THE PROSECUTOR V. JEAN DE DIEU KAMUHANDA

THE PROSECUTOR V. JEAN DE DIEU KAMUHANDA

- Source: Amategeko - Section: Decisions (Judgements) - Date: 2003-01-22 - Case/document no.: ICTR-99-54A-T - Collection: International Tribunal for Rwanda

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United Nations Nations Unies International Criminal Tribunal for Rwanda Tribunal p~nal international pour le Rwanda Before: Registrar: Date:

TRIAL CHAMBER II Judge William H. Sekule, Presiding Judge Winston C. Matanzima Maqutu Judge Arlette Ramaroson Adama Dieng 22 January 2003 The PROSECUTOR Jean de Dieu KAMUHANDA Case No. ICTR-99-54A-T OR: ENG

JUDGMENT AND SENTENCE Counsel for the Prosecution Mr.Marks Moore Mr.Ibukunolo Alao Babajide Ms.Doroth~e Marotine (Case Manager) Counsel for the Defence Ms.AYcha Cond6 Ms.Patricia Mongo Ms.Anta Guisse (Legal Assistant) Ms.Seynabou Benga (Legal Assistant)

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Table of Contents

PART I - Introduction ...................................................................... 4 A. The Tribunal and its Jurisdiction ............................................................ 4 B. Procedural Background ................................................................... 5 C. Evidentia~ Matters ..................................................................... 9 D. Witness Protection Issues ................................................................. 13

PART II - The Defence Case .................................................................. 14 A. Introduction ........................................................................ 14 B. Vagueness of the Indictment ............................................................... 14 C. In and out of Court Identification of the Accused by the Prosecution .................. 17 D. The Defence Contention that the Citizens of Gikomero Were Surprised by the Attacks and That the Assailants Came from Rubungo ............................................. 18 E. Defence Contention that Prosecution Witnesses Bore False Testimony against the Accused and That the Charges against the Accused are Fabrication ........................ 19 F. The Alleged Influence of the Accused .......................................................... 20 G. The Personality of the Accused was Incompatible with the Description of the Person Presented by the Prosecutor ............................................................. 20 H. Prosecution Allegation That the Accused Was an Advisor to the President ........... 21 I. Defence Contention that the Accused Became a Member of the Interim Government under Duress ................................................................... 21 J. Alibi ............................................................................ 22 K. Impossibility of Travel from Kigali to Gikomero in April 1994 ............................. 43 L. Expert Witness ....................................................................... 53

PART III- The Prosecution Case ................................................................ 54 A. Introduction ......................................................................... 54 B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case) ................. 54 C.Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in 1994)... D. Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda in 1994)55 E.Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic Attacks in Rwanda) ........................................................................... 56 F. Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict in Rwanda) ............................................................................. 57 G. Ministerial Position of the Accused and his Responsibility as Minister of the Interim Government ........................................................................... 57 H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons) .............. 58 I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka Massacres) ........................................................................... 69 J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local Authorities) .......................................................................... 157 K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes Committed by the Perpetrators or to Punish Them) ............................................. 158

PART IV - Legal Findings .................................................................... 160 A. Admitted Facts ........................................................................ 160 B. Cumulative Convictions ................................................................... 160 C. Criminal Responsibility ................................................................... 162 D. Genocide and Related Crimes ................................................................ 170 E. Crimes against Humanity .................................................................. 180 F. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II ..................................................................... 196

PART V - Verdict ......................................................................... 206

PART VI - Sentence ........................................................................ 207 -2-

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The Prosect:tor v. ,:ca:: de Dicu Kamuhanda 22 Ja::uary 2004 A. General Sentencing Practice ................................................................. 207 B. Mitigating Factors ...................................................................... 208 C. Aggravating Factors ...................................................................... 209 210 D. Sentencing Ranges ...................................................................... E. Credit for Time Served .................................................................... 210 Annexes -3-

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Thc Prosccutor v. Jcarl dc Dicu K.armlhar~da 22 Jarm’ary 2004 PART I - INTRODUCTION A. The Tribunal and its Jurisdiction This Judgment in the case of The Prosecutor v. Jean de Dieu Kamuhanda is rendered by Trial Chamber II ("Trial Chamber" or "Chamber") of the International Criminal Tribunal for Rwanda ("Tribunal"), composed Judge William H. Sekule, presiding, Judge Winston C. Matanzima Maqutu, and Judge Aflette Ramaroson. . The Tribunal was established by the United Nations Security Council after the Council considered official United Nations reports indicating that genocide and widespread, systematic, and flagrant violations of international humanitarian law had been committed in Rwanda. 1 The Security Council determined that this situation constituted a threat to international peace and security; determined to put an end to such crimes and to bring to justice the persons responsible for them; and expressed the conviction that the prosecution of such persons would contribute to the process of national reconciliation and to the restoration and maintenance of peace. Consequently, on 8 November 1994, the Security Council, acting under Chapter VII of the United Nations Charter, adopted Resolution 955 establishing the Tribunal. 2 . The Tribunal is govemed by the Statute, annexed to Resolution 955 ("Statute"), and by its Rules of Procedure and Evidence ("Rules"). . Pursuant to the

Statute, the Tribunal has the authority to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states. Under Article 1 of the Statute, the Tribunal’s temporal jurisdiction is limited to acts committed between 1 January 1994 and 31 December 1994. Articles 2, 3, and 4 of the Statute provide the Tribunal with subject-matter jurisdiction over genocide, crimes against humanity, and war crimes arising from serious violations of Article 3 Common to the Geneva Conventions ("Common Article 3") and Additional Protocol II thereto. The provisions of Articles 2, 3, and 4 are set out below in Part IV. The Accused 1 UNSG Report on Rwanda, 1994/924, 1994/924; Expert Report Pursuant UNSC Resolution 935, 1994/1125; Special Rapporteur Reports, 1994/1157, Annexes I and II. 2 UNSC Resolution 955 (1994). -4-

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. . The Proscc~rtor v. Jean de [)ict~ Kamuhar~da 02 Jar.mary ~.(.()4 The Indictment alleges that Jean de Dieu Kamuhanda (the "Accused") was born on 3 March 1953 in Gikomero commune, Kigali-Ruralpr~fecture, in Rwanda. 3 The Defence admitted the following facts: Jean de Dieu Kamuhanda was bom on 3 March 1953 in Gikomero commune, Kigali-Ruralpr~fecture, Rwanda. 4 In late May 1994, Jean de Dieu Kamuhanda held the office of Minister of Higher Education and Scientific Research in the Interim Government, replacing Dr. Daniel Nbangura: Jean de Dieu Kamuhanda held the office until mid-July 1994. 6 In his capacity as Minister of Higher Education, Jean de Dieu Kamuhanda was responsible for the articulation and the implementation of the government policy concerning post- secondary school education and scientific research in Rwanda for the Interim Government. 7 B. Procedural Background 1. Pre-Trial Phase . On 1 October 1999, Judge N. Pillay reviewed and confirmed an Indictment dated 27 September 1999 against Jean de Dieu Kamuhanda and Augustin Ngirabatware and issued an Order for Non-Disclosure of the Indictment. 8 On the same date the Tribunal issued a Request for Arrest and Transfer as well as a Warrant of Arrest and Order for Transfer and Detention 9 of the Accused pursuant to the Prosecutor’s request, m The Accused was arrested on 26 November 1999 in France and

was transferred from France to the seat of the Tribunal in Arusha on 7 March 2000. . At his Initial Appearance, on 10 March 2000, the Chamber found that the Accused was unprepared to enter a plea, considering an issue he raised about a manner in which the Indictment had been redacted. Consequently, the Tribunal granted his request for another copy of the Indictment 3 Indictment, para. 4. 4 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 127. 5 Ibid, Fact number: 128. 6 Ibid, Fact number: 129. 7 Ibid, Fact number: 137. 8 Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, Confirmation of the Indictment and Order of Non-Disclosure (TC). 9 Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, Request for the Arrest and Transfer (TC). 10 Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, Warrant of Arrest and Order for Transfer and Detention (TC). -5-

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10.

11. The Prosecutor w Jean de Dicu Kamuhanda 22 January 2004 redacted differently. Accordingly, the Accused’s initial appearance was re- scheduled to 24 March 2000, before Judge Y. Ostrovsky, at which time the Accused pleaded not guilty to all nine counts alleged in the Indictment. On 7 November 2000, Trial Chamber II, composed of Judge L. Kama, presiding, Judge W. H. Sekule and Judge M. Gtiney, granted the Defence’s motion for severance and separate trial and ordered the Prosecutor to file a separate Indictment pertaining exclusively to Jean De Dieu Kamuhanda, bearing the Case Number 99-54A. 11 The separate Indictment was filed on 15 November 2000. The Trial Chamber, did not consider this separate Indictment to be an amendment of the original Indictment; therefore no new initial appearance of the Accused was required. On 28 December 2000, the Defence notified the Prosecution of its intention to provide alibi evidence with respect to allegations against the Accused. Pursuant to Rule 67(A)(ii)(a), the Defence filed notice of alibi 31 August 2001. On 8 April 2002 the Trial Chamber granted a Defence ¯ ’ " 1" i12 Motion to Correct a Material Error in the Notme of A ib.

2. The Indictment of 15 November 2000 12. There are nine counts in the Indictment, charging Jean De Dieu Kamuhanda with genocide, crimes against humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II. The Indictment alleges that these crimes were committed between 1 January and 31 December 1994 in Rwanda where the Tutsi, the Hutu and the Twa were identified as racial or ethnic groups¯ The Indictment asserts that during this period, widespread or systematic attacks were directed against the civilian population on political, ethnic or racial grounds, and that a state of non-international armed conflict existed in Rwanda.

13. The Indictment alleges that before the events of 1994, the Accused was the Director of Higher Education and Scientific Research, and then Counsellor to President Sindikubwabo until late May 1994.

14. The Indictment alleges that in late May 1994, the Accused held the office of Minister of Higher Education and Scientific Research in the Interim Government. The Indictment further asserts that in his capacity as Minister, the Accused attended Cabinet meetings and participated in formulating the policies adopted by the Interim Government, and that he neither publicly disavowed these policies nor did he resign. The Indictment also asserts that in his capacity as Minister, the Accused exercised authority and control over all the institutions and staff members 11 Kamuhanda, Decision 7 November 2000, Severance and Separate Trial (TC). 12 Kamuhanda, Decision 8 April, Correct a Material Error (TC).

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15. 16. 17. 18. 19.

20. T.bc PrOSCCL:tOr v. ,,:ear: de [)icu Kamuhanda 22 Jarlua:w 2004 under his ministry and that he failed in his duty to ensure the security of Rwandan citizens. The Indictment alleges that from late 1990 until July 1994, the Accused conspired with others to work out a plan with the intent to exterminate the civilian Tutsi population and to eliminate members of the opposition, by, amongst others things, recourse to hatred and ethnic violence, the training of andthe distribution of weapons to militiamen as well as the preparation of lists of people to be eliminated. The Indictment further alleges that in executing this plan, the Accused and others, organized, ordered and participated in the massacres perpetrated against the Tutsi population and moderate Hutu. The Indictment alleges that from 7 April 1994, massacres of the Tutsi population and murders of numerous political opponents were perpetrated throughout the territory of Rwanda and that these crimes were carried out by militiamen, military personnel, and gendarmes on the orders and directives or with the knowledge of authorities, including the Accused. The Indictment alleges that the Accused and others knew or had reason to know that their subordinates had committed or were preparing to commit crimes, and failed to prevent those crimes from being committed or to punish the perpetrators thereof. The

Indictment alleges that the Accused was an influential member of the MRND in Kigali-Rural. It is also stated that the Accused supervised killings during the month of April 1994 in the area of Gikomero commune, Kigali-Rural prdfecture, where he had family ties. The Indictment further asserts that the Accused personally led attacks of soldiers and Interahamwe against Tutsi refugees in Kigali-Rural prrfecture, notably on or about 12 April 1994, at the Parish Church and adjoining school in Gikomero, where several thousand persons were killed. During the attack on the school in Gikomero the militia also selected women from among the refugees, carried them away and raped them before killing them. 13 The Indictment alleges that on several occasions the Accused personally distributed firearms, grenades, and machetes to civilian militia in Kigali- Rural for the purpose of"killing all the Tutsi and fighting the [RPF]". For his alleged involvement in the acts described in the Indictment, the Accused is charged with conspiracy to commit genocide (Count 1); genocide (Count 2) or, alternatively, complicity in genocide (Count murder as a crime against humanity (Count 4), extermination as a crime against humanity (Count 5), rape as a crime against humanity (Count and other inhumane acts of crime against humanity (Count 7). The 13 Indictment, para. 6.44. -7-

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21. The Prosecutor v, Jearl de I)icu KamtJhanda ~ .lar~uarv 2()04 Judgment arid Sc~tc,lcc Accused is also charged with the war crimes of serious violations of Common Article 3 and Additional Protocol II: for outrages upon personal dignity (Count 8) and killing and causing violence (Count 9). For all Counts, the Accused is charged cumulatively with all forms of personal responsibility pursuant to Article 6(1) and with superior responsibility pursuant to Article 6(3) of the Statute. On 20 August 2002, following the end of the case for the Prosecution, the Trial Chamber partly granted a Defence motion, under Rule 98, for partial acquittal, and entered a Judgment of Acquittal in respect of Count 1 of the Indictment: conspiracy to commit genocide. The Chamber denied the Motion to enter a Judgment of Acquittal with respect to Count 6: crimes against humanity--rape. 14 3. Trial Phase 22. 23. 24.

25. The Trial Chamber ordered protective measures for both Defence is and Prosecution 16 Witnesses. These included the use of pseudonyms, the non- disclosure of the identity of Witnesses, and the disclosure to the opposing party of identifying information before 21 days of a Witness’ testimony at trial. Following a Defence Motion, the Trial Chamber requested the cooperation of certain States and the United Nations High Commissioner for Refugees in order to facilitate the execution and enforcement of the Chamber’s order for protective measures for Defence Witnesses. 17 On 22 March 2001, a Pre-Trial Conference was held, and the trial was scheduled to start on 17 April 2001. The Prosecution filed its Pre-Trial Brief on 30 March 2001.18 On 17 April 2001, the trial began before Trial Chamber II, then composed of Judge L. Kama, presiding, Judge W. H. Sekule and Judge M. Gianey. The Prosecution presented its opening statement, and the first Prosecution Witness was heard. On 18 April 2001, the trial was suspended until 3 September 2001. On 3 September 2001, following the death of Judge Kama and the assignment of Judge M. Gianey to the Appeals Chamber, the President’s Order pursuant to Rule 15bis(C) dated 20 August 200119 was read out in court, inviting the Trial Chamber to make a determination as to the 14 Kamuhanda, Decision 20 August 2002, Partial Acquittal (TC). 15 Kamuhanda, Decision 22 March 2001, Protective Measures for Defence Witness (TC). 16 Kamuhanda, Decision 7 July 2000, Protective Measures for Witness (TC). 17 Kamuhanda, Decision 9 May 2002, Extension of Judicial Cooperation to Certain States and to the UNHCR (TC). 18 Prosecutor’s Pre-Trial Brief, 30 March 2001. 19 Kamuhanda, Decision 20 August 2001, President’s Order on Proceedings (TC). -8-

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Thc Prosec~::or v..lear: dc Dicu Kamull.arlda 22 Janua:’v 2004 rehearing or the continuation of this part-heard case. The Defence requested a trial de novo, pursuant to Rulel5(E), and the Prosecution did not object. The Trial Chamber, composed of Judge W. H. Sekule, presiding, Judge W. C. M. Maqutu and Judge Ramaroson, granted the Defence request, and the trial re-started with a hearing of the Parties’ opening statements and the testimonies of three Prosecution Witnesses. This trial session was adjourned on 25 September 2001, ending the first session of the Prosecution case. The Prosecution case was heard during two further trial sessions, from 28 January 2002 until 19 February 2002, and from 6 May 2002 until 14 May 2002. The Prosecution closed its case after having called 28 Witnesses and introduced 53 exhibits.

26. A Pre-Defence Conference and a Status-Conference were held on 15 May 2002. The Defence filed its Pre-trial brief on 25 July 2002.

27. The Defence case was heard during three sessions: from 19 August 2002 until 12 September 2002, from 13 January 2003 until 30 April 2003 and from 5 May 2003 until 15 May 2003. A total of 36 Witnesses were called by the Defence, including the Accused, who testified first, and 88 exhibits were introduced. On 15 May 2003 the Trial Chamber adjourned the proceedings.

28. On 13 May 2003,2° the Trial Chamber denied a Motion for Leave to Call Rebuttal Evidence filed by the Prosecution on 14 April 2003, pursuant to Rule 85(A)(ii) of the Rules. On 15 May 2003, the Chamber issued Scheduling Order for the filing of the Closing Briefs and the Closing Arguments of the Parties.21 29. On 22 May 2003, the Chamber granted a Defence motion and admitted into evidence two written statement of a deceased Witness. 22 30. The Prosecution and the Defence submitted their Closing Briefs on 2 July 2003 and 13 August 2003, respectively. Closing Statements were heard on 27 and 28 August 2003, and thereafter Judge W. H. Sekule, the Presiding Judge, declared the trial hearing closed, pursuant to Rule 87(A). C. Evidentiary Matters 31. The Chamber will, in this Part of the Judgment, address general evidentiary matters of concern that arose during the course of the trial, Witness protection issues, and some general principles of evidence evaluation, including the impact of trauma on the testimony of Witnesses, 20 Kamuhanda, Decision 13 May 2002, Motion for Leave to Call Rebuttal Evidence (TC). 21 Kamuhanda, Scheduling Order 15 May 2003, (TC). 22 Kamuhanda, Decision 20 May 2002 filed on 21 May 2003, Admit into Evidence Statements by Witness GER (TC), Kamuhanda, Corrigendum 22 May 2003, Admit into Evidence Statements by Witness GER (TC). -9-

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The Prosecutor v. Jean dc Dicu Kamuhanda 22 3anuary 2004 Judgmcn:t and Sentence false testimony, the use of prior Witness statements, and problems of interpretation from Kinyarwanda into French and English.

32. The Chamber has considered the charges against Jean de Dieu Kamuhanda on the basis of testimonies and exhibits introduced by the Parties to prove or disprove allegations made in the Indictment.

1. General Principles of the Assessment of Evidence 33. The Chamber notes that, under Rule 89(A) of the Rules, it is not bound any national rules of evidence. The Chamber in this case has therefore applied, in accordance with Rule 89(B), the rules of evidence, which in its view, best favour a fair determination of the matters before it and which are consonant with the spirit of the Statute and the general principles of law, where such have not been expressly provided for in the Tribunal’s Rules of Procedure and Evidence.

2. Credibility 34. The Chamber notes that many of the Witnesses who have testified before it have seen and experienced atrocities. They, their relatives, or their friends have, in many instances, been the victims of such atrocities. The Chamber notes that recounting and revisiting such painful experiences may affect the Witness’s ability to recount the relevant events fully or precisely in a judicial context. The Chamber also notes that some of the Witnesses who testified before it may have suffered, and may continue to suffer stress- related disorders.

35. The Chamber recognises, in addition, the time that had elapsed between the time of the events in question and the testimonies of the Witnesses.

36. In assessing the credibility of the Witnesses, the Chamber is mindful of the considerations which motivated the following judicial pronouncements. We begin with the observations of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia ("ICTY") the Kupreski6 case saying: [...] It is certainly within the discretion of the Trial Chamber to evaluate any inconsistencies, to consider whether the evidence taken as a whole is reliable and credible and to accept or reject the "fundamental features" of the evidence. The presence of inconsistencies in the evidence does not, per se, require a reasonable Trial Chamber to reject it as being unreliable. Similarly, factors such as the passage of time between the events and the testimony of the Witness, the possible influence of third persons, discrepancies, or the existence of stressful conditions at the time the events took place do not automatically exclude the - 10-

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Thc Prosecutor v. !can dc Dicu Kamuhar~da 22 Ja)luarv 2004 Judgmcrrt and Sc,~tcJ~cc Trial Chamber from relying on the evidence. However, the Trial Chamber should consider such factors as it assesses and weighs the evidence. 23 37. In that pronouncement, the ICTY Appeals Chamber was reiterating its opinion in its earlier judgment in the Delalid Case. There, it had said as follows: As is clear from the above discussion, the other matters raised by Delid as undermining the credibility of the Witnesses are not, in the view of the Appeals Chamber, of such a character as would require a reasonable Trial Chamber to reject their evidence. The Appeals Chamber is satisfied that on the evidence before the Trial Chamber it was open to accept what it described as the "fundamental features" of the testimony. [...] Delid also refers to certain inconsistencies in the victim’s testimony, which he states illustrate that it was unreliable. The Appeals Chamber notes that as an introduction to its consideration of the factual and legal findings, the Trial Chamber specifically discussed the nature of the evidence before it. It found that often the testimony of Witnesses who appear before it, consists of a "recounting of horrific acts" and that often "recollection and articulation of such traumatic events is likely to invoke strong psychological and emotional reactions [...]. This may

impair the ability of such Witnesses to express themselves clearly or present a full account of their experiences in a judicial context". In addition, it recognised the time which had lapsed since the events in question took place and the "difficulties in recollecting precise details several years after the fact, and the near impossibility of being able to recount them in exactly the same detail and manner on every occasion [...]." The Trial Chamber further noted that inconsistency is a relevant factor "in judging weight but need not be, of [itself], a basis to find the whole of a Witness’ testimony unreliable". Accordingly, it acknowledged, as it was entitled to do, that the fact that a Witness may forget or mix up small details is often as a result of trauma suffered and does not necessarily impugn his or her evidence given in relation to the central facts relating to the crime. With regard to these counts, the Trial Chamber, after seeing the victim, hearing her testimony (and that of the other Witnesses) and observing her under cross-examination chose to accept her testimony as reliable. Clearly it did so bearing in mind its overall evaluation of the nature of the testimony being heard. Although the Trial Chamber made no reference in its findings to the alleged inconsistencies in the victim’s testimony, which had been pointed out by Delid, it may nevertheless be assumed that it 23 Kupreskic, Judgment (AC), para 31. See also Musema, Judgment (AC) para 20; Akayesu, Judgment (TC), paras. 142 and 143. -11-

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Thc PK~sccumr v~ Jean de Dieu Kam@~anda 2"~ darmarv 2004 JudgmclK and ScKtcncc regarded them as immaterial to determining the primary question of Delid’s perpetration of the rapes. The Appeals Chamber can see no reason to find that in doing so it erred. The Trial Chamber is not obliged in its Judgment to recount and justify its findings m relation to every submission made during trial. It was within its discretion to evaluate the inconsistencies highlighted and to consider whether the Witness, when the testimony is taken as a whole, was reliable and whether the evidence was credible. Small inconsistencies cannot suffice to render the whole testimony unreliable. Delid has failed to show that the Trial Chamber erred in disregarding the alleged inconsistencies in its overall evaluation of the evidence as being compelling and credible, and in accepting the totality of the evidence as being sufficient to enter a finding of guilt beyond a reasonable doubt on these grounds. 24 3. Corroboration 38. As a general principle, the Trial Chamber has weighed all the evidence presented in this case and, accordingly, has attached--or declined to attachwprobative value to the testimony of each Witness and exhibit, according to its relevance and credibility. The Trial Chamber recalls that it is not bound by any national rules of evidence and, has been guided by

the foregoing principles recalled above 2s, with a view to a fair determination of the issues before it. In particular, the Trial Chamber notes the finding in the Tadi6 Appeals Judgment that corroboration of evidence is not a customary rule of international law and as such should not be ordinarily required by the International Tribunal. 26 39. The Chamber notes further the decision in the Aleksovski Appeal Judgment that whether a Trial Chamber will rely on single Witness testimony as proof of a material fact, will depend on various factors that have to be assessed in the circumstances of each case.27 It may be that a Trial Chamber would require the testimony of a Witness to be corroborated, but according to the established practice of this Tribunal and the ICTY, that is clearly not a requirement. 28 24 Delalic et al. (Celebici Case), Judgment (AC), paras. 485,496-249. 25 Part I, Section B, para. 33. 26 Tadic, Judgment (TC), para. 539; Akayesu, Judgment (TC), paras. 132-136. 27 Aleksovski, Judgment (AC), para. 63; Tadic, Judgment (AC), para. 28 Kayishema and Ruzindana Judgment (AC), paras. 154 and 229; Aleksovski, Judgment (AC), para. ("the testimony of a single witness does not require, as a matter of law, any corroboration"); Tadic, Judgment (AC), para. 65; Delalic et al. (Celebici Case), Judgment (AC), paras. 492 and -12-

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The Prosectltor v. ,Jean de Dict~ Kamuhar~da 22 darmarv 2004 JudgmcL~ and Ec~tcncc 40. In the Musema case, the Trial Chamber affirmed that it may rule on the basis of a single testimony, if in its opinion the testimony is relevant and credible. 29 It further stated that: (...) it is proper to infer that the ability of the Chamber to rule on the basis testimonies and other evidence is not bound by any rule of corroboration, but rather on the Chamber’s own assessment of the probative value of the evidence before it. The Chamber may freely assess the relevance and credibility of all evidence presented to it. The Chamber notes that this freedom to assess evidence extends even to those testimonies which are corroborated: the corroboration of testimonies, even by many Witnesses, does not establish absolutely the credibility of those testimonies. 3° 41. The Appeals Chamber in the Musema case held that these statements correctly reflect the position of the law regarding the trial Chamber’s discretion in assessing testimonies and evidence before it. 31 4. Hearsay Evidence 42. The Chamber observes that Rule 89(c) of the Rules provides that Chamber may admit any relevant evidence which it deems to have probative value". The Chamber notes that this Rule makes provision for the admission of hearsay evidence even when it cannot be examined at its source and when it is not corroborated by

direct evidence. The Chamber, however, notes that though evidence may be admissible, the Chamber has discretion to determine the weight afforded to this evidence. The Chamber makes its decision as to the weight to be given to testimony based on tests of "relevance, probative value and reliability. ’’32 Accordingly, the Chamber notes that evidence, which appears to be "second-hand", is not, in and of itself, inadmissible; rather it is assessed, like all other evidence, on the basis of its credibility and its relevance. D. Witness Protection Issues 43. In analysing evidence received during closed sessions, the Chamber has been mindful of the need to avoid unveiling identifying particulars of protected Witnesses so as to prevent disclosure of their identities to the press or the public. At the same time, the Chamber wishes to provide in the judgment significant detail to assist in an understanding of its reasoning. In view of these concerns, when referring to evidence received in closed 29 Musema, Judgment (TC), para. 43. 30 Musema, Judgment (TC), paras. 45 and 46. 31Musema, Judgment (AC), para. 38. 32 Musema, Judgment (TC), para. 51. - 13-

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The Prosecutor v. Jean de Dieu Kamuhar~da 22 January 2004 Judgmcllt and Sentence sessions in this Judgment, the Chamber has used language designed not to reveal protected information yet specific enough to convey its reasoning. 33 PART II - THE DEFENCE CASE A. Introduction 44. In an effort to challenge the case for the Prosecution, the Defence raised several issues as described below.

45. The evidence of the Defence will be considered together with the Prosecution evidence. The Chamber has, for each Prosecution allegation, considered in full the evidence presented by both parties and has weighed such evidence appropriately. B. Vagueness of the Indictment 1. Allegations 46. 47.

48. The Defence requested the Chamber to rule the allegations concerning the events at the Catholic Parish of Gishaka as vague; and, consequently, to exclude or disregard the evidence presented in support of that aspect of the 34 Prosecution case. The Defence submitted that only paragraphs 6.44, 6.45 and 6.46 of the Indictment refer to the Accused’s alleged involvement in acts allegedly committed in the commune of Gikomero. 35 The Defence submitted that in the above paragraphs of the Indictment, the Prosecution vaguely refers to weapons that the Accused allegedly distributed in his commune of Gikomero and to massacres which he allegedly led. Nowhere in the Indictment did the Prosecution provide the particulars of the circumstances in which these crimes were allegedly committed. 36 49. The Defence submitted that although it is alleged at paragraph 6.45 of the Indictment that the Accused personally led the attacks in the prefecture of Kigali-Rural, this is insufficient to give the Accused notice of the 33 Semanza Judgment (TC), para. 37. 34 Defence Closing Brief (English Translation), para. 1841. 35 Indictment. 36 Defence Closing Brief (English Translation), paras. 1809, 1811. - 14-

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50. 51.

52. T}~c Prosecutor v. Jean de Dicu Kamt#lar~da 22 Jarmary 20()4 allegations relating specifically to the massacres at the Catholic Parish of Gishaka. The Indictment said nothing about the massacres in the Catholic Parish of Gishaka. Accordingly, the Defence argued that the Accused has not been properly informed as to the nature and the reasons underlying the accusations brought against him in that regard. 37 The Defence thus submitted that the Indictment, the pre-trial brief and the evidence disclosed pursuant to Rule 66 do not refer to the massacres in the Parish of Gishaka. It argued that it was only at the time of the Motion to amend the Prosecution list of Witnesses 38 that the Accused understood that the Prosecution was also imputing to him responsibility for the massacres at the Parish of Gishaka. 39 The Defence relied on the jurisprudence of this Tribunal as well as on ICTY jurisprudence. 4° In response to this issue, the Prosecution, during its oral closing statement, recalled that the Defence, raised a few preliminary matters on the vagueness of the indictment to the effect that the crimes the Accused was alleged to have committed in Gishaka were not properly before this court. In response, the Prosecution argued that the indictment was not vague. The Prosecution stated that the testimony of the crimes committed were properly before this court and they were

validly pleaded and led in evidence. The Prosecution informed the Court that these were matters the Court was entitled to take cognisance of and that the Court could find the defendant guilty on this basis. 41 2. Discussion 53. The relevant paragraphs of the Indictment are paragraphs 6.44, 6.45 and 6.46 54. In the Prosecution Pre-Trial brief, Gishaka is mentioned once in the Annex summarizing the statement of Prosecution Witness GAB .42 55. The Prosecution Pre-Trial brief also mentioned Gicaca in the Annex summarizing the statement of Prosecution Witness GEU. 43 37 Ibid, para.

1811. At para, 1821, the Defence specifically submit that, "It does not expect the Prosecution to identify persons who were killed However, the Prosecution is required to mention in the indictment that the Accused directed massacres in the Catholic Parish of Gishaka and that it should specify the date and circumstances pursuant to which the accused allegedly directed the attack." 38 Kamuhanda, Decision 6 February 2002, To The Prosecutor’s Motion To Add Witnesses (TC). 39 Defence Closing Brief (English Translation), para. 1835. 40 Semanza, Judgment (TC); Kupreskic et. al Judgment (AC), paras. 78 - 41 T. 27 August 2003, p. 59. 42 Prosecution Pre-Trial brief, 30 March 2001, p. 20. 43 Prosecution Pre-Trial brief, 30 March 2001, p. 21. - 15-

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56.

57. The Proscct.l~or v. Jean d,c Dicta Karntlhar~da 22 JarlLlarv 2004 In its opening statements (17 April 2001 and 3 September 2001) the Prosecution did mention that a massacre took place at the Catholic Church in Gishaka close to Gikomero, on the same day [12 April 1994] and that one Witness, GET, whose statement had been available for a long time, would give evidence about the mass graves that were found at Gishaka and the approximate dates of the massacres. 44 Relating to this issue, the Chamber recalls its Decision dated 6 February 2002.45 The Chamber, in that decision, disposed of a Prosecution Motion to amend its list of Witnesses in order to add three Witnesses who would testify on the Catholic Parish of Gishaka. In the Decision, the Chamber considered the Defence argument that allegations with regard to the Parish were vague because they were neither mentioned in the Indictment against the Accused, nor in the Pre-trial Brief. On this issue, the Chamber ruled thus: 58. "The Chamber is of the opinion that, although events at Gishaka Parish were not directly referred to in the Indictment against the Accused, the said Indictment states that the Accused is alleged to have "[s]upervised the killings in the area [Kigali-Rural]" during the month of April 1994. The Chamber notes that Gishaka Parish is in a Commune located in the PrOfecture of Kigali- Rural and

that similar mention of the activities of the Accused can be found in the Prosecutor’s Pre-Trial Brief. Additionally, the Prosecutor points out that her opening statement sets out allegations with respect to the involvement of the Accused in events that occurred in Gishaka Parish. It is also noted that the Prosecutor filed exhibits identifying locations at the Gishaka Catholic Parish. ’’46 The Chamber further considered that it was necessary to give the Defence sufficient time to prepare for the cross-examination of the said three Witnesses. Hence, the Chamber directed that they be heard at a subsequent trial session. 47 3. Findings 59. The Chamber notes that it is alleged at para. 6.44 of the Indictment that the Accused had family ties to Gikomero commune, Kigali-Rural prefecture, and that during April 1994 he supervised the killings in the area. At paragraph 6.45 of the Indictment, it is alleged more specifically that the Accused was responsible for the massacres at Gikomero Parish in 44 T. 3 September 2001, p. 19. 45 Kamuhanda, Decision 6 February 2002, To The Prosecutor’s Motion To Add Witnesses (TC). 46 Kamuhanda, Decision 6 February 2002, To The Prosecutor’s Motion To Add Witnesses (TC). para. 13. 47 Kamuhanda, Decision 6 February 2002, To The Prosecutor’s Motion To Add Witnesses (TC), para. 15. 16-

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The Prosecutor v, Jean de Dieu KarnLihanda 22 January 2004 Judgmc~:t a~:~d Sentence Gikomero commune, Kigali-Rural Prefecture. The Chamber finds that the precision made in paragraph 6.45 of the Indictment does not preclude evidence tending to substantiate the allegation made at paragraph 6.44 of the Indictment that the Accused had supervised the killings in the area of Kigali-Rural prdfecture in April 1994. Thus, the Chamber finds that the Indictment is not vague and that it sufficiently gave the Defence notice of the allegations relating to Kigali-Rural Prdfecture within which the Catholic Parish of Gishaka is located.

60. Moreover, the Chamber recalls its Decision of 6 February 2002 mentioned above whereby the Defence was given time to prepare its cross- examination of the additional Witnesses who were to testify on the Catholic Parish of Gishaka. In the circumstances, the Chamber finds that no prejudice would have resulted to the Defence. C. In and out of Court Identification of the Accused by the Prosecution.

1. Allegations 61.

62. The Defence points out that the Prosecution had its Witnesses identify the Accused by two methods: in and out of court. For the out of court identification the Defence recalled that the Prosecution presented a picture to the Witnesses from which they were supposed to identify the Accused. The Defence argued that contrary to the established methods set up by the Tribunal for the identification of Witnesses, the Prosecution used methods that ought to be entirely unacceptable to this Tribunal. The Defence stated that the methods used by the Prosecution significantly departed from customary methods of identification. 48 The Defence reminded the Court that in the picture that was used by the Prosecution in the identification process, the Accused was the only man with a group of females and also that the Accused had a red mark on his shirt which was meant to make the identification even easier. The Defence recalled also that the second picture used for identification was just an enlargement of the earlier one, which then amounted to the fact that only one picture was indeed used for the process of out-of-court identification by the Witnesses. 49 Secondly, as regards the in-court identification, the Defence recalled that the Prosecutor asked several Witnesses to point out the Accused in the Courtroom where the Accused was flanked on both sides by two uniformed guards, while the rest of the people at the Defence side of the 48 Defence Closing Brief, para. 433. 49 Defence Closing Brief, para. 458. 17-

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The Prosecutor v ,tern1 de Dicu K.amuhanda 22 ,lanumv 2004 Judtv.nclrt and Scntcncc 4.’ Courtroom were women, s° This, in the opinion of the Defence, made the identification of the Accused all the more improper.

2. Discussion and Conclusion 63. 64.

65. The Chamber notes that in Court the Witnesses were not asked to look at a specific part of the Courtroom to identify the Accused. The Chamber is mindful of the fact that the Witnesses were asked to look in the Courtroom as a whole and see if they could identify the Accused. The Chamber notes further that the process of the identification of the Accused in the Courtroom does not stand in isolation: it is rather part of a process, the culmination of which is the identification of the Accused in the Courtroom. The Chamber has also noted the Defence submission on the issue of the identification through the use of photographs. All these issues have been considered in the assessment of the evidence in the case. The Chamber has assessed the credibility of each Witness, bearing in mind all the factors argued in favour and against each Witness. D. The Defenee Contention that the Citizens of Gikomero Were Surprised by the Attacks and That the Assailants Came from Rubungo.

1. Allegations 66. The Defence, in their case, sought to show that the killers at Gikomero on 12 April 1994, came from Rubungo and were not Interahamwe from the Gikomero commune. The Defence recalled the evidence of its Witnesses that the assailants came from Rubungo.SlThe Defence stated further that assailants from Rubungo forced residents of Rubungo village to flee to the Gikomero Parish where they killed them. The Defence asserted that this supported their theory that the Accused was not in any way connected to the massacre at Gikomero Parish. The Defence recalled further that one Bucundura, a pastor from Rubungo, was the first person to be killed when the lnterahamwe arrived. The Defence stated that this fact established their theory that the killers were from Rubungo and not Gikomero as had been stated by the Prosecution Witnesses. s2 50Defence Closing Brief, para. 463-465. 51 Defence Closing Brief, para. 1525. 52 Defence Closing Brief, para. 1526. - 18-

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The Prosecutor v. 3ean dc Dicu Kamuhanda 22 Jarmarv 2004 2. Discussion and Conclusion 67. The Chamber finds that there is no conclusive evidence that the attackers came from Rubungo.S3The Chamber also notes the evidence of Witness GECSathat local Hutus joined those who had arrived in vehicles. The Chamber has considered all the evidence tendered and finds that as far as the criminal responsibility of the Accused is concerned the issue raised by the Defence is not material. E. Defence Contention that Prosecution Witnesses Bore False Testimony against the Accused and That the Charges against the Accused are Fabrication 1. Allegations 68. 69.

70. The Defence asserted that Prosecution Witnesses bore false testimony against the Accused. The Defence Witnesses stated that any Witness who stated that the Accused was in the Parish of Gikomero or Gishaka was lying. 55 The Defence noted that one of the characteristics of the post-genocide period is the multiplication of false accusations, which are sparked by a wish to settle accounts. The Defence presented a Witness who testified that he was asked to falsely testify against the Accused. 56 The Defence attacked the credibility of most Prosecution Witnesses. The Defence submitted that most of the Witnesses who claimed that they saw the Accused at the Parishes of Gikomero and Gishaka did not know the Accused. The Defence further submitted that some of these Witnesses could not identify the Accused, even in the Courtroom. It was the theory of the Defence that these Witnesses were just out to discredit the Accused, an innocent man, and cause mischief.S7 2. Conclusion 71. The Chamber has noted this criticism levelled against Prosecution Witnesses. The Chamber does not, however, accept this sort of broad 53 For the Evidence on Gikomero Parish Compound attack, see below: Part III, Section F. 54 see below: Part III, Section F. 55 Defence Closing Brief, para. 1731. 56 Defence Closing Brief, para. 2755. 57 Defence Closing Brief, para. 1199. - 19-

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The Prosecutor v, Jean de Dieu K.arnuhanda 22 Jarmary 2004 challenge, especially as it is not substantiated by the evidence. The Chamber has assessed the credibility of each Witness on the basis of the specific factors relating to each Witness’s testimony. F. The Alleged Influence of the Accused. 1, Allegations 72. The Defence recalled the testimony of certain Prosecution Witnesses to the effect that the Accused was such an influential person that he could have supervised and directed the massacres committed in the commune of Gikomero in April 1994.58 The Defence further recalled that the Prosecution argued that the Accused’s influence was in the nature of holding a command position as a hierarchical superior. 59 The Defence maintains that the Prosecutor improperly applied the command doctrine of liability of the hierarchical superior. The Defence, on its part, maintains that the Accused was not an influential person at the national, communal or local level. 6o 2. Conclusion 73. A general review of the evidence shows that the Accused held a prominent position in the country and this gave him certain influence in the Gikomero community. However, the Chamber analysed the evidence adduced in the case with the aim of determining any act or conduct of the Accused material to his criminal responsibility. The Chamber did not merely come to conclusions from a general assessment of his social, economic, or political status. G. The Personality of the Accused was Incompatible with the Description of the Person Presented by the Prosecutor.

1. Allegations 74. The Defence recalled the testimony of the Prosecution Witnesses who described the Accused. The Defence asserted that the character of the person that was described and presented by the Prosecution is entirely different from the character and the person of the Accused. The Defence recalled the testimony of the Prosecution that the Accused is a frenzied 58 Defence Closing Brief, para. 2933. 59 Defence Closing Brief, para. 2936. 60 Defence Closing Brief, para. 2936. - 20 -

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Thc Prosecutor v. Jean de Dicu Kamuhanda 22 January 2004 extremist and a notorious anti-Tutsi who entered Government in order to exterminate all Tutsi. The Defence stated that the Prosecution was unable to produce any document, speech, or policy paper to that effect. The Defence maintained that the Accused was not an extremist, as the Prosecution would have liked to prove61 but rather a calm and loving family man. 62 2. Conclusion 75. As stated before under Sub-section F of this Part, on influence of the Accused, the Chamber has assessed the totality of the evidence of the Witnesses in relation to all the acts and conduct of the Accused, as part of the process of assessing the Prosecution case. H. Prosecution Allegation That the Accused Was an Advisor to the President.

1. Allegations 76. The Defence recalled the allegation of the Prosecution that the Accused was an advisor to the President. The Defence asserted that the Accused was never an advisor to the President. 63 2. Conclusion 77. The Chamber finds that no evidence was brought to substantiate the allegation made by the Prosecution that the Accused was an advisor to the President of Rwanda. I. Defence Contention that the Accused Became a Member of the Interim Government under Duress 1. Allegations 78. The Defence further submitted that the Accused became a member of the Interim Government because his life and that of his family were threatened and at stake, and, as such, the Accused had no choice but to accept the position in the Interim Government. In these circumstances, submitted the 61Defence Closing Brief, para. 2807. 62Defence Closing Brief, paras. 2868 and 2929. 63Defence Closing Brief, para. 3567. - 21 -

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The Prosecutor v. Jean de Dieu Kamuhanda 22 January 2004 Defence, the Accused became a member of the Interim Government under duress. The Defence therefore maintained that the Accused should not be held liable in any way for the acts of the Interim Government as the Prosecution sought to do. 64 2, Conclusion 79. The Chamber has noted the submission of the Defence in respect of the appointment of the Accused to the Interim Government. The Chamber further notes that this appointment occurred in May after the events that are charged in the Indictment with regard to Gikomero commune. The Chamber therefore finds the evidence tendered relating to the appointment of the Accused to the Interim Government irrelevant to the acts and conduct of the Accused as regards events in the Gikomero commune.

80. Moreover, on the basis of the evidence heard at trial, the Chamber finds no merit in the contention that the Accused was reluctant to be appointed Minister. J. Alibi 81. Following the start of the trial, the Defence advanced an alibi pursuant to Rule 67 of the Rules of Procedure and Evidence. In his alibi, the Accused asserted that at all times material to in the Indictment, and especially from 7 to 17 April 1994, the Accused was not present during any of the massacres that occurred. 65 1. Applicable Law 82. Pursuant to Rule 67(A)(ii) the Defence shall notify the Prosecution of intent to advance an alibi as early as reasonably practicable, and in any event, prior to the commencement of the Trial. Although Rule 67(B) provides that the failure to give such notice does not limit the right of the Accused to rely on the alibi, the Chamber may take such failure into account when weighing the credibility of the alibi. 66 64 Defence Closing Brief, para. 3604. 65 Defence Closing Brief, para. 45 (English translation) and para 8 (French original). 66 Kayishema, Decision 3 September 1998 Rule 67 (A) (ii) (TC), (ICTR Reports, 1998, pp. 1003-1006) recalled in Kayishema and Ruzindana, Judgment (TC), para.

237. See also: Musema, Judgment (TC), para. 107; Niyitegeka, Judgment (TC), para. 50; Semanza, Judgement (TC), para.

82. The Appeals Chamber the Rutaganda ease stated that not withstanding Rule 67 (B) failure to raise the alibi in due time may have consequences on the Trial Chamber’s findings: Rutaganda, Judgment (AC), footnote 392. - 22 -

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The Prosccutor v. Jca~~ dc Dicu Kamuhanda 22 January 2004 2. The Burden of Proof Regarding the AHbi 83. As has been held by the Appeals Chamber in the Celibi6i Case, the submission of an alibi by the Defence does not constitute a defence in its proper sense. 67 The relevant section of the judgment reads: "It is a common misuse of the word to describe an alibi as a "Defence". If a defendant raises an alibi, he is merely denying that he was in a position to commit the crime with which he is charged. That is not a Defence in its true sense at all. By raising this issue, the defendant does no more [than] require the Prosecution to eliminate the reasonable possibility that the alibi is true. ’’68 84.

85. Therefore, as consistently held throughout the jurisprudence of the Tribunal and as asserted by the Defence, 69 when an alibi is submitted by the Accused the burden of proof rests upon the Prosecution to prove its case beyond a reasonable doubt in all aspects. 7° Indeed, the Prosecution must prove "that the accused was present and committed the crimes for which he is charged and thereby discredit the alibi defence". 71 If the alibi is reasonably possibly true, it will be successful. 72 Pursuant to Rule 67(A)(ii), the Defence is solely required at the pre-trial phase--in addition to the notification of his intention to rely on the alibi to disclose to the Prosecution the evidence upon which the Defence intends to rely to establish the alibi. 73 Thus, during the trial the Defence bears no onus of proof of the facts in order to avoid conviction. But, during the trial, the Accused may adduce evidence, including evidence of alibi, in order to raise reasonable doubt regarding the case for the Prosecution. 74 It must be stressed, however, that the failure of the Defence to submit credible and reliable evidence of the Accused’s alibi must not be construed as an indication of his guilt. 7s 67Delalic et al. (Celebici Case), Judgment (AC), para. 68Delalic et al. (Celebici Case), Judgment (AC), para. 69 Defence Closing Brief, para. 98. 70Kayishema and

Ruzindana, Judgment (TC), para. 234 - confirmed in Kayishema and Ruzindana, Judgment (AC), para. 113; Musema, Judgment (TC), para.. 108 - confirmed in Musema, Judgment (AC), para. 200; Ntakirutimana and Ntakirutimana, Judgment (TC), para. 294; Niyitegeka, Judgment (TC), para. 51. 71Musema, Judgment (AC), para. 205; Musema, Judgment (TC), para. 72Musema, Judgment (AC), para. 205-206; Musema, Judgment (TC), para. 108; Ntakirutimana Ntakirutimana, Judgment (TC), para. 294; Niyitigeka, Judgment (TC), para. 73Kayishema and Ruzindana, Judgment (TC), para. 111; Rutaganda, Judgment (AC), para. 74 Kayishema and Ruzindana, Judgment (TC), para. 111; Rutaganda, Judgment (AC), para. 75Kayishema and Ruzindana, Judgment (TC), para.. 112; Semanza, Judgment (TC), para. - 23 -

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Thc Proscct~or v..lean de Dictt Kamuhanda 22 Jarmarv 2004 Judgmcn-t and Scntc.ncc 3. Notice of Alibi 86. The Defence Notice of Alibi filed on 28 December 2000 states as follows That at all material times of the Indictment [sic] specifically related to the events unfolding from 7 April to 17 April 1994, Mr Jean De Dieu Kamuhanda remained at his home in Kigali without interruption, between 6 April and 18 April 1994. On 18 April he travelled to Gitarama, accompanied by his family and several neighbours.

4. Defence Statement of Alibi 87. The Defence asserted that the Accused, in compliance with Article 67 of the Rules, notified the Prosecutor of his intent to raise an alibi in support of his defence. The Defence asserted further that this notice was served in December 2000 and March 2001, prior to the presentation of the Prosecution case. The Defence stated further that the Accused provided the names and addresses of Witnesses and the places he was at the relevant times of the events. 76 88. The Defence submitted that by raising the alibi defence, the Accused not only denies that he committed the crimes for which he is charged but also asserts that, at the times that the alleged crimes were being committed, he was not at the scenes of the crimes. 77 89. The Accused testified that he learned of the death of President Habyarimana on the morning of 7 April 1994. He was at home in the company of his wife and two of his children, Rosine and Fernand. His two other childrenmlrrne and Ren6 were on vacation. Irrne was in Nyabikenke at her grandmother’s and Ren6 was at his aunt’s in Kimihurura, a neighbourhood of Kigali. 78 According to the Accused, he remained at home with his wife until 8 April 1994 when he went to pick up his son Renr, who at the time was four years old. His wife had gone to the residence of Defence Witness ALR in order to telephone her son Renr. She found him in a

state of great anxiety. Thereupon, the Accused decided to go and pick up his son as he could not bear the thought of remaining far from him knowing he was in such a state of anxiety. 79 90. According to the Accused, it took him two attempts to complete his mission to pick up Renr. During the first attempt, in the early morning, he was accompanied by one of Defence Witness ALS’ household staff, one Canisius, and by one Mr Karemera. The second time the Accused went 76Defence Closing Brief, para. 79 (English); para .43 (French). 77Defence Closing Brief, para. 80 (English); para 43 (French). 78Defence Closing Brief para 102 (English); para. 43 (French). 79Defence Closing Brief para 104 (English); para. 43 (French). - 24 -

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91.

92. The Prosecu+~or v Jean de Dicu Kamuhanda 22 Januat+v 2004 Judgmcnt arid Set+tc~~cc out, at the beginning of the afternoon, he was accompanied by a neighbour known by the nickname "Juif’. 8° The Accused testified that upon his return the family had already moved to the house of Defence Witness ALS, who lived next door, because it afforded better protection against flying bullets. The Accused further testified that during the evening of 8 April 1994, the family of Defence Witness ALR joined them at ALS’s house. Together they remained there until their departure on 17 April 1994. 81 The Accused testified that he did not leave his neighbourhood from 7 April 1994 until 8 April 1994 when he went to look for his son Renr: and that during the entire period of 7 April 1994 to 17 April 1994, he was in his neighbourhood with his family and neighbours and that they did not leave each others’ sides. 82 The Defence averred that during that period the Accused and his family shared meals in common in the home of ALS, and that the women and children slept inside the house while the men slept outside. 83 The Accused stated that on 17 April 1994, the situation in their Kigali neighbourhood of Kacyiru had deteriorated, forcing the Accused and his family to move several metres from the residence where they had spent the night. 84 On the moming of 18 April 1994, stated the Accused, he

visited the Hrtel des Diplomates, which was located near the military camp in Kigali city, to try and contact his friend General Gatsinzi, as the situation in the neighbourhood had deteriorated. The Accused testified further that General Gatsinzi provided them with a bus and that he and his family, ALS and her family and ALA and other neighbours got onto the bus and travelled to Gitarama from there. The Accused testified that they arrived at about 8:00pm on the night of 18 April 1994 and spent the night in the stadium. The following morning, he met Defence Witness ALB, who agreed to accompany him to Nyabikenke where his in-laws resided. The Accused returned at the stadium on the same day, still accompanied by ALB. After ensuring that ALS had departed for Butare, and ALR had left for her parents’ in Gitarama, the Accused returned to his own family. 8s 80 Defence Closing Brief, para. 103 (English); para. 43 (French). 81 Defence Closing Brief, para. 105 (English); para. 43 (French). 82 Defence Closing Brief, para. 107 (English); para. 43 (French). 83 Defence Closing Brief, para. 108 (English); para. 43 (French). 84 Defence Closing Brief, para. 112 (English); para. 43 (French). 85 Defence Closing Brief, para. 114 (English); para. 43 (French). - 25 -

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i~hc Prosecutor v. ]can de Dieu K.amuhanda 22 Jan uarv 2004 ]udgme~t and Sol,tenet 5. Evidence on Alibi a. Evidence of the Accused 93. The Accused, Defence Witnesses ALS, ALR, ALB, ALM and ALF, all testified regarding the whereabouts of the Accused between 7 April and 17 April 1994. BO o 6April1994 94. The Accused testified that on 6 April 1994, he went to work at 8:00am and at around 8:30 or 9:00am he went to the district of Zaza with a colleague called Jean D. Ndayisaba. 87 The Witness testified that the reason for this trip was to continue with the preparations for a mission to France planned to start on 9 April 1994. o 7 April 1994 95. The Accused testified that he was at home in Kigali with his wife and two children on the morning of 7 April 1994 when at around 6:00am his night watchman informed him of the death of the President. 88 The Accused testified that he did not go anywhere that day and remained at home the rest of that day. 89 o 8April1994 96. The Accused testified that at around 10:00am on the morning of 8 April 1994, he went to look for his son Ren6 who was staying with his aunt at Kimihurura, one of the districts of Kigali-Kacyiru commune, about two kilometres from the Accused’s house. 9° The Accused stated that he was accompanied by two people, Canisius, who was a member of Defence Witness ALS’ household staff and one Mr. Karemera who is a relative of the

Accused’s wife. 91 The Accused stated that on the first attempt to go to Kimihurura, they were unable to do so as there was a roadblock which had been set up and the people manning the roadblock began to shoot at 86Defence Closing Brief, para. 115 (English); para. 43 (French). 87T. 20 August 2002, pp. 59-60. 88T. 20 August 2002, p. 62. 89T. 20 August 2002, p. 63. 90T. 20 August 2002, pp. 69. 91T. 20 August 2002, p. 87 (ICS). - 26 -

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The Prosecutor v. Jean de Dicu Kamuhanda 22 Jammvv 2004 them. 92 The Accused stated that later that aftemoon he went out again to get his son from Kimihurura and that he was successful this time. On that occasion, stated the Accused, he was accompanied by a neighbour more commonly known by his nickname "Juif’.93 The Accused testified that on 8 April 1994, he moved his family from his house to the house of his neighbour Defence Witness ALS because they all felt that it was safer there94 and also because they wanted to keep ALS company as her husband was not in the country. The Accused does not specify in his testimony what happened on the night of 8 April 1994. The Accused stated that the family of ALR joined them at ALS’s residence either on the afternoon of 8 April 1994 or on the night of the next day, but he was unsure of the exact date. 9s o 9 to 16 April 1994 97. The Accused stated that after going to pick up his son from Kimihurura on 8 April 1994, he neither left the house of Defence Witness ALS where he was taking refuge with his family nor did he leave ALS’s residence until 17 April 1994, 96 when he fled to Gitarama with his family. The Accused stated that they all ate together and the men slept outside to protect the families. The Accused stated further that the men who were in the house stayed together 24 hours a day. The Accused testified that during that period he

saw his wife on short periods in the moming for tea and in the evening for dinner. 97 o 17 April 1994 98. The Accused testified that on the evening of 17 April 1994, due to the escalating insecurity, at around 6:00pm, he and his family, together with the families of ALS and ALR left the residence of ALS and spent the night at a military post located some 500 metres from ALS’s house. 98 92 T. 20 August 2002, p. 72. 93 Defence Closing Brief, para. 103. 94 T. 20 August 2002, p. 86 (ICS). 95 T. 20 August 2002, pp. 88-89 (ICS). 96 Defence Closing Brief, para. 105. 97 T. 21 August 2002, pp. 23-24. 98 T. 21 August 2002, pp. 29-30. - 27 -

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The Prosecutor v. Jear~ de Dicu Kamuhanda 22 Jarmarv 2004 Judgment and Scn:tc~-,cc o 18 April 1994 99. The Accused testified that on the moming of 18 April 1994, he went to the Hrtel des Diplomates which is located in the centre of Kigali where he contacted his friend General Gatsinzi, a ranking soldier from the prdfecture of Kigali and Chief of staff of the Rwandan Army in April 1994, by telephone from the hotel reception. 99 The Accused testified that two jeeps were given to them by General Gatsinzi and the various families got into the cars and they were dropped off at a military camp in Kigali. The Accused testified that he arrived at the military camp at around 2:00 or 3:00 o’clock in the afternoon. The Accused stated that from there they left for Gitarama and arrived there at between 8:00 and 8.30pm on the night of 18 April 1994. l°° b. Evidence of Defence Witnesses 100.Defence Witness ALS testified that she was a neighbour of the Accused in Kacyiru in Kigali in April 1994 and that they shared a wall between their 101 Defence Witness ALS houses which were less than a metre apart. testified that her house was situated in such a way that it was protected from the gunfire so the Accused and his family decided to move in with her. 1°2 101.She testified that she saw the Accused on the moming of 7 April 1994, when he came to her house to discuss the shooting down of the

President’s plane. 1°3 Defence Witness ALS stated that the Accused left Kacyiru only on two occasions during the period of 7 April 1994 to 18 April 1994. She testified that the Accused left her house on 8 April 1994 and went to Kimihurura (which is about 1.5 kilometres from Kacyiru) to pick up his son Ren6 who had gone to his aunt who lived in that area. Defence Witness ALS stated further that the Accused went on foot and that he was accompanied by ALS’s domestic servant. She stated that the Accused ~04 made two trips to Kimihurura that day before he was able to get his son. 102.Defence Witness ALS testified that she saw the Accused everyday during this period because he was living in her house. Defence Witness ALS stated that she could not specify the number of times she saw him during the day because they were always together. She stated that she never lost sight of him for longer than a two hour period. She testified that they 99 T. 21 August 2002, p. 38. 100 T. 21 August 2002, p. 39. 101 T. 28 August 2002, p. 138 (ICS). 102 T. 29 August 2002, p. 24 (ICS). 103 T. 28 August 2002, p. 144 (ICS). 104 T. 29 August 2002,p. 36 (ICS). - 28 -

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103. 104.

105. Fhc Prosectttor v. Jean de Dicu Kamuhanda 22 Januavv 2004 .ludgmcn-~ and Scntcncc shared meals together and that when he was not accompanied by the women, he was resting in the house, walking in an enclosed area or in the company of the other men in the house. 1°5 Defence Witness ALS stated that the Accused could not have left the quarters without her knowledge because she was always with the wife and the children of the Accused, and that the Accused could not have left Kacyiru without informing either his wife or his children. 1°6 Defence Witness ALS testified that the Accused was absent a second time on 18 April 1994, when he went to seek the assistance of his friend General Gatsinzi at the H6tel des Diplomates as the security situation had worsened. 107 Defenee Witness ALR testified that in April 1994 he lived in the Kacyiru neighbourhood of Kigali city, across from the Accused’s residence) °8 Defence Witness ALR testified further that he saw the Accused on the morning of 7 April 1994 when most of the residents in the Kacyiru neighbourhood came out of their houses and met by the roadside to talk about the shooting down of the President’s plane. 1°9 He testified further that he saw the Accused again later that day when he met with him in the afternoon to talk about what was happening in the country.ll°He testified that on 8 April 1994, he moved to the residence of ALS

for security reasons and the Accused was there as well.111 Defence Witness ALR testified that between 7 April 1994 and 18 April 1994, the Accused only left the house on two occasions. The first time was on 8 April 1994, when the Accused went to pick up his son Ren6 and the second time was on 18 April 1994, when the Accused went to seek assistance from his friend Gatsinzi. 112 Witness ALR stated that during the period of 8 April 1994 to 18 April 1994, he saw the Accused everyday. He stated that they were together every night. This was because from 8 April 1994, the men who were in ALS’s residence, which included the Accused, "Juif’, Revocate, ALA, Telesphore Jean-Baptiste, ALB and the Witness, carried out night patrols 113 in their quarters and they were always in a group. 105T. 29 August 2002, p. 47 and 48 (ICS). 106T. 29 August 2002, p. 49 (ICS). 107T. 29 August 2002, p. 53 (ICS). 108T. 3 September 2002, p. 33 (ICS). 109T. 3 September 2002, p. 33 (ICS). 110T. 3 September 2002, p. 41 (ICS). 111T. 3 September 2002, pp. 49 and 56 (ICS). 112T. 4 September 2002. p. 51. 113T. 3 September 2002, p. 58 (ICS). - 29 -

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106. 107. 108. 109. 110. 111. =Phc Prosecutor v. ,Icari de Dicu KamtlharMa 22 Jarmarv 2004 Defence Witness ALR further testified that after these night patrols, he always had tea with the Accused in ALS’s residence. He stated that the4Y all had their meals together and were at each other’s side during the day. Defence Witness ALR stated that during the period from 8 April 1994 to 18 April 1994, the Accused left the residence of ALS twice. The first time was on 8 April 1994, when the Accused went to fetch his son Renr, and the second time was on the morning of 18 April 1994, when the Accused went to see his friend General Gatsinzi.115 Defence Witness ALR testified that on the evening of 17 April 1994, the three families of ALR, ALS and Kamuhanda, left ALS’s house and sought refuge in a shelter designated by military personnel which was not far from their location. 116 In Cross Examination, the Prosecution pointed out to the Witness that, contrary to his testimony in court asserting that the Accused had left Kacyiru on 18 April 1994, he had, in a prior statement to the Investigators from the Office of the Prosecutor, asserted that the Accused left the Kacyiru neighbourhood on 12 April 1994. The Prosecution also pointed out that Witness ALR had omitted to mention to the investigators that his family and that of the Accused had left Kacyiru with the family of Witness ALS. 117 The

Witness explained that he had made a mistake during his Witness statement. The Witness testified that he realised his mistake when he spoke to his wife later that evening after speaking to the investigators. The Witness stated that it was during the conversation that his wife reminded him that the correct date of their families’ departure from Kacyiru was 18 April 1994 and not 12 April 1994.118 The Witness testified further that he did not make any attempt to inform the investigators of his mistake. 119 Witness ALR testified that he forgot to mention that the family of Witness ALS travelled with the Kamuhanda family from Kacyiru. 120 Defence Witness ALB testified that he was one of the neighbours of the Accused. He stated further that he had known the Accused since 1975 when they were both students. 121 Defence Witness ALB stated that his family and that of the Accused had, for security reasons, moved to stay in the house of Witness ALS on 8 April 1994.122 114T. 3 September 2002, p. 59 (ICS). 115T. 3 September 2002, p. 59 (ICS). 116Defence Closing Brief, para. 140. 117T. 4 September 2002, p. 31. 118T. 4 September 2002, p.29. 119T. 4 September 2002, p. 47-49. 120T. 4 September 2002, p.29. 121T. 5 September 2002, p. 100. 122T. 5 September 2002, p. 100. - 30 -

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The Proscct~tor v. Jean de Dicu Kamuharlda 22 Janumv 2004 112.He testified that during this period, he saw the Accused several times in a day. On 7 April 1994, Witness ALB stated that he was with the Accused and they discussed the security situation in Kigali. 123 On 8 April 1994, Defence Witness ALB testified that the Accused went out to find his son Renr, he stated that the Accused came back at 12:00 noon without his son and went out again and came back at around 3:00pm in the afternoon, this time with his son.124 Defence Witness ALB testified further that on the night of 8 April 1994, he began security patrols accompanied by the Accused and Defence Witnesses ALR and ALA. He testified further that he was with the Accused from 8 April 1994 to 14 April 1994.12s 113.Defence Witness ALB stated that he, the Accused and the others were together every night, throughout the night, until approximately 6:00am the next morning. Defence Witness ALB stated further that he saw the Accused during the day from approximately 10:00am till noon each day when they met and carried out patrol of their quarters. He testified further that they had lunch at noon each day and rested after that until about 2:00pm; and then met again after dinner which was between 6:00 and 7.30pm each day. Defence Witness ALB testified that he saw the Accused everyday between 8 April 1994 and 14 April 1994 and

that there that the Accused could not have left the quarters within that period of time. 126 114.Defence Witness Ingabire Theopitse Kamuhanda (ALF) is the wife the Accused. She testified that the Accused could not have travelled to Gikomero between 6 and 18 April 1994; because, first, they did not leave each other’s side during the said period and, secondly, access to the Gikomero commune was impossible. 127 115.Mrs Kamuhanda testified that on 8 April 1994, the Accused went to Kimihurura to look for their son Renr, who was staying with the Witness’ sister. 128 The Witness stated that the Accused twice attempted to go for his son, once in the morning and later on in the afternoon, before he was able to get him from Kimihurura. She testified that on both occasions, he went on foot and was accompanied the first time by a gentleman known as Innocent Karemera and the second time by someone known as "Juif". 129 The Witness stated that from 8 April 1994 to 17 April 1994, a routine was set up and followed by the men who were in the residence of ALS and the Accused was a part of it. She testified that the men met from 4:00pm to 6:00pm each afternoon. At 6:00pm, they would all go and spend the night 123T. 5 September 2002, p. 102. 124T. 5 September 2002, p. 107. 125T. 5 September 2002, p.109. 126T. 5 September 2002, p. 111. 127Defence Closing Brief, para. 147. 128T. 9 September 2002, p. 155. 129T. 9 September 2002, p.156. -31 -

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116.

117. The Pro~.ecutor v..learl de Dicu Kamtdlanda 22 Jar~uarv 2004 outside retuming in the moming towards 6:00am. The men, the Accused included, would have breakfast and then rest till 10:00am. Between 10:00am and 12:00 noon or l:00pm, they would meet again. At l:00pm, they would have lunch and thereafter rest. They would meet again at 4:00pm and the cycle would begin again. 13° The Witness testified that this pattern was followed as closely as possible from 8 April 1994 to 17 April 1994, although there were some days when the shelling and bombardment were so intense that the men, including the Accused, stayed inside the house and did not venture outside. TM Thus when her husband was not with the family, he was with the other men, conducting patrols in the neighbourhood within calling distance. 132 Mrs Kamuhanda testified further that due to the intensive fighting in Kacyiru, a decision was made on 17 April 1994 to leave the neighbourhood. She testified that all the families present in the house of ALS, did not spend the night of 17 April in ALS’s residence but rather spent the night outside at a house which was guarded by two soldiers. 133 She testified that on the morning of 18 April 1994, the Accused left ALS’s house with Defence Witness ALR and sought out his friend General Gatsinzi who provided them with a Jeep that took them ( the families of the Accused, ALR and ALS) all

to Camp Kigali. TM She testified that at Camp Kigali, they got on a bus which took them to Gitarama. 135 Defenee Witness ALM testified that he lived in Kacyiru south in 1994, which is about 1.5 kilometres from the Accused’s neighbourhood. He testified that he saw the Accused twice during the period of 8 April 1994 to 17 April 1994.136 He testified that he saw the Accused around 10 April 1994, when he went to the Accused’s neighbourhood. He stated further that the Accused was standing close to his house with Witness ALR and some other people who the Witness did not know. Witness ALM stated that it was around 2:00pm in the aftemoon and that he spoke to the Accused for about twenty minutes. 137 Witness ALM testified that he saw the Accused again around 13 or 14 April 1994 before he left Kacyiru. 138 He testified that he saw the Accused at practically the same place he had seen him earlier on 10 April 1994. On the road in front of his house with the same people that he was with on 10 April 1994.139 Witness ALM stated that he talked with the Accused and those he was with for a few minutes. He asked them if there was a general migration of people to their 130T. 131 T. 132T. 133 T. 134 T. 135 T. 136 T. 137T. 138T. 139 T. 9 September 2002, pp. 163 and 164. 9 September 2002, p. 163. 9 September 2002, p. 164. 10 September 2002, p. 9. 10 September 2002, pp. 7 and 8. 10 September 2002, p. 10. 4 September 2002, pp.81and 82. 4 September 2002, pp.82,83 and 84. 5 September 2002, p.6. 5 September 2002, p.6. - 32 -

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The Prosecutor v, Jean de Dieu Kamuhanda 22 darmarv 2004 Judgmcnt and Scntc.ncc neighbourhood, as he saw happening in his, due to increased fighting in areas beyond Kacyiru. He testified that after the Accused and his group replied him in the negative, he promptly left and went back to his own quarters. ~ 40 6. Prosecution Allegations on Alibi 118. 119. 120.

121. The Prosecution in their case contended that the Defence alibi was contrived after the Accused knew the nature of the case against him. The Prosecution maintained that the Accused went out of his way to procure Witnesses to try and bear out his contrived alibi. 141 The Prosecution maintained that the evidence they presented during their case-in-chief, did not place the Accused at his residence at all relevant times. The Prosecution maintained that the Accused had ample opportunity to travel to Gikomero to commit all the crimes alleged against him. 142 The Prosecution stated that the testimony of the Defence Witnesses lacked credibility and that the Chamber should not rely on them. The Prosecution stated further that the Defence Witnesses should not be believed as every alibi Witness was a friend, a colleague or a Hutu who shared his political leanings. The Prosecution maintained that all the Defence Witnesses were biased and therefore their testimonies ought to be disregarded by the Chamber. m The Prosecution stated further that the testimonies of the Defence Witnesses should not be given credence as they contradicted each other and these testimonies were simply attempting to "fit around the Accused’s contrived story. ’’144 The Prosecution maintained that the alibi theory being propounded by the Accused did not exclude the possibili~of the

Accused travelling back and forth between Kacyiru and Gikomero. The Prosecution in attacking the alibi of the Accused enumerated the various inconsistencies in the testimonies of the various Defence Witnesses. They include the following. 140T. 5 September 2002, p.7. 141Prosecution Closing Brief, para. 611. 142Prosecution Closing Brief, para. 611. 143Prosecution Closing Brief, para. 613. 144Prosecution Closing Brief, para. 614. 145Prosecution Closing Brief, para 615. - 33 -

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The Prosccutor v, Jean de Oicu kamuhanda 22 J armarv 2004 Judgment and Scmc~cc a. The Accused’s Attempts to Retrieve His Son. 122. 123. 124.

125. The Prosecution recalled that during his testimony, the Accused stated that on his first attempt to retrieve his son, he was accompanied by Canisius (ALS’s domestic employee) and Karemera. The Prosecution recalled further that during his testimony, the Accused referred to the companions as houseboys. The Prosecution however noted that Karemera is also referred to as a family friend or relative, later in the testimony. 146 The Prosecution reminded the Court that the testimony of Defence Witness ALS is different from that of the Accused. She testified that the Accused was accompanied by Canisius on both attempts to retrieve his son. ~47 The Prosecution recalled that during the interview of Witness ALR on 12 March 1999, he stated that to his knowledge, the Accused went to Kimihurura somewhere between 9 and 10 April 1994.148 The Prosecution recalled the testimony of Defence Witness ALB, that on the first attempt to retrieve his son, the Accused was accompanied by a member of the family of the Accused’s wife. 149 b. Reasons Why the Accused Returned after the First Attempt. 126.

127. The Prosecution reminded the Court that the Accused stated in his testimony that on his first attempt to get his son, he was unable to make it as he was shot at by men guarding a roadblock who were not wearing uniforms. 150 The Prosecution recalled further that during the testimony of Witness ALS, she made no mention of any shooting at the Accused. Rather she testified that at the Accused’s first attempt to fetch his son, he was met by a group of soldiers who told him to go back. 151 146T. 20 August 2002, pp,82 and 87 (ICS). 147T.29 August 2002, p.50; T. 2 September, p.64. 148Witness Statement 12 March 1999. 149T. 5 September 2002, p.107. 150T. 20 August 2002, p.72. 151T. 29 August 2002, p.36. - 34 -

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Thc Prosccu,or v, .Jean de [)icu Kamuhanda 22 .la nuarv 2004 JudgmcNt and Scrit:cncc 128.The Prosecution recalled the testimony of Witness ALB who stated that he was told that on the first attempt by the Accused to retrieve his son, he witnessed a shooting which is why the Accused returned, ls2 c. Accused’s Second Attempt to Retrieve Son 129. 130. 131.

132. The Prosecution recalled the testimony of the Accused that on his second attempt to retrieve his son, he was accompanied by Nizeyimana "Juif’. ls3 The Prosecution reminded the Court of the testimony of Witness ALS that the Accused was accompanied by Canisius a houseboy on his second attempt to retrieve his son. 154 The testimony of Witness ALB was noted by the Prosecution that on his second attempt to retrieve his son, the Accused was accompanied by Juif. 155 The Prosecution referred the Chamber to the differences between the testimonies of the Witnesses regarding those who accompanied the Accused when he went to look for his son. d. Discussion to Move to ALS’s House 133. 134.

135. The Prosecution recalled that during the testimony of the Accused, he stated that there was no discussion on whether or not to move to ALS’s house. 156 The Prosecution also recalled the testimony of Witness ALS who stated that she raised and discussed with the Accused, the matter of moving to her house. 157 The testimony of Defence Witness ALB on this matter was that he spoke of moving to ALS’s house with the Accused and they decided to move. 152T. 9 September 2002, p..155. 153T. 20 August 2002, p. 87 (ICS). 154T. 29 August 2002, p. 37. 155T. 5 September 2002, p. 107; T. 9 September 2002, p. 156. 156T. 27 August 2002, p. 66. 157T. 2 September 2002, p. 41. - 35 -

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Thc Prosecutor v. Jean de Dicu Kamuhanda 22 Jarmarv 2004 e. Decision to Move to ALS’s House 136.The Prosecution recalled the testimony of the Accused that the parties present for the decision to move were Defence Witness ALS, the wife of the Accused and the Accused himself. The Accused claimed that no one else was present when the decision was made. 158 137.The Prosecution reminded the Court of the testimony of Defence Witness ALS who stated that Defence Witness ALR was present when the decision to move to ALS’s house was made. 159 f. Parties Living at ALS’ house; Alibi and Notice of Alibi 138. 139. 140.

141. The Prosecution recalled that in the original notice of alibi dated 10 April 2001, the Defence stated that Defence Witness ALB was resident in ALS’s house during the period from 8 April 1994 to 18 April 1994. The Prosecution reminds the Court that when the Defence tendered the Revised Notice of Alibi, the claim that Defence Witness ALB lived in ALS’s house during that period had been struck out. The Defence now stated that ALB was not livin§ in the house of ALS during the period of 8 April 1994 to 18 April 1994. The Prosecution recalled the testimony of Defence Witness ALB. The Prosecution notes that during the interview at his home and during his testimony in court, Defence Witness ALB stated that he did not live in other people’s homes during the period following 7 April 1994. He stated that he slept in his own house during the period from 7 April 1994. The Prosecution noted the testimony of Defence Witness AG who is the mother-in-law of the Accused. The Prosecution noted that in her Witness statement on 31 July 2002, the Witness AG stated that the wife of the Accused never told her that she spent a few nights in another house in Kigali. TM The Prosecution reminded the Court that during her testimony in court, however, the Defence Witness AG recalled suddenly that the family of the Accused and other neighbours had assembled in the house of one of the neighbours. 162 158T. 27 August 2002, p. 68. 159T. 2 September 2002, p. 45. 160T. 27 August 2002, p. 93. 161T. 12 September 2002, p. 47. 162T. 12 September 2002, p. 48. - 36 -

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The Prosccu~:or v..tear~ de [)icu Kamuhanda 92 Jar~uarv ~_.( 04 ,!udgmcnt and Scntcncc g. Organisation of Patrols 142. 143.

144. The Prosecution recalled the testimony of the Accused that they spent the night of 7 April 1994 outside. 163 He later stated that he did not go outside on the night of 7 April 1994 but rather stayed inside the house.164 The Prosecution recalled further the testimony of the Accused that during the day he slept outside with the group with whom he patrolled the area. 165 The Prosecution recalled the testimony of Defence Witness ALS that the men, including the Accused, returned at dawn each day and slept in the sitting room and in the corridor. 166 The Prosecution recalled the Witness statement of Defence Witness ALB given to the Office of the Prosecutor on 5 January 1997. The Prosecution recalled further that he stated that he stayed in Kigali for a week with his family, after which he left the neighbourhood. 167 The Prosecution noted that he did not tell the investigators that he participated in neighbourhood patrols. 168 The Prosecution noted however that during his examination-in- chief, Witness ALB testified that he and the Accused had been involved in night patrols which was contradictory to his earlier statement given to the Office of the Prosecutor on 5 January 1997.169 h. Night Patrol Systems 145.The Prosecution recalled that the Accused stated that there was no roster or system concerning protection of the house. 17° The

Prosecution noted that the Accused later testified that there was a system. 171 146.The Prosecution recalled also the testimony of Witness ALR that the men were involved in what was traditionally known as night patrols 172 and that the night patrols were organised in such a manner. 173 163T. 27 August 2002, p. 59. 164T. 27 August 2002, p. 59. 165T. 27 August 2002, p. 89. 166T. 2 September 2002, p. 76. 167Witness Statement 5 January 1997, p. 825. 168T. 9 September 2002, p. 48. 169T 5 September 2002 p. 121. 170T. 27 August 2002, p. 61. 171T. 27 August 2002, p. 88. 172T. 3 September 2002, p.58 173T. 27 August 2002, p. 69. - 37 -

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Thc Prosccutor v. Jean de Dicu Kamultarlda 22 Jarmm~v 2004 i. Trajectory of Bullets 147. 148, 149. The Prosecution recalled that the Accused testified that his house acted as a shelter for the bullets that might have hit ALS’s residence. 174 The Prosecution recalled also the testimony of Defence Witness ALS that the bullets came from the right side of the house and flew over the house of Witness ALS. 175 The contradicting testimony of Defence Witness ALR that the bullets came from the north has been noted by the Prosecution. 176 j. Date the Accused Left for Gitarama 150. 151.

152. The Prosecution recalled that the Accused stated that he left on 18 April 1994 with his family to Gitarama. The Prosecution reminded the Court that the Accused stated that this was done with the help of ALS and ALR’s family. 177 The Prosecution recalled further that the Accused stated that he went with ALR’s vehicle and a driver. 178 The Prosecution recalled the testimony of ALS that they left for Gitarama on 18 April 1994.179 The Prosecution drew the attention of the Chamber to the contradictory evidence of Witness ALR. The Prosecution recalled that during his Witness statement given to investigators from the Office of the Prosecutor on 12 March 1999, Defence Witness ALR stated that the Accused and his family left Kacyiru on 12 April 1994. The Prosecution recalled that the Witness when testifying in court at a later date stated that the Accused left Kacyiru on 18 April 1994.18° The Prosecution noted that a second inconsistency was the fact that Witness ALR only mentioned the departure of his family and that of the Accused. The Prosecution noted that Defence Witness ALR did not make any mention of the departure of Defence Witness ALS and her family. 181 174T. 27 August 2002, p. 70. 175T. 29 August 2002, p. 33. 176T. 3 September 2002, p. 48 177T. 21 August 2002, p. 37. 178T. 21 August 2002, p. 38. 179T. 29 August 2002, p. 53. 180T. 4 September 2002, p. 29. 181T. 4 September 2002, p. 30. - 38 -

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I"hc Prosccutor v. Jean de Dieu K.amuhanda 22 Jal:marv 2004 k. Bus Trip to Gitarama .}udgmcnt and Sc,ltcl~cc 153.

154. The Prosecution recalled that the Accused testified that on the bus trip to Gitarama, he was sitting next to Enzi Muleka’s wife and that he did not get up at any time during the trip. 182 The Prosecution reminded the Court of the contradicting testimony of Defence Witness ALS that on the bus trip to Gitarama, the men remained standing and the Prosecution also recalled her testimony that the Accused stood in front of her during the journey. 183 1. Showing of Identity Cards. 155.

156. The Prosecution recalled the testimony of the Accused that on the bus trip to Gitarama, the group had to show their identity cards to men who were not in uniform and who were not armed.184 The Prosecution further recalled that the Accused stated that the bus had no military escort. 185 The Prosecution reminded the Court of the contrasting testimony of Defence Witness ALS that on the journey to Gitarama, the group was not required to show their identity cards 186 and further more that there was a military officer on the bus with them. 187 m. Gitarama Stadium 157. 158.

159. The Prosecution recalled the testimony of the Accused that he spent two nights at the Gitarama stadium with Defence Witnesses ALS and ALR. 188 The Prosecution reminded the Court of the contrasting testimony of Defence Witness ALS that she spent only one night at the Gitarama stadium after which she left. 189 The Prosecution noted the testimony of the wife of the Accused that the Accused spent at least two nights at the stadium in Gitarama. 19° 182T. 28 August 2002, p. 10. 183T. 2 September 2002, p. 99. 184T. 28 August 2002, p. 12. 185T. 28 August 2002, p. 6. 186T. 2 September 2002, p. 57. 187T. 2 September 2002, p. 95. 188T. 21 August 2002, p. 42. 189T. 29 August 2002, p. 76. 190T. 11 September 2002, p. 6. - 39 -

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Thc Prosecutor v Jean de Dicu Kamuhanda 22 January 2004 Judgmcn:t and Scntencc 160.The Prosecution also recalled the testimony of Defence Witness AG, the mother-in-law of the Accused, that the family of the Accused spent a night at Gitarama stadium.191 n. Presence of Interahamwe in the Kacyiru Neighborhoods. 161.

162. The Prosecution recalled that the Accused initially stated that there were no Interahamwe in his neighbourhood. He later changed his testimony by stating that the lnterahamwe were everywhere but he did not see them during that period. 192 The Prosecution reminded the Court of the testimony of Defence Witness ALS that there was a small wood in the area of Kacyiru where the Interahamwe used to meet. 193 o. Relationship Between the Accused and ALB 163.In discussing the relationship between Witness ALB and the Accused the Prosecution noted the testimony of the Accused that he knew Defence Witness ALB since 1974 but they were not friends. 194 The Prosecution also noted the testimony of Witness ALB who stated that the Accused was his neighbour but there was no special relationship between them. 195 The Prosecution noted the apparent contradiction by the wife of the Accused who testified that the Defence Witness ALB was a long time friend of the Accused. 196 The Prosecution was of the view that the Accused and Witness ALB sought to hide their friendship so that it will not seem as if the Defence Witness ALB’s testimony was biased in favour of the Accused.

7. Findings a. Discussion 164.The Chamber notes that there is no issue raised by the Prosecution regarding the alibi notice in terms of its delivery, timeliness or content. 165.The Chamber has made a finding on the Alibi of the Accused after a careful consideration of the testimony of the various Prosecution 191T. 12 September 2002, p. 46. 192T. 28 August 2002, p. 109. 193T. 3 September 2002, p. 25. 194T. 27 August 2002, p. 51. 195T. 5 September 2002, p.100. 196T. 10 September 2002, p. 44. - 40 -

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166. 167. 168. 169. 170.

171. The Pr~secu~:or v Jean dc I)icu K.amuhar~da 22 .tanuarv 2004 Witnesses who testified that they saw the Accused in Gikomero commune in April 1994. The Chamber has carefully considered the alibi of the Accused and the Defence Witnesses and finds as follows : The Chamber finds that the Accused may have been in the Kacyiru area at some time during the period of 7 April 1994 to 18 April 1994. The Chamber finds, however, that this did not preclude him from travelling to the Gikomero commune at times during the same period. The Chamber has weighed the testimony of the different Defence Witnesses and finds that their testimony as to what exactly took place at Defence Witness ALS’s house has significant contradictions. The Chamber particularly notes the testimony of Witness ALS. She testified that the Accused never left her house except on 8 April 1994 when the Accused attempted twice to retrieve his son Ren6 from Kimihurura, succeeding only on the second attempt. She testified that she saw the Accused practically 24 hours a day and that the Accused never left the house again until 18 April 1994. She testified that it was impossible for the Accused to have left the house without her knowledge, considering especially that she was always in the company of the Accused’s wife. Concurring with ALS, Mrs Kamuhanda also testified that she was always in the company of the

Accused, never taking her eyes off him. Clearly, there is a potential for bias in the evidence of ALS and Mrs Kamuhanda. The one Witness is the wife and the other a family friend and neighbour with whom the Kamuhanda family may well have gone through a difficult time together. Although a potential for bias tends to taint the testimony of a Witness, since it is harder to show that such evidence is independent of all motives of interest, this will not always be the case. There may indeed be instances when the testimony of a Witness with a basis for bias may come with evident indicia of reliability which will assist the search for the truth. That said, it needs also be said that the evidence of a Witness from whom bias might be expected is not helped by material contradictions. And such is the case with the testimonies of ALS and Mrs Kamuhanda. The Chamber finds that it is the Accused himself who contradicts the testimony of Witness ALS and his wife, when he testified that he did not see his wife much during the period of 7 April 1994 to 17 April 1994. The Chamber notes that the Accused testified that he saw his wife twice or sometimes three times during the day. The Chamber recalls that the Accused testified that he saw his wife in the mornings for tea, in the afternoon for lunch and sometimes he saw her for dinner. It thus becomes difficult to rely on the evidence of ALS and Mrs Kamuhanda when they testified that the Accused never left Kacyiru between 7 April - 41 -

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172. 173. 174.

175. Thc Prosecutor v. Jean dc Dicu Kamuhanda 22 _tarmarv 2004 Judgment and Scratch}co 1994 and 17 April 1994 because they were with him all the time and he never left their side so as to be in Gikomero on 12 April 1994 and commit the crimes alleged. The Chamber has also noted the evidence of Defence Witness ALR. During his cross-examination, it was pointed out that he had no independent recollection of the dates involved in the alibi. Specifically, he admitted that he was mistaken when he told the investigators of the ICTR Prosecutor’s Office that the Accused left Kacyiru on 12 April 1994; and that it was his wife that reminded him that it was on 18 April 1994 that they all left Kacyiru, including the Accused and his own family. In view of this, the Chamber feels unsafe relying on this Witness as regards the other dates to which he testified in relation to alibi. The Chamber has considered the testimonies of Witnesses ALR and ALB and finds that there are some contradictions in their testimonies. The Chamber considers that if these Witnesses were together as they claimed to be, 24 hours a day, seven days a week, then it is most inconsistent that they should have differing accounts of what happened. The Chamber has also noted that the Accused in his testimony does not really go into detail as to what the men who were in ALS’s house did

during that period. The Chamber notes that the Accused just testified that they were together 24 hours a day and that he does not really state what the exact routine was during that 24 hour period. The Chamber finds that the evidence of Witness ALB does not exonerate the Accused from being present at Gikomero, in the circumstances that he was sighted there. The Prosecution evidence, upon which the Chamber relies, does not claim that the Accused was in Gikomero for any extended period. Prosecution Witness GEK, for instance, testified that she witnessed a meeting during which the Accused distributed weapons on between 6 to 10 April 1994. That meeting lasted 20 to 30 minutes. For his part, Prosecution Witness GAF testified that the Accused was at the Gikomero Parish for one or two minutes. That being the case, the time-lines described by Defence Witness ALB cannot foreclose the possibility described by these Prosecution Witnesses who testified that the Accused was seen in Gikomero on or about 12 April 1994. Finally, the Chamber also notes the evidence of Defence Witness ALM. Notably, he testified that he saw the Accused twice during the period from 8 April 1994 to 17 April 1994. Surely, these two instances could not afford an alibi which would exclude the possibility of the Accused going to Gikomero. The Chamber attaches no weight to the testimony of Witness ALM. - 42 -

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Thc Prosecutor v. 3can dc Dicu Kamuhanda 22 Jallaarv 2004 b. Conclusion 176.The Chamber has weighed all the different testimonies that have been adduced and comes to the following conclusion as to the alibi of the Accused. In coming to its conclusion about the alibi of the Accused, the Chamber noted in particular the testimonies of the different Witnesses as to the patrols that took place in the quarter from 7 April 1994 to 17 April 1994. The Chamber noted the testimonies of these Witnesses that these patrols were mounted primarily to protect them and their families from looters. The Chamber has also noted from the testimonies that these patrols were very intensive and around the clock. The Chamber has carefully analysed these testimonies and finds it incredible that a patrol as intensive as this would be mounted just to protect the Witnesses and their families from looters. The Chamber finds that in an attempt to provide an alibi for the Accused, the Witnesses ended up relating stories that appeared designed for a purpose and therefore not credible. The Chamber finds that the Accused may have been at the house of Defence Witness ALS at times during 7 to 18 April 1994. The Chamber finds, however, that the Accused was able to travel to and from Gikomero commune between 6 and 17 April 1994. The Chamber refers to its earlier findings that it was not impossible for the Accused to move around from 6 April 1994 to 17 April 1994. The Chamber therefore finds that the alibi of the Accused from 6 April 1994 to 17 April 1994 is not credible. K. Impossibility of Travel from Kigali to Gikomero in April 1994 1. Allegations 177.

