave the Prosecution leave to vary its witness list pursuant to Rule 73bis(E).4032 40. On 1 April 2005, the Chamber granted the Defence for Bizimungu’s urgent motion pursuant to Rule 73 of the Rules opposing the Prosecution’s objection to a question raised by the Defence during cross examination of a Prosecution witness on the basis that the information it sought to elicit was privileged.4033 The Chamber held that a Prosecution witness is not a client of the Prosecution, and therefore the privilege provided for under Rule 97 does not apply to the relationship between the Prosecution and its witnesses. The Chamber specified that the Defence could cross-examine a Prosecution witness about pre-testimony meetings with the Prosecution provided that such cross-examination was limited to

the number of preparatory meetings, the dates of the meetings and the duration of the meetings. 4023 Ndindiliyimana Decision on Ndindiliyimana’s Request for Appeal. 4024 Ndindiliyimana Decision on Withdrawal of Croisser. 4025 Ndindiliyimana Decision on Withdrawal of Berraud. 4026 Ndindiliyimana Decision on Withdrawal of Patry. 4027 Ndindiliyimana Decision on Withdrawal of Ferran. 4028 T. 11 October 2004, pp. 14, 15. 4029 Ndindiliyimana Decision on Defence Request to Appeal. 4030 Ndindiliyimana Decision on Prosecution Rule 73 Motion. 4031 Ndindiliyimana Decision on Prosecution 9 August Rule 73 Motion. 4032 Ndindiliyimana Decision on Request to Appeal 21 September Decision. 4033 Ndindiliyimana Decision on Urgent Motion to Deny Prosecution Objection. 17 May 2011 523/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 41. On 13 May 2005, the Chamber denied the Defence for Sagahutu’s Motion for the exclusion of the testimony of Prosecution Witnesses LMC, DX, BB, GS, CJ and GFO on the basis that their proposed testimony concerns the Co-Accused Mpiranya, who was severed from the trial by the Chamber’s order of 20 August 2004.4034 After reviewing the Amended Indictment of 23 August 2004, the Pre-Trial Brief and the witness summaries, the Chamber concluded that it was premature to exclude the testimony of these witnesses on the basis of the fact that they were originally listed to testify against the formerly Co-Accused Mpiranya. On 9 June 2005, the Chamber denied the Defence for Sagahutu’s request for certification to appeal the above decision.4035 42. On 24 November 2005, the Chamber denied the Defence for Bizimungu’s motion opposing the admissibility of the testimonies of Prosecution Witnesses LMC, DX/ANM, BB, GS, CJ/ANL and GFO and its request for the Chamber to reconsider its Decision of 13 May 2005.4036 The Chamber reasoned that the Defence for Bizimungu had failed to raise valid reasons that might lead the Chamber to reconsider its impugned Decision.

43. On 17 May 2005, the Chamber denied the Defence for Bizimungu’s motion for the withdrawal of the testimony of Prosecution Witnesses GFD and AOE until the Defence had been furnished with complete disclosure of documents arising from judicial proceedings in Rwanda.4037 44. On 10 June 2005, the Chamber denied the Defence for Bizimungu’s request for certification to appeal the Chamber’s oral ruling of 10 May 2005 denying its request to exclude the testimonies of Prosecution Witnesses GFD, GFV and AOE, order an adjournment due to the Defence’s inability to conduct valid cross-examinations or postpone the hearing of their testimonies until the Defence had concluded its investigations.4038 45. On 30 June 2005, the Chamber denied the Defence for Bizimungu’s motion for certification to appeal the Chamber’s oral decision dated 8 June 2005.4039 The Chamber based its denial of the motion on the ground that granting certification to appeal its impugned decision would not materially advance the proceedings and that its oral decision did not adversely impinge on the fairness of the proceedings, since it ordered the exclusion of aspects of the testimony of Witness AOE that advert to facts not pleaded in the Indictment and declared that evidence relating to events in 1993 and the charge of conspiracy to commit genocide would be taken into consideration at a later stage “only if the

Prosecution establishes the existence of a conspiracy in 1994.”4040 46. On 1 July 2005, the Chamber denied the Defence for Ndindiliyimana’s request for certification to appeal the Chamber’s Decision dated 13 June 2005, which dismissed its request for a citation for contempt of a journalist of Radio Rwanda for publishing the names of protected witnesses.4041 The Chamber also issued a warning to the Lead Counsel for 4034 Ndindiliyimana Decision on Motion for Exclusion of Witnesses. 4035 Ndindiliyimana Decision on Request to Appeal 13 May Decision. 4036 Ndindiliyimana Decision on Motion in Opposition to Testimonies. 4037 Ndindiliyimana Decision on Motion to Withdraw Appearances. 4038 Ndindiliyimana Decision on Motion to Appeal 10 May Ruling. 4039 Ndindiliyimana Decision on Request to Appeal 8 June Decision. 4040 Ndindiliyimana Decision on Request to Appeal 8 June Decision. 4041 Ndindiliyimana Decision on Appeal of Citation for Contempt. 17 May 2011 524/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Ndindiliyimana, Christopher Black, for using improper and disrespectful language in the above motion.

47. On 18 August 2005, the Chamber granted the Prosecution’s non-contentious motion for the transfer of Witnesses ANH, DR, HAF and AOF, who were in detention or under court supervision in Rwanda pursuant to Rule 90bis of the Rules.4042 48. On 7 September 2005, the Chamber ordered that the testimony of Prosecution Witness AOG or 006 should be heard via closed video link from The Hague. The Chamber further ordered that documents relating to the Witness’s current place of residence and new identity should not be disclosed.4043 49. On 21 September 2005, the Chamber granted the Prosecution motion to replace the recently deceased Prosecution Witness HM with Witness ATW and the addition of Witness ANC to its list. The Chamber also allowed the Prosecution to withdraw Witnesses DAO, IG, CE, QZ, DAY and BA from its witness list.4044 50. On 10 October 2005, the Chamber denied Nzuwonemeye’s motion for reconsideration of its oral decision of 14 September 2005 on the admissibility of the testimony of Witness XXO in the Bagosora et al. trial into evidence.4045 51. On 13 October 2005, the Registrar of the Tribunal found Co-Counsel for Ndindiliyimana, Tiphaine Dickson, to have breached her terms of engagement under Rule 45ter of the Rules in failing to appear before the Tribunal in reasonable time as specified by the Registrar. The Registrar therefore withdrew her assignment as Co-Counsel for

the Accused and further ordered that her name be struck off the list provided under Rule 45(A) of the Rules.4046 On 23 November 2005, the Registrar varied his Decision dated 13 October 2005 regarding the withdrawal of Tiphaine Dickson as Co-Counsel for Ndindiliyimana.4047 On 1 March 2005, the President of the Tribunal, Judge Erik Møse, found the application for review of the decision of the Registrar to withdraw the assignment of Dickson dated 13 October 2005 to be moot in light of the Registrar’s revised decision dated 25 November 2005.4048 52. On 13 October 2005, pursuant to Article 19 of the Directive, the Registrar withdrew the assignment of Danielle Girard as Co-Counsel for Francois Xavier Nzuwonemeye.4049 53. On 28 October 2005, the Chamber denied two Motions by the Defence for Bizimungu seeking the exclusion of the testimony of Prosecution Witnesses TN and AP on the grounds that their testimony lacked relevance, that it referred to facts not pleaded in the Indictment and that its probative value was outweighed by its prejudicial effect.4050 The Chamber found the testimony of these witnesses to be relevant and to have probative value, and that the Defence for Bizimungu had sufficient notice of the content of the prospective testimony of 4042 Ndindiliyimana Decision on Motion for Rule 90 Transfer of Witnesses. 4043 Ndindiliyimana Decision on Motion for Additional

Protective Measures. 4044 Ndindiliyimana Decision on Prosecution 9 August Rule 73 Motion. 4045 Ndindiliyimana Decision on Motion for Reconsideration of 14 September Decision. 4046 Ndindiliyimana Decision on Withdrawal of Dickson. 4047 Ndindiliyimana Decision Varying Withdrawal of Dickson. 4048 Ndindiliyimana Decision on Review of 13 October Decision. 4049 Ndindiliyimana Decision on Withdrawal of Girard. 4050 Ndindiliyimana Decision on Motion to Exclude Witness TN. 17 May 2011 525/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the witness. On 16 November 2005, the Chamber denied the Defence for Bizimungu’s request for certification to appeal the above decisions.4051 54. On 9 November 2005, the Chamber granted the Defence for Nzuwonemeye’s ex parte and confidential motion seeking the cooperation of the Kingdom of Belgium. 4052 55. On 2 December 2005, the Chamber denied the Defence for Bizimungu’s motion opposing the admissibility of a part of the proposed testimony of Witness AOF because it relates to matters not pleaded in the Indictment and facts that are outside the temporal jurisdiction of the Tribunal.4053 The Chamber held that the proposed testimony of Witness AOF was admissible since it did not support a new allegation not pleaded in the Indictment but merely stated a new material fact underpinning an already existing charge. The Chamber also held that the evidence of Witness AOF alluding to events that took place outside the temporal jurisdiction of the Tribunal was admissible for the limited purpose of establishing conspiratorial conduct that inexorably continued into 1994. On 13 March 2006, the Chamber denied the Defence for Bizimungu’s request for certification to appeal the above decision.4054 56. On 6 December 2005, the Chamber granted in part the Prosecution’s motion requesting the Chamber to take judicial notice

of the existence of the legislative and executive documents during the temporal jurisdiction of the Tribunal.4055 The Chamber reasoned that since it had no knowledge of whether the provisions contained in the documents were applicable in Rwanda during the relevant period, it could not take judicial notice of the applicability of those provisions. The Chamber therefore denied the request to take into judicial notice that the legal provisions contained in the documents in question were applicable in Rwanda in 1994.

57. On 14 December 2005, Judge Asoka De Silva denied the Prosecution’s ex parte motion requesting the transfer of detained witnesses or witnesses placed under court supervision.4056 The Chamber denied the Prosecution’s request for the transfer of the detained witnesses on the basis that the mandatory provisions of Rule 90bis(B) had not been satisfied.

58. On 13 February 2006, the Chamber granted the Defence for Nzuwonemeye’s motion requesting the Chamber to issue an order for the cooperation and assistance of the Government of Ghana in order to facilitate an interview with prospective Defence witnesses.4057 On the same day, the Chamber granted the Defence for Nzuwonemeye’s motions requesting the cooperation of the Governments of The Netherlands and Togo.4058 59. On 27 February 2006, the Chamber denied the Defence for Bizimungu’s request for certification to appeal the Chamber’s oral decision of 2 February 2006 admitting into evidence part of Witness GFA’s confessional statement before Rwandan authorities.4059 4051 Ndindiliyimana Decision on Motion to Appeal 28 October Decisions. 4052 Ndindiliyimana Decision on Motion for Cooperation of Belgium. 4053 Ndindiliyimana Decision on Motion in Opposition to Witness AOF. 4054 Ndindiliyimana Decision on Motion to Appeal 2 December Decision. 4055 Ndindiliyimana Decision on Motion for Judicial Notice. 4056 Ndindiliyimana Decision on Motion for Rule 54 Transfer of Witnesses. 4057 Ndindiliyimana Decision on Motion for Cooperation of Ghana. 4058 Ndindiliyimana Decision on Motion for Cooperation of The Netherlands. 4059 Ndindiliyimana Decision on Motion to Appeal 2 February Decision. 17 May 2011 526/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 60. On 30 March 2006, the Chamber denied the Defence for Nzuwonemeye’s request for the Chamber to exclude parts of Witness AOG’s testimony on facts that are not pleaded in the Indictment.4060 The Chamber stated that despite the fact that the objectionable parts of Witness AOG’s testimony were not sufficiently pleaded in the Indictment against the Accused, the Defence for Nzuwonemeye was given adequate notice of these facts through subsequent disclosure.

61. On 13 April 2006, the Chamber ordered Witnesses DO, ANF, XXQ and GFQ to be transferred temporarily to the UNDF in Arusha for a period not exceeding three months, with effect from 20 April 2006.4061 62. On 7 June 2006, the Chamber granted the request by the Defence for Nzuwonemeye for the Chamber to issue an order for the cooperation and assistance of the Kingdom of Belgium in order to facilitate an interview with prospective Defence witnesses in Belgium.4062 63. On 15 June 2006, the Chamber dismissed the Defence for Ndindiliyimana’s urgent motion to prohibit the Prosecution from leading evidence through Witness ANF on facts that are not in the Indictment against the Accused.4063 The Chamber stated that despite the fact that the allegations described in the statement of Witness ANF were not pleaded in the Indictment against Ndindiliyimana with the requisite specificity, the defect in the indictment with respect to those allegations had been cured through subsequent disclosure. On 14 July 2006, the Chamber denied the Defence for Ndindiliyimana’s request for certification to appeal the above decision.4064 64. On 14 July 2006, the Chamber denied the Defence for Nzuwonemeye’s request for disclosure of all the documents mentioned in the footnotes of the expert report authored by Alison Des Forges.4065 The Chamber reasoned that Rule 94bis is addressed to the parties and that witnesses, be they factual or expert, are not party to the proceedings and are therefore under no disclosure obligations. The Chamber also held that the disclosure of the expert report more than three months prior to the expected date of the expert’s testimony was sufficient for the Defence to prepare for cross-examination and to guarantee the rights of the Accused under Article 20(4)(e).