178. The Defence asserted that it was physically impossible for the Accused to participate in the acts or be at the places alleged in the Indictment during the period 6 April 1994--13 April 1994. In connection with the Prosecution’s allegations about the massacre at the Gikomero Parish, the Defence submitted that the Accused did not travel to Gikomero after 6 April 1994, and could not have travelled there, as the principal travel routes leading from Kacyiru, Kigali where he alleged to have been at that time to Gikomero were not passable due to the fighting. 197 The Defence stated further that it was impossible for civilians to move on the three roads leading out of Kigali to Gikomero due to the combat situation and the position of the armies at that time. 198 The three routes that led to Gikomero from Kacyiru, Kigali at that time were the 197 Defence Closing Brief, para. 3177 (English). 198 Defence Closing Brief, Para. 3189(English). - 43 -

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179. Fhe Prosecutor v ,lean de Dicu Kamuhanda 22 Ja)’marv 2004 .tudmncnt and Scntc ncc Kacyiru--Kimihurura--Remera--Gikomero route, 199 the Kimihurura--Remera--Kanombe Gikomero,2°° and the Muhima--Gatsata route in the direction of Byumba. 2°1 Kacyiru- Kacyiru-- The Prosecution did not call any evidence specifically rebutting the evidence of the Defence on impossibility. The Prosecution’s Application to call rebuttal evidence was denied by the Trial Chamber on 13 May 2002.202 The Prosecution therefore focused on the credibility of the Defence Witnesses.

2. Evidence a. The Kaeyiru--KimihururamRemeramGikomero Route (Kigali/Remera Artery). 180.On subject of this route, the Defence led the evidence of Laurent Hitimana and Witness VPG. 181.Defenee Witness Laurent Hitimana was protected Witness RKA but he renounced his protected status. His evidence related to the Kacyiru-- Kimihurura--Remera---Gikomero Route (Kigali/Remera Artery). Witness RKA testified that in April 1994 he was living in Remera in Bibare area of Kigali. 2°3 He testified that as at 7 April 1994 the exit from Remera by the tarred road towards Kanombe was closed by the government forces (the FAR), at the junction known as Remera. 2°4 The Witness testified that on 7 April 1994 refugees started arriving at Bibare. The refugees said they had come from Remera I and Remera Kicukiro because the RPF had attacked their neighbourhoods. 2°s On 7 April 1994 the Witness had to move from his home in Remera moving eastward to Gasogi where he arrived on 8 April 1994 after spending the night at the bureau communal of Rubungo. 2°6 The Witness testified that on 10 and 11 April 1994 there was a flow of refugees, arriving at Gasogi coming from Jurwe, who were fleeing the RPF.2°7 The Witness returned to his house in Remera on 11 April 1994 and saw that soldiers of the FAR were patrolling the road leading to Amahoro stadium. 199Defence Closing Brief, para. 3180 (English), 200Defence Closing Brief, para. 3184 (English). 201Defence Closing Brief, para. 3182 (English). 202Kamuhanda, Decision 13 May 2003, Motion for Leave to Call Rebuttal Evidence (TC). 203T. 13 February 2003, p. 51. 204T. 13 February 2003, p. 54. 205T. 13.February 2003, p. 52. 206T. 13 February 2003, p. 55. 207Defence Closing Brief, para. 3193 (English). - 44 -

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182. 183. 184. 185. 186.

187. Tbc Prosecutor v Jean dc Dicta K.armfllar~da 22 Jarmarv 2004 Juttimothy; and Scrrmncc According to the Witness, the only route one could take to Gikomero was the Kigali-Remera-Kimironko-Karama-Gikomero Route, which was impossible to use because the government forces already blocked it. 2°8 The Witness stated that the road through Kicukiro was blocked by the RPF at the Kicukiro junction point and it was therefore not possible to use it to get to Gikomero. 2°9 In cross-examination the Witness stated that he did not go to the positions of the Armies and that the positions he gave were either the officially known positions of the Armies in 1994 or were based on the information he got from the refugees. 21° Defence Witness VPG lived in Kacyiru, Kigali, in April 1994 but was originally from Gikomero Commune and a member of the Electoral Commission on which the Accused also sat.211 He testified that it was impossible to travel to Gikomero around 12 April 1994 because all the roads were cut off due to the fighting. 212 According to him, there were two main routes from Kigali to Gikomero. The first route was the Byumba route and the second route was through Remera. 213 According to the Witness, the more practical route was the one through Remera; and it was the route he used when he travelled to Gikomero on 25 April 1994. 214 The Umuganda Boulevard separated the two

fighting parties and was insecure. The Remera Gendarmerie station had already been taken by the RPF.215 Defence Witness VPG testified that from the Accused’s house it was not possible to move towards the Kanombe airport. Defence Witness VPG testified that the second route was not available for use because the RPF had control of it. According to Witness VPG, to go to Gikomero on this route, one had to turn towards Kabuye and then Nyacyonga, zones that were already in RPF hands as at 12 April 1994. 216 In cross-examination the Witness stated that in 1994 he was neither in the military nor was he a combatant and that he did not personally visit the locations he was testifying about. 217 208 T. 13 February 2003, p. 57. 209 T. 13 February 2003, p. 60. 210T. 13 February 2003, pp. 71-72. 211T. 11 February 2003, p. 3. 212Defence Closing Brief, para. 3234 (English). 213T. 11 February 2003, pp. 18-19. 214Defence Closing Brief, para. 3235 (English). 215T. 11 February 2003, p. 19. 216Defence Closing Brief, para. 3250 (English). 217T. 11 February 2003, pp. 42-43. - 45 -

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The Pro,~:¢ccutor v. Jean dc Dicu Kamuhanda 22 January 2004 b. On the Positions of the Different Belligerents on the Different Routes Leading to Gikomero 188. 189. 190.

191. The Defence led the evidence of three Witnesses: RGM, RGG and RKF who were all military people. Defence Witness RGG was Gendarme in April 1994, stationed at Muhima camp in Kigali, and was in charge of securityfl 8 The gendarmerie controlled the Kigali--Gitarama route, the Kigali--Ruhengeri route, and the Kigali--Kicukiro route. 219 Defence Witness RGG testified that on 7 April 1994, he was sent to Remera camp to collect bullets. 22° He successfully avoided RPF positions by taking a detour to avoid the CND where RPF soldiers had been stationed since 8 December 1993. 221 As soon as Witness RGG left the Remera Gendarmerie station, the RPF began shooting at the station from the CND. On his return to Muhima the Witness was assigned to go and reinforce the Gendarmerie headquarters. The Headquarters were attacked by the RPF on 7 April 1994. On 9 April 1994 Witness RGG undertook another mission to Kicukiro. On 9 April 1994 it was impossible to travel the Muhima--Remera road) 22 Defence Witness RGG testified that the FAR controlled the Kigali- Gitarama, Kigali--Ruhengeri, and KigaliEKicukiro routes. The RPF controlled Kigali Kinyinya, Kigali Remera--Kimironko, Kigali Kibungo and Kigali--Byumba) 23 Defenee Witness RGM was a young gendarme of low rank stationed at Jari camp, Rutungo commune, six to seven kilometres from Kigali. He testified that on 7 April 1994 he heard that

gendarmes at the Mugambazi and Nyacyonga refugee camps had seen the RPF columns coming from the hills. By 8 April 1994 the RPF had taken the Mugambazi and Nyacyonga camps.224On 8 April 1994 the RPF attacked the Cyangugu Battalion, forcing them to withdraw. On 9 April 1994, a vehicle was sent from Jari camp to Kigali for supplies, and at about 1 l:00am before the vehicle reached the Karuruma road it was ambushed by the RPF. On 12 April 1994 the RPF attacked Jari camp and the gendarmes withdrew to Shyirongi on the road to Ruhengeri. In cross-examination the Witness stated that the government forces were in control of Jari until 4 July 1994.225 On 12 April 1994 the road from Byumba to Karuruma was open. 218T. 29 April 2003, p. 45. 219Prosecution Closing Brief, para. 585. 220T. 29 April 2003, p. 47. 221Defence Closing Brief, para. 3359 (English). 222T. 30 April 2003, p. 5. 223Defence Closing Brief, paras. 3388-3396 (English). 224T. 28 April 2003, p. 60. 225T. 29April 2003, p. 32. - 46 -

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192.

193. Thc Prosccu~or v. ,]earl dc Dieu Kamuhar~da 22 ]armarv 2004 The Witness testified that he received the information about the ambush at Karuruma from his company operator. 226 Defenee Witness RKF worked at the Ministry of Defence in 1994 where he was responsible for analysing information related to the military situation in the city of Kigali.Z2~/According to the Witness, the RPF attacked the Presidential Guard and the Headquarters of the Gendarmerie Nationale on 7 April 1994 and took control of zones surrounding the Amahoro stadium. 22s On 8 April 1994, the RPF took control of the Gendarmerie brigade in Remera, the displaced persons camp at Nyacyonga and controlled Gasozi. 229 On 9 April 1994, the RPF took control of Karuruma. On 12 April 1994, the RPF took control of Jali [Jari] camp to hold the Nyabugogo---GatsatanKaruruma access. The Witness testified that the RPF controlled the Kigali-Byumba road and no civilian could go there.Za°As for the Kigali--Remera route the Witness testified that it was impossible to use that route to go to Gikomero around 12 April 1994 because the RPF had infiltrated the zone and there was heavy artillery combat underway. 231 In cross-examination the Witness admitted that in a war situation lines of control are ill-defined and fluid and infiltration is possible and further that there were small roads that were passable and that could be

used. 232 e. The KaeyirumMuhima--Gatsata--Byumba Route (Kigali/Byumba Route) 194.In relation to the Kacyiru--MuhimanGatsata~Byumba Route, the Defence led evidence of Witness RGB and RGS. 195.Defence Witness RGB lived in Rutungo Commune in February 1994. 233 This Witness’ testimony related to the situation on the Kacyiru-- Muhima~Gatsata~Byumba route (Kigali/Byumba). On 9 April 1994, RGB saw RPF soldiers coming down the mountains of Kiyanza. The RPF occupied the Rutungo Parish. Defence Witness RGB stated that he fled, taking the route towards Remera-Mbogo commune and arrived at Remera at about 7:00pm the same day. On 10 April 1994 the government positions at Remera were attacked by the RPF and the Witness moved to Jari, which was a Gendarmerie camp.234 On 11 April 1994, at about 3:00pm, the 226T. 29 April 2003, pp. 39-40. 227T. 5 May 2003, p. 14. 228T. 5 May 2003, pp. 16-17. 229T. 5 May 2003, p. 19. 230T. 5 May 2003, p. 20. 231T. 5 May 2003, p. 20. 232T. 5 May 2003, p. 75. 233Defence Closing Brief, para. 3257 (English). 234Defence Closing Brief, para. 3258 (English). - 47 -

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196. Fhc Prosccutor v. Jean de Dicu K.amullarlda 22 Jarmm’v 2004 gendarmes informed Witness RGB that their camp at Jail was to be attacked the next day and therefore the Witness left the camp. Defence Witness RGB testified that he arrived at Karuruma in the evening, using the Byumba route, which was packed with refugees from Nyacyonga and 235 Defence Witness RGB testified further that at Karuruma, he Rutungo. met refugees from Nyacyonga, Kabuye and Jabana who confirmed that those zones had been taken by the RPF.236 On the morning of 12 April 1994 Karuruma was attacked by the RPF and the Witness RGB testified that he fled towards Gatsata. By 12 April 1994, the RPF had closed all the roads from Karuruma to Kabuye and Byumba.23v Defence Witness RGB testified that he travelled on foot in the bush and went to Gitarama arriving on 12 April 1994. Defence Witness RGS lived in Gatsata in April 1994, not far from Kigali. 238 He testified that between 9 and 10 April 1994, he saw a great number of refugees arriving from the displaced persons camp at Nyacyonga into his neighbourhood. Defence Witness RGS testified that he was told b~ the refugees that the Nyacyonga camp had been attacked by the RPF. The Witness testified further that on the night of 11 April 1994, he received a phone call from a friend who informed him that the RPF had taken Jari hill. 24° The Witness testified that he

decided to flee the area on 12 April 1994. Witness RGS testified that he left by car towards Nyabugogo aiming to go to Kiyovu in Kigali town centre, but at Nyabugogo, a FAR soldier told him that he could not go further and was directed towards Gitarama. 241 According to Witness RGS, there were only two routes from Kigali to Gikomero. The first was Kigali--Byumba-- Gatsata--Nyacyonga--Nyabugogo--Kajevuba. The second route was Rubungo through Jurwe. The Witness testified that the first route was impassable on 12 April 1994 because Nyacyonga zone and the region surrounding were occupied by the RPF.242 The Witness stated that on 12 April the only route, which was passable, was the one leading to Gitarama. 243 235Defence Closing Brief, paras. 3264-3266 (English). 236Defence Closing Brief, para. 3259 (English). 237T. 17 February 2003, pp. 72-73. 238Defence Closing Brief, para. 3285 (English). 239T. 13 February 2003, p. 6. 240T. 13 February 2003, p. 5. 241T. 13 February 2003, p. 8. 242T. 13 February 2003, p. 9. 243T. 13 February 2003, p. 10. - 48 -

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’I’hc Prosecutor v Jear~ de Dicu Kamuhanda 22 .lanuarv 2004 d. Other Witnesses Not Directly Dealing with Impossibility 197. 198. 199. 200.

201. Defence Witness GPR stated that the refugees in Gikomero came from Mbandazi and Musave in Rubungo. TM Defence Witness GPE stated that refugaeeS who came to Gikomero around 7 to 9 April 1994 were from Rubungo. Defence Witness GPF also testified that the persons that attacked the refugees in Gikomero on 12 April 1994 came from Rubungo commune. 246 Defence Witness GPT also testified that the Tutsi that sought refuge in Gikomero had arrived from Rubungo commune, Gasogi, Ndera and Mbandazi.247 In summing up the evidence on impossibility the Defence concluded that the evidence showed that the road from Kigali to Byumba was occupied by the RPF on 7 April 1994. As of 8 April 1994 the RPF occupied the KigalimRemera--Gikomero artery. The Kigali--Kanombe--Gikomero artery was cut off at the level of Giporoso and Gikondo by 8 April 1994. On this premise, the Defence asserted that it was impossible for the Accused to have travelled out of his home around 12 April 1994, as alleged by the Prosecution, so as to perpetrate the events that occurred in Gikomero on or about 12 April 1994. 248 e. Assertions by the Parties Regarding the Evidence 202.

203. According to the Defence, the evidence of Laurent Hitimana provided a detailed description of the situation prevailing in the Remera area, on the route to Gikomero, and corroborates the evidence of the Accused and other Witnesses. 249 Assessing the evidence of Witness RKF, the Defence stated that the Witness was at the core of military information channels in April 1994 and was well positioned to give a precise portrait of the situation on the roads leading from Kigali to Gikomero. 25° 244T. 15 January 2003, pp. 27 and 28. 245T. 16 January 2003, p. 51 (ICS). 246T. 20 January 2003, p. 31 (ICS). 247T. 14 January 2003, p. 3. 248Defence Closing Brief, para. 3459 (English). 249Defence Closing Brief, para. 3231 (English). 250Defence Closing Brief, para. 3457 (English). - 49 -

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Judgmcrrt and SeNtence 204. Addressing the evidence of Witness RGG the Prosecution stated that the Witness was not fully aware of the situation regarding the movement of the armies, by virtue of the fact that he was only a corporal in the army. TM The Prosecutor also submitted that in reply to a question from the Bench as to why the Tutsi were fleeing Rubungo if the RPF had taken a base nearby, the Witness gave no credible answer. 252 The Defence stated that this Witness had information, which was disclosed to all combatants, about the situation even where he did not observe personally. 253 205. The Prosecutor submitted that Defence Witness RGS, a long-standing friend of the Accused, did not at any time go or attempt to go to Gikomero. The Prosecution therefore maintained that his views on the route were pure speculationY 4 The Defence pointed out that this Witness was a resident of Gatsata and was a direct Witness to the events happening in his area especially the Kigali--Byumba road255 thus he was qualified to testify.

206. The Prosecution stated that Defence Witness VPG had at no time attempted to use the routes in question; therefore his testimony was merely speculative256and should be disregarded. The Defence pointed out that this Witness lived in Kacyiru in the same neighbourhood as the Accused and he could therefore testify to the situation in the area around 12 April 1994. 257 207. The Prosecutor asserted that due to the fact that Witness RKF was in Kigali at the time, he was not in a position to know the exact roads that were controlled by the opposing armies and especially so after he admitted that during a war, the lines of control are ill-defined and fluid. 258 Witness RKF stated in evidence that "when there are two warring parties in any war, you can never say anything is air tightly closed, there is always infiltration. ’’259 To a question from the Bench the Witness stated that there was "a lot of small roads, secondary roads, not many, but - well, roads are passable, that could be used...,.260 Defence stated that the Witness was at the core of military information channels and could thus give precise details of the situation prevailing on the roads from Kigali to Gikomero. TM 208. In respect of Witness Laurent Hitimana the Prosecution stated that the Witness was at too many places that tend to confirm the Defences’ theory of blocked access. In addition the Witness was not able to

reply to the fact 251Prosecution Closing Brief, para. 590. 252Prosecution Closing Brief, para. 588. 253Defence Closing Brief, para. 3412 (English); T. 29 April 2003, p. 70. 254Prosecution Closing Brief, para. 547. 255Defence Closing Brief, para. 3316 (English). 256Prosecution Closing Brief, para. 541. 257Defence Closing Brief, para. 3253 (English). 258Prosecution Closing Brief, para. 593. 259Prosecution Closing Brief, para. 592; T. 5 May 2003, p. 60. 260Prosecution Closing Brief, para. 593; T. 5 may 2003, p. 75. 261Defence Closing Brief, para. 3457 (English). - 50 -

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209. 210. 211.

212. The Prosc, cutor v. Jean cte Dicu l~amuharlda 22 Jarmarv 2004 JudgmeNt and Sc1~tcncc that Tutsi from Rubungo fled towards Gikomero around this same period. 262 The Defence stated that this Witness gave a detailed description of the situation as it prevailed in Remera on the Route to Gikomero and thereby supported the evidence of the Accused.263In cross-examination, the Witness stated that the positions of the forces as he had given were the official positions in 1994. 264 The Witness also admitted that he did not personally go to the roadblocks or to the positions of the forces at that time .265 Defence Witness Laurent Hitimana testified that he was able to move out of Remera on 7 April 1994, and fled to Rubungo and later to Gasogi where he arrived on 8 April 1994. He returned to Remera on the 12 April 1994. 266 On Witness RGM the Prosecution stated that this Witness was a young gendarme of low rank. 267 The Prosecution asserted further that he was not at any of the events that he testified about. The Prosecution stated that he neither witnessed the events at Mugambazi and Nyacyonga nor did he see the ambush at Karuruma.268The Defence affirmed that this Witness is credible and where he had no direct evidence, he received his information from his superiors in the course of his work. 269 The Prosecution stated that due to the position occupied by Defence 270 Witness RGB, his

evidence should not be believed. Tlae Defence stated that the Prosecution was unable to impugn the credibility of the Witness since the Witness testified that he was a moderate Hutu and his name could be on the list of people sought by Rwanda for genocide simply because of the post he occupied in Rwanda in 1994. 271 The evidence of Defence Witnesses GPR, GPE, GPF, and GPT demonstrate that there were refugees arriving from Rubungo, Ndera, Mbandazi and Musave from 6 April 1994 and show that it was possible to pass through these areas. 262Prosecution Closing Brief, para. 555. 263Defence Closing Brief, para. 3231 (English). 264T. 13 February 2003, p. 71. 265T. 13 February 2003, p. 72. 266T. 13 February 2003, p. 80. 267Prosecution Closing Brief, para. 580. 268Prosecution Closing Brief, para. 582. 269Defence Closing Brief, para. 3356 (English); T. 29 April 2003, p. 25. 270Prosecution Closing Brief, para. 575. 271Defence Closing Brief, para. 3278 (English); T. 18 February 2003, p. -51 -

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The Prosccut(w v. Jcar~ dc Dicu Kamuhanda 22 Jarmarv 2004 3. Findings 213. 214. 215. 216. 217. 218. 219. a. Discussion The Chamber has noted the testimony of the Accused and the various Defence Witnesses as to the impossibility of moving from Kigali to Gikomero commune during the period of 7 April 1994 to 17 April 1994. In making its findings as to the impossibility or otherwise of movement to and from Kigali to Gikomero during the period from 7 April 1994 to 17 April 1994, the Chamber has considered the evidence of the various Defence Witnesses and the challenge made to that evidence and credibility of the Witnesses. The Chamber notes that Defence Witness Laurent Hitimana was able to move easily from Remera in Kigali to Rubungo and later to Gasogi between 7 and 8 April 1994 and to return to Remera on 11 April 1994. The Chamber further notes that the Witness was never present at the various locations he testified about and admitted that the positions of the Armies that he gave were either the known official positions in 1994 or it was information that he got from refugees. The Chamber is not satisfied that Witness RGM, a low ranking member of the Gendarmerie, could have had access to information about the various detailed positions, of which he testified. The Chamber notes the Witness’s admission that he never was at these locations. The Chamber notes that Witness RKF was

based in the offices in Kigali city at the Ministry of Defence. While he could have had access to intelligence regarding the general situation, he did not have firsthand information about the condition of travel between Kigali and Gikomero in the period in question. Furthermore the Chamber notes that Witness RKF admitted in cross- examination that there were small, secondary roads that could have been used to travel between Kigali and Gikomero. The Chamber notes that the evidence of Defence Witnesses GPR, GPE, GPF and GPT, who all testified about the situation in Gikomero, showed that some of the refugees at Gikomero had come from Mbandazi, Rubungo, Musave, Gasogi and Ndera and therefore that it was possible to pass through these areas. Those areas were way out from Remera area of Kigali. This evidence, taken in conjunction with the evidence of Defence Witness Laurent Hitimana who testified that he fled to Rubungo on 7 April 1994 and came back to Remera on 11 April 1994, demonstrates that it was possible to move from Remera all the way to Rubungo and onwards to Gikomero. - 52 -

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Thc Pro~ccutor v. Jear] dc Dicu Kamuhanda 22 Jarmarv 2004 b. Conclusion Judgmer~.t and Scr~tencc 220.The Chamber therefore finds that, although it might have been difficult, it was possible to move from Kigali to Gikomero within the period between 7 and 17 April 1994. L. Expert Witness 221.

222. The Defence called Mr Nkiko Nsengimana as an expert Witness who produced a report 272 and was heard by the Chamber on 7 and 8 May 2003. The Chamber has considered the full evidence of the Defence Expert Witness. He testified on various general, historical and political topics. In the case at hand, the Chamber focused on the Accused’s alleged individual criminal responsibility. And, due to the general nature of the matters discussed in the Expert Witness’s report and testimony, the Chamber finds them to be matters of background information which do not inform on the Accused’s acts and conduct. 272 Report of the expert Mr. Nkiko Nsengimana: Few Elements Of Political Expert Analysis On The Rwandan Massacre Of 1994 (Defence Exhibits 87a and 87b). - 53 -

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T~c Prosecutor v 3can dc Dicu Kamt~handa 22 January 2004 Judemclrt and Sen tc~cc

PART III-

THE PROSECUTION

CASE A. Introduction 223. The Chamber will not make any findings on certain paragraphs of the indictment due to the following reasons: Paragraphs 5.1 to 5.9; 6.10 and 6.90 are related to issues which are no longer of any relevance to the case, due to the fact that the Accused was acquitted on Count 1 of the Indictment; Paragraphs 1.1 to 1.30; 3.3 to 3.19; 5.11 to 5.20; 5.22; 5.23; 5.25 to 5.39; 6.1 to 6.4; 6.6; 6.11 to 6.14; 6.15; 6.16; 6.17; 6.24; 6.28 to 6.30; 6.33; 6.35; 6.36; 6.38 and 6.39; 6.40 to 6.43; 6.47; 6.49 to 6.55; 6.57 to 6.80 to 6.84; 6.85 to 6.87 are of a general nature, deal with historical issues, have no direct linkage to this case and/or have such characteristics that there is no need for the Chamber to make findings on them and/or are related to facts upon which there was no evidence presented to the Chamber.

224. The Paragraph 4.1 of the Indictment has been addressed in the Part I (Introduction), Section A of the Judgment.

225. The Charges (Final section of the Indictment) will be addressed in the Part IV (Legal Findings) of the Judgment.

226. The Chamber will, for each Section in this Part, review the allegations of the Prosecution, the evidence brought by the Parties, and then make its findings accordingly. The evidence contained in the relevant sub-sections is a summary of the testimonies of the Witnesses and of the content of the exhibits. B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case) 227. Paragraph 2.1 of the Indictment reads: The crimes referred to in this indictment took place in Rwanda between 1 January and 31 December 1994.

228. The Accused admitted that : The crimes referred to in this document [the Prosecutor’s request to admit facts] took place in Rwanda between 1 January and 31 December 1994, particularly between 1 January and July 1994. 273 229. The Chamber takes note of these admissions. 273 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 86. - 54 -

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Thc Prosecutor v. Joan dc Dicu KamL harlda 22 Janualw 2004 Judgmcm and Sclttcncc C. Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in 1994) 230. Paragraph 2.2 of the Indictment reads: During the events referred to in this indictment, Rwanda was divided into 11 prefectures: Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-Ville, Kigali-Rural and Ruhengeri. Each prefecture was subdivided into communes and secteurs.

231. The Accused admitted that: Between 1 January 1994 and 17 July 1994, Rwanda consisted of the following administrative structures: (a) Rwanda was divided into 11 prefectures: Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-Ville, Kigali-Rural and Ruhengeri) TM (b)Each prefecture was subdivided into communes. (c)Each commune was subdivided into secteurs. (d)Each secteur was subdivided into cellules.

232. The Chamber takes note of the Rwandese administrative structure as of between 1 January and 17 July 1994, as well as of the existence during the relevant period of a prefecture called "Kigali-Rural". D. Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda in 1994) 1. Allegations 233. Paragraph 2.3 of the Indictment reads: During the events referred to in this indictment, the Tutsi, the Hum and the Twa were identified as racial or ethnic groups.

234. The Accused admitted that : Between 1 January 1994 and 17 July [1994], the Tutsi, the Hutu and the Twa were respectively identified as racial or ethnic groups. 275 274 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 87. 275 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 88 - 55 -

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Thc Prosecutor v, ,leart de I)ieu K.amuhanda 22 .[anua~’v 2004 2. Findings 235.Accordingly, it has been established for the purposes of this case that at all relevant times for the indictment the Tutsi, the Hutu and the Twa were identified as ethnic groups in Rwanda. E. Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic Attacks in Rwanda) 236. Paragraph 2.4 of the Indictment reads: During the events referred to in this indictment, there were throughout Rwanda widespread or systematic attacks directed against a civilian population on political, ethnic or racial grounds.

237. The Accused admitted that : The following state of affairs, among others, obtained in Rwanda between 1 January 1994 and 17 July 1994:276 (a) there were throughout Rwanda widespread or systematic attacks against human beings. (b) the widespread or systematic attacks were directed against civilian population on the following grounds: (i) political persuasion (ii) ethnic affiliation (iii) racial origin (c) The widespread or systematic attacks as indicated above, had the following features: (i) they had specific objective of extermination of the Tutsi. 23 8. The Chamber takes note of the admission of the Defence. 239.The Chamber has analysed the specific issue of widespread or systematic attacks in Kigali-Rural in the relevant sections below. 277 276 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 89 277 see below: Part III, Section I. - 56 -

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The Prosecutor vu Jean dc Dicu Kamuhanda 22 January 2004 F. Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict in Rwanda) 1. Allegations 240. Paragraph 2.5 of the Indictment reads: During the events referred to in this indictment, a state of non- international armed conflict existed in Rwanda. The victims referred to in this indictment were protected persons, according to the provisions of Article 3 common to the Geneva Conventions and of Additional Protocol II.

241. The Accused admitted that : During the events referred to in [the Prosecutor’s Request to Admit Facts], a state of non-international armed conflict existed in Rwanda. 278 2. Findings 242. It is not in contention by the Parties for the purposes of this case that at all relevant times for the indictment a state of non-international armed conflict existed in Rwanda. 279 G. Ministerial Position of the Accused and his Responsibility as Minister of the Interim Government 1. Allegations 243. Numerous paragraphs of the Indictment deal with the alleged responsibility of the Accused as Minister of the Interim Government. 28° 2. Findings 244. It is not in contention that the Accused became Minister of Higher Education and Scientific Research in the Interim Government on the 25 278 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 90 279 The Chamber notes

ICTR Chambers have found in previous cases that a state of non-international armed conflict existed in Rwanda in 1994, namely between April to July 1994. See: Rutaganda, Judgment (TC), para. 436 ; Semanza, Judgement (TC), paras. 280-282 and 280 Paragraphs 3.1; 3.2; 4.2 to 4.5; 5.10; 6.5; 6.7; 6.9; 6.10; 6.18 to 6.23; 6.25 to 6.27; 6.32; 6.39;6.48; 6.56 and 6.88 of the Indictment. - 57 -

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245. 246.

247. The Prosccu~:or v..lean de [)icu Kamuhanda 22 .Jarmarv 2004 .Jud gmcn~: arid Sc~tcncc May 1994, replacing Dr. Daniel Nbangura and that he held the office until mid-July 1994. The Chamber notes that no specific evidence has been brought by the Prosecution with regards to the acts and conduct of the Accused after he became Minister of the Interim Government. The Prosecution has presented evidence only on alleged crimes committed by the Accused before the 25 May 1994. Accordingly the Chamber finds that the Prosecution has not proven its case in relation with the acts and conduct of the Accused in capacity of Minister of the Interim Government. H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons) 1. Allegations 248. Paragraph 5.24 of the Indictment reads: Before and during the events referred to in this indictment, some members of the Interim government,

MRND leaders and some soldiers participated in the distribution of weapons to the militiamen and certain carefully selected members of the civilian population with the intent to exterminate the Tutsi population and eliminate its accomplices.

249. Paragraph 6.44 of the Indictment reads: Interim Government Minister Jean de Dieu Kamuhanda had family ties to Gikomero commune, Kigali-Rural prefecture. During the month of April 1994 he supervised the killings in the area. On several occasions he personally distributed firearms, grenades and machetes to civilian militia in Kigali-rural for the purpose of"killing all the Tutsi and fighting the FPR".

2. Distribution of Weapons at the Homes of the Accused’s Cousins a. Evidence 250.In this section the Chamber considers the following evidence in addition to the relevant evidence presented in Part II, Section J on Alibi and K on Impossibility and in the previous sections of this Part III. - 58 -

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251.

252. Fhc Prosecutor v Jean de Dicti KamLlh.anda 22 January 2004 Prosecution Witness GEK, a Tutsi woman, testified that her husband, who belongs to the Hutu ethnic group,281 was a member of Kamuhanda’s family 282 and that Kamuhanda "usually came to the house to say hello when he [was] on his way home just around Muhazi.’’283 On cross- examination, the Defence attacked the Witness’s identity, attempting to show that she was not in fact who she claimed to be. After the Accused in his testimony acknowledged Witness GEK to be who she claimed to be, the Defence continued the attack on her credibility by attempting to show that she was not in Gikomero during the events about which she gave testimony. The Witness disputed this proposition. 284 The Witness identified the Accused in Court. 285 Prosecution Witness GEK testified that prior to the April 1994 events she saw the Accused about four times.286 She further testified that the Accused came to visit her neighbour before the death of the President of the Republic either on 5 April 1994 or on 6 April 1994. According to the Witness, the Accused arrived on his own in a white pick-up vehicle, and he was driving himself. 287 The Witness saw the Accused again sometime between 6 April 1994 and 10 April 1994 when he came to their residence in Gikomero and stayed to talk to her husband. 288 She stated that she was not in the same room when

the discussion occurred between the Accused and her husband. 289 She said, "When he [the Accused] entered the house my husband requested me to go inside the room, because, at that time war had erupted, so he asked me to hide myself. But I was not far away and I could hear what they were saying to each other. ’’29° 253.Prosecution Witness GEK testified that there were four people in the room with the Accused and her husband. 291 She identified those people as Ngiruwonsanga, Kamanzi, Karakezi and Ngarambe, 292 who was just a neighbour. 293 She said that these people came approximately two minutes after the Accused. 294 She testified that the Accused told Kamanzi that the killing had not yet started in Gikomero commune and went on to say that ,,295 "...those who were to assist him to start had married Tutsi women... 281T. 5 September 2001, p. 82 (GEK) (ICS). 282T. 4 September 2001, pp. 15 and 16 (GEK). 283T. 3 September 2001, pp. 159 and 160 (GEK) (ICS). 284T. 4 September 2001, pp. 24 and 25(GEK). 285T. 3 September 2001, p. 160(GEK) (ICS). 286T. 3 September 2001, pp. 160 (GEK) (ICS). 287T. 3 September 2001, p. 167 (GEK) (ICS). 288T. 3 September 2001, p. 167 (GEK) (ICS). 289T. 3 September 2001, p. 167 (GEK) (ICS). 290T. 3 September 2001, pp. 167and 168 (GEK) (ICS). 291T. 3 September 2001, p. 168 (GEK) (ICS). 292T. 3 September 2001, p. 168 (GEK) (ICS). 293T. 3 September 2001, p. 174 (GEK) (ICS). 294T. 3 September 2001, p. 174 (GEK) (ICS). 295T. 3 September 2001, p. 170 (GEK) (ICS). - 59 -

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254. 255. 256. 257. 296 T. 297 T. 298 T. 299 T. 300 T. 301 T. 302 T. 303 T. 304 T. 305 T. 306 T. 307 T. T.hc Prosccu~or v..lcar~ dc Dicta Kamuhanda 22 Jarmarv 2004 She said that the Accused went on, saying that he would bring equipment for them to start, and that if their women were in the way they should first eliminate them. 296 Prosecution Witness GEK testified that her husband, in response to the Accused, said that "he would continue to persecute his spouse and that he had even married her against their wi11."297 She said that the meeting lasted between 20 and 30 minutes. 298 Prosecution Witness GEK, when asked if she knew whether any weapon or item was handed over in that room, testified, "When I went outside I was able to see firearms, grenades, and machetes, which they distributed when he went outside the house. ’’299 She said that the Accused distributed firearms and grenades inside the house before they went outside and she saw her husband carrying "four grenades that resembled a hammer, a hammer, four grenades that looked like hammers. ’’3°° She testified that she knew the grenades, because she had seen them before when her husband was carrying them while he was a soldier. 3°1 Prosecution Witness GEK testified, "When Kamuhanda went outside he went to Karakezi’s home, a distance of about between five and ten steps. He distributed to them

[Kamanzi, Karekezi, Njiriwonga and Ngarambe] grenades and machetes. He had distributed, given, distributed a weapon, a gun I should say, inside our house.’’3°2 She said that the Accused distributed the weapons to four persons, but he left them other weapons that these four people were to distribute to others. 3°3 When asked how she knew that these people were supposed to distribute the weapons to others, the Witness said, "... From where I was, from where they were, I could see [sic] what they were saying. He [Kamuhanda] said to them to distribute those weapons and said that he would return to assist them. ’’3°4 She testified that the Accused said that he would return to see if they had started with the killings or that he would return so that the killings would start. 3°5 She said that she saw what happened to the weapons when the Accused returned to arrange for the killing to start. 3°6 Prosecution Witness GEK testified that the Accused distributed the weapons to Karekezi, Kamanzi, Njiriwonga and Ngarambe.3°7 She 3 September 2001, p. 3 September 2001. p. 3 September 2001 p. 3 September 2001 p. 3 September 2001 p. 3 September 2001 3 September 2001 3 September 2001 3 September 2001 3 September 2001, p. 3 September 2001, p. 3 September 2001, p. 171 (GEK) (ICS). 173 (GEK) (ICS). 174(GEK) (ICS). 174 (GEK) (ICS). 175 (GEK) (ICS). p. 175 (GEK) (ICS). p. 176 (GEK) (ICS). p, 176 (GEK) (ICS). pp, 176 and 177 (GEK) (ICS). 177 (GEK) (ICS). 177 (GEK) (ICS). 177 (GEK) (ICS). - 60 -

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258. 259. 260. 261. 308 T. 309 T. 310T. 311T. 312T. 313T. 314T. 315T. 316T. 317T. 318T. 319T. Thc Prosecutor v. Joan de Dic,~t Kamuh.anda 22 Januavv 2004 testified on cross-examination that Ngiruwonsanga was a well-known Interahamwe and when the Accused came to distribute arms Ngiruwonsanga was present. 3°8 She said that Ngiruwonsanga was present at all the locations where attacks were carried out.3°9 Witness GEK testified that she personally saw Garambe and Ngiruwonsanga cutting up people at the trade centre. 31° Prosecution Witness GEK testified that the Accused did not return that day when he came to distribute the weapons; he went through Kagagevuba because he wanted to see an accountant named Rubanguka. 311 Defence Witness GPK testified that he knew the Accused because they were both born in the same secteur. 312 The Witness stated that he knew Kamanzi and Karekezi, and that he wouldn’t spend two days without going to see them. 313 He estimated that the distance between his residence, near Gikomero trade centre, and theirs was approximately eighty to one hundred metres. 314 In answer to a question put to him, the Witness stated that between 6 April 1994 and 12 April 1994 he never saw the Accused at the residence of Kamanzi or Karakezi. Neither did he observe the Accused distributing weapons. Furthermore, had this happened in his

absence, he would certainly have heard about it. 315 Defence Witness GPK testified that he met Karakezi after the attacks on 12 April 1994, and that Karakezi was armed with a bow and arrows. He said that Karakezi asked him to come to a place where he had left his wife and his brother’s wife to check on their situation. He went with Karakezi to a place called Kibobo where the women were. They were to assure them of the security situation so that they would not flee and perhaps he would not be able to find them. 316 He stated that Karakezi’s wife was known as Dorsilla Mukayiranga and Kamanzi’s wife was known as Mukamazimpaka. 317 Defence Witness EM, who was fourteen years during the events in question, testified that she had stayed with the GEK family during April 1994. 318 She testified that the day after the plane crash GEK’s husband took them to Kibobo cellule to spend night. During the day they returned to GEK’s house. 319 From 7 April 1994 until 9 April 1994 they continued 4 September 2001, p. 50 (GEK) (ICS). 4 September 2001, p. 50 and 51 (GEK) (ICS). 4 September 2001, p. 13 (GEK) (ICS). 3 September 2001, p. 179 (GEK) (ICS). 20 January 2003, p.62 (GPK) (ICS). 20 January 2003, p.50 (GPK) (ICS). 20 January 2003, p.61 (GPK) (ICS). 20 January 2003, p.62 (GPK) (ICS). 20 January 2003, p.58 (GPK) (ICS). 20 January 2003, p.58 (GPK) (ICS). 30 January 2003, p.8 (EM) (ICS). 30 January 2003, p.8 (EM) (ICS). - 61 -

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262.

263. The Prosecutor v, Jean de Dieu Kamuhanda 22 Jarmary 2004 this routine. 32° From 9 April 1994 until 12 April 1994 they stayed in Kibobo cellule. However, on 12 April there was a "significant attack" and GEK’s husband took them back to his residence. 321 The Witness stated that GEK delivered her baby on the night of 12 April 1994. The Witness remembered this particular date because it was also the date of the attack. 322 The Witness stated that whilst they travelled back on 13 April 1994, she carried for GEK’s child and GEK carried the new born baby. 323 During this period, from 9 April to 13 April 1994, the Witness never left GEK’s side, because she was very tired. 324 The Witness stated that she knew the Accused, but that the last time she saw him was in 1993.325 She stated that she would not have failed to see the Accused if he had come to the house. 326 Defenee Witness Xaviera Mukaminani, the Accused’s younger sister, testified that the Accused helped his family in many ways, including building a house for them and paying their bills. He was close to his family and would often come to visit them in Gikomero especially since their mother suffered badly from asthma. 327 When she had a bad spell, the Accused would take her to hospital in Kigali for treatment. 328 The Witness stated that when the Accused came to visit, he would be driven in an official vehicle. She never saw

him driving. 329 In so far, as she was the only adult in the family, apart from her mother, she would have known about anY33visit of the Accused to the family house in Gikomero commune. Defence Witness Xaviera Mukaminani testified that Kamanzi and Karekezi were her cousins. She also stated that her house and their houses were next to each other, separated only by a road. 331 She testified that the last time the Accused came to Gikomero was during the Easter holidays in 1994, and that they had not seen him in Gikomero since. 332 In answer to a question put to her, she replied that it was not true that weapons had been distributed by the Accused at her cousins’ houses, and that when the Interahamwe attacked at Gikomero they already had their weapons. 333 She 320T. 30 January 2003, p.8 (EM) (ICS). 321T. 30 January 2003, p.8 (EM) (ICS). 322T. 30 January 2003, p.9 (EM) (ICS). 323T. 30 January 2003, p.9 (EM) (ICS). 324T. 30 January 2003, pp. 7 and 8 (EM) (ICS). 325T. 30 January 2003, p. 11 (EM) (ICS). 326T. 30 January 2003, p.11 (EM) (ICS). 327T. 10 February 2003, pp. 22 and 23 (Xaviera Mukaminani). 328T. 10 February 2003, p. 23 (Xaviera Mukaminani). 329T. 10 February 2003, p. 23 (Xaviera Mukaminani). 330T. 10 February 2003, p. 25 (Xaviera Mukaminani). 331T. 10 February 2003, p. 30 (Xaviera Mukaminani). 332T. 10 February 2003, p. 30 (Xaviera Mukaminani). 333T. 10 February 2003, p. 30 (Xaviera Mukaminani). - 62 -

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264.

265. The Prosecutor v. Jean dc I)icu Kamuhanda 22 Ja)’~uary 2004 ,Judgmen:t and Sentence also stated that because there were not many vehicles in Gikomero, everybody knew when a vehicle arrived. 334 Defence Witness Xaviera Mukaminani testified that she did not see the wives of her cousins Kamanzi and Karekezi the day after the President’s plane was shot down.335 When she asked where they were, she was not told. The Witness testified that it was only later that she found out from Defence Witness EM that Kamanzi had placed them in a safe place near Kibobo. 336 Defence Witness Xaviera Mukaminani testified that the Interahamwe attacked on 12 April 1994, and that she fled to Gasagara and joined her elderly mother and an old Tutsi woman who had sought refuge there. 337 b. Findings o Discussion 266. 267. 334T. 335 T. 336T. 337T. 338T. 339T. 340 T. The Defence initially claimed that Prosecution Witness GEK was not the person she claims to be.338 However, the Chamber notes that the Accused, in his testimony, attested to knowing the Witness GEK and, in effect, admitted that she is the person she claims to be.339 The Chamber thus finds that Prosecution Witness GEK and the Accused did in fact know each other, and that the Defence challenge to her identity is unfounded. In relation to the Witness GEK’s testimony that on 5 April 1994 or 6 April 1994 the Accused drove himself in a

white pick-up to the house of the Witness, the Chamber accepts that the Witness may have been mistaken about the driver of the vehicle. The Defence also claimed that Witness GEK was not at the home of her husband during the period when the meeting would have taken place, nor was she in Gikomero during the massacres. Defence Witness EM testified that Witness GEK gave birth to a baby on 12 April 1994, and that from 9 April 1994 to 13 April 1994 Witness GEK was in Kibobo cellule, and not where she testified to have been. On 4 February 2002, the Defence made an oral application to recall Prosecution Witness GEK, and informed the Chamber of having information to show that Witness GEK was not in Gikomero secteur during the relevant time period. The Prosecution did not object to the recall, and the Chamber granted the Oral Motion. 34° When the 10 February 2003, p. 25 (Xaviera Mukaminani). 10 February 2003, p. 30 (Xaviera Mukaminani). 10 February 2003, p. 30 (Xaviera Mukaminani). 10 February 2003, p. 30 (Xaviera Mukaminani). 5 September 2001, pp. 58-59 (GEK) (ICS).; Prosecution Witness GEK is a protected Witness. 26 August 2002, p. 124 (Kamuhanda) 4 February 2002, pp. 4-7 - 63 -

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268. 269. 270. 271.

272. T hc Prosecutor v..lean de Dieu K amuhar~da 22 Jar mary 20()4 Judgmellt and Sentence Witness appeared before the Chamber on 13 January 2003, the Defence questioned her regarding allegations made by other Witnesses that she had not been in Gikomero secteur on 12 April 1994. During Witness GEK second appearance before the Chamber, the Defence failed to confront her with the new evidence regarding the birth of her child. Basic fairness requires that the Defence confront the Witness with evidence that it intends to use to discredit her credibility. Furthermore, the Chamber notes that Defence Witness GPK did not confirm Witness EM’s account that Witness GEK was expecting a child or had delivered a child on 12 April 1994, when Witness GPK claims to have been with her. The Chamber finds that the testimony of Defence Witness EM lacks credibility, and is not sufficient to impugn the credibility of Prosecution Witness GEK. On the basis of the testimonies of Witnesses GPK and Xaviera Mukaminani, the Accused’s sister, the Defence claimed: firstly, that the Accused was not in Gikomero between 6 April 1994 and 10 April 1994; secondly, that he did not meet with his cousins; and, thirdly, that he did not distribute weapons at the homes of his cousins. The Chamber notes that the testimonies of these two Witnesses, that they did not see the Accused in Gikomero, does not exclude that he

could have been there, as claimed by Witness GEK. Having considered all the evidence in relation to this event, and having considered her demeanour in court, the Chamber finds that Prosecution Witness GEK is highly credible. o Conclusion 273.Accordingly, the Chamber finds that a meeting occurred sometime between 6 April 1994 and 10 April 1994 at the home of one of his cousins in Gikomero. This meeting involved the Accused, two of his two cousins, an Interahamwe, and a neighbour. The Chamber finds that at this meeting, the Accused addressed those present and told them that the killings in Gikomero commune had not yet started and that "those [who] were to assist him to start had married Tutsi women". The Accused told those present that he would bring "equipment" for them to start, and that if their women were in the way, they should first eliminate them. Whilst in his house, Kamanzi received four grenades and a gun from the Accused. Following the meeting which took place in the house, the group went a few steps next door to the home of Karakezi, who is also a cousin of the Accused. Whilst there, the Accused gave the others grenades and - 64 -

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The Prosecutor v, Jean de Dicu Kamuhanda 22 January 2004 Judgmcnv and Scntcncc machetes, for themselves, and also additional weapons which they were to distribute to others. The Accused told them that they should distribute those weapons and that he would return to assist them. He also said that he would return to see if they had begun the killings, or so that the killings could start. The Accused then left, and did not retum that day.

3. Distribution of Weapons at a Football Field in Kayanga Secteur a. Evidence 274. 275.

276. In this section the Chamber considers the following evidence in addition to the relevant evidence presented in Part II, Section J on Alibi and K on Impossibility and in the previous sections of this Part III. Prosecution Witness GAB gave testimony that the Accused attended and spoke at an MRND political rally during August 1993 in Kayanga secteur, Gikomero commune. 341 According to the Witness, the Accused was the Guest of Honour. 342 The Witness testified that the Accused delivered a speech in which he said, "Let these Tutsis not bother you because their own fate has been considered by the appropriate authorities. A solution has been found to the problems that they are raising and this will be conveyed, that solution will be conveyed to you in the not too distant future.’’343 The Witness testified that someone who was not a Hutu would not be invited to such meetings, and if they attended, they could be wounded or even killed. 344 Prosecution Witness GAB testified that between 2:00 and 2:30pm sometime between 9 April and 11 April 1994 he and his compagnions were playing football in Nyamise cellule, Kayanga secteur, Gikomero commune, when they saw the Accused get out of a vehicle, accompanied by soldiers. The Witness stated that the Accused met with the conseiller of the commune, called Rubanguka Mathias. Also present at the meeting were Nyarugwaya, the Brigadier of the

commune, and Mabango Thomas, the conseiller. The Witness stated that "[t]here were Interahamwe there to just -- near where we were playing soccer and he talked to these people and in the course of their discussion, he gave them the instruments, the means that he had promised them beforehand, that is, means to defend themselves, as he promised them before. ’’345 341T. 11 September 2001, p. 45 (GAB). 342T. 11 September 2001, p. 48 (GAB). 343T. 11 September 2001, pp. 49 and 50 (GAB). 344T. 11 September 2001, pp. 50 and 51 (GAB). 345T. 11 September 2001, pp. 64 and 65 (GAB). - 65 - ............... L.m

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The Prosccutor v, ,Iearl de i).ict~ Kamui~anda 22 .Iarmarv 2004 277.Prosecution Witness GAB testified that the Accused arrived in a white Hilux vehicle that he was driving. 346 In cross-examination, the Witness repeated that the Accused was driving, 347 and attested that the vehicle arrived from the direction of Kigali. 348 He further testified that there were weapons in the Hilux. He stated, "Those arms were covered by plastic material. We were able to observe these arms only when the plastic was removed so this [...]."349 278.Prosecution Witness GAB testified to hearing the Accused address the accountant, Brigadier, ¢onseiller, and bourgmestre who had just arrived. The Accused said, "Everywhere I went, even in Kigali, the Interahamwe and CDR have been killing people. What are you doing? How far have you gone? ’’3s° The accountant said, "It is true that we have not started killing these people. All we were doing at this time is detailing them and when we get the necessary instruments to accomplish our task, ... we shall accomplish our task and we shall accomplish it appropriately. ’’3sl The Witness testified that the Accused then asked if the people to whom the instruments had been entrusted could be counted on to perform. The accountant replied that they were people trained to fulfil that purpose. 279.Prosecution Witness GAB testified that the

Accused selected two Kalashnikovs, two grenades, and two machetes, which he gave to the accountant, who handed these weapons to the young people. He recalled the names of these young men who received weapons. Munyentwari (known as Kapore) was given a gun, and Desire Habineza a grenade. 3s2 280.Prosecution Witness GAB testified that the Accused was present during the distribution of the weapons. Before leaving the assembled group of men, the Accused said, "I don’t want to hear that any single Tutsi has escaped you.’’3s3 Rutaganira [the bourgmestre of Gikomero] answered the Accused, "We will do all in our power and just in case the instruments which you have given us turn out to be insufficient, we shall resort to you again. ’’354 The Accused responded, "I shall wait for [your] initiative, your reaction. ’’355 281.The Accused testified that he attended a MRND political rally in Kayanga in October 1992. He stated, however, that he had been invited at the last minute, and that he had not even planned on going to the meeting. 356 346 T. 11 September 2001, 347 T. 11 September 2001. 348 T. 11 September 2001. 349 T. 11 September 2001, 350 T. 11 September 2001, 351 T. 11 September 2001, 352 T. 11 September 2001, 353 T. 11 September 2001, 354 T. 11 September 2001 355T. 356 T. p. 65 (GAB). p. 65 (GAB). p. 117 (GAB). p. 66 (GAB). p. 66 (GAB). p. 67 (GAB). p. 68 (GAB). p. 68 (GAB). p. 69 (GAB). 11 September 2001 p. 69 (GAB). 21 August 2002, pp. 11-12 (Accused) (ICS). - 66 -

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Thc Prosecutor v, ,lean dc Dicu Kamuhanda 22 January 2(}04 Defence Witness VPG testified that he attended a MRND political rally in Kayanga in September 1993 or October 1993 with the Accused. He further stated that the Accused introduced himself to the crowd but did not give a speech. 357 b. Findings o Discussion 282.After considering the totality of the evidence, the Chamber is not convinced that Prosecution Witness GAB presented a truthful account of what the Accused said at the MRND political rally. Considering the dangers, alleged by the Witness, faced by anyone not of Hutn ethnicity attending such an event, and considering that the Witness is a Tutsi, the Chamber is not convinced that the Witness even attended this rally. Concerning the testimony of the Witness about the distribution of weapons by the Accused in Kayanga secteur during April 1994, the Chamber finds it unlikely that Prosecution Witness GAB, a young Tutsi male, would casually have been playing football at such time when tensions between Hutns and Tutsis were high, and the situation was becoming increasingly perilous for the Tutsi population. That he might stand around listening to orders for the massacre of Tutsis, whilst weapons were being distributed, seems improbable. The Chamber finds that the testimony of Prosecution Witness GAB as to the actions of the Accused is not credible. o Conclusion 283.On the basis of the evidence, the Chamber does not find it established that the Accused distributed weapons in Myamise cellule, Kayanga secteur, Gikomero commune, as Witness GAB describes.

4. Distribution of Weapons at a Bar in Ntaruka Secteur a. Evidence 284.In this section the Chamber considers the following evidence in addition to the relevant evidence presented in Part II, Section J on Alibi and K on Impossibility and in the previous sections of this Part III. 357 T. 11 February 2003, pp. 13 and 14 (VPG) - 67 -

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285.

286. The Proscc~tor v. Jean dc IDict~ Kamuhar~da 22 Jarmarv 2004 Judgment ano Sc~te~~cc Prosecution Witness GAC testified that one day between 8 April 1994 and 12 April 1994 he was at a bar at Gatanga in Ntaruka secteur, Gikomero commune, owned by a man called Damien. The Witness saw the Accused arrive in a truck loaded with weapons, which were covered by a tarpaulin. 358 The Accused asked a man called Daniel where his Interahamwe forces were.359 When Daniel indicated that some personnel were present and that others were on their way, the Accused produced a list from which he called out names. The Accused then personally handed out weapons, including guns and grenades, to those who came forward. 36° When asked by the Prosecutor whether or not he was present from the beginning to end of the distribution of the weapons, the Witness affirmed that he was. 361 Prosecution Witness GAC testified that the Accused distributed weapons in other locations, because "he said so himself’. The Witness stated, "He [the Accused] said he was going to continue with the distribution of weapons in other locations where he had not done SO. ’’362 b. Findings o Discussion 287.Having considered the testimony of Prosecution Witness GAC the Chamber finds it to be improbable that the events would have occurred in the manner described by the Witness. The Chamber does not find the testimony that the

Accused read from a list of names and distributed weapons in or around the bar to be credible. Accordingly, the Chamber cannot rely on this evidence. o Conclusion 288.The Chamber does not find that the Accused came to a bar at Gatanga in Ntaruka secteur, Gikomero commune, and distributed weapons. 358 T. 18 February 2002, p. 64 (GAC) (ICS). 359 T. 14 February 2002, p. 76 (GAC) (ICS). 360 T. 14 February 2002, p. 77 (GAC) (ICS). 361 T. 14 February 2002, p. 79 (GAC) (ICS). 362 T. 14 February 2002, p. 85 (GAC) (ICS). - 68 -

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The Prosect~tor v, Jear~ de Dica K.amuhar~da 22 Jar.mary 2.004 5. People Heard from Others That the Accused Distributed Weapons a. Evidence 289.

290. In this section the Chamber considers the following evidence in addition to the relevant evidence presented in Part II, Section J on Alibi and K on Impossibility and in the previous sections of this Part III. Prosecution Witness GAD testified that whilst at a bar, he heard Interahamwe saying that the Accused had distributed machetes which had been kept in Kayanga. 363 Prosecution Witness GET testified that when he conducted an investigation into who was involved in the killings in Gikomero, the results of his enquiry showed that the Accused had distributed weapons. 364 b. Findings o Discussion and Conclusion 291.The Chamber finds that the testimonies of Prosecution Witnesses GAD and GET on the issue of weapons distribution constitute hearsay evidence, which in the circumstances of the present case cannot be relied on for the purpose of establishing the Accused’s involvement in the distribution of weapons. I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka Massacres) 1. Allegations 292.Paragraph 6.44 of the Indictment reads: Interim Govemment Minister Jean de Dieu Kamuhanda had family ties to Gikomero commune, Kigali-Rural prefecture. During the month of April 1994 he supervised the killings in the area. On several occasions he personally distributed firearms, grenades and machetes to civilian militia in Kigali-rural for the purpose of"killing all the Tutsi and fighting the FPR". 363 T. 28 January 2002, p. 102 (GAD). 364 T. 6 September 2001, p. 38 (GET). - 69 -

Page 70

The Proscc~.ltor v. Jean dc Dieu Kam~lhanda 22 Janua~’v 2004 293. Paragraph 6.45 of the Indictment reads: Furthermore, Jean de Dieu Kamuhanda personally led attacks of soldiers and Interahamwe against Tutsi refugees in Kigali-Rural prefecture, notably on or about April 12th at the Parish Church and adjoining school in Gikomero. On that occasion Jean de Dieu Kamuhanda arrived at the school with a group of soldiers and lnterahamwe armed with firearms and grenades. He directed the militia into the courtyard of the school Compound and gave them the order to attack. The soldiers and Interahamwe attacked the refugees. Several thousand persons were killed.

294. Paragraph 6.46 of the Indictment reads: During the attack on the school in Gikomero the militia also selected women from among the refugees, carried them away and raped them before killing them.

295. In its closing brief, the Prosecution alleges that: Between the period of 8 and 20 April 1994, by his acts and omissions in the wider Gikomero area and more particularly at the Gikomero Protestant and Gishaka Catholic Parish Churches and schools respectively, the Accused acted and engaged in activities that make him guilty of all the extant charged offences. On 12 April, the Accused a very powerful MRND man went to the Gikomero Parish Church and school where he condoned the shooting of an elderly Tutsi who was trying to intervene and ordered the massacres of the refugees at the place. It is the Prosecution case that he did the same as the Gishaka Catholic Parish and school, ars 296. In its closing brief, the Defence submits that it does not dispute that there were massacres on 12 April 1994 at the Parish of Gikomero. Rather the Defence strictly denies the involvement of the Accused in any capacity. The Accused testified that from 6 April 1994 he never went to his birthplace of Gikomero commune and that he was in Kigali throughout this time until he, his family members and his neighbours went to Gitarama on 18 April 1994. 366 365 Prosecution Closing Brief, para. 65. 366 Defence Closing Brief, para. 431 (French original) and para. 1320 (English translation). - 70 -

Page 71

Thc Proscccltor v, Joan de Dieu Kamuharlda ,.) ,. 22 Jarmary ~0t)4 2. Massacre at the Gikomero Parish Compound 297. 298. 299. a. Prosecution Evidence o Presence of the Accused in Gikomero Commune on 12 April 1994 Prosecution Witness GEB Prosecution Witness GEB, a Tutsi, 367 testified that before the war, he knew the Accused because they came from neighbouring secteurs. 368 The Witness testified that he had known the Accused for about three years before April 1994. The Witness remembered the day the Accused introduced his wife to his family 369 in Gikomero 37°, which was the last time that they saw each other. 371 Later, he testified that the last time he saw the Accused was at the opening of Kayanga Health Centre. 372 The Witness could not tell the Court the date of the opening ceremony of the Kayanga Health Centre. 373 On cross-examination, the Defence asserted that the Accused could not have been at the opening ceremony that was held in 1991 because the Accused was in Butare and had stayed there for two years without going to Gikomero. 374 The Witness identified the Accused in Court. 375 Prosecution Witness GEB testified that he lived in Gicaca secteur.376 He testified that he was baptised in Gikomero Parish in 1985. 377 He testified that on 7 April 1994 he was at home with his wife when he heard about the death of the President. 378 The Witness testified that "the Hum

decided to kill the Tutsi at that point in time’’379 and that from that moment he and the others went to the bush and neighbouring forest. 38° He testified that he left his place of hiding on 12 April 1994. 381 The Witness testified that when he retumed from the bush, he leamt that refugees were gathered at Gikomero. 382 He and three others, namely 367 T. 368 T. 369 T. 370 T. 371 T. 372 T. 373 T. 374 T. 375 T. 376 T. 377 T. 378 T. 379 T. 380T. 381 T. 382 T. 12 September 2001, 12 September 2001. 12 September 2001. 12 September 2001, 12 September 2001, 12 September 2001 12 September 2001, 12 September 2001, 12 September 2001 12 September 2001 12 September 2001, 12 September 2001 12 September 2001 12 September 2001 12 September 2001, 12 September 2001, p. 62 (GEB). p. 66 (GEB). p. 65 (GEB). p. 100 (GEB). p. 66 (GEB). p. 102 (GEB). p. 100 (GEB). p. 101 (GEB). p. 67 (GEB). p. 63 (GEB). p. 83 (GEB). pp. 62, 63 and 78 (GEB). p. 63 (GEB). p. 64 (GEB). p. 64 (GEB). p. 64 (GEB). - 71 -

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300. 301.

302. Thc Prosecutor v. ,lean de Dicu Kamuhatlda ~o "))" 92 ,lan uary ~,(. 04 Judgmcnt and Sc~tcncc Ruhindura, Munyensanga, and a man from Rubungo, joined the refugees at Gikomero; 383 but left their wives and children at Gahini Centre for safety reasons. 384 He further testified that they believed that no one would dare to attack the place of worship, and that is why they went to Gikomero Parish. 385 He testified that on his way to Gikomero Parish, at Kagikomero, 386 he saw the Accused on board a pick-up 387 together with two others sitting in the front of the vehicle. The people in the back were singing songs which are known to lnterahamwe. He testified that the Accused was sitting in the middle of the front seat of the pick-up. 388 The Witness testified that there were about 20 people in the back of the pick-up 389 and that some were wearing Kitenge material, others trousers, and some military uniforms. 39° The Witness added that some of the people in the back of the pick-up were carrying weapons, and that about five of them were carrying Kalashnikov guns. 39! The Witness testified that when the vehicle passed him he was a kilometre and a half from Gikomero Parish. 392 The car was coming from behind the refugees in the direction of Gikomero and the distance between him and the vehicle was "just a step away".393 He testified that they did not go further than the

place where the vehicle passed them, and waited to see what the Interahamwe were going to do. 394 Prosecution Witness GEB testified that they heard gunshot noise coming from the Gikomero Parish, 395 "salvos from several guns and it made a lot of noise", 396 approximately 30 minutes after the vehicle passed them.397 He testified that they immediately returned to the Gahini Centre where they had left their wives and children. 398 Prosecution Witness GEB testified that at around 6:00pm or 6:30pm, Tutsi survivors from Gikomero Parish arrived at the Gahini Centre. 399 The wounded told them that it was the "Interahamwe that Kamuhanda had brought from Kigali that had shot them. ’’4°° The Witness testified that 383 T. 384 T. 385 T. 386T. 387T. 388 T. 389T. 390 T. 391 T. 392 T. 393 T. 394 T. 395 T, 396 T. 397 T. 398 T. 399 T. 400 T. 12September 2001, pp. 64 and 65 (GEB). 12September 2001, pp. 76 and 82 (GEB). 12September 2001, p. 82 (GEB). 12September 2001, pp. 65 and 66 (GEB). 12September 2001, pp. 65, 66, 71 and 72 (GEB). 12September 2001, pp. 70, 84 and 85 (GEB). 12September 2001, p. 70 and 71 (GEB). 12September 2001, p. 72 (GEB). 12September 2001, pp. 71 and 72 (GEB). 12September 2001, p. 75 (GEB). 12September 2001, pp. 68 and 69 (GEB). 12September 2001, p. 75 (GEB). 12September 2001, p. 75 (GEB). 12September 2001, p. 76 (GEB). 12September 2001, pp. 75 and 91 (GEB). 12September 2001, p. 76 (GEB). 12September 2001, p. 76 (GEB). 12September 2001, p. 77 (GEB). - 72 -

Page 73

".Fhc Prosecutor v. Joan dc Dicu Kar~uhanda 22. January 2004 Aciel, a Hutu communal policeman of Gikomero commune, met the Witness and others at the Gahini Centre the same evening: 4°1 He testified that Aciel informed the people that they had to go and obtain weapons at the commune. 4°2 The Witness explained that from the Gahini Centre they went beyond Giti, in Byumba prdfecture, to a place called Rutare for safety. 403 Prosecution Witness GEU 303.

304. Prosecution Witness GEU identified himself as a Tutsi. 4°4 The Witness indicated that he lived on the banks of Lake Muhazi in April 1994. 405 He testified that while at home at around 5:00am on 7 April 1994, he learnt about the death of President Habyarimana on an international radio station. 4°6 He felt that the Tutsis were going to be killed because they had been killed prior to 1994, and because there were roadblocks set up to stop Tutsis, even before 1994. 407 He testified that some people disappeared at roadblocks because they were Tutsis, [nyenzi. 4°8 The Witness explained that "Inyenzi" was used by supporters of the Habyarimana government to 409 designate those attacking Rwanda at that time. He stated that Inyenzi literally meant "insect", but figuratively meant "the Tutsi. ’’41° The Witness stated that lnyenzi meant lnkotanyi. It meant that all Tutsis were Inyenzi or traitors, and the word was "pejorative, despising, negative. ’’411 Prosecution Witness GEU testified that on 8 April 1994, he saw many refugees in flight, coming from Bicumbi, Kabuga, and Mbandazi, saying that Interahamwe were killing Tutsi in that area. 412 The Witness explained that Interahamwe usually meant the youth of the MRND party who had undergone military training, but subsequently the word was used for the entire youth wing of that party because they behaved like Interahamwe. 413 The

Witness testified that the Interahamwe were Hutus414 whereas the refugees were all Tutsis. 415 On 8 April he was sent to the Gicaca trading centre to determine whether members of his extended family were among 401 T. 402 T. 403 T. 404 T. 405 T. 406 T. 407 T. 408 T. 409 T. 410T. 411 T. 412 T. 413T. 414T. 415T. 12September 2001, pp. 93, 94 and 101 (GEB). 12September 2001, pp. 94 and 95 (GEB). 12September 2001, p. 121 (GEB). 12February 2002, p. 13 (GEU). 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, 12 February 2002, p. 75 (GEU) (ICS). pp. 6-7 (GEU). pp. 8-9 (GEU). pp. 10, 11 and 13 (GEU). pp. 10-11 (GEU). p. 11 (GEU). p. 101 (GEU). pp. 13-14 (GEU). p. 14 (GEU). p. 16 (GEU). p. 15 (GEU). - 73 -

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The Prosecutor v, Jean de Dicu K.arrluharlda 22 darmarv 2004 the refugees. 416 He testified that he found only the conseiller telling people to go back to their homes and organise the rounds. 417 305.Prosecution Witness GEU testified that on 12 April 1994 his parents sent him again to the Gicaca trading centre to obtain new information. 418 He testified that refugees were scattered all over the Gicaca Trading Centre. 419 In closed session cross-examination, he confirmed that he was aware of a large influx of refugees from Gikomero on 12 April 1994 and that it was impossible to know from Kibara what was going on in Gikomero because of the distance between the two locations. 42° 306.Prosecution Witness GEU testified that while he was at Gicaca on 12 April 1994, at almost l:00pm, a white-coloured vehicle arrived. People approached it and shouted: "That is Kamuhanda, that is Kamuhanda who has arrived. ’’421 The Witness testified that the vehicle looked like the vehicles used by non-governmental organisations or the United Nations, like a Land Cruiser. 422 The vehicle had a distinctive mark, black or blue in colour, which said MINUAR. 423 The Witness testified that the mark was on adhesive paper, pasted on the side of the vehicle with letters fading. 424 It was also possible that the same mark was on the roof of the vehicle. 425 The Witness testified that Kamuhanda was with his

driver. 426 Some people spoke with Kamuhanda for not more than three minutes. 427 The Witness indicated that the distance between himself and the people who spoke with Kamuhanda was equivalent to the distance between himself and the Judges’ bench. 428 The Witness testified that he did not hear clearly what was said because there was a crowd. 429 307.Witness GEU testified that those who had spoken with Kamuhanda told them, "Kamuhanda has just confirmed the fact that the Tutsis had to die.’’43° The information was conveyed immediately after the conversation with Kamuhanda and Kamuhanda himself must have heard what the people were saying. 431 The Witness testified that the vehicle departed in the direction of the Gikomero secteur. There is only one road and that road 416T. 12 February 2002, pp. 16-17 (GEU). 417T. 12 February 2002, p. 17 (GEU). 418T. 12 February 2002, pp. 17-18 (GEU). 419T. 12 February 2002, p. 47 (GEU). 420T. 12 February 2002, pp. 25 and 72 (GEU); T. 12 February 2002, pp. 75-78 and 80. (GEU) (ICS). 421T. 12 February 2002, pp. 18 and 19 (GEU). 422T. 12 February 2002, p. 48 (GEU). 423T. 12 February 2002, p. 49 (GEU). 424T. 12 February 2002, p. 49 (GEU). 425T. 12 February 2002, p. 49 (GEU). 426T. 12 February 2002, p. 51 (GEU). 427 T. 12 February 2002, p. 19 (GEU). 428 The Defence approximated that distance to be about 5 metres, and the President stated that record should reflect 5 metres; T. 12 February 2002, pp. 51 and 52 (GEU). 429 T. 12 February 2002, pp. 52 and 53 (GEU). 430 T. 12 February 2002, pp. 19 and 20 (GEU). 431 T. 12 February 2002, p. 102 (GEU). - 74 -

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308. 309. 310.

311. I"hc Prosecutor v. Jean de Dicu K.amt~l~ar~da 22 Jar~uar’~ 2004 ,Iudg~neHt arid Sc~rtcnce leads to the Gikomero secteur.432 The Witness had never met Kamuhanda personally, but he had heard mention of him in his secteur because he was an influential person whose name was familiar. 433 The Witness testified that after Kamuhanda’s visit, the population’s attitude changed because someone influential had said that all the Tutsis had to die. All the Hutus started to get ready to carry out killings. 434 The Witness heard some Hums saying they would start sharpening their knives now that they understood who the target was. 435 Witness GEU testified that he used a side path to retum home from the Gicaca Trading Centre because he was afraid of the dangers. On the way, he heard grenade explosions and gunshots from the direction of Gikomero. 436 The Witness estimated that he heard the sounds when he was halfway between Gicaca Trading Centre and his parents’ house.437 He did not recall how long it took him to get home. 438 Witness GEU stated that in the evening, some of the refugees told him that Kamuhanda had ordered that Tutsis be killed and had distributed weapons to the Hums, including grenades and guns.439 Kamuhanda distributed weapons in a Gikomero secteur location where there was a Protestant Church, a primary school and many refugees. 440 On

cross-examination, the Witness stated that he understood that the weapons distribution took place after he saw Kamuhanda in Gicaca. 441 Witness GEU testified that a certain communal policeman, Sibomana Aseal [phonetic],442travelled virtually everywhere telling the Hums to embark on the killings, saying that even Kamuhanda had said that Tutsis had to die,443 and that no mistake should be made with regard to the target. 444 The policeman said these things in public at the location where the Witness lived. 445 Witness GEU testified that on 13 April 1994 he started seeing houses belonging to Tutsis being bumt. 446 He and other refugees ran away in the direction of the prefecture of Byumba because killings had not yet started 432 T. 433 T. 434 T. 435 T. 436 T. 437 T. 438 T. 439 T. 440 T. 441 T. 442 T. 443 T. 444 T. 445 T. 446 T. 12 February 12 February 12 February 12 February 12 February 12 February 12 February 12 February 12 February 2002, pp. 55 and 56 (GEU). 2002, p. 20 (GEU). 2002, pp. 20 and 21 (GEU). 2002, pp. 21 and 22 (GEU). 2002, p. 23 (GEU). 2002, pp. 65-67 (GEU). 2002, p. 61 (GEU). 2002, pp. 23 and 24 (GEU). 2002, p. 67 (GEU). 12February 2002, p. 67 (GEU). 12February 2002, p. 96 (GEU) (ICS). 12February 2002, p. 24 (GEU). 12February 2002, p. 24 (GEU). 12February 2002, pp. 68 and 72. (GEU). 12February 2002, p. 83 and 84. (GEU). - 75 -

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The Prosecutor v. ,lcar~ dc [)icu Kamuflanda 22 January 2004 ,lt~dgmcnt and Scnt:e.r~cc 312. there. 447 The Witness stated that they crossed Lake Muhazi, where Hutu canoe men raised their fares for taking people across the lake 100 to 150 per cent.448 He thought the canoe men assisted people across the lake initially because they were not properly informed of the situation; as they later started killing instead. 449 Prosecution Witness GEK The Chamber recalls that in Section H45° the evidence of Prosecution Witness GEK, a Tutsi married to a member of Kamuhanda’s family, was discussed extensively and that the Chamber found this Witness credible as to her prior knowledge of the Accused. 313.The Chamber recalls that Prosecution Witness GEK testified that her husband was a member of Kamuhanda’s family,451 and that she saw Kamuhanda about four times prior to the April 1994 events. 452 On 10 April 1994,453 her husband asked her to hide inside a room when Kamuhanda came to their residence and stayed to talk to her husband. The Witness testified that she was not far away, and could hear what they were saying to each other.454 Kamuhanda told her husband that the killings had not yet started in the Gikomero commune and that those who were to assist them had married Tutsi women. She testified that Kamuhanda indicated that he would bring equipment for them to start and if

their Tutsi women were obstacles "they should, first, eliminate them". 455 She testified that the Accused said that he would return to see if they had started with the killings or that he would retum so that the killings would start. 456 She said that she saw what happened with the weapons when the Accused retumed to arrange for the killing to start. 457 314.The Chamber further recalls that Prosecution Witness GEK testified that Kamuhanda came to the house of a neighbour 458 to arrange for the killings to start between 10 and 14 April 1994 at the primary school. Kamuhanda parked his vehicl, which was followed by another vehicle, a blue Daihatsu carrying a large number of people. The Witness explained that in the second vehicle some people were carrying machetes, clubs, and guns, but not everyone was armed, and that occupants either wore ordinary clothes or the Interahamwe uniform. The vehicle came from the direction of Kigali. On leaving, Kamuhanda entered his vehicle and went towards the 447 T. 12 February 2002, p. 25 (GEU). 448 T. 12 February 2002, p. 26 (GEU). 449 T. 12 February 2002, pp. 26-27 (GEU). 450 see above: Part III, Section H. 451 T. 4 September 2001, pp. 15 and 16 (GEK). 452 T. 3 September 2001, pp. 160 (GEK) (ICS). 453 T. 3 September 2001, p. 180 (GEK) (ICS) 454 T. 3 September 2001, pp. 167 and 168 (GEK) (ICS). 455 T. 3 September 2001 p. 171 (GEK) (ICS). 456 T. 3 September 2001, p. 177 (GEK) (ICS). 457 T. 3 September 2001, p. 177 (GEK) (ICS). 458 T. 3 September 2001, p.180 (GEK) (ICS). - 76 -

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315. The Prosecutor v, Jean de Dicu Kamt~handa 22 ,lanuarv 2004 primary school where there were large numbers of refugees. 459 The Witness testified that she heard gunshots and noise for between 20 and 40 minutes after Kamuhanda left.46° After the gunshots ceased, they were frightened, and could hear the vehicles’ engines, but could not see them as they left.461 The Witness testified that she could see wounded children fleeing towards them and a young girl whose legs were amputated sought refuge in their house. 462 Prosecution Witness GEK testified that three days after the shootings which occurred between 10 and 14 April 1994, when the Interahamwe from Rubungo commune came after them, she and relatives headed for Kibobo. There, they found bodies in the school. The Witness estimated the number of bodies at four to five thousand. 463 The Witness went to Kibobo with a relative and Defence Witness EM, her house-help. In further cross- examination, she denied that they stayed at Kibobo from 9 to 13 April 1994, as the Defence alleged Drocella and Defence Witness EM had stated.464 She testified that they went to Kibobo because they were afraid of being killed, but they came back quickly because their Hum husbands ensured their security, though they were Tutsis. 465 She denied the allegation by the Defence that she spent the night at Kibobo in Kayumba’s house.466 She testified in

re-examination that she also travelled to Kibobo with her servant467 and one child.468 The Witness testified in re- examination that Drocella and her sisters were Tutsi and that Defence Witness EM was Hutu. 469 o Presence of the Accused at Gikomero Parish Compound on 12 April 1994 and the Attack Prosecution Witness GAF 316.Prosecution Witness GAF, a Tutsi, testified that he knew the Accused when the Accused was a student at the IPN.47° He also knew the Accused from when he started working and met him on several occasions both when the Accused became involved in politics, 471 and when he was the Director General at the Ministry of Higher and Scientific Research. 472 The 459 T.3 September 2001, pp. 181 and 182 (GEK) (ICS). 460 T. 3 September 2001, p. 184 and 185 (GEK) (ICS). 461 T. 462 T. 463 T. 464 T. 465 T. 466 T. 467 T. 468 T. 469 T. 470 T. 471 T. 472 T. 3 September 2001, p. 184 (GEK) (ICS). 3 September 2001, pp. 185 and 186 (GEK) (ICS) 4 September 2001, pp. 8 and 9 (GEK) (ICS). 13 January 2003, p. 61 (GEK) (ICS). 13 January 2003, p. 61 (GEK) (ICS). 13 January 2003, p. 63 (GEK). 13 January 2003, p. 71 (GEK) (ICS). 13 January 2003, pp. 71 and 72 (GEK) (ICS). 13 January 2003, p. 72 (GEK) (ICS). 13 September 2001, pp. 45 and 46 (GEK) (ICS). 13 September 2001, p. 46 (GAF) (ICS). 13 September 2001, p. 46 (GAF). - 77 -

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317. 318. 473 T. 474 T. 475 T. 476 T. 477 T. 478 T. 479 T. 480 T. 481 T. 482 T. 483 T. 484 T. 485 T. 486 T. 487 T. 488 T. 489 T. Thc Proscc~ttor v Joan de Dicu Kamtihar~da 22 .hmuarv 20()4 Witness met the Accused at the inaugurations of the commune office in 1991 and of the Kayanga Health Centre in 1992. The Witness added that the Accused was very well known in his area and was known to be a very influential politician and an influential member of the MRND party from the Gikomero area. 473 In cross-examination, the Witness testified that he made a mistake in the dates. 474 He testified that he saw the Accused at the inauguration of the commune office in Gikomero in 1987, at the Kayanga Health Centre in 1991, and when the Accused attended MRND meetings in 1992. 475 The Witness testified that the opening of the commune office was a long time ago. When the Defence suggested that the opening was in 1986, the Witness testified that he thought it was in 1987.476The Witness testified that Kamuhanda was thanked for what he had done and given the position of Minister in May 1994. 477 The Witness identified the Accused in court. 478 Prosecution Witness GAF testified that Tutsi members of his family took refuge in his house on 7 April 1994 between 5:00 and 6:00pm. He testified that he and his family members hid in the forests around the houses. 479 At around 5:00am on 8

April 1994, they left their hiding places, went back to their houses 48° and saw the massive arrival of refugees, mostly Tutsis, 481 from Kabuga and Ndera regions. 482 On the same day, 8 April 1994, they decided to follow the refugees to Gikomero Hill together with their cattle. 483 The Witness went back home and on nearing his house on 9 April 1994, he found a Hutn police officer, 484 armed with a rifle, telling the Hutns not to flee as only the Tutsis were being sought. 485 Prosecution Witness GAF testified that on 9 April 1994 he suggested to his family that they take refuge at the Gikomero Parish.486 He left his wife and family with his relative, Gakwene Antoine, for safekeeping. 487 However, his wife and some other persons sought refuge at Gakwene’s son’s house nearby because there were too many people in Gakwene’s house. 488 The Witness did not go back to the Gikomero Parish that night. 489 In the moming after 10 April 1994, after spending the night at Rutabingwa’s 13 September 2001, 17 September 2001, 17 September 2001, 17 September 2001, 17 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, p. 46 (GAF). p. 35 (GAF) p. 35 (GAF). p. 36 (GAF). pp. 39 and 40 (GAF). p. 50 (GAF). p. 24 (GAF). pp. 24 and 25 (GAF) p. 26 (GAF). p. 25 (GAF). p. 27 (GAF) p. 29 (GAF). p. 28 (GAF). p. 30 (GAF). p. 30 (GAF) p. 31 (GAF). p. 31 (GAF). - 78 -

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319.

320. The P rosec~.~tor v. ,tean de I) ieu Kamuhanda 22 Jal:luary 2004 ,!udgmer~t arid Scnte~ce house, he went to the Parish to check on the situation because his elder brothers were there. 49° There was peace in Gikomero Parish. 491 When the Witness arrived at the Parish, they milked a cow and he took the milk to his children and their mother who had stayed at Gakwene’s house. 492 On the following day, 11 April 1994, he left Rutabingwa’s house to go back to his house and take some food for his family. 493 The Witness went back to the household of Rutabingwa that evening and returned later to the Parish where he spent the night with other people. 494 While at the Parish, at approximately 10:00pm, they listened to Radio Muhabura. 49s While they were listening, Pastor Nkuranga Charles, who was in charge of the Parish, 496 arrived and shouted "[...] Now that I have given you shelter, you are listening, to the radio of the Inyenzi which means that you yourselves are Inyenzi. They switched off the radio on the Pastor’s orders. 498 Prosecution Witness GAF testified that he found Hutus and Tutsis at the Parish. 499 A small market had been set up there to enable the refugees to get food supplies. 5°° Although Hutus were among the refugees, the Hutus who were at the market were natives of the area conducting business, s°l The Witness remained at the Parish the

following dayS°2[12 April 1994] when they milked the cows, and that he had to take supplies to the children and their mother. 5°3 He testified that he took his bicycle 5°4 to the Centre where his store was located to get some beans,s°s When the Witness returned to the Parish between 2:00pm and 3:00pm5°6 he heard noisy vehicles and that there were cows all around the courtyard. The Witness testified that he wanted to take a few cows away but he was not allowed by Pastor Nkuranga. The Witness accepted Pastor Nkuranga’s statement that they should wait to find out the purpose of those who were coming. 5°7 Prosecution Witness GAF testified that he saw four vehicles arrive from the upper side of the Parish. 5°8 The leading vehicle had its headlights turned on. As the vehicles were moving directly at him, he moved away 490 T. 491 T. 492 T. 493 T. 494 T. 495 T. 496 T. 497 T. 498 T. 499 T. 500 T. 501 T. 502 T. 503 T. 504 T. 505 T. 506 T. 507 T. 508 T. 13 September 2001 p. 31 (GAF). 13 September 2001 p. 32 (GAF). 13 September 2001, p. 33 (GAF). 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001. 13 September 2001, 13 September 2001, 13 September 2001, 13 September 2001. 13 September 2001. pp. 34, 37 and 38 (GAF). p. 38 (GAF). p. 39 (GAD. p, 39 (GAF). p. 39 (GAF). p. 39 (GAF). pp. 40 and 41 (GAF). p. 41 (GAF). p. 41 (GAF). p. 39 (GAF). p. 40 (GAF). p. 108 (GAF). p. 40 (GAF). p. 41 (GAF). p. 42 (GAF). p. 42 (GAF). - 79 -

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321.

322. Thc Proscccltor v’~ ,Joan de Dicu Kamuhanda 22 January 2004 and stood by the side of the Church. 5°9 The first vehicle was a white Pajero and the second a white Hilux pick-up truck, with UN markings. 51° The third vehicle was also a white Hilux pick-up and the fourth a Daihatsu, but the Witness could not recall the colour, though it may have been blue. 5~1 The vehicles stopped and the Witness was approximately 15 to 20 meters from the line of parked vehicles, though some were only 10 meters away. 512 The Daihatsu vehicle was full of Interahamwe, wearing all kinds of attire and carrying clubs, grenades, guns and machetes. 513 The Witness saw the Accused come out from the vehicle with UN markings, 514 but could not recall what the Accused was wearing. 515 Prosecution Witness GAF testified that when the vehicles came to a stop, they shot at Augustin Bucundura, Pastor Nkuranga’s assistant, who fell to the ground, sl6 He could not tell who shot at Bucundura, but that it was the people who came with the Accused, 517 a soldier disguised as an Interahamwe. s18 The vehicle was still in motion when Bucundura, a Tutsi, was killed, s19 Bucundura was standing next to Pastor Nkuranga, a Hutu, s2° when he was shot because they had come out from the house together. TM Pastor Nkuranga was not shot. s22 Prosecution Witness GAF testified that Kamuhanda stepped down from the

vehicle, raised his hands and spoke to those who came with him, particularly the Interahamwe. 523 Kamuhanda was accompanied by Interahamwe, a word used to designate members of the MRND. 524 However, even the inhabitants of the region that killed were called Interahamwe, and the word Interahamwe came to mean anybody who participated in the killings. 525 Kamuhanda spoke in Kinyarwanda to those who were with him, particularly the Interahamwe, and said "Mukore", which means, "work". 526 Kamuhanda, as he came with killers and was their leader, used this word to tell them that they should begin the killings. The killings started after he pronounced that word and all but one 509 T. 510T. 511T. 512T. 513T. 514T. 515T. 516T. 517T. 518T. 519T. 520 T. 521 T. 522 T. 523 T. 524 T. 525 T. 526 T. 13 September 13 September 13 September 13 September 13 September 13 September 13 September 13 September 13 September 17 September 13 September 13 September 13 September 13 September 13 September 13 September 13 September 13 September 2001, p. 42 (GAF). 2001, p. 43 (GAF). 2001, p. 43 (GAF). 2001, p. 44 (GAF). 2001, pp. 43 and 44 (GAF). 2001, p. 45 (GAF). 2001, pp. 46 and 47 (GAF). 2001, pp. 44 and 45 (GAF). 2001, p. 45 (GAF). 2001, p. 54 (GAF) 2001, p. 51 (GAF). 2001, p. 51 (GAF). 2001, p. 51 (GAF). 2001, p. 51 (GAF). 2001, p. 47 (GAF). 2001, p. 56 (GAF). 2001, p. 56 (GAF). 2001, pp. 47 and 48 (GAF). - 80 -

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323.