65. On 23 August 2006, the Chamber granted the Prosecution’s extremely urgent ex parte motion for the transfer of detained Witness ANF pursuant to Rule 90bis of the Rules.4066 66. On 15 September 2006, the Chamber denied the Prosecution’s request for Witness Dallaire to give testimony via video-link because no good reason had been adduced in support of the inability of the witness to testify in person.4067 On 20 October 2006, on account of information about the ill health of Witness Dallaire, the Chamber reconsidered the above 4060 Ndindiliyimana Decision on Motion to Exclude Witness AOG. 4061 Ndindiliyimana 13 April Decision on Motion for Transfer of Witnesses. 4062 Ndindiliyimana Decision on Nzuwonemeye’s Motion under Article 28 for Cooperation of Belgium. 4063 Ndindiliyimana Decision on Urgent Motion to Prohibit Evidence of Witness ANF. 4064 Ndindiliyimana Decision on Motion for Appeal of 15 June Decision. 4065 Ndindiliyimana Decision on Request for Disclosure of Des Forges Sources. 4066 Ndindiliyimana Decision on Urgent Motion for Transfer of Witness ANF. 4067 Ndindiliyimana Decision on Dallaire. 17 May 2011 527/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Decision and allowed Witness Dallaire to give testimony via video-link.4068 On 3 November 2006, the Chamber granted the Prosecution’s request to vary the dates on which the testimony of Witness Dallaire was expected to be heard as indicated in the Scheduling Order specified in its Decision of 20 October 2006.4069 On 7 November 2006, the Chamber denied the requests by the Defence for Ndindiliyimana and Bizimungu for certification to appeal the Chamber’s Decision of 20 October 2006 on the grounds that the Defence had not satisfied the criteria for certification to appeal delineated in Rule 73(B).4070 On 17 November 2006, the Chamber denied the requests by the Defence for Ndindiliyimana, Bizimungu and Sagahutu for certification to appeal the Chamber’s variation of the Scheduling Order indicated in its Decision of 3 November 2006.4071 67. On 6 October 2006, the Chamber denied the Defence for Sagahutu’s request for a site visit to Rwanda on the ground that such a visit was not appropriate at that stage of the proceedings.4072 On the same day, the Chamber granted the Prosecution’s request for a subpoena to be issued to Annonciata Kavaruganda. The Chamber was satisfied that the Prosecution had made reasonable attempts to obtain the voluntary cooperation of the witness but had been unsuccessful, and that given

her unique and special knowledge of the events that led to the abduction and the eventual murder of her husband, her testimony would materially assist the Prosecution case and would also be necessary and appropriate for the conduct and the fairness of the trial.4073 68. On 20 October 2006, the Chamber denied the Defence for Nzuwonemeye’s motion to reconsider its oral decision of 21 September 2006 in which it admitted into evidence two documents tendered by the Prosecution in the course of its examination-in-chief of Witness Alison Des Forges. The Defence submitted that the provenance and authenticity of the documents were questionable, and requested the exclusion of the documents on the ground that they were not authentic. However, the Chamber noted that the authenticity of evidence, while important in the Chamber’s assessment of weight at the end of the trial, is not a criterion for admissibility. The Chamber further recalled that the provisions of Rule 89(C) impart the Chamber with wide discretion to admit any relevant evidence it deems to have probative value.4074 69. On 26 January 2007, the Registrar withdrew the assignment of Hamuly Rety as Co- Counsel for Francois Xavier Nzuwonemeye pursuant to Article 19(A)(ii) of the Directive.4075 70. On 31 January 2007, the Chamber granted in part the Defence for Nzuwonemeye’s ex parte motion for restitution and other appropriate

relief due to the adverse effect that the disclosure to all the parties in the trial by the Registry of documents relating to the interviews of two Defence witnesses conducted by the Defence for Nzuwonemeye has had on its ability to conduct its defence, the integrity of the proceedings and the rights of the Accused to a fair trial.4076 The Chamber accepted the Registry’s explanation that the disclosure was 4068 Ndindiliyimana Decision on Reconsideration of Dallaire Decision. 4069 Ndindiliyimana Decision on Urgent Motion for Rescheduling Order. 4070 Ndindiliyimana Decision on Request to Appeal 20 October Decision. 4071 Ndindiliyimana Decision on Request for Reconsideration of Rescheduling Order. 4072 Ndindiliyimana Decision on Motion for Site Visit. 4073 Ndindiliyimana Decision on Motion for Subpoena. 4074 Ndindiliyimana Decision on Motion to Exclude Des Forges Testimony. 4075 Ndindiliyimana Decision on Withdrawal of Rety. 4076 Ndindiliyimana Decision on Motion for Restitution. 17 May 2011 528/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T inadvertent. The Chamber ordered the parties to whom the confidential documents had been inadvertently disclosed to return the documents to the Registry and to desist from making electronic or hard copies of the documents and using them for any purpose in the proceedings before the Chamber without its prior approval. The Chamber denied the Defence for Nzuwonemeye’s request to terminate the proceedings and to order the immediate release of Nzuwonemeye on the basis that the remedies were inappropriate and disproportionate since the Defence had not demonstrated that Nzuwonemeye had suffered material prejudice such that he could not conduct a proper defence.

71. On 5 February 2007, the Chamber granted the Defence for Bizimungu’s motion for additional time to file a reply to the Prosecution’s response to its motion for judgement of acquittal under Rule 98bis.4077 72. On 16 February 2007, the Chamber issued a Scheduling Order following the pre- defence conference held on 15 February 2007.4078 On 13 March 2007, the Chamber granted in part the Defence for Bizimungu’s motion to reconsider the Chamber’s Scheduling Order dated 16 February 2007 and allowed the Defence for Bizimungu to file the list of its first 15 witnesses by 15 March 2007 and to file the remainder of its prospective witnesses by 16 April 2007.4079 73. On 20 March 2007, the Chamber issued a Decision on Defence Motions for Judgement of Acquittal pursuant to Rule 98bis. In its Decision, the Chamber entered a judgement of acquittal for Ndindiliyimana for complicity in genocide (Count 3) and murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute (Count 7). The Chamber also entered a judgement of acquittal for Bizimungu for extermination as crime against humanity under 6(1) of the Statute (Count 5) and murder as a violation of Article 3 common to the Geneva Conventions and of Additional Protocol II under Article 6(1) of the Statute (Count 7). It denied the Defence motions in all other respects.4080 On

18 June 2007, the Chamber issued a corrigendum to the above decision in which it corrected typographical errors but did not alter the substance of its decision.4081 74. On 23 March 2007, the Chamber granted the Prosecution’s motion to unseal and disclose to the Canadian authorities the closed session transcripts of Witness ANA.4082 75. On 3 April 2007, the Chamber denied the Defence for Bizimungu’s request to recall Prosecution Witness AOE in order to cross-examine him further on the basis of a document annexed to his guilty plea before the Rwandan authorities on July 2003, which the witness mentioned during his testimony before the Chamber.4083 The Chamber reasoned that the Defence had not satisfied the criteria governing the recall of witnesses as articulated in the Tribunal’s jurisprudence. 4077 Ndindiliyimana Decision on Extremely Urgent Motion for Additional Time. 4078 Ndindiliyimana 15 February Scheduling Order. 4079 Ndindiliyimana Decision on Motion Reconsideration of Scheduling Order. 4080 Ndindiliyimana Decision on Defence Rule 98 Motions. 4081 Ndindiliyimana Corrigendum on Decision on Defence Rule 98 Motions. 4082 Ndindiliyimana Decision on Motion Witness ANA. 4083 Ndindiliyimana Decision on Motion Recall Witness AOE. 17 May 2011 529/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 76. On 17 April 2007, the Chamber granted the Prosecution’s urgent motion for the disclosure of additional identifying information relating to Defence witnesses.4084 The Defence for Bizimungu was ordered to disclose the following information about each witness it intended to call no later than 21 days before the date the witness is scheduled to testify: their full names and those of their parents; assigned pseudonym; date and place of birth; current residence; religion; and occupation today as well as in 1994.

77. On 24 April 2007, the Chamber denied the Defence for Nzuwonemeye’s request for certification to appeal the Chamber’s Rule 98bis Decision.4085 The Chamber found that the Defence for Nzuwonemeye had not satisfied the criteria for certification to appeal the impugned decision.

78. On 7 May 2007, the Chamber granted the Defence for Nzuwonemeye’s request to allow it to examine-in-chief Bizimungu Witnesses DE4-16 and DE8-10 who were also listed as Nzuwonemeye’s Witnesses B5 and F9.4086 79. On 10 May 2007, the Chamber dismissed the Defence for Bizimungu’s request for certification to appeal the Chamber’s decision denying the Defence request to recall Prosecution Witness AOE for further cross-examination.4087 80. On 11 May 2007, the Chamber issued a proprio motu order and took note of the Registrar’s submissions that the time stipulated in the Chamber’s Scheduling Order of 16 February 2007 was inadequate to allow the Defence for Bizimungu and the Registry to organise and facilitate the timely appearance of witnesses.4088 The Chamber also denied the Defence for Bizimungu’s submissions on the prejudicial effect devolving from the time frame stipulated in the above Scheduling Order and the request to hold a status conference to discuss the commencement of the next trial session. The Chamber also issued a warning to Counsel for Bizimungu, Gilles St. Laurent, for addressing the Chamber in improper language and directed the Registry to deny him fees for his submissions regarding the Chamber’s Scheduling Order of 16 February 2007.

81. On 16 May 2007, the Chamber denied the Prosecution motion challenging the expected testimony of Witness DE4-30 on the basis that, despite being a factual witness, his prospective testimony was expected to advert to issues that required specialised expertise and skill. 4089 The Chamber ruled that as a factual witness, the testimony of Witness DE4-30 would be limited in scope and he would be prohibited from offering opinions or referring to matters that required specialised expertise or skill.

82. On 17 May 2007, the Registrar withdrew the assignment of Patrick De Wolf as Co- Counsel for Ndindiliyimana pursuant to Article 19(A)(i) of the Directive.4090 4084 Ndindiliyimana Decision on Urgent Motion for Disclosure of Defence Witnesses. 4085 Ndindiliyimana Decision on Request to Appeal Rule 98 Decision. 4086 Ndindiliyimana Decision on Urgent Motion to Examine Bizimungu Witnesses. 4087 Ndindiliyimana Decision on Motion to Appeal Witness AOE Decision. 4088 Ndindiliyimana Proprio Motu Order. 4089 Ndindiliyimana Decision on Motion Opposing Witness DE4-30. 4090 Ndindiliyimana Decision on Withdrawal of De Wolf. 17 May 2011 530/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T 83. On 19 June 2007, the Chamber issued a Scheduling Order following a status conference held on 18 June 2007, at which the completion of the Bizimungu Defence case and other trial-related matters pertaining to the Defence cases were considered.4091 84. On 25 July 2007, the Chamber granted a motion by the Defence for Nzuwonemeye requesting the Chamber to reconsider its oral decision of 11 May 2007 in which it admitted into evidence Prosecution Exhibits 132 (the plea agreement between the office of the Prosecution and Georges Ruggiu) and 135 (the investigation report of the Belgian police dated 1 December 1997). The Chamber was satisfied that the Defence for Nzuwonemeye had demonstrated sufficient grounds to warrant the reconsideration of its oral ruling of 11 July 2007 and therefore ordered the Registry to expunge the exhibits from the record.4092 85. On 11 September 2007, the Chamber granted in part Nzuwonemeye’s motion requesting the clarification of any changes between the original decision pursuant to Rule 98bis and the corrigendum, the circumstances of the drafting of the memorandum attached to the corrigendum, the identity of its author and the reasons for submitting an unsigned copy. The Defence stated that the clarifications were necessary in order to determine whether the Accused had suffered any prejudice4093 The Chamber stated that the corrigendum did not alter the substance of its original decision on the Rule 98bis motions for acquittal filed by the Defence and that the memorandum was an administrative letter and had no bearing on the Chamber’s clarification of the content of the corrigendum.

86. On 23 October 2007, the Chamber granted in part the Defence for Bizimungu’s request to vary its witness list and authorised it to add Witnesses DE8-1, DB15-8, DB15-9, DB8-7, DB11-26, DA9-10, DB11-35, DB11-12, DB11-37, DE11-4, DB11-39 and DA5-5 to its witness list, and withdraw Witnesses DA7-2, DE8-12, DE4-5, DE4-11, DE4-15, DB11-18, DE14-1, DE4-9, DA10-1, DE4-40 and DC4-1 from the witness list.4094 87. On 26 October 2007, the Chamber granted Defence for Bizimungu’s extremely urgent motion to contact and meet with Prosecution Witness GAP.4095 88. On 31 October 2007, the Chamber issued a Scheduling Order in which it addressed a number of issues pertaining to the Defence case.4096 On the same day, the Chamber granted the Defence for Bizimungu’s request to have Witnesses DC2-2 and DE8-6 testify via video link from their respective locations.4097 On 2 November 2007, the Chamber denied the request by the Defence for Bizimungu for Witness DE4-12 to give testimony via video link.4098 On 9 November 2007, the Chamber denied the request by the Defence for Bizimungu for Witness DE11-4 to testify via video link.4099 89. On 30 November 2007, the Chamber issued a proprio motu Decision in which it clarified its oral ruling of 12 November 2007 regarding the contact of witnesses called by the 4091 Ndindiliyimana 18 June Scheduling Order. 4092 Ndindiliyimana Decision on Motion for

Reconsideration of 11 May Decision. 4093 Ndindiliyimana Decision on Motion for Clarificiation. 4094 Ndindiliyimana Decision on Bizimungu Witness Variance. 4095 Ndindiliyimana Decision on Extremely Urgent Motion to Meet Witness GAP. 4096 Ndindiliyimana 31 October Scheduling Order. 4097 Ndindiliyimana Decision on Witnesses DC2-2 and DE8-6. 4098 Ndindiliyimana Decision on Witness DE4-12. 4099 Ndindiliyimana Decision on Witness DE11-4. 17 May 2011 531/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Defence for Bizimungu by other Defence teams prior to their testimonies.4100 On 6 February 2008, the Chamber denied the Defence for Ndindiliyimana’s request for certification to appeal the Chamber’s proprio motu decision of 30 November 2007.4101 90. On 14 December 2007, the Chamber granted the Defence for Ndindiliyimana’s motion requesting the cooperation of the Kingdom of Belgium in order to facilitate the appearance of Witnesses CBP3 and CBP4 for testimony.4102 91. On 31 January 2008, the Chamber granted the Defence for Nzuwonemeye’s request to vary its witness list.4103 92. On 14 February 2008, the Chamber denied the Defence for Bizimungu’s motion seeking the admission into evidence 27 ID documents that were marked for identification during the testimony of Prosecution Witness Alison Des Forges.4104 The Chamber reasoned that the Defence had not established that the documents were sufficiently reliable and relevant to warrant their admission as exhibits.

93. On 29 February 2008, the Chamber dismissed the Defence for Nzuwonemeye’s motions requesting the Chamber to dismiss some of the allegations in the Indictment against Nzuwonemeye on the ground that they were defectively pleaded. The Chamber based its dismissal of the Defence motions on the ground that, in accordance with Rule 72(A)(ii), issues of defects in the Indictment must be raised in a preliminary motion filed within 30 days after the disclosure by the Prosecution of all the materials envisaged in Rule 66(A)(ii). The Chamber was not satisfied that the Defence for Nzuwonemeye had shown good cause for its non-compliance with the time limit and had therefore forfeited its right to raise a preliminary motion as stipulated in Rule 72(F). With respect to the Defence request for the Prosecution to disclose all exculpatory information at its disposal, the Chamber stated that such request was obviated by the fact that it had already ordered the Prosecution, on two occasions, to disclose to the Defence all exculpatory material in its custody or control by 29 February 2008.4105 94. On 7 March 2008, the Chamber issued a Scheduling Order following the status conference held on 5 and 6 March 2008, at which several matters pertaining to the progress of the trial were discussed.4106 95. On 16 May 2008, the Chamber ordered the Witnesses and Victims Support Section (WVSS) to clarify the whereabouts of Witness GFA and to inform the Chamber within seven days after the Interim Order was issued.4107 The Chamber’s Interim Order was issued in response to Bizimungu’s motion requesting the Chamber’s permission to meet with Prosecution Witness GFA and to ensure his continued presence in Arusha.

96. On 22 May 2008, the Chamber granted the Defence for Ndindiliyimana’s request for the temporary transfer of Witness CBP70 from Rwanda to the UNDF in Arusha.4108 On the 4100 Ndindiliyimana Proprio Motu Decision on 12 November Ruling. 4101 Ndindiliyimana Decision on 30 November Proprio Motu Decision. 4102 Ndindiliyimana Decision on Cooperation of Belgium and Witnesses CBP3 and CBP4. 4103 Ndindiliyimana Decision on Nzuwonemeye Witness Variance. 4104 Ndindiliyimana Decision on Motion to Admit Des Forges Documents. 4105 Ndindiliyimana Decision on Motion to Address in Form of Indictment. 4106 Ndindiliyimana 7 March Scheduling Order. 4107 Ndindiliyimana Interim Order Regarding Witness GFA. 4108 Ndindiliyimana Decision on Motion for Transfer of Witness CBP 70. 17 May 2011 532/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T same day, the Chamber denied the Defence for Nzuwonemeye’s request for certification to appeal the Chamber’s decision of 29 February 2008.4109 97. On 23 May 2008, the Chamber ordered the Defence teams for Bizimungu, Ndindiliyimana, and Nzuwonemeye to file the alleged exculpatory documents relevant to its case contained in the materials disclosed by the Prosecution on 29 February 2008.4110 The Chamber reasoned that it was necessary for it to review the alleged exculpatory materials in full in order to make an informed decision on the Defence motions about the Prosecution’s violation of its Rule 68 disclosure obligation. The Chamber further ordered the Prosecution to file confidentially for the exclusive review of the Chamber the unredacted versions of the alleged exculpatory documents referred to in the Defence Motions, including the 39 pages of RPF materials mentioned in Nzuwonemeye’s Motion and documents numbered R0000280- 283 and R0000299-302 referred to in Sagahutu’s Motion. The Chamber also warned the Prosecution and the Defence for Ndindiliyimana to ensure that they file their pleadings within the time frame stipulated by the Rules or by the Chamber4111 98. On 26 May 2008, the Chamber granted the Defence for Sagahutu’s request to vary its witness list.4112 On 11 July 2008, the Chamber partially

granted Sagahutu’s second request to vary his witness list and ordered the Defence for Sagahutu to reduce its witness list and to file its revised witness list by 1 August 2008.4113 99. On 27 May 2008, the Chamber denied the Defence for Nzuwonemeye’s request for a site visit to Rwanda on the basis that such a visit would be most appropriately conducted after the conclusion of the evidentiary phase of the trial.4114 100. On 9 June 2008, the Chamber granted in part the Defence for Nzuwonemeye’s extremely urgent and confidential motion for the Chamber’s authorisation for Witnesses Y2, S2, Y3, F10 and F11 to be heard via video-link.4115 The Chamber denied the Defence request for Witnesses Y3, F10 and F11 to be heard via video-link because the Defence had failed to support its submissions about the witnesses’ security concerns with adequate documentation. On 16 July 2008, the Chamber reconsidered the Decision and directed the Registry to make the necessary arrangements for Witnesses F10 and F11 to testify via video-link from a suitable location in Europe on or after 15 September 2008.4116 101. On 4 July 2008, the Chamber denied the Defence for Nzuwonemeye’s motion for the exclusion of evidence elicited from Prosecution witnesses because they referred to acts not pleaded in the Indictment against Nzuwonemeye.4117 102. On 10 July 2008, the Chamber instructed the Prosecution to file

written submissions on the identified unredacted witness statements it had disclosed to the Chamber on an ex parte and confidential basis by the close of business on 11 July 2008.4118 The Prosecution 4109 Ndindiliyimana Decision on Request to Appeal 29 February Decision. 4110 Ndindiliyimana Decision on Defence Disclosure Motions. 4111 Ndindiliyimana Decision on Defence Disclosure Motions. 4112 Ndindiliyimana Decision on Sagahutu Witness Variance. 4113 Ndindiliyimana Decision on Second Sagahutu Witness Variance. 4114 Ndindiliyimana Decision on Nzuwonemeye’s Motion for Site Visit. 4115 Ndindiliyimana Decision on Witnesses Y1, S2, Y3, F10 and F11. 4116 Ndindiliyimana Decision on Motion for Reconsideration of 9 June Decision. 4117 Ndindiliyimana Decision on Motion to Exclude Acts not Pleaded. 4118 Ndindiliyimana Confidential Order on RPF Materials. 17 May 2011 533/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T requested that if the Chamber intended to order the disclosure of those statements to the Defence, the Prosecution should be provided with an opportunity to be heard in camera prior to the issuance of such order. On 14 July 2008, the Chamber denied the Prosecution’s request for an additional 10 days to file its submissions on the witness statements and instructed the Prosecution to file its written submissions on an ex parte and confidential basis by the close of business on 15 July 2008.4119 103. On 15 July 2008, the Chamber denied the Defence for Nzuwonemeye’s supplemental motion alleging defects in the form of the indictment against the Accused.4120 The Chamber found the motion to be frivolous and instructed the Registry to withhold payment of fees and costs associated with this motion.

104. On 17 July 2008, the Chamber granted Ndindiliyimana’s request for a named witness to be heard via video link.4121 On 18 September 2008, the Chamber issued a corrigendum to this Decision and ordered the Registrar to reclassify the Decision as confidential to be kept under seal.4122 On 22 August 2008, the Chamber granted Sagahutu’s request for Expert Witness Helmut Strizek to be heard by the Chamber via video link.4123 105. On 12 August 2008, the Chamber ordered the Defence teams to file submissions within seven days on whether the Belgian files were disclosed to them by the Prosecution in redacted or unredacted format.4124 The Chamber reasoned that in order for it to properly consider the Defence motions claiming that the Prosecution had breached its Rule 68 disclosure obligation, it was necessary to ascertain whether the “Belgian files” were disclosed in redacted or unredacted format by the Prosecution in its pre-trial disclosure.

106. On 9 September 2008, the Chamber granted the Defence for Nzuwonemeye’s request to replace Witness STH with Witness TCB1 and to withdraw Witnesses NU6, EGN, S2, YKP, REO and F11 from its witness list.4125 107. On 16 September 2008, the Chamber issued a Scheduling Order requesting the Defence for Nzuwonemeye to complete its case by 10 October 2008; and the Defence for Sagahutu to present its entire case between 20 October 2008 and 5 December 2008 and to make disclosures to the parties and WVSS of all relevant information of the additional witnesses it intends to call.4126 108. On 22 September 2008, the Chamber partially granted Defence Motions alleging that the Prosecution had violated its disclosure obligations pursuant to Rule 68. Consequently, the Chamber ordered the Prosecution to disclose to the Defence a number of documents in unredacted format with immediate effect. The Chamber further ordered that any Defence team that so wished could file a motion requesting the recall of identified Prosecution witnesses or additional defence witnesses as a remedy for the prejudice caused to the Accused as a result of the Prosecution’s violation of its Rule 68 disclosure obligations. 4119 Ndindiliyimana Confidential Order on Additional Time. 4120 Ndindiliyimana Decision on Supplemental Motions on Defects. 4121 Ndindiliyimana Decision on Witness Michel Robardey. 4122 Ndindiliyimana Corrigendum on Witness Robardey Decision. 4123 Ndindiliyimana Decision on Witness Helmut Strizek. 4124 Ndindiliyimana Interim Order on Disclosure of Exculpatory Material. 4125 Ndindiliyimana Decision on Second Nzuwonemeye Witness Variance. 4126 Ndindiliyimana 16 September Scheduling Order. 17 May 2011 534/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Moreover, the Chamber reprimanded the Prosecution for lack of diligence for failing to disclose the exculpatory statements and directed the Registry to serve the Decision on the Prosecutor in person.4127 On 24 October 2008, the Chamber varied the Decision above and acknowledged that the Prosecution had disclosed earlier some of the statements contained in confidential Annex 3 appended to the Decision. The Chamber therefore deemed the Prosecution’s disclosure of 29 February 2008 to be in compliance with its Decision of 22 September 2008.4128 109. On 23 October 2008, the Chamber denied in part a Prosecution motion alleging lack of requisite expertise of Defence Witnesses Bernard Lugan and Helmut Strizek and the irrelevance of their prospective testimony. However, the Chamber granted the Prosecution request to cross-examine those witnesses on the contents of their expert reports.4129 110. On 4 November 2008 the Defence for Bizimungu filed a Motion requesting the Chamber to admit into evidence closed and open session trial transcripts and exhibits of Witness GFA/BTH’s testimony given in the Karemera et al. case between 10 and 17 April 2008.4130 On 13 November 2008, the Chamber noted that Annexes I to IV were not filed with the Defence Motion.4131 On 4 December 2008, the Chamber partially granted the Defence

for Bizimungu’s motion seeking the admission into evidence of transcripts, identification documents and exhibits of Witness BTH in the Karemera et al. case pursuant to Rule 92bis. The Chamber ordered, pursuant to Rules 89(C) and 92bis(D) of the Rules, that all transcripts of Witness GFA/BTH’s testimony in the Karemera et al. proceedings, which were listed in Confidential Annex 2 of the Decision dated 4 December 2008, should be admitted into evidence. The Chamber denied the Defence Motion seeking admission of the Identification Documents listed in Confidential Annex 1 to that Decision.4132 111. On 3 December 2008, the Chamber granted the Defence for Nzuwonemeye’s request to replace Witness B2 with Witness K3. The Chamber also issued a warning to the Lead Counsel for Nzuwonemeye pursuant to Rule 46(A) of the Rules for misleading the Chamber when he stated that Witness K3 had never been withdrawn from the witness list when in fact K3 had.4133 112. On 4 December 2008, the Chamber partially granted the Defence for Ndindiliyimana’s request to recall identified Prosecution witnesses and call additional witnesses as a remedy for the Prosecution’s breach of its Rule 68 obligation to disclose exculpatory material.4134 The Chamber allowed the Defence for Ndindiliyimana to recall Prosecution Witnesses FAV, GFS, GFR and KF for further cross-examination on the points delineated in its