324. The Prosecutor v. ,Iearl de D.icu Kamu[’lar~.da 22 JaJ:mary 2()04 ,ludgrncnt arid Sc~.te£scc of the vehicles left. 527 Kamuhanda was not armed when he got out of the car.528 Kamuhanda incited the people to start the killing 529 and the young people who he had brought with him started killing on his order. 53° Kamuhanda was only there briefly; approximately one or two minutes before leaving. 531 Kamuhanda was not present when the killings started. 532 When Kamuhanda spoke, there were a lot of gunshots 533 following which most the cattle dispersed. Other cattle were shot in the courtyard and one of the vehicles carried away the beef. 534 Prosecution Witness GAF testified that nothing happened before Kamuhanda’s arrival. 535 Before Kamuhanda’s arrival, there were no rifles, grenades, guns, machetes or Rwandan clubs. Kamuhanda brought instruments to distribute to people without any. 536 When the Accused left, others stayed behind and started killing, including some communal police officers. 537 The killers used rifles, grenades, machetes, Rwandan clubs and even spears. 538 The killers were composed of Interahamwe and Hutns, but the Witness could not tell whether there were no Tutsi police officers. 539 Among the police officers, he recognized Karezi, who lived in Gikomero. 54° Also present were Ngarimbe and John Ntawuruhinga, reservists from Gikomero, 541 a

brigadier Nyarwaya, 542 and another police officer by the name of Asiel whose first name he did not know. s43 Prosecution Witness GAF testified that he took refuge in a sorghum field and ran away during the night. 544 From that location, he could see people 545 being killed in the Compound, but not the killers in the classrooms. The Witness testified that the number of people killed that day at the Parish was approximately one thousand. 546 The Witness was shown photographs from Prosecution Exhibit P2 and pointed out the area to the court. 547 The 527 T. 528 T. 529 T. 530T. 531 T. 532 T. 533 T. 534 T. 535 T. 536T. 537T. 538 T. 539T. 540 T. 541 T. 542 T. 543 T. 544 T. 545 T. 546 T. 547 T. 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 17 September 2001 17 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 17 September 2001 13 September 2001 13 September 2001 13 September 2001 13 September 2001 p. 48 (GAF). p, 52 (GAF). p. 52 (GAF). p. 52 (GAF). p. 55 (GAF). p. 55 (GAF). p. 8 (GAF). pp. 8 and 9 (GAF). p. 52 (GAF). p. 52 (GAF). p. 53 (GAF). p. 56 (GAF). p. 53 (GAF). pp. 53 and 54 (GAF). p. 54 (GAF). p. 54 (GAF). p. 42 (GAF). p. 48 (GAF). pp. 56 and 57 (GAF). p. 59 (GAF). pp. 62-76 (GAF). -81 -

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Thc Prosecutor v, Jean de Dieu Kamtlllarlda 22 Jarmarv 2004 Judemcnt and Scntcncc Witness was also shown a video 54s to clarify what he had identified from the photographs. 549 Prosecution Witness GES 325.

326. Prosecution Witness GES testified that as he is from Rubungo commune, which borders Gikomero, 5s° and that he knew Kamuhanda as a local intellectual, as did most people from that area. 551 Witness GES worked as a civil servant in the Department of Public Works in the Bridges and Roads Division. 552 He testified that during a period of approximately three years from 1990 to 1994, Kamuhanda was Director of Higher Education, a senior post in the civil service, and that Kamuhanda was well known in the civil service. 553 The Witness testified that, because his office was across the road from Kamuhanda’s office, he often saw Kamuhanda before and after work, and during breaks. 554 The Witness testified that the IRST was a division of the Registry of Higher Education and Scientific Research, where Kamuhanda was employed. The Defence suggested that Kamuhanda was at the IRST for two years from 1990 to 1992, contrary to the Witness’ testimony. 555 The Witness clarified that he did not keep close account of Kamuhanda’s whereabouts and it was possible that Kamuhanda went on a mission between 1990 and 1994.556 The Witness had the opportunity to see Kamuhanda at several Umugundas and animations that included personnel from several civil service divisions. 557 When the Defence suggested that the different divisions of the civil service conducted separate Umugandas and animations, 558 the

Witness responded that sometimes different divisions conducted joint gatherings. 559 In cross- examination, the Witness maintained that his offices were in the building across the street from Kamuhanda’s offices housed at the Kacyiru complex, though the offices may not have actually faced each other. 56° The Witness identified Kamuhanda in court. 561 Prosecution Witness GES testified that he fled from his home in Kigali on 8 April 1994 after the Hutns had begun killing the Tutsi there. 562 He fled to 548 Exhibit D.1; T. 13 September 2001, p. 66 (GAF). 549 T. 13 September 2001, pp. 66-70. (GAF). 550 T.30 January 2002, p. 57 (ICS). (GES. 551 T.30 January 2002, p. 58. (GES). 552 T. 29 January 2002, p. 114 and 116 (GES); T. 30 January 2002, pp. 63 and 64 (ICS), (GES). 553 T. 29 January 2002, pp. 114-118 (GES). 554 T. 29 January 2002, p. 117 (GES). 555 T. 30 January 2002, p. 70 and 71 (GES). 556T. 557T. 558 T. 559T. 560 T. 561 T. 562 T. 30January 2002, pp. 71-74 (GES). 30January 2002, pp. 79 and 80 (GES). 30January 2002, pp. 82, 98 (GES). 30January 2002, pp. 85, 97-98 and 100 (GES). 30 January 2002, pp 99-100 (GES). 29 January 2002, pp. 123 and 124 (GES). 29 January 2002, p. 102. (GES). - 82 -

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327. 328.

329. Fhc Prosecutor v. Jcar~ dc Dieu Kamuhar~da 22 Janua~w 2004 the North via Karagari and Rutare, in Byumba prdfecture, 563 and arrived in Gikomero Protestant Church on the evening of 11 April 1994. 564 Prosecution Witness GES testified that he saw Kamuhanda arrive at Gikomero Parish on the morning of 12 April 1994.565 Kamuhanda arrived in the passenger seat of a single-cab truck 566 with approximately ten armed men in the back of the truck.567 Witness GES recognised Kamuhanda as the latter got out of the truck to speak with the~astor of the Parish, Pastor Nkuranga, 568 approximately fifty metres away. During this conversation, the truck backed into a parking place and armed men got out of the truck. 57° In response to a question from the Bench as to whether or not the men who arrived in the truck with Kamuhanda were wearing uniforms, the Witness testified that he only remembered that they wore hats covered with grass and branches. TM In cross-examination, the Witness testified that the investigators erred in writing that Kamuhanda had arrived at 10:00am whereas the Witness testified that he told the investigators that some Hutus had arrived at approximately 10:00am to loot the Tutsi refugees. He maintained that Kamuhanda arrived at the Parish sometime between 12:00pm and 2:00pm. 572 Prosecution Witness GES testified that after approximately ten minutes, the armed men began to

kill refugees who had taken refuge in Gikomero Parish, starting with a man named Bucundura. 573 The Witness testified that Bucundura was killed by a person who came with Kamuhanda 574 while Kamuhanda was still there. 57s Prosecution Witness GES testified that the killings continued in Gikomero, forcing him to flee once again, across the river to Giti commune and then across Lake Muhazi. 576 Prosecution Witness GAA 330.Prosecution Witness GAA, a Tutsi, first met Kamuhanda when Kamuhanda’s sister Mukabandora was married to Vincent Ngirumpatse and lived in Mbandazi, about five hundred metres from where he lived. 563 T. 564 T. 565 T. 566 T. 567 T. 568 T. 569 T. 570 571 572 573 574 575 576 29 January 2002, pp. 103 and 104. (GES). 30 January 2002, p. 15. (GES). 29 January 2002, pp. 108-109. (GES). 30 January 2002, pp. 40, 41, 91 and 92. (GES). 29 January 2002, pp. 106-108 (GES); T. 30 January 2002, pp.38-42. (GES). 30 janvier 2002, p.104. (GES). 29 January 2002, p. 109*. (GES). T.30 janvier 2002, pp. 91-92. (GES). T.30 January 2002, p. 108. (GES). T.30 January 2002, p. 88. (GES). T.29 janvier 2002, pp. 120, 122. (GES). The English transcript refers to Bicindira. T.29 January 2002, p. 112. (GES). T.29 January 2002, p. 113. (GES). T.29 January 2002, pp. 41,120, 122 and 123. (GES). - 83 -

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331. 332. t’hc Prosecutor v. Jeal~ dc Dicu Kam uhanda 22 Jarmarv 2()04 Kamuhanda went to Mbandazi to take gifts to his sister on the birth of her first child and the Witness was present during this ceremony, although he was not officially invited. Witness GAA sat outside the house for about one hour and saw Kamuhanda for a short while. 577 The Witness further testified that he saw Kamuhanda again when he had gone to Mbandazi to bury his sister, s78 The Witness identified Vincent Ngirumpatse from a photograph 579 taken at the Accused’s sister’s funeral. During both occasions, he never spoke to, nor was he introduced to Kamuhanda but someone showed him who Kamuhanda was.s8° The Witness identified the Accused in Court, and the Court noted that the Witness had recognised the Accused. 581 Prosecution Witness GAA testified that, while in Mbandazi, he was told that he was being sought because he was a Tutsi and because he represented the PL Party. s82 He stayed in Mbandazi on 7 and 8 April 1994 and went to Kabuga on 9 April 1994. The Witness did not stay in Kabuga but went back to Mbandazi and Gicaca on the same day. He spent the night in Gicaca and went to Gikomero on 10 April 1994.583 The Witness knew Pastor Nkuranga, who was of Hum origin. On 10 April 1994, the Pastor told him that it was safe in Gikomero. 584 In Gikomero, the Witness could see houses on fire in

Mbandazi. Witness GAA felt unsafe in Gikomero where there were people who knew him and because he saw Interahamwe at roadblocks; so he left and went to Kibara. Nevertheless, he returned to Gikomero on 12 April 1994 because about thirty of his family members where there.585 The Witness testified that he saw Interahamwe wearing uniforms at Gikomero on 10 April 1994, but they were not carrying weapons, s86 and they were only at the roadblocks. Prosecution Witness GAA testified that on 12 April 1994 at Gikomero s87 Parish, there were about six thousand refugees and livestock in the courtyard of the Protestant Parish. Local Hutus came to the Church to sell goods to the refugees, s88 The Witness did not recognise photographs 4, 6 and 8 in Prosecution Exhibit 2.589 The Witness testified to having seen a white pick-up truck bearing the letters "UN" on its side arrive at Gikomero. There were about ten people who came from the rear of the 577 T. 19 September 2001, pp. 107 - 110. (GAA). 578 T. 19 September 2001, pp. 108 and 109. (GAA). 579 Prosecution exhibit 4. 580 T. 19 September 2001, pp. 107 - 110. (GAA). 581 T. 19 September 2001, pp. 111-113. (GAA). 582 T. 19 September 2001, pp. 93, 94, 95 and 98. (GAA). 583 T. 19 September 2001, pp. 95, 97 and 98. (GAA). 584 T. 19 September 2001, p. 100. (GAA). 585 T. 19 September 2001, pp. 101 - 103. (GAA). 586 T.19 September 2002, p.102. (GAA). 587 T. 20 September 2001, p. 23. (GAA). 588 T. 20 September 2001, pp. 26 - 27. (GAA). 589 Prosecution Exhibit P2, Maps, sketches and still photographs of Gikomero Parish; T. 20 September 2001, p. 29. (GAA). - 84 -

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333.

334. The P.~:osccutor v~ 3can dc f)ic~ K.am~lhal’lda 22 January 2004 vehicle including soldiers, [nterahamwe and communal policemen. All of these people wore their respective uniforms and carried weapons such as rifles, cudgels and knives. 59° He further testified that another vehicle arrived from which Kamuhanda alighted raising his hands as if greeting the people. The Witness indicated that he was less than one hundred metres away from Kamuhanda. 591 He testified that there was a stampede when the two vehicles arrived and people were being shot at.592 The Witness initially testified that the shooting had started when the first vehicle arrived, and that as soon as he saw the second vehicle arrive, he left. 593 Prosecution Witness GAA testified that Pastor Nkuranga, accompanied by Bucundura, came out of his house and shouted, "I am Pastor Nkuranga, do not shoot at me." The Witness testified that at that moment, one of the soldiers shot and killed Bucundura and afterwards they shot three others. He further testified that Bucundura was shot when the two vehicles were there.594 The Witness did not mention Bucundura’s shooting in his statement of 6 July 1999.595 Prosecution Witness GAA testified that in Kamuhanda’s presence, Hutns shouted, "Get to work Kamuhanda is here now.’’596 The Witness testified that Kamuhanda went back into his vehicle and left while Hutns continued to

shoot Tutsis. The Witness further testified that Kamuhanda was present during these killings but he did not stop the soldiers from shooting. The Witness’s family members told him that the shooting continued for four to five hours, and after he returned from exile he estimated the number of people killed at approximately three thousand. 597 Prosecution Witness GEE 3 3 5. Prosecution Witness GEE, a Tutsi, testified that the day after he heard on RTLM Radio that the President’s plane had been shot down,598 Tutsi refugees went to his house, and Interahamwe attacked and killed those refugees. 599 He survived and fled to Gikomero commune on 7 April 1994. On the way he met approximately one hundred Tutsi refugees coming from the Kabuga Region. The Witness testified that he and the refugees were detained by Interahamwe, who took their belongings and then 590T. 19 September 2001, pp. 104-106. (GAA). 591T. 19 September 2001, pp. 113, 114 and 119 (GAA), T. 20 September 2001, p. 32. (GAA). 592T. 20 September 2001, p. 31 (GAA). 593T. 20 September 2001, p. 33 (GAA). 594T. 20 September 2001, p. 33 (GAA). 595T. 20 September 2001, pp. 42 and 43 (GAA). 596T. 19 September 2001, p. 115 (GAA). 597T. 20 September 2001, pp. 36 and 37 (GAA). 598T. 17 September 2001, pp. 99 and 103 (GEE). 599T. 17 September 2001, pp. 104 and 105 (GEE). - 85 -

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336. 337.

338. Thc Prosecutor v, ,lean de D.ieu Kamuhanda 22 January 2.()()4 released them. They went to Burunga to a place known as "’Je t’aime" where the Jurwe seeteur Office is located. At Jurwe, they saw a white "taxi," coming towards them and they ran to Samutuha because the people in the vehicle were distributing machetes and other tools used to kill Tutsis. 6°° The Witness explained that he did not talk about this taxi to the investigators in the statement of 28 February 2000 because he could not explain every detail. 6°I The Witness testified that from Samutuha he went to Cyabatanzi 6°2 where he spent two days until the Interahamwe drove him and the refugees out to Gicaca. 6°3 They spent a night in Gicaca and the next moming the Interahamwe attacked them again and they ran to Gikomero secteur in Gikomero commune. 6°4 He further testified that he got to Gikomero at 10:00am on or about 11 April 1994. 6o5 Prosecution Witness GEE testified that he knew Pastor Nkuranga. 6°6 He further testified that there were approximately 400 people in the classrooms of the Gikomero Parish Compound.6°TThe Witness spent the night of 11 April 1994 in Gikomero with other refugees. 6°8 He did not recognise any of the buildings in the Compound from the photographs shown to him in Court. 609 Prosecution Witness GEE testified that between 2:00pm and 3:00pm on 12 April 1994, while they were attacked by

Interahamwe, refugees exclaimed, "We’re going to be killed. Kamuhanda is coming. ’’61° The Witness was standing in front of a classroom when he saw vehicles arrive. Kamuhanda arrived first, at 3:00pm, 611 with soldiers and communal policemen in a white pick-up truck. This was the first time the Witness saw Kamuhanda. 612 After the arrival of Kamuhanda, two other vehicles arrived and stopped to let lnterahamwe and soldiers alight. 613 When Kamuhanda arrived, Pastor Nkuranga was with an old man named Bucundura. 614 Prosecution Witness GEE testified that a policeman shot at Bucundura, who died on the spot.615 He was able to see the shooting from where he stood, despite the crowd of refugees and the cattle. The refugees then fled 600 T, 601 T. 602 T, 603 T, 604 T, 605 T. 606 T. 607 T. 608 T. 609 T, 610T. 611 T, 612T. 613T. 614T. 615T. 17 September 2001, 19 September 2001, 17 September 2001, 18 September 2001, 18 September 2001, 19 September 2001, 18 September 2001, 19 September 2001, 18 September 2001, 19 September 2001, 18 September 2001, 18 September 2001. 18 September 2001. 18 September 2001. 18 September 2001 18 September 2001 pp. 105 - 109 (GEE). p. 61-62 (GEE). p. 110 (GEE). p. 4 (GEE). p. 4 and 5 (GEE). p. 13 (GEE). p. 6 (GEE). p. 7 (GEE). p. 5 (GEE).; T. 19 September 2001, p. 25 (GEE). pp. 32 - 36 (GEE). Photographs 4, 6, and 8 in Prosecution Exhibit p.5 (GEE). p. 6 (GEE); T. 19 September 2001, p. 25 (GEE). pp. 6 and 8 (GEE); T. 19 September 2001, pp. 56 - 58 (GEE). p. 9 (GEE). pp. 6 and 7 (GEE). pp. 7 and 9 (GEE). - 86 -

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339. The P.rosecutor v. Jean de Die~ K.arnuhanda 22 Jar~uary 20()4 Judgment arid So,st(race to the classrooms where they were shot at, flushed out, and ordered to lie down. 616 Prosecution Witness GEE testified that in the presence of those who were with him, Kamuhanda called upon the Hutus to carry out the attack and to stay up all night. 617 The Witness survived and lay among the dead until 4:00am [the next day], when another attack was launched by the Hutus who were guarding the site. He escaped to a sorghum field and later fled to Lake Muhazi. 618 According to the Defence, in his statement, the Witness declared that he hid in the sorghum fields after the attack, at 5:00pm on 12 April 1994, and not at 4:00am [the next day] as he testified in Court. 619 The Witness explained that because, he had not seen Kamuhanda then, he did not think this information to be important to the investigators. In cross- examination, the Witness was asked why he had not mentioned in his statement that Kamuhanda ordered this 4:00am attack. He testified that it was an omission on his part and that he could not explain everything. 62° Witness GEE did not see Kamuhanda leave the area because he was lying on top of dead bodies pretending to be dead. 621 Prosecution Witness GEA 340.Prosecution Witness GEA, a Tutsi, 622 testified that on Wednesday, 6 April 1994, when he was at home, he heard an

explosion and saw a bright light between 7:00pm and 8:00pm. He then left his house and went towards Kanombe. 623 He testified that he hid as of the night of 6 April, without his wife and his loved ones. He did this because of his experience in the 1963 war, when only Tutsi men were killed, and women and children were spared. 624 On Friday, two days after Habyarimana’s plane was shot down, he went to his neighbour, an elderly woman. 62s However, when he saw three Hutus626 armed with bows and arrows, machetes and grenades, he sought shelter in a banana plantation. 627 The three men looted his house and killed two people he had left there. 628 The Witness testified that, following this incident, on Friday, 8 April 1994, he left and hid in Cgishure in Rubungo commune, Jurwe secteur. Here he found more 616T. 617T. 618T. 619T. 620 T. 621 T. 622 T. 623 T. 624 T. 625 T. 626 T. 627 T. 628 T. 19September 2001, pp. 37 and 38 (GEE). 19September 2001, p. 75 (GEE). 18September 2001, pp. 11 and 12 (GEE). 19September 2001, p. 62 - 65 (GEE). 19September 2001, pp. 74 and 75 (GEE). 19September 2001, pp, 51-53 (GEE). 20 September 2001, p. 67 (GEA). 20 September 2001, p. 62 (GEA). 24 September 2001, pp. 4, 5 and 10 (GEA). 20 September 2001, pp. 70 and 71 (GEA). 20 September 2001, pp. 71 and 73 (GEA). 20 September 2001, p. 71 (GEA). 20September 2001, p. 72 (GEA). - 87 -

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The Prosecutor v, ,]ea1’l de D.ieu Kamullanda 22 Jarmat’y 2004 Judgment and Sc~t:c~cc than three thousand Tutsi refugees from various localities’ 629 The Witness testified that there were attacks every night carried out by the population and the Interahamwe. 63° Reinforcements came from the communal police and the military, who also killed. 631 341.Prosecution Witness GEA testified that he headed for Gikomero, arriving on Monday, 11 April 1994, at the Gikomero Parish. 632 He had never been to that Church before, and has never returned. 633 The Witness testified that there were many refugees with their cattle at the Church. 634 He testified that he saw nothing when he arrived in Gikomero on 11 April 1994 because he was tired, wounded, and uncertain as to whether the place was safe or not. 635 342.Prosecution Witness GEA testified that the day after his arrival [12 April 1994], the refugees were attacked by Interahamwe, policemen, and soldiers, who had arrived in a white pick-up with the letters "UN" on the side. 636 In cross-examination, the Defence indicated that the Witness had made no mention of the initials "UN" in his statement. The Witness explained that during the interview he felt it unnecessary to mention the initials because he was not directly asked this information. 637 The Witness testified that the white pick-up carried many people and

that, upon its arrival, Kamuhanda alighted from the front cabin and went towards the Pastor’s house. 638 The vehicle was parked near the Church. 639 Prior to the massacre, Witness GEA did not know the Accused. 64° The Witness was told this man was Kamuhanda by a boy,64! a native of Gikomero. 642 Others with him shouted, "Kamuhanda has just arrived, our lives will no longer be peaceful and safe.’’643 In response to a question from the Bench, the Witness testified that those who recognised Kamuhanda knew him as a killer. 644 The Witness further testified that upon arriving in the white pick- up, Kamuhanda talked to Pastor Nkuranga. The Witness said that Nkuranga connived with Kamuhanda, because he prevented the refugees from leaving the Compound, by reassuring their safety. 645 In cross- examination, the Witness testified that on 12 April 1994 the Pastor took 629 T. 20 September 2001. pp. 73 and 74 630 T. 20 September 2001. p. 75 (GEA). 631 T. 20 September 2001. p. 75 (GEA). 632 T. 20 September 2001 pp. 75 and 76 633 T. 20 September 2001 pp. 76 and 82 634 T. 20 September 2001 p. 77 (GEA). 635 T. 24 September 2001 p. 17 (GEA). 636 T. 20 September 2001 pp. 76 and 77 637 T. 24 September 2001 p. 26 (GEA). (GEA). (GEA). (GEA). (GEA). 638 T. 20 September 2001, p. 78 (GEA). 639 T. 24 September 2001, p. 20 (GEA). 640 T. 24 September 2001, p. 35 (GEA). 641 T. 20 September 2001, p. 78 (GEA). 642 T. 24 September 2001, p. 36 (GEA). 643 T. 20 September 2001, p. 79 (GEA). 644 T. 24 September 2001, p. 41 (GEA). 645 T. 20 September 2001, pp. 77, 79 and 81 (GEA). - 88 -

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343. 344. ’Fhc Pro~ccutor v 3can dc l)ieu Kamuhanda 22 Jarmavv 20(]4 Judgment and Se~tencc pity on the refugees before the arrival of the assailants, and held a meeting to persuade them not to run away on.640 He explained that the Pastor stood in the middle of the crowd, in the courtyard, and talked to the people. 647 The Witness testified that he personally heard the Pastor speak, and that the meeting’s sole purpose was to prevent the refugees from fleeing. 648 He said that the Pastor emphasised "security and safety. ’’649 In cross- examination, the Witness testified that, upon arrival of the assailants, the Pastor no longer took pity on the refugees. 65° The Witness testified that people, who had remained behind at Jurwe, joined the refugees on 12 April, informing them of an imminent attack 651 Prosecution Witness GEA testified that after the conversation between Kamuhanda and Pastor Nkuranga, an old man, named Bucundura, was shot. He witnessed this incident from a small eucalyptus bush where he was hiding on the veranda. The people who were in the pick-up then rushed towards the refugees and started slashing and shooting them. 652 Prosecution Witness GEA testified that the attack started between 1:00pm and 2:00pm. 653 Another vehicle came to load military, Interahamwe, and policemen. 6s4 He testified that two vehicles came after the first vehicle and after Nkuranga and

Kamuhanda had concluded their conversation. 655 The Witness testified that he paid attention to the identification marks on the first vehicle, but not on the others. He testified that this was because he thought the first vehicle was some ordinary vehicle until he saw that there were the policemen and Interahamwe who had shot at him at Gishure. 656 The Witness confirmed that one of the vehicles was from Rubungo 657 commune. The Witness testified that when they started shooting, Kamuhanda took his vehicle and left.658 He testified that those who had arrived in the second vehicle encircled those trying to flee, and used rifles, grenades, and traditional weapons. 659 He testified that they shot for a long time because they chased the refugees to the surroundings of Gahini. 66° 646 T. 24 September 2001 647 T. 24 September 2001 648 T. 24 September 2001 649 T. 24 September 2001 650 T. 24 September 2001 651 T. 24 September 2001 652 T. 20 September 2001 653 T. 24 September 2001 654 T. 20 September 2001 655 T. 24 September 2001 pp. 12-14 (GEA). p. 14 (GEA). pp.14 and 15 (GEA). p. 16 (GEA). p. 12 (GEA). pp. 12-14 (GEA). p. 79 (GEA); T. 24 September 2001, p. 28 (GEA). p. 19 (GEA). pp. 79 and 80 (GEA). pp. 20-22 (GEA). 656 T. 24 September 2001 p. 22 (GEA). Prosecution Witness GEA is likely to be referring to the incidents at Cgishure that he mentioned in his testimony-in-chief spelt with a "C". 657 T. 24 September 2001, pp. 25 and 26 (GEA). 658 T. 20 September 2001, p. 79 (GEA). 659 T. 20 September 2001, pp. 79 and 80 (GEA). 660 T. 20 September 2001, p. 82 (GEA). - 89 -

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345. Thc Pmscctlwr v. Jeall de Dicu Kamuhanda 22 Jarl aary 2004 Prosecution Witness GEA testified that he could not say how many people had died at that location, because "that day there were very many. ’’661 He testified that Pastor Nkuranga even chased the survivors from his own residence. 662 The Witness managed to flee through the lower part of the Church 663 when the assailants started shooting at people. 664 From there, he said that he headed for Kibobo, where he took refuge at Gahini in Gikomero. 66s When asked to identify the photographs contained in Prosecution Exhibit 2,666 the Witness could not recognise the building in photograph No. 4667 or the building in Photograph No. 8668 The Witness testified that he did not expect to be asked to identify buildings, but only to comment on the events that had OCCUlTed. 669 Prosecution Witness GEC 346.

347. Prosecution Witness GEC, a Tutsi, sought refuge in Gikomero School on 11 April 1994 where there were about three thousand refugees. She arrived at 5:00pm and this was her first time there. 67° Prosecution Witness GEC testified that there were refugees in each classroom and about fifty people in her room. There were also many cows and sheep in the Compound. On 12 April 1994, at noon, she and other refugees left to escape to Igasagara, but a policeman shot at them and they returned to the school. 671 When Defence Counsel showed Prosecution Exhibit 2, photographs No. 4, 6 and 8 to the Witness, she did not recognise the building. She explained that she had not noticed the structure of the building when she was a refugee there. She testified to being inside the classroom when the vehicles arrived and when she came out of the classroom she saw four vehicles. The first vehicle, a white pick-up with the "UN" logo, was full of Interahamwe and soldiers. Another vehicle was a Hilux model.672 A certain Nzaramba, who was with her, recognized Kamuhanda as he stepped out of the vehicle. 673 The Witness also heard other people saying that it would all be over for them because Kamuhanda had arrived. 674 She also saw Kamuhanda standing in front of the classrooms with Pastor Nkuranga, who lived nearby. 661T. 20 662T. 24 663T. 20 664T. 24 665T. 20 666T. 24 667T. 24 668T. 24 669T.

24 670T. 671T. 672T. 673T. 674T. September 2001, p. 83 (GEA). September 2001, pp. 11 and 12 September 2001, p. 80 (GEA). September 2001, p. 23 (GEA). September September September September September 24 September 24 September 24 September 24 September 2001 24 September 2001 2001 p. 80 (GEA). 2001 pp. 28 and 29 2001 p. 31 (GEA). 2001 p. 32 (GEA). 2001 pp. 31 and 32 2001, p. 50 (GEC). 2001, p. 50 (GEC). 2001, pp. 51 and 52 pp. 52 and 53 pp. 52 and 53 (GEA). (GEA). (GEA). (GEC). (GEC). (GEC). - 90 -

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348.

349. The Prosecutor v. Jean de Dieu Kamulmnda 22 January 2.004 Judgmct~t arid Scnte.ncc Prosecution Witness GEC testified that she heard from survivors who were hiding there that they shot at a man named Bucundura, his wife and his family in front of the classrooms. She did not, however, personnaly see the incident. 675 Prosecution Witness GEC testified that Kamuhanda raised his hands and said "start working" to those who were with him.676 She explained that the attackers had guns, grenades, machetes, clubs, and cudgels and those with guns wore military uniforms. She heard the words "start working" when she was at the door of the classroom. The distance between Kamuhanda and herself was approximately five metres. The local Hutns joined those who had arrived in the vehicles. After Kamuhanda said these words, the attackers started shooting and cutting up people who were in the classrooms. 677 The Interahamwe ordered the Witness and other refugees to leave the classroom and lie on the ground. The attackers undressed her and the other refugees and started cutting them up when they came out of the classroom and lay on the ground. The Witness did not know if Kamuhanda was still present. The Witness was injured on her leg, chest, and back with a spear and a club, received a cut on her head with a machete, and her ear lobe was split in two. The people lying beside her were cut up, and

those trying to run away were shot. According to the Witness, the massacre started about l:00pm or 2:00pm and continued until 5:00pm when the attackers withdrew, but the local people continued to loot. The Witness estimated that there were about three thousand refugees there, of which approximately 2,500 died. 67g She testified that at about 5:00pm she left the place, went to Pastor Nkuranga’s house and then went to hide in a sorghum field. When she left the massacre site, she was injured and was only wearing a skirt which was torn by the attackers as the attackers took away the refugees’ clothes. 679 Prosecution Witness GEG 350.Prosecution Witness GEG, a Tutsi, testified that on the evening of 6 April he was very close to his residence in a bar. When he heard three gunshots, he came out of the bar and saw a burning plane crash. The killings started on 8 April 1994 when Interahamwe and soldiers launched an attack on his home where his pregnant wife and three of his nine children were, the rest of his children having already escaped. The Witness testified that when he saw the attackers approaching his house, he managed to escape through a narrow path to a banana plantation and hide in a thick bush where beans where growing. 68° He testified that when he 675T. 24 September 2001, pp. 53 and 95 (GEC). 676T. 24 September 2001, p. 53 (GEC). 677T. 24 September 2001, pp. 54, 55, and 63-66 (GEC). 678T. 24 September 2001, p. 62 (GEC). 679T. 24 September 2001, pp. 59-61. (GEC). 680T. 25 September 2001, pp 9-10. -91 -

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351.

352. The Prosecutor v, Jear~ de Dicu Karnul’mnda 22 January 2004 came back to his house at around 8:00pm he found his wife and three of his children seriously wounded. He covered the bodies and went back to his hiding place. When he returned from exile in August 1994, he found the dead bodies in the toilet pit.681 The Witness testified that he left for Gikomero Parish on 10 April with two of his children and that he arrived at the Protestant Church on 11 April around 8:00am or 9:00am. 682 He testified that there were around 2,000 refugees hiding there, the majority of whom were Tutsis. 683 Prosecution Witness GEG testified that he spent the night in the Church courtyard, and saw Pastor Nkuranga the next day, standing in front of his residence. At this time the refugees were scattered throughout the Compound and classrooms. During the day, at around l l:00am or 12:00pm, Pastor Nkuranga called the refugees to talk to them. 684 In cross- examination, the Witness testified that he knew Pastor Nkuranga because they used to be schoolmates and not, as indicated in his written statement of February 2001, because the refugees pointed out to him the Pastor. 685 In cross-examination, the Witness also testified that there were many cows in the Compound of the Gikomero Parish and that there was no concentration of people in a particular place. Mainly women and children were in

the classrooms, and the others were outside. The place was akin to a market place, with locals selling bananas and sweet potatoes. 686 Prosecution Witness GEG testified that he was standing at the side of the Church facing the courtyard when a small white truck arrived, with two other vehicles following soon after, and stopped in the Compound. 687 The people in the vehicles were holding guns and other traditional weapons. The refugees identified Kamuhanda when he alighted off the white truck by shouting: "That is Kamuhanda, now that he is here, we are finished. ’’688 The Witness did not personally know Kamuhanda, but the refugees identified him because he was well-known. 689 In cross-examination, the Witness stated that Kamuhanda was wearing ordinary clothes. Kamuhanda was not in military uniform, but carried a rifle, which he did not use. The men accompanying him used their weapons. The Witness explained that he did not mention the rifle in his written statement of February 2000 because he only remembered details when confronted with a specific question. 69° The Witness testified that Kamuhanda walked towards Pastor Nkuranga and talked to him. They were pointing at the refugees as they 681 T. 25 September 2001, pp 11,12 and 34. 682 T. 25 September 2001, pp.15 and 51. 683 T. 25 September 2001. pp. 14-16. 684 T. 25 September 2001, pp 16-17. 685 T. 25 September 2001, pp. 42, 44, 47-55. 686 T. 25 September 2001, pp. 55-57. 687 T. 29 September 2001, pp. 57-58. (GEG) 688 T. 25 September 2001. p. 19 (GEG) 689 T. 25 September 2001, pp. 18-19 (GEG). 690 T.25 September 2001, pp.78-81 (GEG). - 92 -

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353. 354. 355 [he Prosecutor v. Jean de Dicu K,amuharlda 22 .ta]marv 2004 talked. 691 The people accompanying Kamuhanda were Hums with guns and machetes, and were composed of both military and Interahamwe. The lnterahamwe wore Kitenge uniforms with specific berets and belts, and the soldiers wore military uniforms. 692 There were Hum policemen from Rubungo in the other two vehicles. The Witness recognised some of them: Karasira, Rubanguka, Basesa Jean de Massin, Bucana, and the counsellor of the Rusoso secteur, Mwongereza Bernard. At that point in time, they 693 had surrounded some refugees. Witness GEG testified that the vehicle stopped near Pastor Nkuranga’s residence and passed the place where he was standing at that time, namely in front of the Church, at the left comer. 694 The white truck was closed in the front and open in the back, and contained about ten armed people. The Witness did not flee when he saw the truck arrive since he was unclear about the situation even though they were armed.695 There were two vehicles behind the first truck which stopped in the Compound. Although the Witness recognized Basesa in the commune vehicle, 696 and seeing Basesa frightened him, he did not try to flee since they might have asked him why he was running away.697 The Witness left when the shooting started. 698 In cross-examination, the Witness identified the Church on photograph Nos. 4 and 6699, but did not recognize the white buildings on photograph No.

8. The Witness marked where he was standing when the vehicles arrived on photograph No. 6 but could not mark the location where the 700 vehicles came to a stop. ¯ Prosecution Witness GEG testified that the attack started when a person, who arrived in the white truck shot Augustin Bucundura, an old man standing next to the pastor. In cross-examination, the Witness testified that Bucundura’s wife, standing next to him, died immediately. Kamuhanda left soon afterwards. 701 In cross-examination, the Witness testified that Kamuhanda was at that location briefly, approximately two to ten minutes. 7°2 The Witness never saw Kamuhanda again, and said that he may not be able to recognise him. 7°3 691T. 25 September 2001, p.20 (GEG). 692T. 25 September 2001, pp. 20,21 (GEG). 693T. 25 September 2001, pp.22-23 (GEG). 694T. 25 September 2001, pp. 57-58 (GEG). 695T.25 September 2001, pp. 60-62(GEG). 696T.25 September 2001, pp.66-67 (GEG). 697T.25 September 2001, p. 68 (GEG). 698T.25 September 2001, p.66 (GEG). 699Prosecution Exhibit 2. 700T. 25 September 2001, pp. 81-88 (GEG). Prosecution Exhibit 701T. 25 September 2001, pp. 30 and 33 (GEG). 702T. 25 September 2001, pp. 30 and 33. (GEG). 703T. 25 September 2001, pp. 37 and 38 (GEG). - 93 -

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The Proscc~It()r v. Joan dc Dic~l Kamuharlda 22 Jarluarv 20()4 356.Prosecution Witness GEG testified that the refugees tried to escape in every direction. The attackers assaulted the refugees with rifles, guns, grenades, machetes and traditional cudgels. 7°4 He ran away with his two children, but they were killed on the way. The Witness was wounded in Kayanga, in the Gikomero area, but he managed to flee because the assailants thought he was dead. 7°5 Prosecution Witness GEI 357. 358.

359. Prosecution Witness GEI, a Tutsi, testified that he heard of the President’s death on the radio at his home. The following morning he fled with his family, first to Mbandazi for one night, then to Ruhanga where they hid in the bush for three days, then to Gicaca, where they arrived on 10 April 1994. They left Gicaca on 11 April 1994 for the school at Gikomero. 7°6 Prosecution Witness GEI testified that he and his family arrived at Gikomero on 11 or 12 April 1994. He had never before be at the school. On arrival, he saw Pastor Nkuranga, a Hutu, and Pastor of the Protestant Church. Pastor Nkuranga often preached at Gasogi Parish at the Witness’s Church. 7°7 The Pastor refused the Witness’s sisters request for water. 7°8 The Defence pointed out that in the statement of 1 March 2000, it is indicated that the Witness asked for water. However in Court the Witness testified that his sisters asked for water. The Witness explained that at first they were refused water, so they thought that maybe if girls asked, they would be given water. Prosecution Witness GEI testified that on 12 April 1994, he saw a white pick-up truck arrive at Gikomero at about l:00pm.7°9 From a photograph, 71° he identified a vehicle which resembled the pick-up truck that he saw at Gikomero. 711 In the back of the vehicle, there were two Interahamwe clad in banana leaves and two

uniformed communal policemen carrying firearms. There were two people in the front of the pick-up: a driver, and another person who did not carry a weapon. The latter came out of the vehicle, approached Pastor Nkuranga, and they talked. On seeing this person, the refugees were surprised and said something like, "Since Kamuhanda is here, our fate is sealed. ’’712 The 704T. 25 September 2001, pp. 24-26 (GEG). 705T. 25 September 2001, pp.25-28, 32 (GEG). 706T. 31 January 2002, pp. 6 - 9; 32 - 33 (GEI). 707T. 31 January 2002, p. 38 (GEl). 708T. 31 January 2002, pp. 35 - 38 (GEl) 709T. 31 January 2002, p. 10 (GEI). 710Photograph 5c in Defence Exhibit 17. 711T. 31 January 2002, pp. 50 - 56 (GEI). 712T. 31 January 2002, pp. 12-14 (GEI). - 94 -

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360.

361. The P.rosecutor v. Jean de Dieu .KamuharMa 22 Jarmary 2()04 ,ludgmerlt arid Sc~.tencc Witness did not know this person; he had not seen him before. 713 The Witness testified that he immediately got closer to them, "up about four metres, in order to eavesdrop on their conversation. ’’714 He heard the person [Kamuhanda] ask the Pastor about the people there. The Pastor replied that he had seen people coming to Gikomero. 715 That person [Kamuhanda] then turned to the Interahamwe in the vehicle, ordered them to come out of the vehicle and said, "All these people here are Tutsis, kill them. ,,716 Prosecution Witness GEI made a sketch of the Gikomero Parish717. He testified that some buildings, as shown on Prosecution Exhibit 2 Sketch B, might have been renovated since 1994. 718 The Witness indicated that the water tank was behind what is seen in Photograph No. 10 of Prosecution Exhibit 2 and explained that, in reference to Photograph No. 8,719 when the vehicle arrived in 1994, he was at the entrance of the third classroom on the left of the photograph while Kamuhanda and Nkuranga were near the Church. 72° Prosecution Witness GEI testified that after the person [Kamuhanda] ordered the lnterahamwe to kill the Tutsis, the Interahamwe immediately started killing. A Protestant preacher and teacher of a school in Mbandazi, Bucundura, who was standing close to the

person [Kamuhanda] was killed first. 721 The Witness ran away, and he saw Tutsis falling as they were shot. 722 362.Prosecution Witness GEI testified that he fled from Gikomero to Gicaca. He wanted to go to Kibara by canoe but the Witness then decided to return to his home area. When bodies were exhumed in 2000 the Witness identified three of his four sisters killed at the school in Gikomero. 723 363. Prosecution Witness GEI identified Kamuhanda in Court. 724 713T. 31 January 2002, pp. 9 - 13 (GEl). 714T. 31 January 2002, pp. 12-14 (GEl). 715T. 31 January 2002, p. 14 (GEl). 716 T. 31 January 2002, 717 Prosecution Exhibit 718 T. 31 January 2002, 719 Prosecution Exhibit 720 T. 31 January 2002, 721 T. 31 January 2002, 722 T. 31 January 2002, 723 T. 31 January 2002, 724 T. 31 January 2002, pp. 12-14 (GEI). 20; T. 31 January 2002, pp. 22 - 29 (GEI). pp. 58 - 68 (GEI). 2. p. 72 (GEI). pp. 14 and 15 (GEI). pp. 13 - 15, 46 and 98 - 100 (GEI). pp. 19 - 22 and 47 - 50 (GEI). p. 31 (GEI). - 95 -

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The i.’ro::~ccutor ,, Jean de Diet~ Kamuhanda 22 .lar.lualv 2004 Judgment ar, d Sc~c~cc Prosecution Witness GAG 364.Prosecution Witness GAG, a Tutsi, testified that her neighbour encouraged her to flee [8 April 1994] with him. She explained that she spent that night on a colline, while her children took another path. 725 The next day, she went back home to milk her cows and then fled with the others. In cross-examination, when asked why she went back to her house to milk her cows when there was danger, the Witness testified that the first night that she spent on the hill, nothing had happened in her area. Also the next day, she sent her son to milk the cows despite the danger, as they were accustomed to that kind of situation. 726 The Witness spent the night on a hill looking down at the burning houses. 727 On several occasions, she told her children to go and milk her cows.728 They then met Pastor Bucundura, who told them to take refuge in the Parish, which they did and where another Pastor, Nkuranga offered them refuge. 365.Prosecution Witness GAG testified that on their arrival at the Parish, there were approximately 40 to 50 people. B~2911 April 1994, however there were up to 15,000 refugees, all Tutsis, who came from everywhere, including Kabuga, Bicumbi and Gikoro. On 12 April 1994, the Witness and other refugees had decided to leave Gikomero. On seeing them about to

leave, Pastor Nkuranga reassured them that there were no problems in Gikomero. As they were standing listening to the Pastor, who was with Bucundura reassuring them, the persons who were present, including her son, told her that a white pick-up truck had arrived and guns had been distributed to the Interahamwe. 73° In cross-examination, the Witness clarified that Gikomero locals who were selling essentials to the refugees were told to leave by Kibano. 731 The people in the pick-up truck wore kitenge, banana leaves and carried weapons such as axes, machetes, guns and grenades. These people alighted from the vehicle. Pastor Nkuranga, on seeing a man who had come in the vehicle walking towards him, went forward to meet him. Many refugees who knew this man shouted, "There is Kamuhanda. ’’732 The Pastor then said to the refugees, "I told you that you had nothing to fear, that your safety would be guaranteed." The Pastor went aside to speak with this man [Kamuhanda] as the Interahamwe surrounded the refugees. The Witness thought that the lnterahamwe were protecting them. When this man finished is discussion with the Pastor, he 725T. 4 February 2002, pp. 25 - 28; T. 5 February 2002, pp. 8 - 11 and 21 (GAG). 726T. 5 February 2002, pp. 13 - 14; T. 5 February 2002, pp. 16 - 19 and 25 - 26 (GAG). 727T. 4 February 2002, pp. 32 - 37 (GAG). 728T. 4 February 2002, pp. 37 - 38 (GAG). 729T. 4 February 2002, pp. 44 - 49 (GAG) ; T. 5 February 2002, p. 34 (GAG). 730T. 4 February 2002, p. 49 (GAG). 731T. 5 February 2002, p. 39 (GAG). In examination-in-chief, the name was spelled Kabano. 732T. 4 February 2002, pp. 53 and 54 (GAG). - 96 -

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The Prosccutor v..lean de Dieu Kamuhanda 22 .larmmv 2004 retumed to the vehicle and parked it near the Church. At this moment, another man who accompanied Kamuhanda shot Bucundura. 366.Prosecution Witness GAG testified that when the Pastor saw Bucundura being shot, he raised his hands up and shouted, "I am Pastor Nkuranga. ’’733 Kamuhanda did not stop the shooting and a person who had come down from his vehicle shot Bucundura. 734 In cross-examination, the Witness confirmed that Kamuhanda was there when Bucundura was shot. 735 367.Prosecution Witness GAG testified that the shooting continued and she ran towards the classrooms 736 because her 4-year-old child was there. She hid behind a blackboard and mattress with four other women including her elder sister, while others escaped outside the classroom. From behind the blackboard, she was able to see the killings from the side, and she saw the killers standing at the classrooms doors slashing people as they ran out. The attackers put beautiful girls aside and she heard the girls cry out later. The attackers specifically told them "we are going to rape you and taste Tutsi women’’, to which the girls replied "instead of raping us, it is better that you kill us once and for all." In cross-examination, the Witness explained that despite a lot of noise in the area she was able to hear people praying as they fled and even what the

girls said. 737 The attackers were dressed in either military or Interahamwe uniforms, with rags on their heads like savages. Mostly Tutsis were being attacked. 738 The attackers found the Witness, her child and the four women. One of the attackers told her to give him her watch and money, while three girls were ordered to the side to join the other pretty girls. The Witness explained that the attacker asked to see her ID and then told her to show it to the other men. The other men looked at it and said that the she was going to die. They slashed her breast and her head until she was unconscious. She awakened at 5:00pm outside the classroom on top of dead bodies. 739 368.Prosecution Witness GAG testified that she was taken by a friend’s Tutsi son to the Pastor’s house where she saw many young children crying and other wounded people being refused water at the Pastor’s house. The Pastor told them that their fate was to die. In the evening, the Pastor came back with Interahamwe who had ID cards, including hers, which they gave back to her. The Pastor told her to leave then. She refused and spent the night there. In cross-examination, the Witness agreed that it was possible that the refugees went to the Pastor’s house in the hope that they would be treated but were instead handed over to Interahamwe to be killed. 74° The 733 T. 5 February 2002, p. 47 (GAG). 734 T. 4 February 2002, p. 58 (GAG). 735 T. 5 February 2002, p. 47 (GAG). 736 T. 4 February 2002, pp. 50 - 55 and 57-58 (GAG); T. 5 February 2002, pp. 41-42 and 45 - 46 (GAG). 737 T. 5 February 2002, p. 50 (GAG). 738 T. 4 February 2002, pp. 59 - 62; T. 5 February 2002, pp. 5 - 7 (GAG). 739T. 4 February 2002, pp. 62 - 64 and 77 (GAG). 740 T. 5 February 2002, pp. 71 - 76 (GAG).

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The Prosecutor v..lea1~ dc D.icu Kamuhanda 22 Jarmarv 2004 next morning, the Pastor came with Ngarambe, a policeman, and Rutayisire to forcibly remove the Witness from his house. The Pastor said that Kamuhanda had said that everyone had to be killed, including the disabled and the children and he asked her to leave so they could kill her.741 The Witness explained that the Interahamwe had come to take all survivors, including children, who were scattered all over the place to the Bureau de secteur. 742 However, they took her to a bush where they clubbed until she was unconscious and left her for dead. The Witness crawled towards the forest and hid in a ravine for 11 days. In cross- examination, the Witness explained that on the eleventh day, she crawled towards the house of the old man who had sent his son to look for her at Gikomero after the massacres; but she came across Interahamwe. She was taken by the Interahamwe to see the eonseiller of Gikomero, who was at a roadblock. A man she knew, identified her as a Hum. The same man was instructed to take her to his house care for her, which he did until the Inkotanyi took control of the area. 743 Prosecution Witness GEV 369.

370. Prosecution Witness GEV testified that he fled from his home on 8 April 744 He 1994 on hearing reports from refugees about massacres in Rusororo. took refuge in Mbandazi until 10 April 1994, when he fled through Gicaca. He arrived at Gikomero on 11 April 1994 and took refuge at the Compound of the Gikomero Parish. 745 Prosecution Witness GEV testified that on 12 April 1994, between 1:00 and 2:00pm, he observed a man arriving at Gikomero Parish in a white truck with a number of Interahamwe. 746 In cross-examination, the Witness was asked to provide further details on the white truck by comparing what he remembered to a selection of pictures of trucks provided by the Defence. The Witness declined to do this, stating that he was not focusing on the details of the truck on 12 April 1994. 747 He was in the Church with other people when he saw a man get out of the truck to talk to Pastor Nkuranga. 748 At that point in time, a friend of the Witness living in Gikomero identified the man as Kamuhanda. 749 The friend said, "Kamuhanda has just arrived ¯ our fate is sealed. ’’75° The Witness was approximately 15 to 20 metres from Kamuhanda and Nkuranga. 751 Other 741 T. 742 T. 743 T. 744 T. 745 T. 746 T. 747 T. 4 February 2002, pp. 71 and 72 (GAG). 4 February 2002, pp. 70 - 75 (GAG); T. 5 February 2002, pp. 4 - 5 and 68 - 69 (GAG). 5 February 2002, pp. 83 - 85 (GAG); T. 6 February 2002, p. 35 (GAG). 6 February 2002, pp. 48 and 49 (GEV). 6 February 2002, pp. 49-52 (GEV). 6 February 2002, p. 54 (GEV). 6 February 2002, pp. 87-89 (GEV). 748T. 6 February 2002, pp. 54-55. (GEV). 749T, 6 February 2002, pp. 54-56 and 90-91 (GEV). 750T. 6 February 2002, p. 54 (GEV). 751T. 6 February 2002, p. 55 (GEV). - 98 -

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371. "I"t~c P.rosecuto.r v, ,lem’l de Dicu Kamuhanda 22 January 2004 ,ludgmcnt and Sc,~tc,~cc refugees in the Parish also identified Kamuhanda. 752 The Witness saw Kamuhanda converse briefly with Pastor Nkuranga, after which Kamuhanda returned to his truck. 753 Prosecution Witness GEV testified that soon afterwards, the Interahamwe who had arrived on the truck began killing Tutsis, beginning with Bucundura. 754 The Witness could not confirm or deny that Kamuhanda was present in Gikomero Parish when Bucundura was killed. 755 Two other trucks arrived with more Interahamwe and communal police, both dressed in uniforms, and blocked the road to Gishaka at a point approximately 40 metres from the Parish.756 The Witness identified two of these communal police by name, Rubanguka and Rubwebwe, and testified that they participated in the killings. 757 He and the other refugees in the Parish were forced to flee, 758 and he fled across Lake Muhazi through Kibara Hill. 759 Prosecution Witness GEP 372. 752 T. 753 T. 754 T. 755 T. 756 T. 757 T. 758 T. 759 T. 760 T. 761 T. 762 T. 763 T. 764 T. 765 T. 766 T. 767 T. 768 T. Prosecution Witness GEP testified that all the refugees were at a school and a Church. 76° On cross-examination, the Witness could not specTi ~ the cellule or the secteur where the Church and school were located, nor could she remember the name of the location, although she

stayed there for at least three days. 762 The Defence showed Exhibit P2, photographs 3 and 4 to the Witness and asked whether the buildings in the photos meant anything to her.763 The Witness said she was "not there to look at the buildings" but did identify the structure she saw in photograph No. 4 as a Church. 764 She said she was "in a school, in a classroom, and the others were in the Church ’’765 and that the refugees were Hutus and Tutsis. 766 There was a constant in-flow of refugees on 9 April [1994], and an increase in the number of refugees on 10 and 11 April [1994]. 767 On cross- examination, the Witness testified that some refugees had food and water supplies; others from the surroundings areas went home to bring food; while some came with their COWS.768 On cross-examination, the Witness testified that the men were outside, and the women and children inside the 7 February 2002, 6 February 2002, 6 February 2002, 6 February 2002, 6 February 2002, 6 February 2002, 6 February 2002, 6 February 2002, 7 February 2002, 7 February 2002, 7 February 2002, 7 February 2002, p. 6 (GEV). pp. 54-56 and 59 (GEV); T. 7 February 2002, p. 12 (GEV). p. 59 (GEV). p.95, T. 7 February 2002, p. 7 (GEV). pp. 57-58 and 60 (GEV); T. 7 February 2002, p. 13 (GEV). p. 63 (GEV). pp. 62 and 63 (GEV). pp. 62 and 63 (GEV). p. 30 (GEP). p. 61 (GEP). p. 62 (GEP). p. 82 (GEP). 7 February 2002, p. 83 (GEP). 7 February 2002, p. 84 (GEP). 7 February 2002, p. 30 (GEP). 7 February 2002, pp. 30 and 3 I(GEP). 7 February 2002, p. 64 (GEP). - 99 -

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373.

374. The Prosecutor v, ,Jean de Dict.i Karr~Lihanda 22 Januai’v 2004 building resting. 769 On cross-examination, when the Defence inquired about security arrangements, the Witness explained: "I was still a child, I wouldn’t know about security arrangements. ’’77° Prosecution Witness GEP testified that they were all frightened and decided to flee to areas around Byumba controlled by the RPF.771 Her father told them to take the road towards Gikomero and Gikoro to cross Lake Muhazi. The Witness followed her father, and met "security officers or security agents" en route. These agents, who were not wearing uniforms, 772 asked to see their identity papers which they did not show. 773 The agents told her group that a lot of people who were on the run were moving towards Gikomero to the school and the Church.774 They arrived there on 9 April 1994. 775 On cross-examination, the Witness stated that they went to the place indicated by the agents because it was their original destination and the agents had told them that there were others like them at Gikomero whom they went to join. 776 Prosecution Witness GEP testified that early in the moming of 12 April, approximately 20 Hutus carrying machetes, cudgels, and axes arrived to seize the refugees’ property. 777 On cross-examination, she stated that these Hutus arrived between 9:00 and 11:00am. 778 The Hutus asked if there were Hutus

amongst the refugees because "they did not want Hutus killed together with the Tutsis in the event there was going to be an attack" since the Tutsis were the only target. 779 The Hutus came out, but among the Hutus were men married to Tutsis with Tutsi children, who could decide either to join the killers or turn their backs on them. 78° The Hutus who stood aside left them and went back to their homes. 781 Close to lunchtime, or just after, a vehicle packed with lnterahamwe arrived. 782 On cross- examination, the Witness stated that it was a pick-up, possibly white. 783 On cross-examination, she also stated that two Daihatsu vehicles that she believed were blue arrived after the white pick-up. 784 However, on subsequent cross-examination, the Witness did not mention the two other vehicles, but said that "one vehicle arrived at first and that a second 769T. 7 February 2002, p. 62 (GEP). 770T. 7 February 2002, p. 62 (GEP). 771T. 7 February 2002, p. 23 (GEP). 772T. 7 February 2002, pp. 26 and 27 (GEP). 773T. 7 February 2002, p. 27 (GEP). 774T. 7 February 2002, p. 29 (GEP). 775T. 7 February 2002, p. 29 (GEP). 776T. 7 February 2002, pp. 58 and 59 (GEP) 777T. 7 February 2002, p. 31 (GEP). 778T. 7 February 2002, p. 65 (GEP). 779T. 7 February 2002, p. 32 (GEP). 780T. 7 February 2002, p. 32 (GEP). 781T. 7 February 2002, p. 33 (GEP). 782T. 7 February 2002, p. 33 (GEP). 783T. 7 February 2002, p. 66 (GEP). 784T. 7 February 2002, pp. 66 and 67(GEP). - 100-

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The Pr<)sccutor v, Jean dc D ieu Kamuhanda 22 January 2004 ,Judgment and Sclltcncc vehicle followed the first. ’’785 On cross-examination, she also stated that she knew only that all the vehicles were pick-ups, but was not aware of their colour, shape, or make. 786 The people were identified as Interahamwe because of their particular attire, and they carried leaves or banana leaves, and weapons, with one carrying a gun.v87 On cross-examination, the Witness stated that she could not estimate the number of Interahamwe but there were "very many", v88 On cross-examination, she also testified that they had machetes, axes, a gun, and cudgels studded with nails. 789 On further cross-examination, the Witness confirmed that the vehicle entered the courtyard, tumed around in the direction it had come, and parked on the road towards Gikomero. v9° As a man791 stepped out of the cabin of the vehicle, the refugees from that area shouted, "This is Kamuhanda who has arrived. We are going to die.’’792 Although it was the first time the Witness saw Kamuhanda, she could see and hear him, because she was in a classroom close to where he stood. 793 At that point in time the refugees panicked, 794 and those with the strength to run fled. v95 375.Prosecution Witness GEP testified that after Kamuhanda had finished speaking to a man, one of the passengers in the vehicle he had come in shot the man

dead.796 On cross-examination, the Witness stated that people there said that the person shot was a Protestant Priest called "Bucundura", whom she did not know.797 On cross-examination, she also stated that Kamuhanda had a discussion with the pastor before they killed Bucundura. 798 The Witness stated Kamuhanda said nothing after the man was killed, but turned around and, as their leader, told the others, "Start working", so as to incite them to kill. 799 376.Prosecution Witness GEP testified that they were used to Interahamwe attacks and when they said, "work", they knew that it meant to kill. 8°° At that point, a driver moved the vehicle towards the road, and another 785 T. 7 February 2002, pp. 75 and 76(GEP). 786 T. 7 February 2002, p. 81 (GEP). 787 T. 7 February 2002, pp. 33 and 34 (GEP). 788 T. 7 February 2002, p. 71 (GEP). 789 T. 7 February 2002, p. 72 (GEP). 790 T. 7 February 2002, p. 68 (GEP). 791 T. 7 February 2002, p. 34 (GEP). When the Prosecutor asked the Witness if she could recognise Kamuhanda if she saw him today, she responded, "[t]his happened a long time ago; it’s possible that he could have changed." In closed session cross-examination, the Defence showed the Witness Exhibit P4, photographs KO168412 and KO168413, one an enlargement of the other. The Witness confirmed that the same photograph had been shown to her by the investigator and she correctly identified Kamuhanda in both photographs. 792 T. 7 February 2002, p. 34 (GEP). 793 T. 7 February 2002, pp. 34 and 38 (GEP). 794 T. 7 February 2002, p. 37 (GEP). 795 T. 7 February 2002, p. 73 (GEP). 796 T. 7 February 2002, p. 38 (GEP). 797 T. 7 February 2002, p. 69 (GEP). 798 T. 7 February 2002, p. 88 (GEP) 799 T. 7 February 2002, pp. 38 and 39 (GEP). 800 T. 7 February 2002, p. 39 (GEP). - i01 -

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377. vehicle with lnterahamwe arrived. The lnterahamwe started to assist in the killings. 8°1 A man stepped out of this vehicle and had them stop the massacres momentarily so he could choose some girls.8°2 In closed session, the Witness testified that she heard people call him Kamina and that he had since died. 8°3 In closed session cross-examination, the Witness testified that Kamina was the head of an Interahamwe group, lived in Rugende, went everywhere with his Interahamwe and "got them to work. ’’8°4 In closed session cross-examination, the Witness explained that she knew Kamina because of Rugende and Mujumu’sproximity, and one knows a person of that stature that lives in the area.8°S-Not more than 20 girls were picked, loaded in a vehicle and taken away, and then the massacres resumed. 8°6 The vehicle carrying Kamuhanda left after the girls had been loaded into it.8°7 On cross-examination, the Defence read the Witness’ statement in which she had said that after delivering the "start working" order to the Interahamwe, "Kamuhanda then left for the commune office." The Witness replied that the vehicle was moved to allow the killing to take place, and that she did not know whether Kamuhanda went towards the commune. 8°8 On cross-examination, the Witness stated that the girls were loaded into the pick-up vehicle that had arrived first, s09 and that she did not know any of

them. The Witness later learnt that the attackers raped and killed all of the girls, except one. On cross- examination, the Witness testified that she learnet the news at the camp 81° where the Inkotanyi took those who had escaped the massacres. 811 Prosecution Witness GEP testified that the massacres resumed and that the Interahamwe, who had machetes, small hoes, axes and grenades, started cutting people, injuring her.812 She survived because people fell on top of her.813 On cross-examination, the Witness stated that the attacks took a great deal of time because of the large number of victims. 814 On cross- examination, the Witness testified that towards the end of the day, the assailants withdrew to rest. 815 Other survivors went through the bodies to 801 T. 802 T. 803 T. 804 T. 805 T. 806 T. 807 T. 808 T. 7 February 2002, p. 39 (GEP). 7 February 2002, p. 41 (GEP). 7 February 2002, p. 53 (GEP) (IeS). 7 February 2002, p. 98 (GEP) (ICS). 7 February 2002, p. 99 (GEP) (ICS). 7 February 2002, p. 42 (GEP). 7 February 2002, p. 43 (GEP). 7 February 2002, p. 94 (GEP). 809 T. 7 February 2002, pp. 76and 77 (GEP). 810 In closed session cross-examination, the Witness testified that it was at the Rwamagana camp, and she was told by a woman called Mama Beby, whom she did not know before she was a refugee. In closed session cross-examination, the Witness explained she did not know any other name for the woman, because, according to Rwandan custom, one doesn’t ask an elderly person for her name, and one knows the name of the child, and the mother is given the name of the child. 811 T. 7 February 2002, pp. 79 and 80 (GEP). 812 T. 7 February 2002, p. 42 (GEP). 813 T. 7 February 2002, p. 42 (GEP). 814 T. 7 February 2002, p. 77 (GEP). 815 T. 7 February 2002, p. 77 (GEP). 102 -

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see if anyone was alive and rescued her.816 She followed four men, two women, a young boy and two girls. 817 They looked for a place of refuge, because houses were being burned everywhere. 818 On cross-examination, the Witness stated that the only survivors she saw were those who left with her. 8m 378.Prosecution Witness GEP testified that the group fled and the men of the group asked them to hide separately, which they did.82° Her group walked at night and hid during the day.821 Two men from the other group survived and told them that even if the war were to continue, the Inkotanyi could not be very far.822 The Witness defined Inkotanyi as the RPF soldiers who were coming to save the victims. 823 The men went looking for the lnkotanyL and soon came back to find the refugees and take them to a transit camp. 824 Prosecution Witness GEH 379.

380. Prosecution Witness GEH, a Tutsi, testified that around 8:30pm [6 April 1994] he heard an explosion and gunfire which continued throughout the night. 825 It was coming from Kanombe where a military camp is located. 826 In the morning the Witness learned from Rwanda Radio that President Habyarimana’s plane had been shot down.827 At about 8:00am refugees came from Rusororo and told him of killings there. 828 The refugees told them that Rusororo soldiers and Interahamwe were shooting at people. 829 Prosecution Witness GEH described the Interahamwe as "people who have been trained in military matters. They carded guns and worked with soldiers. ’’83° The Interahamwe "were Hutus" and "were militarily trained by Habyarimana". 831 The Witness could identify Interahamwe by their kitenge uniforms. 832 He testified that the refugees told him that the Tutsis were being killed; hence he and his twenty family members together with ¯ ¯ , ¯ ¯ 833 Tutsls from the Witness s hill decided to flee. 816 T. 7 February 2002, p. 43 (GEP). 817 T. 7 February 2002, p. 44 (GEP). 818 T. 7 February 2002, p. 43 (GEP). 819 T. 7 February 2002, p. 78 (GEP). 820 T. 7 February 2002, p. 44 (GEP). 821 T. 7 February 2002, p. 45 (GEP). 822 T. 7 February 2002, p. 45 (GEP). 823 T. 7 February 2002, p. 45 (GEP). 824 T. 7 February 2002, p. 45 (GEP). 825 T. 11 February 2002, p. 7 (GEH). 826 T. 11 February 2002, p. 8 (GEH). 827 T. 11 February 2002, p. 9 (GEH). 828 T. 11 February 2002, p. 9 (GEH). 829 T. 11 February 2002, p. 9 (GEH). 830 T. 831 T. 832T. 833 T. 11February 2002, p. 9 (GEH). 11February 2002, p. 21 (GEH). 11February 2002, p.37 (GEH). 11February 2002, pp.10, 23 and 33 (GEH). - 103-

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381¯ 382. Thc t>rotaecutor v..lean dc Dicu Kamuhal2da 22 January 2004 383 Prosecution Witness GEH testified that he went towards Gikomero Protestant Church where he arrived on 10 April 1994.834 On re- examination, the Witness testified that he had never been to Gikomero before the war and has never been back since he fled from the Parish. 835 On his arrival at Gikomero Parish, he found 2,000 people from different locations. 836 A Hum Pastor, Nkuranga, welcomed them at the Gikomero Parish. 837 After 10 April 1994, no other refugees joined them in Gikomero Parish. 838 There were refugees everywhere in the Gikomero Compound, including the buildings, especially the classrooms, and the Church. 839 There were approximately 10,000 Tutsi refugees at Gikomero Parish. 84° On cross-examination the Witness declared that "they [refugees at Gikomero Parish] were all Tutsis that were being sought [...] chased and [...] being massacred. No others were being killed apart from the Tutsis [.¯.].,,841 Prosecution Witness GEH testified that on 12 April 1994, between 1:00 and 2:00pm, he saw a white pick-up with Interahamwe on board. 842 Pastor Nkuranga and Mr. Bucundura, a Tutsi catechism preacher from Mbandazi Hill in Gikomero, went to talk to the men in the vehicle. 843 Kamuhanda returned with Interahamwe and had a brief conversation with the Pastor. The Witness said that "it was at

that time that the Interahamwe shot at Mr. Bucundura. ’’844 The Witness explained that he did not know Kamuhanda but that refugees from Gikomero told him that the man was called Kamuhanda. 845 The Witness testified that this man [Kamuhanda] was with 846 Pastor Nkuranga when they shot at the old man. ¯ Prosecution Witness GEH testified on cross-examination that he did not hear the Accused give the order that the killings should start because it was impossible to hear the conversation between the Accused and the pastor. 847 The Witness testified that Kamuhanda went back to his vehicle and that when he returned, he was with the killer. The Witness believed that "he was the one that gave the order for the killing. ’’848 In cross-examination, the Witness testified that he did not personally hear Kamuhanda give the order to start killing. 849 Interahamwe shot at them, and they were with the 834 T. 11 835 T. 11 836 T. 11 837 T. 11 838 T. 11 839 T. 11 840T. 11 841T. 11 842 T. 11 843 T. 11 February 2002, pp 10,11 and 24 (GEH). February 2002, p. 61 (GEH). February 2002, p. 11 (GEH). February 2002, p. 11 (GEH). February 2002, p. 30 (GEH). February 2002, p. 28 (GEH). February 2002, p. 26 (GEH). February 2002, p. 29 (GEH). February 2002, pp. 13 and 35 (GEH). February 2002, pp. 14, 20 and 26 (GEH). 844 T. 11 February 2002, p. 14 (GEH). 845 T. 11 February 2002, p.14 and 15 (GEH). 846 T. 11 February 2002, p. 41 (GEH). 847 T. 11 February 2002, p. 40 (GEH). 848 T. 11 February 2002, p. 16 (GEH). 849 T. 11 February 2002, pp. 39 and 40 (GEH) - 104-

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384.

385. The Prosecutor v, Jean dc Dicu Kamuhar~da 22 J anum’v 2004 person [Kamuhanda] who ordered them from the vehicle. 85° They all panicked and fled because the Interahamwe had started shooting at them.851 They ran towards Kibara, where there were no more than 300 refugees. 852 They spent two days there. 853 He testified that they had to move on and cross Lake Muhazi. They went to Rutare commune, in Byumba prdfecture because the people in Kibara "ran after them. ’’854 Prosecution Witness GEM Prosecution Witness GEM testified that she heard the explosion of a plane at 8:30pm on 6 April 1994. Subsequently she learnt that it was the President’s plane, at 9:00pm through a radio communique: 855 The communiqu~ and GEM’s local conseiller, a Hutu, advised everyone to stay in their homes. She fled from her home on 7 April 1994, arriving in Mbandazi on 8 April 1994, after spending the night with 5,000 other refugees in a sorghum field. She subsequently fled Mbandazi to Gicaca on 8 April 1994, and then on to Gikomero by 11 April 1994. 856 Prosecution Witness GEM testified that she was in Gikomero Parish on the morning of 12 April 1994 with one million other refugees. 857 She saw a man identified by others as Jean de Dieu Kamuhanda arrive at the Parish at about 11:00am, alone, in a white truck. 858 The Witness testified to hearing others identify Kamuhanda and say, "[O]ur fate is

sealed. ’’s59 She testified that they understood that they had to die, that they had been betrayed, s6° She saw Kamuhanda meet with Pastor Nkuranga 861 but testified that she had not seen Kamuhanda prior to 12 April 1994. She relied on other refugees to identify him.862 The Witness explained that she had never seen Bucundura or Pastor Nkuranga before arriving in Gikomero. 863 She testified that an hour after Kamuhanda arrived, he left the Parish and another truck with armed Interahamwe arrived. 864 She testified that these armed Interahamwe descended from their trucks and began shooting in the air, and then into the crowd of refugees, s6s When the Witness was shown a series of pictures taken of Gikomero Parish, she testified that she did not 850 T. 11 851 T. 11 852 T. 11 853 T. 11 854 T. 11 855 T. 11 856T. 11 857 T. 11 858 T. 11 859 T. 11 860 T. 11 861 T. 11 862 T. 11 863 T. 11 864 T. 11 865 T. I 1 February 2002, p. 21 (GEH). February 2002, pp. 14 and 15 (GEH). February 2002, p. 17 (GEH). February 2002, p. 17 (GEH). February 2002, p. 17 (GEH). February 2002, p. 69 (GEM). February 2002, pp. 72 and 73 February 2002, p. 74 (GEM). February 2002, pp. 75-77 and February 2002, p. 75 (GEM). February 2002, p. 75 (GEM). February 2002, p. 75 (GEM). February 2002, p. 75 (GEM). February 2002, pp. 74 and 102 (GEM). February 2002, pp. 95 and 97-98 (GEM). February 2002, pp. 77 and 101 (GEM). (GEM). 96-98 (GEM). - 105 -

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386. Thc Prosecutor v..!can, dc Dicu Karnuhanda 22 .lanuarv 2004 .Iudgmcn.t arid Sc~lter~cc 866 She testified that a man recognise the area depicted in those pictures. from Rusororo named Bucundura was the first to be killed, with his wife and children. 867 As Kamuhanda was driving out, the Witness testified, another truck arrived carrying armed lnterahamwe. These lnterahamwe shot and killed a number of refugees. Others were killed with clubs and machetes. However, Kamuhanda was not in the Parish when these killings occurred. 868 387. 388. o Evidence After the Events 869 testified that he Prosecution Witness GET, a Tutsi bom in Gikomero, personally knew Kamuhanda as a schoolmate in the local secondary school and as a friend during Kamuhanda’s university holidays. Kamuhanda invited him to his wedding and, he visited Kamuhanda when the latter was the Director General in the Ministry of Higher Education and Scientific Research. The Witness explained that they were both members of the Gikomero Technical Commission. 87° He testified that, by virtue of his position and education, Kamuhanda was feared and respected in his local community in Gikomero, and the Witness considered him to be a good man. 871 The Witness gave evidence of personally seeing Kamuhanda at the opening of the Kayanga Health Centre in the presence of the President [Habyarimana] in line with GEK’s evidence on

this matter. 872 The Witness confirmed GEK’s identity and corroborated her marital status in 1994, as well as the account of the killings that occurred in front of GEK’s house, as she had reported them to Witness GET in 1994. 873 The Witness testified that the Gishaka Catholic Parish School and Church, the Gikomero Protestant Parish School and Church and a road checkpoint between Gishaka and Gikomero were major massacre sites. 874 In his capacity as bourgmestre, the Witness testified that he made enquiries about those responsible for the genocide in Gikomero and that he was told that Kamuhanda brought and distributed the "instruments" to be used in the 866 T. 11 February 2002, p. 102 (GEM). 867 T. 11 February 2002, p. 77 (GEM). 868 T. 11 February 2002, p. 101 (GEM). 869 T. 5 September 2001, pp. 91 and 92 (GET) (ICS); T. 6 September 2001, pp. 34 and 124. (GET) 870 T. 5 September 2001, pp. 98-101 (GET) (ICS); T. 6 September 2001, pp. 109 and 123 (GET) 871 T. 5 September 2001, pp. 100 and 122 (GET) (ICS). 872 T. 6 September 2001, p. 25 (GET) (ICS). 873 T. 6 September 2001, pp. 45, 46, 48-49 and 75-76 (GET) (ICS); T. 10 September 2001, pp. 54 and 60. (GET) (ICS). 874 T. 6 September 2001, pp. 59-61 (GET) (ICS). - 106-

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T}~c Prosecutor v..lean de Dicu liamuhar~da 22 Jsr~uary 2004 J ud~ ncnt and Sc~tc~cc 389. killings. 87s The Witness stated to the Chamber that the last time he saw the Accused was during the bourgmestre elections held in 1993.876 The Defence filed a report with the Chamber entitled: Commission pour le mdmorial du gdnocide et des massacres au Rwanda (Commission for the Memorial of the Genocide and Massacres in Rwanda) which was drafted under the authority of the Ministry of Higher Education and was published in 1996. 877 The Witness admitted that he had met with members of this Commission. The Defence indicated that Jean de Dieu Kamuhanda did not appear in this report among those responsible for the genocide in the 878 commune. The Witness stated that it was not clear that the Commission referred to by the Defence was an official Commission. It could have been a simple research project. He added that he had not seen the Report. 879 b. Defence Evidence o Defence Witness GPT 390.Defence Witness GPT, a Tutsi male, testified that in 1994 he resided in Gikomero commune near the Accused’s parents and the Protestant Parish of Gikomero; therefore he knew the Accused. 88° Although GPT testified that he was in no way related to the family of Kamuhanda, he later admitted in cross-examination that he does have family ties with him and that he is grateful to Kamuhanda’s family for

sheltering his mother during the war. He nonetheless denied the Prosecution suggestion that he had come to give testimony because he had received fifty thousand Rwandese francs. 881 391.Defence Witness GPT testified that on 12 of April 1994, when he got up in the morning at about 9:00am, he went to visit a friend who lived near the market. Towards 1:00pm, as he was going to his home, he came to a small drinking place, not far from the market. He heard shots being fired from the direction of the Protestant Parish of Gikomero, as well as the sound of motor vehicles driving very quickly. Upon hearing this, he went home and informed his wife and children, and they fled. He hid in various bushes with his eldest son and his elder brother. The next day, 13 April 1994, he was able to flee to the other side of Muhazi, but without his elder brother and his eldest son, who had been killed. 882 Defence Witness GPT testified that on 12 April 1994 he did not leave the bushes where he was hiding to 875 T. 6 September 2001, pp. 35, 38-39 and 101-102. (GET) (ICS). 876 T. 5 September 2001, p. 102 (GET) (ICS); T. 6 September 2001, p. 112 (GET) 877T. 6 September 2001, pp. 99 and 100. (GET) (ICS); Defence Exhibit D 878 T. 6 September 2001, pp. 100 and 101 (GET) (ICS). 879 T. 6 September 2001, pp. 102 and 103 (GET) (ICS) 880 T. 14 January 2003, p 2 (GPT); T. 14 January 2003, p.14 and 52 (GPT) (ICS) 881 T. 14 January 2003, p. 7, and 21-22(GPT); T 14 January 2003, p. 40 (GPT) (ICS). 882 T. 14 January 2003, p. 4 (GPT). - 107-

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392. 393. 394.

395. Thc Prosecutor v. ,l, ear~ de Dicu Kamuharlda 22 January 2004 go to the Gikomero Protestant Parish. Therefore he did not see with his own eyes the person who was responsible for the massacres. He testified that he later heard from people that the Interahamwe and members of the local population were responsible for these massacres. As a representative of certain organisations in his commune and having been charged with the task of conducting enquiries, GPT testified that nobody mentioned who led the attacks on that day. 883 In cross-examination, GPT was reminded that at the time when he made the aforementioned enquiries, he had already known from the radio and the Ministry of Justice that the Accused had been arrested for participating in the genocide in the Gikomero area. GPT admitted that he did not specifically ask those he interviewed whether the Accused was involved in the killings that took place in the Gikomero area. He testified nonetheless that he would have known if people had seen the Accused in the location during the genocide. 884 In cross-examination, Defence Witness GPT testified that he knew the communal policeman Asiel, although Asiel lived in Kibara. He testified that he had never heard, as suggested by the Prosecution, that Aisle had told various people at a bar that Mr. Kamuhanda was due to come the next day with reinforcements and sharpened machetes and

that Kamuhanda had said that no Tutsi should escape. He testified that he did carry out investigations about this matter. Defence Witness GPT testified that he knows only two people who were perpetrators of the Gikomero massacre of 12 April 1994: Nyagatare and Canisius (a native of Gikomero who lives close to the Parish and Uwimana). 885 He testified that although the gacaca proceedings had not yet started in Gikomero, 886 Nyagatare (a detainee who had pleaded guilty and was asking for forgiveness) was brought to his village and he [Nyagatare] mentioned those with whom he committed the massacres but he did not mention Jean de Dieu Kamuhanda as one of the participants. 887 888 Nor did he [Nyagatare] identify the chief of the Interahamwe. Defence Witness GPT testified that when conducting the census, he did not speak to GEK because she may have been in prison at that time. He testified that in April 1994 GEK and her husband were living in Gikomero. 889 883T. 14 January 2003, p. 27 and 28 (GPT); T. 14 January 2003 p. 6 and 7 (GPT) (ICS) 884T. 14 January 2003, p. 30 and 31 (GPT). 885T. 14 January 2003, p. 35 (GPT). 886T. 14 January 2003, p. 10 and 13 (GPT) (ICS). 887T. 14 January 2003, p. 14 (GPT) (ICS). 888T. 14 January 2003, pp. 58 and 59 (GPT). 889T. 14 January 2003, pp. 49 and 50 (GPT) (ICS). - 108-

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The Pronccutor v. ]oar~ dc Dicu Karnt handa 22 Jarmary 2004 396.Defence Witness GPT attested to knowing Witness GAD, who lived close to his residence. He said Witness GAD was lying about seeing the Accused on 8 or 9 April 1994. 890 397. 398. o Defence Witness GPR Defence Witness GPR, a female Hum, resided in Gikomero commune in April 1994, close to the Parish of Gikomero. She testified that before the massacres on 12 April 1994, the Hums and Tutsis of Gikomero lived in harmony. 891 She testified that refugees had come from Mbandazi and Musave in Rubungo commune to seek sanctuary at the Gikomero Parish and had stayed for about one week. Nonetheless, she did not visit the refugees at the Church; rather refugees such as Bucundura came to her home. 892 Defence Witness GPR testified that after the death of President Habyarimana, massacres took place in her commune and in the school courtyard in front of Gikomero Parish Church. Although GPR could not recall the date, she stated that the massacres occurred on a Tuesday. 893 She testified that the attack started at approximately 1:00pm, while she was at home. On that day, she saw four vehicles driving quickly on the road beside her house; and, in the vehicles, there were people who wore uniforms with caps. It was difficult for her to identify the people in the vehicles, but then one of them got out of a vehicle and came to her

house asking for her daughter. Witness GPR told this person that her daughter was not there and that only her husband and she were at home. 894 This man threatened her and then left her. He went to her husband and also threatened him. When GPR turned around, she saw that her husband was on the floor dead, and this man was holding a gun which had been fired once. She testified that she neither heard the gunshot that was fired nor did she hear any gunshots at the Parish. 895 Afterwards this person took her to the Gikomero Protestant Parish Church where she saw military-type vehicles, the same colour as grass. At the Church, GPR found that refugees had already been killed by those who had arrived in the vehicles; they had been shot by the attackers who had carried guns. She saw that the attackers were in the process of slaughtering cattle, loading the various pieces of meat into the vehicles and looting the Pastor’s house. GPR heard the man who had threatened her ask her nephew 896 to lead him to her daughter. The 890 T. 14 January 2003, pp.57 and 58 (GPT) (ICS). 891 T. 14 January 2003, pp. 67 and 68 (GPR); T. 14 January 2003, p. 65 (GPR) (ICS): T. 15 January p. 23 (GPR) (ICS). 892 T. 15 January 2003, pp. 3-5 and 39 (GPR). 893 T. 14 January 2003, pp. 67 and 68 (GPR); T. 14 January 2003, p. 65 (GPR) (ICS): T. 15 January p. 23 (GPR) (ICS). 894 T. 15 January 2003, pp. 6 - 10 (GPR). 895 T. 15 January 2003, p. 8 (GPR) (ICS); T. 15 January 2003, pp. 33 and 34 (GPR). 896 Actual name omitted out of witness protection considerations. - 109-

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399. 400.

401. Fhc Prosecutor v .lean de Dicu Kamuhanda 22 January 2004 assailants returned to GPR’s house to loot, loading her belongings and those of her daughter onto the vehicles, g97 Defence Witness GPR testified that following the departure of the vehicles, the same man gave her meat and asked her to feed children at the Parish. He threatened her once more before he left. The Witness looked for people to bury her husband. She testified than three days later he was buried. The only assailant she recognised that day was the man who had threatened her. There were no local people from Gikomero among the attackers who looted the Church. The attackers were from Rubungo and Karama. She knew this because the man who was looking for her daughter was from Karama in Rubungo. The Witness attested that the attackers were chasing the refugees from their area who had sought shelter in Gikomero commune. She testified that only two people survived the attack. 898 Defence Witness GPR testified that the ethnicity of those who died at the Parish was Tutsi and that the Interahamwe were all Hutus. 899 Defence Witness GPR testified that she does not know Jean de Dieu Kamuhanda but that she knows his father, Mureramanzi, who lived on the other side of Lake Muhazi. After the events, when people spoke of the attacks, GPR did not hear any mention of Kamuhanda’s name. Since the area in question is

Kamuhanda’s native region, where he has relatives, people would have talked if "Mureramanzi’s son" had been there during 900 the massacres. 402. o Defence Witness GPE Defence Witness GPE, a female Hutu, arrived in Gikomero as an adult. She testified that in 1994 she lived in Gikomero because of work. She testified that her residence is near the Parish of Gikomero. 9°1 She testified that in 1994, the refugees at Gikomero Parish had come from Rubungo, that they had come to the Parish on a Sunday, and that the attack was launched on a Tuesday. 9°2 She testified that in the Gikomero area where she lived, there were few Tutsis. She testified that the local Gikomero Tutsis were not among the refugees at the Church; they were in their homes because there were no problems in Gikomero at this point in time. The refugees at the Parish talked about fleeing from a bad situation which could also have occurred in Gikomero. Nevertheless, GPR testified that 897 T. 15 January 2003, pp. 8-10, 53 and 54 (GPR). 898 T. 15 January 2003, pp. 11-13 (GPR). 899 T. 15 January 2003, pp. 27 and 28 (GPR). 900 T. 15 January 2003, pp. 13 and 14 (GPR). 901 T. 15 January 2003, p. 47 (GPE); T. 15 January 2003, p. 49 (GPE) (ICS); T. 16 January 2003, (GPE); T. 16 January 2003 p. 52 (GPE) (ICS). 902 T. 15 January 2003, pp. 51-53 (GPE). - 110 -

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The Prosecutor v. ,lean de Dieu I(amuhanda 22 January 2004 Judgment and Scntcncc she did not see any signs of what was to happen. She explained that although the war had broken out in areas outside her locality, such as Musha, Buganza and Rubongo, in her area there were no problems. 9°3 403.Defence Witness GPE testified that after the death of President Habyarimana, there were massacres in Gikomero commune, committed at the Parish on 12 April 1994. 904 She testified that this attack was launched between 1:00pm and 2:00pm but closer to 2:00pm. She explained that at the time of the attack she was at home as usual. The Pastor was with the refugees at this time. When he returned to his home to eat lunch he and others in the house heard engines. The Pastor then went out of the house as did Bucundura, who was also inside, ready to eat lunch with the Pastor. She testified that, even as vehicles were arriving in front of the Church, other persons were arriving from another side. Reuben, a man from the northem side of Gikomero Hill, came from that direction. He was not in any of the vehicles. Ruben said, "Are you still here?" As Reuben spoke to them, the vehicles were still arriving and had not yet parked. The Witness also stated that, "At that point the pastor heard someone speaking to him, saying, ’Are you still there when you are amongst those persons who are meant to be

killed?’" When Bucundura heard this question, he turned probably to warn his children, but at that point he was killed by a bullet. During this incident, people were alighting from the vehicles. They asked who the owner of the house was, and were told that it was the Pastor’s home. At that point someone seized the Pastor and told him to point out the "accomplices". The same person went into the Pastor’s residence and looted everything. The Witness testified that the assailants targeted the Pastor because he had given shelter to the refugees. She explained that the search for "accomplices" was just a pretence to pillage the Pastor’s house.9°s 404.Defence Witness GPE testified that when the attack at the Gikomero Parish Compound began, she fled from her house, taking the nearest bag with clothes and her three children, one of whom she carried in her arms. She explained that the attackers, who had firearms and grenades, had taken her by surprise. She did not see the assailants because, as they were approaching, she ran out her backdoor, through her fence, and through a sorghum field. She testified that as she fled she came across attackers who beat her with clubs. They said, "You should just die. I mean, even your husband is going to die. We are beating you because you hid Tutsis." The Witness testified that her life was spared because the attackers abandoned her to

loot from other people who were fleeing carrying bags of food. 9°6 When she finally returned home around 6:00pro that evening, she found 903 T. 15 January 2003, pp. 53 and 54 (GPE). 904 T. 15 January 2003, p. 47 (GPE); T. 15 January 2003, p. 49 (GPE) (ICS); T. 16 January 2003 (GPE); T. 16 January 2003, p. 52 (GPE) (ICS). 905 T 15 January 2003, p. 58 (GPE); T. 16 January 2003, pp. 45 - 48 (GPE). 906 T 16 January 2003, pp. 3 and 4 (GPE) (ICS). - 111- 1,J........ .. ,.

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405.

406. Thc Prosecutor v..tearl de Dicu K.arnuharlda 22 Janumy 2004 many dead bodies and a few survivors. The bodies she saw remained in the couriyard of the Church for two days. She testified to hearing that the Pastor had informed the bourgmestre about the bodies and the bourgmestre to buy beers for local people who help to bury the bodies. 9°7 Defence Witness GPE testified that she did not Witness the assailants arrive at the Parish, but believes that they came in vehicles insofar, as she heard the engines. She did not see the attack. She further asserted that the Pastor was forced to go into his house to identify the "accomplices". 9°8 Defence Witness GPE testified that she knew Jean de Dieu Kamuhanda but that she had only seen him once at his sister’s wedding. Nonetheless, GPE testified that the Pastor and Kamuhanda knew each other because they met at educational meetings. She acknowledged that Kamuhanda was well known in Gikomero. She stated that neither Kamuhanda nor the Pastor is a killer. 9°9 o Defence Witness GPF 407.Defenee Witness GPF, a Hum born in 1972, testified that in April 1994 he lived near Gikomero Parish Compound. 91° In answer to a question from the Bench, the Witness testified that 1,500 people, approximately, were sheltered at the Parish on 12 April 1994, the day of the attack. He further testified that some were killed on the spot, some were killed as

they fled the attack and others survived. 911 408.Defence Witness GPF realised that there was an attack at the Parish when he heard gunshots between l:00pm and l:30pm. He was having lunch when Reuben shouted at the Pastor, "You are being attacked and you are still there?" At that moment, the Pastor and Bucundura stood up and went outside the Pastor’s residence. The Pastor was behind Bucundura. The Witness explained, "When I heard the gunshots, I tried to bring out the bicycle in order to go and hide it. At that point in time, the Pastor, who was already down below [from GPF’s house] saw me through the window and he told me, "There is no point in that. The attackers are already upon us. It is better you go and look for a place to go and hide." The Witness left the bicycle in the sitting room of the pastor’s house and fled. 912 In cross-examination, Witness GPF denied the Prosecution suggestion that Reuben and the Pastor, alerted by shouting, knew about the impending attack. 913 He also denied the Prosecution’s suggestion that the Pastor had 907T. 16 January 2003, pp. 4-6, 28-33 and 52-53 (GPE) (ICS). 908T. 16 January 2003, pp. 16 and 17 (GPE) (ICS). 909T. 16 January 2003, pp. 14-15 and 49 (GPE) (ICS). 910T. 20 January 2003, p. 14 (GPF) (ICS). 911T. 20 January 2003, pp. 33 - 36 (GPF) (ICS). 912T. 20 January 2003, pp. 18 and 35 (GPF) (ICS). 913T. 20 January 2003, p. 17 (GPF) (ICS). - 112 -

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409.

410. The Prosecutor v. Jean de Dicu Kamuhanda 22 Januavv 2004 Judgmcllt arid Sentence surrendered Bucundura to the Interahamwe in order to save himself and his family. He testified that members of Bucundura’s family have defended the Pastor against criminal allegations. 914 Defence Witness GPF attested to knowing that the assailants at the Gikomero Parish Compound came from Rubungo, insofar as the policeman who shot his neighbour, GPR’s husband, was from Rubungo. 915 Defence Witness GPF testified that he had come to the Tribunal to show that the Pastor did not participate in the genocide. 916 o Defence Witness GPK 411.Defence Witness GPK917 testified that in 1994 he carded out his business in the Kurupangu centre, in Gikomero market. He explained the distance between Kurupangu and the Gikomero Parish Compound is approximately 300 to 350 metres. Walking at a moderate pace, one could reach the Parish in fifteen minutes. 918 In 1994, during the war, he closed his business for security reasons. 919 412.Defence Witness GPK testified that three days before the massacres, refugees began flocking to the Parish from Remera in Rubungo commune, and from Mbandazi. No Tutsi from Gikomero sought refuge at the Parish insofar as there were no problems of this in Gikomero. 92° 413.According to Defence Witness GPK, the massacres occurred between l:00pm and 3:00pm on 12 April 1994. He was near

Kurupangu centre when the massacres commenced. 921 He saw vehicles coming down the road but could not count them. From a distance of 50 metres, the Witness saw people jump down from one of the vehicles. They were carrying firearms and traditional weapons. The armed people encircled the Witness and few others at the market and prevented them from fleeing. They were told, "Do not be afraid. You won’t have a problem. We’re only looking for the Tutsis". They were also told to follow the armed people to the Gikomero Parish Compound, which they did. On their way they saw about 10 or 20 dead bodies. When they reached the bureau de secteur they were divided into two groups; the first group took the normal road to the Parish to intercept the refugees in their flight from the Parish and the second group, the one of GPK, was ordered to go in front of the vehicle 914T. 20 January 2003, pp. 18 and 19 (GPF) (ICS). 915T. 20 January 2003, p. 31 (GPF) (ICS). 916T. 20 January 2003, pp. 14 and 31 (GPF) (ICS). 917T. 20 January 2003, pp. 41 and 42 (GPK). 918T. 20 January 2003, pp. 46 and 47 (GPK) (ICS); T. 21 January 2003, p. 23 (GPK) 919T. 20 January 2003, p. 42 (GPK). 920T. 20 January 2003, pp. 42 and 43 (GPK). 921T. 20 January 2003, pp. 43 and 44 (GPK). 113 -

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414. 415.

416. Fhc Pros;ect~tor v. Jean de Dicu KarnLdlanda 22 Jarmarv 2004 Judgment arid 5;cmet~cc proceeding in the direction of the Parish. Witness GPK testified that before the attackers arrived, he had not heard any guns fired in Gikomero secteur but as he approached the Parish he heard many gunshots from the direction of the Parish. 922 Defence Witness GPK testified that when his group and Interahamwe reached the Parish, he saw another group of assailants which had already arrived at the Parish. He also observed that people had already been killed. At the Parish Compound, he saw two vehicles: a white Hilux pick-up in front of the Pastor’s house; and a white Suzuki next to the Church. The Witness testified that guns were fired, grenades were thrown. The attackers looted the Pastor’s residence, stealing money, mattresses and other possessions belonging both to the Pastor and the refugees. 923 The Witness did not recognise anyone during the attack. When the attackers left he recognised local people. He and other local people were coerced into joining the attack. He said that the other local people who joined the attack used bludgeons or clubs, distributed by the Interahamwe at the Parish. The Witness GPK acknowledged that he was present during the attack for at least one and a half hours. He also stated that he personally refused to participate in the attack, but had no

other choice than to stay at the site. 924 In cross-examination, Defence Witness GPK asserted that the Interahamwe whom he saw on 12 April 1994 were not from Gikomero and were strangers to him. Defence Witness GPK testified that on 12 April 1994, the massacre was launched exclusively on the Parish and that the Interahamwe killed indiscriminately. The Witness testified that he had not seen Kamuhanda distributing weapons or heard that he had done so, before the Interahamwe arrived in Gikomero. 925 Defence Witness GPK testified that after the massacres, the RPF requested the inhabitants of Gikomero to identify the perpetrators. The Witness was personally not asked by the authorities whether or not Kamuhanda was at the Parish on the day of the massacres. 926 Defence Witness GPK disclosed to the Chamber the names of those whom he recognised participating in the Gikomero Parish Compound massacre. All of them were residents of Gikomero in 1994. 927 He testified that he did not see Reuben on the day of 922 T. 20 January 2003, pp. 48 - 52 (GPK) (ICS); T. 21 January 2003, pp. 21 - 25 (GPK); T. 21 January 2003, pp. 27 - 29 and 37 (GPK) (ICS). 923 T. 20 January 2003, pp. 53, 54 and 57 (GPK) (ICS); T. 22 January 2003, pp. 5 and 8 (GPK) 924 T. 20 January 2003, pp. 55 - 57 (GPK) (ICS); T. 21 January 2003, pp. 37 - 45 (GPK) (ICS); January 2003, pp. 6 and 8 (GPK) (ICS). 925 T. 21 January 2003, pp. 6, 7 and 15 (GPK). 926 T. 21 January 2003, pp. 3, 4 and 5 (GPK). 927 T. 21 January 2003, pp. 45 - 47 (GPK) (ICS). 114 -

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Tl~c Prosecutor v Jean. dc DJcu Kamtfllar.lda 22 January 2004 Judgmcrlt and Sc~t:encc 417. 418. 419. 420. the attack. He further testified that he did not know whether Reuben was present during the attack. 928 Defence Witness GPK testified that he has not been suspected of involvement in the massacres. Rather, local people have mentioned him as 929 a Witness to the massacres. Defence Witness GPK estimated that there were between 30 to 50 assailants, and that the attack lasted about two hours. The assailants left the area at around "4:00pm or 4:30pm". 93° In cross-examination, Defence Witness GPK931 acknowledged that he has a family relationship with Kamuhanda. 932 Defence Witness GPK testified that Kamuhanda did not come to his shop between 6 and 12 April 1994. He further attested that he did not hear of Kamuhanda being in the area during this period. o Defence Witness GPC 421.Defence Witness GPC, who lived in Gikomero commune in April 1994, 933 testified that he has been appointed as a member of the local gacaca tribunal. 934 He acknowledged that he has family relationship with Kamuhanda. 935 Following the 6 April 1994 the Witness did not see Kamuhanda in Gikomero and indeed has not seen him since then. 936 422.Defence Witness GPC testified that victims of the killings were Tutsis who sought refuge at the Gikomero Parish Compound. The Tutsis who came from the

neighbouring communes of Rubungo, Gikoro and Bicumbi, where killings had begun, arrived at the Parish on 9 April 1994. The Witness testified that no local Gikomero residents sought refuge at the Parish since there were no security problems in Gikomero. 937 423.Defence Witness GPC testified that killings occurred at Gikomero Parish Compound on 12 April 1994. 938 On that date, the Witness was in his field close to the Parish. Hearing gunshots from the direction of the Parish, he went to the road alongside his field. There he met a man who told him, 928T. 21 January 2003, pp. 47 and 48 (GPK) (ICS). 929T. 21 January 2003, pp. 12 and 13 (GPK). 930T. 20 January 2003, pp. 6, 57 and 58 (GPK) (ICS); T. 21 January 2003, pp. 17 - 19 (GPK). 931T. 20 January 2003, p. 62 (GPK) (ICS). 932T. 21 January 2003, pp. 5, 52 and 53 (GPK) (ICS). 933T. 22 January 2003, p. 11 (GPC). 934T. 22 January 2003, p. 32 (GPC) (ICS). 935T. 22 January 2003, p. 34, 56 and 57 (GPC) (ICS). 936T. 22 January 2003, p. 26 and 27 (GPC). 937T. 22 January 2003, p. 14 (GPC). 938T. 22 January 2003, p. 12 (GPC). - 115-

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424. 425.

426. Thc Prosecutor v. Jean dc Dicu Kamuharlda 22 .Ial’mavv 2004 "Listen, it is the Interahamwe who are from Rubungo who have just attacked the Tutsis who are at the Gikomero Parish." The Witness went to the Parish. When he arrived he saw attackers who were in the classrooms and in the courtyard. He testified that he was not afraid because he had already been told by the men he met on the road that the attackers were only targeting Tutsis. He observed that the attackers were Interahamwe from Rubungo and that they wore the distinct Interahamwe uniform. He also saw four vehicles : a white Suzuki in front of the Church; a double cabin pick-up four by four, near the Pastor’s house; a blue Daihatsu; and a red motor car. He testified that he did not stay at the Parish more than five minutes because he had only gone to investigate. He left to inform his neighbours of what was happening. 939 He estimated that the attack commenced between 1:00pm and 2:00pm. In cross-examination, Defence Witness GPC dismissed the testimonies reporting that Kamuhanda was present at the Gikomero Parish Compound as lies. He stated that Kamuhanda was not at this massacre site.940 In re- examination, GPC acknowledged that he arrived at the Compound fifteen minutes after he heard gunshots coming from the direction of the Parish. He asserted that he would have been informed if Kamuhanda had been present at

the site, before his arrival. 941 In cross-examination, Defence Witness GPC testified that he had received no instruction regarding his testimony. He confirmed that he witnessed the massacres at the Parish and that he did not see Kamuhanda at the massacre site. 942 Defence Witness GPC testified that he knows very well that both Kamuhanda and Pastor Nkuranga have been accused of participating in the massacres of 12 April 1994 at the Gikomero Parish. He also knows that Pastor Nkuranga was released once it was established that the accusations levelled against him had no grounds. He asserted that his testimony was not to assist Kamuhanda, but to tell the truth about what he saw. 943 427.During re-examination, when GPC was asked whether there was an agreement among the Hum not to denounce the genocidaires, GPC testified that he knows of no law that requires Hutu to be silent about the genocidaires. He explained that when he came to testify, he testified about what he saw with his own eyes. 944 939T. 22 January 2003, pp. 15 -26 and 42 - 48 (GPC). 940T. 22 January 2003, p. 44 (GPC). 941T. 22 January 2003, p. 50 (GPC). 942T. 22 January 2003, p. 41 and 42 (GPC). 943T. 22 January 2003, p. 49 (GPC). 944T. 22 January 2003, p. 51 (GPC). - 116 -

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The Prosecutor v, Jean de Dieu Kam~d~anda 22 Jarmarv 2004 o Defence Witness GPB 428.Defenee Witness GPB testified that during 1994 he lived in Gikomero commune and he still lives there to date. 945 He was elected as a member of the gacaca in his locality. 946 He testified that he has family relations with Kamuhanda. 947 429.Defence Witness GPB testified that the refugees who started arriving at Gikomero Parish on 9 April 1994 came from Mbandazi, Rubungo and localities beyond Kanombe. The Witness passed by the Parish on 10 April 1994 but did not speak to any of the refugees. When he did so, he saw that the refugees were in the classrooms and in the Pastor’s house. He testified that there were no Gikomero Tutsi at the Parish when he passed by the Parish because before 12 April 1994 there were no problems between the Hum and Tutsi of Gikomero. 948 430.Defence Witness GPB testified that on 12 April 1994 there had been refugees at the Gikomero Parish but some Interahamwe came and killed them.949 He testified that the attack itself took place, "a few minutes after 1:00pm and definitely between 1:00 and 2:00pm. ’’95° At this time, he said he was on the road going to his home. He stood where the ’S.O.D.E. VAT , 951 project road sign is located. Whilst on his way home, he heard the noise of vehicles and when he looked back, he saw a blue Daihatsu-type vehicle, followed by a red car. The

vehicles stopped and some Interahamwe came out of the Daihatsu and ordered all the people in the area, including the Witness, to follow them to the Parish. He estimates that there were about twenty Interahamwe and about forty local people. He testified that he and the others followed the assailants and when they reached the home of Rutayisire the two vehicles stopped. Among the Interahamwe who stopped at Rutayisire’s home was Twagirayezu, the communal policeman who killed Edouard [Gashikazi]. The Witness and the others continued, and when they reached the Parish they were told to stop. He was among the first group to reach the Parish. After a few moments he saw two other vehicles arrive, an ISUZU and a white double-cabin pick-up. One of them parked in front of the Church and the other parked in front of the Pastor’s house. He testified that when they reached the Parish they were told to stop, slightly away from the vehicles. The attackers quickly surrounded the classrooms and told the people who were inside to come out into the courtyard, where the attackers began to shoot and throw grenades into the crowd. He testified that the attackers butchered the cattle and loaded them 945T. 27 January 2003, p. 55 (GPB). 946T. 28 January 2003, p. 13 (GPB). 947T. 28 January 2003, p. 16 (GPB). 948T. 27 January 2003, p. 56 (GPB); T. 28 January 2003, p. 29 (GPB). 949T. 27 January 2003, p. 56 (GPB). 950T. 27 January 2003, p. 56; T. 28 January 2003, p. 35 (GPB). 951T. 28 January 2003, p. 2 (GPB). - 117-

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431. 432. 433.

434. The Prosecutor v. Jean dc Dieu Kamuharlda 22 January 2004 Judgrncnt and Sct~tence into the vehicles along with the refugees’ property and that of the Pastor. He did not see any of the refugees fleeing.952He testified that the attack commenced at around 2:00pm and the attackers left at around 4:00pm or 4:30pm, staying approximately two hours in total. Witness GPB himself stayed there the whole time because he was surrounded by attackers and was afraid to leave. He testified that he was forced to join in the attack but although he refused, some of the people he was with joined in the attack. 953 In his estimation, there were about one thousand five hundred refugees, and eighty two attackers. 954 Defence Witness GPB testified that on the day of the attack, the first thing he saw was the attackers surrounding the classrooms. He never saw Pastor Nkuranga. He testified that what was being said about Pastor Nkuranga was false. Similarly, the Witness testified that he did not see Kamuhanda, and that anybody who testified against Nkuranga and Kamuhanda was a liar. 955 He testified that he knew Edouard Gashikazi, and that he witnessed Twagirayezu shoot him. 956 Defence Witness GPB testified that after the death of the President on 6 April 1994, he did not see Kamuhanda in Gikomero, and on 12 April 1994 he did not see him at the Parish. He testified that he saw the vehicles arrive at

the Parish and he saw the whole attack for its whole duration. He said that those who testified that they saw Kamuhanda among the attackers on 12 April 1994 were liars. 957 GPB testified that he heard of the arrest of Kamuhanda and when he did he was surprised, as were others in the Gikomero population. 958 The Prosecution suggested to Defence Witness GPB that he was a young, unemployed man at the time of the attack, and that he was summoned to join in. The Witness confirmed that he was eighteen years old at the time, and that he was forced to follow these people. He denied any suggestion that he participated in the attack. Rather, he claims simply to have followed the attackers, as he was forced to do. 959 In cross-examination, Defence Witness GPB testified that on 10 April 1994 when he passed the ’S.O.D.E. VAT project’ road sign, no one were there; however, when he passed it on 12 April 1994, there were people there. When the attackers found them, they were all forced to follow, in order to attack the refugees at the Parish. 96° 952T. 28 January 2003, pp. 2 - 5, 10-11; 35 - 38; 40 and 43-44 (GPB). 953T. 28 January 2003, pp. 10 - 12 and 40-41 (GPB). 954T. 28 January 2003, p. 44 (GPB). 955T. 28 January 2003, pp. 43 and 44 (GPB). 956T. 28 January 2003, p. 42 (GPB). 957T. 28 January 2003, pp. 15 and 16 (GPB). 958T. 28 January 2003, p. 16 (GPB). 959T. 28 January 2003, p. 39 (GPB). 960T. 28 January 2003, p. 39 (GPB). 118 -

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The Prosecutor v. Jear~ dc l)icu Kamuhanda 22 January 2/104 435.Defence Witness GPB testified that he knew who Rutabagirwa was, but not whether he was a Tutsi. He knew that Rutabagirwa had named his child "Umuhutagehe." After 1990, the Witness claims that "Umuhutagehe" was considered to be a Tutsi name, showing that the father of the child was amongst those who were against the Hutu interest. By giving the name "Umuhutagehe" to his son, theman blamed the Hutns, and was ready to pursue them. 961 c. Findings o Discussion 436.In the following sections, the Chamber will assess the evidence of both Parties regarding the presence of the Accused in Gikomero commune, at the Gikomero Parish and School Compound ("Gikomero Parish Compound") on 12 April 1994 and also the Attack at the Gikomero Parish Compound. The Presence of Kamuhanda in Gikomero Commune Prior to the Attack of 12 April 1994 on the Gikomero Parish Compound 437.The Chamber notes that Prosecution Witnesses GEK and GEB testified to having prior knowledge of the Accused. They attested to seeing the Accused in a vehicle in Gikomero commune before the killings of 12 April 1994 at the Gikomero Parish Compound. 438.The Chamber recalls the Defence allegations against Prosecution Witness GEK. The Defence asserted that the Witness lied about her identity, about being at her home between 10 and 14 April 1994, and

about seeing the Accused before the attack on the Gikomero Parish Compound. The Chamber recalls its previous finding that Witness GEK’s testimony is both highly credible and reliable. The Witness gave credible explanations of her movements during the periods relevant to this indictment. In the Chamber’s opinion, the Witness knew the Accused prior to the attack of 12 April 1994. The Chamber believes that on 10 April 1994 she was at her home and overheard the Accused talking to her husband. 439.The Chamber recalls that it found credible the testimony of Witness GEK that at her home on 10 April 1994,962 she heard the Accused tell her husband that the killings had not started in Gikomero commune; who were to assist had married Tutsi women; that if their Tutsi women were in the way "they should first eliminate them";963 and that he would bring 961 T. 962 T. 963 T. 28 January 2003, p. 54 and 55 (GPB). 3 September 2001, p. 180 (GEK) (ICS). 3 September 2001 ,p. 171 (GEK) (ICS). 119 -

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440.

441. The Prosecutor v Jean dc Dicu Kamuhanda 22 .lanumw 2004 equipment to start. The Chamber believes the evidence that the Witness saw, on that same day outside her home, weapons being distributed when the Accused came out of the house "to arrange for the killings to start [... ] at the primary school".964 The Chamber further believes the Witness’ testimony that she saw the Accused at her neighbour’s house the day the killings started at the Gikomero Parish Compound - between 10 April 1994 and 14 April 1994 - in a vehicle which was followed by another vehicle carrying a large number of armed people and lnterahamwe going in the direction of Gikomero Primary School. She heard gunshots and noise for 20 to 40 minutes afterwards. The Chamber also recalls her testimony that after the gunshots had stopped, she saw wounded children fleeing. A young amputated girl sought refuge in her house. The Defence challenged the credibility of Witness GEB. The Defence argued that the Witness would not have been able to identify the Accused in a moving vehicle on 12 April 1994, insofar as the Witness had met the Accused only on brief and rare prior occasions. The Defence further challenged the Witness about contradictions contained in his prior statement taken by investigators and his testimony before the Chamber. In his statement, the Witness specified that a

policeman named Asiel had informed him of Kamuhanda’s responsibility for the attack at the Gikomero Parish. The Witness testified before the Chamber, however, that wounded refugees had provided this information. The Defence also pointed out differences between his statement and testimony regarding the names of refugees who, according to the Witness, were on the road with him, and who also spotted the Accused in a passing vehicle. 965 The Defence challenged his account relating to two further events, occurring prior to 1994, where he attested to last seeing the Accused: the opening ceremony of the Kayanga Health Centre, in 1991, and the introduction ceremony for Kamuhanda’s wife, in 1983. 966 The Majority of the Chamber, Judge Maqutu dissenting, finds the account of Witness GEB regarding the two encounters with the Accused, prior to 1994, to be credible and to constitute sufficient evidence to establish that the Witness had prior knowledge of the Accused. The Majority of the Chamber also accepts the Witness’s testimony that he identified the Accused in a pick-up vehicle with approximately twenty individuals in the back, some of whom were armed. The vehicle was coming from behind the refugees, who were approximately a kilometre and a half from the Gikomero Parish. The Majority of the Chamber further finds credible the Witness’s testimony that he heard gunshots from the direction of the Parish, about thirty minutes after the vehicle had passed the group of refugees. 964T. 3 September 2001, p. 180. (GEK)(ICS). 965Defence Closing Brief, para. 326 (French original) and paras. 866-889 (English translation). 966T. 12 September 2001, p. 66 (GEB). - 120 -

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442. 443. 444. 445.

446. The Prosecutor v, Jeart de Dicu Kamuhal~da 22 Jmmarv 2004 Judgmen:t and Scn:tencc The Chamber has carefully considered the evidence of Prosecution Witness GEU, who testified that, at l:00pm on 12 April 1994, he saw a large white vehicle at the Gicaca Trading Centre, where Kamuhanda was also sighted, according to unidentified reports. Witness GEU was the sole Witness to testify about this sighting. The Defence pointed out contradictions between the detailed vehicle description given by Witness GEU, and the different description given by Witness GEB who claims to have seen the Accused in a different vehicle on the same day. The Defence brought the Chamber’s attention to the fact that the Witness had no prior knowledge of the Accused, and that his reporting of statements, allegedly made by the Accused when the vehicle stopped at the Gicaca Trading Centre, was based on the reports of others. The Chamber finds that it cannot rely on the Witness’s testimony regarding statements by the Accused, insofar as the basis of his account is uncorroborated hearsay, and anyhow of questionable credibility. With respect to the identification of the Accused on 12 April 1994 in Gikomero commune prior to the attack, the Chamber recalls that it has accepted the evidence of Witness GEK regarding the Accused’s statement about the preparation of the killing of Tutsis in Gikomero on 10 April 1994.

The Chamber also accepts that the Witness sighted the Accused before the massacres. The Accused was accompanied by armed people and Interahamwe. The Accused was heading in the direction of the Gikomero Primary School. From this evidence, the Chamber finds that the Accused, accompanied by armed people and Interahamwe travelled in the direction of the Gikomero Parish Compound on 12 April 1994. The Chamber finds credible, by a majority, Judge Maqutu dissenting, Witness GEB’s sighting of the Accused on the road to Gikomero Parish Compound on 12 April 1994. The Presence of Kamuhanda at the Gikomero Parish Compound on 12 April 1994 The Chamber observes that 13 Prosecution Witnesses testified to seeing the Accused on 12 April 1994 at the Gikomero Parish Compound. Three of the Prosecution Witness, GAF, GAA and GES, attested to having prior knowledge of the Accused. The Chamber will first assess the credibility of these Witnesses in turn, regarding identification of the Accused, before evaluating their factual evidence. The Defence challenged Prosecution Witness GAF’s knowledge of the Accused. The Defence submitted that the Witness provided inaccurate dates and few details concerning two occasions when he met the Accused prior to the events of 1994. Firstly, the inauguration of the bureau communal in 1986, and secondly, the opening of the Kayanga Health Centre in 1992. Regarding the first challenge, the Defence points out that - 121 -

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447.

448. The ProsccLltor v. Jean dc Dicu Kamuhanda 22 January 2004 the ceremony for the new office occurred in 1987, and not in 1986, as stated by the Witness. Regarding the second challenge, the Defence maintained that the Accused could not have been present at the opening of the Kayanga Health Centre (located in Gikomero commune), because the Accused lived in Butare at that time. The Chamber notes the dock identification of the Accused by the Witness.967 The Majority of the Chamber, Judge Maqutu dissenting, accepts the explanations given by the Witness regarding the error in the date of the ceremony for the inauguration of the bureau communal. 968 The Accused did not deny being there. Indeed, he attested to being responsible for protocol for this event in 1987. 969 Regarding the opening of the Kayanga Health Centre in 1992, the Chamber observes that even if the Accused had been posted in Butare at this time, this alone would not demonstrate the impossibility of the Accused’s presence. The Majority of the Chamber further notes that the testimonies of Prosecution Witnesses GEK and GEB corroborate the testimony of Witness GAF that the Accused was at the opening of the Kayanga Health Centre in 1992. 970 With respect to prior knowledge of the Accused, the Majority of the Chamber, Judge Maqutu dissenting, finds the testimony of Witness GAF to be truthful. However, the

Chamber does not believe the unsubstantiated testimony of Witness GAF that the Accused was known before April 1994 to be an influential politician and "an influential member of the MRND party from the Gikomero area". 971 The Defence challenged Prosecution Witness GES’s knowledge of the Accused. The Defence suggested that the Department of Bridges and Roads, where the Witness testified to have been employed at the time, was located more than four kilometres away from the Ministry of Higher Education and Scientific Research, where the Accused worked, and not across the street, as the Witness testified. However, the Chamber notes the Witness’s explanation, that his office was in a building located across the street from the Accused’s office in the Kacyiru Complex. 972 The Chamber believes that, as a civil servant, Witness GES may have known Kamuhanda, a senior civil servant. The Chamber also notes that the Witness identified the Accused in court.973 On the basis of all the evidence presented, the Chamber therefore finds the account of the Witness’s prior knowledge of the Accused to be credible. The Defence pointed out that Prosecution Witness GAA provided vague descriptions of two occasions, prior to 12 April 1994, when the Witness allegedly met the Accused. The first was the birth of the Accused’s sister’s 967T. 17 September 2001, p. 50 (GAF). 968T. 17 September 2001, p. 36 (GAF). 969T. 20 August 2002, p. 49 (Kamuhanda). 970T. 12 September 2001, p. 102 (GEB). 971T. 13 September 2001, p. 46 (GAF). 972T. 30 January 2002, pp. 99 and 100 (GES). 973T. 25 January 2002, pp. 123 and 124 (GES). 122 -

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The Prosccumr v, ./can dc [)icu Kamuharlda 22 Januavv 2004 Judmncnt and ScI~tcncc child, and the second the Accused’s sister’s burial at Mbandazi, less than a kilometre from the Witness’s residence. 974 The Chamber notes that according to the Witness, on neither occasion was he introduced to nor did he speak with the Accused. Rather, the Accused was pointed out to the Witness. The Chamber notes that the Witness lived close to the Accused’s sister’s home. The Chamber also notes that the Witness was able to identify the husband of the Accused’s sister from an old photograph taken at the Accused’s sister’s funeral 975 and that the Witness identified the Accused in Court. 976 The Chamber is satisfied that Witness GAA is credible and had prior knowledge of the Accused. 449.The Chamber therefore finds the testimonies of Witnesses GES and GAA credible regarding their prior knowledge of the Accused. The Majority of the Chamber, Judge Maqutu dissenting, also finds that the testimony of Witness GAF is credible regarding his prior knowledge of the Accused. 450.The Chamber will now assess the evidence of Witnesses GAF, GES, and GAA with respect to their identification of the Accused at the Gikomero Parish Compound on 12 April 1994. 451.Prosecution Witnesses GAF, GES, and GAA alleged that they were refugees at the Gikomero Parish Compound on 12 April 1994 and that they identified the

Accused on his arrival at the Compound on this day. Witness GAF testified that between 2:00pm and 3:00pm, he saw the Accused, from a distance of 15 to 20 metres, arrive in a vehicle with UN Markings. The vehicle was the second, coming from the upper side of the Parish. The Accused remained at the Compound for only a short period of time. The Defence maintained, given the large number of refugees and the short stay of the Accused, that Witness GAF could not have identified the Accused.977 The Majority of the Chamber finds Witness GAF’s identification of the Accused in Gikomero Parish Compound to be credible, insofar as the Witness saw the Accused in broad daylight and had prior knowledge of the Accused. Witness GES testified that between 12:00am and 2:00pm he saw Kamuhanda getting out of a single-cab truck carrying approximately ten armed men in the back. The Witness was standing at a distance of approximately fifty metres from the Accused at this time. The Defence challenged Witness’s identification of Kamuhanda from this distance. However, the Chamber is satisfied that the Witness was able to accurately see the Accused from that distance. 978 Witness GAA testified that he was fewer than one hundred metres away when he saw a white pick-up truck bearing the letters "UN" with about ten people in the back. Witness GAA did not mention the time of the arrival but did testify 974T. 19 September 2001, p. 107 (GAA). 975T. 20 September 2001, pp. 3-17 (GAA). 976T. 19 September 2001, pp.11-113. (GAA). 977Defence Closing Brief, paras. 288 and 289 (French) and 758 to 760 in the (English translation). 978Defence Closing Brief, paras. 288 (French) and 758 (English Translation). - 123 -

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452. 453.

454. The Prosecutor v. Jean de Dieu Ka)nuha)~da 22 Jarmavv 2004 that the Accused came in another vehicle. The Defence expressed doubt that the Witness could have identified Kamuhanda from this distance. The Chamber is satisfied that, insofar as the observations of Witness GES and GAA were made in broad daylight and insofar as they had prior knowledge of the Accused, their identification of the Accused on that day at Gikomero Parish Compound by the Witnesses is accurate. The Chamber finds that slight differences in the Witnesses’ accounts of the vehicle in which the Accused arrived does not affect the reliability of these Witnesses as a vehicle’s arrival is a passing event. The Chamber has heard the accounts of other Prosecution Witnesses who saw the Accused on 12 April 1994 at the Gikomero Parish Compound but who did not have prior knowledge of the Accused. The Chamber will now assess their evidence. The Chamber notes that the Defence challenged the credibility of Prosecution Witness GEE on the basis that the Witness did not recognise the Church premises in Prosecution Exhibit 2. The Chamber notes Witness GEE’s testimony that he was standing in front of a classroom between 2:00pm and 3:00pm on 12 April 1994. The Witness stated that unnamed refugees, on seeing a white pick-up truck arrive, exclaimed, "We are going to be killed. Kamuhanda is coming". The

Chamber further notes Witness GEE’s testimony that, although there were cattle and refugees in the area, he was able to see the man identified as Kamuhanda. The Chamber recalls that GEE attested to Witnessing the killing of Bucundura by a policeman who arrived with the Accused. The Chamber does not find the fact that the Witness did not recognise the photograph in Prosecution Exhibit 2 to be unusual, insofar as the Witness testified that he had never been at Gikomero Parish Compound before. The Chamber finds the Witness’s identification of the Accused to be credible. The Defence challenged Prosecution Witness GEA’s identification of the Accused and the Church. The Witness who recalled that there was a veranda on the Church was unable to identify the Church building from a photograph of the Church. The Chamber recalls the Witness’s testimony that on 12 April 1994, between 1:00 and 2:00pm, he saw both Kamuhanda exiting and talking to the Pastor. According to the Witness, a boy named Musonera, a native of Gikomero pointed out to him Kamuhanda. The Witness testified that other refugees exclaimed "Kamuhanda has just arrived, our lives will no longer be peaceful and safe." The Witness attested that he was hiding in a small eucalyptus bush on the veranda of the Church when he witnessed the killing of Bucundura, by a man who had arrived with Kamuhanda and in the presence of Kamuhanda. The Chamber does not find it unusual that the Witness did not recognise the Church premises from photographs shown to him during his testimony insofar that as he had been at the Gikomero Parish Compound on this one occasion. 124 -

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455. 456.

457. The Prosecutor v. ,Icar~ de Dicu Kamuhanda 22 Jarmarv 2004 Judgment and Sc~tcncc The Chamber finds the Witness’s identification of the Accused to be credible. The Defence questioned the ability of Prosecution Witness GEC to identify the Accused at Gikomero Parish Compound. The Chamber recalls her testimony that on 12 April 1994, between 1:00pm and 2:00pm, she was in a classroom when vehicles arrived. A man, who stepped out of a vehicle, was pointed out to her by someone called Nzarambo as being Kamuhanda. The Chamber observes that she further testified to seeing Kamuhanda with Pastor Nkuranga in front of the classroom and to seeing Kamuhanda raise his hands. From a distance of five metres, she heard him say, "start working". The Chamber finds that the Witness’s identification of the Accused is credible. Defence pointed out that Prosecution Witness GEG is the sole Witness to have testified to seeing the Accused with a weapon at the Gikomero Parish Compound. The Defence also pointed out that Witness GEG was unable to recognise the Accused in court. The Witness testified that he was standing at the side of the Church facing the courtyard when a vehicle carrying the man identified by other refugees as Kamuhanda arrived and passed by the place he was standing. According to the Witness, the Accused arrived while the refugees were meeting with Pastor Nkuranga. The

refugees shouted "[T]hat is Kamuhanda, now that he is here, we are finished.". Concerning the Defence submission that GEG is the only Witness to testify about seeing the Accused with a weapon, it is the Chamber’s opinion the Witness may simply have been mistaken. The Chamber finds that the Witness’s testimony in the main corroborates the evidence of other Witnesses with regard to the sequence of events at Gikomero Parish Compound on 12 April 1994. The Chamber finds, therefore, the Witness’s identification of the Accused at the Gikomero Parish Compound to be credible. The Defence submitted that Prosecution Witness GEI’s sketch, drawn for the ICTR investigators, does not correspond to the Gikomero Parish Compound, as it looked in 1994. Rather, it resembles the Parish today. The Chamber notes Witness GEI’s testimony that he visited the Gikomero Parish Compound in 2000 during the exhumation of massacre sites. Accordingly, the Chamber is of the opinion that Witness GEI may have mistakenly included new buildings in his sketch given to the Tribunal investigators. The Witness testified that at approximately l:00pm, on 12 April 1994, he saw a white pick-up truck in Gikomero. The person who exited the vehicle identified by refugees who shouted, "Since Kamuhanda is here, our fate is sealed." The Witness attested to moving to approximately four metres from the Accused in order to eavesdrop on his conversation with Pastor Nkuranga. The Witness heard the Accused ask the Pastor, "[what] are these people still doing here". The Pastor replied that he saw "these people come here". The Witness testified that the - 125-

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458. 459. lhe Prosecutor v..lean de Dicu Karnuhanda 22 January 2004 Judgrnen[ and SeNtence Accused immediately ordered the [nterahamwe to come down from the vehicle. He told them that "all these people here are Tutsi, kill them". The Accused also gave an order for the lnterahamwe to shoot Bucundura. After consideration of all the evidence presented, the Chamber does not find credible the Witness’s account that he moved significantly closer to the Accused to "eavesdrop on a conversation"; particularly in respect of his testimony that the refugees said their fate was sealed when Kamuhanda arrived. The Chamber acknowledges that Witness GEI is the only Witness who testified that Kamuhanda ordered the Interahamwe to kill Bucundura. Consequently, the Chamber cannot rely upon this uncorroborated evidence. The Chamber notes that Prosecution Witness GAG testified that, between l:00pm and 2:00pm, she was outside the classrooms listening to Pastor Nkuranga, who was talking to the refugees. At this time she was told by her son, among others, that a white pick-up truck had arrived and that guns had been distributed to lnterahamwe. She testified that many refugees shouted "that is Kamuhanda" and that a man who had come with Kamuhanda shot at Bucundura in Kamuhanda’s presence. She added that once Kamuhanda had finished talking to the Pastor, he returned to the vehicle. The

Defence challenged Witness GAG’s familiarity with the Gikomero Compound because she could not recognise photographs 7 and 8 in Prosecution Exhibit 2. The Chamber, however, finds the description of the classrooms by the Witness to be reliable. The Chamber recalls that Defence Witness GPE testified to having given shelter to Witness GAG who was wounded after the attack at the Gikomero Parish Compound. The Chamber finds the Witness’s account of her identification of the Accused at the Gikomero Parish Compound to be credible. The Chamber notes that Prosecution Witness GEM testified that on the morning of 12 April 1994, she was at the Gikomero Parish with approximately one million other refugees. She testified that a man, identified by others as Kamuhanda, arrived at 11.00am in a white truck. The Witness testified that she heard people say that Kamuhanda was there and that, "our fate is sealed". The Witness testified that within one hour of Kamuhanda’s arrival, the Accused left in his truck and another truck arrived with armed lnterahamwe who got out of the truck and started shooting at the refugees. She testified that the first person to be killed was a man from Rusororo named Bucundura with his wife and children. When shown photographs of the Gikomero Parish, the Witness testified that she did not recognise the area depicted therein. The Chamber finds that the inability of the Witness to identify Gikomero Parish in the pictures is not unusual given that this was the Witness’s first time at the Parish. However, the Witness’s estimates of time and numbers are unreliable when compared to the corroborated evidence of other credible Witnesses. 126 -

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460. 461. 462. 463.

464. The Prosecutor v. Jean dc Dieu Kamuhanda 22 Jarmarv 2004 ,Judgmcn-t and Sc~tcncc Consequently, the Chamber does not find the Witness to be reliable on such issues. The Chamber notes that Prosecution Witness GEV testified that, between l:00pm and 2:00pm on 12 April 1994, he saw a man arrive at Gikomero in a white truck with Interahamwe. He testified that a friend said "Kamuhanda has just arrived, our fate is sealed." At this time he was approximately fifteen to twenty metres from the place where Kamuhanda and Nkuranga talked together. Soon afterwards, the Interahamwe shot at Bucundura. The Witness did not know whether the Accused was still on the premises at that time. The Chamber finds the Witness’s identification of the Accused at the Gikomero Parish Compound to be credible. Prosecution Witness GEP was unable to recognise Gikomero Parish Compound from Prosecution Exhibit 2. The Defence used this to challenge the Witness’s credibility. However, the Chamber is satisfied with the Witness’s description of Gikomero Parish Compound as it was on 12 April 1994. The Chamber notes that Witness GEP testified that around lunchtime on 12 April 1994 she was in a classroom when she saw a vehicle arrive in the Compound and a man get out of the vehicle. She testified that refugees shouted "this is Kamuhanda who has arrived." The Chamber finds the Witness’s identification of the Accused at

the Gikomero Parish Compound to be credible. Prosecution Witness GEH was unable to recognise Gikomero Parish Compound from Prosecution Exhibit 2. The Defence used this to challenge the Witness’s credibility. However, the Chamber is satisfied with the Witness’s description of the Gikomero Parish Compound as it was on 12 April 1994. The Chamber notes the testimony of Witness GEH that on 12 April 1994, between l:00pm and 2:00pm, he saw a white pick-up with Interahamwe on board. He testified that Nkuranga and Bucundura went to talk to a man in the vehicle and that some refugees from Gikomero told him that this man was Kamuhanda. The Witness did not hear their conversation but testified that Kamuhanda was present when Bucundura was shot. He did not hear the Accused give an order to start the killings. The Chamber finds the Witness’s identification of the Accused at the Gikomero Parish Compound to be credible. The Chamber does not find it unusual that some Prosecution Witnesses could not recognise the buildings in the photographs shown to them. Since the events in question, the Compound has been renovated and new buildings added. The Chamber recalls the testimony of Witness PC who told the Chamber that "Kamuhanda" can mean "on the road" in Kinyarwanda. The Chamber does not accept this explanation given the context. - 127-

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465. 466.

467. Thc Prosecutor v Jean de Dieu Kamuhar:~da 22 ,larmarv 2004 Judgmcut and Sc~rtcncc The Defence submits that it is not reliable identification evidence that on 12 April 1994 some Prosecution Witnesses identified a man called Kamuhanda at Gikomero Parish through shouts from the crowd, when they did not personally know the Accused, and could not identify him in court. It submitted that "Kamuhanda" was a common name in Rwanda. Furthermore, only one of these Witnesses with no prior knowledge of the Accused gave the Chamber names of those in the crowd who drew attention to the man called "Kamuhanda" by shouting out his arrival at the scene. The Chamber recalls the testimony of those Prosecution Witnesses who fit in this category, and their testimony regarding the crowd’s general exclamation of "Here is Kamuhanda" or words to that effect. Due to the circumstances of the event, the Chamber finds nothing unusual in the fact that these Witnesses could not give the Chamber names of those shouting out the name "Kamuhanda", and therefore finds that this fact does not adversely affect their credibility. The Chamber recalls its finding that the evidence of Witnesses GES and GAA, who identified the Accused arriving at the Gikomero Parish on 12 April 1994 just before the massacre, is credible. By a majority, Judge Maqutu dissenting, the Chamber also found the evidence of

Witness GAF, identifying the Accused at the massacre, to be credible. With regard to the Witnesses who had no prior knowledge of the Accused, the Chamber finds that their testimonies provide further corroboration regarding the identification of the Accused by other Witnesses with prior knowledge of the Accused at Gikomero Parish Compound on 12 April 1994. The Chamber accepts the sighting of the Accused by Witnesses GEK, GES and GAA at Gikomero Parish Compound before the attack. The Majority of the Chamber, Judge Maqutu dissenting, also accepts the evidence of Witnesses GEB and GAF in this respect. Additionally, other Prosecution Witnesses, with no prior knowledge of the Accused, testified to hearing that Kamuhanda had arrived at the Gikomero Parish Compound. Given the above, the Chamber finds that the Accused arrived in a vehicle at Gikomero Parish Compound in the afternoon of 12 April 1994. The Chamber recalls that both Prosecution and Defence Witnesses testified that people took refuge at the Gikomero Parish Compound from around 9 April 1994. The Chamber recalls that Witness GAF testified that there were mainly Tutsi refugees at the Parish on 10 April 1994. Witness GAA testified that there were about six thousand refugees at the Parish on 12 April 1994. Witness GEE testified that there were refugees and cattle at the Parish. Witness GEC testified that there were refugees in each classroom, about fifty people in her room, and also cattle in the Compound. Witness GEG testified that there were approximately two thousand mainly Tutsi refugees at the Parish on 11 April 1994, with women and children in the classrooms and the others outside. Witness GEH testified that that there were about ten thousand Tutsi refugees at the 128 -

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468. 469. 470.

471. Uhe Prosecutor v. Jcan de Dicu Kamuhanda 22 Jarmarv 2004 Jud ~mcnt and Sentence Parish Compound on 12 April 1994. Witness GAG testified that there were up to fifteen thousand Tutsi refugees at the Gikomero Parish Compound by 11 April 1994. Witness GEP testified that in the early morning of 12 April, he was asked by a Hutu whether there were any Hum amongst the refugees because "they did not want Hutus killed together with the Tutsis in the event there was going to be an attack". Based on the totality of the evidence, the Chamber finds that a large number of mainly Tutsi people had taken refuge at the Gikomero Parish Compound on 12 April 1994. The Chamber recalls the testimony of the Defence Witnesses on the events that took place at the Gikomero Parish Compound on 12 April 1994. The Chamber further recalls that most of these Witnesses testified that the attack of 12 April 1994 on the Gikomero Parish Compound began between 1:00pm and 2:00pm. The Chamber recalls that Defence Witnesses testified that they did not see the Accused at the Gikomero Parish Compound during the massacre of 12 April 1994. Defence Witness GPT, however, testified that he did not go to the Gikomero Parish Compound at all. Defence Witness GPR did not indicate when exactly she arrived at the Gikomero Parish Compound but that when she did, she found dead bodies and the

attackers were looting. Defence Witness GPE testified that she did not see the attackers arrive because she had fled. Defence Witness GPF testified that he was having lunch when he heard the vehicles arrive. When the Pastor saw him through a window, trying to hide a bicycle, he was advised to flee and he did. Defence Witness GPK testified that he was apprehended by the attackers and he reached the Gikomero Parish Compound forty minutes after he first heard gunshots from the direction of Gikomero Parish. Defence Witness GPC testified that he was harvesting in his fields when he heard gunshots from the direction of the Parish, he went to investigate. He arrived fifteen minutes later to find that an attack was in progress at the Gikomero Compound. On the other hand Defence Witness GPB testified that he was apprehended and he was among the first group to arrive at the Gikomero Parish Compound on 12 April 1994 and the first thing he saw was an attack in progress. Witness GPB testified that he did not see Pastor Nkuranga or the Accused from the time when he arrived at the Gikomero Parish Compound to the time when he left to go to his home at the end of the attack. The Chamber notes that the Defence Witnesses may have arrived on the scene of the events after the man identified as Kamuhanda had already left. In such a case, even if the Chamber were to believe these Witnesses, it would not demonstrate that the Accused was not there. The Chamber recalls the testimony of Witness GPB. He testified that he was in the first group of attackers to arrive at Gikomero Parish Compound on 12 April 1994, however he did not see Pastor Nkuranga. The Chamber - 129-

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472. 473.

474. The Prosecutor v Jean dc Dicu Kamuharlda 22 January 2004 Judgment and Sc~tcncc recalls the version of events given by Defence Witnesses GPE and GPF, who testified that Pastor Nkuranga was present when the vehicles arrived at the Compound. The Chamber finds that even if Witness GPB were to be believed, he may have missed seeing both Pastor Nkuranga as well as the man identified as Kamuhanda at Gikomero Parish Compound on 12 April 1994. The Chamber notes the evidence of Defence Witness GPT that following the inquiries he made there was no mention of a leader of the attack of 12 April 1994 at the Gikomero Parish Compound. The Chamber notes that while indeed GPT may have made inquiries, he testified that he did not question Prosecution Witness GEK. The Chamber thus finds that even if GPT did make such inquiries, it does not rule out the possibility that a man identified as Kamuhanda had been at the Gikomero Parish Compound for a brief period on 12 April 1994, bringing with him attackers who attacked the refugees sheltering there. The Chamber notes that Defence Witness GPK testified that he did not see Kamuhanda in Gikomero between 6 April 1994 and the day of the attack on 12 April 1994. In fact, he testified that he did not see Kamuhanda for a long time prior to 6 April 1994. He therefore asserts that Kamuhanda had not been in Gikomero at any time prior to 6 April 1994 up

until 12 April 1994. The Chamber finds Witness GPK to be entirely lacking in credibility on the material facts. The Chamber does not find it credible that GPK was unable to flee during the forty minutes from the time he was apprehended to the time he arrived at the Gikomero Parish Compound. The Chamber is not satisfied that GPK could observe the attack, without participating, but could not flee at any time during the attack, a period of approximately one and a half hours. Neither was he able to help the three young refugee children who he was asked to help after the attack, nor was he able to recognise most of the attackers. The Chamber is not satisfied that the Witness saw Karekezi, a cousin of Kamuhanda, arrive on the scene of the massacre after the attack. According to the Witness, Karekezi had come to find out what had happened. The Chamber found his demeanour in court to be evasive and finds that his aim in testifying was to protect the Accused. This was particularly evident by his insistence that as he did not see Kamuhanda in Gikomero at the relevant time, he could not have been there. Witness GPK did not give truthful testimony about the events of 12 April 1994, and the Chamber rejects his evidence. Defence Witness GPC asserted that because he had not seen Kamuhanda in Gikomero between 6 April 1994 and 12 April 1994, Kamuhanda was not there. The Chamber finds his testimony to be unsubstantiated. The Witness holds the Accused in high esteem, and the objective of his testimony was to protect him. - 130-

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475.

476. The Prosecutor v. Jeal~ de Dicu Kamuhanda 22 January 2004 The Chamber considered the statement of Defence Witness GER, Pastor Nkuranga, admitted under Rule 92bis of the Rules. In it he made no mention of the Accused in relation to the events of Gikomero Parish Compound on 12 April 1994. Having considered the evidence of all the other Witnesses who testified in relation to this event, the Chamber does not accept Pastor Nkuranga’s evidence. Moreover, the Chamber finds the observations of Pastor Nkuranga to be unreliable, as he was under investigation for the crimes with which the Accused is charged. Having considered the evidence of all the Defence Witnesses, the Chamber finds that even if believed, it would not provide a sufficient basis to rule out the possibility that the Accused was present at the Gikomero Parish Compound on 12 April 1994. Taking into account the Prosecution evidence and considering the evidence as a whole, the Chamber finds that it has been established beyond a reasonable doubt that the Accused was present at the Gikomero Parish Compound on 12 April 1994. The Attack at the Gikomero Parish Compound on 12 April 1994 477.

478. The Chamber will hereinafter discuss the Witnesses’ accounts of the sequence of events leading to the attack and the attack itself. The Chamber recalls that Prosecution Witnesses GES, GAA and (for the majority, Judge Maqutu dissenting) GAF, knew and identified the Accused upon his arrival at the Gikomero Parish Compound. Witnesses GAF and GES testified that the Accused, accompanied by Interahamwe, got out of the vehicle to speak with the Pastor of the Parish, Pastor Nkuranga. Witness GAF testified that Bucundura, a Tutsi, was shot dead by the people who came with the Accused when the vehicles were still moving. Witness GAF testified that Kamuhanda stepped down from the vehicle, raised his hands and spoke to those who came with him, particularly the Interahamwe. Witness GAF added that the Accused said "mukore", which means "work", and the killings started after the Accused left the Compound, which was only shortly after his arrival. The Witness testified that the attackers- including communal policemen and reservists- had rifles, grenades, machetes, Rwandan clubs and spears. The Witness fled, hid in a sorghum field. He testified that the number of people who were killed at the Parish on that day were about one thousand. The Chamber by a majority, Judge Maqutu dissenting, relies on the testimony of Witness GAF in its findings. - 131 -

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479. 480. 481. 482. 483.

484. Thc Prosecutor v. Jean de Dieu Kamuhanda 22 January 2004 The Chamber recalls that Witness GES testified that approximately ten minutes after the arrival of the Accused, armed men wearing hats covered with grass and branches began to kill the refugees. The killing started when Bucundura was shot in the presence of the Accused. The Chamber observes that Witness GAA testified that when the Accused alighted from the vehicle he raised his hands up and the shooting began. Witness GAA further stated that, in the Accused’s presence, Hums shouted "get to work Kamuhanda is here now". The Witness testified that Pastor Nkuranga and Bucundura came out of the Pastor’s house at that moment and one of the soldiers shot and killed Bucundura, and three other persons. At that stage, the Accused went back to his vehicle and left while the attackers continued shooting. The Defence attacked the testimony of Witness GAA on the basis that the Witness did not recognise the photographs of Gikomero Parish Compound and that the Witness testified that he was not very familiar with this Church. The Chamber accepts the explanation of Witness GAA on his lack of recognition of the photographs. The Chamber notes that the testimonies of Witnesses GES and GAA do not fully corroborate one another, and there is a slight discrepancy in relation to the moment when a Tutsi called Bucundura was killed by

armed persons who accompanied the Accused. However the Chamber finds that this does not affect the substance of their testimonies. In this respect, the Majority of the Chamber also relies on the testimony of Witness GAF. The Chamber recalls that it has, in the previous sub-section entitled "The presence of Kamuhanda on 12 April 1994 at the Gikomero Parish Compound", analysed the testimonies of other Prosecution Witnesses with respect to the events leading up to the attack. The Chamber will hereafter only recall certain aspects of their testimonies which are relevant to the findings of the Chamber on the Accused’s role in the sequence of events. The Chamber notes that Prosecution Witness GEE testified that after one policeman shot at Bucundura, the refugees fled to the classrooms where they were shot at, flushed out and ordered to lie down. Regarding his reference to a second attack which, according to the Witness occurred during the night between 12 and 13 April 1994, the Chamber does not rule out that this may have happened. Prosecution Witness GEA testified that after the conversation between Kamuhanda and Pastor Nkuranga, an old man was shot. The Witness added that the people from the pick-up truck then rushed towards the refugees and started cutting them up, shooting at them and maltreating them. The Witness testified that when the attackers started shooting, Kamuhanda took his vehicle and left. Witness GEA testified that he could not say how many people had died at that location, because "that day there were very many." - 132-

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485. 486. 487. 488. 489.

490. Tbc Prosecutor v, ,Jean dc Dicu Kamuhanda 22 January 2004 Judgment arid Scntcncc The Chamber recalls that Witness GEC testified that she saw the Accused with Pastor Nkuranga in front of the classroom and that the Accused raised his hands and said "start working". The Witness claims to have been five metres away at this moment. The Chamber notes that Prosecution Witness GEC testified that she did not know if the Accused was still there when the attack started. According to the Witness, the massacre started at about l:00pm or 2:00pm and continued until 5:00pm when the attackers withdrew, and the locals continued to loot. The Witness estimated that out of the three thousand refugees who were there, two thousand five hundred were killed. The Chamber recalls that Prosecution Witness GEG testified that the attack started when someone from the white truck shot Bucundura and his wife. Immediately after this, Kamuhanda left. The Witness testified that Kamuhanda was at that place for a short time, approximately two to ten minutes. The Chamber recalls that Prosecution Witness GAG testified that the Pastor went to the side to speak with Kamuhanda as the Interahamwe surrounded the refugees. The Witness testified that when Bucundura was shot, Kamuhanda did not stop the shooting, and furthermore that Bucundura was shot by a person who had come down from his vehicle. The

Witness testified that the shooting continued, and she ran towards the classrooms. When the attackers found her, they started slashing her breast and her head until she became unconscious and she woke up at 5:00pm outside the classroom, on top of dead bodies. The Chamber recalls that Prosecution Witness GEV testified that after the conversation between Kamuhanda and the Pastor, the Interahamwe who had arrived on the truck began killing Tutsis, beginning with Bucundura. The Witness did not know whether Kamuhanda was still present when Bucundura was killed. The Majority of the Chamber observes that Prosecution Witness GEP testified that after Kamuhanda finished speaking to a man, one of the passengers of the vehicle shot at Bucundura. She added that from the classroom, she saw Kamuhanda turn around and she heard him tell the others "Start Working". She added that the attack took a long time because there were many victims and that towards the end of the day, the assailants withdrew to rest. The Chamber recalls that Witness GEH testified that Nkuranga and Bucundura went to talk to a man in the vehicle. He did not hear their conversation. He said that Kamuhanda was present when they shot Bucundura. - 133-

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491. 492. 493. 494.

495. The Prosecutor v, Jean dc Dic~J Kam[lhanda 22 Jarmarv 2004 After careful consideration of all the evidence presented, and mindful of the fact that the Witnesses who had taken refuge at the Gikomero Parish Compound were fearful for their lives and were hiding when the attack started on 12 April 1994, the Chamber finds credible the evidence that the Accused spoke with Pastor Nkuranga, witnessed the killing of a Tutsi man named Bucundura by an armed person who arrived together with him, and left shortly thereafter. The Chamber also finds credible that by his gesture and (for the Majority of the Chamber, Judge Maqutu dissenting) words, the Accused intimated to the attackers to start the killings shortly before leaving the scene. As to the identity of the attackers, the Chamber has heard evidence that the Accused came with Hums, Interahamwe wearing all kinds of attire carrying clubs, grenades, guns and machetes, a police officer from Gikomero, reservists from Gikomero, a brigadier, Hum policemen from Rubongo, a conseiller of Rusoso secteur, and soldiers. The Chamber finds that the differences between the accounts are not significant enough to affect the credibility of the Witnesses. The Chamber is therefore satisfied that those who attacked the Tutsi refugees at Gikomero Parish Compound were armed Hums, Interahamwe, soldiers, communal policemen and reservists who were led by

the Accused to start the killings. As to the attack itself, the Chamber notes the evidence that after the killing of Bucundura, the people who came with the Accused attacked the refugees using rifles, grenades and traditional weapons. The Chamber further notes that the attackers blocked the refugees’ escape from the classrooms and the courtyard, ordered the refugees to lie down, undressed the refugees and finished off the work by cutting up the refugees using cudgels and guns. The Chamber is satisfied with the evidence of Witnesses to the effect that refugee women, children and men, of Tutsi origin, were killed, injured and forced to flee at Gikomero Parish Compound on 12 April 1994. The Chamber is further satisfied that this was carried out by attackers brought by and led by the Accused, though the Accused left as the attack had just started. The Chamber has considered the evidence of Witness GET and finds it credible. However, the Chamber considers that the nature of his evidence based exclusively on hearsay is not relevant because he did not Witness any of the events at stake in the Indictment. With respect to the allegations of rape, the Chamber has noted that the Defence stated that Prosecution Witness GAG testified that during the attack of 12 April 1994 she had seen women taken away by assailants to be raped. The Chamber observes that GAG did not Witness the rapes, but learned from her daughter and two victims about them after the war. - 134-

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496.

497. Thc .Prosecutc)r v. ,leals de D.ieu Kamuhanda 22 January 20()4 ,ludgme~lt and Scnte.r~cc The Chamber further notes that the Defence highlighted the testimony of Prosecution Witness GEP who asserted that during the massacres some gifts were selected and led away in a vehicle while the massacres continued. The Witness specified that the Accused left after the departure of the gifts. The Witness added that no more than 20 gifts were picked. She indicated that she did not know any of these girls, but later learnt at the camp where the Inkotanyi took those who escaped the massacres, that all the gifts except one were raped and killed by the attackers. The Chamber observes that Witness GEP did not Witness the rapes but learnt about them after the events. The Chamber recalls that on 20 August 2002, it denied a Defence Motion to enter a judgement of acquittal with respect to Count 6 of the Indictment, Crimes Against Humanity (Rape), finding that at that stage of the proceeding, the evidence adduced was not prima facie insufficient for a conviction. 979 Having analysed all the evidence presented, the Chamber finds that the testimonies of both Witnesses GAG and GEP are credible but that the hearsay nature of the evidence adduced by these Witnesses is not sufficient to sustain a rape charge against the Accused. The Chamber finds therefore that there is insufficient evidence for a conviction of Rape as a Crime against humanity. o Conclusions 498. 499. 500.

501. The Chamber recalls the Accused’s admission that between 1 January 1994 and 17 July 1994 there were throughout Rwanda widespread or systematic attack against a population with the specific objective of extermination of the Tutsi. 98° Both Prosecution and Defence Witnesses testified to the effect that Tutsi civilians from Kigali-Rural prrfecture had started taking refuge at the Gikomero Parish Compound from around 9 April 1994 onwards, fleeing an attack on Tutsis. Therefore, the Chamber accepts that by 12 April 1994 a large number of men, women and children mainly of Tutsi origin, along with their cattle, had taken refuge at the Parish. The Chamber has found that the Accused was seen on the road in Gikomero, in a white vehicle accompanied by armed Interahamwe, prior to the killing of Tutsi refugees at Gikomero Parish Compound on 12 April 1994. The Chamber finds that the Accused arrived at the Gikomero Parish Compound in the early afternoon of 12 April 1994 in a white pick-up 979 Kamuhanda, Decision 20 August 2002, Partial Acquittal (TC), para. 25. 980 Defence Response to the Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 89. - 135-

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502. 503. 504. 505. 506. 507. vehicle. The Chamber further finds that he was in the passenger section of the front cabin and that he was accompanied by armed people who were in the back. Based on the totality of the evidence, the Chamber accepts that the Accused stepped out of the vehicle and had a conversation with Pastor Nkuranga, a Hutu in charge of the Parish and who resided there. The Majority of the Chamber, Judge Maqutu dissenting, accepts that after that conversation, the Accused told the armed persons whom he had brought to the Parish to "work" which, in this context, was understood by some Witnesses as an order that the killings of the Tutsi refugees should start. The Majority of the Chamber, Judge Maqutu dissenting, accepts the Witnesses understanding that the Accused gave an order to start the killings. The Chamber finds that a Tutsi man called Augustin Bucundura, who accompanied Pastor Nkuranga in the Gikomero Parish Compound, was shot shortly after the arrival of the Accused and while the Accused was still present in the Compound. The Chamber further finds that Bucundura was shot by someone who came with the Accused. The Chamber finds that the Accused was in a position of authority over the armed attackers because he led them to the Gikomero Parish Compound and because he ordered the attack. The Chamber does not, however, find that the Accused was in a

formal superior-subordinate relationship with the attackers of the Gikomero Parish Compound nor that he maintained an effective control over them on the day of the attack. The Chamber finds that the Accused arrived on 12 April 1994 at the Gikomero Parish Compound with a group of lnterahamwe, soldiers, policemen and local population armed with firearms, grenades and other weapons and that he led them in the Gikomero Parish Compound, Kigali- Rural prrfecture, to initiate the attack. The Chamber finds on the basis of the totality of the evidence that the Accused initiated the attack and the Majority further finds that the Accused said the word "work" to give an order to the attackers to start the killings. The Chamber finds that at the Gikomero Parish Compound on 12 April 1994, the attackers used traditional weapons, guns and grenades to kill and injure a large number of Tutsi refugees. The killings were committed by armed Interahamwe, soldiers, policemen and the local population, and were committed in the Compound, Church and classrooms. The Chamber finds that the Accused left the Compound in a vehicle when the killings began. The Chamber does not find the hearsay evidence adduced by the Prosecution to demonstrate alleged rapes committed during the attack at - 136-

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Thc Prosecutor v. Jean de Dicu Kamuhanda 22 January 2()04 Judgment arid Sc,~toncc the Gikomero Parish Compound on 12 April 1994 sufficient to implicate the Accused, as alleged in paragraph 6.46 of the Indictment.

3. Massacre at Gishaka Parish a. Evidence 508.In this section the Chamber considers the following evidence in addition to the relevant evidence presented in Part II, Section J on Alibi and K on Impossibility and in the previous sections of this Part III. 509.Prosecution Witness GKL, a Tutsi man, testified to having seen the Accused during the day on 10 April 1994 at a roadblock at Kayanga in Gishaka secteur, with armed Interahamwe and police, 981 as well as on the following day, 11 April 1994, between 8:00 and 10:00am, outside the Gishaka Parish and at the football field, where Tutsis were assaulted and killed. 982 510.Prosecution Witness GKL testified about the events which preceded his flight to the Gishaka Parish. According to the Witness, on 7 April 1994, soldiers came to his cellule, searched his home, and physically assaulted him.983 Realizing that there was no security in the area, the Witness and others left their cellule and went towards Jurwe.984 There were approximately three hundred Tutsi from different areas travelling with them "but some of them died along the way" in attacks from Hum Interahamwe. 985 After reaching Jurwe secteur on 9 April 1994, the group proceeded on to Kayanga, where they arrived on 10 April 1994. 511.Prosecution Witness GKL testified that on this same day, 10 April 1994, he saw the Accused from a distance of twenty metres "right in

front of him’’986, together with "one Pascal, Brigadier Nyarwiya, [and] another Interahamwe, ’’987 at a roadblock in Kayanga. The Witness acknowledged that he did not have an unobstructed view of the Accused, as there were several people in the way.988 The Witness, who was moving through a queue of refugees toward the roadblock, was able to observe the Accused’s activities for approximately fifteen minutes. 989 The Witness testified that 981T. 6 May 2002, p. 18. 982T. 6 May 2002, p. 48 (GKL). 983T. 6 May 2002, p. 7 (GKL). 984T. 6 May 2002, pp. 10-11 (GKL). 985T. 6 May 2002, p. 12 (GKL). 986T. 6 May 2002, pp. 23, 31 (GKL). 987T. 6 May 2002, p. 24 (GKL). 988T. 6 May 2002, p. 31 (GKL). 989T. 6 May 2002, pp. 28-29, 64 (GKL). - 137-

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512.

513. Thc Prosccutor v. Jean do Dicu Kamuhanda o)- 22 ]armarv ~.(04 JudgmcNt and Scntcr~ce because "everything took place during the day time and not at night time", it was clear to him the Accused was "in charge of that roadblock. ’’99° He further stated, "The situation as I was able to observe it was such that all of those who were with Kamuhanda, everything they did, they did this after consulting with Kamuhanda and Kamuhanda was there making hand gestures and he was either pointing in the direction in which we should be led or what should be done. It was obvious that he was their leader even though he was not personally carrying any weapons. ’’991 The Witness stated that the Accused was wearing Interahamwe clothing, consisting of a shirt and trousers that were blue and white and made of lbitenge cloth. 992 The Witness estimated that there were approximately twenty Interahamwe and police officers manning the roadblock. The police had modern weapons, and the Interahamwe were armed with machetes, spears, clubs, and hoes. 993 Prosecution Witness GKL testified that the Interahamwe pulled refugees, shouting and screaming, from the group, which was lined up in single file at the roadblock. The Accused did nothing to prevent the Interahamwe’s violent assaults. Although the Witness was unable to estimate the number of people dragged from the queue at the roadblock, he did

provide the names of two refugees whom he knew, Riziga and Muhire. 994 The Witness saw no dead bodies at the Kayanga roadblock, but did see bodies lying on the ground approximately 20 metres below the road. 995 The situation at the roadblock was chaotic; the Accused told the Interahamwe to move the refugees towards Gishaka Parish where their safety would be assured and said to the refugees, "Go to Gishaka; there you will find protection". 996 Prosecution Witness GKL testified that the group of refugees then left the Kayanga roadblock in the direction of Gishaka Parish. En route they travelled through another smaller roadblock at Rwegeka in Gishaka secteur. This roadblock was manned by Interahamwe and people displaced by the war, referred to as Abakiga. The Witness and his group arrived at Gishaka Parish on the afternoon of the following day. The testimony was unclear as to whether this was 10 or 11 April 1994. 997 According to the Witness, "It took us only one day to go from Kayanga to Gishaka. ’’998 When the Witness and his group arrived at the Gishaka Catholic Church, the Interahamwe and the Abakiga who were at the site pushed the refugees into the Church and stole their cattle and other property. 999 The Witness 990 T. 991 T. 992 T. 993 T. 994 T. 995 T. 996 T. 997 T. 998 T. 999 T. 6 May 2002, pp. 24-25 (GKL). 6 May 2002, p. 30 (GKL). 6 May 2002, p. 64 (GKL). 6 May 2002, p. 18 (GKL). 6 May 2002, pp. 20 and 21 (GKL). 6 May 2002, p. 31 (GKL). 6 May 2002, p. 19 (GKL). 6 May 2002, p. 38 (GKL). 6 May 2002, p. 38 (GKL). 6 May 2002, pp. 41 and 67 (GKL). - 138-

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The P.rosccutor v ,Jean dc D.icu Kamuhanda 22 ,I anuarv 2004 ,ludgmcn~ and Sct~tcncc said that he was not able to estimate the number of refugees at the site, but that the Church was full of Tutsis when he arrived. 1°°° Once they were inside the Church, the refugees were prevented from exiting by the Interahamwe and Abakiga, who closed the front and back doors, l°°j In the evening, from inside the Church, he heard the Interahamwe rejoicing about their work accomplished that day. The Witness heard screams throughout the night of people dying, although he did not see how they were killed. He testified that "people were taken away from the Church through a back door" by Interahamwe and "never came back. ’’1°°2 The Witness did not see the Parish Priest at the Church. 1°°3 The Witness stated that he did not personally observe any killing and that no one was killed inside the Church or in the courtyard but farther away where there was grass for the cattle. 1°°4 514. Prosecution Witness GKL testified that the next morning [11 or 12 April 1994], Bizimana, a guard at the convent, came to the Gishaka Church and told the lnterahamwe, "[L]eave these people to go back to their ,,1005 commune. The refugees were then ordered to come out of the Church. The Witness stated, "We sat in a small wood of cypress trees near the convent and in this location we were separated with the men on one

side and women and children on the other.’’1°°6 The Witness then saw Kamuhanda, who was with members of the Interahamwe and several policemen. ’’1°°7 While the Accused was "going around this place", with "his hands in his pocket", where the refugees were gathered, the Interahamwe took the refugees’ money and belongings, especially the "clothing that was still new". 1°°8 According to the Witness, the Accused was with Nzaramba, who was the ambulance driver from the health centre, Nyarwaya, Hamachiga and some policemen. 1°°9 On cross-examination, the Witness testified that the Accused had come to Gishaka Parish in Nzaramba’ s white ambulance.~°l° 515. Prosecution Witness GKL testified that the refugees were then taken to the canton tribunal, where the women were told to return to their homes and the men, numbering between 80 and 90,1°11 were led to the football field, where the Abakiga had already constructed "bullet proof’ structures. 1°12 The Witness stated, "Once we got to the football field ... 1002 T. 6 May 1003 T. 6 May 1004 T. 6 May 1005 T. 6 May 1006 T. 6 May 1007 T. 6 May 1008 T. 6 May 1009 T. 6 May 1010 T. 6 May 1000 T. 6 May 2002, p. 40 (GKL). 1001 T. 6 May 2002, pp. 68 and 69 (GKL). 2002 pp. 41and 42 (GKL). 2002 p. 68 (GKL). 2002 pp. 70 and 72 (GKL). 2002, p. 44 (GKL). 2002, p. 45 (GKL). 2002 p. 44 (GKL). 2002 pp. 44 and 49 (GKL). 2002 p. 45 (GKL). 2002, pp. 59,72 and 73 (GKL). 1011 T. 6 May 2002, p. 47 (GKL). 1012 T. 6 May 2002, pp. 45 and 46 (GKL). - 139-

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516.

517. Thc Pr<>sccutor v. Jean de Dicu Karnuhanda 9"~ Janualv 2004 they started pushing us, beating us up." The Witness, who was able to escape from the crowd of refugees, saw the Accused at the site, along with policemen who were leading the other men away. The Witness said that he did not see any of these men again, and that after the war bodies were exhumed from the football field. 1°13 The Witness stated that Kamuhanda was present that morning at the Gishaka Parish site from 8:00am until 10:00am, from the time that the refugees were released from the Church until the men were led to the football field. 1014 In relation to his identification of the Accused, the Witness testified that his former classmates at Cerai school, in Gishaka commune, had pointed out the Accused to him prior to 1993 and that he had seen the Accused on four occasions near the Gishaka communal office before the war.1°15 In the words of the Witness, "I saw him on four occasions, that is whilst I was attending school and it was at the time that we used to walk around with other students and we passed by and saw him with other people. ’’1°16 In regard to his identification of the Accused at the roadblock at Kayanga, the Witness testified that two refugees by the names of Muyanga and Kanango, both now dead, were with him at the roadblock, and that they first spotted the Accused. 1°17 The Witness added, "When

I saw him, myself, I realized that it was a man that usually I saw at the communal office at Gishaka. ’’1°18 In cross-examination the Witness attested to hearing from "fellow pupils, ’’m19 as well as from Muyanga and Kananza at the roadblock, that the Accused was Minister for Education in the "government of the Abatabazi". 1°2° In regard to the identification of the Accused at the Gishaka Parish Church, the Witness stated that this man was the same person whom he had just seen at the Kayanga roadblock and whom he recognised from his student days. 1°21 The Witness was unable to recognise the Accused in court, m22 Prosecution Witness GKJ, a Tutsi woman, testified that, following the attacks directed against Tutsis which began in her area on 7 April 1994,1°23 she fled with others to Jurwe.1024 This journey took them "a few days", m2s The refugees, who numbered approximately three thousand, were attacked at every location where they spent the night before arriving in Jurwe. 1026 1013 T. 6 May 2002, p. 46 (GKL). 1014 T. 6 May 2002, p. 48 (GKL). 1015 T. 6 May 2002, pp. 32, 56 and 63 (GKL). 1016 T. 6 May 2002, p. 59 (GKL). 1017 T. 6 May 2002, p. 25 (GKL). 1018 T. 6 May 2002, pp. 25 and 26 (GK_L). 1019 T. 6 May 2002, p. 62 (GKL). 1020 T. 6 May 2002, pp. 25, 62an 63 (GKL). 1021 T. 6 May 2002, p. 48 (GKL). 1022 T. 6 May 2002, p. 53 (GKL). 1023 T. 7 May 2002, p. 8 (GKJ). 1024 T. 7 May 2002, p. 10 (GKJ). 1025 T. 7 May 2002, p. 13 (GKJ). 1026 T. 7 May 2002, p. 10 (GKJ). - 140-

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518.

519. The P.rosccuto.r v. ,!can de Dicu Kamuhanda 22 JarlualTy 20()4 Judgment and Sc~]t:e.~scc They stayed at Jurwe for four to six nights, where they were also subject to attacks, and then they travelled to Gasagara and on to Kayanga. 1°27 The Witness testified that on the road to Kayanga the refugees saw a blue Daihatsu pick-up belonging to the Accused. 1°28 The Witness was able to identify the driver and two passengers, who told the refugees to proceed to Gishaka, where their security would be ensured. The Witness stated, "I able to recognize the police brigadier. His name was Nyarwiya, [... ]. I was also able to recognize the driver of the vehicle. His name is Nzaramba [...], and between the people was another person and this person was Kamuhanda. ’’I°29 Approximately twenty people amongst the three thousand refugees 1°3° mentioned the Accused’s name when the vehicle passed on the road. 1°31 The Witness acknowledged that she did not know who were the owners of the either of the two vehicles. She also stated that she had never before personally seen the Accused. 1°32 The persons inside the vehicle told the refugees to go to Gishaka. A second vehicle, which was white, followed the blue pick-up. According to the Witness, "[T]he occupants of that vehicle repeated what the occupants of the blue vehicle had said, to go to Gishaka. ’’1° 33 Prosecution Witness GKJ testified that the

refugees then proceeded to Gishaka. En route they travelled through Kayanga, where there was a principal roadblock held by the lnterahamwe. 1°34 The refugees, many of whom were accompanied by children or were leading cattle, walked in groups. Some used the road, and others followed paths next to the road. According to the Witness, several of the refugees were clubbed to death by the lnterahamwe at the roadblock at Kayanga. 103s In response to a question on direct examination about her survival, the Witness attested to taking another path and returning to the main road after the roadblock. 1°36 Prosecution Witness GKJ testified that, on instructions from the individuals in the two vehicles, the refugees travelled to Gishaka, where they arrived in the afternoon. 1°37 The Witness testified, "Once we got there, we were told to get into the Church. ’’1°38 There were already other refugees both inside and outside of the Church. 1°39 The refugees were initially separated. Women with children entered the Church first, and men 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 T.7May2002, pp. 14 and 15 (GKJ). T.7May 2002, p. 16 (GKJ). T.7May 2002, p. 17 (GKJ). T.7May 2002, p. 72 (GKJ). T.7May2002, p. 29 (GKJ). T.7March2002, p. 69 (GKJ). T.7May2002, pp. 33 and 71 (GKJ). T.7May 2002, p. 26 (GKJ). T.7May2002, pp. 20 and 26 (GKJ). W.7May2002, p. 27 (GEl). T.7May2002, p. 34 (GEl). T.7May2002, p. 33 (GEl). T.7May 2002, p. 34 (GEl). - 141 -

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520. The Prosccu~or v. ,Jean dc Dicu Kamuhanda 22 Jarmarv "~ " ¯ ~ ,Z)04 ,ludgmcnt and Sc:~to:~cc followed. 1°4° According to the Witness, "We closed the [Church] doors, because we knew that there were lnterahamwe arriving. In just a few moments after that, we heard the engines of the vehicles arriving, and then people ran to the windows to see what was happening outside. And I heard people saying, this is our dawn, our fate is sealed, because Kamuhanda has ,arrived. ’’1°41 She could see the Accused through the window of the Church, but there was a lot of hustle and bustle. The Accused was not alone; "he was in front of the others. ’’1°43 The Witness also said, "At that time they were on foot, because they had parked the vehicle in the courtyard. ’’1°44 The Witness recognized the Accused as the same man whom she had seen in the vehicle earlier that day.1°45 Moreover Nyarwaya was still with him.1046 Many other refugees in the Church recognized the Accused, and called out, "Kamuhanda, there comes Kamuhanda. ’’1°47 The assailants carried traditional weapons, except for Nyarwaya who had a gun. It was now nightfall, and the assailants tried to break down the doors of the Church. The Parish Priest spent the night trying to prevent the assailants from committing atrocities, 1°48 and instructing the refugees to pray. According to the Witness, the Priest said, "Rwandans are bad. You are

going to be exterminated because Kamuhanda has come.’’1°49 There was no killing inside the Church that night; "only the children died asphyxiated. ’’1°5° The Witness also stated, in cross-examination, that the assailants had been told not to kill the refugees in the Church. Prosecution Witness GKJ testified that the killings intensified in the morning. ’’l°sl The refugees opened the Church doors, on which the Interahamwe were pounding, upon the arrival of the Priest, who told them to leave the Church. 1°s2 "We heard an engine [sic] arriving, and at that point, the Parish Priest told us, ’You are going to die. I would like you to make your last prayer.’" The refugees were then separated into two groups, the men on one side and the women on the other, 1°s3 and were attacked. The Witness saw the Accused in the Church courtyard and heard him say to the Interahamwe "to kill people and to send the rest of the people home. ’’1°54 The Witness testified to seeing bodies lying everywhere 1040 T. 1041T. 1042 T. 1043 T. 1044 T. 1045 T. 1046 T. 1047 T. 1048 T. 1049 T. 1050 T. 1051T. 1052 T. 1053 T. 1054 T. 7May2002, p. 81 (GKJ). 7May2002, p. 36 (GKJ). 7May2002, pp, 36 and 37(GKJ). 7May2002, p. 37 (GKJ). 7May 2002, p. 39 (GKJ). 7May2002, p. 41 (GKJ). 7May 2002, p. 41 (GKJ). 7May 2002, p. 45 (GKJ). 7May 2002, pp. 47,49 and 75(GKJ). 7May2002, p. 49(GKJ). 7May2002, p. 48.(GKJ). 7May2002, p. 49(GKJ). 7May2002, pp. 77 and 78(GKJ). 7May2002, pp. 50 and 52 (GKJ). 7May2002, p. 52 (GKJ). - 142-

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521. 522. 523. around Gishaka Parish. 1°55 She stated that the refugee men were taken away to another location, where they were killed.l°56 Although the Witness fled from the Parish which was later attacked by assailants, thrown into a ditch, and left for dead. Prosecution Witness GKJ attested, in cross-examination, to first seeing the Accused when he and others drove by the group of refugees in a blue Daihatsu pick-up. Other refugees pointed out the Accused. 1°57 The Witness also stated that she was able to distinctly see the persons in the vehicle at that time. 1°58 In regard to her identification of the Accused subsequently at the Gishaka Parish Church, the Witness stated that she recognised him twice: first, on the day of her arrival, when she saw him through the window of the Church, as pointed out by an elderly man by the name of Chbakanga; 1°59 second, on the following moming between 7:00am and 9:00am outside the Church when her life was being threatened, and she was able to catch only a "swift glance of him. ’’1°6° Prosecution Witness GEL, a Tutsi man, testified to having seen the Accused on 10 April 1994 both in front of the Gishaka communal office, with other local officials, and at the Gishaka Parish Church, shortly before an attack on Tutsi refugees who were gathered there. 1°61 Prosecution Witness GEL testified about the events preceding his

flight to Gishaka Parish Church, following the death of President Habyarimana. On 7 April 1994, he, five members of his immediate family and more than twenty people from his uncle’s family fled from the hill where they lived in the Kigali-Rural Prefecture to escape attacks against Tutsis by the Interahamwe in this area. On direct examination, the Witness testified that the refugees fled to Jurwe before proceeding through Gikomero to Kayanga and then to Gishaka. On cross-examination, the Witness testified that his group of refugees also travelled through Rutinga. When asked why he had not mentioned Rutinga earlier, he responded that the Prosecutor had not asked him about all the stops which the refugees had made on their odyssey. 1°62 The Witness testified that in Jurwe they were attacked by Interahamwe from the local population. According to the Witness, Stanislas Mbonampeka led this attack. 1°63 During the attack, which lasted all day, the refugees confiscated three grenades and a gun from their 1055 T. 7 May 2002, pp. 53 and 54 (GKJ). 1056 T. 7 May 2002, p. 54 (GKJ). 1057 T. 7 May 2002, p. 69 (GKJ). 1058 T. 7 May 2002, p. 72 (GKJ). 1059 T. 7 May 2002, pp. 42-43, 81 and 83-87 (GKJ). 1060 T. 7 May 2002, p. 87 (GKJ). 1061 T. 13 February 2002, pp. 59,77-79, 81-82, 90-92 and 95-97 (GEL); T. 14 February 2002, pp. 9,25-28 and 33 (GEL). 1062 T. 14 February 2002, pp. 105 and 106 (GEL). 1063 T. 13 February 2002, p. 53 (GEL). - 143-

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524. 525.

526. Thc Prosecutor v. Jean de Dicu Kamuharlda 22 Jarmarv 2004 .tudetnen:t and Se~tcncc assailants. 1°64 These weapons, however, were later taken from them, without incident, when they arrived in Kayanga, where the road "was blocked,,. 1°65 Prosecution Witness GEL testified that, in Kayanga, the refugees met the following three local authorities: the bourgmestre of Gikomero commune, the accountant for the commune, and Nyarwaya, who was brigadier of the Gikomero communal police. The Witness testified that the Gikomero communal office was located at Gishaka1°66 and that these three individuals "assured us that they were going to take us [to] the communal office in Gishaka and that at the communal office our security would be guaranteed by the soldiers of UNAMIR." 1067 Prosecution Witness GEL testified that, as a result of the security assurances given by the bourgmestre of Gikomero and the other two local authorities, he and his group of refugees travelled from Kayanga that day, which he thought to be 10 April, to the Gikomero communal office in Gishaka. 1°68 There, while walking along the road leading to the Parish Church, the Witness recognized the Accused, who was standing in front of the communal office, conversing with local authorities, including the bourgmestre, the accountant and the brigadier, who had gone ahead of the refugees. The Witness provided a broad estimate of

the distance between himself and the Accused, as "between 50 metres, 20 metres, 10 metres", 1°69 and acknowledged, "I wasn’t able to look at him for long ,, 1070 because I was escaping. There were no UNAMIR soldiers at the communal office. The Witness testified that other refugees also recognized the Accused and said, "That one is Kamuhanda. He is an authority and he is going to intercede on our behalf. ’’1°71 The Witness stated that he did not know the Accused well, yet he thought that the Accused would lead the refugees to the UNAMIR soldiers, who would protect them. 1072 Prosecution Witness GEL testified that four soldiers of the presidential guard were also with Kamuhanda, the bourgmestre, and the other local authorities at the Gikomero communal office in Gishaka that day. In direct examination, the Witness said that he knew the members of the presidential guard; however, he had never before seen any of these soldiers. In cross-examination, the Accused acknowledged that he did know one of the soldiers, who was responsible for the security of 1064 T. 13 February 2002, p. 55 (GEL); T. 14 February 2002, p. 31 (GEL). 1065 T. 13 February 2002, pp. 55-56 and 106-107(GEL); T. 14 February 2002, p. 24 (GEL). 1066 T. 13 February 2002, p. 55 (GEL). 1067 T. 13 February 2002 pp. 55-56 (GEL); T. 14 February 2002, pp. 22-24 (GEL). 1068 T. 13 February 2002, p. 58 (GEL). 1069 T. 13 February 2002, p. 82 (GEL). 1070 T. 13 February 2002, p. 92 (GEL). 1071 T. 13 February 2002, pp. 59, 81-82, 92 and 127 (GEL). 1072 T. 13 February 2002, pp. 81 and 82 (GEL). - 144 -

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527. 528.