Decision and ordered the Parties not to contact any of the recalled witnesses prior to their appearance before the court. The Chamber also allowed the Defence for Ndindiliyimana to call Witnesses JH, JVN, CR, FU and JDT as additional witnesses and ordered the Prosecution to provide the contact details of those witnesses as well as those identified for recall. On 12 April 2011, the Chamber admitted into evidence 12 of the 4127 Ndindiliyimana Decision on Prosecution Disclosure Obligations. 4128 Ndindiliyimana Decision on Motion to Vary Disclosure Obligations Decision. 4129 Ndindiliyimana Decision on Objections to Expert Witnesses Lugan and Strizek. 4130 Ndindiliyimana Decision on Witness GFA/BTH. 4131 Ndindiliyimana Interim Order on Witness BTH. 4132 Ndindiliyimana Decision on Motion to Admit Evidence of Witness BTH. 4133 Ndindiliyimana Decision on Third Nzuwonemeye Witness Variance. 4134 Ndindiliyimana Decision on Ndindiliyimana’s Motion to Recall Identified Witnesses. 17 May 2011 535/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T exculpatory statements that were disclosed by the Prosecution pursuant to Rule 68. The Chamber considered that Rules 89(C) and 92bis do not militate against the Chamber’s discretion to admit the exculpatory materials into evidence in order to ameliorate the prejudice suffered by Ndindiliyimana as a result of the Prosecution’s late disclosure.4135 113. On 4 December 2008, the Chamber partially granted the Defence for Bizimungu and Nzuwonemeye’s motions requesting the recall of Prosecution witnesses and to call additional witnesses as a remedy for the Prosecution’s violation of its disclosure obligation pursuant to Rule 68. With respect to Nzuwonemeye’s request, the Chamber allowed the recall of Prosecution Witness ALN and DCK for further cross-examination and to call Witnesses CN, JPF and JVN as additional witnesses. It denied the Defence for Bizimungu’s request to call DB11-30 and DE8-40 as additional witnesses.4136 114. On 4 December 2008, the Chamber also issued a Scheduling Order in which it ordered Prosecution and Defence teams to file their Closing Briefs simultaneously by 31 March 2009; that the Prosecution Closing Brief shall not exceed 400 pages (including annexes); that the Defence Closing Briefs for Bizimungu and Ndindiliyimana shall not exceed 250 pages (including annexes); and that Defence

Closing Briefs for Nzuwonemeye and Sagahutu shall not exceed 200 pages (including annexes). The Chamber also ordered that the site visit to Rwanda would take place from 6 to 9 April 2009 and that the final oral arguments would be made on 24, 25 and 26 of June 2009.4137 115. On 9 February 2009, the Chamber issued a proprio motu Order authorising the temporary transfer of Witness JH from Rwanda to the UNDF in Arusha, Tanzania and requested the cooperation of the Governments of Tanzania and Rwanda in implementing its Order. In addition, the Chamber ordered Witnesses FU and KF to testify via video-link from a secure location in Rwanda.4138 116. On 16 February 2009, the Chamber denied the Defence for Nzuwonemeye’s motion requesting the Chamber to reconsider its Decision of 4 December 2008 in which it denied the Defence request to recall Prosecution witnesses and to call additional witnesses as a remedy for the Prosecution’s breach of its Rule 68 disclosure obligation.4139 The Chamber based its denial on the fact that the Defence had failed to show good cause to warrant reconsideration of the Decision of 4 December 2008. The Chamber granted the Defence request to correct an erroneously translated portion of Witness CN’s statement in that Decision.

117. On 18 February 2009, the Chamber denied the Defence for Bizimungu’s motion requesting the Chamber to order the Prosecution to disclose a Gacaca judgement relating to Witness AOE/SDA that was admitted as a sealed exhibit in Prosecutor v. Ephrem Setako.4140 The Chamber directed the Defence to make an application to the Trial Chamber trying the matter of the Prosecutor v. Setako for authorisation to access the Gacaca judgement in 4135 Ndindiliyimana Decision on Admission of Written Statements. 4136 Ndindiliyimana Decision on Nzuwonemeye and Bizimungu’s Motions to Recall Identified Witnesses. 4137 The dates of the site visit were later changed to 13-18 April 2009.The parties filed submissions requesting the Chamber to re-schedule the date of the site visit in light of the difficulties of conducting a site visit in Rwanda during the week starting from 6 April. See the letter from the Court Management section addressed to the parties titled “ Site Visit-New Dates”, dated 26 February 2009. 4138 Ndindiliyimana Proprio Motu Order for Transfer of Detained Witness. 4139 Ndindiliyimana Decision on Nzuwonemeye’s Motion for Reconsideration. 4140 Ndindiliyimana Decision on Motion for Reparation. 17 May 2011 536/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T question pursuant to Rule 75(G) of the Rules. The Chamber also directed the Prosecution to review whether the Gacaca judgement is at its disposal and, if necessary, to disclose the document to the Defence pursuant to Rule 68 of the Rules. The Chamber rejected the Prosecution’s submission that since the Gacaca judgement was under seal, its exact contents were unknown to it. The Chamber reasoned that since the judgement was tendered into evidence as a sealed exhibit in a proceeding before a Trial Chamber by the Prosecution, the Prosecution could not therefore claim that it was unaware of the existence of the judgement. The Chamber further stated that the Prosecution’s failure to acknowledge possession of the Gacaca judgement defeats the purpose of its Rule 68 disclosure obligation and amounted to an obstruction of the proceedings. The Chamber therefore issued a warning to the Prosecution pursuant to Rule 46(A) of the Rules for the obstruction of the proceedings.4141 On 18 March 2009, the Chamber denied a Prosecution motion requesting the reconsideration of the above Decision with respect to the warning.4142 118. On 20 February 2009, the Chamber denied the Prosecution request to call as a witness a former Colonel of the Rwanda Armed Forces in order to rebut the testimony of Nzuwonemeye that the Colonel

telephoned him on the night of 6 April 1994 and instructed him to deploy soldiers under his command in order to defend strategic sites in Kigali.4143 The Chamber denied the request on the ground that the Prosecution intended to use the prospective evidence of the Colonel for the purpose of impeaching the credibility of Nzuwonemeye rather than addressing the allegations in paragraph 34 of the Indictment.

119. On 25 February 2009, the Chamber denied Ndindiliyimana’s second motion alleging violations by the Prosecution of its disclosure obligations pursuant to Rule 68.4144 The Chamber reasoned that the statements referred to in the Defence motion were not exculpatory within Rule 68 of the Rules and therefore the Prosecution could not be held to have breached its Rule 68 Disclosure obligation with respect to those statements. Consequently, the Chamber dismissed the Defence requests to stay all the charges against Ndindiliyimana and order his immediate release.

120. On 9 March 2009, the Chamber partially granted the motions filed by the Prosecution and the Defence teams for Ndindiliyimana, Nzuwonemeye and Sagahutu relating to the locations of the site visit in Rwanda. The Chamber requested the President of the Tribunal to authorise it to exercise its function away from the Seat of the Tribunal pursuant to Rule 4 of the Rules.4145 On the same day, the Chamber granted the Defence for Nzuwonemeye’s request to lift the seal that had been placed on the transcript of Prosecution Witness AP’s testimony of 8 September 2005 and to distribute the transcripts exclusively to the Parties and the Chamber in this case.4146 121. On 18 March 2009, the Chamber partially granted Bizimungu’s request to extend the page limits for its Closing Brief from 250 pages to 300 pages. The Chamber reasoned that the 4141 Ndindiliyimana Decision on Motion for Reparation. 4142 Ndindiliyimana Decision on Motion for Reconsideration of 18 February Decision. 4143 Ndindiliyimana Decision on Motion to Call Rebuttal Evidence. 4144 Ndindiliyimana Decision on Second Motion for Disclosure Violations. 4145 Ndindiliyimana Decision on Locations for the Site Visit to Rwanda. 4146 Ndindiliyimana Decision on Locations for Site Visit. 17 May 2011 537/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T extension was warranted since Bizimungu faced the highest number of allegations and had called the highest number of witnesses among the Defence teams.4147 122. On 20 March 2009, the Chamber granted the Defence for Nzuwonemeye’s request seeking the admission into evidence of the exculpatory portions of the statement of CN.4148 The Chamber reasoned that in light of the unknown whereabouts of CN and the unavailability for testifying of Prosecution Witness ALN, who was to be recalled as a remedy of the Prosecution’s violation of its Rule 68 disclosure obligation, it was necessary to admit the entirety of CN’s statement for the limited purpose of assessing the credibility of Prosecution Witness ALN’s testimony.4149 123. On 31 March 2009, the Prosecution and the Defence teams filed their Closing Briefs. On 7 May 2009, the Chamber granted the Defence for Nzuwonemeye’s request to file a corrigendum to its Closing Brief.4150 On 28 May 2009, the Chamber partially granted the Defence for Bizimungu’s request to file a corrigendum to his Closing Brief.4151 On 19 June 2009, the Chamber denied the Defence for Nzuwonemeye’s motion opposing the Prosecution’s request to file a corrigendum to its Closing Brief.4152 124. On 6 April 2009, the Chamber granted leave to the Prosecution to file four additional pages to its

Closing Brief, and accepted the Brief filed on 31 March 2009 as properly filed pursuant to the Chamber’s Scheduling Order dated 4 December 2008.4153 125. On 14 May 2009, the Chamber rendered a Decision in which it explained the reasons underlying its oral ruling of 14 April 2009 denying Bizimungu’s Motion for the exclusion of the Prosecution’s submissions regarding the site visit to Rwanda. In its Decision, the Chamber expressed its disapproval of the Prosecution’s persistent failure to comply with its instructions.4154 126. On 9 June 2009, the Chamber granted Nzirorera’s Defence Motion and ordered that the protective measures granted to Witness DB15-11 in this case do not apply to her testimony in the Prosecutor v. Karemera et al. case.4155 127. On 6 July 2009, the Chamber issued an interim order in response to the Defence for Bizimungu’s motion for ex parte disclosure of a contested document under Rule 68. The Chamber directed the Prosecution to file the contested document, numbered K0459316- K0459324, ex parte with an official English translation by 13 June 2009.4156 128. On 16 July 2009, the Chamber denied Joseph Nzirorera’s motions to vary protective measures for Witnesses DB11-11 and CBP99. The Chamber also decided proprio motu to 4147 Ndindiliyimana Decision on Request for Additional Pages. 4148 Ndindiliyimana Decision on Admission of CN’s Statement. 4149 Ndindiliyimana

Decision on Admission of CN’s Statement. 4150 Ndindiliyimana Decision on Nzuwonemeye’s Request to File Corrigendum. 4151 Ndindiliyimana Decision on Bizimungu’s Request to File Corrigendum. 4152 Ndindiliyimana Decision on Motion Opposing Prosecution Corrigendum. 4153 Ndindiliyimana Decision on Prosecution Motion for Additional Pages. 4154 Ndindiliyimana Reasons for Denying Site Visit Motion. 4155 Ndindiliyimana Decision on Witness DB15-11 Protective Measures. 4156 Ndindiliyimana Interim Order for Disclosure of Contested Document. 17 May 2011 538/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T reconsider its Decision of 9 June 2009 granting the variation of the protective measures for Witness DB15-11 pursuant to Rule 75 of the Rules.4157 129. On 4 August 2009, the Chamber rendered a Decision on the Defence for Ndindiliyimana’s motion requesting to admit a letter as an exhibit pursuant to Rule 92bis for the purpose of evaluating Witness GFR’s credibility, or alternatively to allow the parties to take a deposition from Witness GFR in order to establish the veracity of the letter. The Chamber held that the existence of Witness GFR’s alleged letter, containing an admission that he gave false testimony against Ndindiliyimana, constitutes a strong ground for ordering an investigation under Rule 91(B). The Chamber directed the Registrar to appoint an amicus curiae to investigate Witness GFR’s current whereabouts, whether Witness GFR wrote the letter and if so, to assess Witness GFR’s willingness to return to the Tribunal to testify under oath. Additionally, the Chamber directed the amicus curiae to report findings to the Chamber within 60 days of the issuance of the Decision. Finally, the Chamber ordered all parties to provide any and all assistance to the amicus curiae to ensure a full and proper investigative report.4158 130. On 31 August 2009, the Chamber partially granted the Defence for

Bizimungu’s Motion for Disclosure of a contested document. The Chamber found that the Prosecution had violated its Rule 68 obligation and it therefore directed the Registry to disclose the document and its English and French translations to all parties and to assign it a number as a Chambers Exhibit. The Chamber denied the motion in all other respects.4159 131. On 9 September 2009, the Chamber granted the Nzirorera Defence’s Renewed Motion for Variation of Protective Measures for Witnesses DB15-11, DC2-5 and CBP99 pursuant to Rule 75 of the Rules. The Chamber ordered that the protective measures granted to Witnesses DB15-11, DC2-5, and CBP99 in this case did not apply to their testimony in the Prosecutor v. Karemera et al. case.4160 132. On 19 October 2009, the Chamber issued an Interim Order on the report of the Amicus Curiae regarding the alleged recantation of the Prosecution’s Witness GFR. The Chamber directed the Registrar to disclose the report to the parties on a confidential basis. The Chamber also ordered the parties to file any submissions regarding the report no later than seven days from the date of the Order. The Chamber noted that it would issue further orders as it deemed necessary after receiving the parties’ submissions.4161 133. On 19 November 2009, the Chamber issued an Interim Order to ascertain the identity of Witness GFR pursuant to Rule 54 of the Rules.