529. The PK)secutor v. Jean de Dicu Kamuhanda 22 .Iarmary 2004 Nsabimana. 1°73 The Witness estimated that a thousand refugees of Tutsi ethnicity, coming from Bicumpi, Kanombe, Rubungo Gikomero and other locations, were amassed at the commune office on that day. 1074 Prosecution Witness GEL testified that, after seeing Kamuhanda at the communal office in Gishaka, he and his group of refugees reached the Church on the afternoon of the same day, 10 April 1994.1°75 The Witness said that the roadblock on the main road between the commune office in Gishaka and the Parish Church had been lifted to allow refugees to pass through. 1076 When asked how many people were gathered at the Church, the Witness answered, "There were many, many people there, sir, and I would put them at more than a thousand. Our group was composed of about a thousand people too, but they were more than a thousand. I didn’t count. This is a simple estimate. ’’1°77 The Witness testified that the people in the Church were Tutsis and that they sought shelter at the Church because there was not enough space at the commune office in Gishaka. 1°78 The Witness did not see the Parish Priest Father Michel Donnet on 10 April 1994. According to the Witness, "[H]e had already left, but people told us that he was there in the morning." 1079 Prosecution Witness GEL testified that, once inside the Church, he looked through the

window and saw the Accused outside, driving around the Compound in a Hilux double cabin vehicle, which he thought to be red. m8° The Accused did not stay long, and the Witness did not hear him say anything.lOSl 1082 Shortly following the Accused’s visit to the Parish, the refugees amassed at the Church were attacked. According to the Witness, "Between 30 minutes and one hour elapsed between the arrival of Kamuhanda and the attack." 1083 Prosecution Witness GEL testified that immediately after the Accused’s departure and just before the attack on the refugees, Stanislas Mbonampeka, who had led the violent assault against refugees in Jurwe, arrived at the Church. "He simply said that [President] Sindikubwabo had died and that he was killed by Tutsi. He didn’t say anything else, and, then, 1073 T. 13 February 2002, pp. 79, 125 and 126 (GEL). 1074 T. 13 February 2002, p. 59 (GEL). 1075 T. 13 February 2002, p. 93 (GEL); T. 14 February 2002, p. 24 (GEL). 1076 T. 14February 2002, p. 16 (GEL). 1077 T. 13 February 2002, p. 94 (GEL). 1078 T. 13 February 2002, p. 94 (GEL). 1079 T. 14 February 2002, p. 18 (GEL). 1080 T. 13 February 2002, p. 96 (GEL); T. 14 February, pp. 25-29, 33 and 46 (GEL). In response question from the Bench, the Witness clarified that he saw the Accused driving through the compound in a vehicle. The Witness explained that there may have been some confusion in the translation of his testimony when he used the verb "marcher", (to walk) in referring to the Accused’s vehicle. 1081 T. 13 February 2002, p. 96 (GEL). 1082 T. 14 February 2002, p. 25 (GEL). 1083 T. 13 February 2002, p. 97 (GEL). - 145-

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The Prosccutor v. Jean dc Dicu Kamuhan~la 22 oJarluac,¢ 2004 he immediately left. ’’1°84 Following this announcement, the Witness saw lnterahamwe, soldiers, and police officers "coming from nowhere. ’’1°85 The Interahamwe had traditional weapons, whilst the police and the military carried grenades and guns. According to the Witness, civilians and peasants also charged the refugees with traditional weapons. The attackers hurled grenades through the windows of the Church, because the doors were closed. 1°86 Most of the refugees who attempted to escape from the Church were killed with machetes. 1°87 The Witness estimated that 200 people, approximately, survived the attack on the Gishaka Parish Church. 1°88 530.Prosecution Witness GEL recalled having seen the Accused prior to April 1994 on two separate occasions. He first saw the Accused some time before 1994 at the Ministry of Primary and Secondary Education in Kigali, where a friend pointed out the Accused, as a "senior official" in the ministry. 1°89 The Accused was walking down the corridor, and the Witness, from a distance of "five to ten metres", was not able to observe him at length. 1°9° Approximately a year later, the Witness again observed the Accused, this time at a public ceremony for a development project held at the bureau communal office in Rubungo. The Witness recalled that the ceremony was held on a Sunday and

that he arrived around 1 lam just as the Accused was introduced to the audience. The Witness also testified to having been in the midst of a crowd, to having seen from a distance of ten to twenty metres, approximately,, and to having left the ceremony "five minutes after the introduction of Kamuhanda". 1°91 The Witness identified the Accused in court. 1092 531.Prosecution Witness GKI testified that on 11 April 1994 the bourgmestre of Gikomero commune, Telesphore Rutaganira, a Hutu, visited her hill and met the Hutus residents. Shortly thereafter, the Hutus began to establish roadblocks, and the Tutsis began to flee from the hill. 1°93 The Hums had been told to go to the Gishaka bureau communal, and the Tutsis to the Gishaka Parish Church. 1094 532,Prosecution Witness GKI testified that on 12 April 1994 at approximately 4:00am or 5:00am she and members of the family left their home in 1084 T. 13 February 2002, p. 96 (GEL). 1085 T. 13 February 2002, p. 98 (GEL). 1086 The French transcript, which the Chamber takes as authoritative on this issue, states: <~ Les assaillants ont 6galement lanc6 des grenades A l’intrrieur de l’rglise, h travers les fenetres puisque les portes 6taient fermres ~. T. 13 frvrier 2002, p. 110 (GEL). 1087 T. 13 February 2002, pp. 95 and 98 (GEL). 1088 T. 13 February 2002, p. 99 (GEL). 1089 T. 13 February 2002, p. 61 (GEL). 1090 T. 13 February 2002, pp. 61-63, 108 and 111-115 (GEL). 1091 T. 13 February 2002, pp. 64-69 and 115-124 (GEL). 1092 T. 13 February 2002, p. 103 (GEL). 1093 T. 8 May 2002, p. 32 (GKI) (ICS). 1094 T. 10 May 2002, p. 37 (GKI) (ICS). - 146-

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"Fhc P.rosccu[or v. Jean dc Dicu Kamuhanda ._,~°~ January 2004 ,!udgmcnt arid ~c1~cncc Gikomero commune to seek shelter at the Gishaka Parish Church, where they arrived early in the morning with a group of between fifty and eighty Tutsis. The Witness recalled the date because her birthday was the next day. They were the first refugees to arrive at the site. 1°95 Later in the day, other refugees, fleeing from attacks at Nyakonga, 1°96 joined them and, in the aftemoon, between 800 and 1000 refugees had gathered at the Church. Many of them carried papers to guarantee their security at Gishaka Parish, which they gave to the Priest.1°97Many of the refugees who sought shelter at the Parish told the Witness about being attacked by the Interahamwe, and some bore wounds from machetes and grenade explosions, m98 533.Prosecution Witness GKI testified that children in her family were ill and that she sought medicine for them from Dr. Rusatsi at the health centre in the area. The Witness testified that when she entered the canteen at the health centre, people stopped conversing and withdrew to the inner part of the room.I°99 At the centre, she greeted and spoke briefly with the bourgmestre, Telesphore Rutaganira, about the refugees’ security problems. The bourgmestre was with other people, and said to one of them "Mr. Kamuhanda we will see you. We will meet

again later.’’11°° The Witness testified, "This was Kamuhanda, and when he [the bourgmestre] said this person’s name, I turned around and looked at the person he was speaking to. I saw this man’s face" The Witness also recalled that this was same man whom her brother had pointed out in a passing white vehicle on the morning of 30 March 1994, six days before the death of President Habyarimana. On that date her brother had told her that the bourgmestre’s wife had information from Kamuhanda of plans for the Interahamwe to kill Tutsi accomplices in Nkuzuzu cellule. 534.Prosecution Witness GKI testified that she returned to the Gishaka Parish Church from the health centre around 5:00pm on this same day. While sitting in the courtyard in front of the Church, 11°1 she saw a blue minibus, used as an ambulance, arrive with the bourgmestre and policemen carrying rifles. 11°2 The Witness confirmed that the bourgmestre was the same person whom she saw with Kamuhanda at the health centre one hour earlier. 1103 535.Prosecution Witness GKI testified that the bourgmestre ordered the Tutsi refugees to enter the Parish Church and the Hutus to go to the bureau commune. She testified, "[W]e were pushed into the Church and the doors 1095 T. 9 May 2002, pp. 18-20 (GKI) (ICS). 1096 T. 9 May 2002, p. 23 (GKI) (ICS), 1097 T. 9 May 2002, pp. 25 and 26 (GKI) (ICS). 1098 T. 9 May 2002, p. 26 (GKI) (ICS). 1099 T. 9 May 2002, pp. 32 and 33 (GKI) (ICS). 1100 T. 9 May 2002, p. 39 (GKI) (ICS). 1101 T. 9 May 2002, p. 45 (GKI) (ICS), 1102 T. 9 May 2002, p. 41 (GKI) (ICS). 1103 T, 9 May 2002, p. 42 (GKI) (ICS). - 147-

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536. 537. 538. 539. ’l?hc Prosecutor v. Jean de Dieu K amuhanda 22 January 2004 Judgment arid ScnI:encc were closed [and] I saw persons that were armed surrounding the Church." 1104 Prosecution Witness GKI gave testimony about rumours that spread amongst the refugees in the Church that the Accused helped to distribute equipment for the killing in the Gikomero region. 1105 She testified, "While we were at the Church during the night people were screaming saying we must pray because we are about to die and these people said that Kamuhanda had brought weapons. ’’11°6 She testified that throughout the night of 12 April 1994 assailants opened the door and took people out; then the refugees in the Church heard people screaming and shots being fired. 1107 Prosecution Witness GKI stated there was a lull between 5:00am and 6:00am on the morning of 13 April. 1108 The Witness approached the Priest, who was baptizing refugees, and requested a drink of water. The Priest told her to follow him to his house for water. While she was at the Priest’s house, the Witness heard screams and shots from the Church. The Witness testified that the Priest asked her to hide in one of the bedrooms, but that between 4:00pm and 5:00pm, someone informed the Priest that he too would be killed if he hid a Tutsi. Shortly thereafter, when the Witness left the Priest’s residence, 1109 she saw between fifty and a

hundred dead bodies. Witness GKI testified before the Chamber that she stepped over the body of her own dead mother 111° as she fled from the site. According to the Witness’s estimate, the attack on the Gishaka Church lasted until some time between 8:00pm and 10:00pm, after beginning between 5:00am and 6:00am, with a lull around 2:00pm. 1111 The record does not indicate the Witness’s identification of the Accused in court. The Witness attested to having seen the Accused on two brief occasions prior to the attack at the Gishaka Parish Church. Although she heard rumours from other refugees about Kamuhanda’s distribution of equipment to the assailants, the Witness did not personally see the Accused at the Parish Church during the massacre. Defence Witness PCE1112, a female relative of the Accused,1113 testified that on 12 April 1994 she went to the health centre near the Gishaka Parish in order to meet with her uncle, a Tutsi, Together they went to the Gishaka 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 T.9 May 2002, p. 46 (GKI) (ICS). T.I0 May 2002, pp. 74 and 75 (GKI) (ICS). T.9 May 2002, p. 48 (GKI) (IeS). T.9 May 2002, pp. 46 and 47 (GKI) (ICS). T.10 May 2002, p. 62 (GKI) (ICS). T.9 May 2002, p. 49 (GKI) (ICS). T.9 May 2002, pp. 49 and 50 (GKI) (ICS). T.9 May 2002, p. 52 (GKI) (ICS). T.30 January 2003, p. 39 (PCE) T.2 February 2003, p. 27 (PCE) (ICS). - 148-

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540. The Prosecutor v. Jcal!l de Dicu K.amuharlda 22 January 2004 Parish Church to discover if any of their relatives had sought shelter there .They did not find any relative at the Church. Back at the health centre, the Witness noticed Prosecution Witness GKI, whom she knew well as they attended Church together, 1114 and who had come from the Parish to ask for medicine. 111s Witness GKI had come to ask for medicine, and it was only Witness PCE and her uncle who were present. Witness PCE saw Witness GKI come and go.1116 Defence Witness PCE visited her uncle between around 11:00am and 3:00pm, however they only spent around 20 minutes together at the Church.1117That day, the Witness also passed by the house of Rutaganira, the bourgmestre of Gikomero commune, and could see that no one was in. In response to a specific question, the Witness stated that between 6 April 1994 and 13 April 1994 she never saw the bourgmestre working at the commune office, nor did she hear that he was there. Nor had she heard of any meeting held at the canteen located between the health centre and the bureau communal that took place on 12 April 1994, and thinks that this would have been impossible anyway, as it had been closed due to the security situation. 1118 The Witness heard from others that the bourgmestre had already fled, and that he had found refuge with a

person called Akayunga. 1119 Defence Witness PCE testified that killings took place at the roadblocks ¯ 4 1120 next to the Gishaka secteur office on 13 April 199 . At that time there was around two hundred Hums displaced by the war gathered at the Gishaka secteur office and another four hundred Hums displaced by the war gathered at the Gikomero commune office in Gishaka. The distance separating these two offices was around 400 to 500 metres. The distance between the Gishaka secteur office and the Gishaka Catholic Parish was around 200 metres. 1121 The Witness testified that there were around three hundred Tutsi refugees gathered at the Gishaka Catholic Church. Up until 13 April 1994, these two communities of Tutsi Refugees and Hum displaced persons lived in harmony, and were even provided with food by the local people. 1122 The Witness remained in her house on 13 April 1994 but observed many Tutsis fleeing from the Gishaka Catholic Church. Some of them stopped by her house on the way to ask for water, and she learned that the brigade commander, Nyarwaya, and his team, particularly, Rwanyange and Ephrem, had chased away the refugees. The Tutsis and also those "opposed to the regime" were being massacred at the roadblocks set up around the Gishaka Parish, but there were no killings at 1114 T. 3 February 2003, p. 44 (PCE) (ICS). 1115 T. 30 January 2003, pp. 43 and 44 (PCE); T. 30 January 2003, pp. 49 and 51 (PCE) (ICS). 1116 T. 30 January 2003, pp. 54 and 55 (PCE) (ICS). 1117 T. 3 February 2003, p. 34 (PCE) (ICS). 1118 T. 30 January 2003, p. 52 (PCE) (ICS). 1119 T. 3 February 2003, p. 44 (PCE) (ICS). 1120 T. 30 January 2003, pp. 39 and 40 (PCE) 1121 T. 30 January 2003, p. 43 (PCE) 1122 T, 30 January 2003, p. 44 (PCE) - 149-

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541. 542. 543.

544. The Prosecutor v, Jean dc Dicu Kamuhanda 22 Ja~uary 2004 the Parish itself. 1123 The Witness testified that she did not see the Accused in April 1994.1124 Defence Witness PCE testified that on 19 April 1994 the Inkotanyi put her in a camp in an occupied zone, and she stayed there until around the end of July 1994 or the beginning of August 1994. She testified to meeting Prosecution Witness GKJ in the camp, and to discussing their experiences. Witness GKJ told her that she had left the Gishaka Parish before the massacre took place, and fled to the residence of a man named Niyivugu, and where she stayed until the Inkotanyi found her. 1125 Defence Witness PCE testified that she is a relative of the family of Witness GEK. The Witness went to see GEK on 16 April 1994 and observed she had a newborn child 1126, who could hardly have been a week old. 1127 Defenee Witness PC testified that on 8 April 1994, Tutsi refugees began to arrive at the Gishaka Parish Church. They came first from Rubungo commune, and later from Gikomero commune.1128The Parish was traditionally considered has a sanctuary in times of danger and the Witness expected that refugees would seek shelter in the Church1129 Indeed, between 500 and 1000 Tutsi refugees sought refuge in the Church, filling both the main structure and the Church meeting room..~130 According to the Witness the refugees had fled from the

lnterahamwe, whom he described as young unemployed people with no future who had been trained by some politicians as instruments of death. 1131 Defence Witness PC testified that approximately 20,000 Hutus, displaced by the war, had arrived in the Gishaka area since 1992. 1132 1133 One large group of displaced Hutus had put up their tents next to the football field just down from the Gikomero bureau communal in Gishaka secteur, and another group was camped next to the Gishaka secteur office. 1134 According to the Witness the distance between the Gikomero bureau communal and the Gishaka Parish is one kilometre by road, and 400 metres "as the crow flies". 1135 He estimated the distance between the Gishaka secteur office and the Gishaka Parish to be around 300 metres. 1123 T. 30 January 2003, pp. 46-48 (PCE) 1124 T. 3 February 2003, p. 27 (PCE) (ICS). 1125 T. 3 February 2003, pp. 24 and 25 (PCE) (ICS). 1126 T. 30 January 2003, pp. 56-58 (PCE) (ICS). 1127 1128 1129 1130 1131 1132 1133 1134 1135 T.3 February 2003, p. 24 (PCE) (ICS). T.4 February 2003, p. 26 (PC) (ICS). T.4 February 2003, pp. 25-27 (PC) (ICS). T.4 February 2003, p. 27 (PC) (ICS). T.4 February 2003, p. 27 (PC) (ICS). T.4 February 2003, pp. 28 and 29 (PC) (ICS). T.4 February 2003, p. 28 (PC) (ICS). T.4 February 2003, pp. 29 and 30 (PC) (ICS). T.5 February 2003, p. 36 (PC) (ICS). 150 -

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545. 546. 547. 548. ~hc Prosecutor v .Jean de Dicu Karnuharlda 22 January 2004 Defence Witness PC testified that until 9 April 1994 there was no trouble between the Hutu displaced persons and the Tutsi refugees, as the Hutu displaced persons occupied sites close to the secteur and commune offices.1136 However, on 9 April 1994, Hum displaced persons also started coming from a place called Nyaconga, and to settle in the classrooms of the Primary School close to the Gishaka Parish. This created a situation where, "as the~ say in Rwanda, they started looking at each other with leopard eyes".1 37 The Witness testified that on 10 April 1994 bourgmestre Rutaganira came to the Parish to observe the situation, and the Witness told him that the Hutu displaced persons and the Tutsi refugees could not stay in the same place, and that it was absolutely necessary to find a solution to the problem. 1138 Rutaganira then went away with two delegates from the displaced persons to find another place in Bumboga secteur where they could move. A part of the Hutu displaced persons, sheltered in the classrooms of the primary school and camped at the Parish field, left on 10 April 1994, but the majority left the next day, 11 April 1994.1139 Defence Witness PC testified that as of 12 April 1994 the official communal institutions no longer existed. The last time he saw

the bourgmestre, during this period, was on 10 April 1994. On 12 April 1994 the communal offices were vacated. The bourgmestre as well as all the conseillers, had left. 114° However the health centre next to the Gikomero bureau communal remained operational up to the 14 April 1994 or 15 April 1994.1141 Defence Witness PC attested to having seen, on 12 April 1994, a man outside of the Parish premises, watching the refugees. This man told the Witness that he "was watching the refugees to avoid them fleeing". From the man’s conduct, the Witness identified him as member of the Interahamwe. 1142 According to Defence Witness PC, on the morning of 13 April 1994, around 9:00am or 10:00am, a man, identified as a lieutenant of the FAR, led a group of between fifty and one hundred armed Interahamwe, to the Gishaka Parish Church. 1143 The Tutsi refugees, while greater in number than the Interahamwe, were all unarmed. 1144 The Witness observed that it was impossible to reason with the Interahamwe, and some of them seem to be under the influence of drugs. 1 las The Interahamwe, under the leadership 1136 T. 1137 T, 1138 T. 1139 T, 1140 T, 1141T. 1142 T. 1143 T. 1144 T. 1145 T, 4 February 2003, pp. 30 and 31 (PC) (ICS). 4 February 2003, p. 30 (PC) (ICS). 4 February 2003, p. 31 (PC) (ICS). 4 February 2003, p. 31 (PC) (ICS). 4 February 2003, p. 32 (PC) (ICS). 4 February 2003, p. 33 (PC) (ICS). 4 February 2003, p. 46 (PC) (IeS). 4 February 2003, pp. 41 and 42 (PC) (ICS). 4 February 2003, pp. 41 and 42 (PC) (ICS). 4 February 2003, p. 42 (PC) (ICS). - 151 -

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549. 550. 551.

552. The Prosecutor v. Jean de Dicu Kamuhar.tda l J)04 "22 Jarmarv ~ " .tudemen[ and Sctrtencc of the lieutenant, led the refugees away from the Church, preventing them from fleeing 1146 Only Prosecution Witness GKI and a small boy, hidden behind the alter, remained in the Church. I147 There were no gunshots and no wounded at the Parish. The buildings were undamaged. 1148 The Witness later learned that the refugees were led to the bureau communal to be executed. 1149 Defence Witness PC denied the testimony of Prosecution Witness GKJ that the Priest had shouted "Kamuhanda, Kamuhanda has arrived, say your last prayers". 115° He denied also the testimony of other Prosecution Witnesses that members of the crowd had exclaimed "Look at Kamuhanda, we are finished". 1151 He further denied having seen the Accused at any time during the events which occurred at the Gishaka Parish Church. 1152 Defence Witness PC stated that on 15 April 1994 the RPF arrived in 1153 Gikomero commune. Defence Witness PC estimated that between 300 and 400 Tutsis were killed in Gishaka secteur.1154 In answer to a question from the Bench, the Witness attested that he did not know why the Tutsi refugees were led away from the Church to be killed rather than being killed in the Church itself. 1155 Defenee Witness PCB testified that there were no incidents in Gishaka secteur until 9 April 1994. 1156 On that day,

the situation began to deteriorate. A refugee from Nduba, who sought shelter in the Witness’s home, informed her that displaced Hutus from Nyacongo had arrived in Gishaka to loot the Tutsi’s property and to kill them. 1157 The Witness testified that displaced persons of Hutu ethnicity, numbering between 400 1158 and 500, had been living in Gishaka secteur since 1992. They had set up camps in the courtyard behind the bureau communal, in an area near the secteur office, around the health centre, and at the football pitch. 1159 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 T.4 February 2003, p. 43 (PC) (ICS). T.4 February 2003, p. 44 (PC) (ICS). T.4 February 2003, pp. 44 and 45 (PC) (ICS). T.4 February 2003, p. 43 (PC) (ICS). T.4 February 2003, p. 56 (PC) (ICS). T.4 February 2003, p. 57 (PC) (ICS). T.4 February 2003, p. 56 (PC) (ICS). T.4 February 2003, p. 50 (PC) (ICS). T.4 February 2003, p. 64 (PC) (ICS). T.5 February 2003, pp. 36 and 37 (PC) (ICS). T.5 February 2003, p. 44 (PCB) T.5 February 2003, p. 44 (PCB) T.5 February 2003, p. 44 (PCB) T.5 February 2003, pp. 44 and 45 (PCB) - 152 -

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553. 554. 555. 556. 557. 1160 T. 1161T. 1162 T. 1163 T. 1164 T. 1165 T. 1166 T. 1167 T. 1168 T. 1169 T. 1170 T. The Prosecutor v. Jean de Dieu Kamuhanda 22 Jarmary 2004 JudgmeN.t and Scl]te~cc According to Witness PCB, Tutsi refugees began to arrive on 9 April 1994. The flow of refugees continued on 10 and 11 April 1994. The refugees settled in two places, one group numbering around 200 persons in the courtyard next to the bureau communal, 1160 and the other group at the Gishaka Catholic Parish. 1161 Defence Witness PCB estimated the distance between the two separate communities, of Tutsi refugees and displaced Hutus, which had settled near the bureau communal, to be 100 metres. Conflicts arose between the two groups. The bourgmestre came to warn the Hutus that they would be chased from the commune if they continued to create problems and instructed the communal police to keep the displaced Hutus away from the Tutsi refugees. 1162 According to the Witness, some of the displaced persons, offended by the warning, called the bourgmestre and the communal police "accomplices of the Inkotanyi".1163 Defence Witness PCB testified that the anger of the displaced persons increased over the next few days, and on 11 April 1994 the commune brigade commander, Michele Nyarwaya, came to the bourgmestre and asked, "Why then are you preventing us from working?". The Witness testified that, at

that time, "to work" meant "to kill". 1164 The bourgmestre replied, "That it is my responsibility to ensure the safety of people under my administration. I shall maintain the peace of the people, I should therefore protect them". 1165 The commune brigade commander then got angry and left. 1166 Defence Witness PCB testified that on 11 April 1994, at around l:00pm, after the commune brigade commander had left the meeting with bourgmestre, a man who lived nearby, but who is now dead, came to the bourgmestre to tell him that the commune brigade commander had left angry and that he had said he was going to bring back Interahamwe from Remera 1167 to kill them and then to kill the Tutsis. 1168 At around 4:00pm the same day he repeated the warning with even more urgency. 1169 The bourgmestre decided to flee and he left for Kayanga with his family. 1170 Defence counsel questioned Witness PCB about an allegation, made by Prosecution Witness GKI, that, on 12 April 1994, the bourgmestre of Gikomero commune attended a meeting about killings at the health centre 5 February 5 February 5 February 5 February 5 February 5 February 5 February 5 February 5 February 5 February 5 February 2003, pp. 46 and 48 (PCB) 2003, p. 46 (PCB) 2003, p. 49 (PCB) 2003, p. 50 (PCB) (ICS). 2003, p. 54 (PCB) (ICS). 2003, p. 52 (PCB) (ICS). 2003, p. 53 (PCB) (ICS). 2003, p. 52 (PCB) (ICS). 2003, p. 55 (PCB) (ICS). 2003, p. 55 (PCB) (ICS). 2003, pp. 55 and 56 (PCB) (ICS). - 153 -

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558. 559. 560. ~[’t~c Prosecutor v. Jean de Dieu Kamuhanda 22 Jarmary 2004 canteen located in Gishaka secteur. Witness PCB denied the allegation and insisted that the bourgmestre did not attend this meeting, 1171 Defence Witness PCB attested to having seen the Accused once, at a burial ceremony, in 1992, and stated that she probably would not even be able to recognise him in Court. 1172 Defence Witness PCB testified that she had access both to the Gikomero communal office and the home of the bourgmestre. At neither place did she ever see any weapons. 1173 She also related facts that in her opinion had motivated Prosecution Witness GET to bear false Witness against the bourgmestre as a genocide suspect. 1174 Witness PCB testified, in cross-examination, that the Gishaka Catholic Parish Church was not destroyed. Rather the bureau communal, the Tribunal, and the health centre suffered destruction.. 117s b. Findings o Discussion 561.The Chamber recalls the testimony of Witness GKL that he recognised the Accused as Minister of Education "in the government of the Abatabazi", and that the Accused position had been pointed out to him by his friends. The Chamber notes that at the point in time to which the Witness referred, the Accused had not yet been appointed to the position of Minister of Higher Education and Scientific Research in the

Interim Government. The Witness placed excessive emphasis on his sighting of the Accused at the bureau communal, in an attempt to convince the Chamber that he knew the Accused well. Moreover, the Witness was unable to identify the Accused in Court. The Chamber finds that the Prosecutor did not adequately demonstrate that the Witness knew or recognised the Accused, and thus the Chamber is not satisfied that the Witness properly identified the Accused, and finds his testimony regarding the Accused’s actions to be unreliable. Furthermore, the Chamber is not convinced that the Witness’s account is accurate. Although it is not inconceivable that the Accused would be wearing Interahamwe clothing and would personally be commanding a roadblock as described by the Witness, in the absence of specific corroboration, the Chamber cannot rely on this testimony. The 1171 T. 5 February 2003, pp. 56 and 58 (PCB) (ICS). 1172 T. 5 February 2003, p. 63 (PCB) (ICS). 1173 T. 5 February 2003, p. 64 (PCB) (ICS). 1174 T. 5 February 2003, p. 65 (PCB) (ICS). 1175 T. 6 February 2003, p. 5 (PCB) (ICS). - 154 -

Page 155

562. 563.

564. Fhc Prosccutor v..lean de Dicu KamubaJlda 22 Jar~u;arv 2004 Chamber concludes that Prosecution Witness GKL was not a truthful Witness, and therefore will not rely upon his testimony. The Chamber also recalls the testimony of Prosecution Witness GKJ. It is clear from her testimony that she did not personally know the Accused, and that she identified the man said to be "Kamuhanda", only through what she heard repeated by others. The Chamber did not find the Witness’s account to be coherent. Prosecution Witness GEL testified that he saw the Accused in conversation with the bourgmestre at the Gikomero bureau communal in Gishaka secteur on 10 April 1994, and thereafter again at the Gishaka Catholic Church, where he saw the Accused walking around the Church approximately thirty minutes before the attack. The Defence pointed out in its closing brief that there is a fundamental contradiction between the testimony of the Witness in court, and a previous written statement of the Witness. 1176 In his testimony before the Court, the Witness identified the site of the attack as Gishaka Church. However, in his previous statement, the Witness placed the attack at the bureau communal, where he was in hiding. 1177 In Court, the Witness explained this discrepancy as the fault of the investigators who inaccurately recorded his out-of-court statement. However the Chamber is not convinced on

this point. Witness GEL also testified as to the words spoken by people outside the Church. The Chamber is not convinced that, whilst packed tightly inside the Church with more than one thousand other refugees, the Witness would be able to hear what people were saying to each other outside of the Church. The Chamber notes that Witness GEL was the sole Witness to testify that assailants threw grenades through the windows of the Church. Even if this Witness’s account were to be believed, it would established the Accused’s presence at the Gikomero bureau communal and at the Gishaka Parish Church at around the time of the massacre, but it would not establish his involvement in the killings. However, in the final analysis, the Chamber is not convinced the Witness positively identified the Accused. Although Witness GEL obviously suffered a great deal during the attacks which occurred during April 1994 upon the Tutsi population, the Chamber cannot consider his evidence to be credible, and cannot rely upon his testimony in relation to the presence or acts of the Accused in connection with the attack of the Gishaka Parish Church. In analysing the testimony of Prosecution Witness GIG, the Chamber has found her evidence to be credible, and the basic structure of her account to be sound, matching in broad strokes the testimonies of other Witnesses: such as that Defence Witness PCE about her being at the Gishaka Health Centre on 12 April 1994, and that of Defence Witness PC about her being 1176 Defence Exhibit 24; Witness statement of 9 September 1999. 1177 Defence Closing Brief, paras. 2125-2132 (English Translation) 155 -

Page 156

565. Thc Prosecutor v. ,Jean de Dicu Kamuhanda 22 Jarmary 2004 Judgment arid Sc~stcnce sheltered at the Priest’s residence. However, the Witness did not know the Accused well, and only during a visit to the dispensary at the Health Centre did she overhear a man exchanging parting words with someone he called "Mr. Kamuhanda". Later on, she overheard some people at the Church saying that "Kamuhanda had brought weapons". The Chamber has found this Witness’s testimony to be truthful, but does not find it sufficient to establish the presence or the acts of the Accused in Gishaka secteur, Gikomero commune, during April 1994. Having considered the totally of the evidence, the Chamber notes the many inconsistencies between the Witness testimonies. Even an analysis limited to the Prosecution Witnesses’ testimonies reveals irreconcilable differences in relation to the events at the Gishaka Parish Church. Witness GKL testified that once the Tutsi refugees were inside the Gishaka Church, the Interahamwe and the Abakiga shut the doors to prevent them from escaping. Witness GKJ testified that not the Interahamwe and the Abakiga but the refugees themselves shut the Church doors to prevent the Interahamwe from entering. Witness GKJ further testified that the assailants tried to break down the doors. Witness GKL testified that refugees were taken out through a back door during the night and

were never seen again. Witness GKL also stated that, later, the refugees were led out of the Church, where the men and the women were separated. Witness GEL is the only Witness to have testified that grenades were thrown through the windows of the Church. Witness GEL further stated that some of the refugees said, "That one is Kamuhanda. He is an authority and he is going to intercede on our behalf’, whilst Witness GKJ heard people say that the refugees’ fate was sealed because "Kamuhanda has arrived". Similar contradictions exist among the testimonies of all Prosecution Witnesses testifying about the events at the Gishaka Parish Church. Therefore the Chamber cannot determine with certainty either the time of the attack, the precise location of the attack, the sequence of events, or the role, if any, of the Accused in the attack. o Conclusion 566.

567. The Chamber finds that a massacre of Tutsi refugees who had sought shelter in the Gishaka Catholic Parish Church, Gikomero commune, Kigali-Rural prdfecture, occurred between 10 April 1994 and 13 April 1994, with the most refugees killed around the 12 April 1994 in a devastating attack. The evidence is inconsistent as to the precise location or locations of the killings. However, it can be said without any doubt that the killings occurred in the vicinity of the Gishaka Parish Church and that many Tutsi refugees lost their lives. Having considered all the evidence relating to the events which occurred between 10 April 1994 and 13 April 1994 at Kayanga Roadblock and - 156-

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The Prosccuto.r v. Jearl dc Dicu Karnuhanda 22 January 2004 Gishaka Catholic Parish Church, sites which are located both in Gikomero commune, Kigali-Rural prefecture, the Chamber finds that the Prosecution has not proven the charges against the Accused in relation to his alleged involvement in the massacres which occurred there between these dates. J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local Authorities) 1. Allegations 568. Paragraph 6.37 of the Indictment reads: From April to July 1994, by virtue of their position, their statements, the orders they gave and their acts and omissions, members of the Interim Government and influential members of MRND, MDR (Hum) and PL (Hum) including Jean de Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, Frlicien Kabuga, Juvrnal Kajelijeli, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, Jrr6me Bicamumpaka and Justin Mugenzi exercised authority over the local authorities and the militia, including the Interahamwe-MRND militia. These local authorities and militiamen, in complicity with the military, as from 6 April, committed massacres of the Tutsi population and of moderate Hutu which extended throughout Rwandan territory, with the knowledge of members of the Interim government, including, Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, Jer6me Bicamumpaka and Justin Mugenzi.

2. Findings 569.The Chamber recalls its findings that during the events of Gikomero Parish Compound the Accused exercised authority over lnterahamwe, local policemen, soldiers, and local population amongst the attackers but that he was not in a superior-subordinate relationship with them and did not maintain effective control over them. 1178 I 178 see above: Part III, Section I. - 157 -

Page 158

The Prosecutor v, Jean de Dieu Kamuhanda 22 January 2004 Judgmen:t and Se~rter~ce K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes Committed by the Perpetrators or to Punish Them) 1. Allegations 570. Paragraph 6.31 of the Indictment reads: Between 8 April and 14 July 1994, in several prefectures, including Butare, Kibuye, Kigali, Gitarama and Gisenyi, ministers, pr6fets, bourgmestres, civil servants and soldiers gave orders to commit, instigated, assisted in committing and did themselves commit massacres of members of the Tutsi population and moderate Hutu population. Jean Kambanda, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko and Eliezer Niyitegeka knew or had reason to know that their subordinates had committed or were preparing to commit crimes, and failed to prevent these crimes from being committed or to punish the perpetrators thereof.

571. Paragraph 6.89 of the Indictment reads: Knowing that massacres of the civilian population were being committed, the political and military authorities, including Augustin Ngirabatware, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Eliezer Niyitegeka, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera and Juv6nal Kajelijeli took no measures to stop them. On the contrary, they refused to intervene to control and appeal to the population as long as a cease-fire had not been declared. This categorical refusal was communicated to the Special Rapporteur via the Chief of Staff of Rwandan Army, Major- General Augustin Bizimungu. - 158 -

Page 159

Thc Prosecutor v. Jean dc Dicu Kamuhanda 22 January 2004 Judgment and Sc,~te.l~cc 2. Findings 572.On the basis of the evidence brought to it, the Chamber has found 1179 that the Accused led the attackers to Gikomero Parish Compound but that no evidence shown that he was in a superior-subordinate relationship with the attackers and nor that he did maintain effective control over them on 12 April 1994. 573.Accordingly, the Chamber finds that the Accused cannot be liable for the failure to prevent the commission of the crimes or to punish the perpetrators thereof. 1179 see above: Part HI, Section I. - 159-

Page 160

Thc Prosecutor v. Jean dc Dicu Kamuhanda 22 .Ialmary 2004

PART IV-

LEGAL

FINDINGS 574. In the present Part, the Chamber will present its legal findings based on the factual findings made above in Part II and III.

575. The Indictment states that: 1180 The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant to the authority stipulated in Article 17 of the Statute of the International Criminal Tribunal for Rwanda (’the Statute of the Tribunal’) charges:

JEAN DE DIEU KAMUHANDA With CONSPIRACY TO COMMIT GENOCIDE; GENOCIDE, or altematively COMPLICITY IN GENOCIDE; CRIMES AGAINST HUMANITY, and VIOLATIONS OF ARTICLE 3

COMMON

TO THE GENEVA

CONVENTIONS

AND

ADDITIONAL

PROTOCOL II, offences stipulated in Articles 2, 3 and 4 of the Statute of the Tribunal. A. Admitted Facts 576. The Accused has admitted that: Between 1 January 1994 and 17 July 1994, Rwanda was a state party to the Genocide Convention (I948) having acceded to it 16 April 1975.1181 The victims referred to in this document were protected persons, according to the provisions of Articles 3 common to Geneva conventions and additional protocol.~ l gz B. Cumulative Convictions 577. In almost every case tried before this Tribunal, the issue has arisen as to whether or not the accused may be convicted of multiple offences based on the same facts. In Musema, 83 this Tribunal s Appeals Chamber finally had an opportunity to pronounce itself on the matter. This issue as it arose in that case was whether it was permissible to convict the prisoner of both genocide and extermination (as a Crime against Humanity) based on the same facts. Approving and adopting the applicable test as it was enunciated in the ICTY Appeals Chamber’s case of Delali6 et al. (the 11s0 Indictment, "The Charges". 1181 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 92 1is2 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 93 1183 Musema, Judgment (AC), 16 November 2001, paras. 346-370. - 160 -

Page 161

Thc Prosecutor v. Jean dc Dicu Kamuhanda ,3( 22 .Iarmary ~ )04 Judgmcn:t and Sc~tcncc "Celebi~i Case "), the rCTR Appeals Chamber in Musema held that it was permissible so to convict the prisoner.

578. In the Celebi~i Case, the relevant test was set out as follows: Having considered the different approaches expressed on this issue both within this Tribunal and other jurisdictions, this Appeals Chamber holds that reasons of faimess to the accused and the consideration that only distinct crimes may justify multiple convictions, lead to the conclusion that multiple criminal convictions entered under different statutory provisions but based on the same conduct are permissible only if each statutory provision involved has a materially distinct element not contained in the other. An element is materially distinct from another if it requires proof of a fact not required by the other. Where this test is not met, the Chamber must decide in relation to which offence it will enter a conviction. This should be done on the basis of the principle that the conviction under the more specific provision should be upheld. Thus, if a set of facts is regulated by two provisions, one of which contains an additional materially distinct element, then a conviction should be entered only under that provision. 1184 579. In the Musema Case, the ICTR Appeals Chamber also noted: In the Jelisid Appeal Judgment,

ICTY Appeals Chamber adopted the reasoning it had followed in the Celebigi case, and held that the multiple convictions entered under Article 3 and Article 5 of

ICTY Statute are permissible because each Article contained a distinct element requiring proof of a fact not required by the other Article.~lss 580.Having reviewed these ICTY cases, the Appeals Chamber in Musema approved the test therein as one that "reflects general, objective criteria enabling a Chamber to determine when it may enter or affirm multiple convictions based on the same acts" and then confirmed the test as "the test to be aPrPlied with respect to multiple convictions arising under

ICTR Statute. ,1 581.Conceming the elements of the offences to be considered in the application of this test, the ICTR Appeals Chamber said: The Appeals Chamber further endorses the approach of the Celebidi Appeal Judgment, with regard to the elements of the offences to be taken into consideration in the application of this test. In applying this test, all the legal elements of the offences, including those contained in the provisions’ introductory 1184 Delalic et al. (Celebici Case), Judgment (TC), para. 370. 1185 Musema, Judgment (AC), 16 November 2001, para. 362. 1186 Musema, Judgment (AC), 16 November 2001, para. 363. - 161-

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The Prosecutor v, Jeal:l de Dieu Kamuhanda 22 January 2004 Judgmen:t and Se~lte~ce paragraphs, must be taken into account. 1187 582. Applying the foregoing analysis to the issue in the Musema Case, the Appeals Chamber held as follows: Applying the provisions of the test articulated above, the first issue is whether a given statutory provision has a materially distinct element not contained in the other provision, an element being regarded as materially distinct from another if it requires proof of a fact not required by the other. Genocide requires proof of an intent to destroy, in whole or in part, a national, ethnical, racial or religious group; this is not required by extermination as a Crime against Humanity. Extermination as a Crime against Humanity requires proof that the crime was committed as a part of a widespread or systematic attack against a civilian population, which proof is not required in the case of genocide. As a result, the applicable test with respect to double convictions for genocide and extermination as a Crime against Humanity is satisfied; these convictions are permissible. Accordingly, Musema’s ground of appeal on this point is dismissed. 1188 583. In deciding the issue as it did on that occasion, however, the Appeals Chamber declined to pronounce itself on the question of whether multiple convictions under different Articles of the Statute are

always permitted. 1189 584. The Chamber considers that in the present case there is no need to pronounce on the same question, especially as the Chamber has not been invited to do so by the Parties. C. Criminal Responsibility 1. Indictment 585. The Indictment alleges that the Accused is criminally responsible on the basis of Article 6 of the Statute for the crimes described in the Counts below. tt87 Musema, Judgment (AC), 16 November 2001, para. 363. 1188 Musema, Judgment (AC), paras. 365 and 367. 1189 Musema, Judgment (AC), para. 368. - 162-

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"Fhc Prosecutor v. Jean do DJcu Kamuh.ar~da 22 January 2004 Judgment arid Sc~]tencc 2. The Statute 586. The Article 6 of the Statute on Individual Criminal Responsibility reads: 1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of state or government or as a responsible government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a government or of a superior shall not relieve him or her of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal for Rwanda determines that justice so requires.

3. Jurisprudence a. Responsibility under Article 6.1 of the Statute 587.Article 6(1) addresses criminal responsibility for unlawful conduct of accused and is applicable to all three categories of crimes: genocide and derivative crimes; Crimes against Humanity; and violations of Article 3 Common to the Geneva Conventions and Additional Protocol II. 588.Article 6(1) reflects the principle that criminal responsibility for any crime in the Statute is incurred not only by individuals who physically commit that crime, but also by individuals who participate in and contribute to the commission of a crime in other ways, ranging from its initial planning to its execution, as specified in the five categories of acts in this Article: planning, instigating, ordering, committing, or aiding and abetting. 119° ~190 Semanza, Judgment (TC), para. 377; Kayishema and Ruzindana, Judgment (AC), para. 185; Musema, Judgment (TC), para. 114; Rutaganda, Judgment (TC), para. 33; Kayishema and Ruzindana, Judgment - 163-

Page 164

589. 590.

591. The Prosecutor v. Jean dc Dicta Kamuhanda 22 January 2004 ,ludgmcl~t and Selrtencc Pursuant to Article 6(1), an individual’s participation in the planning preparation of an offence within the Tribunal’s jurisdiction will give rise to criminal responsibility only if the criminal act is actually committed. Accordingly, crimes which are attempted but not consummated are not punishable, except for the crime of genocide, pursuant to Article 2(3)(b),(c) and (d) of the 1191 Jurisprudence has established that for an accused to incur criminal responsibility, pursuant to Article 6(1), it must be shown that his or her participation has substantially contributed to, or has had a substantial effect on, the completion of a crime under the Statute. 1192 The elements of the crimes of genocide, Crimes against Humanity, and violations of Article 3 common to the Geneva Conventions and Additional Protocol II, articulated in Articles 2 to 4 of the Statute, are inherent in the five forms of criminal participation enumerated in Article 6(1), for which an individual may incur criminal responsibility. These five forms of participation are discussed below. o Forms of Participation (i) Planning 592."Planning ", implies that one or more persons contemplate a design for the commission of a crime at both the preparatory and execution phases. 1193 The existence of a plan may be

demonstrated through circumstantial evidence. 1194 In Bagilishema, it was held that the level of participation in planning to commit a crime must be substantial, such as the actual formulation of a plan or the endorsement of a plan proposed by another individual. 119s (ii) Instigating 593. "Instigating", involves prompting another person to commit an offence,ll96and needs not be direct or public, lm Both positive acts and (TC), paras. 196-197; Akayesu, Judgment (TC), para. 473. 1191 Semanza, Judgment (TC), para. 378; Musema, Judgment (TC), para. 115; Rutaganda, Judgment (TC), para. 34,35 and 43; Akayesu, Judgment (TC), paras. 473 and 482. 1~92 Kayishema and Ruzindana, Judgment (AC), paras. 186 and 198; Ntakirutimana, Judgment (TC), para. 787; Bagilishema, Judgment (TC), paras. 30 and 33; Musema, Judgment (TC), para. 126; Rutaganda, Judgment (TC), para. 43; Kayishema and Ruzindana, Judgment (TC), paras. 199 and 207; Akayesu, Judgment (TC), para. 477. 1193 Semanza, Judgment (TC), para. 380; Musema, Judgment (TC), para. 119; Akayesu, Judgment (TC), para. 480. 1194 Blaskic, Judgment (TC), para. 278. u9s Bagilishema, Judgment (TC), para 30. 1t96 Semanza, Judgment (TC), para. 381; Bagilishema, Judgment, TC, para. 30; Akayesu, Judgment (TC), para. 482. 1197 Semanza, Judgment (TC), para. 381 Akayesu, Judgment (A C), pa ras. 47 8-482. - 164-

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T.hc Prosecutor v, Joan de I)icu Karnuhartda 22 Jar.mary 2004 Judgment and Sc~}tc.ticc omissions may constitute instigation. 1198 Instigation is punishable on proof of a causal connection between the instigation and the commission of the crime. 1199 (iii) Ordering 594. "Ordering", implies a situation in which an individual with a position of authority uses such authority to impel another, who is subject to that authority, to commit an offence. 12°° No formal superior-subordinate relationship is required for a finding of "ordering" so long as it is demonstrated that the accused possessed the authority to order. 12°1 The position of authority of the person who gave an order may be inferred from the fact that the order was obeyed. (iv) Committing 595.To "commit" a crime usually means to perpetrate or execute the crime by oneself or to omit to fulfil a legal obligation in a manner punishable by penal law. In this sense, there may be one or more perpetrators in relation to the same crime where the conduct of each perpetrator satisfies the requisite elements of the substantive offence. 12°2 (v) Aiding and Abetting in the Planning, Preparation, or Execution of Offence 596."Aiding and abetting" relate to discrete legal concepts. 12°3 "Aiding" signifies providing assistance to another in the commission of a crime. "Abetting" signifies facilitating, encouraging, advising or

instigating the commission of a crime. 12°4 Legal usage, including that in the Statute and case law of the ICTR and the ICTY, often inter-links the two terms and treats them as a broad singular legal concept. 12°5 597."Aiding and abetting", pursuant to the jurisprudence of the ad hoc Tribunals, relates to acts of assistance that intentionally provide encouragement or support to the commission of a crime. 12°6 The act of 1198 Kordic and Cerkez, Judgment (TC), para. 387. 1199 &mama, Judgment (TC), para. 381; Bagileshema, Judgment (TC), para. 30. 120o Semanza, Judgment (TC), para. 382; Bagilishema, Judgment (TC), para, 30; Rutaganda, Judgment (TC), para. 39 Akayesu, Judgment (T C), pa ra. 48 12Ol Kordic and Cerkez, Judgment (TC), para. 388. 1202 Kayishema and Ruzindana, Judgment (AC), para. 187; Tadic, Judgment (AC), para. 188; Kunarac, Vukovac and Kovac, Judgment (TC), para. 390; Semanza, Judgment (TC), para. 383. 1203 Semanza, Judgment (TC), para. 385; Akayesu, Judgment (TC), para. 484. 12o4 Semanza, Judgment (TC), para. 384; Ntakirutimana, Judgment (TC), para. 787; Akayesu, Judgment, para. 484. 1205 Semanza, Judgment (TC), para. 384, referring to Mewett & Manning, Criminal Law(3 rd ed. 1994), p. 272 (noting that aiding and abetting are "almost universally used conjunctively"). 1206 Kayishema and Ruzindana, Judgment (AC), para. 186; Semanza, Judgment (TC), para. 385; Ntakirutimana, Judgment (TC), para. 787; Bagilishema, Judgment (TC), paras. 33 and 36; Musema, Judgment (TC), paras. 125 and 126; Kayishema and Ruzindana, Judgment (TC), paras. 200-202; Akayesu, Judgment (TC), para. 484. - 165-

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The Prosccutor v~ Jean de Dicu Kamuliarlda 22 January 2004 Judgmel~ot arid ScF~tc.ncc assistance may consist of an act or an omission, and it may occur before, during or after the act of the actual perpetrator. 12°7 The contribution of an aider and abetter before or during the fact may take the form of practical assistance, encouragement or moral support, which has a substantial effect on the accomplishment of the substantive offence. 12°8 Such acts of assistance before or during the fact need not have actually caused the consummation of the crime by the actual perpetrator, but must have had a substantial effect on the commission of the crime by the actual perpetrator. 12°9 o Mens Rea 598. 599.

600. To be held criminally culpable of a crime, the~erpetrator must possess the requisite mens rea for that underlying crime. For purposes of accomplice liability, the mens rea requirement will be fulfilled where an individual acts with the knowledge that his or her act(s) assist in the commission of the crime by the actual perpetrator(s). While the accused need not know the precise offence being committed by the actual perpetrator(s), the accused must be aware of the essential elements of the crime, and must be seen to have acted with awareness that he or she thereby supported the commission of the crime. 1211 An accused’s position of superior authority, in and of itself, does not suffice to conclude that the accused, by his or her mere presence at the scene of the crime, encouraged or supported the offence. The presence of the accused at the crime site, however, may be perceived as a significant indicium of his or her encouragement or support. 1212 The requisite mens rea may be established from an assessment of the circumstances, including the accused’s prior and similar behaviour, failure to punish or verbal encouragement.1213 1207 Kunarac, Vukovic and Kovac, Judgment, (TC), para. 391; Semanza, Judgment, (TC), para. 386. ~2os Kayishema and Ruzindana, Judgment (AC), para. 186; Kunarac, VuKovac and

Kovac, Judgment (TC), para. 391; Semanza, Judgment (TC), para. 385. 1209 Kunarac, Vukovic and Kovac, Judgment, (TC), para. 391; Semanza, Judgment, (TC), para. 386. 1210 Kayishema and Ruzindana, Judgment (AC), para. 187; Semanza, Judgment (TC), para. 387. 1211 Kayishema and Ruzindana, Judgment (AC), paras. 186-187; Semanza, Judgment (TC), paras. 387 and 388; Baglishema, Judgment (TC), para. 32; Kayishema and Ruzindana, Judgment (TC), para. 201. 1212 Kayishema and Ruzindana, Judgment (AC), para. 186; Bagilishema, Judgment (TC), para. 32; Kayishema and Ruzindana, Judgment (TC), para. 201. 1213 Semanza, Judgment (TC), para. 389; Kayishema and Ruzindana, Judgment (TC), paras. 201 and 205. Aleksovski, Judgment (AC), para 162; Vasiljevic, Judgment (TC), para. 71; Krnojelac, Judgment (TC), paras. 75 and 90; Kvocka, Judgment (TC), paras. 255 and 262; Kunarac, Judgment (TC), para. 392; Furundzija, Judgment (TC), para.

249. But see Ntakirutimana and Ntakirutimana, Judgment (TC), para. 787 (stating that aiding and abetting, pursuant to Article 6(1)requires proof that an accused possessed mens rea of the underlying crime, for example, the specific intent of genocide); Akayesu, (TC), paras. 485 and 547. The Trial Chamber observes that these cases do not provide any explanation for treating the mens tea requirement for aiding and abetting, pursuant to Article 6(1) differently than the requirement for complicity in genocide, which does not require proof of the mens tea of the underlying crime.) - 166-

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The Prosecutor v, .lean dc Dicu Kamuharlda 22 Jarluary 2.004 b. Responsibility Under Article 6(3) of the Statute 601.Article 6(3)of the ICTR Statute addresses the criminal responsibility of superior by virtue of his or her knowledge of the acts and omissions of subordinates and for failure to prevent, discipline, or punish the criminal acts of his or her subordinates in the preparation and execution of the crimes charged. The principle of superior responsibility, which derives from the principle of individual criminal responsibility as applied in the Nuremberg and Tokyo trials, was subsequently codified in Article 86 of the Additional Protocol I to the Geneva Conventions in 1977. Article 6(3) of the Statute, which is applicable to genocide, Crimes against Humanity, and serious violations of Article 3 Common to the Geneva Conventions and Additional Protocol II, provides as follows: The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 12~4 602.The jurisprudence of both the ICTR and the ICTY has recognised that a civilian or

a military superior, with or without official status, may be held criminally responsible for offences committed by subordinates who are under his or her effective control, uls The chain of command between a superior and subordinates may be either direct or indirect.1216 603.The following three concurrent conditions must be satisfied before a superior may be held criminally responsible for the acts of his or her subordinates: (i) There existed a superior-subordinate relationship between the person against whom the charge is directed and the perpetrators of the offence; (ii) The superior knew or had reason to know that the criminal act was about to be or had been committed; ~2~7 and (iii)The superior failed to exercise effective control to prevent the criminal act or to punish the perpetrators thereof. Iz18 1214

ICTR Statute, Article 6(3). 1215 Semanza, Judgment (TC), para. 400; Bagilishema, Judgment (AC), paras. 50 and 51; Kayishema and Ruzindana, Judgment (TC), para. 294; Musema, Judgment (TC), para. 148; Celebici, Judgment (AC), paras. 192-196. 1216 Semanza Judgment (TC), para. 400. 1217 i.e. crimes within the jurisdiction of the Tribunal. 12ts Celebici, Judgment (AC), paras. 189-198, 225-226, 238-239, 256 and 263; Celebi¢i, Judgment (TC), para. 346; Blaskic, Judgment (TC), para. 294; Aleksovski, Judgment (TC), para. 69; Kordic, Judgment (TC), para. 401; Kunarac and Kovac, Judgment (TC), para. 395; Kayishema and Ruzindana, Judgment (TC), paras. 217-231; Bagilishema, Judgment (AC), paras. 26-62 Bagilishema, Judgment (T C), pa ras. 38 -50; Semanza, Judgment (TC), para. 400; Niyitegeka, Judgment (TC), para.477. - 167-

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The Prosecutor v, Jean de Dieu Kamuhanda 22 January 20()4 Judgment and Sc~ter~ce o Existence of a Superior-Subordinate Relationship 604.

605. The test for assessing a superior-subordinate relationship, pursuant to Article 6(3), is the existence of dejure or de facto hierarchical cha in of authority, where the accused exercised effective control over his or her subordinates as of the time of the commission of the offence. The cognisable relationship is not restricted to military hierarchies, but may apply to civilian authorities as well. 1219 By effective control, it is meant that the superior, whether a military commander or a civilian leader, must have possessed the material ability, either de jure or de facto, to prevent or to punish offences committed by subordinates. 122° The test to assess a superior-subordinate relationship, in the words of the Appeals Chamber in Bagilishema, is: [...]whether the accused exercised effective control over his or her subordinates; this is not limited to asking whether he or she had de jure authority. The ICTY Appeals Chamber held in the (;elebidi Appeal Judgment that ’[a]s long as a superior has effective control over subordinates, to the extent that he can prevent them from committing crimes or punish them after they committed the crimes, he would be held responsible for the commission of the crimes if he failed to exercise such abilities of control. ~ 221 o Mens Rea Requirement that the Superior Knew or Had Reason to Know 606¯To hold a superior responsible for the criminal conduct of subordinates, the Chamber must be satisfied that the superior possessed the requisite mens rea, namely, that he or she knew or had reason to know of such conduct.

607. A superior in a chain of hierarchical command with authority over a given ¯ . , , . S ~ geographical area will not be held strictly liable for subordinate crimes. 1222 While an individual s hierarchical position may be a significant indicium that he or she knew or had reason to know about subordinates’ criminal acts, knowledge will not be presumed from status alone. 1223 1219 Celebici, Judgment (AC), paras. 192-193 and 197-198. 122o Celebici, Judgment (AC), para. 186 ;Bagilishema, Judgment (AC), paras. 59-61. 1221 Bagilishema, Judgment (AC), para. 61. 1222 Semanza, Judgement (TC), para. 404; Bagilishema, Judgment (TC), paras. 44-45; Akayesu, Judgment (TC), para. 489. 1223 Semanza, (TC), para. 404; Bagilishema, Judgment (TC), para. 45. - 168-

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608. 609.

610. The Prosccutor v. dcar~ de Dicu Kamuhanda 22 January 20()4 Judgmcl~t and Sentence A superior is under a duty to act where he or she knew or had reason to know that subordinates had committed or were about to commit offences covered by Articles 2, 3, and 4 of the Statute. 1224 In accordance with current jurisprudence related to Article 6(3), a superior will be has found to possess, or will be imputed with, the requisite mens rea sufficient to incur criminal liability, where, after weighing a number of indicia, the Chamber is satisfied that (1) the superior had actual knowledge, established through direct or circumstantial evidence, that his or her subordinates were committing or were about to commit, or had committed, an offence under the jurisdiction of the Statute, or, (2) information was available to the superior which would have put him or her on notice of offences committed by subordinates. 122s o Effective Control of Subordinates to Prevent or Punish Their Criminal Acts Where it is demonstrated that an individual is a superior, pursuant to Article 6(3), with the requisite knowledge, then he or she will incur criminal responsibility only for failure to take "necessary and reasonable measures" to prevent or punish crimes subject to the Tribunal’s jurisdiction committed by subordinates. Such measures have been described as those within the "material possibility" of the

superior, even though the superior lacked the "formal legal competence" to take these measures, m6 Thus a superior has a duty to act in those circumstances in which he or she has effective control over subordinates, and the extent of an individual’s effective control, under the circumstances, will guide the assessment of whether he or she took reasonable measures to prevent, stop, or punish a subordinate’s crimes. 1227 4. Findings 611.The Chamber finds that no specific evidence has been brought to it as regards the nature of the relationship between the Accused and the attackers of the Gikomero Parish Compound. There has been no clear evidence presented by the Prosecution that the Accused had a superior- subordinate relationship with these attackers nor that he maintained effective control over them during the period relevant to the Indictment. 1224 Semanza, Judgement (TC), para. 405 Bagilishema, Judgment (T C), pa ra. 46 Celebici, Judg ment (TC), paras. 384-386. 1225 Semanza, Judgement (TC), para. 405; Bagilishema, Judgment (AC), para. 28; Bagilishema, Judgment (TC), para. 46; Kayishema and Ruzindana, Judgment (TC), para. 228; Celebici, Judgment (AC), para. 239; Celebici, Judgment (TC), paras. 390-393. 1226 Semanza, Judgment (TC), para. 406; Kayishema and Ruzindana, Judgment (AC), para. 302; Celebici, Judgment (TC), para. 395. 1227 Semanza Judgment (TC), para. 406; Kayishema and Ruzindana (TC), paras. 228-230. - 169-

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612. 613.

614. The Prosecutor v, Jean de Dieu Kam:uhanda 22 January 2004 This finding is not inconsistent with the Chamber’s earlier finding that the Accused was in a position of authority over the attackers, for purposes of his responsibility under Article 6(1) for ordering the attack at the Gikomero Parish Compound. The finding of a position of authority for purposes of "ordering" under Article 6(1) is not synonymous with the presence of "effective control" for purposes of responsibility under Article 6(3). It is settled that the two provisions are distinct: and, in our view, are the considerations for responsibility under them. Therefore the Chamber does not find that the Accused can bear criminal responsibility as a superior under article 6(3) of the Statute for the crimes that occurred in Kigali-Rural prefecture between 1 January 1994 and July 1994. The Chamber will consider the elements of the individual criminal responsibility of the Accused under the Article 6(1) of the Statute in the relevant sections below in relation with each count of the Indictment. D. Genocide and Related Crimes 615.The Trial Chamber acquitted the Accused of Count 1 of the Indictment, conspiracy to commit genocide. 1228 616.Count 2 of the Indictment charges the Accused with genocide. Count 3 charges him with complicity in genocide.

1. The Statute 617. Article 2 of the Statute on Genocide reads: 1. The International Tribunal for Rwanda shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this Article or of committing any of the other acts enumerated in paragraph 3 of this Article.

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; Co) Causing serious bodily or mental harm to members of the group; 1228 Kamuhanda, Decision 20 August 2003, Partial Acquittal (TC). - 170-

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".Fhc Prosecutor v. ,teals de Dicu Kamuhanda 22 January 2004 (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. The following acts shall be punishable: (a)Genocide; Co)Conspiracy to commit genocide; (c)Direct and public incitement to commit genocide; (d)Attempt to commit genocide; (e)Complicity in genocide.

2. Genocide a. Indictment 618. Count 2 of the Indictment charges: Count 2 - Genocide, pursuant to Article 2(3)(a) of the Statute By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 -pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby - 171 -

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The Prosecutor w Jean de Dicu Kamuhanda 22 Jar.l.ual*y 2004 Judgmc,at arid Sc~tencc committed GENOCIDE, a crime stipulated in Article 2(3)(a) the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute. 619.For the reasons indicated in Part III, Section I of this Judgment, the Chamber has made these factual findings based only on the relevant paragraphs of the Indictment referred to in Count 2. b. Jurisprudence 620. 621.

622. The Tribunal is empowered to try the crime of Genocide under Article 2 of the Statute. Article 2 of the Tribunal’s Statute is a reproduction of Article II and III of the Convention on the Punishment of the Crime of Genocide, which was adopted on 9 December 1948.1229 The crime of genocide requires a finding of both mens rea and actus reus. The mens rea for genocide comprises the specific intent or dolus specialis described in the general clause of Article 2(2) of the Statute--i.e. the commission of a genocidal act ’with intent to destroy, in whole or in part, a national ethnical racial or religious group ’. And the actus reus consists of any of the five acts enumerated in Article 2(2) of the Statute, as shown above. o Proof of Specific Intent 623.In determining the specific intent of the crime of genocide it is instructive to consider the following pronouncement of Trial Chamber I in the Akayesu Case: "intent is a mental factor which is difficult, even impossible, to determine. This is the reason why, in the absence of a confession from the accused, his intent can be inferred from a certain number of presumptions of fact. The Chamber considers that it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against the

same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, 1229 The Draft Convention was approved by the General Assembly Plenary Session with 55 votes for, none against and no abstentions. The Convention was immediately signed by twenty States. Rwanda acceded, by legislative decree to the Convention on Genocide on 12 February 1975; see also: Jelisic, Judgment (TC), para. 60; Akayesu, Judgment (TC), para. 496. - 172-

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The Prosecutor v, Jear~. de Dieu Kam u handa 22 Jarmm’y 2004 their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of membership of a particular group, while excluding the members of other groups can enable the Chamber to infer the genocidal intent of a particular act. ,,12a0 624.The Chamber generally approves of this statement adding only that intent to commit a crime, even genocide, may not always be difficult or impossible to discern from the circumstances of the case. 625.In Kayishema and Ruzindana, 1231 Trial Chamber II also expressed the opinion that it may be difficult to find explicit manifestations of intent by perpetrators. Under such circumstances, the Chamber held, the perpetrator’s actions, including circumstantial evidence, may provide sufficient evidence of intent. 1232 According to the Chamber, some of the indicia of intent may be "[e]vidence such as the physical targeting of the group or of their property; the use of derogatory language toward members of the targeted group; the weapons employed and the extent of bodily injury; the methodical way of planning, the systematic manner of killing. ,,1233 In the ICTY Jelisi6 Judgment, the Commission of Experts Report was quoted to this effect: "[i]f essentially the total leadership of a group is targeted, it could also amount to

genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and otherswthe totality per se may, be a ¯ ’ d ’ 1234 Strong indication of genocide regardless of the actual numbers kllle . 626.The Trial Chamber in Bagilishema stated that when demonstrating the "specific intent" of an Accused through his words and deeds, a balance has to be struck between his words and deeds and his actual purposeful conduct, especially when his intention is not clear from what he says or does. 1235 To Destroy 627.An Accused may be liable under Article 2 if he "intends to destroy a [...] group." According to the Report of the International Law Commission, destruction within the meaning of Article 2 is "[t]he material destruction of a group either by physical and biological means and not the destruction 1230 Akayesu, Judgment (TC), para. 523. 1231 Kayishema and Ruzindana, Judgment (TC), para. 93. 1232 The Chamber drew conclusions from a legal text, which cited the Final Report of Commission of Experts to the effect that the specific intent may be inferred from sufficient facts such as the number of group members affected: see Kayishema and Ruzindana, Judgment (TC), para. 93. 1233 Kayishema and Ruzindana, Judgment (TC), para. 93. 1234 Jelisic, Judgment (TC), 14 December 1999, para. 82. 1235 Bagilishema, Judgment (TC), 7 June 2001, para, 63; Kayishema and Ruzindana, Judgment (TC), para. 93. - 173-

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The Prosc, cutor v. Jean de Dieu K.amuhat’lda 22 January 2004 of the national, linguistic, religious, cultural or other identity of a particular ,,1236 group. In Whole or in Part 628.

629. Under Article 2, an accused may be liable if he "intends to destroy in whole or in part a [... ] group." As has been explained in judgments of this Tribunal, in order to establish an intent to destroy "in whole or in part", it is not necessary to show that the perpetrator intended to achieve the complete annihilation of a group from every corner of the globe. It is sufficient to prove that the perpetrator have intended to destroy more than an imperceptible number of the targeted group.1237 In effect, the Chamber endorses the opinion expressed in the Semanza Judgment: the Prosecution must establish, beyond reasonable doubt, the intent of the perpetrator to destroy the target group in whole or in part, there is no numeric threshold of victims necessary to establish genocide. 1238 In the Report of the Sub-Commission on Genocide, the Special Rapporteur stated: "The relative proportionate scale of the actual or attempted destruction of a group, by any act listed in Articles II and III of the Genocide Convention, is strong evidence to prove the necessary intent to destroy a group in whole or in part. ,,1239 o Protected Groups 630.It is required to show under Article 2 that the Accused, in committing genocide intended to destroy "a national, ethnical, racial or religious" group. Trial Chambers of this Tribunal have noted that the concept of a group enjoys no generally or

internationally accepted definition, rather each group must be assessed in the light of a particular political, social, historical and cultural context. 124° Accordingly, ’,[f]or purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept [where] the victim is perceived by the perpetrator of genocide as belonging to a group slated for destruction. ,,1241 A determination of the categorized groups should be 1236 See "ILC Report 1996; Draft Code of Crimes Against the Peace and Security of Mankind", p. 90; Semanza, Judgment (TC), 15 May 2003, para. 315; Kayishema and Ruzindana, Judgment (TC), para. 95. 1237 See "ILC Report 1996; Draft Code of Crimes Against the Peace and Security of Mankind", p. 90; Bagilishema, Judgment (TC), para. 64; Kayishema and Ruzindana, Judgment (TC), para. 96; Akayesu, Judgment (TC), para. 496 - 499; Semanza, Judgment (TC), para. 316. 1238 Semanza, Judgment (TC), para. 316. 1239 Reference is made to this Report in Kayishema and Ruzindana, Judgment (TC), para. 93. 124°Bagilishema, Judgment (TC), para. 65; Musema, Judgment (TC), para. 161. 1241Rutaganda, Judgment (TC), para. 56; Musema, Judgment (TC), para. 161; Semanza, Judgment (TC), para. 317. - 174 -

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The Prosecutor v. Jean de Dieu Kamullanda 22 Jarma"y 2004 made on a case-by-case basis, by reference to both objective and subjective criteria. 1242 o The Acteus Reus 631.The acteus reus for the crime of genocide is provided for under Article 2(2) of the Statute. As the issues arising in the present case are limited, the Chamber shall review only the meaning of the requirements for the crime: (a) "killing members of the group"; and (b) "causing serious bodily mental harm to members of the group ". Killing Members of the Group 632.It is clear from the established jurisprudence of this Tribunal that the Prosecution bears the burden of proof to show that the perpetrator participated in the killing of one or more members of the targeted group and that the perpetrator possessed the intent to destroy the group, as such, in whole or in part. There is no requirement to prove a further element of premeditation in the killing. 1243 633. Causing Serious Bodily or Mental Harm to Members of the Group Regarding the requirement under Article 2(2)(b) that in order to be liable by causing serious bodily or mental harm to members of the group, the International Law Commission has indicated that this covers two types of harm that may be inflicted on an individual, namely bodily harm which involves some type of physical injury and mental harm which involves some type of impairment of

mental faculties. The International Law Commission further observed that 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. 1244 634.Trial Chambers of the Tribunal have held that what is "bodily" or "mental" harm should be determined on a case-by-case basis and have further held that "serious bodily harm" does not necessarily have to be permanent or irremediable, 1245 and that it includes non-mortal acts of 1242 Semanza, Judgment (TC), para. 317. 1243 Semanza, Judgment (TC), para. 319; Bagilishema, Judgment (TC), para. 55, 57 and 58; Musema, Judgment (TC), para. 155; Rutaganda, Judgment (TC), para. 49 and 50; Kayishema and Ruzindana, Judgment (TC), para. 103 Kayishema an d Ruzindana, Judgment (A C), pa ra. 15 1; Akayesu, Judgment (TC), para. 501. 1244 See ILC Report (1996), p. 91. 1245 Semanza, Judgment (TC), para. 320; Akayesu, Judgment (TC), para. 502; Kayishema and Ruzindana, Judgment (TC), para. 108. - 175-

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The Prosecutor v, Jean de Dicu Karnullanda 22 January 2004 sexual violence, rape, mutilations and interrogations combined with beatings and/or threats of death. 1246 The Trial Chamber in Kayishema and Ruzindana considered "serious mental harm" to include more than minor or temporary impairment of mental faculties such as the infliction of strong fear or terror, intimidation or threat. ~247 The state of the law in this regard is aptly captured in the conclusion drawn by the Semanza Trial Chamber: The Chamber adopts the foregoing standards pronounced in Akayesu and Kayishema and Ruzindana as to the determination of serious bodily or mental harm. In addition, the Chamber finds that serious mental harm need not be permanent or irremediable. 124s c. Findings 635.The Chamber has found it to be established for the purposes of this case that at all times relevant to the Indictment the Tutsi, the Hutu and the Twa were identified as ethnic groups in Rwanda. 1249 636.The Chamber will consider successively the following issues: (1) intent destroy in whole or in part the Tutsi ethnical group; (2) the actus reus of genocide; (3) the individual criminal responsibility of the Accused. o Intent to Destroy in Whole or in Part the Tutsi Ethnic Group 637.The Chamber has found that at a meeting occurring sometime between 6 April 1994 and 10 April 1994, at the home of his cousins in

Gikomero commune, the Accused addressed those present, incited them to start killing Tutsi, and distributed grenades, machetes and guns to them to use and to further distribute. He also told the participants that he would return to see if they had started the killings, or so that the killings could start. 125° 638. The Chamber has found that the Accused arrived at the Gikomero Parish Compound in the early afternoon of 12 April 1994 in a white pick-up vehicle and was accompanied by armed people in the back of the pick-up. 639.The Majority of the Chamber has found that the Accused, after a conversing with Pastor Nkuranga, ordered the armed persons whom he brought to the Parish to "work" which, in this context, was understood by 1246 Semanza, Judgment (TC), para. 320; Akayesu, Judgment (TC), para. 502; Kayishema and Ruzindana, Judgment (TC), para. 108. 1247 Kayishema and Ruzindana, Judgment (TC), para. 110; Semanza, Judgment (TC), para. 321. 124s Semanza, Judgment (TC), para. 322. 1249 See above: Part UI, Section I. 1250 See above: Part HI, Section I. - 176-

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640. 641. 642. 643. 644.

645. The Prosecutor v. Jean de Dicu Kamuhanda 22 Jm:mary 2(.)()4 Judgrncn:t arK{ Scntencc some witnesses as an order for the killings of the Tutsi refugees to start. The Majority of the Chamber agrees with the witnesses’ understanding that the Accused gave a verbal order to start the killings. The Chamber has found that a Tutsi preacher named Augustin Bucundura, who accompanied Pastor Nkuranga into the Compound, was shot by an armed person, who had come with the Accused. The shooting occurred shortly after the arrival of the Accused and while the Accused was still present at the Gikomero Parish Compound. The Chamber has found that the Accused was in a position of authority over the armed attackers, insofar as he led them to the Gikomero Parish Compound. The Chamber, however, has not found that the Accused was in a formal superior-subordinate relationship with the attackers of the Gikomero Parish Compound, nor that he maintained effective control over them. The Chamber has found that the attackers involved in the attack used traditional weapons, guns, and grenades, to kill and injure Tutsi refugees. The Chamber has found that the Accused left the Compound in a vehicle sometime after the commencement of the attack of the refugees by armed Interahamwe, soldiers, and policemen. The attackers attacked the refugees throughout the Compound, including in the Church and in the

classrooms. The Chamber has found on the basis of the totality of the evidence that the Accused initiated the attack. The Majority has further found that the Accused used the word "work" and to give an order to the attackers to start the killings. Therefore the evidence adduced by the Prosecution proves that the Accused personally led an attack of individuals, soldiers, Interahamwe, and policemen against Tutsi refugees on 12 April 1994 at the Parish Church and adjoining school in Gikomero, Kigali-Rural prefecture. The Chamber has found that the Accused arrived at the school with a group of individuals, soldiers, policemen and lnterahamwe armed with firearms, grenades and other weapons and that he led them in the Gikomero Parish Compound and gave them the order to attack. The Chamber has found that individuals, soldiers, policemen and lnterahamwe attacked the refugees and that a large number of Tutsis were killed by those attackers at the Gikomero Parish Compound on 12 April 1994. On the basis of the established facts, the Chamber finds that the killings occurring in Gikomero Parish Compound, Gikomerocommune, Kigali- Rural prefecture, were systematically directed against Tutsi civilians. The conduct of the Accused shows clearly that he participated in those killings with the specific intent to destroy the Tutsi ethnic group. - 177-

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The Prosecutor v, Jean de Dieu Kamuhar~da 22 January 2004 0 Killing of Members of the Tutsi Group 646.

647. The Chamber has found that a large number of members of the Tutsi ethnic group were killed by lnterahamwe, soldiers, policemen and individuals from the local population at the Gikomero Parish Compound on 12 April 1994. Accordingly, the Chamber finds that genocidal killings of members of the Tutsi group occurred at the Gikomero Parish Compound, in Gikomero commune, Kigali-Rural prefecture, on 12 April 1994. o Individual Criminal Responsibility of the Accused (Article 6.1 of the Statute) 648. 649.

650. On the basis of its factual findings and legal findings above, the Chamber finds that the Accused participated in the killings in Gikomero Parish Compound in Gikomero commune by ordering lnterahamwe, soldiers, and policemen to kill members of the Tutsi ethnic group, instigating other assailants to kill members of the Tutsi ethnic group and by aiding and abetting in the commission of the crime through the distribution of weapons and by leading the attackers to the Gikomero Parish Compound. Judge Maqutu joins with the Majority to conclude that the Accused participated in the crime by ordering these killings, but his reasoning differs from that of the Majority. This reasoning is explained in his Separate and Concurring Opinion on the Verdict. The Chamber finds that at the time of his participation in these killings, the Accused had the intent to destroy the Tutsi ethnic group in whole or in part. d. Conclusion 651.

652. In conclusion, the Chamber finds beyond a reasonable doubt that the Accused is individually criminally responsible for instigating, ordering, and aiding and abetting the killing of members of the Tutsi ethnic group in Gikomero Parish Compound, Gikomero commune, Kigali-Rural prefecture, pursuant to Article 6(1) of the Statute. Accordingly, in relation to Count 2 of the Indictment, the Chamber finds the Accused GUILTY of GENOCIDE. - 178-

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T}~c Prosecutor w ~!can dc Dicu Kamuhancta 22 Jarmary 2004 3. Complicity in Genocide 653. As an alternative count to Count 2, Count 3 of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 -pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.I6, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed

COMPLICITY IN GENOCIDE, a crime stipulated in Article 2(3)(e) of the Statute of the Tribunal, for which he individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute. 654.The Chamber recalls that Count 3 is an altemative count to Count 2 of the Indictment and that both charges arise from the same factual allegations. Considering that the Chamber has already found the Accused guilty of genocide under Count 2 pursuant to Article 2(3)(a)of the Statute, Chamber will make no finding on the charge of complicity in genocide pursuant to Article 2(3)(e) of the Statute as charged in Count Accordingly, Count 3 is hereby dismissed. - 179-

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Thc Prosecutor v, Jean de Dieu Kamuhanda 22 January 2004 Judgment and Sentence E. Crimes against Humanity 1. General Elements a. Indictment 655.The Accused is charged with the following acts as Crimes against Humanity: murder (Count 4), extermination (Count 5), rape (Count 6) other inhumane acts (Count 7). b. The Statute 656. Pursuant to Article 3 of the Statute: The Intemational Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts. - 180-

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Tl-lc Prosccut or v. ,tcan dc Dieu Kam uhal~da 22 January 2004 c. Jurisprudence Relationship Between the Enumerated Acts and the General Elements 657. 658.

659. The Accused is charged with the acts of murder, extermination, rape, and other inhumane acts as Crimes against Humanity. 1251 The commission of any of these acts by the Accused will constitute a Crime against Humanity, only if the Chamber finds that the offence was committed as part of a widespread or systematic attack on a civilian population on any of the following discriminatory grounds: nationality, political persuasion, ethnicity, race, or religion. In relation to each count for which the Accused is charged with a Crime against Humanity, the Prosecution is required to prove the elements indicated above. An act may form part of a widespread or systematic attack without necessarily sharing all the same features, such as the time and place of commission of the other acts constituting the widespread or systematic attack. o General Elements The Attack 660.The Chamber adopts the accepted definition of "attack" within this Tribunal, as "an unlawful act, event, or series of events of the kind listed in Article 3(a) through (i) of the Statute. ,1252 This definition has remained constant throughout the jurisprudence of the Tribunal.1253 661.Moreover, an attack committed on specific discriminatory grounds need not necessarily require the use of armed force; it could also involve other forms of inhumane treatment of the civilian population.1254 1251 The Count 7

on Persecutions on political, racial and religious grounds as a Crime Against Humanity was withdrawn by the Prosecution in its Closing brief (Corrigendum), 19 June 2003, paras. 138 and 139. 1252 Semanza, Judgment (TC), para. 327. 1253 Musema, Judgment (TC), para. 205; Rutaganda, Judgment (TC), para. 70; Akayesu, Judgment (TC), para. 581. 1254 Semanza, Judgment (TC), para. 327 Musema, Judgment (T C), pa ra.205; Rutaganda, Judgment (T C), para. 70; Akayesu, Judgment (TC), para. 581. - 181 -

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The Prosecutor w ,Joan dc Dicu Karnuhanda 22 Jartuary 2004 J udgmeat and Sc~tcncc The Attack Must be Widespread or Systematic 662. The French and the English language versions of the Statute, equally authentic are not consistent regarding this part of the text. The French language version which uses the conjunction "et" reads in translation, "widespread and systematic ,,,1255 whilst the English language version uses the disjunctive "or" and reads, "widespread or systematic ". The practice of the ICTR and ICTY Tribunals has been to accept the English language ¯ law. 1257 version, 1256 which is in line with customary international 663.Trial Chamber III in Semanza held that: "The Chamber does not see any reason to depart from the uniform practice of the two Tribunals. ,,1258 This Chamber also adopts the standard of the Tribunals and accepts the English language version, "widespread or systematic ". Widespread 664¯The term "widespread", as an element of the attack within the meaning of Article 3 of the Statute, has been given slightly different meanings within the various Trial Chamber Judgments of the Tribunal. However, all can be said to refer to the scale of the attack, and sometimes the multiplicity of victims. 1259 The Chamber, following the definition given in the Niyitegeka 126° and Ntakirutimana 1261 Judgments, adopts the test of

"large scale, involving many victims ". 1255 The relevant provision of the French text in Article 3 of the Statute reads ~ grnrralisre et systrmatique >>. 1256 Semanza, Judgment (TC), para. 328; Ntakirutimana and Ntakirutimana, Judgment (TC), para. 804; Bagilishema, Judgment (TC), para. 77; Musema, Judgment (TC), paras. 202-203; Rutaganda, Judgment (TC), para. 68; Kayishema and Ruzindana, Judgment (TC), para. 123; Akayesu, Judgment (TC), para.

579. The same position has been taken in the ICTY, however it must be emphasized that article 5 of ICTY Statute does not contain the requirement that the crimes must be committed as part of a widespread or systematic attack, which has been constructed in ICTY jurisprudence in line with customary international law. Tadic, Judgment (TC), paras. 646-648. See also Kunarac, Judgment (AC), para. 93; Tadic, Judgment (AC), para. 248; Krnojelac, Judgment (TC), para. 55; Krstic, Judgment (TC), para. 480; Kordic and Cerkez, Judgment (TC), para. 178; Blaskic, Judgment (TC), para. 202; Kupreskic, Judgment (TC), para. 544; Jelisic, Judgment (TC), para. 53. 1257 For a review of the International practice on this issue see: Tadic, Judgment (TC), paras. 646-648. 1258 Semanza, Judgment (TC), para. 328. 1259 Semanza, Judgment (TC), para. 329; Niyitegeka, Judgment (TC), para 439; Ntakirutimana and Ntakirutimana, Judgment (TC), para. 804; Bagilishema, Judgment (TC), para. 33; Musema, Judgment (TC), para. 204, Rutaganda, Judgment (TC), para. 69; Kayishema and Ruzindana, Judgment (TC), para. 123; Akayesu, Judgment (TC), para. 580. 1260 Niyitegeka, Judgment (TC), para 439. 1261 Ntakirutimana and Ntakiutimana, Judgment (TC), para. 804. - 182-

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"Fhc Prosecutor w .lean de Dicu Kamuhanda 22 Jarlut{ry 2004 Judgment and Sc:l~:tencc Systematic 665.There has been some debate in the jurisprudence of this Tribunal about whether or not the term "systematic" necessarily contains a notion of a policy or a plan.1262 The Chamber agrees with the reasoning followed in Semanza and finds that the existence of a plan is not independent legal element of Crimes against Humanity. In Semanza, ICTR Trial Chamber II endorsed the jurisprudence of the Appeals Chamber of the ICTY in Kunarac, that whilst "the existence of a policy or plan may be evidentially relevant, in that it may be useful in establishing that the attack was directed against a civilian population and that it was widespread or systematic, [... ] the existence of such a plan is not a separate legal element of the crime ". 1263 666.The Chamber finds that "systematic ", as an element of the attack within Article 3 of the Statute, describes the organized nature of the attack. Demonstration of a pattern of conduct will also carry evidential value in the Chamber’s final analysis. The Attack Must be Directed against Any Civilian Population 667. Akayesudefined the civilian population as: [...] people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons hors de combat by sickness, wounds, detention or

any other cause. Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character. 1264 668.This definition has been consistently followed in the jurisprudence of the Tribunal.1265 Bagilishema added: It also follows that, as argued in Blaskik, "the specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian".1266 669.It was also noted in Bagilishema that the term "population" does not require that the Crimes against Humanity be directed against the entire 1262 Semanza, Judgment, (TC), para. 329; Bagilishema, Judgment (TC), para. 77; Kayishema and Ruzindana, Judgment (TC), para. 123-124. 1263 Semanza, Judgment (TC), para. 329; referring to Kunarac, Judgment (AC), para. 98. 1264 Akayesu, Judgment (TC), para. 582. 1265 Rutaganda, Judgment (TC), para. 72; Musema, Judgment (TC), para. 207; Semanza, Judgment (TC), para. 330. 1266 Bagilishema, Judgment (TC), para. 79, referring to Blaskic, Judgment (TC), para. 214. - 183-

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The Prosecutor v. Jean de Dicu Kamuhar~da 22 January 2004 population of a geographic territory or area. 1267 Semanza further clarified that: The victim(s) of the enumerated act need not necessarily share geographic or other defining features with the civilian population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enumerated act forms part of the attack. 1268 670. The Chamber endorses this jurisprudence. The Attack Must be Committed on Discriminatory Grounds 671.Article 3 of the Statute provides that the attack against the civilian population be committed on "national, political, ethnical, racial or religious grounds ". This provision is jurisdictional in nature, limiting the jurisdiction of the Tribunal to a narrow category of Crimes, and not intended to alter the definition of Crimes against Humanity in international law.

672. The Akayesu Appeals Chamber clarified the position: In the opinion of the Appeals Chamber, except in the case of persecution, a discriminatory intent is not required by international humanitarian law as a legal ingredient for all Crimes against Humanity. To that extent, the Appeals Chamber endorses the general conclusion and review contained in Tadk, as discussed above. However, though such is not a requirement for the crime per se, all Crimes against Humanity, may, in actuality, be committed in the context of a discriminatory attack against a civilian population. As held in Tad& "[i]t is true that in most cases, Crimes against Humanity are waged against civilian populations which have been specifically targeted for national, political, ethnic, racial or religious reasons". It is within this context, and in light of the nature of the events in Rwanda (where a civilian population was actually the target of a discriminatory attack), that the Security Council decided to limit the jurisdiction of the Tribunal over Crimes against Humanity solely to cases where they were committed on discriminatory grounds. This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible Crimes against Humanity. The Appeals Chamber has found that in doing so, the Security Council did not depart from international humanitarian law nor did it change the legal ingredients required under international 1267 Bagilishema, Judgment (TC), para. 80, following Tadic, Judgment (TC), para. 644. 1268 Semanza, Judgment (TC), para. 330. - 184-

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673. 674. humanitarian law with respect to Crimes against Humanity. It limited at the very most the jurisdiction of the Tribunal to a sub- group of such crimes, which in actuality may be committed in a particular situation. (...) In the case at bench, the Tribunal was conferred jurisdiction over Crimes against Humanity (as they are known in customary intemational law), but solely "when committed as part of a widespread or systematic attack against any civilian population" on certain discriminatory grounds; the crime in question is the one that falls within such a scope. Indeed, this narrows the scope of the jurisdiction, which introduces no additional element in the legal ingredients of the crime as these are known in customary international law. 1269 In the present case, we follow this jurisprudence of the Appeals Chamber. However, such acts committed against persons outside the discriminatory categories need not necessarily fall outside the jurisdiction of the Tribunal, if the perpetrator’s intention in committing these acts is to support or further the attack on the group discriminated against on one of the enumerated grounds. 1270 The Chamber notes that a specific discriminatory intent is required for the charge of persecution as Crime against Humanity. However, since the Prosecution informed the Chamber during its closing arguments that it no longer wished to

pursue this charge of persecution, the Chamber does not find it necessary to consider the legal elements of this crime. 1271 The Mental Element for Crimes against Humanity 675.A clear statement of the mental element of Crimes against Humanity is to be found in the Semanza Judgment: The accused must have acted with knowledge of the broader context of the attack and knowledge that his act formed part of the attack on the civilian population. 1272 676. This Chamber fully endorses this position. 1269 Akayesu, Judgment (AC), para. 464-465. 1270 Semanza, Judgment (TC), para. 331; Musema, Judgment (TC), para. 209; Rutaganda, Judgment (TC), para. 74. 1271 See below: Part IV, Section D, Sub-Section 5 1272 Semanza, Judgment (TC), para. 332; Ntakirutimana and Ntakirutimana, Judgment (TC), para. 803; Bagilishema, Judgment (TC), para. 94; Musema, Judgment (TC), para. 206; Kayishema and Ruzindana, Judgment (TC), para. 134. - 185-

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Thc Prosecutor v, Jean de Dieu Kar~l.lharlda 22 Jarmary 2004 d. Findings 677. 678. 679. 680. 681. 682.