The Chamber directed the Registrar to ascertain whether the person whom the Amicus Curiae met was in fact Witness GFR and, if positively identified, to determine the circumstances under which the Defence Counsel came into contact with Witness GFR and how the Lead Counsel came into possession of the alleged letter in question. The Chamber also ordered all parties to fully cooperate with the Registrar and the Witnesses and Victims Support Section in carrying out this Order. The Chamber further directed the Registrar to report findings to the Chamber within 30 days of 4157 Ndindiliyimana Decision on Witness DC2-5 and CBP99 Protective Measures. 4158 Ndindiliyimana Decision on Witness Recantation. 4159 Ndindiliyimana Decision on Bizimungu’s Motion for Disclosure of Contested Document. 4160 Ndindiliyimana Decision on Variation of Protective Measures. 4161 Ndindiliyimana Interim Order on Recantation of Witness GFR. 17 May 2011 539/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T the date of the order and noted that the Chamber would issue subsequent orders as it deemed necessary upon reviewing the report.4162 7) Further Proceedings 134. The parties presented their final oral arguments before the Chamber from 24 to 26 June 2009.

135. On 10 February 2010, the Chamber granted a Defence motion requesting the admission of three documents related to Prosecution Witness GFR’s recantation of the evidence he gave at trial, which had been subject to a number of interim orders identified above. The documents admitted by the Chamber included the letter authored by Witness GFR recanting his testimony, a report by an amicus curiae ordered by the Chamber and the submissions of the Registrar.4163 136. On 13 October 2010, the Chamber issued a Decision granting a motion by the Defence for Bizimungu requesting the admission into evidence of the transcripts from the Karemera et al. trial featuring the testimony of Witness GAP, the evidence admitted during that testimony as well as a transcript of an audio recording between Witness GAP and Counsel Peter Robinson from 18 November 2009.4164 137. On 8 March 2011, the Chamber issued a Scheduling Order for the delivery of the Judgement and Sentence on 17 May 2011.4165 138. On 24 May 2011 the Chamber issued an Order pursuant to Rule 91(C)(ii) of the Rules requesting the Registrar to appoint an amicus curiae to prosecute Prosecution Witness GFR for false testimony.4166 4162 Ndindiliyimana Interim Order on Identity of Witness GFR. 4163 Ndindiliyimana Decision on Witness GFR’s Recantation. 4164 Ndindiliyimana Decision on Motion for Admission of Witness GAP’s Evidence. 4165 Ndindiliyimana Scheduling Order for Delivery of Judgement. 4166 Ndindiliyimana Order to Prosecute Witness GFR. 17 May 2011 540/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T ANNEX B: CITED MATERIALS AND DEFINED TERMS a) Jurisprudence i) ICTR Akayesu Prosecutor v. Akayesu, Case No. ICTR-96-4-A, Judgement (AC), 1 June 2001 (“Akayesu Appeal Judgement”). Bagilishema Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgement (TC), 7 June 2001 (“Bagilishema Trial Judgement”). Prosecutor v. Bagilishema, Case No. ICTR-95-1A-A, Judgement (Reasons) (AC), 3 July 2002 (“Bagilishema Appeal Judgement”). Bagosora et al. Prosecutor v. Bagosora et al., Case No. ICTR 98-41-AR73, Judgement and Sentence (TC), 18 December 2008 (“Bagosora Trial Judgement”). Prosecutor v. Bagosora et al., Case No. ICTR 98-41-T, Decision on Defence Request for an Investigation Into Alleged False Testimony of Witness DO, 3 October 2003 (“Bagosora Decision on Alleged False Testimony”). Bikindi Prosecutor v. Bikindi, Case No. ICTR-01-72-T, Judgement (TC), 2 December 2008 (“Bikindi Trial Judgement”). Bisengimana Prosecutor v. Bisengimana, Case No. ICTR-00-60, Judgement (TC), 13 April 2006 (“Bisengimana Trial Judgement”). Bizimungu et al. Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Decision on Jérôme-Clément Bicamumpaka’s Motions to Meet with Prosecution Witnesses GFA and GKB, 5 December 2007 (“Bizimungu Motion to Meet Prosecution Witnesses”). Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Decision on Jérôme-Clément Bicamumpaka’s Motion Requesting Recall of Prosecution Witness GFA; Disclosure of Exculpatory Material; and to Meet with Witness GFA, 21 April 2008 (“Bizimungu Motion to Recall Prosecution Witness GFA”). 17 May 2011 541/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Bizimungu et al., Case No. ICTR-99-50-T, Decision on Jérôme-Clément Bicamumpaka’s Motion Requesting Recall of Prosecution Witness GAP, 5 March 2009 (“Bizimungu Motion to Recall Prosecution Witness GAP”). Gacumbitsi Gacumbitsi v. Prosecutor, Case No. ICTR-2001-64-A, Judgement (AC), 7 July 2006 (“Gacumbitsi Appeal Judgement”). Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC), 17 June 2004 (“Gacumbitsi Trial Judgement”). Kajelijeli Kajelijeli v. Prosecutor, Case No. ICTR-98-44A-A, Judgement (AC), 23 May 2005 (“Kajelijeli Appeal Judgement”). Prosecutor v. Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence (TC), 1 December 2003 (“Kajelijeli Trial Judgement”). Kalimanzira Prosecutor v. Kalimanzira, Case No. ICTR-05-88-T, Judgement (TC), 22 June 2009 (“Kalimanzira Trial Judgement”). Kamuhanda Prosecutor v. Kamuhanda, Case No. ICTR-99-54-A, Judgement (AC), 19 September 2005 (“Kamuhanda Appeal Judgement”). Prosecutor v. Kamuhanda, Case No. ICTR-99-54-T, Judgement (TC), 22 January 2004 (“Kamuhanda Trial Judgement”). Kayishema and Ruzindana Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-I-A, Judgement (AC), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”). Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-I-T, Judgement (TC), 21 May 1999 (“Kayishema and

Ruzindana Trial Judgement”). Karemera Prosecutor v. Karemera et al, Case No. ICTR-98-44-AR73(C), Decision on Prosecutor’s Interlocutory Appeal on Judicial Notice (AC), 16 June 2006 (“Karemera Interlocutory Appeal on Judicial Notice”). Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on Prosecutor’s Confidential Motion to Investigate BTH for False Testimony (Rules 54 and 91(B) of the Rules of Procedure and Evidence), 14 May 2008 (“Karemera Decision on Prosecutor’s Confidential Motion”). 17 May 2011 542/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Final Report of Amicus Curiae of the Investigations into the False Testimony of Prosecution Witness BTH/GFA in The Prosecutor v. Édouard Karemera et al. and Prosecutor v. Casimir Bizimungu et al., 17 April 2009 (“Karemera Amicus Report”). Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on Joseph Nzirorera’s and the Prosecutor’s Appeals of Decision not to Prosecute Witness BTH for False Testimony (AC), 16 February 2010 (“Karemera Decision not to Prosecute”). Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on Remand Following Appeal Chamber’s Decision of 16 February 2010, 18 May 2010 (“Karemera Decision on Remand”). Prosecutor v. Karemera et al., Case No. ICTR-98-44-T, Decision on the Preliminary Motions by the Defence of Joseph Nzirorera, Édouard Karemera, André Rwamakuba and Mathieu Ngirumpatse Challenging Jurisdiction in Relation to Joint Criminal Enterprise, 11 May 2004 (“Karemera Decision on Defence Preliminary Motions”). Karera Prosecutor v. Karera, Case No. ICTR-01-74-T, Judgement (TC), 7 December 2007 (“Karera Trial Judgement”). Mpambara Prosecutor v. Mpambara, Case No. ICTR-01-65-T, Judgement (TC), 11 September 2006 (“Mpambara Trial Judgement”). Muhimana Muhimana v. Prosecutor, Case No. ICTR-95-1B-A, Judgement

(AC), 21 May 2007 (“Muhimana Appeal Judgement”). Musema Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement and Sentence (TC), 27 January 2000 (“Musema Trial Judgement”). The Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgement (AC), 16 November 2001 (“Musema Appeal Judgement”). Muvunyi Muvunyi v. Prosecutor, Case No. ICTR-2000-55A-A, Judgement (AC), 29 August 2008 (“Muvunyi Appeal Judgement”). Prosecutor v. Muvunyi, Case No. ICTR-00-55A-T, Judgement (TC), 11 February 2010 (“Muvunyi Trial Judgement”). Prosecutor v. Muvunyi, Case No. ICTR-00-55A-T, Judgement (TC), 12 September 2006 (“Muvunyi First Trial Judgement”). 17 May 2011 543/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nahimana et al. Nahimana et al. v. Prosecutor, Case No. ICTR-99-52-A, Judgement (AC), 28 November 2007 (“Media Appeal Judgement”). Prosecutor v. Nahimana et al., Case No. ICTR-99-52-T, Judgement (TC), 3 December 2003 (“Media Trial Judgement”). Nchamihigo Nchamihigo v. Prosecutor, Case No. ICTR-2001-63-A, Judgement (AC), 18 March 2010 (“Nchamihigo Appeal Judgement”). Prosecutor v. Nchamihigo, Case No. ICTR-01-63-T, Judgement (TC), 12 November 2008 (“Nchamihigo Trial Judgement”). Ndindabahizi Ndindabahizi v. Prosecutor, Case No. ICTR-01-71-A, Judgement (AC), 16 January 2007 (“Ndindabahizi Appeal Judgement”). Ndindiliyimana et al. Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Motions Pursuant to Rule 98bis (“Ndindiliyimana Defence Motions Decision”), 20 March 2007. Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Decision on Ndindiliyimana’s Motion Requesting a Remedy for Possible Witness Recantation, 4 August 2009 (“Ndindiliyimana Decision on Witness Recantation”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order to Ascertain the Identity of Witness GFR and Other Matters, 19 November 2009 (“Ndindiliyimana Interim Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Witness GFR’s Recantation of his Evidence,

10 February 2010 (“Ndindiliyimana Decision on GFR’s Recantation”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Order to Prosecute Witness GFR for False Testimony, 24 May 2011 (“Ndindiliyimana Order to Prosecute”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence for Bizimungu’s Motion for the Admission into Evidence of Prosecution Witness GAP’s Transcripts and Exhibits in the Karemera et al. Case, 13 October 2010 (“Ndindiliyimana Decision on Admission of Karemera Transcripts”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order Concerning Bizimungu’s Urgent Motion to Meet with Prosecution Witness GFA and to Ensure his Continued Presence in Arusha, 16 May 2008 (“Ndindiliyimana Motion to Meet Prosecution Witness GFA”). 17 May 2011 544/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Motions Alleging Violation of the Prosecutor’s Disclosure Obligations Pursuant to Rule 68, 22 September 2008 (“Ndindiliyimana Decision on Prosecutor’s Disclosure Obligations”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision Confirming the Indictment (TC), 28 January 2000 (“Ndindiliyimana Decision Confirming the Indictment”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Warrant of Arrest and Order of Transfer and Detention for Augustin Ndindiliyimana (TC), 28 January 2000 (“Ndindiliyimana Warrant of Arrest for Ndindiliyimana”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Warrant of Arrest and Order of Transfer and Detention for Augustin Bizimungu (TC), 12 April 2002 (“Ndindiliyimana Warrant of Arrest for Bizimungu”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Warrant of Arrest and Order of Transfer and Detention for François-Xavier Nzuwonemeye (TC), 2 February 2000 (“Ndindiliyimana Warrant of Arrest for Nzuwonemeye”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Warrant of Arrest and Order of Transfer and Detention for Innocent Sagahutu (TC), 2 February 2000 (“Ndindiliyimana Warrant of Arrest for Sagahutu”). Prosecutor v. Ndindiliyimana et

al., Case No. ICTR-00-56-T, Decision on Urgent Motion to Stay the Indictment or in the Alternative to Cure Defects in the Indictment (TC), 19 October 2000 (“Ndindiliyimana Decision on Urgent Motion to Stay Indictment”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Defence Motion for Immediate Release and Stay of All Charges Against the Accused Ndindiliyimana due to the Prosecutor’s Non-Compliance with the Rules (TC), 10 April 2002 (“Ndindiliyimana Decision on Motion for Immediate Release”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Corrigendum to the Decision on Defence Motion for Immediate Release and Stay of All Charges Against the Accused Ndindiliyimana Due to the Prosecutor’s Non-Compliance with the Rules (TC), 16 April 2002 (“Ndindiliyimana Corrigendum to Decision on Motion for Immediate Release”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Preliminary, Provisional Release and Severance Motions (TC), 25 September 2002 (“Ndindiliyimana Decision on Sagahutu’s Preliminary Motion”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Leave to Appeal Against the Refusal to Grant Provisional Release (TC), 23 March 2003 (“Ndindiliyimana Decision on Sagahutu’s Leave to Appeal”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecution’s Motion Under Rule 50 for Leave to Amend the Indictment Issued on 20 January 2000 and Confirmed on 28 January 2000 (TC), 26 March 2004 (“Ndindiliyimana Decision on Prosecution Rule 50 Motion”). 17 May 2011 545/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Urgent Oral Motion for a Stay of the Indictment, or in the Alternative a Reference to the Security Council (TC), 26 March 2004 (“Ndindiliyimana Decision on Urgent Oral Motion to Stay Indictment”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on an Application for Review of the Registrar’s Decision Denying the Requested Assignment of Emmanuel Rwirangira as a Defence Investigator (TC), 10 June 2004 (“Ndindiliyimana Decision on Assignment of Rwirangira”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Augustin Bizimungu’s Preliminary Motion (TC), 15 July 2004 (“Ndindiliyimana Decision on Bizimungu’s Preliminary Motion”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecution’s Motion for a Separate Trial (Article 20 of the Statute and Rule 82 of the Rules of Procedure and Evidence) (TC), 20 August 2004 (“Ndindiliyimana Decision on Motion for Separate Trial”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Francois-Xavier Nzuwonemeye’s Motion under Rules 73Bis and 66(B), Relating to the Pre-Trial Brief (TC), 16 September 2004 (“Ndindiliyimana Decision on Rule 73 Motion”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T,