683. The Chamber recalls that the Accused admitted that between 1 January 1994 and 17 July 1994 there were throughout Rwanda widespread or systematic attacks against a civilian population with the specific objective of extermination of the Tutsi. 1273 The Chamber has accepted that by 12 April 1994, several thousand men, women and children, mainly of Tutsi origin, along with their cattle, had taken refuge at the Parish. The Chamber has found that a large number of Tutsi were killed on 12 April 1994 at the Gikomero Parish Compound, Gikomero commune. The Chamber has also found that a large number of Tutsi were killed on or about the 13 April 1994 in Gishaka, Gikomero commune. The evidence of both Parties shows that these Tutsi victims had taken refuge in Gikomero Parish Compound and Gishaka fleeing prior attacks against them that occurred in other areas of Kigali-Rural, such as Rubungo. Thus, the Chamber finds that killings of members of the Tutsi ethnic group occurred on a mass scale in Gikomero commune during April 1994. The targets were whole populations of Tutsi ethnicity, attacked at places such as where they took shelter and refuge. The Chamber further finds that this constitutes a widespread attack upon a civilian Tutsi ethnic group. The Chamber finds that the attack of Gikomero Parish Compound on 12 April 1994 was part of a widespread attack against the Tutsi civilian population in Rwanda and particularly in Kigali-Rural.

2. Crimes against Humanity - Murder a. Indictment 684. Count 4 of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda 1273 Defence Response to Prosecutor’s Request to Admit Facts, filed on 24 April 2001, Fact number: 89 - 186-

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The Prosecutor v. Jean de Dicu Kamuhanda 22 January 20()4 I 10 -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for the murder of persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME

AGAINST HUMANITY, a crime stipulated in Article 3(a) of the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. b. Jurisprudence 685.For the reasons set out in the next section on Legal Findings relating to murder, in the Legal Findings section on extermination as a Crime against Humanity, and in the Chamber’s findings on the law relating to cumulative conviction on the same facts for both murder and extermination as Crimes against Humanity, the Chamber does not here find it necessary to set out the law relating to murder as a Crime against Humanity. c. Findings 686.

687. The Chamber notes that apart from the question of scale, the essence of the crimes of murder as a Crime against Humanity and extermination as a Crime against Humanity is the same. The Chamber finds that there was insufficient distinction drawn in the Indictment between the general allegations of murder as a Crime against Humanity and extermination as a Crime against Humanity. The Chamber also notes that the Indictment does not specify the identities of victims for whom the Accused is charged with murder. After consideration of the evidence in this case, the Chamber finds it appropriate to consider the evidence relating to the killing of specific individuals as examples of targeting populations or groups of people for purposes of extermination, rather than murder specifically. This position accords with the Chamber’s finding on the law relating to cumulative convictions on the same facts for murder and extermination. - 187-

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The Prosecutor v. Jean de Dieu Kamuhanda 22 January 2004 d. Conclusion 688.Accordingly, the Chamber will make no finding in relation to Count 4 of the Indictment (MURDER AS A CRIME AGAINST HUMANITY). The count is hereby dismissed.

3. Crimes against Humanity - Extermination a. Indictment 689.Count 5 on Crimes against Humanity - extermination of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 -pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for the extermination of persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a

CRIME AGAINST HUMANITY, a crime stipulated in Article 3(b) of the Statute of Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. 690.For the reasons indicated in Part III, Section I of this Judgment, the Chamber has made these factual findings based only on the relevant paragraphs of the Indictment referred to in Count 5. - 188-

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b. Jurisprudence 691. It is well established in ICTR case law that: Extermination is a crime, which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction, which is not required for murder. 1274 692.Thus, the killings must have been committed on a large scale for the Chamber to find the Accused guilty of extermination. There is no conclusive authority on how many murders constitute extermination. The first judgments concerning extermination as a Crime against Humanity considered that "large scale" does not suggest a numeric minimum. It must be determined on a case-by-case basis, using a common-sense approach..1275 Accordingly, Trial Chamber I in Bagilishema held that: A perpetrator may nonetheless be guilty of extermination if he kills, or creates conditions of life that kill, a single person, providing that the perpetrator is aware his or her acts or omissions form part of a mass killing event, namely mass killings that are proximate in time and place and thereby are best understood as a single or sustained attack".1276 693.In contrast, more recent judgments have held that "responsibility for a single or a limited number of killings is insufficient." 1277 This most recent approach appears to be more in conformity with established jurisprudence that an element of mass destruction is

required for extermination. 694.The Chamber is satisfied that a single killing or a small number of killings do not constitute extermination. In order to give practical meaning to the charge of extermination, as distinct from murder, there must in fact be a large number of killings, and the attack must be directed against a group, such as a neighbourhood, as opposed to any specific individuals within it. However, the Chamber may consider evidence under this charge relating to the murder of specific individuals as an illustration of the extermination of the targeted group. 695.In Bagilishema and Kayishema and Ruzindana it was held that extermination is not limited to intentional acts or omissions but also covers 1274 Akayesu, Judgment (TC), para.

591. This position has been endorsed in all the Judgments following Akayesu: Kayishema and Ruzindana, Judgment (TC), para. 142; Rutaganda, Judgment (TC), paras. 80-82; Musema, Judgment (TC), para. 217; Bagilishema, Judgment (TC), para. 86; Ntakirutimana and Ntakiritimana, Judgment (TC), para. 813; Niyitegeka, Judgment (TC), para. 450; Semanza, Judgment (TC), para. 340. 1275 Bagilishema, Judgment (TC), para. 87; Kayishema and Ruzindana, Judgment (TC), para. 142. 1276 Bagilishema, Judgment (TC), para. 88; Kayishema and Ruzindana, Judgment (TC), para. 147; Kristic, Judgment (TC), para. 490; Recently an ICTY Trial Chamber has adopted the same position, Stakic, Judgment (TC), para. 640. 1277 Semanza, Judgment (TC), para. 340; Ntakirutimana and Ntakiritimana, Judgment (TC), paras. 813-814; Vasilijevic, Judgment (TC), para. 227 which review all the jurisprudence on the matter. - 189-

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Thc Prosecutor v, Jean de Dieu Kamuhanda 22 January 2004 reckless or grossly negligent conduct of the accused. 127s The Chamber notes that more recent judgments have taken a slightly different approach, with Semanza holding that: [...] in the absence of express authority in the Statute or in customary international law, international criminal liability should be ascribed only on the basis of intentional conduct. 1279 696.We do not interpret Bagilishema and Kayishema and Ruzindana to suggest that a person may be found guilty of a Crime against Humanity if he or she did not possess the requisite mens rea for such a crime, but rather to suggest that reckless or grossly negligent conduct are indicative of the offender’s mens rea. Understood in that way, the Semanza position is not at odds with the Bagilishema and Kayishema and Ruzindana judgments. c. Findings 697. 698.

699. TheChamber recalls its findings under the Count of Genocide that Tutsis were killed at Gikomero Parish Compound and that the Accused participated in this killing by ordering, instigating and aiding and abetting the commission of the crime. The material element of extermination is the large-scale killing of a substantial number of civilians. 128° Although the evidence does not indicate the specific number of victims to enable a specific finding of the number of deaths at the Gikomero Parish Compound, the evidence clearly shows that large numbers of Tutsi civilians were killed there during the attack, in which the Accused participated. On the basis of reliable and credible evidence, the Chamber finds that the scale of killings at the Gikomero Parish Compound is sufficient to be termed extermination, and that the principal perpetrators of the killings committed extermination as a Crime against Humanity. The Chamber finds that the Accused participated in the attack at Gikomero Parish Compound, and that the Accused was fully aware that his actions formed part of a widespread attack. On the basis of the evidence and in view of the scale of this event, the Chamber is convinced that the Accused ordered, instigated, and aided and abetted the principal perpetrators of the attack at the Gikomero Parish Compound against the Tutsi civilians, who had gathered there in large numbers to seek shelter and refuge. 1278 Bagilishema, Judgment (TC), para. 89; Kayishema and Runzidana, Judgment (TC), para. 144. 1279 Semanza, Judgment (TC), para. 341. ~280 Semanza, Judgment (TC), para. 463. - 190-

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Thc Prosecutor v, Jean de Dicu K.amuhanda 22 Jarlual’y 2.004 d. Conclusion 700.In conclusion, the Chamber finds beyond a reasonable doubt that the Accused is individually criminally responsible, pursuant to Article 6(1) the Statute, for instigating, ordering, and aiding and abetting the extermination of members of the Tutsi ethnic group at the Gikomero Parish Compound in Gikomero Commune.

701. Judge Maqutu joins with the Majority to conclude that the Accused participated in the crime by ordering these killings, but his reasoning differs from that of the Majority. This reasoning is explained in his Separate and Concurring Opinion on Verdict. 702.Accordingly, in relation to Count 5 of the Indictment, the Chamber finds the Accused GUILTY of EXTERMINATION AS A CRIME AGAINST HUMANITY.

4. Crimes against Humanity - Rape a. Indictment 703. Count 6 on Crimes against Humanity- rape of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 -pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for rape as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(g) of Statute of the - 191 -

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["hc Prosecutor v. 3oan dc Dieu K.arnuhanda ~’~ Jarmarv .J.04 .tudmncr~t arid Scm:cncc Tribunal, for which they is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. 704.For the reasons indicated in Part III, Section I of this Judgment, the Chamber has made these factual findings based only on the relevant paragraphs of the Indictment referred to in Count 6. b. Jurisprudence 705.In Akayesu the Trial Chamber considered that the traditional mechanical definition of rape did not adequately capture its true nature 1281 and instead offered a definition of rape as: A physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive. 1282 706.This conceptual definition of rape was approved in Musema, 1283 where the Chamber highlighted the difference between "a physical invasion of a sexual nature ", and "any act of a sexual nature" as being the difference between rape and sexual assault. 1284 Meanwhile, a Trial Chamber of the ICTY handed down the Furund~ija Judgment, in which that Chamber preferred the following more detailed definition related to objects and body parts: Most legal systems in the common and civil law

world consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus". 1285 707.This definition 1286 substantially modified and completed by Trial Chamber II in the Kunarac Judgment has been endorsed by the Appeals Chamber. It reads as follow: The actus reus of the crime of rape in intemational law is constituted by: the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the 1281 Akayesu, Judgment (TC), para. 597. 1282 Akayesu, Judgment (TC), para. 598. 1283 Musema, Judgment (TC), para. 226; See also Celebici, Judgment (TC), para. 479; Niyitegeka, Judgment (TC), para. 456. 1284 Musema, Judgment (TC), para. 227. 1285 Furundzija, Judgment (TC), para. 181. 1286 Furundzija, Judgment (TC), para. 185. - 192-

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708. 709.

710. Thc Prosecutor v. Jean de DJcu Kamuhanda 22 January 2004 Judgmen:t and Scntencc perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; where such sexual penetration occurs without the consent of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances. The mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim, n87 Given the evolution of the law in this area, endorsed in the Furund~ija/Kunarac approach by the ICTY Appeals Chamber, the Chamber finds the latter approach of persuasive authority and hereby adopts the definition as given in Kunarae and quoted above. The mental element of the offence of rape as a Crime against Humanity is the intention to effect the above-described sexual penetration, with the knowledge that the act was perpetrated without the consent of the victim. Other acts of sexual violence which may fall outside of this specific definition may of course be prosecuted, and would be considered by the Chamber under other categories of crimes for which the Tribunal has jurisdiction, such as other inhumane acts. c. Findings 711.The Chamber is not satisfied with the evidence adduced in support of

the allegation that the Accused was involved in any rapes that occurred during or in relation to the attack at the Gikomero Parish Compound. 712.Therefore the Chamber does not find the Accused criminally responsible for rape, as alleged in Count 6. d. Conclusion 713.Thus, in relation to Count 6 of the Indictment, the Chamber finds the Accused NOT GUILTY of RAPE AS A CRIME AGAINST HUMANITY. 1287 Kunarac, Judgment (AC), para. 128; see also: Semanza, Judgment (TC), paras. 345-346. - 193-

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The Prosecutor v, Jean de Dieu Kamuhanda 22 January 2004 Judgrnen:t and Serilct~cc 5. Crimes against Humanity - Other Inhumane Acts a. Indictment 714. Count 7 of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 - pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34,5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90 is responsible for inhumane acts against persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(i) of Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute.

715. For the reasons indicated in Part III, Section I of this Judgment, the Chamber has made these factual findings based only on the relevant paragraphs of the Indictment referred to in Count 7. b. Jurisprudence 716. In Kayishema and Ruzindana the Trial Chamber noted that since the Nuremberg Charter, the category "other inhumane acts" has been - 194 -

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717.

718. The Prosecutor v. Jean de Dicu Kamuharida 22 Jarmary 2004 maintained as a useful category for acts not specifically stated but which are of comparable gravity. 1288 Crimes which may fall under this category would only be acts or omissions similar in gravity to the conducts enumerated in Article 3 of the Statute, and would be decided by the Tribunal on a case-by-case basis. 1289 In proving its case, the Prosecution must prove a nexus between the inhumane act and the great suffering or serious injury to the mental or physical health of the victim. 129° Inhumane Acts are only those which deliberately cause suffering. Therefore, where third parties observe acts committed against others, in circumstances in which the Accused may not have had an intention to injure those third parties by their observation of these acts, the Accused may still be held accountable for their mental suffering. 1291 In Kayishema and Ruzindana the position was summarised that: [...] for an accused to be has found guilty of Crimes against Humanity for other inhumane acts, he must commit an act of similar gravity and seriousness to the other enumerated crimes, with the intention to cause the other inhumane act, and with knowledge that the act is perpetrated within the overall context of the attack.~292In the Niyitegeka Judgment, Trial Chamber I has found that by perpetrating gross acts of

sexual violence upon a dead woman’s body, the Accused caused mental suffering to civilians, his actions constituted a serious attack on the human dignity of the Tutsi community as a whole, t293 and that these acts were part of a widespread and systematic attack against the civilian Tutsi population on ethnic grounds. c. Findings 719.There was not enough and specific evidence to establish beyond reasonable that the Accused either planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of inhumane acts. 1288 Kayishema and Ruzindana, Judgment (TC), para. 149. 1289 Kayishema and Ruzindana, Judgment (TC), para. 151. 1290 Kayishema and Ruzindana, Judgment (TC), para. 151. 1291 Kayishema and Ruzindana, Judgment (TC), paras. 152-153. 1292 Kayishema and Ruzindana, Judgment (TC), para. 154. 1293 Niyitegeka, Judgment (TC), paras. 465-467. - 195-

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Thc Prosecutor vL Jea, de Dieu K.amuhanda 22 January 2004 d. Conclusion 720.Thus, in relation to Count 7 of the Indictment, the Chamber finds the Accused NOT GUILTY of OTHER INHUMANE ACTS AS A CRIME AGAINST HUMANITY. F. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II 1. General Elements a. The Statute Article 4: Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to: (a) Violence to life, health and physical or mental well-being persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; (b)Collective punishments; (c)Taking of hostages; (d)Acts of terrorism; (e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault; (f) Pillage; (g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples; (h) Threats to commit any of the foregoing acts. - 196-

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Tt~c Prosecutor v. Jean de Dicu KamLIhanda 22 JarluaLv 2004 Judgment and Scntencc / o0 b. Jurisprudence o Nature of the Conflict 721. 722. 723.

724. The provisions of Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the Statute, are expressly applicable to alleged offences committed within the context of conflicts of a non-intemational character. Accordingly, the Chamber must address the question whether the 1994 conflict in Rwanda falls within the ambit of these provisions. Common Article 3 prescribes: "In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum ... [certain] provisions..." Therefore, Common Article 3 is applicable to any non-international armed conflict within the territory of a state party. In general, non-intemational armed conflicts referred to in Common Article 3 are conflicts with armed forces on either side engaged in hostilities that are in many respects similar to an intemational war, but take place within the confines of a single country. ,1294 Additional Protocol II develops and supplements Common Article 3. Specifically, Additional Protocol II applies to conflicts taking place "in the territory of a High contracting party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out

sustained and concerted military operations and to implement this Protocol ". 1295 Expanding on Common Article 3, Article 1 of Additional Protocol II sets out the material requirements for applicability: (i) the occurrence of an armed conflict in the territory of a High Contracting party, namely, Rwanda, between its armed forces and dissident armed forces or other armed groups; (/0 the responsible command of the dissident armed forces or other organized armed groups; 1294 See Intemational Committee of the Red Cross, The Geneva Conventions of 12 August 1949 Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in time of War p. 36 (1958) [Geneva Conventions Commentary"] 1295 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed conflicts (Protocol II, art. 1 ["Additional Protocol II"] - 197-

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Thc Prosecutor v, Jear~ de Dicu Karnuhanda 22 January 2004 Judgment and Scme~)cc (iii) the exercise of control by dissident armed forces or other organized armed groups, enabling them to carry out sustained and concerted military operations; (/v) the implementation of Additional Protocol II by the dissident armed forces or other organized armed ,1296 groups. o Rationae Personae: Perpetrators 725. 726.

727. Pursuant to Article 4 of the ICTR Statute, the Tribunal "shall have the power to prosecute persons committing or ordering to be committed serious violations of [Common Article 3 and Additional Protocol II] ". The category of persons who are accountable under this article for war crimes on civilians is not limited. As noted by the Appeals Chamber of this Tribunal, "Article 4 makes no mention of a possible delimitation of classes of persons likely to be prosecuted under this provision..1297 Similarly, Common Article 3 and Additional Protocol II do not specify classes of potential perpetrators but rather indicate who are bound by the obligations imposed by their provisions to protect victims and potential victims of armed conflicts. Under Common Article 3, "each Party to the conflict m298 is so bound. The ICRC Commentary on Additional Protocol II simply indicates that criminal responsibility extends to "those who must, within the meaning of the Protocol, conform to certain rules of conduct with respect to the adversary and the civilian population. ,,1299 However, further clarification of the class of potential perpetrators is unnecessary in view of the principal purpose of these instruments, which is to protect victims of armed conflicts. 13°° Indeed it is well established from the jurisprudence of the International Tribunals that the protections of Common Article 3, as

incorporated in Article 4 of the Statute, imply effective punishment of perpetrators, whoever they may be.13°1 In this regard, the Appeals Chamber in its judgment in the Akayesu case held that: 1296 Additional Protocol II, Art. 1. 1297 Akayesu, Judgment (TC), para. 435. 1298 See Common Article 3. 1299 Additional Protocol II Commentary p. 1359. 13oo Akayesu, Judgment (AC), para. 442. 13Ol Akayesu, Judgment (AC), para. 443; Semanza, Judgment (TC), para. 360; Rutaganda, Judgment (TC), paras. 96-98; Akayesu, Judgment (TC), paras. 630-634. - 198-

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728.

729. The Prosecutor v, Jean de Dieu Kamuhanda 22 January 2004 Judgment and Sente~ce The minimum protection provided for victims under common Article 3 implies necessarily effective punishment on persons who violate it. Now, such punishment must be applicable to everyone without discrimination, as required by the principles governing individual criminal responsibility as laid down by the Nuremberg Tribunal in particular. The Appeals Chamber is therefore of the opinion that intemational humanitarian law would be lessened and called into question if it were to be admitted that certain persons be exonerated from individual criminal responsibility for a violation of common Article 3 under the pretext that they did not belong to a specific category.~3°2 The Akayesu Appeals Chamber also held that there need be no requisite link between the perpetrator and one of the parties to the conflict. Specifically, the Appeals Chamber stated that "such a special relationship is not a condition precedent to the3a0~plication of Common Article 3 and, hence, of Article 4 of the Statute. Accordingly, criminal responsibility for the commission of any act covered by Article 4 of the Statute is not conditional on any defined classification of the alleged perpetrator. o Rationae Personae: Victims 730.The protections of both Common Article 3 and Additional Protocol II, as incorporated in Article 4 of the

Statute, extend to persons taking no active part in the hostilities. 13°4 In view of the jurisprudence of the International Tribunals, an alleged victim, under Article 4 of the Statute, is "any individual not taking part in the hostilities. ,,1305 731. The criterion applied in the Tadid Judgment to determine the applicability of Article 4 to alleged victims of armed conflicts is: "whether, at the time of the alleged offence, the alleged victim of the proscribed acts was directly taking part in hostilities ,,.1306 If the answer to this question is the 1302 Akayesu, Judgment (AC), para. 443. 1303 Akayesu, Judgment (AC), para. 444. 1304 Delalic et al. (Celebici Case), Judgment (AC), para. 420; Semanza, Judgment (TC), para. 365; Baglishema, Judgment (TC), paras. 103-I04; Musema, Judgment (TC), para. 280; Rutaganda, Judgment (TC), para. 101; Kayishema and Ruzindana, Judgment (TC), para. 179; Akayesu, Judgment (TC), para.

629. The Akayesu Trial Chamber stated, in essence, the position taken by the International Tribunals in regard to persons protected by Common Article 3 and Additional Protocol II: "[I]nasmuch as Common Article 3 is for the protection of ’persons taking no active part in the hostilities’.., and Article 4 of Additional Protocol II is for the protection of ’all persons who do not take a direct part of who have ceased to take part in hostilities’ .. [t]hese phrases are so similar that, for the Chamber’s purposes, they may be treated as synonymous." 13°SDelalic et al. (Celebici Case), Judgment (AC), para. 420 (emphasis in original). 1306 Zadic, Judgment (TC), para. 615; Semanza, Judgment (TC), para. 366. - 199-

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Tbc Prosecutor v, Jean de Dicu KamLihanda 22 January 2004 negative, then the alleged victim was a person protected under Common Article 3 and Additional Protocol II. o Rationae Loci 732.The protection afforded to victims of armed conflicts under Common Article 3 and Additional Protocol II, as incorporated by Article 4 of the Statute, extends throughout the territory of the state where the hostilities are occurring, without limitation to the "war front" or to the "narrow geographical context of the actual theatre of combat operations, ,,1307 once the objective, material conditions for applicability of these provisions have been satisfied. o Nexus Between the Alleged Violation and the Armed Conflict 733.For a criminal offence to fall within the ambit of Article 4 of the Statute, the Chamber must be satisfied that a nexus existed between the alleged breach of Common Article 3 or of Additional Protocol II and the underlying armed conflict.13°8 734.The objective of this requirement of a nexus between the crimes committed and the armed conflict can best be appreciated in light of the underlying humanitarian purpose of these instruments to protect victims of internal conflicts, not victims of offences unrelated to the hostilities, however reprehensible such offences may be. 1309 735.The existence of the requisite nexus at the time of the alleged crime is an issue for determination on

the evidence presented. It is the view of both the ICTR and the ICTY Appeals Chambers that the nexus requirement is met if the alleged offence is "closely related to the armed conflict". Indeed the Appeals Chambers have 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 1307 Rutaganda, Judgment (TC), paras. 102-103; Akayesu, Judgment (TC), paras. 635-636. 1308 Rutaganda, Judgment (AC), para. 569-570; Semanza, Judgment (TC), para. 368; Baglishema, Judgment (TC), para. 105; Musema, Judgment (TC), paras. 283-284; Rutaganda, Judgment (TC), paras. 102 and 103; Kayishema and Ruzindana, Judgment (TC), paras. 182 and 183; Akayesu, Judgment (TC), paras. 635 and 636. 1309 Semanza, Judgement (TC), para. 368; Kayishema and Ruzindana, Judgment (TC), para. 189; Akayesu, Judgment (TC), para. 631. - 200 -

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736. The Prosecutor v. Jean dc Dicu Kamuhanda 22 January 2.004 would be sufficient to conclude that his acts were closely related to the armed conflict.131° The determination of whether or not there existed a close relationship between a particular offence and an armed conflict will usually require consideration of several factors, including: whether the perpetrator is a commander or combatant; whether the victim is a non-combatant; whether the victim is a member of the opposing party; whether the crime is part of a military campaign; and whether the crime was committed within the context of the perpetrator’s official duties.1311 These criteria are not exhaustive of the factors indicating the existence of a close relationship between a particular offence and an armed conflict. o Serious Violations Pursuant to Article 4 of the Statute, the Tribunal has been granted jurisdiction to prosecute serious violations of Common Article 3 and of Additional Protocol. A "serious violation" within the context of Article 4, in the opinion of this Tribunal, constitutes a breach of a rule protecting important humanitarian values with grave consequences for the victim. 1312 On this basis, the Tribunal has expressed the view, with which this Chamber concurs, that the acts articulated in Article 4 of the Statute, constituting serious violations of Common Article 3

and Additional Protocol II, entail individual criminal responsibility, m3 c. Findings 737.For the Accused to incur criminal responsibility under Article 4 of the Statute, it is incumbent on the Prosecution to prove beyond reasonable doubt that the Accused committed the alleged underlying crime or crimes against persons not taking an active part in the hostilities; that the alleged act or acts were committed in the context of an internal armed conflict; and that there existed a nexus between the alleged acts and the armed conflict. 1310 Rutaganda, Judgment (AC), para. 569, citing Kunarac, Judgment (AC), para. 58. 1311 Kunarac, Judgment (AC), para. 59. 1312 Semanza, Judgment (TC), para. 370; Bagilishema, Judgment (TC), para. 102; Musema, Judgment (TC), para. 286; Rutaganda (TC), para.

106. This position is based on a decision of the

ICTY Appeals Chamber where the Tribunal stated that" the violation must be serious, that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim." 1313Musema, Judgment (TC), para. 288; Rutaganda, Judgment (TC), para. 106; Kayishema and Ruzindana, Judgment (TC), para. 184; Akayesu, Judgment (TC), para. 616. - 201 -

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738. 739. 740. 741.

742. The Prosecutor v. Jean de Dieu Karnuhanda 22 January 2004 It has been established, for the purposes of this case, that a state of non- international armed conflict existed in Rwanda as of 6 April 1994 to mid- July 1994 when the Accused left the country. 1314 For the Accused to incur criminal responsibility under Article 4 of the Statute, it is incumbent on the Prosecution to prove beyond reasonable doubt that he was directly engaged in the hostilities, acting for one of the conflicting parties in the execution of their respective conflict objectives. Accordingly, it is the Prosecution’s responsibility to prove that the Accused was either a member of the armed forces under the military command of the belligerent parties or that, by virtue of his authority as a public civilian official representing the Government, he was legitimately mandated or expected to support the war efforts. This Chamber has found on the basis of evidence presented during trial that, at the time of the events alleged in the Indictment, the Accused distributed weapons to members of the Interahamwe and others engaged in the attacks in Gikomero and that the Accused himself participated in the crimes against the Tutsi population at Gikomero on 12 April 1994. The Prosecution has relied in part on the same facts which support the Chamber’s findings regarding genocide and extermination as a

Crime against Humanity to attempt to demonstrate the existence of a nexus between the alleged actions of the Accused and the conflict in Rwanda in 1994. The Prosecution has alleged that the Accused embodied national governmental authority and that he held an executive civilian position within the administration of the country, including the communes of Gikomero and Gishaka. However, the Prosecution has not shown sufficiently how and in what capacity the Accused supported the Government effort against the RPF. No convincing evidence has been presented to demonstrate that the Accused, either in a private capacity or in his role as a civil servant, worked with the military, actively supported the war effort or that the Accused’s actions were closely related to the hostilities or committed in conjunction with the armed conflict. In the Chamber’s view, the evidence in the present case can be distinguished from the facts of the recent Appeals Chamber judgment in Prosecutor v. Rutaganda, where the Accused was found, pursuant to Articles 6(1) and 4(a) of the Statute, to be criminally responsible crimes of murder as violations of common Article 3 of the Geneva Conventions. In Rutaganda, evidence established beyond a reasonable doubt that a nexus existed between the armed conflict existing in Rwanda and the crimes charged against the Accused. The basis of this evidence, in significant part, was established on the testimony of two expert witnesses, which demonstrated, inter alia, that soldiers of the RAF provided military 1314 see above, Part III, Section F - 202 -

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743.

744. Fhc Prosecutor v. ,!ean. de Dieu Kamuhanda 22 January 2004 training to the members of the lnterahamwe za MRND, which was the youth wing of the political majority in the government in power in April 1994, and that some of the army leaders most involved in the genocide influenced the activities of the lnterahamwe za MRND.1315 The Rutaganda Appeals Chamber also found, on the basis of facts accepted by the Trial Chamber, that the Accused was second vice-president of the youth wing of the Interahamwe za MRND, and that he exercised de facto authority over the Interahamwe militia. It further found beyond a reasonable doubt, on the basis of evidence presented before the Trial Chamber, that a nexus existed between the armed conflict and an attack at the site of Nyanza, in which both the Accused and RAF troops directed the activities of the Interahamwe and participated in the killing of refugees alongside the Interahamwe. 1316 In the present case, as distinguished from Rutaganda, insufficient evidence has been established to enable a finding that there is a nexus between any crimes committed by the Accused and any conflict--either a conflict generally raging in Rwanda or one specifically affecting the material regions indicated in the Indictment. Accordingly, it is not necessary for the Chamber to discuss the other elements of the following crimes, for purposes of this case.

2. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol IImOutrage on Personal Dignity a. Indictment 745. Count 8 of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below Jean de Dieu Kamuhanda: - pursuant to Article 6(1), according to paragraphs: according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90. - pursuant to Article 6(3), according to paragraphs: 131s Rutaganda, Judgment (AC), para. 562. 1316 Rutaganda, Judgment (AC), para. 579. 5.1, 5.2, - 203 -

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The Prosecutor v. Jear~ de Dieu Kamuhanda 22 January 2004 Judgment and Scl~tc.~ce 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6. 41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for outrages upon personal dignity, in particular humiliating and degrading treatment, rape and indecent assault, as part of an armed internal conflict, and thereby committed SERIOUS VIOLATIONS OF ARTICLE 3 COMMON TO THE

GENEVA CONVENTIONS

AND OF ADDITIONAL

PROTOCOL II, a crime stipulated in Article 4(e) of the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. b. Conclusion 746.In relation to Count 8 of the Indictment, the Chamber finds the Accused NOT GUILTY of Serious Violations Of Article 3 Common To The Geneva Conventions And Of Additional Protocol II--Outrage On Personal Dignity.

3. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol IInKilling and Violence a. Indictment 747. Count 9 of the Indictment charges: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda -pursuant to Article 6(1), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56, 6.61 to 6.68, 6.75, 6.79 to 6.90. - 204 -

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The Prosecutor v, ,lean de Dieu Kamuhanda 22 January 2004 Judgment and Sc~:te.~cc is responsible for killing and causing violence to health and to the physical or mental well-being of civilians as part of an armed internal conflict, and thereby committed

SERIOUS

VIOLATION

OF ARTICLE 3 COMMON

TO THE

GENEVA CONVENTIONS AND ADDITIONAL PROTOCOL II, a crime stipulated in article 4(a) of the Statue of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. b. Conclusion 748. In relation to Count 9 of the Indictment, the Chamber finds the Accused NOT GUILTY of Serious Violations Of Article 3 Common To The Geneva Conventions And Of Additional Protocol II - killing and causing violence to health and to the physical or mental well-being of civilians as part of an armed internal conflict. - 205 -

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Thc Prosecutor v. Joan de Dicu Karnuhanda 2.2 .fanuary 2004 PART V- VERDICT 749.For the reasons set out in this Judgment, having considered all the evidence and arguments, the Trial Chamber finds in respect of the Accused as follows.

750. Unanimously: Count 2 (Genocide): Count 3 (Complicity in Genocide): Count 4 (Murder as a Crime against Humanity): Count 5 (Extermination as a Crime against Humanity): Count 6 (Rape as a Crime against Humanity): Count 7 (Other Inhumane Acts as a Crime against Humanity): Count 8 (Outrage On Personal Dignity as Serious Violations Of Article 3 Common To The Geneva Conventions And Of Additional Protocol II ): Count 9 (Killing and Violence as Serious Violations Of Article 3 Common To The Geneva Conventions And Of Additional Protocol II )

GUILTY

DISMISSED

DISMISSED

GUILTY

NOT GUILTY

NOT GUILTY

NOT GUILTY

NOT GUILTY 751.Judge Maqutu appends his Separate and Concurring Opinion on the Verdict.

752. Done in English and French, the English text being authoritative. W~plrl~ia~inHg. jSudkgUele Wins[dl~/C_~jua~agnezima Maqutu Arlette Ramaroson Judge (Seal of the Tribunal) - 206 -

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Tbc Prosecutor v, Jean de Dicu KamLlh.anda 22 January 2004 Judgment and Sc~lte~ce PART VI - SENTENCE A. General Sentencing Practice 753.In considering the sentence to be imposed on Kamuhanda, the Chamber is mindful that this Tribunal was set up by the Security Council of the United Nations under Chapter VII of the Charter of the United Nations. The Chamber is particularly mindful of Security Council Resolution 955 (1994), which in the preamble stressed in the terms set out below the themes of deterrence, justice, reconciliation, and the restoration and maintenance of peace. °.°] Determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them, Convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law would enable this aim to be achieved and would contribute to the process of national reconciliation and to the restoration and maintenance of peace, Believing that the establishment of an international tribunal for the prosecution of persons responsible for genocide and the other above-mentioned violations of international humanitarian law will contribute to ensuring that such violations are halted and effectively redressed, °.°] 754.In considering the appropriate sentence to be

passed upon Kamuhanda, the Chamber weighs heavily the factors which will contribute towards the realisation of these objectives. In view of the grave nature of the crimes committed in Rwanda in 1994, it is essential that the international community condemn them in a manner that carries a substantial deterrent factor against their reoccurrence anywhere, whether in Rwanda or elsewhere. Reconciliation amongst Rwandans, towards which the processes of the Tribunal should contribute, must also weigh heavily in the Chamber’s mind when passing sentence.

755. In sentencing Kamuhanda, the Chamber will take into account the gravity 1318 of the offences pursuant to Article 231317 of the Statute and Rule 101 of 1317 The text of Article 23 appears as follows: 1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda. - 207 -

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Fbc Prosccuttor v, Jean dc [).ieu Kmmlhar~da 22 January 2004 Judgment and Scm:c~cc the Rules, the individual circumstances of Kamuhanda, aggravating and mitigating circumstances as well as the general sentencing practice of the Tribunal. In terms of Rule 101 of the Rules, the Chamber must take into account the general practice regarding prison sentences in the courts of Rwanda. Should it be appropriate, the Chamber will give credit to Kamuhanda for time served in custody pending trial. B. Mitigating Factors 756.Parties are required in terms of Rule 86(C) to address matters relating sentencing in their closing briefs. The Defence did not do so. However, the Chamber invited Counsel to do so during the oral closing arguments. 1319 The Defence expressed reluctance to address matters relating to sentencing because in its submission Kamuhanda should be acquitted. 132° When pressed on the matter, the Defence submitted that in the event Kamuhanda is found guilty, his sentence should be limited to the time period he has already spent in custody at the behest of the Tribunal. 1321 2. In imposing the sentences, the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person.

3. In addition to imprisonment, the Trial Chambers may order the return of any property and proceeds acquired by criminal conduct, including by means of duress, to their rightful owners. 1318 The text of Rule 101 appears as follows: (A) A person convicted by the Tribunal may be sentenced to imprisonment for a fixed term or the remainder of his life. 1319 T. 28 132o T. 28 132t T. 28 (B) In determining the sentence, the Trial Chamber shall take into account the factors mentioned in Article 23 (2) of the Statute, as well as such factors as: (i) Any aggravating circumstances; (ii) Any mitigating circumstances including the substantial cooperation with the Prosecutor by the convicted person before or after conviction; (iii)The general practice regarding prison sentences in the courts of Rwanda; (iv) the extent to which any penalty imposed by a court of any State on the convicted person for the same act has already been served, as referred to in Article 9 (3) of the Statute. (C) The Trial Chamber shall indicate whether multiple sentences shall be served consecutively or concurrently. (D) Credit shall be given to the convicted person for the period, if any, during which the convicted person was detained in custody pending his surrender to the Tribunal or pending trial or appeal. August 2003, p. 87 August 2003, p. 88 August 2003, pp. 88 and 89 - 208 -

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"[’he Pro.,q.ccutor v, ,tean dc Dicu Karnahanda 22 January 2004 .Judgmcr~v and Sc~tc~cc 757.After considering the evidence, the Chamber notes the fact that prior to his involvement in the genocide, Kamuhanda was widely regarded as a good man, who did a lot to help his commune and his country. 758.However, the Chamber finds by a majority, Judge Maqutu dissenting, that given the gravity of the Crimes for which the Accused has been found guilty, there are insufficient reasons to conclude that there are any mitigating factors in this case. C. Aggravating Factors 759.The Chamber notes that there is no evidence of any previous criminal conduct on the part of Kamuhanda, and the Chamber finds no aggravating circumstances in his conduct prior to 1994. 760.The Chamber notes that according to Article 23(2) of the Statute, the gravity of the crimes committed should be taken into account during sentencing. The Chamber interprets this to mean that the more heinous the crime, the higher the sentence that should be imposed upon its perpetrator. However, in assessing the gravity of the offence, the Chamber ought to go beyond the abstract gravity of the crime to take into account the particular circumstances of the case as well as the form and the degree of the participation of Kamuhanda in the crime. 1322 761.Kamuhanda has been found guilty of Genocide and guilty of Extermination as a

Crime against Humanity. 762.The Prosecution submitted in its closing brief that the fact that Kamuhanda was a top civil servant who subsequently rose to the highest position of Minister in Charge of the Ministry of Higher Education and Scientific Research is a strong aggravating factor that should be considered by the Chamber in its deliberations on sentencing. 1323 It also submitted that, as a top civil servant, Kamuhanda was a prominent figure within Rwandan society generally, and the Gikomero commune particularly. It submits that Kamuhanda was popular and renowned in Gikomero, where he held the position of Chairman of the Electoral College and the Technical Committee. It submits that his high position placed him under a duty to espouse the principles laid down in the Constitution, and uphold a higher than average degree of morality. Instead, according to the Prosecution, he supported the genocidal campaign, actively engaging himself in the killing of Tutsis and inciting others to kill. 1324 1322 Semanza, Judgment (TC), para. 555. 1323 Prosecution Closing Brief, para. 868, p. 177 (English). 1324 Prosecution Closing Brief, para. 869, pp. 177 and 178 (English) - 209 -

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The Prosecutor v. Jean de Dieu Kamuhanda 22 January 2004 763.In determining the extent of the existence of any aggravating factors, the Chamber will consider only those factors on which it has made a positive finding. 1325 The Chamber has considered the submissions of the Parties and the entirety of the evidence in the case, and finds the following aggravating factors when considering the culpability of Kamuhanda for the crimes for which he has been found guilty. 764.The Chamber finds that the high position Kamuhanda held as a civil servant can be considered as an aggravating factor. Kamuhanda was a respected man, influential, and considered to be an intellectual. He was in the position to know and to appreciate the dignity and value of life, and also the value and importance of a peaceful coexistence between communities. He was in the position to promote the value of tolerance. Instead of doing so, he blamed people who were living peacefully for not taking part in the campaign of violence. He instigated and led an attack to kill people who had taken shelter in a place universally recognised to be a sanctuary, the Compound of the Gikomero Parish Church. As a result of this attack many people were massacred. The Chamber considers these to be gravely aggravating factors. D. Sentencing Ranges 765.The Chamber has taken into consideration the sentencing practice in the

ICTR and the ICTY, and notes particularly that the penalty must first and foremost be commensurate to the gravity of the offence. Principal perpetrators convicted of either genocide or extermination as a Crime against Humanity, for both of which Kamuhanda has been found guilty, have been punished with sentences ranging from fifteen years to imprisonment for the remainder of the convicted person’s life. 766.The Chamber has considered the general sentencing practice regarding prison sentences in Rwanda. The Chamber notes that for the most serious crimes, comparable to a conviction by this Tribunal for Genocide or Extermination as a Crime against Humanity, a convict under the Rwandan judicial system would be liable to the death penalty. In regard to lower categories of crimes in Rwanda, a Rwandan court would have the power to impose a life sentence. Thus, the Chamber regards this as one factor supporting the imposition of a heavy penalty upon Kamuhanda. E. Credit for Time Served 767.The Accused was arrested in France pursuant to a warrant of arrest issued by the Tribunal on 26 November 1999, and transferred to the seat of the Tribunal on 7 March 2000. 1325 Delalic et al. (Celebici Case), Judgment (AC), para. 763. - 210 -

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The Prosec~tor v. Jean de Dieu Kamuhanda 22 Jar.mary 2004 JudgmeN:t and Sc~tc.nce 768. Pursuant to Rule 101(D), Kamuhanda is entitled to credit for the period during which he was detained in custody pending surrender and trial.

769. The Chamber finds that Kamuhanda is entitled to credit for time served of four years and fifty eight days, if applicable. - 211 -

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Thc Proscct~tor v, Jearl dc Dicu Kamuhat~da 22 Jarmal T 2004 Judgment and Scnt:c,~cc F. Conclusion 770.Given all of the foregoing, the Chamberl by a majority, Judge Maqutu dissenting, now sentences Kamuhanda as follows: for Genocide (Count 2): for Extermination as a Crime against Humanity (Count 5): Imprisonment for the remainder of his life; Imprisonment for the remainder of his life; 771. These sentences shall run concurrently.

772. Judge Maqutu appends his Dissent on the Sentence. 773.In accordance with Rules 102(A) and 103, Kamuhanda shall remain in the custody of the Tribunal pending transfer to the State where he shall serve his sentence.

774. Done in English and French, the English text being authoritative. Presiding Judge Arlette Ramaroson Judge (Seal of the Tribunal) -212-

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’|hc Proscct~tor v. Jcarl dc Dicu Kaml~h.a]/da 22 January 2004 Detailed Table of Contents

PART I - Introduction ........................................................................ 4 A. The Tribunal and its 3unsdiction ............................................................... 4 B. Procedural Background ..................................................................... 5 1. Pre-Trial Phase ....................................................................... 5 2. The Indictment of 15 November 2000 ........................................................... 6 3. Trial Phase ......................................................................... 8 C. Evidentiary Matters ...................................................................... 9 1. General Principles of the Assessment of Evidence ........................................... 10 2. Credibility ......................................................................... 10 3. Corroboration ........................................................................ 12 4. Hearsay Evidence ...................................................................... 13 D. Witness Protection Issues ................................................................... 13

PART II - The Defence Case .................................................................... 14 A. Introduction .......................................................................... 14 B. Vagueness of the Indictment ................................................................. 14 1. Allegations ......................................................................... 14 2. Discussion .......................................................................... 15 3. Findings ........................................................................... 16 C. In and out of Court Identification of the Accused by the Prosecution .................. 17 1. Allegations ......................................................................... 17 2. Discussion and Conclusion ................................................................. 18 D. The Defence Contention that the Citizens of Gikomero Were Surprised by the Attacks and That the Assailants Came from Rubungo ............................................. 18 1. Allegations ......................................................................... 18 2. Discussion and Conclusion ................................................................. 19 E.

Defence Contention that Prosecution Witnesses Bore False Testimony against the Accused and That the Charges against the Accused are Fabrication ........................ 19 1. Allegations ......................................................................... 19 2. Conclusion ......................................................................... 19 F. The Alleged Influence of the Accused ............................................................ 20 1. Allegations ......................................................................... 20 2. Conclusion ......................................................................... 20 G. The Personality of the Accused was Incompatible with the Description of the Person Presented by the Prosecutor ............................................................... 20 1. Allegations ......................................................................... 20 2. Conclusion ......................................................................... 21 H. Prosecution Allegation That the Accused Was an Advisor to the President ........... 21 1. Allegations ......................................................................... 21 2. Conclusion ......................................................................... 21 I. Defence Contention that the Accused Became a Member of the

Interim Government under Duress ..................................................................... 21 1. Allegations ......................................................................... 21 2. Conclusion ......................................................................... 22 J. Alibi .............................................................................. 22 1. Applicable Law ....................................................................... 22 2. The Burden of Proof Regarding the Alibi ........................................................ 23 3. Notice of Alibi ....................................................................... 24 4. Defence Statement of Alibi ................................................................ 24 5. Evidence on Alibi ...................................................................... 26 a. Evidence of the Accused ................................................................ 26 - 213 -

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The Prosecutor v Joan dc Dicu Kamuhanda 22 danua/w 2004 o 6 April 1994 .................................................................... 26 o 7 April 1994 .................................................................... 26 o 8 April 1994 .................................................................... 26 o 9 to 16 April 1994 ................................................................. 27 o 17 April 1994 ................................................................... 27 o 18 April 1994 ................................................................... 28 b. Evidence of Defence Witnesses ............................................................ 28 6. Prosecution Allegations on Alibi ............................................................. 33 a. The Accused’s Attempts to Retrieve His Son ............................................... 34 b. Reasons Why the Accused Returned after the First Attempt ......................... 34 c. Accused’s Second Attempt to Retrieve Son .................................................. 35 d. Discussion to Move to ALS’s House .......................................................... 35 e. Decision to Move to ALS’s House ............................................................ 36 f. Parties Living at ALS’ house; Alibi and Notice of

Alibi ................................... 36 g. Organisation of Patrols ................................................................. 37 h. Night Patrol Systems .................................................................. 37 i. Trajectory of Bullets .................................................................. 38 j. Date the Accused Left for Gitarama .......................................................... 38 k. Bus Trip to Gitarama .................................................................. 39 I. Showing of Identity Cards ................................................................ 39 m. Gitarama Stadium .................................................................... 39 n. Presence of Interahamwe in the Kacyiru Neighborhoods .............................. 40 o. Relationship Between the Accused and ALB ................................................ 40 7. Findings ........................................................................... 40 a. Discussion ........................................................................ 40 b. Conclusion ........................................................................ 43 K. Impossibility of Travel from Kigali to Gikomero in

April 1994 ............................. 43 1. Allegations ......................................................................... 43 2. Evidence ........................................................................... 44 a. The Kacyiru--Kimihurura--Remera--Gikomero Route (Kigali/Remera Artery).44 b. On the Positions of the Different Belligerents on the Different Routes Leading to Gikomero ......................................................................... 46 c. The Kacyiru--Muhima--Gatsata--Byumba Route (Kigali/Byumba Route) ....... 47 d. Other Witnesses Not Directly Dealing with Impossibility ............................... 49 e. Assertions by the Parties Regarding the Evidence ........................................ 49 3. Findings ........................................................................... 52 a. Discussion ........................................................................ 52 b. Conclusion ........................................................................ 53 L. Expert Witness ......................................................................... 53

PART III - The Prosecution Case ................................................................. 54 A. Introduction .......................................................................... 54 B. Paragraph 2.1 of the Indictment (Relevant Time-Frame for the Case) ................. 54 C. Paragraph 2.2 of the Indictment (Administrative Structure of Rwanda in 1994)... D, Paragraph 2.3 of the Indictment (Existence of Ethnic Groups in Rwanda in 1994)55 1. Allegations ......................................................................... 55 2, Findings ........................................................................... 56 E. Paragraph 2.4 of the Indictment (Existence of Widespread or Systematic Attacks in Rwanda) ............................................................................. 56 F, Paragraph 2.5 of the Indictment (State of Non-International Armed Conflict in Rwanda) .............................................................................. 57 1. Allegations ......................................................................... 57 2. Findings ........................................................................... 57 - 214-

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Thc Prosecutor v, Jear~ de Dieu Kamuhanda 22 January 2004 Judgment arid Scmcr~cc G. Ministerial Position of the Accused and his Responsibility as Minister of the Interim Government ............................................................................. 57 1. Allegations ......................................................................... 57 2. Findings ........................................................................... 57 H. Paragraphs 5.24 and 6.44 of the Indictment (Distribution of Weapons) .............. 58 1. Allegations ......................................................................... 58 2. Distribution of Weapons at the Homes of the Accused’s Cousins ...................... 58 a. Evidence ......................................................................... 58 b. Findings ......................................................................... 63 o Discussion ....................................................................... 63 o Conclusion ....................................................................... 64 3. Distribution of Weapons at a Football Field in Kayanga Secteur ....................... 65 a. Evidence ......................................................................... 65 b. Findings ......................................................................... 67 o

Discussion ....................................................................... 67 o Conclusion ....................................................................... 67 4. Distribution of Weapons at a Bar in Ntaruka Secteur ....................................... 67 a. Evidence ......................................................................... 67 b. Findings ......................................................................... 68 o Discussion ....................................................................... 68 o Conclusion ....................................................................... 68 5. People Heard from Others That the Accused Distributed Weapons .................. 69 a. Evidence ......................................................................... 69 b. Findings ......................................................................... 69 o Discussion and Conclusion .............................................................. 69 I. Paragraph 6.44, 6.45 and 6.46 of the Indictment (Gikomero and Gishaka Massacres) ............................................................................. 69 1. Allegations ......................................................................... 69 2. Massacre at

the Gikomero Parish Compound ................................................. 71 a. Prosecution Evidence .................................................................. 71 o Presence of the Accused in Gikomero Commune on 12 April 1994 .......... 71 Prosecution Witness GEB ............................................................... 71 Prosecution Witness GEU ............................................................... 73 Prosecution Witness GEK ............................................................... 76 o Presence of the Accused at Gikomero Parish Compound on 12

April 1994 and the Attack ...................................................................... 77 Prosecution Witness GAF ............................................................... 77 Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness Prosecution Witness GES ........................................................... 82 GAA ........................................................... 83 GEE ........................................................... 85 GEA ........................................................... 87 GEC ........................................................... 90 GEG ........................................................... 9I GEI ........................................................... 94 GAG ........................................................... 96 GEV ........................................................... 98 GEP ........................................................... 99 GEH ........................................................... 103 Prosecution Witness GEM .............................................................. 105 o Evidence After the Events ............................................................. 106 b. Defence Evidence .................................................................... 107 o Defence Witness GPT ................................................................. 107 - 215 -

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:I:hc Prosccutor v, Jean de Dieu Kamuhanda 22 Janual’v 2004 o Defence Witness GPR ............................................................... 109 o Defence Witness GPE ............................................................... 110 o Defence Witness GPF ............................................................... 112 o Defence Witness GPK ............................................................... 113 o Defence Witness GPC ............................................................... 115 o Defence Witness GPB ............................................................... 117 c. Findings ......................................................................... 119 o Discussion ....................................................................... 119 The Presence of Kamuhanda in Gikomero Commune Prior to the Attack of 12 April 1994 on the Gikomero Parish Compound ........................................ 119 The Presence of Kamuhanda at the Gikomero Parish Compound on 12 April 1994 ......................................................................... 121 The Attack at the Gikomero Parish Compound on 12 April 1994 .............. 131 o

Conclusions ...................................................................... 135 3. Massacre at Gishaka Parish ................................................................ 137 a. Evidence ......................................................................... 137 b, Findings ......................................................................... 154 o Discussion ....................................................................... 154 o Conclusion ....................................................................... 156 J. Paragraph 6.37 of the Indictment (Authority of the Accused on the Local Authorities) ............................................................................ 157 1. Allegations ......................................................................... 157 2. Findings ........................................................................... 157 K. Paragraphs 6.31 and 6.89 of the Indictment (Failure to Prevent the Crimes Committed by the Perpetrators or to Punish Them) ............................................. 158 1. Allegations ......................................................................... 158 2. Findings ........................................................................... 159

PART IV - Legal Findings ...................................................................... 160 A. Admitted Facts ......................................................................... 160 S. Cumulative Convictions .................................................................... 160 C. Criminal Responsibility .................................................................... 162 1. Indictment ......................................................................... 162 2. The Statute ......................................................................... 163 3. Jurisprudence ........................................................................ 163 a. Responsibility under Article 6.1 of the Statute ........................................... 163 o Forms of Participation ................................................................ 164 o Mens Rea ........................................................................ 166 b. Responsibility Under Article 6(3) of the Statute ......................................... 167 o Existence of a Superior-Subordinate Relationship ................................ 168 o Mens Rea Requirement that the Superior Knew or Had Reason to Know 168 o Effective Control of Subordinates to Prevent or

Punish Their Criminal Acts 169 4. Findings ........................................................................... 169 D. Genocide and Related Crimes ................................................................. 170 1. The Statute ......................................................................... 170 2. Genocide .......................................................................... 171 a, Indictment ........................................................................ 171 b. Jurisprudence ...................................................................... 172 o Proof of Specific Intent ............................................................... 172 To Destroy ...................................................................... 173 - 216 -

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Fhc Prosccutor v. Joan dc Dicu Karnut~anda 22 Jarmary 20()4 Judamcnt and Scutencc In Whole or in Part .................................................................. 174 o Protected Groups ................................................................... 174 o The Acteus Reus .................................................................... 175 Killing Members of the Group ............................................................ 175 Causing Serious Bodily or Mental Harm to Members of the Group ............ 175 c. Findings ......................................................................... 176 o Intent to Destroy in Whole or in Part the Tutsi Ethnic Group ................ 176 o Killing of Members of the Tutsi Group ................................................. 178 o Individual Criminal Responsibility of the Accused (Article 6.1 of

the Statute) ......................................................................... 178 d. Conclusion ........................................................................ 178 3. Complicity in Genocide ................................................................... 179 E. Crimes against Humanity .................................................................... 180 1. General Elements ...................................................................... 180 a. Indictment ........................................................................ 180 b. The Statute ....................................................................... 180 c. Jurisprudence ...................................................................... 181 o Relationship Between the Enumerated Acts and the General Elements. 181 o General Elements ................................................................... 181 The Attack ...................................................................... 181 The Attack Must be Widespread or Systematic .................................... 182 Widespread ..................................................................... 182 Systematic ..................................................................... 183 The Attack Must be Directed against Any Civilian Population ................ 183 The Attack Must be Committed on

Discriminatory Grounds .................. 184 The Mental Element for Crimes against Humanity ................................... 185 d. Findings ......................................................................... 186 2. Crimes against Humanity - Murder ............................................................ 186 a. Indictment ........................................................................ 186 b. Jurisprudence ...................................................................... 187 c. Findings ......................................................................... 187 d. Conclusion ........................................................................ 188 3. Crimes against Humanity - Extermination ..................................................... 188 a. Indictment ........................................................................ 188 b. Jurisprudence ...................................................................... 189 c. Findings ......................................................................... 190 d. Conclusion ........................................................................ 191 4. Crimes against Humanity -

Rape ............................................................. 191 a. Indictment ........................................................................ 191 b. Jurisprudence ...................................................................... 192 c. Findings ......................................................................... 193 d. Conclusion ........................................................................ 193 5. Crimes against Humanity - Other Inhumane Acts ......................................... 194 a. Indictment ........................................................................ 194 b. Jurisprudence ...................................................................... 194 c. Findings ......................................................................... 195 d. Conclusion ........................................................................ 196 F. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II ...................................................................... 196 1. General Elements ...................................................................... 196 a. The Statute ....................................................................... 196 b. Jurisprudence ...................................................................... 197 - 217 -

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Thc Prosecutor v. ,lean de Dicu K.amuhar~da 22 January 2004 c. Findings .........................................................................

2. Serious Violations of Article 3 Common to the Geneva Conventions and of Additional Protocol II--Outrage on Personal Dignity ......................................... a. Indictment ........................................................................ b. Conclusion ........................................................................

3. Serious Violations of Article 3 Common to the Geneva Conventions and of o Nature of the Conflict .............................................................. 197 o Rationae Personae: Perpetrators ........................................................ 198 o Rationae Personae: Victims ........................................................... 199 o Rationae Loci ................................................................... 200 o Nexus Between the Alleged Violation and the Armed Conflict ............... 200 o Serious Violations.. ............................................................... 201 201 203 203 204 Additional Protocol II--Killing and Violence ...................................................... 204 a. Indictment ........................................................................ 204 b. Conclusion ........................................................................ 205

PART V - Verdict ........................................................................... 206

PART VI - Sentence ......................................................................... 207 A. General Sentencing Practice ................................................................. 207 B. Mitigating Factors ....................................................................... 208 C. Aggravating Factors ...................................................................... 209 D. Sentencing Ranges ....................................................................... 210 E. Credit for Time Served .................................................................... 210 - 218 -

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International Criminal Tribunal for Rwanda Tribunal P6nal International pour le Rwanda

UNITED NATIONS

NATIONS UNIES Before Judges: Registrar:

TRIAL CHAMBER II William H. Sekule, Presiding Winston C. Matanzima Maqutu Arlette Ramaroson Adama Dieng Original: English Judgment of: 22 January 2004

THE PROSECUTOR V. Jean de Dieu Kamuhanda Case No. ICTR-99-54A-T Judge Maqutu’s Separate and Concurring Opinion on the Verdict Counsel for the Prosecution: Mr. Marks Moore Mr. Ibukunolu Alao Babajide Ms. Doroth6e Marotine Counsel for the Defence: Ms. Aicha Cond6 Ms. Patricia Mongo Ms. Seynabou Benga Ms. Anta Guisse Senior Trial Attomey Trial Attomey Case Manager Lead Counsel Co Counsel Legal Assistant Legal Assistant

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Thc Prosecutor v, LDo Kanmhanda Judgment and Sc~:tc~cc 1. It has become necessary to hand down a separate opinion from the majority because we do not always believe the same witnesses. Even where we do, our opinions are sometimes only partially the same. Introduction 2. There is general agreement about the historical aspects of the Tribunal, its mandate and the history of the case. The Indictment was far wider than the evidence was able to reveal.

3. Evidence only focused on his activities in Gikomero Protestant Parish and Gishaka Roman Catholic Parish. Because evidence was not available to prove conspiracy to commit genocide, at the close of the Prosecution case the Accused was acquitted of this charge.

4. The Indictment gave prominence to the fact that the Accused became a Minister of Higher Education and Scientific Research as a culmination to his public service career.

5. The Chambers approach to evidence and issues of credibility, corroboration and hearsay have been summarized in the main judgment. There is no need to repeat them here. Background to the Genocide and Crimes Against Humanity 6. In this case (in contrast to some other cases) the Defence did not challenge that genocide and crimes against humanity occurred in Rwanda. Consequently the Prosecution was only put to the proof of allegations in the Indictment against the Accused. In other words the Prosecution had to prove the specific involvement and guilt of the Accused.

7. The Prosecution did not lead much evidence on the historical background to the genocide and the tragedy that occurred in Rwanda. It was the Defence that did so. It was Defence Expert Witness Dr. Nkiko Nsegimana 1 who gave a version that was largely unchallenged: According to him there had been fighting between the Rwanda Patriotic Front which was identified with the Tutsi, and the Rwandan Government which was largely Hutu. There was a cease-fire that led to the signing of the Arusha Accords, on 4 August 1993. The implementation of the Arusha Accords was a problem when the President’s aeroplane was shot down, killing him and his Chief of Staff. This left the country and the Rwandan armed forces without leadership. I T. 7-8 May 2003 (Dr. Nkiko Nsengimana)

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8. It was as a result of this vacuum at the top of government that the entirely Hutu faction of the army and some political parties took effective power. Acting President Sindikubwabo and what remained of the multi-party government became the front for the extremist Hutu faction of the army and politicians. It was because of the domination of this group that the extermination of Tutsis became inevitable.

9. However, the facade of national reconciliation and an all-inclusive government in terms of the Arusha Accords was maintained to give legitimacy to this shift of power. Acting President Sindikubwabo, who was the Speaker of the National Assembly, was made to take office because in terms of the interim constitution he was the lawful person to act as President. According to Defence Expert Witness Dr Nkiko Nsengimana, he was not a willing participant as his Tutsi wife had been killed.

10. Acting President Sindikubwabo was swom in on 11 April 1994. By 19 April 1994 he was making speeches using words like "mukore" (work) incite the killing of Tutsis, because pressure was put on moderate Hutus to take extremist positions.

11. According to Defence Witness VPM, a former Minister in the Rwandan Government, from January 1994 Rwanda was a powder keg and the resumption of hostilities between Government forces and the RPF was imminent. 2 Witness VPM ought to know because he had been a Minister and Chairman of a branch of MRND. Consequently, according to Defence Expert Witness Dr Nkiko Nsengimana, as early as February 1994 the extermination of Tutsis had been threatened if the RPF resumed hostilities as a solution to the political impasse.

12. Tutsi and Hum lived together in harmony and sometimes intermarried. For example the mother of the wife of the Accused was Tutsi. It is common cause that Rwanda had had ethnic tensions for a long time. According to Witness VPM, who is an admirer of the late President Habyarimana, President Habyarimana had taken power in 1973 after ethnic disturbances. Witness VPM says he resigned from being Chairman of the branch of MRND in 1992 for personal reasons after the burning houses and massacre of Tutsi in Genda, Gashora and Kanzenze in the Bugesera region because of irresponsible speeches. 2 T. 6-7 May 2003 (VPM)

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The Prosectltor v. ], D° Kamuhanda Presence of the Accused at Gikomero on 12 April 1994 13. The Accused’s defence is that he was at his home in the Kacyiru quarter of Kigali between 7 April 1994 and 17 April 1994. Consequently he could not have led the attack at Gikomero Protestant Parish. Furthermore, in any event roads to Gikomero (according to the Accused) were closed because the fighting. It was therefore impossible for him to get from his home to Gikomero Protestant Church on 12 April 1994.

14. The Prosecution has to prove its case against the Accused in respect of the crimes charged. The Accused does not have to prove his alibi, all he has to do is to persuade the Chamber that it is reasonably possible that he was not at Gikomero, but at the place he claims to have been. He claims he was at his residence in Kacyiru. Even if he was not, clearly it does not mean he is guilty of the crimes charged. That will depend on the evidence adduced and the evaluation of the evidence as a whole.

15. The Accused states that he remained at home to protect his home from looters who took advantage of the chaos to invade homes and to steal. His home was within walking distance from the Ministry of Higher Education and Research, which he headed as a public servant with the rank of Director General. After the shooting down of the President’s plane, people were instructed to remain at home. The Accused did so between 7 April 1994 and 17 April 1994, except on 8 April 1994 when he made two trips to Kimihurura, which is about one and a half kilometres from Kacyiru, in order to bring his son Ren6 home) In other words the Ministry of Higher Education and Research, appears not to have functioned in Kigali during this period.

16. The Accused told the Chamber that fighting was so intense after the downing of the President’s plane that he left his residence and went to live with a neighbour, Defence Witness ALS, to avoid artillery shells that were flying about.4 The house of another neighbour that was on higher ground had been hit by a shell.

17. The Accused further informed the Chamber that the men of his neighbourhood mounted day and night patrols against looters and no more slept in their homes. Between 7 April 1994 and 17 April 1994 they all slept outside, until they left Kigali. They were only armed with sticks during these patrols, which in his view acted only as a deterrent against looters. There was a military post 500 meters from his residence. In cross-examination the 3 T. 20 August 2002 (Accused); T. 29 August 2002 p.36 (ICS)(ALS); T. 9 September 2002 (ALF) 4 T. 20 August 2002 p.86 (ICS)(Accused)

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"lt~c Prosecutor v..I.D. Kamuh.anda,hadgment and Scl~:tcncc Accused conceded that their patrols were in violation of the order that they should stay at home. They all patrolled at the same time, and did not take turns.

18. Defence Witness ALS, in support of the Accused’s alibi, said the Accused lived at her residence and that the Accused was never out of her sight for more than an hour. The Accused could never have gone to Gikomero without telling her. Defence Witness ALR supported the Accused’s evidence in respect of the round-the-clock patrols. Witness ALR told the Chamber that on 8 April 1994 three armed soldiers extorted 2000 Francs from him after searching him. An hour later a group of Interahamwe armed with machetes invaded his house, ransacked it and took jewellery, crockery, cutlery and meat. He only informed neighbours including the Accused about the incident with the soldiers, but says he did not tell them about the Interahamwe. After that he went to live with Witness ALS and the Accused at the house of ALS, for his own security.

19. Defence Witness ALB told the Chamber that patrols began after that because soldiers had threatened Witness ALR. For the men patrolling, the rest periods were together and they all resumed patrols at the same time. The Accused’s wife also gave evidence to the effect that the Accused could never have gone to Gikomero and confirmed the daily patrols of the Accused and others.

20. The whole story of intensive patrols and the reasons for them was not convincing. They could not patrol against armed soldiers and armed Interahamwe with sticks. It is significant that Witness ALR said he did not tell his neighbours about the Interahamwe that invaded him an hour after the soldiers. The intensive group patrols during which they all rested at the same time without taking turns are improbable, and were meant to buttress the Accused’s false alibi. Impossibility of moving from Kigali to Gikomero 21. The fact that Defence Witness RGB panicked and deserted his post as bourgmestre of Mbogo commune on 9 April 1994, when he heard firing in which soldiers of the Rwandan armed forces destroyed an RPF vehicle, but went back to Mbogo on 24 April 1994 to find that it was still in Government hands shows movement was still possible. Witness RGB did not disclose that he went back to Mbogo in his evidence-in-chief. It was in cross-examination that he disclosed the fact that the army transported him back to Mbogo, and roads were open to unimpeded military transport. Witness RGB was to remain with family in Musasa commune in Kigali prdfecture until he went

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Tltc .ProsccLltor v. J, I). K.arn u hart da into exile in July 1994.s Yet, Witness RGB gave evidence that roads to Gikomero were closed and it was impossible to get there.6 The Chamber could not believe RGB, as he was not a truthful witness in other respects as well.

22. For reasons given by the majority it was not impossible to move from Kigali to Gikomero, a distance of not more than 20 Kilometres. The RPF had been in Kigali in the CND area even before the resumption of the fighting. The Defence supported impossibility through the evidence of junior front line soldiers. This evidence was brought to prove all roads were closed as soon as fighting resumed. The risk that was there after the resumption of the fighting was exaggerated. Even the evidence of Witness RKF, who held the rank of Major, and who was a legal officer whose other duties included working for the integration of the Rwandan armed forces with RPF in terms of the Arusha Accords, and some intelligence gathering - was not satisfactory. He claimed the Rwandan army had a demobilization mentality. If that is the case it could not in my view provide intelligence competently. In any event, according to Witness GEK the Accused was accompanied by a soldier when he went to Gikomero on 12 April 1994 - a limited precaution against danger. There was all over Kigali and Kigali Rural a danger that a stray bullet or an infiltrator could harm a person or a vehicle, but movement was still possible on the roads, side roads and footpaths. Massacre at Gishaka Catholic Parish 23. I agree with the majority Judgment that the Accused could not be liable for events at the Gishaka Catholic parish on

the evidence before the Chamber. Evidence that linked the Accused with events there was unsatisfactory. It is clear that the weight of evidence brought both by the Defence, especially through Defence Witness PC, and the Prosecution, show that refugees were taken out of the church to be killed. No ~enades were thrown into the church as Prosecution Witness GKL testified. In summary, the allegation that the Accused was at Gishaka was not backed by concrete or satisfactory evidence. s T. 18 February 2003 pp.4-6 (RGB) 6 T. 17 February 2003 p.64 (RGB) 7 As explained in the main Judgment, Witness GKL stated that no refugees were killed inside the church, but were instead led away to be killed. T. 6 May 2002 pp.70, 72 (GKL)

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ll~c Prosecutor v. J,D. K.amuhanda Weapons distribution at Gikomero 24. As the Judgment of the Chamber shows, the only direct evidence that the Accused distributed weapons at Gikomero is that of Prosecution Witness GEK. Evidence of a single witness must be checked with care. The Chamber has to be alive to the fact that it stands alone and cannot be checked against some other evidence. The evidence of witnesses GEB and GAC, which should have corroborated the evidence of Witness GEK, was found unsatisfactory, unreliable and containing inherent improbabilities.

25. In the Accused’s favour is the strong evidence of Witness GET who told the Chamber that the Accused was a good man. Witness GET testified that the Accused was an intellectual of such integrity that the crimes he is charged with do not correspond to the Accused’s character as he knew it.8 When GET was bourgmestre after the genocide he got persistent reports about the Accused’s participation, which persisted until they were followed up. Among Witness GET’s informants was Prosecution Witness GEK. 9 26. Another hearsay that puts the Accused among those who were worried about the massacre of the Tutsi is Witness GKI’s testimony that her brother was told that the Tutsi wife of the bourgmestre of Gikomero had met the Accused on 30 March 1994. The report stated that the Accused had warned the wife of the bourgmestre to flee because the Tutsi were going to be killed.

27. Prosecution Witness GEK, a Tutsi woman, was married to a close relative of the Accused. The Accused’s sister was married to a close neighbour of Witness GEK. Witness GEK testified that between 5 April 1994 and 6 April 1994 the Accused had been at her home for short time. The Accused was on the way to see his brother-in-law. Witness GEK told the Chamber that she had met the Accused about four times.

28. Later on in the trial, the Accused admitted under cross-examination that he knew Witness GEK and her husband. 1° But the Accused said he does not remember meeting or speaking to Witness GEK.11 The Accused’s reaction when Witness GEK gave evidence (through questions put by his counsel) had been that Witness GEK was an impostor, and that she was not who she claimed to be. Thus details of her evidence were not directly challenged by the Defence - save showing that the Accused could not have been there. It came as a surprise to the Chamber when the Accused acknowledged her in his testimony. 8 T. 5 September 2001 pp.100-102 (ICS)(GET) 9 T. 6 September 2001 pp.45-46 (ICS)(GET) l0 T. 26 August 2002 p. 124 (Accused) 11 T. 26 August 2002 p. 128 (ICS)(Accused)

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The Prosecutor v, ,I.I). Kamuhanda 29. In her evidence-in-chief, Witness GEK stated that the Accused came to her house alone, driving a white pickup between 6 April 1994 and 10 April 1994. Her husband told her to go into the adjacent room, in which she listened to their conversation. They were four men with the Accused in the room. The Accused complained that killings had not begun in the area. Those who were supposed to help were not doing so because they had married Tutsi women. The Accused said he would bring equipment to enable them to start. If their women were in the way they should eliminate them. This conversation lasted 30 minutes.

30. When Witness GEK went outside she saw firearms, grenades and machetes in the vehicle the Accused arrived in. Inside the house the Accused had distributed firearms and grenades. Her husband received four grenades from the Accused. The Accused went next door to Ngarambe’s house, where he unloaded the weapons. The Accused said they should distribute them. The Accused said that he would come back to assist.

31. Between 10 April 1994 and 14 April 1994, the Accused came back, he went to Karekizi’s house, and he was in a white van with a soldier and a driver. A blue Diahatsu carrying between 30 and 50 people - all armed with guns and machetes followed him. From Karekizi’s house, the Accused drove off in the direction of Gikomero Primary School. Witness GEK heard gunshots for 20 to 40 minutes. She saw children fleeing towards her - some of them wounded. Later that day when Interahamwe from Rubungo came for them, Witness GEK and others fled to Kibobo cellule.

32. After the Prosecution had called 25 more witnesses and after the Defence had called eight witnesses, Witness GEK was recalled by the Defence for further cross-examination. It was suggested to Witness GEK that between 9 April 1994 and 14 April 1994 she was not at her home. Witness GEK did not agree with that suggestion. She said that she went to Kibobo the day after the killing, and that they went with their husbands and came back the same day. Kibobo is in their secteur. Witness GEK denied the allegation by the Defence that she stayed at Eustache Kayumba’s house from 9 April 1994 to 13 April 1994.12 At that time, Witness GEK had only one child. Cross-examination when Witness GEK had been recalled further revealed she had been sentenced to death for an act with her husband for events that occurred several months after giving evidence before the Chamber.

33. Witness GEK was never asked about the second child that the Defence alleged had been born at Kibobo on the day of the Gikomero massacre. Witnesses GPB, PCE, EM and Xaviera Mukaminani were later called by the Defence to state that Witness GEK could not have been at her house because ~2 T. 13 January 2003 pp.62-63 (GEK)

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on 12 April 1994, the day of the massacre, or 13 April 1994, and according to the Defence she was in Kibobo giving birth to her second child. The Defence challenged the accuracy of Prosecution Exhibit 49, a document originally brought by the Defence, in which Witness GEK had registered the child as having been born on 13 September 1994, five months later. What was unfair and strange was that the alleged issue of a second child bom in Kibobo on 13 April 1994 had not been raised with Witness GEK even after her recall.

34. The only witness who identified the Accused from undisputed knowledge of him was Prosecution Witness GEK. The Accused’s attack on the evidence of Witness GEK was not eventually that she does not know him, but rather that Wimess GEK is not telling the truth when she says the Accused was in Gikomero after the shooting down of the President Habyarimana’s Plane, that he distributed weapons, and that on 12 April 1994, the day of the massacre, the Accused led armed men toward the Gikomero Parish Primary School.

35. The Chamber was unanimous in not accepting the evidence of Witness GAB that between 9 April 1994 and 11 April 1994 he saw the Accused distributing weapons at the football field in the presence of the bourgmestre, the conseiller, the accountant and the police brigadier of the commune. This was despite the fact that Witness GAB claimed he knew the Accused. Witness GAB was a young Tutsi man and was known as such by his playmates. He had earlier seen the Accused at a political rally of the MRND in Kayanga secteur of the Gikomero commune. Witness GAB testified that the Accused at that meeting said: "Let the Tutsis not bother you because their fate is being considered by the appropriate authorities. ’’13 A solution had been found in the not too distant future. In that meeting a person who was not Hutu could not have been invited to that meeting at which the Accused spoke as a guest of honour. A Tutsi would be in danger of being killed. 14 36. The Chamber for similar reasons had found the evidence of Witness GAC unbelievable because he claimed weapons were distributed by the Accused in his presence at Damien’s bar although the people in the vicinity knew he was a Tutsi. Witnesses GET and GAD gave hearsay evidence about the Accused’s weapon distribution, which the Chamber could not accept.

37. The result of the rejection of the evidence on weapon distribution of Witnesses GAB, GAC and hearsay from GET and GAD was that the only evidence which the Chamber could work with was that of Witness GEK alone. The evidence of Witness GEK on what she saw and heard at her house and the weapons distribution was believed. Whilst she could see what was happening at Karikezi’s House, it was not clear how she heard what was ~3 T. 11 September 2001 p.49 (GAB) 14 T. 11 September 2001 pp.50-51 (GAB) f

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I"hc Prosecutor v..fD. Kamuhanda ./udgmcnt and Scntc~cc being said. Since the Defence was claming Witness GEK was not who she claimed she was, she was not pressed to clarify this issue.

38. The fact that Witness GEK later committed a crime which led to a sentence of death was not ignored in determining her credibility as a witness before the Chamber. The event though irrelevant was considered only in so far as it might affect her reliability as a witness. Furthermore, the Accused’s evidence given several months before that crime remained unchanged. The Chamber was alive to the danger of the evidence of a single witness on the issue of weapon distribution. Consequently it scrutinized it with great care.

39. The baseless attack on Witness GEK’s identity, and the attempt by the Defence to remove her from her home and put her at Kibobo, was considered by the Chamber, but her evidence was not shaken. In an attempt to prove that she was known by her full name, the Defence brought evidence in the form of a document certifying that her second child was born during September 1994. Yet, three witnesses were brought by the Defence to prove that her second child was born on 12 April 1994, which was the day of the Gikomero Church massacre. This allegation concerning the birth of the second child was not put to GEK to comment upon. Witness GEK was not shaken in cross-examination, her evidence was found credible and without any real demerits. Presence of the Accused in Gikomero on 12 April 1994 40. Since the Accused claimed that between 7 April 1994 and 17 April 1994, he had been at his residence at Kacyiru, the Prosecution tried to demonstrate others saw that the Accused in the Gikomero area on or before 12 April 1994. The evidence of Witness GAD that on 9 April 1994 he briefly saw the Accused in a chauffer driven Peugeot 604, sitting in a place of honour after a visit to his parents, was suspect because Witness GAD claimed the Accused normally came in a Peugeot 504 and sat in the front. This evidence was not satisfactory. The Witness claimed to know the Accused and his sisters, but he could not name them. Also, his evidence was largely hearsay.

41. Although the Chamber by a majority was satisfied by the evidence of Witness GEB, I was not. Witness GEB’s opportunities of observation of the man he saw as being the Accused were poor, and brief. I was not satisfied that his evidence that he knows the Accused was real and credible. Witness GEB claims the Accused was from a neighbouring secteur and that they were in fact neighbours. He said that he had known the Accused for three years is and proceeded to identify him in the dock.16 The Witness claimed to have is T. 12 September 2001 p.66 (GEB) 16 T. 12 September 2001 p.67 (GEB) 10

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’t’t~c Prosect~tor v, J.D. Kamuh.andaJudgment and Sc~l:tcl~cc seen the Accused when he came to introduce his wife to the Accused’s family. 17 However, the Chamber heard evidence that this incident occurred in 1983,18 which was 11 years before 1994.

42. Witness GEB claimed to have seen a pickup vehicle carrying over twenty people in the back, and as it passed him he looked back and saw the Accused sitting between two people. Those twenty people, who were singing, were wearing Kitenge uniforms (normally worn by Interahamwe), and some were in military uniforms. They were singing Interahamwe songs, and they were armed- he saw Kalashnikov firearms. When Witness GEB saw this vehicle, it was one and a half kilometres from Gikomero. Thirty minutes later, he heard gun reports.

43. Witness GEB was specifically asked if the opening of the Kayanga Health Centre was the day the Accused had come to introduce his wife to the family - the Witness evaded the question. Pressed on when the Kayanga Health Centre was opened, the Witness did not know. All he could say was that, that was the last time he had seen the Accused. 19 The Accused had come to introduce his wife to the family in 1983. 20 In cross-examination it was put to him that in his prior statement to the Prosecution investigators, had said Asio told him that Kamuhanda was with the Interahamwe. Witness GEB gave no satisfactory answer. I do not believe this Witness. The majority in believing Witness GEB have overlooked the fact that the evidence of this witness conflicts with that of Witness GEK. The testimonies could only be reconciled had a longer time elapsed between the time Witness GEB saw the Accused and the time Witness GEK saw the Accused with a policeman just before he led the attackers to Gikomero Parish compound.

44. I am unable to join with the majority in believing that Prosecution Witness GAF was telling the truth when he said he saw the Accused at the Gikomero massacre, and that he gave the signal for the killings to start by saying "mukore" which means "work". I am unable to believe this witness because he said that even before the vehicles stopped, Bucundura (the assistant of the Pastor) was shot at.21 In my view, once the firing began there would be pandemonium and people could not have stopped for the Accused to get down from the vehicle and tell the people in the first three vehicles to "mukore" (work), that is to begin the killing. Witness GAF, when asked if saw the vehicles clearly, replied that "In actual fact, I did not come that close to the vehicles because I went away, say I was about 15 to 20 meters from the vehicles and but since there were lined up, there were those which were 17T. 12 September 2001 p.66 (GEB) 18T. 12 September 2001 p.101 (GEB) 19T. 12 September 2001 pp.99-103 (GEB) 20T. 12 September 2001 p.101 (GEB) 21T. 13 September 2001 p.51 (GAF) 11

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closer to me say about 10 metres away. ’’22 It was after Bucundura had fallen to the ground that the Accused alighted from one of vehicles with the markings UN.23 After he had made a dock identification of the Accused, 24 the Witness was asked to clarify what happened and said: "They shot at Bucundura before the vehicles stopped. They were still in motion when they passed where I was. ’’25 45. Asked if the people he came with obeyed the Accused’s orders, Witness GAF contradicted himself and said: "No, but they had already agreed with the people he came with about what was to be done. He made that gesture, that was to incite people that were there. ’’26 When the Accused made the gesture, the killings started almost immediately, z7 In other words, the Accused made a gesture and the killings began. He did not give an order. When what Witness GAF had said was summarized to him to confirm, he said that it was the Accused who had brought the weapons to give to the people. Witness GAF had to admit that he was merely venturing an opinion. 2s Later Witness GAF said for no apparent reason "these were policemen of Gikomero commune. They were there with us because we sought refuge with them. It was when Kamuhanda arrived that he ordered those to be killed be killed. ’’29 46. Witness GAF is the only witness who says the first vehicle, a Pajero, left without its passengers alighting. The

Accused left immediately after raising his arms and saying "mukore" - he spent only two minutes there, and then left for somewhere else. Asked specifically if the Accused was there when the killings started, Witness GAF said no. Amongst other unrelated things, Witness GAF said that the killings started as soon as he pronounced the word. The vehicle that was left behind, loaded meat from a cow that had been killed. When asked by the Prosecutor during examination-in-chief if the Accused was still there when the cow was killed and the meat loaded, Witness GAF responded: "Well, I had told you as soon as he uttered those words, he went back into to the vehicle and left at the same time as the Pajero and the Hilux pickup. ’’3° Witness GAF claims to have known the Accused as a prominent MRND politician, 31 which every other witness agrees was false. Another fact just as false was that the Accused was well known in the area. 32 22 T. 23 T. 24 T. 2s T. 26 T. 27 T. 28 T. 29 T. 30 T. 3IT. 32 T. 13 September 2001 p.44 (GAF) 13 September 2001 pp.44-45 (GAF) 13 September 2001 p. 50 (GAF) 13 September 2001 p.51 (GAF) 13 September 2001 p.52 (GAF) 13 September 2001 p.52 (GAF) 13 September 2001 pp.52-53 (GAF) 17 September 2001 pp.44 (GAF) 13 September 2001 p.55 (GAF) 13September 2001 p.46 (GAF) 13September 2001 p.46 (GAF) 12

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The Prosecutor v. J.D. Kam u handa ,ludgmcnt and Scn:tcr~cc 47. All indications make it suspect that Witness GAF was at Gikomero Parish on 12 April 1994 at the time of the killings. According to his account, he only got to the parish between 2:00pm and 3:00pm. 33 He says that 20 to 30 minutes later, the vehicles of the killers arrived. ~4 If he was in fact there and that near the vehicles, he would, like other witnesses, have stated that the Accused got down from the vehicle, talked to Pastor Nkuranga, and then as he was leaving there would have been a gun report and Bucundura would have fallen. His account that Bucundura was shot and fell even before the vehicles stopped and the Accused alighted from the vehicle and talked to Pastor Nkuranga is inconsistent with the evidence of the Prosecution as a whole. The view I have is that people would have scattered even before the vehicles stopped had the shooting commenced when Witness GAF claims it did. Although it impressed the majority, for me the evidence of Witness GAF was untrue.

48. I accept that Witness GES, a public servant, must have known the Accused, who was a leading public servant at that time, and that he could have identified the Accused at Gikomero Protestant Parish. Witness GES’s identification of the Accused is not of a high quality because he was 50 meters away. 35 49. Witness GAA’s evidence of identification of the Accused at Gikomero Protestant Parish was somewhat hesitant because when he saw the Accused in the dock, he said: "I suppose he is that one" - later he said: "I have no doubt that is him".36 He was being honest because the Accused had been approximately 100 metres from him when he saw him at the Parish. 37 Witness GAA lived 500 meters from the home of the Accused’s sister. 38 Witness GAA had seen the Accused on two occasions. The first occasion when the Accused had brought gifts on the birth of his sister’s first child. The second occasion was at the funeral of the aforementioned sister of the Accused who later died. 39 50. I was impressed with the evidence of Witness GAA because he did not artificially enhance the value of his identification of the Accused. He testified that he saw the Accused come out of the vehicle and throw his hands in the air.4° At that time, Pastor Nkuranga had come out of his house with Bucundura. People who were near him, were saying, "get to work, 33T. 13 September 2001 pp.41-42 (GAF) 34T. 13 September 2001 p.42 (GAF) 35T. 29 January 2002 p.109 (GES) 36T. 19 September 2001 pp.110-111 (GAA) 37T. 19 September 2001 p.119 (GAA) 38T. 19 September 2001 pp.107-108 (GAA) 39T. 19 September 2001 p. 107 (GAA) 4oT. 19 September 2001 pp.113-114 (GAA) 13

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The Prosecutor v. ;I.D. Kamuhanda Judgment and Sentcl~cc Kamuhanda is here now". 4! There was a gun report and Bucundura fell, three other people were also shot. 42 Pastor Nkuranga was shouting "I am Pastor Nkuranga, do not shoot at me".43 People ran in all directions. Some fled, some were killed. 44 The poor quality identification of the Accused by Witness GAA was made stronger by the fact that he heard assailants shouting "get to work, Kamuhanda is here now" when the man he identified as the Accused arrived in the vehicle.

51. The Chamber was shown a photo of the Accused that was taken at the sister’s funeral. 45 In it the Accused did not look exactly the same as he looked in court. The Accused has considerably aged. In concluding his evidence-in-chief about the Accused, Witness GAA said that he had some doubt about identifying Kamuhanda when giving evidence because it had been a long time since he last saw him, but he had no doubt in identifying 46 him when he arrived in the vehicle at the time of the massacre.

52. I noted the many witnesses (of different degrees of credibility) were saying they heard from others that Kamuhanda had come - their safety is threatened (or words to that effect). Witnesses such as GEE, GEA, GEV, and GEG are in my view credible when they say they did not know the Accused, but that they heard others exclaiming that Kamuhanda - the man who went to speak to Pastor Nkuranga - had come, and they were in danger. Regarding what some of the people shouted, I accept the evidence of Witness GEG as being corroborated by the others - despite Witness GEG’s mistake that the Accused had a gun. As that man [the Accused] was going to his vehicle, witnesses agree that Bucundura (or an old man) was shot, and killings began. There are however witnesses such as GEP, GEC and GEI who were in the classrooms, but who claim to have seen or heard much more than their opportunities of seeing and hearing enabled them. Such witnesses I do not find credible. The behaviour of Pastor Nkuranga was interpreted as suspect before the killing - some witnesses claim or infer that he was in league with killers because he stopped them from fleeing when refugees from Jurwe told them an attack was imminent. The collective weight of this evidence does not prove this. In my view Pastor Nkuranga did what any reasonable person who believed in the inviolability of churches as sanctuaries should have done. 41T. 19 September 2001 p. 115 (GAA) 42T. 19 September 2001 pp.115 (GAA) 43T. 19 September 2001 p.l14 (GAA) 44T. 19 September 2001 p. 117 (GAA) 4sProsecution Exhibit 4 46T. 19 September 2001 pp. 119-121 (GAA) 14

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53. The evidence of Witness GAG, whose presence at Gikomero Protestant Parish is admitted both by the Defence and the Prosecution, is to me credible although Pastor Nkuranga’s wife and son found her ungrateful and untruthful in the way she claimed she lost property from the late Pastor Nkuranga. Witness GAG says that Pastor Nkuranga had looked after the refugees when they were only around fifty in number, however when they flocked to the parish in larger numbers his problems increased and his attitude changed. When on 12 April 1994 rumours of an impending attack became rife, Pastor Nkuranga called the refugees together and assured them that they were safe. He told the local people who were selling goods to the refugees to leave because they were spreading false rumours. It was at 2:00pm while the refugees were standing round the Pastor that a vehicle came and a man he did not know went towards Pastor Nkuranga. The Pastor went to meet him saying "I told you that you had nothing to fear, that your safety would be guaranteed. ’’47 Bucundura remained with Witness GAG and the others. According to Witness GAG, the Interahamwe surrounded them and she thought they were going to protect them. As the man Pastor Nkuranga had gone to talk to walked back to one of the vehicles, someone shot Bucundura. There followed volleys of

firing from guns. Grenades were also thrown. All Pastor Nkuranga could say was: "I am Pastor Nkuranga. ’’48 According to Witness GAG, some of the refugees had said "there is Kamuhanda" when the Accused went to the Pastor. 49 54. Witness GAG had seen people in military uniform, Kitenge clothing, and others wearing banana leaves during the attack. Some had guns, grenades, machetes, and clubs. This account is in many respects similar to that of GAA who in my view is a credible Witness.