Decision on the Defence Motions for Stay of the Proceedings and the Adjournment of the Trial, Including Reasons in Support of the Chamber’s Oral Ruling Delivered on Monday 20 September 2004 (TC), 24 September 2004 (“Ndindiliyimana Decision on Motions for Stay of Proceedings”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Request for Certification of Appeal from the Decision Dated 24 September 2004 Dismissing Applicant’s Request for Transfer of his Trial to a National Jurisdiction (TC), 6 April 2005 (“Ndindiliyimana Decision on Ndindiliyimana’s Request for Appeal”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision de la Retrait de la Commission D’office de Maitre Michel Croisser, Conseil Principal de M. Augustin Bizimungu (TC), 7 October 2004 (“Ndindiliyimana Decision on Withdrawal of Croisser”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision de la Retrait de la Commision D’office de Maitre Antoine Berraud, Co-Conseil M. Francois-Xavier Nzuwonemeye (TC), 12 October 2004 (“Ndindiliyimana Decision on Withdrawal of Berraud”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision of Withdrawal of Mr Didier Patry as Co-Counsel for the Accused Innocent Sagahutu (TC), 26 January 2005 (“Ndindiliyimana Decision on Withdrawal of Patry”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision de Retrai de la Commission D’office de Maitre Andre Ferran, Conseil Principal de M. Francois-Xavier Nzuwonemeye (TC), 21 April 2005 (“Ndindiliyimana Decision on Withdrawal of Ferran”). 17 May 2011 546/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Request for Leave to Appeal Against the Trial Chamber’s Decision of 3 November 2004 (TC), 25 January 2005 (“Ndindiliyimana Decision on Defence Request to Appeal”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecution Motion to Vary its List of Witnesses: Rule 73Bis(E) of the Rules (TC), 11 February 2005 (“Ndindiliyimana Decision on Prosecution Rule 73 Motion”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution’s Motion dated 9 August 2005 to Vary its List of Witnesses Pursuant to Rule 73Bis(E) (TC), 21 September 2005 (“Ndindiliyimana Decision on Prosecution 9 August Rule 73 Motion”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Request for Certification to Appeal the Chamber’s Decision dated 21 September 2005 (TC), 26 October 2005 (“Ndindiliyimana Decision on Request to Appeal 21 September Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Urgent Motion Pursuant to Rule 73 to Deny the Prosecutor’s Objection Raised During the 3 March 2005 Hearing (TC), 1 April 2005 (“Ndindiliyimana Decision on Urgent Motion to Deny Prosecution Objection”). Prosecutor v. Ndindiliyimana et

al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Motion for Exclusion of Witnesses LMC, DX, BB, GS, CJ, GFO (TC), 13 May 2005 (“Ndindiliyimana Decision on Motion for Exclusion of Witness”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Request for Certification to Appeal the Decision Dated 13 May 2005 Dismissing the Applicant’s Request for Exclusion of Witnesses LMC, DX, BB, GS, CJ and GFO (TC), 9 June 2005 (“Ndindiliyimana Decision on Request to Appeal 13 May Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion in Opposition to the Admissibility of the Testimonies of Witnesses LMC, DX/ANM, BB, GS, CJ/ANL and GFO and for Reconsideration of the Chamber’s Decision of 13 May 2005 (TC), 24 November 2005 (“Ndindiliyimana Decision on Motion in Opposition to Testimonies”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion to Withdraw the Appearance of Prosecution Witnesses GFD and AOE and Réquete Urgente Demandant un Ajournement (TC), 17 May 2005 (“Ndindiliyimana Decision on Motion to Withdraw Appearances”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Certification of Appeal from the Chamber’s Oral Ruling of 10 May 2005 (TC), 10 June 2005 (“Ndindiliyimana Decision on Motion to Appeal 10 May Ruling”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Request for Certification to Appeal the Oral Decision Dated 8 June 2005 (TC), 30 June 2005 (“Ndindiliyimana Decision on Request to Appeal 8 June Decision”). 17 May 2011 547/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Request for Certification to Appeal From the Decision of Trial Chamber dated June, 13 2005 Dismissing Applicant’s Request for a Citation for Contempt of the Journalist Gatare of Radio Rwanda for Publishing the Names of Protected Witnesses (TC), 1 July 2005 (“Ndindiliyimana Decision on Appeal of Citation for Contempt”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Non-Contentious Motion for the Transfer of Witnesses in Detention or Under Court Supervision Pursuant to Rule 90bis of the Rules of Procedure and Evidence (TC), 18 August 2005 (“Ndindiliyimana Decision on Motion for Rule 90 Transfer of Witnesses”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Motion for Additional Protective Measures for Witnesses AOG or 006, Pursuant to Rules 54, 75, and 79 of the Rules of Procedure and Evidence (TC), 7 September 2005 (“Ndindiliyimana Decision on Motion for Additional Protective Measures”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Reconsideration of the Chamber’s Oral Decision of 14 September 2005 on Admissibility of Witness XXO’s Testimony in the Military 1 Case in Evidence (TC), 10 October 2005

(“Ndindiliyimana Decision on Motion for Reconsideration of 14 September Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision for Withdrawal of Ms Tiphaine Dickson as Co-Counsel for Accused Augustin Ndindiliyimana, (TC), 12 October 2005 (“Ndindiliyimana Decision on Withdrawal of Dickson”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision Varying the Decision of Withdrawal of Ms Tiphaine Dickson as Co-Counsel for Accused Ndindiliyimana dated 13 October 2005 (TC), 23 November 2005 (“Ndindiliyimana Decision Varying Withdrawal of Dickson”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, The President’s Decision on the Request for Review of the Registrar’s Decision of 13 October 2005 (TC), 1 March 2006 (“Ndindiliyimana Decision on Review of 13 October Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision of Withdrawal of Ms Danielle Girard as Co-Counsel for the Accused Francois Xavier Nzuwonemeye (TC), 13 October 2006 (“Ndindiliyimana Decision on Withdrawal of Girard”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion to Exclude the Testimony of Witness TN (TC), 28 October 2005 (“Ndindiliyimana Decision on Motion to Exclude Witness TN”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion to Exclude the Testimony of Witness AP (TC), 28 October 2005 (“Ndindiliyimana Decision on Motion to Exclude Witness AP”). 17 May 2011 548/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Certification of Appeal Against the Trial Chamber’s Decisions of 28 October 2005 on the Admissibility of the Testimonies of Witnesses AP and TN (TC), 16 November 2005 (“Ndindiliyimana Decision on Motion to Appeal 28 October Decisions”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Ex parte and Confidential Motion to Obtain the Cooperation of the Kingdom of Belgium (TC), 9 November 2005 (“Ndindiliyimana Decision on Motion for Cooperation of Belgium”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion in Opposition to the Admissibility of the Testimony of Witness AOF (TC), 2 December 2005 (“Ndindiliyimana Decision on Motion in Opposition to Witness AOF”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Certification of Appeal Against the Decision of 2 December 2005 on the Admissibility of the Testimony of Witness AOF (TC), 3 March 2005 (“Ndindiliyimana Decision on Motion to Appeal 2 December Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rules 73(A),94(A) and 89 of the Rules and Article 7 of

the Statute (TC), 6 December 2005 (“Ndindiliyimana Decision on Motion for Judicial Notice”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s ex parte Motion for the Transfer of Witnesses Detained or Placed under Court Supervision Pursuant to Rules 54 and 90 bis of the Rules of Evidence and Procedure (TC), 14 December 2005 (“Ndindiliyimana Decision on Motion for Rule 54 Transfer of Witnesses”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion Requesting the Cooperation from the Government of Ghana Pursuant to Article 28 of the Statute (TC), 13 February 2006 (“Ndindiliyimana Decision on Motion for Cooperation of Ghana”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion Requesting the Cooperation from the Government of Netherlands Pursuant to Article 28 of the Statute (TC), 13 February 2006 (“Ndindiliyimana Decision on Motion for Cooperation of the Netherlands”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion Requesting the Cooperation of the Government of Togo Pursuant to Article 28 of the Statute (TC), 13 February 2006 (“Ndindiliyimana Decision on Motion for Cooperation of Togo”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Certification to Appeal the Chamber’s Oral Decision of 2 February 2006 Admitting Part of Witness GFA’s Confessional Statement into Evidence (TC), 27 February 2006 (“Ndindiliyimana Decision on Motion to Appeal 2 February Decision”). 17 May 2011 549/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion to Exclude Parts of Witness AOG’s Testimony (TC), 30 March 2006 (“Ndindiliyimana Decision on Motion to Exclude Witness AOG”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Ex parte Motion for the Transfer of Witnesses Detained or Placed under the Court Supervision Pursuant to Rules 54 and 90 bis of the Rules of Evidence and Procedure (TC), 13 April 2006 (“Ndindiliyimana 13 April Decision on Motion for Transfer of Witnesses ”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion Requesting Cooperation from the Government of Belgium Pursuant to Article 28 of the Statute (TC), 7 June 2006 (“Ndindiliyimana Decision on Nzuwonemeye’s Motion under Article 28 for Cooperation of Belgium”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Urgent Motion to Prohibit the Prosecution from leading Evidence on Important Material Facts not Pleaded in the Indictment through Witness ANF (TC), 15 June 2006 (“Ndindiliyimana Decision on Urgent Motion to Prohibit Evidence of Witness ANF”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Motion for Certification to Appeal

the Chamber’s Decision dated 15 June 2006 (TC), 14 July 2006 (“Ndindiliyimana Decision on Motion for Appeal of 15 June Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Request for Disclosure of All the Sources Quoted in the Proposed Expert Report of Alison Des Forges (TC), 14 July 2006 (“Ndindiliyimana Decision on Request for Disclosure of Des Forges Sources”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Extremely Urgent Ex parte Motion for the Transfer of Detained Witness ANF Pursuant to Rule 90bis of the Rules of Evidence and Procedure (TC), 23 August 2006 (“Ndindiliyimana Decision on Urgent Motion for Transfer of Witness ANF”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution’s Request for Witness Romeo Dallaire to Give Testimony via Video Link (TC), 15 September 2006 (“Ndindiliyimana Decision on Dallaire”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecution’s Request for Reconsideration of the Chamber’s Decision of 15 September 2006 Concerning the Testimony of Witness Romeo Dallaire by Video Link (TC), 20 October 2006 (“Ndindiliyimana Decision on Reconsideration of Dallaire Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecutor’s Extremely Urgent Motion for a Rescheduling Order (TC), 3 November 2006 (“Ndindiliyimana Decision on Urgent Motion for Rescheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Defence Requests for Certification to Appeal the Chamber’s Decision of 20 October 2006 (TC), 7 November 2006 (“Ndindiliyimana Decision on Request to Appeal 20 October Decision”). 17 May 2011 550/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Requests for Certification and Reconsideration of the Chamber’s Rescheduling Order of 3 November 2006 (TC), 17 November 2006 (“Ndindiliyimana Decision on Request for Reconsideration of Rescheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Motion for a Site Visit (TC), 6 October 2006 (“Ndindiliyimana Decision on Motion for Site Visit”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Motion for Subpoena (TC), 6 October 2006 (“Ndindiliyimana Decision on Motion for Subpoena”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion to Exclude the Exhibits Tendered through Alison Des Forges Testimony and Related to Jean Kambanda (TC), 20 October 2006 (“Ndindiliyimana Decision on Motion to Exclude Des Forges Testimony”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Withdrawal of the Assignment of Mr Hamuly Rety as Co-Counsel for the Accused Francois Xavier Nzuwonemeye (TC), 26 January 2007 (“Ndindiliyimana Decision on Withdrawal of Rety”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Ex Parte and Confidential Motion for Restitution and

other Appropriate Relief (TC), 31 January 2007 (“Ndindiliyimana Decision on Motion for Restitution”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Extremely Urgent Motion for Additional Time to File a Reply (TC), 5 February 2007 (“Ndindiliyimana Decision on Motion Urgent Motion for Additional Time”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order Following the Pre-Defence Conference Held on 15 February 2007 (TC), 16 February 2007 (“Ndindiliyimana 15 February Scheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Reconsideration of Scheduling Order dated 16 February 2007 (TC), 13 March 2007 (“Ndindiliyimana Decision on Motion Reconsideration of Scheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Motions Pursuant to Rule 98bis (TC), 20 March 2007 (“Ndindiliyimana Decision on Defence Rule 98 Motions”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Corrigendum to the Decision on Defence Motions Pursuant to Rule 98bis (TC), 18 June 2007 (“Ndindiliyimana Corrigendum on Decision on Defence Rule 98 Motions ”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution Motion to Unseal and Disclose to the Canadian Authorities the Closed Session Transcripts of Witness ANA (TC), 23 March 2007 (“Ndindiliyimana Decision on Motion Witness ANA”). 17 May 2011 551/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Motion to Recall Prosecution Witness AOE for Additional Cross-Examination (TC), 3 April 2007 (“Ndindiliyimana Decision on Motion Recall Witness AOE”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecutor’s Urgent Motion for Disclosure of Further Identifying Information Relating to Defence Witnesses (TC), 17 April 2007 (“Ndindiliyimana Decision on Urgent Motion for Disclosure of Defence Witness”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Request for Certification to Appeal the Chamber’s Decision Pursuant to Rule 98bis (TC), 24 April 2007 (“Ndindiliyimana Decision on Request to Appeal Rule 98 Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Extremely Urgent Motion to Examine in Chief Two Bizimungu’s Witnesses (TC), 7 May 2007 (“Ndindiliyimana Decision on Urgent Motion to Examine Bizimungu Witnesses”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Certification to Appeal the Chamber’s “ Decision on Defence Motion to Recall Prosecution Witness AOE for Additional Cross-examination” (TC), 10 May 2007 (“Ndindiliyimana Decision on Motion to Appeal Witness AOE

Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Proprio Motu Order Following the Registrar Submissions Regarding the Chamber’s Scheduling Order of 16 February 2007 (TC), 11 May 2007 (“Ndindiliyimana Proprio Motu Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Motion Opposing the Testimony of Witness DE4-30 as a Factual Witness (TC), 16 May 2007 (“Ndindiliyimana Decision on Motion Opposing Witness DE4-30”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Withdrawal of the Assignment of Mr Patrick De Wolf, Co-Counsel for the Accused Augustin Ndindiliyimana (TC), 17 May 2007 (“Ndindiliyimana Decision on Withdrawal of De Wolf”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order Following the Status Conference Held on 18 June 2007 (TC), 19 June 2007 (“Ndindiliyimana 18 June Scheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Reconsideration of the Chamber’s Oral Decision dated 11 May 2007 regarding Admission of Exhibits P.132 and P.135 (TC), 25 July 2007 (“Ndindiliyimana Decision on Motion for Reconsideration of 11 May Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Clarification (TC), 11 September2007 (“Ndindiliyimana Decision on Motion for Clarification”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Augustin Bizimungu’s Request to Vary his Witness List (TC), 23 October 2007 (“Ndindiliyimana Decision on Bizimungu Witness Variance”). 17 May 2011 552/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Extremely Urgent Motion to Contact and Meet with Prosecution Witness GAP (TC), 26 October 2007 (“Ndindiliyimana Decision on Urgent Motion to Meet Witness GAP”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order (TC), 31 October 2007 (“Ndindiliyimana 21 October Scheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Request for Video-Link Testimonies of Witnesses DC2-2 and DE8-6 (TC), 31 October 2007 (“Ndindiliyimana Decision on Witnesses DC2-2 and DE8-6”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Request for Witness DE4-12 to Testify via Video Link (TC), 2 November 2007 (“Ndindiliyimana Decision on Witness DE4-12”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Request for Video Link Testimony of Witness DE11-4 (TC), 9 November 2007 (“Ndindiliyimana Decision on Witness DE11-4”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Proprio Motu Decision Clarifying the Chamber’s Oral Ruling of 12 November 2007 (TC), 30 November 2007 (“Ndindiliyimana Proprio Motu Decision on 12 November Ruling”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision

On Ndindiliyimana’s Request for Certification of the Chamber’s Proprio Motu Decision of 30 November 2007 (TC), 6 February 2008 (“Ndindiliyimana Decision on 30 November Proprio Motu Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Request for the Cooperation of the Kingdom of Belgium for the Appearance of Witnesses CBP3 and CBP4 (TC), 14 December 2007 (“Ndindiliyimana Decision on Cooperation of Belgium and Witnesses CBP3 and CBP4”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Request to vary his Witness List (TC), 31 January 2008 (“Ndindiliyimana Decision on Nzuwonemeye Witness Variance”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion to Admit as Exhibits Certain Documents Marked for Identification During the Testimony of Alison Des Forges (TC), 14 February 2008 (“Ndindiliyimana Decision on Motion to Admit Des Forges Documents”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motions to Address in the Form of the Indictment and to Order the Prosecution to Disclose All Exculpatory Material (TC), 29 February 2008 (“Ndindiliyimana Decision on Motion to Address in Form of Indictment”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order Following the Status Conference of 5 and 6 March 2008 (TC), 7 March 2008 (“Ndindiliyimana 5 and 6 March Scheduling Order”). 17 May 2011 553/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order Concerning Bizimungu’s Extremely Urgent Motion to Meet with the Prosecution Witness GFA and to Ensure his Continued Presence in Arusha (TC), 17 May 2008 (“Ndindiliyimana Interim Order on Witness GFA”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Motion for Temporary Transfer of Witness CBP 70 Pursuant to Rule 90bis (TC), 22 May 2008 (“Ndindiliyimana Decision on Motion for Transfer of Witness CBP 70”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Request for Certification to Appeal the Chamber’s Decision of 29 February 2008 (TC), 22 May 2008 (“Ndindiliyimana Decision on Request to Appeal 29 February Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order on Defence Motions Regarding the Prosecution’s Disclosure of Alleged Exculpatory Material (TC), 23 May 2008 (“Ndindiliyimana Decision on Defence Disclosure Motions”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Request to Vary his Witness List (TC), 26 May 2008 (“Ndindiliyimana Decision on Sagahutu Witness Variance”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Second Request for Variation

of his Witness List (TC), 11 July 2008 (“Ndindiliyimana Decision on Second Sagahutu Witness Variance”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for On-Site Visit (TC), 2 May 2008 (“Ndindiliyimana Decision on Nzuwonemeye’s Motion for Site Visit”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Extremely Urgent Motion for Video Link Testimony for Witnesses Y1,S2,Y3,F10 and F11 (TC), 9 June 2008 (“Ndindiliyimana Decision on Witnesses Y1, S2, Y3, F10 and F11”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Reconsideration of the Chamber’s Decision of 9 June 2008 (TC), 16 July 2008 (“Ndindiliyimana Decision on Motion for Reconsideration of 9 June Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision On Nzuwonemeye’s Motion to Exclude Acts not Pleaded in the Indictment (TC), 4 July 2008 (“Ndindiliyimana Decision on Motion to Exclude Acts not Pleaded”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Ex Parte and Confidential Order Regarding the Prosecution’s Disclosure of RPF materials Pursuant to Rule 68 (TC), 10 July 2008 (“Ndindiliyimana Confidential Order on RPF Materials”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Ex Parte and Confidential Order Regarding the Prosecution’s Request for Additional Time to File Written Submissions Pursuant to Rule 68 (TC), 14 July 2008 (“Ndindiliyimana Confidential Order on Additional Time”). 17 May 2011 554/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Supplemental Motions on the Alleged Defects in the Form of the Indictment (TC), 15 July 2008 (“Ndindiliyimana Decision on Supplemental Motions on Defects”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Urgent Application to Hear Witness Colonel Michel Robardey via Video Link (TC), 17 July 2008 (“Ndindiliyimana Decision on Witness Michel Robardey”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Corrigendum to Decision on Ndindiliyimana’s Urgent Application to Hear Witness Michel Robardey via Video Link (TC), 18 September 2008 (“Ndindiliyimana Corrigendum on Witness Robardey Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Sagahutu’s Request to Hear Expert Witness Dr Helmut Strizek via Video Link (TC), 22 August 2008 (“Ndindiliyimana Decision on Witness Helmut Strizek”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order on Defence Motions Regarding the Prosecutor’s Disclosure of Alleged Exculpatory Material (TC), 12 August 2008 (“Ndindiliyimana Interim Order on Disclosure of Exculpatory Material”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Very Urgent Second

Motion to Vary his Witness List (TC), 9 September 2008 (“Ndindiliyimana Decision on Second Nzuwonemeye Witness Variance”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order (TC), 16 September 2008 (“Ndindiliyimana 16 September Scheduling Order”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence Motions Alleging Violations of Prosecution’s Disclosure Obligations Pursuant to Rule 68 (TC), 22 September 2008 (“Ndindiliyimana Decision on Prosecution Disclosure Obligations”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution Motion to Vary the Chamber’s Order Concerning the Prosecutor’s Rule 68 Disclosure Obligations (TC), 25 October 2008 (“Ndindiliyimana Decision on Motion to Vary Disclosure Obligations Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution’s Objections to Expert Witnesses Lugan and Strizek (TC), 23 October 2008 (“Ndindiliyimana Decision on Objections to Witnesses Lugan and Strizek”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Requête D’Augustin Bizimungu en Vertu de l’article 92bis D) et C) du RPP en Vue de Verser au Dossier Le Compte-Rendue De La Déposition du Témoin BTH Donnée Dans L’Affaire Karemera et al. Du 10 Au 17 Avril, 2008 Et Pièces Déposées A L’occasion De Celle-Ci (TC), 4 November 2008 (“Ndindiliyimana Decision on Witness GFA/BTH”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order Concerning Bizimungu’s Motion for the Admission into Evidence of Witness BTH’s Testimony and Exhibits Given in the Karemera Case Between 10 and 17 April 2008 (TC), 13 November 2008 (“Ndindiliyimana Interim Order on Witness BTH”). 17 May 2011 555/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for the Admission into Evidence of the Transcripts and Exhibits of Witness BTH’s Testimony in the Karemera et al. Case Pursuant to Rule 92Bis (TC), 4 December 2008 (“Ndindiliyimana Decision on Motion to Admit Evidence of Witness BTH”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Very Urgent Third Motion to Vary the Witness List pursuant to Rule 73ter (TC), 3 December 2008 (“Ndindiliyimana Decision on Third Nzuwonemeye Witness Variance”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s Motion to Recall Identified Prosecution Witnesses and to Call Additional Witnesses (TC), 4 December 2008 (“Ndindiliyimana Decision on Ndindiliyimana’s Motion to Recall Identified Witnesses”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Admission of Written Statements Disclosed by the Prosecutor Pursuant to Rule 68(1) of the Rules of Procedure and Evidence (with Strictly Confidential Annex). (TC), 12 April 2011 (“Ndindiliyimana Decision on Admission of Written Statements”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye and Bizimungu’s Motions to Recall Identified Prosecution Witnesses

and to Call Additional Witnesses (TC), 4 December 2008 (“Ndindiliyimana Decision on Nzuwonemeye and Bizimungu’s Motions to Recall Identified Witnesses”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Proprio Motu Order for Transfer of a Detained Witness and for Certain Witnesses to Testify via Video-Link Pursuant to Rules 54, 90bis, and 75 of the Rules (TC), 9 Feburary 2009 (“Ndindiliyimana Proprio Motu Order for Transfer of Detained Witness”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion for Reconsideration (TC), 16 Feburary 2009 (“Ndindiliyimana Decision on Nzuwonemeye’s Motion for Reconsideration”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Motion for Reparation Following the Prosecution’s Failure to Disclose Documents Affecting the Credibility of Prosecution Witness AOE (TC), 18 February 2009 (“Ndindiliyimana Decision on Motion for Reparation”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecution’s Motion for Reconsideration of the Chamber’s Decision Dated 18 February 2009 (TC), 18 March 2009 (“Ndindiliyimana Decision on Motion for Reconsideration of 18 February Decision”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Prosecutor’s Motion to Call Rebuttal Evidence (TC), 20 February 2009 (“Ndindiliyimana Decision on Motion to Call Rebuttal Evidence”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Ndindiliyimana’s 2nd Motion for Disclosure Violations (TC), 25 February 2009 (“Ndindiliyimana Decision on Second Motion for Disclosure Violations”) 17 May 2011 556/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Locations for the Site Visit to Rwanda (TC), 29 March 2009 (“Ndindiliyimana Decision on Locations for Site Visit”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Urgent Application to Unseal and Distribute Certain Transcripts of Prosecution Witness AP (TC), 9 March 2009 (“Ndindiliyimana Decision on Witness AP”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Urgent Request to Submit Additional Pages in his Closing Brief (TC), 18 March 2009 (“Ndindiliyimana Decision on Request for Additional Pages”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Urgent Motion for Admission of CN’s Statement into Evidence (TC), 20 March 2009 (“Ndindiliyimana Decision on Admission of CN’s Statement”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Request to File a Corrigendum to his Closing Brief (TC), 7 May 2009 (“Ndindiliyimana Decision on Nzuwonemeye’s Request to File Corrigendum”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Bizimungu’s Request to File a Corrigendum to His Closing Brief (TC), 28 May 2009 (“Ndindiliyimana Decision on Bizimungu’s Request to File

Corrigendum”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzuwonemeye’s Motion Opposing the Corrigendum to the Prosecution Closing Brief (TC), 19 June 2009 (“Ndindiliyimana Decision on Motion Opposing Prosecution Corrigendum”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on the Prosecutor’s Motion to File Additional Pages to Closing Brief (TC), 2009 (“Ndindiliyimana Decision on Prosecution Motion for Additional Pages”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Reasons for the Chamber’s Oral Ruling of 17 April 2009 Denying Bizimungu’s Motion not to Take Into Account the Prosecution’s Submissions Regarding the Site Visit to Rwanda (TC), 14 May 2009 (“Ndindiliyimana Reasons for Denying Site Visit Motion ”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Nzirorera Defence Motion to Vary Protective Measures for Witness DB15-11 (TC), 9 June 2009 (“Ndindiliyimana Decision on Witness DB15-11 Protective Measures”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order for Ex Parte Disclosure of Contested Document (TC), 6 July 2009 (“Ndindiliyimana Interim Order for Disclosure of Contested Document”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Joseph Nzirorera’s Motion for Variation of Protective Measures for Witness DC2-5 and CBP99 (TC), 16 July 2009 (“Ndindiliyimana Decision on Witness DC2-5 and CBP99 Protective Measures”). 17 May 2011 557/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Augustin Bizimungu’s Motion for Disclosure of a Contested Document (TC), 31 August 2009 (“Ndindiliyimana Decision on Bizimungu’s Motion for Disclosure of Contested Document”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Joseph Nzirorera’s Renewed Motion for Variation of Protective Measures for Witnesses DB15-11, DC2-5 and CBP99 (TC), 9 September 2009 (“Ndindiliyimana Decision on Variation of Protective Measures”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order on Report of the Amicus Curiae Regarding the Alleged Recantation of Prosecution Witness GFR (TC), 19 October 2009 (“Ndindiliyimana Interim Order on Recantation of Witness GFR ”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Interim Order to Ascertain the Identity of Witness GFR and Other Matters, Rule 54 of the Rules of Procedure and Evidence (TC), 19 October 2009 (“Ndindiliyimana Interim Order on Identity of Witness GFR”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Witness GFR’s Recantation of his Evidence (TC), 10 February 2009 (“Ndindiliyimana Decision on Witness GFR’s Recantation”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision on Defence for