55. According to Witness GAG, at dawn Pastor Nkuranga came with a policeman called Nkarambe and Rutayiseri and she was taken out of the house. It was said that the Accused said all Tutsi including children were to be killed. Pastor Nkuranga said the God of the Tutsi had abandoned them. Nkarambe and Rutayisire took her to the bush, hit her on the head and left her for dead. The Witness refused to attempt a dock identification of the Accused on the ground that she saw him only once, and consequently does not believe that she could recognize the Accused. I believe the evidence of Witness GAG, her evidence and demeanour was impressive. She was telling the truth about what she experienced, saw and heard.

56. Although Pastor Nkuranga died before he could give evidence, he left behind an affidavit in which he avoided mentioning the presence of the Accused at Gikomero and his conversation with him. The Chamber concludes that he withheld this evidence deliberately. In my view although 47 T. 4 February 2002 p.54 (GAG) 48 T. 4 February 2002 p.55 (GAG) 49 T. 4 February 2002 p.54 (GAG) 15

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Thc Prosecm~or v..I.D. Kamuhanda Judgment and Serltcl~cc he was not involved in the genocide and genuinely did what he could for the refugees - he chose to protect the Accused and others for reasons that are not clear. Pastor Nkuranga’s family gave evidence solely to clear his name, but not to tell the truth. Conclusion 57. In short I differ from the majority who have accepted from witness testimony that, at the location of the killings, the Accused was actually heard giving an order for the killing to begin. Firstly, I disbelieve the entire evidence of Witness GAF. Consequently in my view there is no direct credible evidence that the Accused ordered the killing of the Tutsis by saying "mukore" (work). Witness GAA, who in my view is a credible witness, only saw the Accused raise his hands at the time the killing commenced. As for the witnesses who were in classrooms, even if the Accused had actually said the word "mukore", would not have been able to hear it in that noisy environment. Thus, on the question of whether or not the Accused gave a verbal order when he arrived at the Parish compound, I find that there is no credible evidence that he did.

58. I do however accept the evidence of Witness GAA, who stated that when their assailants saw the Accused, the assailants said, "Let us go to work, Kamuhanda has come". From this evidence, there is an irresistible inference to be drawn that the Accused had sometime earlier said to the attackers (before they reached the Parish) that Tutsis should be killed. Consequently, because this must have come to be known, it is not surprising that it was known amongst those Tutsis who knew him, that his presence at Gikomero meant death to the Tutsis.

59. The cumulative effect of the circumstantial evidence is that, as Witness GEK stated, the Accused distributed weapons between 6 April 1994 and 10 April 1994. On the day of the massacre at the Gikomero Parish, Witness GEK saw the Accused go towards the Parish with a group of armed people. Shortly thereafter there were gun reports and explosions from the direction of the Parish. A man identified as the Accused from a distance by Witnesses GAA and GEL was seen going to Pastor Nkuranga before the killing began. Witness GAA heard some of the attackers saying they should work because the Accused had arrived. Some of the refugees (according to Witnesses GEK, GEA, GEG and GEV) said that now that the Accused had arrived their safety was threatened. 16

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The Prosecutor v. i.D. Kam.uhandaJudgment and Sen:term.co Verdict 60. I agree with the majority that the Accused led an armed group to commit the crimes of Genocide and Extermination as a Crime Against Humanity against the Tutsi people who were at Gikomero Protestant Parish. In that respect the verdict of the Chamber is unanimous. Arusha, 22 January 2004 Judge (Seal of the Tribunal) 17

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International Criminal Tribunal for Rwanda Tribunal P6nal International pour le Rwanda

UNITED NATIONS

NATIONS UNIES Before Judges: Registrar:

TRIAL CHAMBER II William H. Sekule, Presiding Winston C. Matanzima Maqutu Arlette Ramaroson Adama Dieng Original: English Judgment of: 22 January 2004

THE PROSECUTOR V. Jean de Dieu Kamuhanda Case No. ICTR-99-54A-T Judge Maqutu’s Dissent on the Sentence Counsel for the Prosecution: Mr. Marks Moore Mr. Ibukunolu Alao Babajide Ms. Doroth6e Marotine Counsel for the Defence: Ms. Aicha Cond6 Ms, Patricia Mongo Ms. Seynabou Benga Ms. Anta Guisse Senior Trial Attorney Trial Attorney Case Manager Lead Counsel Co Counsel Legal Assistant Legal Assistant

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1. We are dealing with Rwanda. A country which is by no means different from other African countries where tribalism is at places rife and sometimes leads to genocidal civil wars and disorders. The ethnic tensions between Hum and Tutsi are endemic and have previously led to violent killings. It is a unique problem because both the Hum and the Tutsi speak the same language, Kinyarwanda. I understand that they have the same customs, religion and culture. They share names and surnames. Yet, in the past they had separate identity cards.

2. To an outsider, the situation and differences between Hutu and Tutsi are difficult to understand. It should have been easier if the differences were that of class distinction. But they are historical and complex. Perhaps it is similar to that of Patricians and Plebeians in ancient Rome. The tragedy that began with the Gracchi brothers, led to a violent genocidal civil war between Marius and Sulla, the vestiges of this civil war led to the accession of Julius Caesar and the end of the Roman Republic - not long thereafter. It is this blood-letting heritage that Rwandans have to divest themselves of before it is too late. The Rwandan government is presently tackling this issue and searching for ways to end the cycle of killing.

3. In Resolution 1165 of 1998, the Security Council (after reaffirming Resolution 955 of 1994 under which this Tribunal was established) stated Remaining convinced that in the particular circumstances of Rwanda, the prosecution of persons responsible for serious violations of international humanitarian law will contribute to the process of national reconciliation and the maintenance of peace in Rwanda and the region. [Emphasis added] 4. The purpose of this Tribunal (in a traditional judicial fashion) is to firmly and robustly punish genocide and crimes against humanity with the object hopefully of helping Rwanda’s reconciliation. The Government of Rwanda has taken serious steps to deal with some of the offences through the Gacaca courts. Although the offences dealt with by Gacaca may relatively speaking be more individual in scale - they cumulatively constitute the essence of genocide and crimes against humanity. The basis of Gacaca courts is for neighbours and peer groups to participate in the judicial process. Even the judges are ordinary villagers from the same environment. It is before them that the accused must appear and be heard. His alleged failings have to be assessed by people who have been through the same pressures and who can empathise with him. It is before them that the accused has to show penance. Only then can an attempt at moral restitution be worked out. The International Tribunal has no system or guidelines of the nature that Gacaca courts have, to actually put into effect the reconciliation element. These belong to the indigenous Rwandan culture.

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5. At the root of my dissent from the majority is the imposition of life imprisonment on the accused. A life sentence is the highest sentence that this Tribunal may impose. I take the view that sentences should differ depending on the circumstances of each case.

6. Evidence has been given that shows the accused was a good man. It has been shown that he belonged to a group of intellectuals who were not happy with the promotion of ethnic divisions between the Hutu and Tutsi. Prosecution Witness GET has stated he was surprised when the accused chose to remain in the MRND when multi-partyism became State policy in Rwanda. Witness GET (who was made a bourgmestre after the genocide) could not initially entertain allegations that the Accused had committed the crimes with which he is charged. Witnesses however kept on coming with respect to the Accused’s role in events of April 1994. Eventually the authorities had to take notice.

7. Evidence also shows (albeit as hearsay) that the Accused warned his Tutsi friend in Gishaka as early as 30 March 1994 that the Tutsi were going to be killed and advised them to flee. The Accused had married a woman whose mother was a Tutsi and consequently he can not be accused of hatred of the Tutsi. Two or three days before 6 April 1994 (when the President’s plane was shot down), the Accused had visited his Tutsi mother-in-law with his wife and children.

8. The question that the Accused alone can answer is - why did he participate in genocide against the Tutsi?

9. The Accused told the Chamber that he became a Minister because he was afraid to decline the honour. There is evidence from Nkiko Nsengimana (which is not challenged) that Sindikubwabo, whose Tutsi wife had been killed, was fetched from Butare and made Acting President when he believed he was about to be killed. Not long thereafter Acting President Sindikubwabo was addressing meetings saying that the Hutu should "work" and kill Tutsis. It is difficult to believe that the Accused could have been afraid of a regime that was clearly on the verge of falling. We are not being told the whole story.

10. It seems to me that (from the beginning) the Accused went along with the genocide out of opportunism and because his moral courage had deserted him. He ingratiated himself to the powers of the day that were exterminating the Tutsis by leading a genocidal attack on the Tutsi who had sought sanctuary at the Gikomero Protestant Parish. Having acquired the credentials of a genocidaire of the Tutsis, he was now firmly in the camp of the former Rwandan government that was leading the extermination of the Tutsi and moderate Hutu. I do not believe he was compelled to be a Minister - as the Accused would have us believe. The view I take is that the Accused had

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already allowed himself to be used as a tool of the genocidal extremists who were running Rwanda.

11. The Accused’s conduct shows he was probably reluctant to participate in the genocide. He may have been only a public servant involved in matters of higher education and culture, yet, the prestige of the office he held and the high level of his education made him a role model to others. People looked up to him for leadership. For a reason he alone knows (and did not share with the Chamber) he went to Gikomero where Tutsi and Hutu were living together as neighbours - in peace. He led a group of armed Hutus, some of whom were from outside Gikomero, to Gikomero Protestant Parish to go and kill the Tutsi.

12. It is clear from the evidence that all he wanted was to see others do the killing. A person in a position of leadership is answerable as if he had actually killed. It is significant that some of those he incited and led to the killing are probably facing the death penalty in Rwanda. He has given Rwandan Hutus a bad name by violating the customary internationally recognized sanctuary status of the Gikomero Protestant Parish Church.

13. People of stature such as the Accused who was in a position of leadership, cannot be allowed to abdicate moral responsibility and claim they were afraid to do what is expected of them. We have no clear evidence that the political party - MRND, to which Accused belonged, was bent on genocide - and even if it had been, more would be required by law before the Accused could be called upon to account. Consequently the Accused is not being convicted merely because he belonged to the MRND. He is being convicted for inciting unwilling Hutu living in a peaceful neighbourhood with Tutsis to kill them. Some of them had Tutsi wives or, like him, half Tutsi wives. He is also being convicted for leading a group of Tutsi to Gikomero Protestant Parish (which was a sanctuary) to kill unarmed Tutsi that were there. His crime is a very serious one indeed.

14. I believe (in the light of the foregoing) despite the Accused’s lack physical and moral courage at a crucial time, the heinousness of the Accused’s act, the hundreds or thousands that died, that the Accused should not be given the highest sentence of life imprisonment. The Accused must in my view be given a chance to reflect, and if possible learn from his mistakes and teach others - if he becomes so minded. Many people have done a lot of good in prison by writing for those outside prison. Rwandans are his people, perhaps he will be able to add his voice to the many voices that say Rwandans should recognise their common humanity, nationality and destiny.

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Thc Prosecutor v. J.D.K.amuhandaJudgment and Scutc~.cc I would therefore sentence the Accused to: TWENTY FIVE (25) YEARS IMPRISONMENT Less the time the Accused has already spent in custody at the behest of the Tribunal. Arusha, 22 January 2004 Winston C. M. Maqutu Judge (Seal of the Tribunal)

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.A:I,~ s.e,xes

ANNEXES

ANNEX I: List of Cited Sources and Abbreviations

ANNEX II: Indictment of 10 November 2000

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ANNEX I: List of Cited Sources and Abbreviations

Page 243

Annex I - List of Cited Sources and Abbreviations ¯ Intemational Criminal Tribunal for Rwanda, ICTR Reports of Orders, Decisions and Judgements .................................................................... . ........ 1 ¯ List of Cited Judgments and Sentences ................................................... 1 ¯ List of Cited Decisions ............................................................ 4 ¯ List of Other Sources Cited .......................................................... 6 ¯ List of Cited Rwandese Law .......................................................... 6 ¯ List of Abbreviations ............................................................. 6 ¯ International Criminal Tribunal for Rwanda, ICTR Reports of Orders, Decisions and Judgements Long form ICTR Reports of Orders, Decisions and Judgements 1998, (Bruxelles: Bruylant, 2003), Vol. I and II, 1462 pp. ¯ List of Cited Judgments and Sentences Short Form

ICTR Reports, 1998 Long form International Criminal Tribunal for Rwanda The Prosecutor v. Jean-Paul Akayesu Prosecutor v. Akayesu, Case No ICTR-96-4-T, Judgment (TC), 2 September 1998 (ICTR Reports, 1998, pp.44-404). Prosecutor v. Akayesu, Case No ICTR-96-4-A, Judgment (AC), 1 June 2001. The Prosecutor v. Ignace Bagilishema Prosecutor v. Bagilishema, Case No ICTR-95-1A-T, Judgment (TC), 7 June 2001. Prosecutor v. Bagilishema, Case No ICTR-95-1A- A, Judgment (AC), 3 July 2001. The Prosecutor v. Clement Kayishema and Obed Ruzindana Prosecutor v. Kayishema and Ruzindana, Case No ICTR-95-1- T, Judgment (TC), 21 May 1999. Prosecutor v. Kayishema and Ruzindana, Case No ICTR-95-1- A, Judgment (AC), 1 June 2001. Short form Akayesu, Judgment (TC). Akayesu, Judgment (AC). Bagilishema, Judgment (TC). Bagilishema, Judgment (AC). Kayishema and Ruzindana, Judgment (TC). Kayishema and Ruzindana, Judgment -1-

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The Prosecutor v. Alfred Musema Prosecutor v. Musema, Case No ICTR-96-13-T, Judgment (TC), 27 January 2000. Prosecutor v. Musema, Case No ICTR-96-13-A, Judgment (AC), 16 November 2001. (AC). Musema, Judgment (TC). Musema, Judgment (AC). The Prosecutor v. Elizaphan Ntakirutimana and Gdrard Ntakirutimana Prosecutor v. NtaMrutimana and NtaMrutimana, Case No ICTR-96-10 & ICTR-96-17-T, Judgment (TC), 21 February 2003. The Prosecutor v. Elieser Niyitegeka Prosecutor v. Niyitegeka, Case No ICTR-96-14-T, Judgment (TC), 16 May 2003. The Prosecutor v. Georges Anderson Nderubumwe Rutaganda Prosecutor v. Rutaganda, Case No ICTR-96-3-T, Judgment (TC), 6 December 1999. Prosecutor v. Rutaganda, Case No ICTR-96-3-A, Judgment (AC), 26 May 2003. The Prosecutor v. Laurent Semanza Prosecutor v. Semanza, Case No ICTR-97-20-T, Judgment (TC), 15 May 2003. Ntakirutimana and Ntakirutimana, Judgment (TC). Niyitegeka, Judgment (TC). Rutaganda, Judgment (TC). Rutaganda, Judgment (AC). Semanza, Judgment (TC). International Criminal Tribunal for the former Yugoslavia The Prosecutor v. Aleksovski Prosecutor v. Aleksovski, Case No IT-95-14-A, Judgment (TC), 25 June 1999. Prosecutor v. Aleksovski, Case No IT-95-14-A, Judgment (AC), 30 May 2001. The Prosecutor v. Blaskic Prosecutor v. Blaskic, Case No IT-95-14-T, Judgment (TC), March 2000. The Prosecutor v. Delalic et aL Aleksovski, Judgment (TC). Aleksovski, Judgment (AC). Blasldc, Judgment (TC). -2-

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A.lx~t.ex, t. Prosecutor v. Zejnil Delalie, Zdravko Mucic also known as "Pavo ’" Hazim Delic, Esad Landzo also known as "Zenga ", Case No: IT-96-21-A, Judgment (TC), 16 November 1998. Prosecutor v. Zejnil Delalic, Zdravko Mucic also known as "Pavo’, Hazim Delic, Esad Landzo also known as "Zenga ", Case No: IT-96-21-A, Judgment (AC), 20 February 2001. The Prosecutor v. Furundzija Prosecutor v. Furundzija, Case No IT-95-17/1-T, Judgment (TC), 10 December 1998. The Prosecutor v. Jelisic Prosecutor v. Jelisic, Case No IT’95-10-T, Judgment (TC), December 1999. The Prosecutor v. Kordic and Cerkez Prosecutor v. Kordic and Cerkez, Case No IT-95-14/2-T, Judgment (TC), 26 February 2001. The Prosecutor v. Krnojelac Prosecutor v. Krnojelac, Case No IT-97-25-T, Judgment (TC), 15 March 2001. The Prosecutor v. Krstic Prosecutor v. Krstic, Case No IT-98-33-T, Judgment (TC), August 2001. The Prosecutor v. Kunarac, Vukovic and Kovac Prosecutor v. Kunarac, Vukovic and Kovac, Case No IT-96- 23-T and 96-23/1, Judgment (TC), 22 February 2001. Prosecutor v. Kunarac, Vukovic and Kovac, Case No IT-96- 23-T and 96-23/1, Judgment (AC), 12 June 2002. The Prosecutor v. Kupreskic Prosecutor v. KupresMc, Case No IT-95-16-T, Judgment (TC), 14 January 2000. Prosecutor v. Kupreskic, Case No, Judgment (AC), 21 October 2001. The Prosecutor v. Kvocka Delalic et al. (Celebici Case), Judgment (TC). Delalic et al. (Celebici Case), Judgment (AC). Furundzija, Judgment (TC). Jelisic, Judgment (TC). Kordic and Cerkez, Judgment (TC). Krnojelac, Judgment (TC). Krstic, Judgment (TC). Kunarac, Vukovic and Kovac, Judgment (TC). Kunarac, Vukovic and Kovac, Judgment (AC). Kupreskic, Judgment (TC). Kupreskic, Judgment (AC). -3-

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Prosecutor v. Kvocka, Case No IT-98-30/1-T, Judgment (TC), 2 November 2001. The Prosecutor v. Stakic Prosecutor v. Stala’c, Case No IT-97-24-T, Judgment (TC), July 2003. The Prosecutor v. Tadic Prosecutor v. Tadic, Case No IT-94-1-T, Opinion and Judgment (TC), 7 May 1997. Prosecutor v. Tadic, Case No IT-94-1-A, Judgment (AC), July 1999. The Prosecutor v. Vasiljevic Prosecutor v. Vasiljevic, Case No IT-98-32-T, Judgment (TC), 29 November 2002. Kvocka, Judgment (TC). Staldc, Judgment (TC). Tadic, Judgment (TC). Tadic, Judgment (AC). Vasiljevic, Judgment (TC). ¯ List of Cited Decisions Long form The Prosecutor v. Jean de Dieu Kamuhanda Prosecutor v. Kamuhanda, Case No ICTR-99-54-A-T, Decision On the Prosecutor’s Motion for Protective Measures for Witness (TC), 7 July 2000. Prosecutor v. Kamuhanda, Case No ICTR-99-54-T, Decision On the Defence Motion for Severance and Separate Trial Filed by the Accused (TC), 7 November 2000. Prosecutor v. Kamuhanda, Case No ICTR-99-54-T, Decision On Jean de Dieu Kamuhanda’s Motion for Protective Measures for Defence Witnesses (TC), March 2001. Prosecutor v. Kamuhanda, Case No ICTR-99-54-T, President’s Order in Terms of Rule 15bis(C) on Proceedings (TC), 20 August 2001. Prosecutor v. Kamuhanda, Case No ICTR-99-54A-T, Decision On The Prosecutor’s Motion To Add Witnesses GKI, GKJ and GKL (TC), 6 February 2002. Short form Kamuhanda, Decision 7 July 2000, Protective Measures for Witness (TC). Kamuhanda, Decision 7 November 2000, Severance and Separate Trial (TC). Kamuhanda, Decision 22 March 2001, Protective Measures for Defence Witness (TC). Kamuhanda, Decision 20 August 2001, President’ s Order on Proceedings (TC). Kamuhanda, Decision 6 February 2002, To The Prosecutor’s Motion To Add Witnesses (TC). -4-

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Prosecutor v. Kamuhanda, Case No ICTR-99-54A-T, Decision On The Defence Motion To Correct a Material Error in The Notice of Alibi (TC), 8 April 2002. Prosecutor v. Kamuhanda, Case No ICTR-99-54A-T, Decision On Kamuhanda’s Motions for Extension of Judicial Cooperation to Certain States and to the UNHCR Pursuant to Article 28 of the Statute and Resolution 955 of the Security Council (TC), 9 May 2002. Prosecutor v. Kamuhanda, Case No ICTR-99-54-A-T, Decision On Kauhanda’s Motion for Partial Acquittal Pursuant to Rule 98bis of Procedure and Evidence (TC), 20 August 2002. Prosecutor v. Kamuhanda, Case No ICTR-99-54-A-T, Decision On The Prosecutor’s Motion for Leave to Call Rebuttal Evidence Pursuant to Rule 85(A)(iii) of Rules of Procedure and Evidence (TC), 13 May 2003. Prosecutor v. Kamuhanda, Case No ICTR-99-54-A-T, Decision On Kamuhanda’s Motion to Admit into Evidence Two Statements by Witness GER in Accordance with Rules 89(C) and 92bis of the Rules of Procedure and Evidence (TC), 20 May 2002, filed on May 2003. Prosecutor v. Kamuhanda, Case No ICTR-99-54-A-T, Corrigendum to the Decision On Kamuhanda’s Motion to Admit into Evidence Two Statements by Witness GER in Accordance with Rules 89(C) and 92bis of the Rules of Procedure and Evidence (TC), 22 May 2003. The Prosecutor v. Brdjanin, Talic and Zupljanin Prosecutor v. B rdjanin, Talic and Zupljanin, Case N

o IT-99-36, Decision On Form of Further Amended Indictment and Prosecution Application to Amend, 26 June 2001. The Prosecutor v. Augustin Ngirabatware and Jean De Dieu Kamuhanda Prosecutor v. Ngirabatware and Jean De Dieu Kamuhanda, Case No ICTR-99-54-I, Confirmation of the Indictment and Order of Non-Disclosure (TC), October 1999. Prosecutor v. Ngirabatware and Jean De Dieu Kamuhanda, Case No ICTR-99-54-I, Request for the Kamuhanda, Decision 8 April, Correct a Material Error (TC). Kamuhanda, Decision 9 May 2002, Extension of Judicial Cooperation to Certain States and to the UNHCR (TC). Kamuhanda, Decision 20 August 2002, Partial Acquittal (TC). Kamuhanda, Decision 13 May 2003, Motion for Leave to Call Rebuttal Evidence (TC). Kamuhanda, Decision 20 May 2002 filed on 21 May 2003, Admit into Evidence Statements by Witness GER (TC). Kamuhanda, Corrigendum 22 May 2003, Admit into Evidence Statements by Witness GER (TC). Brdjanin, Talic and Zupljanin, Decision 26 June 2001, On Form of Amended Indictment (TC). Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, Confirmation of the Indictment and Order of Non-Disclosure (TC). Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, -5-

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Arrest and Transfer (TC), 1 October 1999. Prosecutor v. Ngirabatware and Jean De Dieu Kamuhanda, Case No ICTR-99-54-I, Warrant of Arrest and Order for Transfer and Detention (TC), 1 October 1999. Request for the Arrest and Transfer (TC). Ngirabatware and Jean De Dieu Kamuhanda, 1 October 1999, Warrant of Arrest and Order for Transfer and Detention (TC). [] List of Other Sources Cited Long form Mewett & Manning, Criminal Law, (3rd 1994) Geneva Conventions Commentary, (1958) International Law Commission, Report of the International Law Commission on the work of its forty-eighth session 6 May- 26 July 1996, UN General Assembly Official Records, Fifty- first Session, Supp. No. 10, UN Doc A/51/10. Report of the Secretary-General on the Situation in Rwanda, UN Doc. S/1994/924 Preliminary Report of the Independent Commission of Experts Established Pursuant to Security Council Resolution 935 (1994), UN Doc. S/1994/1125 Reports of the Special Rapporteur for Rwanda of the UN Commission on Human Rights, UN Doc. S/1994/1157, Annexes I and II United Nations Security Council Resolution 955, UN Doc. S/RES/955 (1994) Short form Mewett & Manning, Criminal Law ILC Report 1996, Draft Code of Crimes Against the Peace and Security of Mankind. UNSG Report on Rwanda, 1994/924. Expert Report Pursuant UNSC Resolution 935, 1994/1125. Special Rapporteur Reports, 1994/1157. UNSC Resolution 9 55 (1994). [] List of Cited Rwandese Law D6cret-loi no8/75 du 12 f6vrier 1975 sur la Convention sur le g6nocide (Journal Officiel, 1975, p.230), in Codes et lois du Rwanda, Universit6 nationale du Rwanda, 2"ded., 1995, Vol. I, pp. 444-445. [] List of Abbreviations Long form Transcripts in English of the hearing (Closed session) on the Short form T. 3 September 2001, p. -6-

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Fhe Prosecutor v~ Jeai~ de Die~l Kam~l,,a~~da An~ex I September 2001, p.

180. Witness GEK. Transcripts in English of the hearing (Open session) on the September 2001, p.

15. Witness GEK. Transcripts in French of the hearing (Closed session) on the July 2001, p.

111. Witness GEK. Transcripts in French of the hearing (Open session) on the September 2001, p.

40. Witness GEK. Prosecution Exhibit No 4 (see: Exhibits list) The Prosecutor v. Kamuhanda Indictment of 10 November 2000 (Certified copy annexed) Statute of the ICTR Rules of Procedure and Evidence Trial Chamber II International Criminal Tribunal for Rwanda United Nations Security Council United Nations International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Article 3 common to the Geneva Conventions Mouvement Rdvolutionnaire National pour le D6veloppement [before July 1991 ] Mouvement R6publicain National pour la D6mocratie et le D6veloppement [After July 1991 ] Mouvement d6mocratique r@ublicain Rwandan Patriotic Front Forces armdes rwandaises 180 (GEK) (ICS). T. 4 September 2001, p. 15 (GEK). T. 3 Septembre 2001, p. 111 (GEK) (HC). T. 13 Septembre 2001, p. 40 (GEK). Prosecution Exhibit, P4 Indictment Statute (The) Rules (The) Chamber (The) Tribunal (The)

UNSC

UN

ICTR

ICTY Common Article 3

MRND

MRND

MDR

RPF FAR -7-

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ANNEX II: Indictment of 10 November 2000

Page 251

INTERNATIONAL

CRIMINAL

TRIBUNAL

FOR RWANDA

TRIBUNAL

PENAL INTERNATIONAL

POUR LE RWANDA Case No.: ICTR-99-54A No. de dossier: ICTR-99-54A

THE PROSECUTOR

AGAINST

JEAN DE DIEU KAMUHANDA

INDICTMENT

LE PROCUREUR

DU TRIBUNAL

COOTIE JEAN DE DI~~ KAMU~NDA "q ACTE D’A~USATItDN- The Prosecutor of the International Criminal Tribunal for Rwanda, pursuant to the authority stipulated in Article 17 of the Statute of the International Criminal Tribunal for Rwanda (the Statute of the Tribunal) charges: Le Procureur du Tribunal P6nal International pour le Rwanda, en vertu des pouvoirs que lui conf6re l’article 17 du Statut du Tribunal P6nal International pour le Rwanda (le Statut du Tribunal) accuse:

JEAN DE DIEU KAMUHANDA

JEAN DE DIEU KAMUHANDA With

CONSPIRACY

TO COMMIT GENOCIDE; GENOCIDE, or alternatively COMPLICITY IN GENOCIDE; CRIMES AGAINST HUMANITY and VIOLATIONS

OF ARTICLE 3 COMMON

TO THE

GENEVA

CONVENTIONS AND ADDITIONAL PROTOCOL II, offences stipulated in Articles 2, 3, and 4 of the Statute of the Tribunal. h~terna~-h:m~J Crimi~at T~*ibi~:nal ~’or Rwanda Tribuna~ pt~nal intera~~.~i~mat pour le Rwanda CERTIFIED TRUF., COPY OF THE O~.~[(;INAI~ SEEN BY ME COIqE CERTIF[EE CONI;’Ot~ME A L’ORt(ilNAL E~R NOUS D’ENTENTE EN VUE DE COMMETTRE LE GI~NOCIDE; GI~NOCIDE ou altemativement, GENOCIDE; L’HUMANITI~, L’ARTICLE

CONVENTIONS

COMPLICITE

DE

CRIMES

CONTRE et de VIOLATIONS DE 3 COMMUN

AUX

DE GENEVE

ET DU PROTOCOLE ADDITIONEL II, crimes pr6vus aux articles 2, 3 et 4 du Statut du Tribunal.

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1. HISTORICAL CONTEXT 1. HISTO~CAL

CONTEXT 1.1 The revolution of 1959 marked the beginning of a period of ethnic clashes between the Hutu and the Tutsi in Rwanda, causing hundreds of Tutsi to die and thousands more to flee the country in the years immediately following. The revolution resulted in the abolition of the Tutsi monarchy and the proclamation of the First Republic in early 1961, confirmed in a referendum held in the same year. Legislative elections held in September 1961 confirmed the dominant position of the MDR-PARMEHUTU (Mouvement Ddmocratique R@ublicain- Parti du Mouvement d’Emancipation Hutu), led by Gr6goire Kayibanda, who was subsequently elected President of the Republic by the Legislative Assembly on 26 October 1961. 1.2 The early years of the First Republic, which was under the domination of the Hutu of central and southern Rwanda, were again marked by ethnic violence. The victims were predominantly Tutsi, the former ruling elite and those related to them, who were killed, driven to other regions of Rwanda or forced to flee the country. The gradual elimination of the opposition parties in those early years confirmed the MDR-

PARMEHUTU as the single party, the only party to present candidates in the elections of 1965. 1.3 The early part of 1973 in Rwanda was again marked by ethnic confrontations between the Hutu and Tutsi, prompting another exodus of the Tutsi minority from the country, as had occurred between 1959 and 1963. This new outburst of ethnic and political tension between the North and 1.

CONTEXTE HISTORIQUE 1.1 La r6volution de 1959 marque le d6but d’une p6riode d’ affrontements ethniques entre les Hutu et les Tutsi au Rwanda, provoquant au cours des ann6es qui ont imm6diatement suivi, des centaines de morts chez les Tutsi et l’exode de milliers d’entre eux. Cette r6volution entraine l’abolition de la monarchie Tutsi et la proclamation de la Premi6re R6publique au d6but de l’ann6e 1961, confirm6e par r6f6rendum au cours de la m6me ann6e. Les 61ections 16gislatives de septembre 1961 confirme la domination du MDR- PARMEHUTU (Mouvement D6mocratique R6publicain-Parti du Mouvement dt~mancipation Hutu) de Gr6goire Kayibanda, qui est 61u Pr6sident de la R6publique par l’assembl6e 16gislative le 26 octobre 1961. 1.2 Les premibres ann6es d’existence de cette r6publique, domin6e par les Hutu du centre et du sud du Rwanda, sont de nouveau marqu6es par la violence ethnique. Les victimes furent principalement des Tutsi, l’ancienne 61ite dirigeante, et leurs alli6s; ceux-ci furent tu6s, chass6s vers d’autres r6gions du Rwanda ou forc6s de s’enfuir du pays. L’61imination progressive des partis d’opposition durant ces premieres ann6es confirme le MDR-PARMEHUTU comme parti unique, qui est le seul /~ pr6senter des candidats aux 61ections de 1965. 1.3 Le d6but de l’ann6e 1973 au Rwanda est de nouveau marqu6 par des affrontements ethniques entre Hutu et Tutsi qui provoquent, apr6s ceux de 1959/t 1963, un nouvel exode de la minorit6 Tutsi. Cette recrudescence des tensions ethniques et politiques (entre le Nord et le Sud) aboutit,

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1.

CONTEXTE HISTORIQUE South resulted in a military coup by General Juv6nal Habyarimana on 5 July 1973, shifting power from civilian to military hands and from Hutu of central Rwanda to Hutu of the northern prdfectures of Gisenyi (Habyarimanas native region) and Ruhengeri. 1.4 In 1975, President Habyarimana founded the Mouvement R~volutionnaire National pour le Ddveloppement (MRND), single party, and assumed the position of party Chairman. The administrative and party hierarchies were indistinguishable in this single party state from the level of the PrOfet to the bourgmestres, and down to that of the conseillers de secteur and responsables de cellule. 1.5 From 1973 to 1994, the government of President Habyarimana used a system of ethnic and regional quotas which was supposed to provide educational and employment opportunities for all but which was used increasingly to discriminate against both Tutsi and Hutu from regions outside the northwest. In fact, by the late 1980’s, persons from Gisenyi and Ruhengeri occupied many of the most important positions in the military, political, economic and administrative sectors of Rwandan society. Among the privileged elite, an inner circle of relatives and close associates of President Habyarimana and his wife, Agathe Kanziga, known as the Akazu, enjoyed great power. This select group, almost exclusively Hutu, was supplemented by

individuals who shared its extremist Hutu ideology, and who came mainly from the native region of the President and his wife. le 5 juillet 1973, /~ un coup d’l~tat militaire men6 par Ie G6n6ral Juv6nal Habyarimana. Le cofit d’t~tat entraine un renversement du pouvoir, qui passe des mains des civils celles des militaires et de celles des Hutu du centre du Rwanda /t celles des Hutu des pr6fectures de Gisenyi et Ruhengeri au nord du pays (r6gion natale du Pr6sident Habyarimana). 1.4 En 1975, le pr6sident Habyarimana fonde le Mouvement R6volutionnaire National pour le D6veloppement (MRND), parti unique, dont il assume la pr6sidence. La structure administrative et la hierarchic du MRND se confondent en un v6ritable parti-l~tat /t tous les niveaux de l’administration territoriale, du Pr6fet aux Bourgmestres, jusqu’aux conseillers de secteurs et responsables de cellule. 1.5 De 1973/t 1994, le gouvernement du Pr6sident Habyarimana applique un systbme de quotas bas6 sur l’origine ethnique et r6gionale qui 6tait cens6 offrir des chances 6gales /t tous en mati6re d’6ducation et d’ emploi, mais qui fut utilis6 progressivement de mani6re discriminatoire /t l’encontre des Tutsi et des Hutu originaires d’autres r6gions que le nord-ouest. De fait, /t la fin des ann6es 1980, plusieurs des postes les plus importants dans les secteurs militaires, politiques, 6conomiques et administratifs de la soci6t6 rwandaise 6taient occup6s par des personnes originaires de Gisenyi et Ruhengeri. Parmi l’61ite privil6gi6e, un noyau, connu sous l’appellation Akazu, compos6 de membres de la famille et d’intimes du Pr6sident Habyarimana et de son 6pouse, Agathe Kanziga, jouit d’un grand pouvoir. Aux membres de ce groupe, presque exclusivement Hutu, se joignent des personnes qui en partagent l’id6ologie Hutu

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1. HISTORICAL CONTEXT extr6miste et qui sont principalement originaires de la r6gion natale du Pr6sident et de son 6pouse. 1.6 In 1990, the President of the Republic, Juv6nal Habyarimana, and his single party, the MRND, were facing mounting opposition including from other Hutu. 1.6 Au cours de l’ann6e 1990, le Pr6sident de la R6pubique, Juv6nal Habyarimana, et son parti unique, le MRND, font face g une opposition grandissante, notamment de la part d’autres Hutu. 1.7 On 1 October 1990, the Rwandan Patriotic Front (RPF), made up mainly Tutsi refugees, attacked Rwanda. Within days the government began arresting thousands of people, presumed to be opponents of Habyarimana and suspected of being RPF accomplices. Although the Tutsi were the main target, Hutu political opponents were also arrested. 1.7 Le ler octobre 1990, le Front Patriotique Rwandais (FPR), compos6 majoritairement de r6fugi6s Tutsi, attaque le Rwanda. Dans les jours qui suivent, le gouvernement proc6de /t l’arrestation de milliers de personnes pr6sum6es 6tre des adversaires d’Habyarimana et soupgonn6es de complicit6 avec le FPR. Parmi les p ersonnes arr~t6es, maj oritairement d’origine Tutsi, il y a 6galement des opposants politiques Hutu. 1.8 Following pressure from the internal opposition and the international community, and the RPF attack of October 1990, President Habyarimana permitted the introduction of

multiple political parties and the adoption of a new constitution on 10 June 1991. The Mouvement R~volutionnaireNational pour le D~veloppement(MRND) was renamed Mouvement R@ublicain National pour la Ddmocratie et le D~veloppement (MRND). The first transitional government was made up almost exclusively of MRND members, following the refusal of the main opposition parties to take part. With the second transitional government in April 1992, the

MRND became a minority party for the first time in its history, with nine ministerial portfolios out of 19. By contrast, the MRND retained its domination over the local administration. 1.8 Suite aux diff6rentes pressions de l’opposition interne et de la communaut6 internationale, et ~ l’attaque du FPR doctobre 1990, le Pr6sident Habyarimana autorise l’introduction du multipartisme et l’adoption dune nouvelle constitution le 10 juin 1991. Le Mouvement R~volutionnaire National pour le D~veloppement (MRND) est alors rebaptis6 Mouvement R@ublicain National pour la Ddmocratie et le D~veloppement (MRND). Le premier Gouvemement de transition est compos6 presque exclusivement de membres du MRND, suite au refus des principaux partis d’opposition d’en faire partie. Avec la mise en place du second Gouvemement de transition en avril 1992, le MRND se retrouve minoritaire pour la premi6re fois de son histoire, avec neuf portefeuilles minist6riels sur 19. Par contre, le MRND demeure fortement dominant au niveau de

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CONTEXTE HISTORIQUE l’administration territoriale. 1.9 The new government then entered into negotiations with the RPF, which resulted in the signing of the Arusha Accords on 4 August 1993. The Accords provided for a new system of sharing military and civilian power between the RPF, the opposition parties and the MRND. 1.9 Le nouveau Gouvernement entame alors des n6gociations avec le FPR qui aboutissent le 4 aofit 1993 g la signature des Accords d’Arusha. Ces Accords pr6voient un nouveau partage des pouvoirs militaires et civils entre le FPR, les partis d’opposition et le MRND. 1.10 By the terms of the Arusha Accords, which provided for the integration of both sides armed forces, the new national army was to be limited to 13,000 men, 60% FAR (Forces Armdes Rwandaises) and 40% RPF. The positions of command were to be shared equally (50%-50%) between the two sides, with the post of Chief of Staff of the Army assigned to the FAR. The Gendarmerie was to be limited to 6,000 men, 60% FAR and 40% RPF, with the positions of command shared equally (50%-50%) between the two sides and the post of Chief of Staff of the Gendarmerie assigned to the RPF. 1.10 Aux termes des Accords d’Arusha qui pr6voient l’int6gration des forces arm6es des deux parties, l’effectif de la nouvelle arm6e nationale est limit6 g 13 000 hommes dont 60% proviennent des FAR (Forces Arm6es Rwandaises) et 40% du FPR.

Quant aux postes de commandement, ils sont attribu6s/t parts 6gales (50%-50%) aux deux parties, le poste de Chef d’l~tat Major de l’arm6e revenant aux FAR. L’effectif de la Gendarmerie est limit6 /t 6 000 hommes, compos6 de 60% des FAR et 40% du FPR, avec les postes de commandement r6partis 6quitablement (50%-50%) entre les deux parties, le poste de Chef d’l~tat Major de la Gendarmerie revenant au FPR. 1.11 As regards representation within the government, the Arusha Accords limited the number of ministerial portfolios to be held by the MRND to five, plus the Presidency. The other portfolios were to be shared as follows: RPF, five; MDR (Mouvement d~mocratique r@ublicain), four (including the post of Prime Minister); PSD (Parti social-ddmocrate), three; PL (Parti liberal), three; and the PDC (Patti d~mocrate- chr~tien), one. 1.11 Au niveau de la repr6sentation au sein du gouvernement, les Accords d’Arusha limitent /t cinq le nombre de portefeuilles minist6riels du MRND en plus de la Pr6sidence de la R6publique. Les autres portefeuilles se r6partissent ainsi" cinq pour le FPR, quatre pour le MDR (Mouvement d~mocratique r@ublicain) dont le poste de premier Ministre, trois pour le PSD (Parti social-ddmocrate), trois pour le PL (Parti libdral) et un pour le PDC (Parti ddmocrate-chr~tien ). 1.12 For the men and women close to President Habyarimana, including the members of the Akazu, who held positions 1.12 Pour les hommes et les femmes proches du Pr6sident Habyarimana, parmi lesquels les membres de l’Akazu, qui

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1. HISTORICAL CONTEXT of prominence in the various sectors of Rwandan society, this new power sharing plan, as demanded by the political opposition and as stipulated in the Arusha Accords, meant a relinquishment of power and the loss of numerous privileges and benefits. With political changes following the establishment of the multi-party government of April 1992, several important military officers from the north had been forced to retire. At the same time, many of the military were facing massive demobilisation with the implementation of the Arusha Accords. 1.13 From 1990, President Habyarimana and several of his close associates devised the strategy of inciting hatred and fear of the Tutsi minority as a way of rebuilding solidarity among Hutu and keeping themselves in power. They strongly opposed any form of power sharing, including the one envisaged by the Arusha Accords. 1.14 Determined to avoid the power sharing prescribed by the Arusha Accords, several prominent civilian and military figures pursued their strategy of ethnic division and incitement to violence. They targeted and labeled as RPF accomplices the entire Tutsi population, and also Hutu opposed to their domination, particularly those from regions other than northwestern Rwanda. At the same time, they sought to divide Hutu opposition parties, attracting some of their members back to the support of

Habyarimana. These efforts to divide the Hutu opposition were favored by the assassination of Melchior Ndandaye, a democratically elected Hutu President in neighboring Burundi, by Tutsi soldiers of the Burundi army. By late 1993, two of the occupaient des fonctions importantes au sein des divers secteurs de la soci6t6 rwandaise, ce nouveau partage du pouvoir, tel qu’exig6 par les opposants politiques et stipul6 par les Accords d’Arusha, signifie l’abandon du pouvoir et la perte de nombreux privilbges et d’importants b6n6fices. Les changements politiques cons6cutifs it l’6tablissement dun r6gime multipartite en avril 1992 obligent plusieurs officiers militaires importants, originaires du Nord, it prendre leur retraite. En mSme temps, l’application des Accords d’Arusha confronte plusieurs militaires /t une d6mobilisation massive. 1.13 A partir de 1990, le Pr6sident Habyarimana et plusieurs de ses plus proches collaborateurs congoivent une strat6gie d’incitation/t la haine et it la peur face it la minorit6 Tutsi, afin de r~tablir la solidarit6 parmi les Hutu et de se maintenir au pouvoir. Ils s’opposent fortement it toute forme de partage du pouvoir et particuli~rement au partage pr6vu par les Accords d’Arusha. 1.14 D6termin6es it 6viter le partage des pouvoirs pr6vu par les Accords d’Arusha, plusieurs personnalit6s civiles et militaires en vue poursuivent leur strat6gie de

conflit ethnique et d’incitation it la violence. Elles visent la population Tutsi tout enti6re, qui est qualifi6e de complice du FPR, de m~me que les Hutu oppos6s it leur domination, particuli6rement ceux qui sont originaires d’autres r6gions que le nord-ouest du Rwanda. Parall61ement, elles tentent de diviser les partis d’opposition Hutu, en ramenant certains de leurs membres dans le camp d’Habyarimana. Les efforts destin6s it diviser l’opposition Hutu sont favoris6s par l’assassinat, par des soldats Tutsi de l’arm6e burundaise, de Melchior Ndandaye, pr6sident Hutu d6mocratiquement 61u dans 1

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CONTEXTE HISTORIQUE three major parties opposed to the MRND had each split into two factions. The faction of each known as the Power faction aligned itself with the MRND. e Burundi voisin. A la fin de 1993, deux des trois principaux partis oppos6s au MRND s’6taient divis6s en deux factions chacun. Les factions connues sous le nom de Power s’allient au MRND. 1.15 The strategy adopted in the early 1990s, which culminated in the widespread massacres of April 1994, comprised several components, which were carefully worked out by the various prominent figures who shared the extremist Hutu ideology, including the members of the Akazu. In addition to incitement to ethnic violence and the extermination of the Tutsi and their accomplices, was the organization and military training of the youth wings of the political parties, notably the Interahamwe (youth wing of the MRND), the preparation of lists of people to be eliminated, the distribution of weapons to civilians, the assassination of certain political opponents and the massacre of many Tutsi in various parts of Rwanda between October 1990 and April 1994. 1.15 La strat6gie adopt6e au d6but des ann6es 90, qui va connaitre son apog6e avec les massacres g6n6ralis6s d’avril 1994, comporte plusieurs 616ments qui sont soigneusement 61abor6s par les diff6rentes personnalit6s qui partagent cette id6ologie extr6miste, dont les membres de

l’Akazu. A, l’incitation ~ la violence ethnique et l’extermination des Tutsi et de leurs complices, s’ajoutent l’organisation et l’entrainement militaire des jeunesses politiques, notamment les Interahamwe (jeunesses du MRND), la pr6paration listes de personnes ~ 61iminer, la distribution d’armes ~ des civils, l’assassinat de certains opposants politiques et le massacre de nombreux Tutsi dans diverses r6gions du Rwanda entre octobre 1990 et avril 1994. 1.16 Incitement to ethnic hatred took the form of public speeches by people sharing the extremist ideology. These political and military figures publicly appealed to hatred and fear of the Tutsi and urged the Hum majority to finish off the enemy and its accomplices. A perfect illustration is the speech made in November 1992 by L6on Mugesera, vice-chairman of the MRND for Gisenyi prOfecture, who at the time was already inciting the public to exterminate the Tutsi and their accomplices. With the intention of ensuring widespread dissemination of the calls to ethnic violence, prominent figures from the Presidents circle set up true hate media. 1.16 L’incitation ~ la haine ethnique prend la forme de discours publics prononc6s par des personnalit6s partageant cette id6ologie extr6miste. Ces personnalit6s politiques et militaires appellent publiquement /t la haine et /t la peur des Tutsi et exhortent la majorit6 Hutu ~ en

finir avec l’ennemi et ses complices. Le discours prononc6 en novembre 1992 par L6on Mugesera, vice-pr6sident du MRND pour la pr6fecture de Gisenyi, qui d6s cette 6poque incitait publiquement ~t l’extermination des Tutsi et leurs complices, en est la parfaite illustration. Dans le but d’assurer une large diffusion de ces appels /t la violence ethnique, des personnalit6s de l’entourage du Pr6sident mettent sur pied de v6ritables

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1. HISTORICAL CONTEXT Thus the creation of Radio TOlOvision Libre des Mille Collines (RTLM) and of the newspaper Kangura was a part of the strategy and pursued the same logic. 1.17 The creation of the youth wings of the political parties, originally established to encourage or even force adherence to one or another party in the newly-established multi- party system, provided Habyarimanas circle with a large, devoted and effective workforce to implement the adopted strategy. These youth organizations, which were affiliated to the political parties, were soon manipulated as part of the anti-Tutsi campaign. Some of the members of these organizations, notably the Interahamwe (MRND), were organized into militia groups, which were financed, trained and led by prominent civilians and military figures from the President of the Republics entourage. They were issued weapons, with the complicity of certain military and civilian authorities. The militia groups were transported to training sites, including certain military camps, in public administration vehicles or vehicles belonging to companies controlled by the Presidents circle. 1.18 During the mass arrests of October 1990, the civilian and military authorities followed lists that had been drawn up in order to identify and locate the presumed accomplices of the RPF, the majority of whom were Tutsi. Later, Army, Gendarmerie, local

authorities and Interahamwe were given orders to prepare new lists or update the existing ones, which were subsequently used during the massacres of 1994. In March 1993, such a list was found in the vehicle of the Army Chief of Staff. m6dia de la haine. La cr6ation de la Radio T616vision Libre des Mille Collines (RTLM) et du journal Kangura participe de cette strat6gie et s’inscrit dans cette logique. 1.17 La cr6ation des ailes jeunesses des partis politiques, qui avait /~ l’origine pour objectif d’encourager ou m~me de forcer l’adh6sion /t l’un ou l’autre des partis du nouveau r6gime multipartite, va fournir /t l’entourage d’Habyarimana une main d’oeuvre d6vou6e, nombreuse et efficace pour mettre en oeuvre la strat6gie adopt6e. Ces organisations de jeunesse affili6es aux partis politiques sont tr6s vite manipul6es dans le cadre de la campagne anti-Tutsi. Des membres de ces organisations, particuli6rement les Interahamwe-MRND , sont organis6s en milices, financ6es, entrain6es et dirig6es par des personnalit6s civiles et militaires de l’entourage du Pr6sident de la R6publique. Des armes leur sont distribu6es avec la complicit6 de certaines autorit6s militaires et civiles. Leur transport vers les sites d’entra~nement, dont certains camps militaires, est assur6 par des v6hicules de l’administration publique ou appartenant ~ des soci6t6s contr616es par l’entourage du

Pr6sident. 1.18 Lors des arrestations massives d’octobre 1990, les autorit6s civiles et militaires se r6f6rent /t des listes 6tablies pour identifier et localiser les pr6sum6s complices du FPR, en majorit6 Tutsi. Par la suite, l’Arm6e, la Gendarmerie, les autorit6s locales et les Interahamwe regoivent des directives pour pr6parer de nouvelles listes ou tenir ~t jour les listes existantes, qui vont servir lors des massacres de 1994. En mars 1993, une telle liste est retrouv6e dans le v6hicule du Chef d’l~tat Major de l’Arm6e.

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CONTEXTE HISTORIQUE 1.19 Towards the end of 199I, certain Rwandan authorities distributed weapons to certain civilians in the north-eastern region of the country as part of a civil self-defence campaign, in reaction to the RPF attack of October 1990. Later, some authorities distributed weapons nationwide, notably to the Interahamwe and carefully selected individuals, even in regions distant from the war zone. Towards the end of 1993, the Bishop of Nyundo criticized the distribution of weapons in a public letter and questioned its purpose. 1.19 Vers la fin de 1991, certaines autorit6s rwandaises distribuent des armes/t certains membres de la population civile du nord-est du pays dans ie cadre de la campagne d’auto-d6fense civile en r6action /t l’attaque du FPR d’octobre 1990. Plus tard, en dehors du cadre de l’auto-d6fense civile, des armes sont distribu6es dans tout le pays par des autorit6s, notamment aux Interahamwe et ~ des personnes soigneusement choisies, m6me dans des r6gions 61oign6es de la zone de guerre. Vers la fin de 1993, l’t~v6que de Nyundo critique dans une lettre publique cette distribution d’armes, s’interrogeant sur sa finalit6. 1.20 The pursuit of the strategy thus described played a catalytic role in the political and ethnic violence of the time, which climaxed in April 1994 massacres. The early part of the 90s was

marked by numerous political assassinations and large massacres of the Tutsi minority, including the that in Kibilira (1990), that of the Bagogwe (1991) and that in Bugesera (1992). The massacres were instigated and organized by local authorities with the complicity of certain prominent persons from the Presidents circle. Therein can be found the components of the strategy which culminated in the genocide of 1994. 1.20 La mise en place de la strat6gie ainsi d6crite joue un r61e de catalyseur dans la violence politique et ethnique de cette 6poque qui atteint son paroxysme avec les massacres d’avril 1994. Le d6but des ann6es 90 est marqu6 par de nombreux assassinats politiques et d’importants massacres de la minorit6 Tutsi, dont celui de Kibilira (1990), ceux des Bagogwe (1991) et celui Bugesera (1992). Ces massacres sont suscit6s et organis6s par des autorit6s locales avec la complicit6 de certaines personnalit6s de l’entourage du Pr6sident Habyarimana. On y retrouve tous les 616ments de la strat6gie qui va aboutir au g6nocide de 1994. 1.21 In early 1994, certain prominent people from Habyarimanas circle instigated violent demonstrations in Kigali aimed at preventing the implementation of the Arusha Accords. Soldiers in civilian clothes and militiamen took part, seeking to provoke confrontations with the Belgian

UNAMIR soldiers. These incidents were partially the cause of the postponement of the establishment of the institutions foreseen by the Arusha Accords. 1.21 Au d6but de 1994, des manifestations violentes visant /t emp~cher la mise en place des Accords d’Arusha se d6roulent ~ Kigali ~ l’instigation de certaines personnalit6s de l’entourage d’Habyarimana. On y retrouve des militaires en civil aux c6t6s des miliciens qui cherchent ~ provoquer des affrontements avec les soldats belges de la M1NUAR. Ces incidents sont en partie b. l’origine du report de la mise en place des institutions pr6vues

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1. HISTORICAL CONTEXT 1.22 On 6 April 1994, the plane carrying, among other passengers, the President of the Republic of Rwanda, Juv6nal Habyarimana, was shot down on its approach to Kigali airport. 1.23 In the hours which followed the crash of the Presidents plane, the senior officers of the FAR convened to assess the situation. Those who shared the extremist Hutu ideology, generally from the North, proposed an Army take-over. During a second meeting which took place on the morning of 7 April, that option was rejected in favour of setting up an interim Government. 1.24 Already on the morning of 7 April and while these discussions were taking place, groups of military, lists in hand, proceeded to arrest, confine and carry out systematic assassinations of a large number of political opponents, both Hutu and Tutsi, including the Prime Minister, some of the Ministers in her Government and the President of the Constitutional Court. At the same time, however, the military were evacuating prominent members of the dead Presidents circle, including the MRND Ministers, to safe locations. The Belgian

UNAMIR soldiers sent to protect the Prime Minister were disarmed, arrested and taken to Kigali military camp, where they were massacred, prompting the withdrawal of the Belgian contingent in the days that followed. After the withdrawal of the Belgian troops, the UN Security Council drastically reduced the number of UNAMIR personnel in Rwanda. 1.25 The leaders of various political dans les Accords d’Arusha. 1.22 Le 6 avril 1994, l’avion transportant, entre autres passagers, le Pr6sident de la R6publique du Rwanda, Juv6nal Habyarimana, est abattu peu avant son atterrissage ~t l’a6roport de Kigali. 1.23 Dans les heures qui suivent la chute de l’avion pr6sidentiel, les principaux officiers des FAR se r6unissent pour 6valuer la situation. Ceux qui partagent l’id6ologie extr6miste Hutu, g6n6ralement les militaires du nord du pays, proposent la prise du pouvoir par l’Arm6e. Le 7 avril au matin, lors dune deuxibme r6union, cette option est rejet6e au profit de la mise sur pied d’un gouvernement int6rimaire. 1.24 Dbs le 7 avril au matin, parall61ement 5. ces discussions, des groupes de militaires, listes en main, proc6dent l’arrestation, h la s6questration et l’assassinat de nombreux opposants politiques, Hutu et Tutsi, parmi lesquels le Premier Ministre, certains des ministres de son gouvernement et le Pr6sident de la Cour Constitutionnelle. Par contre, au m6me moment, des

militaires 6vacuent dans des endroits stirs des personnalit6s de l’entourage du d6funt Pr6sident, y compris les ministres du MRND. Les militaires belges de la MINUAR envoy6s pour prot6ger le Premier Ministre sont d6sarm6s, arr~t6s et conduits au camp militaire de Kigali off ils sont massacr6s. Cet incident pr6cipite le retrait du contingent belge dans les jours qui suivent. Apr6s le retrait des troupes belges, le Conseil de s6curit6 des Nations-Unies r6duit de fagon draconienne le nombre de personnel de la MINUAR au Rwanda. 1.25 Les dirigeants des divers partis

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CONTEXTE HISTORIQUE parties not targeted in the assassinations assembled at the request of military officers. Other than members of the MRND, most participants were members of the Power wings of their respective parties. Given the political and constitutional void created by the deaths of most national political authorities, they set up a government based on the 1991 constitution. Composed solely of Hutu, the government was sworn in on 9 April 1994. The MRND held nine ministerial posts, plus the Presidency of the Republic, while the remaining 11 positions, including that of Prime Minister, went to the Power factions of the other parties. 1.26 In the hours that following the crash of President Habyarimanas plane, military and militiamen set up roadblocks and began slaughtering Tutsi and members of the Hutu opposition in Kigali and in other parts of Rwanda. At the roadblocks, they checked the identity cards of passers-by and killed those or most of those who were identified as Tutsi. Military patrols, often involving militiamen, scoured the city, lists in hand, to execute the Tutsi and certain political opponents. 1.27 During the entire period of the genocide, FAR military, particularly units of the Presidential Guard, the Para-Commando Batallion, Reconnaissance Battalion and the Gendarmerie, in complicity with militiamen, actively participated in the massacres of

the Tutsi throughout Rwanda. 1.28 As soon as it was formed, the Interim Government espoused the plan for politiques non vis6s par les assassinats se r6unissent ~ la demande d’officiers militaires. En dehors des membres du MRND, la plupart des participants sont membres des ailes Power de leurs partis respectifs. I~tant donn6 le vide politique et constitutionnel cr66 par la mort de la plupart des personnalit6s politiques nationales, ils mettent sur pied un gouvernement fond6 sur la constitution de 1991. Le gouvernement, exclusivement compos6 de personnalit6s Hutu, prate serment le 9 avril 1994. Neuf postes minist6riels sont attribu6s au MRND, en plus de la pr6sidence de la R6publique, et les onze postes restants, incluant celui de premier ministre, reviennent aux factions Power des autres partis. 1.26 Dans les heures qui suivent la chute de l’avion du Pr6sident Habyarimana, les militaires et les miliciens 6rigent des barrages et commencent /t massacrer les Tutsi et les membres de l’opposition Hutu/~ Kigali et dans d’autres r6gions du Rwanda. Aux barrages, ils proc6dent ~ la v6rification des cartes d’identit6 de tousles passants et ex6cutent toutes les personnes, ou la plupart des personnes, identifi6es comme 6tant Tutsi. Des patrouilles de militaires, souvent accompagn6s de miliciens sillonnent la ville, listes en main, pour ex6cuter les Tutsi et certains opposants politiques. 1.27 Durant toute la p6riode du g6nocide, des militaires des FAR, particuli6rement des unit6s de la Garde Pr6sidentielle, du Bataillon Para-Commando, du Bataillon reconnaissance et de la Gendarmerie, avec la complicit6 de miliciens, participent activement aux massacres de Tutsi sur toute l’6tendue du Rwanda. 1.28 D6s sa formation, le Gouvemement ¯ Int6rimaire fait sien le plan d’extermination 10

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1. HISTORICAL CONTEXT Government incited the population to eliminate the enemy and its accomplices, some of them participating directly in the massacres. 1.29 Local authorities, including prdfets, bourgmestres, conseillers and responsables de cellule applied the Government-issued directives in execution of the plan for the extermination of the Tutsi population. They incited and ordered their subordinates to perpetrate the massacres and took a direct part in them. 1.3t) Having been psychologically and militarily prepared for several months, the groups of militiamen spearheaded the execution of the extermination plan and were directly involved in the massacres of the civilian Tutsi population and of moderate Hutus, thus causing the deaths of hundreds of thousands of people in less than 100 days. ce gouvernement incitent la population 61iminer l’ennemi et ses complices, certains d’entre eux prennent part directement aux massacres. 1.29 Des autorit6s locales, telles que les Pr6fets, les Bourgmestres, les conseillers de secteur et les responsables de cellule, appliquent les directives du Gouvernement visant ?~ ex6cuter le plan d’extermination de la population Tutsi. Ils incitent et ordonnent ?~ leurs subordonn6s de se livrer aux massacres et y prennent eux-mames part directement. 1.30 Les groupes de miliciens, psychologiquement et militairement pr6par6s depuis plusieurs mois, constituent le fer de lance dans l’ex6cution du plan d’ extermination et sont directement impliqu6s dans les massacres de la population civile Tutsi et des Hutu mod6r6s, causant ainsi la mort de centaines de milliers de personnes en moins de 100 jours. 11

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2. COMP]~TENCES TERRITORIALE, TEMPORELLE ET MATI~RIELLE 2.TERRITORIAL, TEMPORAL AND

MATERIAL JURISDICTION 2. COMPETENCES TERRITORIALE, TEMPORELLE ET MATI~RIELLE 2.1 The crimes set out against the accused in this indictment took place in Rwanda between 1 January and 31 December 1994. 2.2 During the events referred to in this indictment, Rwanda was divided into 11 prdfectures: Butare, Byumba, Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-Ville, Kigali-Rural and Ruhengeri. Each prefecture was subdivided into communes and secteurs. 2.3 During the events referred to in this indictment, the Tutsi, the Hutu and the Twa were identified as racial or ethnic groups. 2.4 During the events referred to in this indictment, there were throughout Rwanda widespread or systematic attacks directed against a civilian population on political, ethnic or racial grounds. 2.5 During the events referred to in this indictment, a state of non-international armed conflict existed in Rwanda. The victims referred to in this indictment were protected persons, according to the provisions of Article 3 common to the Geneva Conventions and of Additional Protocol II. 2.1 Les crimes imput6s aux accus6s dans le pr6sent acte d’accusation ont 6t6 commis au Rwanda entre le 1 er janvier 1994 et le 31 d6cembre 1994. 2.2 Lors des 6v6nements auxquels se r6fbre le pr6sent acte d’accusation, le Rwanda @ait divis6 en 11 pr6fectures: Butare, Byumba,

Cyangugu, Gikongoro, Gisenyi, Gitarama, Kibungo, Kibuye, Kigali-ville, Kigali-rural et Ruhengeri. Chaque pr6fecture est subdivis6e en communes et en secteurs. 2.3 Lors des 6v6nements auxquels se r6fbre le pr6sent acte d’accusation, les Tutsi, les Hutu et les Twa 6taient identifi6s comme des groupes ethniques ou raciaux. 2.4 Lors des 6v6nements auxquels se r6fbre le pr6sent acte d’accusation, il y a eu sur tout le territoire du Rwanda des attaques syst6matiques ou g6n6ralis6es contre une population civile, en raison de son appartenance politique, ethnique ou raciale. 2.5 Lors des 6v6nements auxquels se r6f’ere le pr6sent acte d’accusation, il y avait un con flit arm6 non international sur le territoire du Rwanda. Les victimes auxquelles se r6f’ere le pr6sent acte d’ accusation6taient des personnes prot6g6es, au sens de l’article 3 commun aux Conventions de Gen6ve et du Protocole additionnel II. 12

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3. STRUCTURE DU POUVOIR 3.

THE POWER STRUCTURE The Government 3.1 According to the Constitution of Rwanda of 10 June 1991, executive power is exercised by the President of the Republic, assisted by the Government, composed of the Prime Minister and the ministers. The members of the Government are appointed by the President of the Republic upon the proposal of the Prime Minister. The Prime Minister directs the Governments program. The Government determines and applies national policy. To that effect, it controls the civil service and the armed forces. The Prime Minister decides the functions of the ministers and officials under the Prime Ministers authority. The resignation or termination of tenure of the Prime Minister, for whatever reason, causes the Government to resign. 3.2 The Ministers implement the Governments policy, as defined by the Prime Minister. They are answerable to the Head of the Government for doing so. In the discharge of their duties, the ministers stand by the President of the Republic. Before taking up their posts, they take an oath promising to uphold the interests of the Rwandan people and to respect the Constitution and the law. Further, in carrying out their duties, they have at their disposal the civil service and local administration corresponding to their functions.

3.

STRUCTURE DU POUVOIR Le Gouvernement 3.1 Selon la Constitution du Rwanda du 10 juin 1991, le pouvoir ex6cutif est exerc6 par le Pr6sident de la R6publique, assist6 du gouvernement compos6 du Premier Ministre et des ministres. Les membres du gouvernement sont nomm6s par le Pr6sident de la R6publique sur proposition du Premier Ministre. Le Premier Ministre est charg6 de diriger l’action du gouvernement. Le gouvernement d6termine et conduit la politique de la nation et dispose,/t cet effet, de l’administration publique et de la force arm6e. Le Premier Ministre d6termine les attributions des ministres et des agents plac6s sous son autorit6. La d6mission ou la cessation des fonctions du Premier Ministre, pour quelque cause que ce soit, entraine la d6mission du gouvernement. 3.2 Les ministres ex6cutent la politique du Gouvernement d6finie par le Premier Ministre. Ils r6pondent devant le Chef du Gouvernement de cette ex6cution. Dans l’exercice de leurs fonctions les ministres sont solidaires du Pr6sident de la R6publique. Ils pr6tent serment avant de pouvoir assumer formellement leurs fonctions. Ils sont tenus, en vertu de ce serment, de promouvoir les int6r6ts du peuple rwandais dans le respect de la Constitution et des lois. En outre, dans l’exercice de leurs fonctions ils disposent de l’administration publique et territoriale correspondante/t leurs attributions. The Local Public Administration 3.3 The Pr~fet represents executive power at prefectural level. The Prdfet is appointed L’administration territoriale 3.3 Le pr6fet est le repr6sentant du pouvoir ex6cutif au niveau de la pr6fecture. 13

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3. POWER STRUCTURE by the President of the Republic on the recommendation of the Minister of the Interior and carries out his duties under that Ministers hierarchical authority. The PrOfets authority covers the entire prefecture. 3.4 In his capacity as administrator of the prefecture, the Prdfet is responsible for ensuring peace, public order and the safety of people and property. The Pr~fet, in the discharge of his policing duties, maintaining peace and public order, may request the intervention of the army and of the Gendarmerie Nationale. The Pr~fet has hierarchical authority over all civil servants and all persons holding public office within the boundaries of the prdfecture, including the bourgmestres and the conseillers de secteur. 3.5 Similarly to the the Pr~fet, the Bourgmestre represents executive power at the commune level. He is appointed by the President of the Republic on the recommendation of the Minister of the Interior. He is under the hierarchical authority of the Pr~fet. He has authority over the civil servants posted in his commune. Moreover, he has policing duties in regard to maintaining order and law enforcement. I1 est nomm6 sur proposition du ministre de l’Int6rieur par le Pr6sident de la R6publique et exerce ses fonctions sous l’autorit6 hi6rarchique du ministre de l’Int6rieur. L’autorit6 du pr6fet s’6tend sur l’ensemble de la pr6fecture. 3.4 En sa

qualit6 d’administrateur de la pr6fecture, le pr6fet est charg6 d’assurer la tranquillit6, l’ordre public et la s6curit6 des personnes et des biens. Dans l’exercice de ses attributions de police, le maintien de l’ordre et de la paix publics, le pr6fet peut requ6rir l’intervention de l’arm6e ou et de la Gendarmerie Nationale. Le pr6fet exerce son autorit6 hi6rarchique sur tousles agents de l’administration publique et toutes les personnes d6tentrices de la puissance publique officiant dans la pr6fecture, parmi lesquels les Bourgmestres et les Conseillers de secteur. 3.5 A l’instar du pr6fet, le bourgmestre est le repr6sentant du pouvoir ex6cutif au niveau de la commune. I1 est nomm6 par le Pr6sident de la R6publique sur proposition du ministre de l’Int6rieur. I1 est plac6 sous l’autorit6 hi6rarchique du pr6fet. I1 a autorit6 sur les agents de l’administration officiant dans sa commune. I1 a par ailleurs des attributions de police dans le cadre du maintien de l’ordre et de l’ex6cution des lois. The Political Parties, Youth Wings and Militia Political Parties 3.6 During the events referred to in this indictment, the main political parties in Rwanda were the MRND (Mouvement R@ublicain National pour la Ddmocratie et le Les Partis Politiques, les ailes jeunesses et les Milices Les Partis Politiques 3.6 Lors des 6v6nements vis6s dans le pr6sent acte d’accusation, les principaux partis politiques au Rwanda 6taient: le MRND (Mouvement R6publicain National 14

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3. STRUCTURE DU POUVOIR DdveloppemenO, the CDR (Coalition pour la D~fense de la R@ublique), the MDR (Mouvement DOmocratique R~publicain), the PSD (Parti Social-D~mocrate) and the PL (Parti LibOral). The RPF (Rwandan Patriotic Front) was a politico-military opposition organization. 3.7 The

MRND (Mouvement R~volutionnaireNational pour le DOveloppement) was founded by Juv6nal Habyarimana on 5 July 1975. The organization was in fact a true Party-State. Its aim was to provide the President of the Republic with a powerful apparatus intended to control the workings of the State. The movements objectives were, among others, to support and control the actions of the various State powers. Only the Chairman of the MRND could stand for the Presidency of the Republic. All Rwandans were members of the MRND from birth. 3.8 The organs of the MRND (Mouvement Rdvolutionnaire National pour le D~veloppement) were very centralized at the top and spread out at the bottom. This pyramidal structure enabled all Rwandan citizens to be involved in political life. The national organs included the chairmanship, the general secretariat, the national congress and the central committee. The central committee was made up of the Chairman, other members appointed by the Chairman, the Secretary General and the Speaker of Parliament (the Conseil National de DOveloppement - CND ). At local level, there were organs at prefecture, commune and cellule levels. The PrOfet and Bourgmestre were each responsible for the movement in their respective administrative districts. These two figures were civil servants directly appointed by the President of the Republic, who was also the pour la D6mocratie et le D6veloppement), la CDR (Coalition pour la D6fense de la R6publique), le MDR (Mouvement D6mocratique R6publicain), le PSD (Parti Social-D6mocrate) et le PL (Parti Lib6ral). Le FPR (Front Patriotique Rwandais) 6tait une organisation politico-militaire d’opposition. 3.7 Le

MRND (Mouvement R6volutionnaire National pour le D6veloppement) 6tait une organisation cr66e par Juv6nal Habyarimana le 5 juillet 1975. Cette organisation 6tait de fait un v6ritable Parti-Etat. I1 visait A doter le Pr6sident de la R6publique d’un appareil puissant destin6/~ contr61er tousles rouages de l’Etat. Parmi les objectifs du mouvement, il y avait le soutien et le contr61e des activit6s des divers pouvoirs de l’Etat. Seul le Pr6sident du

MRND pouvait 6tre candidat/t la Pr6sidence de la R6publique. Le Rwandais 6tait membre du MRND d6s sa naissance. 3.8 Les organes du MRND (Mouvement R6volutionnaire National pour le D6veloppement) 6taient tr~s centralis6s au sommet et trbs ramifi6s ~ la base. I1 s’agit d’une structure pyramidale permettant l’int6gration de tousles citoyens rwandais la vie politique. Les organes nationaux comprenaient la Pr6sidence du Mouvement, le Secr6tariat G6n6rale, le Congr~s National et le Comit6 Central. Le Comit6 Central 6tait compos6 du Pr6sident du Mouvement, d’autres membres nomm6s par lui, du Secr6taire G6n6ral et du Pr6sident du CND (Conseil national de D6veloppement). niveau local, il y avait des organes au niveau de la pr6fecture et 5. la base au niveau de la commune et de la cellule. Le pr6fet et le bourgmestre 6taient chacun responsable du mouvement au niveau de sa circonscription administrative. Ces deux personnalit6s 15

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3. POWER STRUCTURE Chairman of the MRND. 3.9 With the institution of the multiparty system and the adoption of a new Constitution on 10 June 1991, the Mouvement ROvolutionnaire National pour le DOveloppement (MRND) was renamed the Mouvement R@ublicain National pour la D~mocratie et le D~veloppement (MRND). Although its statutes were amended, the structure of the new party remained essentially the same. 6taient des fonctionnaires publics nomm6s directement par le Pr6sident de la R6publique qui 6tait en m6me temps le Pr6sident du MRND. 3.9 Avec l’instauration du multipartisme et l’adoption d’une nouvelle constitution le 10 juin 1991, le Mouvement ROvolutionnaire National pour le D~veloppement (MRND) est alors rebaptis6 Mouvement R@ublicain National pour la D6mocratie et le D~veloppement (MRND). Les Statuts ont 6t6 amend6s mais la structure du nouveau parti est demeur6 essentiellement la m6me que celle de l’ancien. The Youth Wings and the Militia 3.10 Most of the political parties had created their own youth wings. The members of the MRNDs youth wing were known as the Interahamwe, while those of the CDR were known as the Impuzamugambi. The youth wings were formed in response to two concerns within the political parties: sensitizing the youth to politics and mobilizing them. The MRND and CDR followed the example set by the MDR and the RPF, which had

already insituted their youth movements. 3.11 The Interahamwe-MRND were formed in late 1991 on the initiative of the MRND central committee, following the advent of multiparty politics. The Interahamwe-MRND were highly structured, along the same lines as the MRND party. At national level, they had a chairman, two vice- chairmen, a secretary general and a treasurer. The chairman was to liaise with the MRND central committee, among other things. In June 1993, to ensure better territorial coverage and greater effectiveness, the MRND central Les ailesjeunesses et les milices 3.10 La plupart des partis politiques avaient cr66 une aile jeunesse en leur sein. Celle du MRND 6tait connue sous l’appellation Interahamwe et celle de la CDR sous le nom de Impuzamugambi. La cr6ation des ailes jeunesses r6pondait/t deux pr6occupations au sein des partis politiques: sensibiliser les jeunes A la politique et les mobiliser. Le MRND et la CDR ont suivi l’exemple du MDR et du FPR qui avaient d6jg institu6 leur mouvement de jeunesse. 3.11 Les Interahamwe-MRND ont 6t4 cr66s a la fin de 1991/~ l’initiative du comit6 central du MRND suite ~ l’avbnement du multipartisme. Les Interahamwe-MRND avaient une organisation bien structur6e /~ l’image du parti MRND. Ils avaient au niveau national un Pr6sident, deux vice- pr6sidents, un Secr6taire G4n6ral et un Tr6sorier. Le pr6sident devait, entre autre, assurer la liaison avec le comit6 central du MRND. En juin 1993, pour garantir une meilleure couverture du territoire et une plus 16

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3. STRUCTURE DU POUVOIR committee decided to create Interahamwe-

MRND branches in the various prdfectures in the country. 3.12 Beginning in 1992, numerous

MRND youth wings members received military training and weapons and were thus tranformed from youth movements into militias. grande efficacit6, le Comit6 Central du MRND a d6cid6 de cr6er des sections dInterahamwe-MRND au niveau des diff6rentes Pr6fectures du pays. 3.12 A partir de 1992, plusieurs membres de l’aile jeunesse du MRND ont regu un entra~nement militaire et des armes; ce qui a transform6 ces mouvements de jeunesse en milices. The Forces Armdes Rwandaises 3.13 The Forces Armies Rwandaises (FAR) were composed of the Rwandan Army (AR) and the Gendarmerie Nationale (GN). The Forces ArmOes Rwandaises did not have a unified command and came directly under the Minister of Defence, and consequently the Government. The Commander-in-Chief of the Forces ArmOes Rwandaises was the President of the Republic. 3.14 The General Staff of the Rwandan Army was headed by the Chief of Staff, assisted by four senior officers in charge of four bureaux: G- 1 (Personnel and Administration), G-2 (Intelligence), (Military Operations) and G-4 (Logistics). 3.15 The territory of Rwanda was divided into various military operations sectors, each headed by a military sector commander. Also, there were elite units within the Rwandan Army, namely the Presidential Guard, Para- Commando Battalion and Reconnaissance Battalion. The troops were divided into companies within the sectors and the units. Les

Forces Arm6es Rwandaises 3.13 Les Forces Arm6es Rwandaises (FAR) 6taient compos6es de l’Arm6e Rwandaise (AR) et de la Gendarmerie Nationale (GN). Les Forces Arm6es Rwandaises ne disposaient pas d’un Etat- Major unifi6 et relevaient directement du Ministre de la D6fense, et par cons6quent du gouvernement. Le chef supr6me des Forces Arm6es Rwandaises 6tait le Pr6sident de la R6publique. 3.14 L’Etat-Major de l’Ann6e Rwandaise 6tait dirig6 par un Chef d’Etat-Major assist6 par quatre officiers sup6rieurs responsables de quatre bureaux: le bureau du G-l, (Personnel et Administration), le bureau G-2 (Renseignements et Intelligence), bureau du G-3 (Op6rations militaires) et bureau du G-4 (Logistique). 3.15 Le territoire du Rwanda 6tait divis6 en diff6rents secteurs d’op6rations militaires. Chaque secteur 6tait dirig6 par un commandant militaire. En outre, il y avait des unit6s d’61ites au sein de l’Arm6e Rwandaise: le bataillon de la Garde Pr6sidentielle, le bataillon Para-Commando, et le bataillon de Reconnaissance. Les troupes 6taient divis6es en compagnies au sein des secteurs et des unit6s. 17

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3. POWER STRUCTURE i~i~ ! ~ i¸ ! 3.16 The General Staff of the Gendarmerie Nationale was headed by the Chief of Staff, assisted by four senior officers in charge of four bureaux: G-1 (Personnel and Administration), G-2 (Intelligence), (Military Operations) and G-4 (Logistics). 3.17 The Gendarmerie Nationale was responsible for maintaining public order and peace and the observance of the laws in effect in the country. 3.18 The Gendarmerie Nationale was under the Minister of Defence but could carry out its duties of ensuring public order and peace at the request of the local government authority having jurisdiction, namely the Prdfet. In cases of emergency, this request could be made verbally, notably by telephone. Such requests had to be carried out immediately. In addition, the Gendarmerie Nationale was obliged to transmit to the Prdfet all information relating to public order. It had the duty to assist anyone in danger. 3.19 By virtue of their rank and their functions, the Minister of Defence and the officers of the Rwandan Army and the Gendarmerie Nationale had the duty to enforce the general rules of discipline for all soldiers under their authority, even those not belonging to their units. 3.16 L’Etat-Major de la Gendarmerie 6tait dirig6 par un Chef dEtat-Major assist6 par quatre officiers sup6rieurs responsables de quatre bureaux: le bureau du G-1, (Personnel et

Administration), le bureau G-2 (Renseignements et Intelligence), bureau du G-3 (Op6rations militaires) et bureau du G-4 (Logistique). 3.17 La Gendarmerie Nationale 6tait charg6e du maintien de l’ordre et de la paix publics et de l’ex6cution des lois en vigueur dans le pays. 3.18 La Gendarmerie Nationale relevait du Ministre de la D6fense, mais pouvait exercer ses attributions de maintien de l’ordre et de la paix publique ~ la requ6te de 1’ autorit6 administrative territoriale comp6tente, en la personne du pr6fet. En cas d’urgence, cette r6quisition pouvait ~tre faite verbalement, notamment par t616phone. Cette r6quisition devait 6tre ex6cut6e sans d61ai. En outre, la Gendarmerie Nationale devait porter/~ la connaissance du pr6fet tout renseignement concemant l’ordre public. Elle devait assistance ~ toute personne en danger. 3.19 Le Ministre de la D6fense et les officiers de 1Arm6e Rwandaise et de la Gendarmerie Nationale, de par leur grade et leurs fonctions, avaient le devoir de faire respecter les r6gles g6n6rales de discipline pour tous les militaires sous leur autorit6, m6me s’ils n’appartenaient pas /t leurs unit6s. 18

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4. LES ACCUSI~S 4.