Bizimungu’s Motion for the Admission into Evidence if Prosecution Witness GAP’s Transcripts and Exhibits in the Karemera et al. Case (TC), 13 October 2009 (“Ndindiliyimana Decision on Motion for Admission of Witness GAP’s Evidence”). Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Scheduling Order for Delivery of Judgement, Pursuant to Rules 54 and 88 of the Rules of Procedure and Evidence (TC), 8 March 2011 (“Ndindiliyimana Scheduling Order for Delivery of Judgment”). Niyitegeka Niyitegeka v. Prosecutor, Case No. ICTR-96-14-A, Judgement (AC), 9 July 2004 (“Niyitegeka Appeal Judgement”). Ntagerura et al. Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence (TC), 25 February 2004 (“Ntagerura et al. Trial Judgement”). Prosecutor v. Ntagerura et al., Case No. ICTR-99-46-A, Judgement (AC), 7 July 2006 (“Ntagerura et al. Appeal Judgement”). Ntakirutimana Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and ICTR- 96-17-A, Judgement (AC), 13 December 2004 (“Ntakirutimana Appeal Judgement”). 17 May 2011 558/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Nzabirinda Prosecutor v. Nzabirinda, Case No. ICTR-01-77-T, Judgement and Sentence (TC), 23 February 2007 (“Nzabirinda Trial Judgement”). Rukundo Prosecutor v. Rukundo, Case No. ICTR-01-70-T, Judgement (TC), 27 February 2009 (“Rukundo Trial Judgement”). Rutaganda Rutaganda v. Prosecutor, Case No. ICTR-96-3-A, Judgement (AC), 26 May 2003 (“Rutaganda Appeal Judgement”). Rwamakuba Prosecutor v. Rwamakuba, Case No. ICTR-98-44C-T, Judgement and Sentence (TC), 20 September 2006 (“Rwamakuba Trial Judgement”). Semanza Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement and Sentence (TC), 15 May 2003 (“Semanza Trial Judgement”). Semanza v. Prosecutor, Case No. ICTR-97-20-A, Judgement (AC), 20 May 2005 (“Semanza Appeal Judgement”). Seromba Prosecutor v. Seromba, Case No. ICTR-2001-66-T, Judgement (TC), 13 December 2006 (“Seromba Trial Judgement”). Seromba v. Prosecutor, Case No. ICTR-2001-66-A, Judgement (AC), 12 March 2008 (“Seromba Appeal Judgement”). Serugendo Prosecutor v. Serugendo, Case No. ICTR-2005-84, Judgement and Sentence (TC), 12 June 2006 (“Serugendo Trial Judgement”). Serushago Prosecutor v. Serushago, Case No. ICTR-98-39, Reasons for Judgement (AC), 6 April 2000 (“Serushago Appeal Judgement”). Setako The Prosecutor v. Ephrem Setako, Case No. ICTR-04-81-T, Judgement (TC), 25 February 2010 (“Setako Trial Judgement”). 17 May 2011 559/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Simba Prosecutor v. Simba, Case No. ICTR-01-76-T, Judgement and Sentence (TC), 13 December 2005 (“Simba Trial Judgement”). Simba v. Prosecutor, Case No. ICTR-01-76-A, Judgement (AC), 27 November 2007 (“Simba Appeal Judgement”). Zigiranyirazo Prosecutor v. Zigiranyirazo, Case No. ICTR-01-73-T, Judgement (TC), 18 December 2008 (“Zigiranyirazo Trial Judgement”). ii) ICTY Aleksovski Prosecutor v. Aleksovski, Case No. IT-95-14/1-T, Judgement (TC), 25 June 1999 (“Aleksovski Trial Judgement”). Blagojević and Jokić Prosecutor v. Blagojević and Jokić, Case No. IT-02-60-A, Judgement (AC), 9 May 2007 (“Blagojević and Jokić Appeal Judgement”) Blaškić Prosecutor v. Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004 (“Blaškić Appeal Judgement”). Brđanin Prosecutor v. Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004 (“Brđanin Trial Judgement”). Čelebići Prosecutor v. Mucić et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998 (“Čelebići Trial Judgement”). Prosecutor v. Mucić et al., Case No. IT-96-21-T, Judgement (AC), 8 April 2003 (“Čelebići Appeal Judgement”). Galić Prosecutor v. Galić, Case No. IT-98-29-A, Judgement (AC), 30 November 2006 (“Galić Appeal Judgement”). Prosecutor v. Galić, Case No. IT-98-29-T, Judgement (TC), 5 December 2003 (“Galić Trial Judgement”). 17 May 2011 560/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Hadžihasanović et al. Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-A, Judgement (AC), 22 April 2008 (“Hadžihasanović et al. Appeal Judgement”). Prosecutor v. Hadžihasanović et al., Case No. IT-01-47-AR72, Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility (AC), 16 July 2003 (“Hadžihasanović et al. Command Responsibility Appeal”). Halilović Prosecutor v. Halilović, Case No. IT-01-48-T, Judgement (TC), 16 November 2005 (“Halilović Trial Judgement”). Jelisić Prosecutor v. Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001 (“Jelisić Appeal Judgement”). Kordić and Čerkez Prosecutor v. Kordić and Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004 (“Kordić and Čerkez Appeal Judgement”). Krnojelac Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September 2003 (“Krnojelac Appeal Judgement”). Kristić Prosecutor v. Kristić, Case No. IT-98-33-T, Judgement (TC), 2 August 2001, (“Kristić Trial Judgement”). Kunarac et al. Prosecutor v. Kunarac et al., Case No. IT-96-23-A and IT-96-23/1-A, Judgement (AC), 12 June 2002 (“Kunarac et al. Appeal Judgement”). Kupreškić et al. Prosecutor v. Kupreškić et al., Case No. IT-95-16-A, Judgement (AC), 23 October 2001 (“Kupreškić et al. Appeal Judgement”). Kvočka et al. Prosecutor v. Kvočka et al., Case No. IT-98-30/1-A, Judgement (AC), 28 February 2005 (“Kvočka et al. Appeal Judgement”). Prosecutor v. Kvočka et al., Case No. IT-98-30/1, Decision on Defence Preliminary Motions on the Form of the Indictment, 12 April 1999 (“Decision on Defence Preliminary Motions”). 17 May 2011 561/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Limaj et al. Prosecutor v. Limaj et al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005 (“Limaj et al. Trial Judgement”). Martić Prosecutor v. Martić, Case No. IT-95-11-A, Judgement (AC), 8 October 2008 (“Martić Appeal Judgement”). Milutinović Prosecutor v. Milutinović et al., Case No. IT-05-87-T, Judgement (TC), 26 February 2009 (“Milutinović et al. Trial Judgement”). Naletilić and Martinović Prosecutor v. Naletilić and Martinović, Case No. IT-98-34-A, Judgement (AC), 3 May 2006 (“Naletilić and Martinović Appeal Judgement”). Orić Prosecutor v. Orić, Case No. IT-03-68-T, Decision on Ongoing Complaints about Prosecutorial Non-Compliance with Rule 68 (TC), 13 December 2005 (“Orić Decision on Ongoing Complaints”). Popović et al. Prosecutor v. Popović et al., Case No. (IT-05-88), Judgement (TC), 10 June 2010 (“Popović et al. Trial Judgement”). Simić Prosecutor v. Simić, Case No. IT-95-9-A, Judgement (AC), 28 November 2006 (“Simić Appeal Judgement”). Stakić Prosecutor v. Stakić, Case No. IT-97-24-A, Judgement (AC), 22 March 2006 (“Stakić Appeal Judgement”). Strugar Prosecutor v. Strugar, Case No. IT-01-42-T, Judgement (AC), 17 July 2008 (“Strugar Appeals Judgement”). Tadić Prosecutor v. Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999 (“Tadić Appeal Judgement”). 17 May 2011 562/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Vasiljević Prosecutor v. Vasiljević, Case No. IT-98-32-A, Judgement (AC), 25 February 2004 (“Vasiljević Appeal Judgement”). iii) Special Court for Sierra Leone Fofana and Kondewa Prosecutor v. Fofana and Kondewa, Case No. SCSL-04-14-T, Judgement (TC), 2 August 2007 (“CDF Trial Judgement”). Brima et al. Prosecutor v. Brima et al., Case No. SCSL-04-16-T, Judgement (TC), 20 June 2007 (“AFRC Trial Judgement”). b) Defined Terms and Abbreviations Arusha Accords The Arusha Accords were a set of five accords (or protocols) signed in Arusha, Tanzania on August 4, 1993, by the Rwandan Government and the Rwandan Patriotic Front, designed to implement a power-sharing arrangement through a broad-based transitional government. Bizimungu Closing Brief Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Final Trial Brief Filed by General Augustin Bizimungu Pursuant to Rule 86(B) of the Rules of Procedure and Evidence, 31 March 2009. Bourgmestre Mayor of a commune. CDR Coalition pour la Défense de la République. A Rwandan Political Party associated with Juvénal Habyarimana and the MRND. Cellule A political and administrative subdivision of a secteur. Commune Apolitical and administrative subdivision of a préfecture. DRC Democratic Republic of the Congo. 17 May 2011 563/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T ESM École supérieure militaire. A military academy in Kigali. ESO École des sous officiers. A military academy in Butare. Gendarmerie nationale Replaced the National Police force in 1973, responsible for maintaining public law and order and enforcing the laws in force in Rwanda. Members were assigned to public security territorial companies and brigades. Gendarme An officer of the Gendarmerie. ICTY International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. ICTR or Tribunal International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994. Impuzamugambi “Those who have the same/single goal”; a Hutu militia controlled by the leadership of the CDR. Indictment Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Amended Indictment, 23 August 2004. Inkotanyi RPF soldiers and/or members. Sometimes used to refer to Tutsi or Hutus who were accused of being RPF accomplices. Interahamwe Name for youth wing of MRND. Sometimes used to refer to Hutus who were involved in the genocide, irrespective of party membership. 17 May 2011 564/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Inyenzi Kinyarwanda word for “cockroach.” Sometimes used to refer to Tutsi in general. Kalashnikov / AK-47 Assault rifle developed in the Soviet Union. Kigali Weapons Security Area (KWSA) Designated zone in Kigali that. as part of UNAMIR’s mandate, monitored and controlled the possession of weapons and the movement of combatants. MDR Mouvement Démocratique Républicain. A Rwandan political party in the parliamentary minority prior to April 1994. MGL Multiple Grenade Launcher. MRND Mouvement Révolutionnaire National pour la Démocratie et le Développement. A Rwandan political party led by Juvénal Habyarimana. n. Footnote. Ndindiliyimana Closing Brief Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Final Arguments of Augustin Ndindiliyimana, 31 March 2009. Nzuwonemeye Closing Brief Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Final Trial Brief Filed by François-Xavier Nzuwonemeye Pursuant to Rule 86(B) of the Rules of Procedure and Evidence, 31 March 2009. p. (pp.) Page (pages). para. (paras.) Paragraph (paragraphs). 17 May 2011 565/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T PL Parti Libéral. A Rwandan political party in the parliamentary minority prior to April 1994. Presidential Guard An elite unit in the Rwandan Army. PSD Parti Social Démocrate. A Rwandan political party in the parliamentary minority prior to April 1994. Prefect An individual responsible for the administration of a préfecture. Préfecture A territorial and administrative unit in Rwanda. Prosecution Closing Brief The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Prosecutor’s Closing Brief, 31 March 2009. Prosecution Pre-Trial Brief The Prosecutor v. Ndindiliyimana, et al., Case No. ICTR-2000-56-T, Prosecutor’s Pre-Trial Brief Pursuant to Rule 73bis of the Rules of Procedure and Evidence, 17 June 2004. R-4 Assault rifle produced by Denel Land Systems. RAF Rwandan Armed Forces. Reconnaissance Battalion (RECCE) An elite unit in the Rwandan Army. RPF Rwandan (also Rwandese) Patriotic Front. RTLM Radio Télévision Libre des Milles Collines. A radio station based in Kigali. 17 May 2011 566/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T Rules Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda. Sagahutu Closing Brief The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-2000-56-T, Captain Sagahutu’s Closing Brief, 31 March 2009. Secteur A political and administrative subdivision of a commune. Statute Statute of the International Criminal Tribunal for Rwanda, established by Security Council Resolution 955. T. Transcript. UNAMIR United Nations Assistance Mission for Rwanda. VBL Véhicule Blindé Léger or "Light armoured vehicle" which was developed in France. 17 May 2011 567/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T ANNEX C: INDICTMENT 17 May 2011 568/569

Judgement and Sentence The Prosecutor v. Ndindiliyimana et al, ICTR-00-56-T ANNEX D: LIST OF PSEUDONYMS—STRICTLY CONFIDENTIAL 17 May 2011 569/569