THE ACCUSED Jean de Dieu Kamuhanda 4.1 Jean de Dieu Kamuhanda was born on 3 March 1953 in Gikomero commune, Kigali-Rural prdfecture, Rwanda. 4.2. In late May 1994, Jean de Dieu Kamuhanda held the office of Minister of Higher Education and Scientific Research in the Interim Government, replacing Dr. Daniel Nbangura. Jean de Dieu Kamuhanda held the office until mid-July 1994. He was the Director of Higher Education and Scientific Research before the events of 1994, and then counselor to President Sindikubwabo during the events until late May 1994. Jean de influential Rural. Dieu Kamuhanda was an member of MRND in Kigali- 4. L’ACCUSI~ Jean de Dieu Kamuhanda 4.1 Jean de Dieu Kamuhanda est n6 le 3 mars 1953 en commune Gikomero, Kigali- Rural pr6fecture, Rwanda. 4.2 Vers fin mai 1994 Jean de Dieu Kamuhanda a 6t6 nomm6 Ministre de l’Enseignement Sup6rieur au sein du Gouvernement int6rimaire, remplagant dans ce poste le Dr Daniel Nbangura. Jean de Dieu Kamuhanda a exerc6 ses fonctions de Ministre de l’Enseignement Sup6rieur au sein du Gouvernement Int6rimaire jusqu’~ la mi-juillet 1994. Auparavant il a 6t6 Directeur G6n6ral de l’enseignement sup6rieur et de la recherche scientifique avant les 6v6nements de 1994, puis Conseiller du Pr6sident Sindikubwabo durant ces 6v6nements jusqu’/~ la fin mai 1994. ¯Jean de Dieu Kamuhanda 6tait un membre influent du MRND ~ Kigali Rural. 4.3 In his

capacity as Minister of Higher Education Jean de Dieu Kamuhanda was responsible for the articulation and the implementation of the government policy concerning post-secondary school education and scientific research in Rwanda for the Interim Government. 4.4 In his capacity as Minister, Jean de Dieu Kamuhanda attended Cabinet meetings where he was informed about the socio-political situation in the country and where he was apprised of government policy and participated in formulating the policies adopted and implemented by the Interim Government. In the exercise of his powers, 4.3 En sa qualit6 de Ministre de l’Enseignement Sup6rieur Jean de Dieu Kamuhanda 6tait responsable de la formulation et de la mise en oeuvre de la politique de l’enseignement et de la recherche scientifique au Rwanda au sein du gouvernement. 4.4 Par ailleurs, en sa qualit6 de Ministre, Jean de Dieu Kamuhanda assistait au Conseil des Ministres off il a 6t6 inform6 de la situation socio-politique du pays et off il a 6t6 mis au courant de la politique gouvernementale et participait dans la formulation de la politique adopt6e et mise en oeuvre par le gouvernement int6rimaire. 19

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4.THE ACCUSED he never publicly disavowed the policies of the Interim Government and did not resign, as permitted by the Constitution. Jean de Dieu Kamuhanda never criticized or reproached the policies of the Interim Government when he was Counselor to the Interim President, and did not resign until late May 1994, when he accepted his nomination as Minister of Higher Education. Rather than distancing himself from the policies of the Interim Government, Jean de Dieu Kamuhanda instead reinforced his support of those policies by accepting a ministerial post almost two months after the Interim Government was formed when its policies were already clearly demonstrated by its governmental directives, proclamations, acts and omissions. 4.5 In his capacity as Minister of Higher Education, Jean de Dieu Kamuhanda, exercised authority and control over all the institutions and staff members under his ministry. I1 n’a jamais d6savou6 publiquement la politique du gouvernement int6rimaire et n’a jamais pr6sent6 sa d6mission, alors que la constitution lui permettait explicitement de le faire. Par ailleurs, Jean de Dieu Kamuhanda n’a jamais critiqu6 ni remis en cause la politique du gouvernement int6rimaire lorsqu’il 6tait Conseiller du Pr6sident Int6rimaire et n’a pas d6mission6 de ce poste. En fin mai 1994, il a accept6 sa nomination comme Ministre de l’Enseignement sup6rieur. Au lieu de

se d6marquer de la politique du gouvernement int6rimaire, Jean de Dieu Kamuhanda l’a appuy6e en acceptant un poste minist6riel deux mois ~ peine aprbs la formation dudit gouvernement int6rimaire, alors que les directives, les proclamations, et les actes et omissions de ce dernier indiquaient clairement sa ligne politique. 4.5 En sa qualit6 de Ministre de l’Enseignement Sup6rieur Jean de Dieu Kamuhanda, exergait une autorit6 et un contr61e sur l’ensemble des d6partements et du personnel de son ministbre. 20

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5. EXPOSI5 SUCCINT DES FAITS: PRI~PARATION 5.CONCISE STATEMENT OF THE FACTS: PREPARATION 5.1 From late 1990 until July 1994, Casimir Bizimungu, Justin Mugenzi, J6r6me Bicamumpaka, Prosper Mugiraneza, Andr6 Ntagerura, Pauline Nyiramasuhuko and Eliezer Niyitekega, conspired among themselves and with others, notably Th6oneste Bagosora, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, Augustin Ngirabatware, Jean de Dieu Kamuhanda, Juv6nal Kajelijeli, Felicien Kabuga, Augustin Bizimana,and Callixte Nzabonimana to work out a plan with the intent to exterminate the civilian Tutsi population and eliminate members of the opposition, so that they could remain in power. The components of this plan consisted of, among other things, recourse to hatred and ethnic violence, the training of and distribution of weapons to militiamen as well as the preparation of lists of people to be eliminated. In executing the plan, they organized, ordered and participated in the massacres perpetrated against the Tutsi population and of moderate Hutu. 5.2 In a letter dated 3 December 1993, and addressed to the UNAMIR Commander, with copies to all the Ministers, certain FAR officers revealed the existence of what they called a Machiavellian plan conceived by military who were mainly from the North and who shared the extremist Hutu ideology. The objective of the Northern military was to oppose the Arusha Accords and keep themselves in power. The means to achieve this consisted in exterminating the Tutsi and their accomplices. The letter indicated 5.EXPOSE SUCCINT DES FAITS :

PREPARATION 5.1 D6s la fin de 1990 jusqu’~t juillet 1994, Casimir Bizimungu, Justin Mugenzi, J6r6me Bicamumpaka, Prosper Mugiraneza, Andr6 Ntagerura, Pauline Nyiramasuhuko et Eliezer Niyitekega, se sont entendus entre eux et avec d’autres, notamment Th6oneste Bagosora, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, Augustin Ngirabatware, Jean de Dieu Kamuhanda, Juv6nal Kajelijeli, Felicien Kabuga, Augustin Bizimana, et Callixte Nzabonimana pour 6laborer un plan dans l’intention d’exterminer la population civile Tutsi et d’61iminer des membres de l’opposition et se maintenir ainsi au pouvoir. Les 616ments de ce plan comportaient, entre autres, le recours ~ la haine et /t la violence ethnique, l’entrainement et la distribution d’armes aux miliciens ainsi que la confection de listes de personnes /~ 61iminer. Dans l’ex6cution de ce plan ils ont organis6, ordonn6 et particip6 aux massacres perp6tr6s /~ l’encontre de la population Tutsi et des Hutu mod6r6s. 5.2 Dans une lettre dat6e du 3 d6cembre 1993 et adress6e au Commandant de la MINUAR avec ampliation h tous les Ministres, des officiers des FAR ont r6v616 l’existence d’un plan machiav61ique congu par des militaires essentiellement originaires du Nord et partageant l’id6ologie Hutu extr6miste. L’objectif de ces militaires nordistes 6tait de s’opposer aux Accords d’Arusha et de se maintenir au pouvoir. Le moyen pour le r6aliser consistaient/t 21

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moreover the names of political opponents to be eliminated. Some of them were in fact killed on the morning of 7 April 1994. Speeches and Incitement 5.3 Incitement to ethnic hatred and violence was a fundamental part of the plan put in place. It was articulated, before and during the genocide, by elements of the FAR on the one hand, and by members of the Government and local authorities on the other. 5.4 On 4 December 1991, President Juv6nal Habyarimana set up a military commission. The commission, presided over by Th6oneste Bagosora, was given the task of finding an answer to the following question: What do we need to do in order to defeat the enemy militarily, in the media and politically ? 5.5 In a letter dated 21 September 1992, the General Staff of the Rwandan Army ordered that an extract from the commission report be circulated among the troops. The extract defined the main enemy as follows: The Tutsis from inside or outside the country, who are extremists and nostalgic /’or power, who do not recognize and have never recognized the realities of the Social Revolution of 1959, and are seeking to regain power in Rwanda by any means, including taking up arms. The secondary enemy was defined as: Anyone providing any kind of assistance to the main enemy. The document specified that the enemy was being recruited from within certain social groups, notably: the

Tutsis inside the country, Hutus who are dissatisfied with the present regime, foreigners married to Tutsi women .... Among the activities the enemy 5:CONCISE STATEMENT OF FACTS: PREPARATION exterminer les Tutsi et leurs complices. La lettre mentionnait, par ailleurs, les noms d’opposants politiques ~ 61iminer. Certains d’entre eux ont effectivement 6t6 assassin6s dans la matin6e du 7 avril 1994. Discours et Incitation 5.3 L’incitation /~ la haine et g la violence ethniques a constitu6 un 616ment essentiel du plan mis en place. Elle a 6t6 articul6e, avant et durant le g6nocide, dune part par des 616ments des FAR, et d’autre part par des membres du gouvernement et des autorit6s locales. 5.4 Le 4 d6cembre 1991, le Pr6sident Juv6nal Habyarimana a mis en place une commission militaire. Cette commission, pr6sid6e par Th6oneste Bagosora, 6tait charg6e de r6pondre /L la question suivante: Que faut-il faire pour vaincre lennemi sur le plan militaire, mddiatique et politique?. 5.5 Dans une lettre dat6e du 21 septembre 1992, l’Etat-Major de l’Arm6e Rwandaise a ordonn6 la diffusion, parmi les troupes, d’un extrait du rapport produit par cette commission. Ce document d6finissait l’ennemi principal comme 6tant le Tutsi de l ’int~rieur ou de l’ext~rieur, extr~miste et nostalgique du pouvoir, qui n’a jamais reconnu et ne reconnait pas encore les r~alit~s de la R~volution Sociale de 1959 et qui veut reconqu~rir le pouvoir au Rwanda par tousles moyens, y compris les armes et l’ennemi secondaire comme 6tant route personne qui apporte tout concours g~ l’ennemi principal. Le document pr6cisait que le recrutement de l’ennemi se faisait parmi certains groupes sociaux, notamment ¯ ...Les Tutsi de l’int~rieur, les Hutu m~contents du rdgime en place, les 22

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5. EXPOSI~ SUCCINT DES FAITS: PREPARATION was accused of, the document mentioned the diversion of national opinion from the ethnic problem to the socio-economic problem between the rich and the poor. 5.6 The letter of 21 September 1992, and the way that the senior officers used it, aided, encouraged and promoted ethnic hatred and violence. 5.7 Colonel Th6oneste Bagosora participated in the Arusha talks, and openly manifested his opposition to the concessions made by the Government representative, Boniface Ngulinzira, Minister of Foreign Affairs, to the point of leaving the negotiation table. Colonel Th6oneste Bagosora left Arusha saying that he was returning to Rwanda to prepare the apocalypse. On 11 April 1994, Boniface Ngulinzira was assassinated by the military. His death was announced on RTLM in these terms: We have exterminated all the accomplices of the RPF, Boniface Ngulinzira will no longer go and sell the country to the RPFs advantage in Arusha. The Peace Accords are only scraps oj paper, as our father, Habyarimana, had predicted. 5.8 The characterization of the Tutsis as the enemy and of members of the opposition as their accomplices was echoed by politicians, notably by L6on Mugesera, MRND Vice-Chairman for Gisenyi prdfecture, in a speech he made on 22 November 1992. Broadcast on the state radio and therefore reaching a

much larger audience, L6on Mugesera’s speech, already at that time, incited others to exterminate the Tutsi population and its accomplices. ~trangers mariOs aux femmes Tutsi... Parmi les activit6s reproch6es/~ l’ennemi, le document mentionnait le ...Ddtournement de l’opinion nationale du problOme ethnique vers le problOme socio- Oconomique entre les riches et les pauvres. 5.6 La lettre du 21 septembre 1992, et l’utilisation qu’en ont faite les officiers sup6rieurs, ont aid6, encourag6 et favoris6 la haine et la violence ethnique. 5.7 Le Colonel Th6oneste Bagosora a particip6 aux n6gociations d’Arusha eta manifest6 ostensiblement son opposition aux concessions faites par le repr6sentant du Gouvernement, Boniface Ngulinzira, Ministre des Affaires t~trangbres, au point de quitter la table des n6gociations. Le Colonel Th6oneste Bagosora a quitt6 Arusha en d6clarant qu’il rentrait au Rwanda pour preparer l’apocalypse. Le 11 avril 1994, Boniface Ngulinzira 6tait assassin6 par les militaires. La RTLM a annonc6 sa mort en ces termes: nous avons extermin~ tousles complices du FPR, Boniface Ngulinzira n’ira plus vendre le pays au profit du FPR ~ Arusha. Les Accords de paix ne sont plus que des chiffons de papier comme l’avait prOdit notre papa Habyarimana . 5.8 La qualification des Tutsi comme 6tant l’ennemi et des membres de l’opposition comme 6tant leurs complices, a 6t6 reprise par des politiciens, notamment L6on Mugesera, Vice Pr6sident du MRND pour la pr6fecture de Gisenyi, dans un discours prononc6 le 22 novembre 1992. Diffus6 sur la Radio d’Etat et s’adressant ainsi g un public beaucoup plus large, le discours de L6on Mugesera, a incit6, d~s cette 6poque, exterminer la population Tutsi et ses complices. 23

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!~ ,)i 5.9 In February 1994, Mathieu Ngirumpatse chaired an MRND gathering at Nyamirambo stadium, where speakers took the floor and incited violence against the Tutsis. 13.la 5:CONCISE STATEMENT OF FACTS: PREPARATION 5.10 From April to July 1994, incitement to hatred and violence was propagated by various prominent persons, including members of the MRND, the Government and local authorities. The President, Th6odore Sindikubwabo, the Prime Minister,Jean Kambanda, Ministers Augustin Ngirabatware, Jean de Dieu Kamuhanda, Andr6 Rwamakuba, Eliezer Niyitegeka and Andr6 Ntagerura and local authorities publicly incited the people to exterminate the Tutsi population and its accomplices. Propaganda 5.11 The creation of media, such as the newspaper Kangura and Radio Tdldvision Libre des Mille Collines (RTLM), launched and directed by MRND and CDR leading figures, helped to propagate the extremist Hutu ideology and its message of ethnic hatred and violence, and contributed to the indoctrination of the Rwandan people. RTLM was openly designed and used by many MRND leaders and members of the government a means of propagandizing Hutu "Power". 5.12 The private company RTLM S.A. and its radio station were founded by statute signed on 8 April 1993. The media company was largely financed by Felicien Kabuga. 5.13 The broadcasting studios of RTLM were connected to the electric generators of the

Presidential Palace, directly across the 5.9 En f6vrier 1994 Mathieu Ngirumpatse a pr6sid6 un rassemblement MRND au stade de Nyamirambo off des orateurs ont pris la parole pour inciter/~ la violence contre les Tutsi. 5.10 D’avril /~ juillet 1994, cette incitation ~ la haine et ~ la violence a 6t6 propag6e par diff6rentes personnalit6s, dont des membres du MRND, du Gouvemement et des autorit6s locales. Le Pr6sident, Th6odore Sindikubwabo, le Premier Ministre, Jean Kambanda, les ministres, Augustin Ngirabatware, Jean de Dieu Kamuhanda, Andr6 Rwamakuba, Eliezer Niyitegeka et Andr6 Ntagerura et des repr6sentants de l’autorit6 locale ont incit6 publiquement la population /~ exterminer la population Tutsi et ses complices. La propagande 5.11 La cr6ation de moyens m6diatiques, tels que le journal Kangura et la Radio T616vision Libre des Milles Collines (RTLM), fond6e et dirig6e, par de hautes personnalit6s du MRND et du CDR, a aid6/t propager l’id6ologie Hutu extr6miste et son discours de haine et de violence ethniques, et a contribu6 /t endoctriner la population rwandaise. La RTLM a 6t6 ouvertement con?ue et utilis6e par plusieurs leaders du MRND et les membres du gouvernement comme un moyen de propagande du Hutu "Power". 5.12 La soci6t6 civile RTLM S.A. et sa station radio ont 6t6 fond6es par statut sign6 le 8 avril 1993. Cette soci6t6 m6diatique 6tait largement financ6e par F61icien Kabuga. 5.13 Les studios de RTLM 6taient connect6s, directement/t travers la rue, au g6n6rateur 616ctrique du Palais 24

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street, permitting it to continue to operate in case of power failure. In the latter half of 1993, the RTLM began broadcasting from Kigali across Rwanda through a network of transmitter owned and operated by government owned Radio Rwanda. It later became a mobile station, installed in an armored car of the Rwanda Armed Forces (RAF). It sought refuge in what later became the Turquoise Zone set up in the jungle of Gikongoro and Kibuye Pr6fecture. Radio broadcasts by RTLM disappeared after mid-July 1994. 5,14 Between 9 April and mid-July 1994, the President, Th6odore Sindikubwabo, the Prime Minister, Jean Kambanda, Ministers, Andr6 Rwamakuba and Justin Mugenzi and radio announcers, among whom, Georges Ruggiu and Hassan Ngeze, used RTLM to incite, aid and abet the extermination of the Tutsi population and the elimination of numerous moderate Hutu. The Militia Groups 5.15 Political rivalries during the multi- party period exacerbated tensions among the various political parties. Thus, in a climate of almost total impunity, the Interahamwe- MRND were encouraged to use violence to oppose the political demonstrations organized by parties of the opposition and to terrorize Rwandan citizens in order to prevent them from joining parties other than the MRND. 5.16 The transformation of the Interahamwe to serve the interests of the MRND was an illicit operation formally forbidden by

the law. Further, to extend the 5. EXPOSI~ SUCCINT DES FAITS: PRI~PARATION Pr6sidentiel, ce qui leur permettait de rester op6rationnels en cas de panne de courant. Durant la seconde moiti6 de 1993, RTLM commenga g diffuser de Kigali ses programmes au Rwanda, grftce un r6seau de transmetteurs poss6d6s et utilis6s par la Radio Rwanda propri6t6 de l’Etat. Plus tard RTLM s’est transform6 en station mobile install6e dans une voiture blind6e appartenant aux Forces Arm6es Rwandaises (FAR). Elle s’6tait r6fugi6e dans un espace, situ6 dans la jungle de Gikongoro et la Pr6fecture de Kibuye, qui allait devenir la zone turquoise. Les 6missions de RTLM ont pris fin apr6s la mi-juillet 1994. 5.14 Entre 9 avril et mi-juillet 1994, le Pr6sident, Th6odore Sindikubwabo, le Premier Ministre, Jean Kambanda, les Ministres Andr6 Rwamakuba et Justin Mugenzi, des journalistes, parmi lesquels, Georges Ruggiu et Hassan Ngeze ont utilis6 la RTLM pour inciter, aider et encourager ~t exterminer la population Tutsi et ~ 61iminer de nombreux Hutu mod6r6s. Les milices 5.15 Les rivalit6s politiques de la p6riode du multi-partisme ont exacerb6 les tensions entre les diff6rents partis politiques. Ainsi les Interahamwe-MRND ont 6t6 encourag6s, dans un climat d’impunit6 quasi total, /t s’opposer violemment aux manifestations politiques organis6es par les partis de l’opposition et /t semer la terreur parmi les citoyens rwandais pour les emp6cher d’adh6rer 5. d’autres partis que le MRND. 5.16 La transformation des Interahamwe au service du MRND 6tait une entreprise illicite formellement interdite par la loi. En outre, pour 6tendre 25

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5:CONCISE STATEMENT OF FACTS: PREPARATION activities of the militia group, the MRND central committee formed Interahamwe- MRND committees at prOfecture level in June 1993. This decision was carried out in their localities by political figures including among others Pauline Nyiramasuhuku in Butare and Joseph Nzirorera in Ruhengeri. 5.17 In order to ensure that, when the time came, the extermination of the enemy and its accomplices would be carried out swiftly and effectively, it was necessary, to turn the Interahamwe-MRND into a militia group, structured, armed and complementary to the Armed Forces. As from 1993, and even before that date, the leaders of the MRND, in collaboration with officers of the FAR, decided to provide military training to those members most devoted to their extremist cause and to other idle youths. Furthermore, weapons were distributed to them. Training of the Militia Groups 5.18 The training of Interahamwe- MRND and Impuzamugambi-CDR was supervised and encouraged by civilian and military authorities, including Joseph Nzirorera, Juvenal Kajelijeli and Andre Ntagerura. Training was conducted simultaneously in several prefectures around the country: Kigali, Cyangugu, Gisenyi and Butare, as well as in the Mutara sector. Training also took place in military camps, notably Gabiro, Gako, Mukamira and Bigogwe, as well as around these camps or in

neighbouring forests. l’action de cette milice, le Comit6 Central du MRND a cr66 en juin 1993 des comit6s d’Interahamwe-MRND au niveau de chaque pr6fecture. Cette d6cision a 6t6 mise en oeuvre par des personnalit6s politiques du MRND au niveau de leur circonscription parmi lesquelles Pauline Nyiramasuhuku ~ Butare et Joseph Nzirorera fi Ruhengeri. 5.17 Afin de s’assurer qu’g terme, l’extermination de l’ennemi et de ses complices se ferait rapidement et efficacement, il 6tait n6cessairede constituer les Interahamwe-MRNDen milice, structur6e,arm6e et compl6mentaire aux Forces Arm6es. D6s 1993 et m6me avant, les dirigeants du

MRND en collaboration avec des officiers des FAR, ont d6cid6 de faire suivre aux 616ments les plus d6vou6s ~ leur cause extr6miste et/~ d’autres jeunes d6soeuvr6s, un entra]nement militaire. En outre, des armes leur ont 6t6 distribu6es. L ’entratnement des milices 5.18 L’entrainement des Interahamwe- MRND et Impuzamugambi-CDR 6tait facilit6 et encourag6 par des autorit6s miltaires et civiles dont Joseph Nzirorera, Juvenal Kajelijeli, et Andre Ntagerura. Ces entrainements ont eu lieu simultan6ment dans plusieurs pr6fectures du pays : Kigali, Cyangugu, Gisenyi, Butare et dans le secteur du Mutara. Ces entrainements se tenaient dans des camps militaires, notamment les camps de Gabiro, Gako, Mukamira et de Bigogwe et 6galement aux alentours de ces camps ou dans les for6ts avoisinantes. 26

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5. EXPOSe; SUCCINT DES FAITS: PRI~PARATION 5.19 On 10 January 1994, a leader of the Interahamwe-MRND militia informed UNAMIR that 1,700 militiamen had undergone training and that they could eliminate 1,000 Tutsis every twenty minutes. This informer stated that he took his orders from Mathieu Ngirumpatse, Chairman of the MRND. 5.19 Le 10 janvier 1994, un dirigeant des milices [nterahamwe-MRND a inform6 la

MINUAR que 1,700 miliciens avaient suivi un entrainement et qu’ils pouvaient 61iminer 1,000 Tutsi toutes les vingt minutes. Cet informateur affirmait recevoir ses ordres de Mathieu Ngirumpatse, Pr6sident du MRND. 5.20 The secret training of the militiamen became more and more notorious. They could on some occasions be seen training in public places or on their way to the training sites, while chanting slogans inciting the extermination of the enemy. 5.20 Les entrainements secrets des miliciens sont devenus de plus en plus de notori6t6 publique. On a pu les voir s’entrainer, /~ certaines occasions, dans des endroits publics ou se diriger vers les sites d’entra~nement, en chantant des slogans incitant ~ l’extermination de l’ennemi. Distribution of Weapons La distribution d’armes 5.21 In order to implement the plan for the extermination of the enemy and its accomplices, the militiamen were to receive weapons, in addition to military training. Hence, the civilian and military authorities distributed weapons to the militiamen and certain carefully selected members of the civilian population in various pr6fectures of the country. Between April and July, Fund raising activities were organized by MRND leading figures in order to bolster the armament of the militiamen who were committing massacres of the Tutsi population and of moderate Hutu. 5.21 Pour mettre en oeuvre le

plan d’extermination de l’ennemi et ses complices, les miliciens devaient recevoir, en plus dun entrainement militaire, des armes. D6s lors, les autorit6s civiles et militaires ont distribu6 des armes aux miliciens et /~ certains membres soigneusement choisis de la population civile, dans diff6rentes pr6fectures du pays. Entre avril et juillet 1994, des campagnes de collecte de fonds ont 6t6 organis6es par des membres 6minents du MRND afin d’armer d’avantage les miliciens qui se livraient /t des massacres de la population Tutsi et de Hutu mod6r6s. 5.22 In 1993, President Habyarimana declared in Ruhengeri that the Interahamwe- MRND had to be equipped so that, come the right time, ils descendent. 5.22 En 1993, le Pr6sident Habyarimana d6clarait /t Ruhengeri qu’on devait dquiper les Interahamwe-MRND pour qu’au moment opportun, ils descendent. 5.23 On or about 12 April 1994, the Minister of Finance in the Interim govemment personally went to Gitarama 5.23 Le ou vers le 12 avril 1994 le Ministre des Finances du Gouvernement Int6rimaire s’est pr6sent6 personnellement 27

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5. CONCISE STATEMENT OF FACT: PREPARATION and ordered that all the money in the safe deposit be given to him. He said that the money collected was meant for the purchase of weapons and that Casimir Bizimungu was instructed to travel abroad in order to negotiate the purchase. 5.24 Before and during the events referred to in this indictment, some members of the Interim government, MRND leaders and some soldiers participated in the distribution of weapons to the militiamen and certain carefully selected members of the civilian population with the intent to exterminate the Tutsi population and eliminate its accomplices. 5.25 Towards the end of 1993, in an open letter broadcast on national radio, the Bishop of the diocese of Nyundo, in Gisenyi prefecture, denounced the distribution of weapons in that prefecture. 5.26 Further, in a letter from Prime Minister Agathe Uwilingiyimana dated 19 January 1994, the Minister of Defence, Augustin Bizimana, was reproached for refusing to carry out a Cabinet decision to recover all firearms distributed illegally to the civilian population. 5.27 Due to the proliferation of weapons in Kigali-ville prOfecture,

UNAMIR put in place a disarmament program, titled Kigali Weapon Security Area (KWSA). 5.28 On 7 January 1994, Mathieu Ngirumpatse, Augustin Bizimana, Augustin Ndindiliyimana, D6ogratias Nsabimana, Robert Kajuga and other influential

MRND la Pr6fecture de Gitarama et a ordonn6 qu’on lui remette tout l’argent d@os6 dans son coffre fort. I1 a affirm6 que l’argent ainsi collect6 est destin6 ~t l’achat d’armes et que Casimir Bizimungu 6tait charg6 de voyager ~t l’6tranger pour n6gocier ces achats. 5.24 Avant et durant les 6v6nements vis6s darts le pr6sent acte d’accusation, des membres du gouvemement int6rimaire, des leaders du MRND et des militaires ont particip6 ~t la distribution d’armes aux miliciens et /t certaines personnes soigneusement choisies parmi la population civile dans l’intention d’exterminer la populationTutsi et d’ 61iminer ses complices. 5.25 Vers la fin 1993, dans une lettre ouverte diffus6e sur les ondes de la Radio Nationale, l’6v6que du diocbse de Nyundo, pr6fecture de Gisenyi, a d6nonc6 la distribution d’ armes dans cette pr6fecture. 5.26 Par ailleurs, dans une lettre du Premier Ministre Agathe Uwilingiyimana dat6e du 19 janvier 1994, le Ministre de la D6fense Augustin Bizimana s’est vu reprocher son refus d’ex6cuter une d6cision du Conseil des Ministres de retirer toutes les armes ~ feu distribudes ilHgalement g~ la population civile. 5.27 En raison de la prolif6ration des armes dans la pr6fecture de Kigali-ville, la MINUAR a mis en place un programme de d6sarmement, d6nomm6 Kigali Weapon Security Area (KWSA). 5.28 Le 7 janvier 1994, Mathieu Ngirumpatse, Augustin Bizimana, Augustin Ndindiliyimana, D6ogratias Nsabimana, Robert Kajuga et d’autres membres influents 28

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5. EXPOSI~ SUCCINT DES FAITS: PRI~PARATION members participated in a meeting at the MRND headquarters in opposition to the disarmament program. It was decided at this meeting to use all possible means to resist the implementation of the disarmament, and also to hide weapons at various locations. du MRND ont particip6 A une r6union au quartier g6n6ral du MRND, pour s’opposer au programme de d6sarmement. I1 y a 6t6 d6cid6, d’une part, de r6sister par tous les moyens ~ l’6x6cution du programme de d6sarmement, et d’autre part de dissimuler des armes/t diff6rents endroits. 5.29 On 10 January 1994, UNAMIR was informed by an Interahamwe-MRND leader of the existence of weapons caches in Kigali and a plan to eliminate the Tutsi population. It instructed one of its officers to uncover the exact locations of the weapons. That officer identified several caches throughout Kigali, in places controlled by members of the MRND, notably at the party headquarters in Kimihurura, in a house belonging to General Augustin Ndindiliyimana. During the search of that house, the UNAMIR officer discovered several firearms and cases of ammunition. The informer asserted that, as regards the military aspects of his duties, he was under the orders of MRND Chairman, Mathieu Ngirumpatse, and the Army Chief of Staff, D6ogratias Nsabimana. Moreover, he informed UNAMIR that the weapons that had

been distributed came from the Army. 5.29 Le 10 janvier 1994, la MINUAR a 6t6 inform6e, par un dirigeant des Interahamwe-MRND, de l’existence de caches d’armes /~ Kigali, et d’un plan pour 61iminer la population Tutsi. Elle a mandat6 un de ses officiers pour s’assurer de l’emplacement exact des armes. Cet officier a localis6 plusieurs caches d’armes ~ travers la ville de Kigali, dans des lieux contr616s par des membres du MRND, notamment au quartier g6n6ral du parti, situ6 ~ Kimihurura, dans une maison appartenant au G6n6ral Augustin Ndindiliyimana. Lors de la fouille, l’officier de la MINUAR a d6couvert,/t cet endroit, plusieurs armes/t feu et des caisses de munitions. L’informateur a affirm6 travailler sous les ordres du Pr6sident du MRND, Mathieu Ngirumpatse, et du Chef dEtat Major de l’Arm6e, D6ogratias Nsabimana pour les aspects militaires de ses tftches. I1 a, en outre, inform6 la MINUAR que les armes distribu6es provenaient de l’Arm6e. Establishment of Lists Confection de listes 5.30 Having identified the Tutsi as the enemy and the members of the opposition as their accomplices, members of the Army General Staff, civilian authorities and militiamen established lists of people to be executed. 5.30 Aprbs avoir identifi6 le Tutsi comme 6tant l’ennemi principal et les membres de l’opposition comme ses complices, des membres de l’Etat-Major de l’Arm6e, des autorit6s civiles et deS miliciens ont dress6 des listes de personnes ~ ex6cuter. 5.31 In 1992, at a meeting, Colonel Th6oneste Bagosora instructed the two 5.31 En 1992, lors d’une r6union, le Colonel Th6oneste Bagosora a demand6 aux 29

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5. CONCISE STATEMENT OF FACT: PREPARATION General Staffs to establish lists of people identified as the enemy and its accomplices. The Intelligence Bureau (G-2) of the Rwandan Army established the lists under the supervision of Anatole Nsengiyumva. The lists were regularly updated during the time that Augustin Bizimana was Minister of Defense. deux Etats-Majors d’6tablir des listes de personnes identifi6es comme 6tant l’ennemi et ses complices. Les agents du service de renseignements du G-2 de l’Arm6e Rwandaise ont proc6d6 h la confection de ces listes, sous la supervision d’Anatole Nsengiyumva. Ces listes ont 6t6 r6guli6rement mises g jour durant la p6riode off Augustin Bizimana 6tait ministre de la d6fense. 5.32 On 10 January 1994, an Interahamwe-MRND leader informed UNAMIR that he had received orders to establish lists of Tutsi to be eliminated. 5,32 Le 10 janvier 1994, un dirigeant des [nterahamwe a inform6 la MINUAR qu’il avait regu l’ordre de pr6parer des listes de Tutsi ~ 61iminer. 5.33 On 25 February 1994, at a meeting at MRND headquarters in Kimihurura, chaired by the Chairman of the Interahamwe- MRND, Robert Kajuga, Interahamwe-

MRND leaders of Kigali-ville ordered their militants to establish lists of names of Tutsi with the intent to eliminate them. 5.33 Le 25 f6vrier 1994, lors d’une r6union ~ la permanence du MRND Kimihurura, pr6sid6e par le Pr6sident des Interahamwe-MRND, Robert Kajuga, des dirigeants des Interahamwe-MRND de Kigali-ville ont donn6 ordre ~. leurs militants de pr6parer des listes nominatives de Tutsi dans le but de les 61iminer. 5.34 From 7 April to late July, military and Interahamwe-MRND massacred members of the Tutsi population and of moderate Hutu by means of pre-established lists, among other things. 5.34 Du 7 avril /~ la fin juillet, des militaires et des Interahamwe-MRND ont perp6tr6 des massacres de membres de la population Tutsi et des Hutu mod6r6s, entre autres/~ l’aide de listes pr6-6tablies. Precursors Revealing A Deliberate Course of Action Ant6c~dents r~v~lant une conduite d61ib6r~e 5.35 The political and ethnic violence of the early 1990s was characterized by the use of the elements of the strategy which achieved its finality in the genocide of April 1994. The massacres of the Tutsi minority at that time, including those in Kibilira (1990), in Bugesera (1992), and those of Bagogwe (1991), were instigated, facilitated 5.35 La violence ethnique et politique du d6but des ann6es 90 a 6t6 caract6ris6e par l’utilisation des 616ments de la strat6gie qui allait connaitre son aboutissement avec le g6nocide de 1994. Les massacres de la minorit6 Tutsi perp6tr6s ~ cette 6poque, tels que ceux ~ Kibilira (1990), A Bugesera (1992), et ceux ~ l’encontre des Bagogwe 3O

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5. EXPOSI~ SUCCINT DES FAITS: PRI~PARATION and organized by civilian and military authorities. On each occasion, a campaign of incitement to ethnic violence, conducted by local authorities, was followed by massacres of the Tutsi minority, perpetrated by groups of militiamen and civilians, armed and assisted by the same authorities and by certain military personnel. On each occasion, these crimes remained unpunished and the authorities implicated were generally not taken to task. (1991) ont 6t6 suscit6s, facilit6s et organis6s par des autorit6s civiles et militaires. A chaque occasion une campagne d’incitation /t la violence ethnique men6e par des autorit6s locales a 6t6 suivie de massacres de la minorit6 Tutsi, perp6tr6s par des groupes de miliciens et de civils, arm6s et aid6s par ces m6mes autorit6s et certains militaires. chaque occasion, ces crimes sont demeur6s impunis et les autorit6s impliqu6es n’ont g6n6ralement pas 6t6 inqui6t6es. 5.36 Cooperation between the Interahamwe-MRND and certain military personnel, particularly those in the Presidential Guard and the Para-Commando Battalion, was manifested in early 1994 in opposition to the implementation of the institutions provided for under the Arusha Accords. On 5 January 1994, at the time of the swearing-in ceremony of the Broad- Based Transitional Government, the Interahamwe-MRND organized a demonstration in

cooperation with members of the Presidential Guard. They prevented political opponents from entering the Conseil national de dOveloppement (CND). The swearing-in of the members of the Government did not take place. In the end, only the President, Juv6nal Habyarimana, was sworn in. 5.36 La collaboration entre des Interahamwe-MRND et certains militaires, particuli6rement de la Garde Pr6sidentielle et du Bataillon Para-Commando, s’est de nouveau manifest6e au d6but de 1994 pour s’opposer/~ la mise en place des institutions pr6vues par les Accords d’Arusha. Le 5 janvier 1994, lors de la c6r6monie pr6vue pour la prestation de serment du Gouvemement de Transition/t Base Elargie, les Interahamwe-MRND ont organis6 une manifestation en collaboration avec des 616ments de la Garde Pr6sidentielle. Ils ont interdit l’acc6s au CND (Conseil national de d6veloppement) aux opposants politiques. La prestation de serment des membres du Gouvemement na pas eu lieu. Finalement seul le Pr6sident, Juv6nal Habyarimana, a pr6t6 serment. 5.37 On 8 January 1994, Interahamwe, in complicity with elements of the Presidential Guard and the Para-Commando Battalion dressed in civilian clothes, again organized a demonstration near the CND. On that occasion, the Interahamwe-MRND had hidden weapons very nearby and were equipped with radios provided by the Presidential Guard. That demonstration was intended to provoke and cause injury to the Belgian

UNAMIR soldiers. 5.37 De nouveau, le 8 janvier 1994, les Interahamwe en complicit6 avec des 616ments de la Garde Pr6sidentielle et du Bataillon Para-Commando habill6s en civils, ont organis6 une manifestation pr6s du CND. A cette occasion, les Interahamwe- MRND avait dissimul6 des armes /t proximit6 et 6taient 6quip6s de radios fournies par la Garde Pr6sidentielle. Cette manifestation visait h provoquer et agresser les soldats belges de la MINUAR. 31

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5. CONCISE STATEMENT OF FACT: PREPARATION 5.38 Finally, as of 7 April 1994, throughout Rwanda, Tutsis and certain moderate Hutus began to flee their homes to escape the violence to which they were victims on their hills and to seek refuge in places where they had traditionally felt safe, notably churches, hospitals and other public buildings such as commune and prOfecture offices. On several occasions, gathering places were indicated to them by the local authorities, who had promised to protect them. For the initial days, the refugees were protected by a few gendarmes and communal police in these various locations, but subsequently, the refugees were systematically attacked and massacred by militiamen, often assisted by the same authorities who had promised to protect the refugees. During the numerous attacks on the refugees throughout the country, personnel of the FAR, military or gendarmes, who were supposed to protect them, prevented the Tutsi from escaping and facilitated their massacre by the Interahamwe-MRND. On several occasions, these FAR personnel participated directly in the massacres. 5.39 Furthermore, soldiers, militiamen and gendarmes raped or sexually assaulted or committed other crimes of a sexual nature against Tutsi women and girls, sometimes after having first kidnapped them. 5.38 Finalement, d6s le 7 avril 1994, sur tout le territoire du Rwanda, des

Tutsi et certains Hutu mod6r6s, pour 6chapper ~ la violence dont ils 6taient victimes sur leurs collines, ont commenc6/t fuir leurs maisons pour chercher refuge dans des endroits o/1 traditionnellement ils s’6taient sentis en s6curit6, notamment des 6glises, des h6pitaux et d’autres 6difices publics comme les bureaux communaux et pr6fectoraux. plusieurs occasions, des endroits de rassemblement leur avaient 6t6 indiqu6s par des autorit6s locales qui avaient promis de les prot6ger. Durant les premiers jours, les r6fugi6s ont 6t6 prot6g~s par quelques gendarmes et policiers communaux dans ces diff6rents endroits, mais par la suite, syst6matiquement, les r6fugi6s ont 6t6 attaqu6s et massacr6s par des miliciens, souvent aid6s par ces mSmes autorit6s qui avaient promis de prot6ger les r6fugi6s. Au cours des nombreuses attaques men6es contre les r6fugi6s partout ~t travers le pays, des membres des FAR, militaires ou gendarmes, qui devaient les prot6ger, ont empSch6 les Tutsi de fuir et facilit6 leur massacre par les Interahamwe-MRND. A plusieurs occasions, ces membres des FAR ont particip6 directement aux massacres. 5.39 De plus, des militaires, des miliciens et des gendarmes ont commis des viols, des agressions sexuelles et d’autres crimes de nature sexuelle a l’encontre de certaines femmes et jeunes filles Tutsi et ce parfois apr~s les avoir enlev6es. 32

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OF

INTERNATIONAL

HUMANITARIAN LAW 6. EXPOSE SUCCINCT DES FAITS:

AUTRES VIOLATIONS DU DROIT

INTERNATIONAL HUMANITAIRE Power Crisis 6.1 On 6 April 1994 at about 8:30 p.m., the plane carrying, among other passengers, the President of the Republic, Juv6nal Habyarimana, was shot down on its approach to Kigali Airport, Rwanda. 6.2 Following the crash of the Presidents plane, the Forces Armdes Rwandaises were left without leadership. The President was dead, along with the Chief of Staff of the Rwandan Army, Colonel D6ogratias Nsabimana. The Minister of Defence, Augustin Bizimana, and the Chief of Intelligence Services (G2) in the Rwandan Army, Colonel Aloys Ntiwiragabo, were on mission in the Republic of Cameroon. They returned to the country in the days that followed. Gratien Kabiligi, the officer in charge of operations (G3) in the Rwandan Army General Staff, was also on mission in Egypt. In the absence of the Minister of Defence, Colonel Th6oneste Bagosora, directeur de cabinet, asserted himself as the man of the moment capable of managing the crisis. Military Takeover Attempt 6.3 Within the first hours following the death of the President, two important meetings took place in Kigali where Colonel Theoneste Bagosora and several Army offciers attempted to seize power. While the Crise du pouvoir 6.1 Au soir du 6 avril 1994 vers 20:30 heures, l’avion transportant entre autres passagers le Pr6sident de la R6publique du Rwanda, Juv6nal Habyarimana, a 6t6 abattu peu avant son

atterrissage ~t l’a6roport de Kigali, Rwanda. 6.2 Apr6s la chute de 1’ avion pr6sidentiel, les Forces Arm6es Rwandaises se sont retrouv6es sans direction. Le Pr6sident 6tait mort ainsi que le chef d’Etat- Major (AR), le Colonel D6ogratias Nsabimana. Le Ministre de la D6fense, Augustin Bizimana et le responsible des renseignements (G2) de l’Etat-Major (AR), le Colonel Aloys Ntiwiragabo, 6taient en mission en R6publique du Cameroun. Ils sont revenus au pays dans les jours qui ont suivi. Gratien Kabiligi, responsable des op6rations (G3) de l’Etat-Major (AR), 6tait 6galement en mission en Egypte. En l’absence du Ministre de la D6fense, le Colonel Th6oneste Bagosora, directeur de cabinet, s’est impos6 comme l’homme de la situation/t m6me de g6rer la crise. Tentative de prise du pouvoir par les militaires 6.3 Au cours des premi6res heures qui ont suivi la mort du Pr6sident, deux r6unions importantes ont eu lieu ~t Kigali, au cours desquelles le Colonel Th6oneste Bagosora et plusieurs officiers de l’arm6e ont tent6 de 33

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW second meeting was going on, the Prime Minister Mrs Agathe Uwilingiyimana, the President of the Constitutional Court, other leading political figures and ten UNAMIR Blue Helmets were brutally massacred. 6.4 The elimination of political opponents made it possible to set aside the establishment of the Broad-Based Transitional Government (BBTG), stipulated in the Arusha Accords, in favour of an Interim Government. The murder of the Belgian soldiers prompted the withdrawal of most of UNAMIR’s contingents. Those two events removed the two major obstacles to the pursuit of the massacres. prendre le pouvoir. Alors que la seconde r6union se d6roulait le Premier Ministre Madame Agathe Uwilingiyimana, le Pr6sident de la Cour Constitutionnelle, d’autres personnalit6s politiques importantes ainsi que dix casques bleux appartenant au contingent de la MINUAR ont 6t6 brutalement massacr6s. 6.4 L’61imination des opposants politiques a permis d’6carter la mise en place du Gouvernement de Transition a Base Elargie (G.T.B.E.), pr6vu aux Accords d’Arusha, au profit d’un Gouvernement Int6rimaire. L’assassinat des militaires belges a provoqu6 le retrait de la majeure partie des contingents de la MINUAR. Ces deux 6v6nements ont 6cart6 les deux obstacles majeurs ~ la poursuite des massacres. Formation of the Interim Government 6.5 Making up for the

failure of the attempt at a military takeover by certain military personnel, the leaders of the MRND and of other political parties and military officers, including Colonel Th6oneste Bagosora, put in place an Interim Government which would aid and abet the continuation of the massacres. 6.6 Already, in the night of 6 to 7 April, in Kigali, the Presidential Guard (PG) moved the MRND ministers, members of the Power wings of the other political parties, including Casimir Bizimungu and Justin Mugenzi and prominent members of the deceased President Habyarimanas circle. Some were taken to military camps. They were subsequently moved to the H6tel Diplomate, where they were guarded by members of the Reconnaissance Battalion. Formation du Gouvernement Intdrimaire 6.5 Faisant face/t l’6chec de la tentative de prise du pouvoir par certains militaires, les dirigeants du MRND et d’autres partis politiques et des officiers militaires parmi lesquels le Colonel Th6oneste Bagosora, ont mis en place un Gouvernement Int6rimaire qui allait aider et encourager la continuation des massacres. 6.6 Dbs la nuit du 6 au 7 avril,/t Kigali, la Garde Pr6sidentielle (GP) a d6plac6 les Ministres du MRND, des membres des ailes dites power des autres parties politiques, parmi lesquels, Casimir Bizimungu et Justin Mugenzi ainsi que des personnalit6s de 1’ entourage du d6funt Pr6sident Habyarimana. Certains d’entre eux ont 6t6 conduits dans des camps militaires. Ils ont 6t6 transf6r6s, par la suite, g l’h6tel Diplomate off leur s6curit6 a 6t6 assur6e par des membres du Bataillon de 34

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL ) 6.7 On 7 April, at about 7:00 a.m., Colonel Th6oneste Bagosora called a meeting at the Ministry of Defence of the members of the MRND executive committee, including Mathieu Ngirumpatse, Edouard Karemera and Joseph Nzirorera. The purpose of the meeting was to appoint a new President of the Republic. 6.8 On 8 April, Colonel Th6oneste Bagosora summoned political party representatives to a meeting to form a new Government. To that effect, he arranged their transport to the Ministry of Defence. The members of the Government were appointed at the meeting in the presence of

MRND representatives Mathieu Ngirumpatse, Edouard Karemera and Joseph Nzirorera. They were almost all members of the MRND and of Power wings of the other political parties. No one of Tutsi descent was included either in the talks or in the new Government. 6.9 Jean Kambanda was appointed Prime Minister of the Interim Government of Rwanda formed on 8 April 1994. The Government was officially sworn in on 9 April 1994. It was composed of 19 cabinet Ministers. Augustin Ngirabatware, Prosper Mugiraneza, Casimir Bizimungu, Andr6 Ntagerura et Pauline Nyiramasuhuko were among the nine MRND ministers. As the designated Minister of the Interior did not take up office, he was replaced by Edouard Karemera, Vice-Chairman of the MRND. When Dr. Daniel Nbangura, originally Reconnaissance. 6.7 Le 7 avril aux environs de 07.00 heures, le Colonel Th6oneste Bagosora a convoqu6 au Minist6re de la D6fense, une r6union des membres du comit6 ex6cutif du parti MRND, parmi lesquels, Mathieu Ngirumpatse, Edouard Karemera et Joseph Nzirorera. L’objet de la r6union 6tait de d6signer le nouveau Pr6sident de la R6publique. 6.8 Dans la joum6e du 8 avril, le Colonel Th6oneste Bagosora a convoqu6 des repr6sentants des partis politiques ~ une r6union afin de former un nouveau gouvemement. I1 a,/t cet effet, organis6 leur d6placement au Minist6re de la D6fense. Les membres du Gouvernement ont 6t6 d6sign6s lors de

la r6union en pr6sence des repr6sentants du MRND Mathieu Ngirumpatse, Edouard Karemera et Joseph Nzirorera. Les personnes choisies pour composer le Gouvemement Int6rimaire 6taient presque toutes issues du MRND et des ailes dites power des autres partis politiques. Aucune personnalit6 d’origine Tutsi n’a 6t6 associ6e aux discussions ou n’a fait partie du nouveau gouvernement. 6.9 Jean Kambanda a 6t6 d6sign6 Premier Ministre du Gouvernement Int6rimaire de la R6publique Rwandaise constitu6 le 8 avril 1994. Le Gouvemement a officiellement pr6t6 serment le 9 avril 1994. I1 comptait 19 ministres. Augustin Ngirabatware, Prosper Mugiraneza, Casimir Bizimungu, Andr6 Ntagerura et Pauline Nyiramasuhuko faisaient partie des neuf ministres du MRND. Le Ministre de l’Int6rieur d6sign6 n’ayant pas assum6 ses fonctions, il a 6t6 remplac6 par Edouard Karemera, Vice-Pr6sident du MRND. 35

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW designated Minister of Higher Education, resigned in mid-May 1994 to become the Chef de Cabinet to Interim Government President Sindikubwabo, he was replaced as government minister by Jean de Dieu Kamuhanda, also of MRND. The MDR was represented by three ministers, J6r6me Bicamumpaka, Andr6 Rwamakuba and Eli6zer Niyitegeka. Three Ministers, including Justin Mugenzi, represented the Liberal Party. 6.10 As soon as the Interim Government was formed, numerous Cabinet members supported the plan of extermination in place and took the necessary steps to execute it. They incited the people to eliminate the enemy and its accomplices, distributed weapons to them, dismissed local government authorities that were opposed to the massacres, replacing them with others who were devoted to the cause, and adopted directives intended to facilitate the massacre of the civilian Tutsi population. Scaling-Down of UNAMIRs Personnel 6.11 UNAMIR was established in order to facilitate the peaceful implementation of the institutions foreseen under the Arusha Accords. This United Nations military force was perceived as an obstacle by certain members of the extremist political circles. Certain eminent figures in this circle thus adopted a strategy intended to provoke the Belgian military contingent, UNAMIR’s most effective and

best-equipped contingent. Their ultimate goal was to force them to withdraw. 6.12 Hence, an anti-Belgian propaganda was carried out, particularly through some media and Radio Televesion Libre des Mille Quand le docteur Daniel Nbangura, initialement nomm6 Ministre de 1 l’Enseignement Sup6rieur, a d6mission6 en mi-mai 1994 pour occuper le poste de Chef de Cabinet du Pr6sident Int6rimaire Sindikubwabo, il a 6t6 remplac6 par Jean de Dieu Kamuhanda, qui faisait partie, lui aussi, du MRND. Le MDR 6tait repr6sent6 par 3 ministres, J6r6me Bicamumpaka, Andr6 Rwamakuba et Eli6zer Niyitegeka. Trois ministres, dont Justin Mugenzi, repr6sentaient le Parti Lib6ral. 6.10 D6s la formation du Gouvernement Int6rimaire, plusieurs membres du Cabinet ont adh6r6 au plan d’extermination mis en place et pris les moyens n6cessaires pour l’ex6cuter. Ils ont incit6 la population /~ 61iminer l’ennemi et ses complices, lui ont distribu6 des armes, ont r6voqu6 des autorit6s administratives locales oppos6es aux massacres pour les remplacer par d’autres acquises /t la cause et ont adopt6 des directives visant/t faciliter les massacres de la population civile Tutsi. Rdduction des effectifs de la MINUAR 6.11 La MINUAR avait 6t6 institu6e dans le but de faciliter la mise en place pacifique des institutions pr6vues aux Accords d’Arusha. Cette force militaire des Nations Unies 6tait pergue comme un obstacle par certains membres de la classe politique extr6miste. Aussi des personnalit6s de ce groupe ont adopt6 une strat6gie visant provoquer les militaires belges qui avait le contingent le plus efficace et le mieux 6quip6 de la MINUAR. L’objectif/t terme 6tait de forcer leur retrait. 6.12 Dans cet esprit, une campagne de propagande anti-beige a 6t6 men6e, notamment par le truchement des m6dias et 36

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL / Collines (RTLM). Meetings aimed mapping out a strategy to provoke the Belgian troops were held by MRND leaders especially on 7 and 26 January 1994. On 7 April 1994, the ten Belgian Blue Helmets detailed to escort the Prime Minister Agathe Uwilingiyimana were assassinated by soldiers of the FAR. 6.13 Due to the anti-Belgian propaganda and the murder of the ten Belgian para- commandos, Belgium informed the Security Council on 13 April 1994 that it was withdrawing its contingent from Rwanda. A week later, the Security Council ordered a drastic reduction of UNAMIR’s civilian and military personnel. notamment la Radio T616vision Libre des Mille Collines (RTLM). Des r6unions ayant pour but d’61aborer une strat6gie de provocation des troupes belges ont 6t6 tenues par les dirigeants du MRND notamment le 7 et le 26 janvier 1994. Le 7 avril 1994, les 10 casques bleux belges qui 6taient charg6s d’escorter le Premier Ministre Agathe Uwilingiyimana ont 6t6 assassin6s par des 616ments des FAR. 6.13 En raison de la propagande anti- Belge et de lassassinat des 10 para- commando belges, la Belgique a inform6 le Conseil de S6curit6, le 13 avril 1994, quelle retirait son contingent du Rwanda. Une semaine aprbs, le Conseil de S6curit6 a ordonn6 une r6duction drastique du personnel civil et militaire de la MINUAR. 37

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW Perpetration of the Massacres 6.14 As from 7 April 1994, massacres of the Tutsi population and the murder of numerous political opponents were perpetrated throughout the territory of Rwanda. These crimes, which had been planned and prepared for a long time by prominent civilian and military figures who shared the extremist Hutu ideology, were carried out by militiamen, military personnel and gendarmes on the orders and directives or to the knowledge of some of these authorities, including Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Eliezer Niyitegeka, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, and Juvenal Kajelijeli. 6.15 As of the night of 6 to 7 April, in the capital, elements of the FAR and Interahamwe-MRND set up roadblocks, reinforced with armored vehicles, on the major roads, controlling peoples movements. At these places, peoples identities were checked, notably by means of verification of identity cards, and the Tutsi or those identified as such were summarily executed. Concurrently, groups of soldiers and Interahamwe-MRND scoured the city and murdered civilians. 6.16 Between April and July 1994, the [nterahamwe-MRND and Impuzamugambi- CDR militia spearheaded the massacres, having been armed and well

trained to exterminate the enemy and its accomplices when the time was deemed to be appropriate. The Interahamwe had a visible Commission des massacres 6.14 A partir du 7 avril 1994, des massacres de la population Tutsi et 1’ assassinat de nombreux opposants politiques ont 6t6 commis sur tout le territoire du Rwanda. Ces crimes planifi6s et pr6par6s de longue date par des personnalit6s civiles et militaires partageant l’id6ologie hutu extr6miste ont 6t6 perp6tr6s par des miliciens, des militaires et des gendarmes suivant les ordres et les directives ou/~ la connaissance de certaines de ces autorit6s dont Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Eliezer Niyitegeka, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera et Juv6nal Kajelijeli. 6.15 D6s la nuit du 6 au 7 avril, dans la capitale, des 616ments des FAR et des Interahamwe-MRND ont 6rig6 des barrages, renforc6s par des v6hicules blind6s, sur les principaux axes routiers, contr61ant le d6placement de la population. A ces endroits, on v6rifiait l’identit6 des passants notamment en contr61ant les cartes d’identit6 et on y ex6cutait sommairement les Tutsi ou ceux reconnus comme tels. Parall61ement, des groupes de militaires et des milices Interahamwe-MRND ont sillonn6 la ville et se sont livr6s /t des assassinats de civils. 6.16 Entre avril et juillet 1994, les milices Interahamwe-MRND et Impuzamugambi- CDR, arm6es et bien entrain6es dans le but de servir, au moment jug6 opportun, exterminer l’ennemi et ses complices, ont constitu6 le fer de lance des massacres. Les Interahamwe 6taient dot6s d’une structure 38

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AUTRES VIOLATIONS DU DROIT INTERNATIONAL HUMANITAIRE national, prefectural and local structure, as well as a secret parallel structure in which the most influential members of the MRND played a leadership role. Thanks to that very elaborate structure, supported by the existing broad-based structure of the MRND, directives circulated easily and were implemented effectively within the militias organs. The Interahamwe-MRND participated actively and massively in the massacres of 1994. 6.17 Fearing the opinion of the international community, certain leaders attempted to conceal the massacres in Kigali. Thus, as early as 9 April 1994, the Secretary General of the MRND, Joseph Nzirorera, ordered the Interahamwe to stop the massacres. The order was respected and made it possible to gather up the corpses in the streets and conceal them in mass graves. The Interahamwe reported the success of the mission to Joseph Nzirorera and Justin Mugenzi. Justin Mugenzi openly expressed his satisfaction that many Tutsis had already been killed. Interim Government 6.18 Following the swearing in of the ministers of the Interim Government, Cabinet members supported the plan of extermination in place, including Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6

Ntagerura, Pauline Nyiramasuhuko, t~liezer Niyetegeka and special advisor to President Sindikubwabo Jean de Dieu Kamuhanda. Thus, several members of the government incited the people to eliminate the enemy and its visible ~ l’6chelle nationale, pr6fectorale et locale, et d’une structure parall61e occulte off les membres les plus influents du MRND jouaient un r61e de leadership. Grgtce g cette structure tr6s 61abor6e, soutenue par celle d6jg existante et tr6s ramifi6e du MRND, les directives circulaient facilement et 6taient efficacement mis en oeuvre au sein des organes de la milice. Les Interahamwe- MRND ont tr6s activement et tr6s massivement particip6 aux massacres de 1994. 6.17 Par crainte de l’opinion de la communaut6 internationale, certains dirigeants ont tent6 de dissimuler les massacres ~t Kigali. Ainsi, d6s le 9 avril 1994, le secr6taire-g6n6ral du MRND, Joseph Nzirorera, a ordonn6 aux Interahamwe d’arr~ter les massacres. Cet ordre a 6t6 respect6 eta permis le ramassage des cadavres dans les rues pour les dissimuler dans des fosses communes. Le succ6s de la mission a 6t6 rapport6 par les Interahamwe /~ Joseph Nzirorera et Justin Mugenzi. Ce dernier exprimait ouvertement sa satifaction devant le fait que beaucoup de tutsi ont 6t6 d6j~ 61imin6s. Gouvernement Intdrimaire 6.18 Suite/t la prestation de serment des mini stres du Gouvernement Int6rimaire, les membres du

Cabinet, parmi lesquels Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko, Eli6zer Niyetegeka et consieller au President Sindikubwabo Jean de Dieu Kamuhanda, ont adh6r6 au plan d’extermination mis en place. Dans ce sens plusieurs membres du gouvernement ont incit6 la population A 61iminer l’ennemi 39

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW accomplices and distributed weapons to them. The Government dismissed local government authorities that were opposed to the massacres and replaced them with others who were devoted to the cause. 6.19 Already, on 8 April, the new Government summoned all the prOfets to a meeting in Kigali for the purpose of assessing the situation in the country at the time. The emergency meeting was held on 11 April 1994 and recorded the participation of all the Government ministers and all the prefers, except those of Ruhengeri, Cyangugu and Butare. At this meeting, the situation as regards the massacres in each prefecture was analyzed. 6.20 On 17 April, Eli6zer Niyitegeka, as Minister of Information and spokesperson for the government, read out an official communique of the Interim Government in which he congratulated the Prefets of Kigali, Kibuye and Cyangugu for the excellent work done. 6.21 Rather than take immediate action to put an end to the massacres, on 17 April, the Interim Government dismissed several authorities, among them the Prdfet of Butare, Jean Baptiste Habyarimana, for their refusal to take part in the massacres so that the killings could spread to the country as a whole. 6.22 Between 9 April and 14 July 1994, numerous Cabinet meetings were held successively in Kigali, Gitarama and Gisenyi. During this period, the

Prime Minister, Jean Kambanda, and Ministers Augustin Ngirabatware, Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, Andre Rwamakuba, Andre Ntagerura, Pauline Nyiramasuhuko, Jean de Dieu et ses complices et lui ont distribu6 des armes. Le Gouvernement a r6voqu6 des autorit6s administratives locales oppos6es aux massacres pour les remplacer par d’autres acquises/t la cause. 6.19 Dbs le 8 avril, le nouveau Gouvernement a convoqu6 tous les pr6fets pour une r6union /t Kigali, dans le but d6valuer la situation qui pr6valait dans le pays. Cette r6union de crise tenue le 11 avril 1994, a enregistr6 la participation de tousles ministresk et celle de tous les pr6fets, exception faite de ceux de Ruhengeri, de Cyangugu et de Butare. Lors de cette r6union, la situation des massacres dans chaque pr6fecture a 6t6 analys6e. 6.20 Le 17 avril, Eli6zer Niyitegeka, en tant que Ministre de l’Infomation et porte- parole du governement, a lu un communiqu6 officiel du Gouvernement Int6rimaire dans laquelle il a felicit6, entre autres, les pr6fets de Kigali, Kibuye et Cyangugu pour l’excellent travail qu’ils ont fait. 6.21 Le 17 avril, au lieu de prendre des mesures imm6diates pour mettre fin aux massacres, le gouvernement int6rimaire a plut6t limog6 plusieurs responsables, dont le pr6fet de Butare, Jean Baptiste Habyarimana, parce qu’ils avaient refus6 de prendre part aux massacres et ce, afin que les tueries s’6tendent g l’ensemble du pays. 6.22 Entre le 9 avril et 14 juillet 1994, de nombreuses r6unions du Conseil des Ministres se sont tenues successivement Kigali, Gitarama et Gisenyi. Durant cette p6riode le Premier Ministre, Jean Kambanda, les Ministres Augustin Ngirabatware, Augustin Bizimana, Edouard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline 40

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AUTRES VIOLATIONS DU DROIT INTERNATIONAL HUMANITAIRE Kamuhanda, and Eliezer Niyitegeka were regularly briefed on the situation in regard to the massacres of the civilian population. On several occasions during these meetings, the Ministers demanded weapons to distribute in their respective home prefectures, knowing that the weapons would be used in the massacres. 6.23 During these numerous Cabinet meetings, the Interim Government adopted directives and gave instructions to the prefers and the bourgmestres. The decisions, which were then passed on to the general public, were intended to incite, aid and abet the perpetration of the massacres. In order to ensure that the directives and instructions were carried out, the Cabinet of the Interim Government designated a Minister for each prefecture to be responsible for what was termed pacification. Callixte Nzabonimana for Gitarama, Pauline Nyiramasuhuko for Butare and Andr6 Ntagerura for Cyangugu were among those assigned this task. 6.24 On 27 April 1994, the Interim Government ordered roadblocks to be set up, knowing that the roadblocks were being used to identify the Tutsi and their "accomplices" for the purpose of eliminating them. Between April and July 1994, a roadblock was set up near the residence of Minister Pauline Nyiramasuhuko and Arsbne Shalom Ntahobali in Butare town, manned and controlled by them. 6.25 On 25 May 1994,

the Interim Government adopted directives concerning the civil self-defence program. Its purpose was to legalize the distribution of weapons Nyiramasuhuko, Jean de Dieu Kamuhanda, et t~liezer Niyitegeka 6taient r6guli6rement tenu inform6s de la situation des massacres de la population civile. A plusieurs occasions lors de ces r6unions, les Ministres ont exig6 des armes pour les distribuer dans leur pr6fecture d’origine, sachant qu’elles seraient utilis6es dans les massacres. 6.23 Au cours de ces nombreuses r6unions du Conseil des Ministres, le Gouvernement Int6rimaire a adopt6 des directives et donn6 des instructions aux pr6fets et aux bourgrnestres. Ces d6cisions, r6percut6es /~ la population, visaient /t inciter, encourager et aider /t commettre les massacres. Pour s’assurer de la mise en oeuvre de ces directives et instructions, le Conseil des Ministres du Gouvemement Int6rimaire de Jean Kambanda a d6sign6 pour chaque pr6fecture, un Ministre responsable de ce qu’on appelait la pacification. Callixte Nzabonimana Gitarama, Pauline Nyiramasuhuko/~ Butare et Andr6 Ntagerura ~ Cyangugu, entre autres, devaient assumer cette mission. 6.24 Le 27 avril 1994, le gouvemement int6rimaire a ordonn6 l’6rection de barrages routiers, sachant que ceux-ci 6taient utilis6s pour identifier les Tutsi et leurs "complices," afin de les 61iminer. Entre avril et juillet 1994, un barrage routier a 6t~ 6rig6 proximit6 du domicile du Ministre Pauline Nyiramasuhuko et d’Ars6ne Shalom Ntahobali dans la ville de Butare, tenu et control6 par eux. 6.25 Le 25 mai 1994, le Gouvernement Int6rimaire, a adopt6 des directives pour le programme d’auto-d6fense civile. Ce programme visait /t 16galiser d’une part la 41

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW to the militiamen on the one hand and to legitimize the massacres of the civilian population on the other. As part of the civil self-defence program, the Interim Government, by ministerial decision, appointed several military officers to lead the self defence committees established in each prefecture. Some of these officers took an active part in the massacres, including Alphonse Nteziryayo in Butare. 6.26 Between 11 April and 14 July 1994, Jean Kambanda, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J~r6me Bicamumpaka and other ministers notably I~liezer Niyetegeka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura and Pauline Nyiramasuhuko, travelled officially, either on their own or with others, to several prefectures, including Butare, Kibuye and Gitarama, in order to monitor the implementation of the Government-issued instructions, directives and guidelines, notably with regard to civil defence and security. During the many visits they made, these personalities knew or had reason to know that massacres were perpetrated against the civilian Tutsi population. At no time did these ministers take any action to stop those massacres nor to punish the persons responsible. 6. 27 Thus, in May 1994, in Kibuye, Jean Kambanda attended a meeting of heads of government departments regarding security issues. Among the

other participants at the meeting were C16ment Kayishema, Pr6fet of Kibuye, Edouard Karemera, Vice-Chairman of the MRND (subsequently appointed Minister of the Interior), Emmanuel Ndindabahizi, Minister of Finance, Eliezer Niyitegeka, Minister of Information, and distribution des armes aux miliciens et d’autre part/t 16gitimer les massacres de la population civile. Dans le cadre du programme d’ auto-d6fense civile, le Gouvernement Int6rimaire, par d6cision minist6rielle, a nomm6 plusieurs officiers militaires pour diriger des Comit6s d’auto d6fense install6s dans chaque pr6fecture. Certains de ces officiers, tels qu’Alphonse Nteziryayo /t Butare, ont particip6 activement aux massacres. 6.26 Entre le 11 avril et le 14 juillet 1994, Jean Kambanda, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka et dautres ministres notamment t~liezer Niyetegeka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura et Pauline Nyiramasuhuko, se sont rendus officiellement, seuls ou avec d’autres, dans plusieurs pr6fectures du pays telles que Butare, Kibuye et Gitarama, en vue de contr61er la mise en oeuvre des instructions, directives et orientations donn6es par le Gouvernement, notamment en mati6re de d6fense civile et de s6curit6. Au cours de leurs nombreux d6placements, ces personnalit6s, savaient ou devaient savoir, que des massacres de la

population civile Tutsi 6taient en train de se commettre. En aucun moment ces ministres n’ont-ils agit pour faire cesser ces massacres ou pour en punir les personnnes responsables. 6.27 C’est ainsi qu’en mai 1994,/~ Kibuye, Jean Kambanda a assist6 ~ une r6union de chefs de services administratifs consacr6e/l l’examen de questions de s6curit6. Parmi les autres participants /t cette r6union il y avait C16ment Kayishema, Pr6fet de Kibuye; Edouard Karemera, Ministre de l’Int6rieur; Emmanuel Ndindabahizi, Ministre des Finances; Eliezer Niyitegeka, Ministre de l’Information et Donat Murego, Secr6taire 42

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AUTRES VIOLATIONS DU DROIT INTERNATIONAL HUMANITAIRE Donat Murego, Executive Secretary of the MDR. In the course of the meeting, a participant asked the Prime Minster outright how to ensure the protection of the children who had survived the massacres and were at the hospital. Jean Kambanda did not reply. Instead l~liezer Niyitegeka, seated on the podium alongside the Prime Minister, replied that the survivors were the enemy and accused the person who inquired about their welfare of "protecting the enemy." None of the other ministers at the meeting proposed taking any measures to ensure the safety of the survivors. On the same day, after the meeting, the children were killed. 6.28 Furthermore, between 24 April and 14 July 1994, Th6odore Sindikubwabo, Jean Kambanda, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Augustin Ngirabatware, Pauline Nyiramasuhuko, Justin Mugenzi and l~liezer Niyitegeka, travelled, either on their own or with others, to several prdfectures, including Butare, Gitarama, Gisenyi, Kibuye and Cyangugu, to incite and urge the population to commit massacres, notably by commending the perpetrators. 6.29 Between April and July 1994, Justin Mugenzi, Minister of Trade & Industry made statements inciting people to kill the Tutsis, notably in Gisenyi, Kigali and Murambi. Some of his inflammatory statements were broadcast on RTLM. 6.30 On 21 April 1994, Jean

Kambanda, in his capacity as Prime Minister, clearly demonstrated his support for Radio T~l~vision Libre des Mille Collines (RTLM), founded and directed by F61icien Kabuga, while knowing the radio station incited to exterminate and persecute the Tutsi and Ex6cutif du MDR. A cette occasion, un participant a demand6 directement au Premier Ministre comment assurer la protection des enfants rescap6s des massacres qui se trouvaient ~ l’h6pital. Jean Kambanda n’a pas r6pondu. Par contre, t~liezer Niyitegeka, assis aux c6t6s du Pr6mier Ministre, a repondu que les rescap6s etaient des 6nemies et a accus6 la personne qui a demand6 du sort des rescap6s de "proteger l’6nemie." Aucun autre Ministre present dans la salle n’a propos6 des moyens quelconques pour assurer la s6curit6 des rescap6s. Dans la m6me joum6e, apr6s cette r6union, les enfants ont 6t6 tu6s. 6.28 En outre, entre le 24 avril et le 14 juillet 1994, Th6odore Sindikubwabo, Jean Kambanda, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Augustin Ngirabatware, Pauline Nyiramasuhuko, Justin Mugenzi et t~liezer Niyitegeka, se sont rendus, seuls ou avec d’autres, dans plusieurs pr6fectures telles que Butare, Gitarama, Gisenyi, Kibuye et Cyangugu, pour inciter et encourager la population /~ commettre des massacres, notamment en f61icitant leurs auteurs. 6.29 Entre avril et juillet 1994, Justin Mugenzi, Ministre du commerce,

de l’industrie et de l’artisanat a tenu des propos incitant /~ tuer les tutsis, entre autres, /~ Gisenyi, Kigali et Murambi. Certains de ces propos incendiaires ont 6t6 diffus6s /t l’antenne de RTLM. 6.30 Le 21 avril 1994, Jean Kambanda, en sa qualit6 de Premier Ministre, a clairement manifest6 son soutien/~ la Radio t616vision libre des Mille collines (RTLM) fond6e dirig6e par F61icien Kabuga, tout en sachant que cette station appelait g l’extermination et /~ la pers6cution des Tutsi et leurs 43

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW their accomplices. On that occasion, Jean Kambanda described the radio station as an indispensable weapon in the fight against the enemy. Between 8 April and 14 July 1994, at meetings in various places in the country and over the radio, Jean Kambanda directly and publicly incited the population to carry out acts of violence, i.e. murders and assaults, against the Tutsis and their accomplices. In the radio broadcasts, the Prime Minister called on the Rwandans to rise up and mobilize against the enemy; he appealed to the chefs de cellule to dedicate themselves to the work. On several occasions, the Minister of Education, Andr6 Rwamakuba, also encouraged the massacre of the Tutsis over the radio. Around late May 1994, he was appointed Government spokesman and continued to make inflammatory speeches over the Radio Rwanda and RTLM airwaves. Following all these repeated appeals, massacres were perpetrated against the civilian population. 6.31 Between 8 April and 14 July 1994, in several prdfectures, including Butare, Kibuye, Kigali, Gitarama and Gisenyi, ministers, pr~fets, bourgmestres, civil servants and soldiers gave orders to commit, instigated, assisted in committing and did themselves commit massacres of members of the Tutsi population and moderate Hutu population. Jean Kambanda Jean de Dieu Kamuhanda, Augustin

Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko and l~liezer Niyitegeka knew or had reason to know that their subordinates had committed or were preparing to commit crimes, and failed to prevent these crimes << complices >~. Jean Kambanda a, /~ cette occasion, qualifi6 la Radio d’arme indispensable pour combattre l’ennemi. Entre le 8 avril et le 14 juillet 1994, lors de r6unions tenues ~ divers endroits du pays et sur les ondes de la radio, le Premier Ministre Jean Kambanda a directement et publiquement incit6 la population /~ commettre sur les Tutsi et leurs complices des actes de violence, en l’occurrence des meurtres et des agressions. Durant les radiodiffusions, le Premier ministre a invit6 les Rwandais/~ se soulever et/t se mobiliser contre l’ennemi, et les chefs de cellule/l se consacrer au travail. A plusieurs reprises le Ministre de l’Education, Andr6 Rwamakuba, avait 6galement encourag6 ~ l’antenne les massacres des Tutsis. Aux alentours de fin mai 1994 il a 6t6 nomm6 porte parole du Gouvernement et a continu6 ~ tenir des discours incendiaires/~ travers les ondes de Radio Rwanda et sur RTLM. Suite ~ tous ces appels r6it6r6s, des massacres de la population civile ont 6t6 commis. 6.31 Entre le 8 avril et le 14

juillet 1994, dans plusieurs pr6fectures telles que Butare, Kibuye, Kigali, Gitarama et Gisenyi, des ministres, des pr6fets, des bourgmestres, des fonctionnaires de l’Etat et des militaires ont donn6 l’ordre de commettre, ont incit6, ont aid6 /t commettre et ont commis des massacres de Tutsi et de Hum mod6r6s. Jean Kambanda, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko et l~liezer Niyitegeka savaient ou devaient savoir que leurs subordonn6s avaient commis ou s’apprataient/~ commettre des crimes et ont omis d’en pr6venir la commission ou d’en 44

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AUTRES VIOLATIONS DU DROIT INTERNATIONAL HUMANITAIRE from being committed or to punish the perpetrators thereof. punir Ies auteurs. ’q y 6.32 Ministers Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko and l~liezer Niyitegeka, members of Jean Kambandas Government, failed in their duty to ensure the security of the Rwandan people. 6.33 In June 1994, Interior Minister Edouard Karemera ordered the Commander in Gisenyi, Anatole Nsengiyumva, to send troops into the Bisesero area, in Kibuye prefecture, supposedly to combat the enemy, although the RPF was in fact never in Bisesero. There was only a group of Tutsi refugees who had gathered in that region, fleeing the massacres. 6.32 Les Ministres Jean de Dieu Kamuhanda, Augustin Ngirabatware, Justin Mugenzi, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Edouard Karemera, Andr6 Rwamakuba, Andr6 Ntagerura, Pauline Nyiramasuhuko et I~liezer Niyitegeka, membres du Gouvernement de Jean Kambanda, ont failli /t leur devoir dassurer la s6curit6 de la population rwandaise. 6.33 En juin 1994, le Ministre de l’Int6rieur t~douard Karemera a ordonn6 au Commandant de Gisenyi, Anatole Nsengiyumva, l’envoi de troupes dans la r6gion du Bisesero, pr6fecture de Kibuye, dans le but suppos6 de

combattre l’ennemi alors que le FPR ne s’6tait, en fait, jamais rendu /t Bisesero. I1 n’y avait dans cette zone qu’une concentration de r6fugi6s Tutsi qui fuyaient les massacres. 6.34 From May to July 1994, in Butare and Gitarama prOfectures, Jean Kambanda distributed weapons and ammunition to members of the civilian population, militants of the political parties and militiamen. These weapons distributions received wide media coverage and could not have gone unnoticed by the members of the Interim Government, who had to know that the weapons would be used to massacre civilians, the majority of whom were members of the Tutsi population. 6.34 De mai ~ juillet 1994, dans les pr6fectures de Butare et de Gitarama, Jean Kambanda a distribu6 des armes et des munitions /t des membres de la population civile,/t des militants de partis politiques et des miliciens. Ces distributions d’armes, fortement m6diatis6es, ne pouvaient 6chapper /~ l’attention des membres du Gouvernement Int6rimaire qui devaient alors savoir que ces armes seraient utilis6es dans les massacres de civils, en majorit6, des membres de la population Tutsi. 6.35 In the course of the massacres, between April and July 1994, Minister Andr6 Ntagerura authorized the use of vehicles belonging to the State company, ONATRACOM, in order to transport either 6.35 Pendant les massacres, entre avril et juillet 1994, le Ministre Andr6 Ntagerura, a autoris6 l’utilisation de v6hicules appartenant /t I’ONATRACOM, soci6t6 d’Etat, pour effectuer le transport d’une part, 45

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW militiamen, weapons and ammunition or Tutsi victims to certain execution sites in Cyangugu prefecture and other prefectures such as Butare, Ruhengeri and Kibuye, with the intent to facilitate the extermination of the Tutsi population and the elimination of its accomplices. 6.36 On 25 April 1994, in Gisenyi prefecture, F61icien Kabuga, Mathieu Ngirumpatse, Edouard Karemera and Anatole Nsengiyumva agreed together and with others to establish the Fonds de DOfense Nationale (FDN), for the purpose providing assistance to the Interim Government to fight the enemy and its accomplices. This Fund would serve to buy weapons, vehicles and uniforms for the Interahamwe militia and the Army in all prOfectures in the country. On 20 May 1994, F61icien Kabuga informed the Interim Government of the establishment of the fund and advised it how it should be managed and operated. de miliciens, d’armes et de munitions et d’autre part de victimes Tutsi vers certains lieux d’ex6cution, dans la pr6fecture de Cyangugu et dans d’autres pr6fectures telles que Butare, Ruhengeri et Kibuye dans l’intention de faciliter l’extermination de la population Tutsi et l’61imination de ses complices. 6.36 Le 25 avril 1994, dans la pr6fecture de Gisenyi, F61icien Kabuga, Mathieu Ngirumpatse, Edouard Karemera et Anatole Nsengiyumva se sont mis d’accord entre eux et

avec d’autres personnes pour cr6er le Fonds de D6fense Nationale (F.D.N.), dans le but de fournir assistance au Gouvernement Int6rimaire pour combattre l’ennemi et ses complices. Ce Fonds devait servir ~ l’achat d’armes, de v6hicules et d’uniformes pour les milices Interahamwe et l’arm6e dans toutes les pr6fectures du pays. Le 20 mai 1994, F61icien Kabuga a inform6 le Gouvernement Int6rimaire de la cr6ation du Fonds et a conseill6 le gouvernement sur la manibre de le g6rer et de s’en servir. 46

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW ..... .

EXTENSION OF THE MASSACRES 6.37 From April to July 1994, by virtue of their position, their statements, the orders they gave and their acts and omissions, members of the Interim Government and influential members of MRND, MDR(hutu) and PL (hutu) including Jean de Dieu Kamuh anda, Augustin Ngirabatware, Augustin Bizimana, l~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, F61icien Kabuga, Juv6nal Kajelijeli, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka and Justin Mugenzi exercised authority over the local authorities and the militia, including the Interahamwe-MRND militia. These local authorities and militiamen, in complicity with the military, as from 6 April, committed massacres of the Tutsi population and of moderate Hutu which extended throughout Rwandan territory, with the knowledge of members of the Interim Government, including, Augustin. Bizimana, l~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka and Justin Mugenzi. 6.38 The massacres of members of the Tutsi population and the murder of the moderate Hutu extended throughout the territory of Rwanda. In every prefecture, local civil and military authorities and militiamen, including Interahamwe-MRND, espoused the plan of extermination and followed the directives and orders in order to execute it. They called on the civilian population to eliminate the enemy and its accomplices. They distributed weapons to civilians and militiamen. They gave orders to commit, aided, abetted and participated in the massacres.

ETEND UE DES MASSACRES 6.37 D’avril /t juillet 1994, de par leur fonctions, leurs propos, les ordres et directives qu’ils ont donn6s et leurs actes et omissions, les membres du Gouvernement Int6rimaire et les membres influents du MRND, MDR (hutu) et PL (hutu) dont Jean de Dieu Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, ]~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera,F61icien Kabuga, Juv6nal Kajelijeli, Eliezer Niyitegeka, Casimir Bizimungu,Prosper Mugiraneza, J6r6me Bicamumpaka et Justin Mugenzi ont exerc6 une autorit6 sur les autorit6s locales et les milices, don’t les milices Interahamwe- MRND. Ces autorit6s et ces miliciens, en complicit6 avec des militaires, ont commis dbs le 6 avril des massacres contre la population tutsi et des hutu mod6r6s qui se sont 6tendus sur l’ensemble du territoire rwandais/t la connaissance des membres du Gouvernement Int6rimaire dont Augustin Bizimana, t~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka et Justin Mugenzi. 6.38 Les massacres de membres de la population Tutsi et les assassinats des Hutu mod6r6s se sont 6tendus sur l’ensemble du territoire du Rwanda. Dans chaque pr6fecture, des autorit6s locales, civiles et militaires et des miliciens, dont les Interahamwe-MRND, ont adh6r6 au plan d’extermination et ont suivi les directives et les ordres afin de l’ex6cuter. Ils ont appel6 la population civile ~t 61iminer l’ennemi et ses complices. Ils ont distribu6 des armes/t des civils et des miliciens. Ils ont ordonn6, encourag6, aid6 et particip6 aux massacres. 47

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL 6.39 From April to July 1994, in all the regions of the country, members of the Tutsi population who were fleeing from the massacres on their hills sought refuge in locations they thought would be safe, often on the recommendation of the local civil and military authorities. In many of these places, despite the promise that they would be protected by the local civil and military authorities, the refugees were attacked, abducted and massacred, often on the orders or with the complicity of those same authorities.

KIGALI 6.40 By virtue of the fact that Kigali was the capital of Rwanda, seat of the Government till 12 April 1994, the place where the elite units of the Rwandan Army were based and where the headquarters for both the Army and the Gendarmerie were situated, several of the civilian and military figures who had planned and organized the massacres played a leading role in carrying out the massacres in Kigali. 6.41 Starting on 7 April, in Kigali, Interahamwe-MRND, elements of the Rwandan Army and Gendarmerie perpetrated massacres of the civilian Tutsi population. Concurrently, elements of the Presidential Guard, Para-Commando Battalion and Reconnaissance Battalion and Interahamwe-MRND murdered political opponents. Numerous massacres of the civilian Tutsi population took place in places where they had saught refuge for their safety. Centre Hospitalier de Kigali 6.42 When the massacres started, the Centre Hospitalier de Kigali (CHK) took numerous wounded Tutsi from various areas 6.39 D’avril/~ juillet 1994, dans toutes les r6gions du pays, des membres de la population Tutsi qui fuyaient les massacres sur leurs collines ont cherch6 refuge dans des endroits qu’ils croyaient stirs, souvent sur recommandation des autorit6s locales, civiles et militaires. Dans plusieurs de ces endroits, malgr6 la promesse qu’ils seraient prot6g6s par les autorit6s locales, civiles et militaires, les r6fugi6s ont 6t6 attaqu6s, enlev6s et massacres, souvent sur les ordres ou avec la complicit6 de ces m~mes autorit6s.

KIGALI 6.40 Du fait que Kigali 6tait la capitale du Rwanda, le si6ge du Gouvernement jusqu’au 12 avril 1994, off 6taient bas6s, de plus, les unit6s d61ites de l’Arm6e rwandaise et les l~tats-Major de l’Arm6e et de la Gendarmerie, plusieurs des personnalit6s civiles et militaires qui avaient planifi6 et organis6 les massacres ont jou6 un r61e de premier plan dans leur ex6cution/t Kigali. 6.41 D6s le 7 avril, /t Kigali, des [nterahamwe-MRND, des 616ments de l’Arm6e Rwandaise et de la Gendarmerie se sont livr6s fi des massacres contre la population civile Tutsi. Parall6lement, des 616ments de la Garde Pr6sidentielle, du Bataillon Para Commando et du Bataillon de Reconnaissance et des Interahamwe-MRND ont assassin6 des opposants politiques. De nombreux massacres de la population civile Tutsi se sont d6roul6s dans des endroits off ils s’6taient r6fugi6s pour leur s6curit6. Centre HospitaHer de KigaH 6.42 Dbs le d6but des massacres, le Centre Hospitalier de Kigali (CHK) accueilli de nombreux Tutsi bless6s venant 48

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW of the city. On several occasions, soldiers who were supposed to be guarding the hospital selected Tutsi patients and killed them on the spot. A list of the staff of Tutsi descent was drawn up and several of the people on the list were killed. Each morning, the officer in charge reported to MINADEF (Ministry of Defence) on the number of Tutsi who had been killed. 6.43 The massacres at the CHK were reported to the Interim Government, particularly to the Minister of Health Casimir Bizimungu, during the Ministerial meetings. Minister of Health Casimir Bizimungu did not take any steps to stop the crimes being committed in this public hospital or to punish the perpetrators. KIGALI-RURAL 6.44 Interim Government Minister Jean de Dieu Kamuhanda had family ties to Gikomero commune, Kigali-Rural pr6fecture. During the month of April 1994 he supervised the killings in the area. On several ocassions he personally distributed firearms, grenades and machettes to civilian militia in Kigali-Rural for the purpose of "killing all the Tutsi and fighting the FPR." 6.45 Furthermore, Jean de Dieu Kamuhanda personally led attacks of soldiers and Interahamwe against Tutsi refugees in Kigali-Rural pr6fecture, notably on or about April 12th at the parish church and adjoining school in Gikomero. On that occasion Jean de Dieu Kamuhanda arrived at the

school with a group of soldiers and Interahamwe armed with firearms and de diff6rents quartiers de la ville. 2~ plusieurs reprises, des militaires qui devaient assurer la protection de l’h6pital ont s61ectionn6 des patients Tutsi et les ont tu6s sur place. Une liste des membres du personnel d’origine Tutsi a 6t6 dress6e et plusieurs d’entre eux ont 6t6 tu6s. Chaque matin, l’officier responsable adressait un rapport au MINADEF (Minist6re de la D6fense) sur le nombre de Tutsi qui avaient 6t6 tu6s. 6.43 Les massacres survenus au CHK ont 6t6 rapport6s au gouvernement int6rimaire, et notamment au Ministre de la Sant6 Casimir Bizimungu, lors des conseils des ministres. Casimir Bizimungu, Ministre de la Sant6, n’a jamais pris les mesures n6cessaires pour emp~cher la commission des crimes qui se perp6traient dans cet h6pital public ou pour en punir les auteurs. KIGALI-RURAL 6.44 Le nouveau ministre du gouvernement int6rimaire, Jean de Dieu Kamuhanda avait des attaches familiales dans la ¯ commune de Gikomero, pr6fecture de Kigali rural. Pendant le mois d’avril 1994, il a supervis6 les meurtres dans cette zone. A plusieurs occasions, il a distribu6 lui-m~me des armes ~t feu, des grenades et des machettes aux milices civiles de Kigali-rural aux fins de faire "tuer tousles Tutsis et de combattre le FPR." 6.45 En outre, Jean de Dieu Kamuhanda a dirig6 personnellement des attaques perp6tr6es par des soldats et des interahamwe et dirig6es contre les r6fugi6s tutsis dans la pr6fecture de Kigali rural, notamment /t la paroisse de Gikomero et l’6cole attenante, autour du 12 avril. A cette occasion, Jean de Dieu Kamuhanda est arriv6 ~ l’6cole accompagn6 d’un groupe de 49

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL grenades. He directed the militia into the courtyard of the school compound and gave them the order to attack. The soldiers and Interahamwe attacked the refugees. Several thousand persons were killed. 6.46 During the attack on the school in Gikomero the militia also selected women from among the refugees, carried them away and raped them before killing them.

BUTARE 6.47 Three important factors delayed the start of the massacres in Butare prefecture. Historically, this prefecture had a large Tutsi population living in harmony with the Hutu majority. Since the inception of the multiparty system, the Patti Social Ddmocrate (PSD) dominated the political scene in Butare and the Mouvement r@ublicain national pour la d~mocratie et le d~veloppement (MRND) played a lesser role in that area than elsewhere in the country. Hence, the Interahamwe organizational structure was less elaborate and its membership was smaller. Furthermore, the Pr~fet of Butare, Jean Baptiste Habyalimana (PSD), the only PrOfet of Tutsi descent in the country, had openly opposed the massacres in his prefecture, where he had succeeded in maintaining calm, with a few exceptions, notably Nyakizu commune. Thus, thousands of people, the majority of whom were Tutsi, came from other prOfectures to seek refuge in Butare in the days which immediately followed the start of the massacres. 6.48 The country civil and military leaders became aware of the exceptional situation in Butare. Thus, the Interim Government, of which Jean de Dieu soldats et d’interahamwe arm6s de fusils et de grenades. I1 a conduit les miliciens dans la cour de l’6cole et leur a donn6 l’ordre d’attaquer les r6fugi6s. Les soldats et les miliciens lui ont ob6i et plusieurs milliers de personnes ont 6t6 tu6es. 6.46 Au cours de l’attaque men6e ~t l’6cole de Gikomero, les miliciens ont choisi des femmes parmi les r6fugi6s, les ont emmen6es ailleurs et les ont viol6es avant de les tuer.

BUTARE 6.47 Trois facteurs importants ont retard6 le d6but des massacres dans la pr6fecture de Butare. Historiquement, cette pr6fecture comptait une forte repr6sentation de la population Tutsi qui y cohabitait paisiblement avec la majorit6 Hutu. Depuis le multipartisme, le Patti Social D~mocrate (PSD) dominait la scbne politique/~ Butare, le Mouvement r@ublicain national pour la d~mocratie et le d~veloppement (MRND) jouant un r61e moins important par rapport au reste du pays. Ainsi, la structure organisationnelle des Interahamwe y 6tait moins 61abor6e et ses adh6rents moins nombreux. En outre, le Pr6fet de Butare, Jean Baptiste Habyalimana, (PSD), seul pr6fet d’origine Tutsi dans le pays, s6tait ouvertement oppos6 aux massacres dans sa pr6fecture et avait r6ussi /t y maintenir le calme, /~ quelques exceptions prbs, parmi lesquelles, la commune de Nyakizu. Aussi, des milliers de personnes, en majorit6 Tutsi, venues d’autres pr6fectures, avaient cherch6 refuge /t Butare d6s les premiers jours qui ont suivi le d6but des massacres. 6.48 Les dirigeants civils et militaires du pays ont pris conscience de la situation particuli6re qui r6gnait /t Butare. Ainsi le Gouvernement Int6rimaire, dont Jean de 5O

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, t~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka and Justin Mugenzi were members, removed PrOfet Habyalimana from office and incited the people to get involved in the massacres. Prdfet Habyalimana was subsequently arrested and never seen again. Moreover, elements of the Army and Interahamwe militiamen were sent to Butare as reinforcements to start the massacres. 6.49 In order to incite and encourage the Butare people to massacre the Tutsis, Casimir Bizimungu and Joseph Nzirorera insisted that the government delegation should include President Sindikubwabo himself so that the speeches could have maximum impact on the people. 6.50 Thus, on 19 April 1994, the swearing-in ceremony in Butare for the new PrOfet, Sylvain Nsabimana, was the occasion of a large gathering that had been announced and organized by the Interim Government. On that occasion, President Th6odore Sindikubwabo made an inflammatory speech, openly and explicitly calling on the people of Butare to follow the example of the other prdfectures and begin the massacres. He violently denounced the banyira ntibindeba, meaning those who did not feel concemed. He asked them to get out of the way and let us work. Prime Minister Jean

Kambanda, who subsequently took the floor, did not contradict the President of the Republic, nor did any of the Ministers present, including Justin Mugenzi. Shortly thereafter, the massacres of Tutsis began in the prefecture. Dieu Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, t~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka et Justin Mugenzi 6taient membres, a rdvoqu6 le Pr6fet Habyalimana et a incit6 les populations fi s’impliquer dans les massacres. Par la suite, le Pr6fet Habyalimana a 6t6 arr6t6 et n’a jamais 6t6 revu depuis. En outre, des 616ments de l’arm6e et des miliciens Interahamwe ont 6t6 envoy6s en renfort pour commencer les massacres. 6.49 Pour inciter et encourager la population de Butare /~ massacrer les Tutsi Casimir Bizimungu et Joseph Nzirorera ont insist6 pour que la d616gation gouvernementale inclut le Pr6sident Sindibukwabo lui-m6me afin que les discours aient le maximum d’impact sur la population. 6.50 Dans cette perspective, le 19 avril, la c6r6monie d’investiture du nouveau Pr6fet, Sylvain Nsabimana,/~ Butare, a donn6 lieu un grand rassemblement annonc6 et organis6 par le Gouvemement Int6rimaire. A cette occasion, le Pr6sident Th6odore Sindikubwabo a prononc6 un discours incendiaire, appelant ouvertement et explicitement la population de

Butare /t suivre l’exemple des autres pr6fectures et/~ commencer les massacres. I1 a violemment d6nonc6 les Banyira Ntibindeba, autrement dit ceux qui ne se sentent pas concem6s. I1 leur a demand6 qu’ils cOdent la place et qu ’ils nous laissent travailler. Le Premier Ministre Jean Kambanda a ensuite pris la parole et n’a pas contredit le Pr6sident de la R6publique, non plus qu’aucun des Ministres pr6sents, dont Justin Mugenzi. Peu apr6s, les massacres de Tutsi ont commenc6 dans la pr6fecture 51

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL 6.51 Because the members of the Interim Government, including Augustin Bizimana, t~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, Jdr6me Bicamumpaka and Justin Mugenzi did not dissociate themselves from this statement of the President of the Republic, at any time, they gave a clear signal to the people that the massacres were ordered and condoned bv the Government. 6.51 En ne se dissociant pas, en aucun moment, des propos ainsi tenus par le Pr6sident de la R6publique, les membres du Gouvernement Int6rimaire dont Augustin Bizimana, t~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, et Justin Mugenzi ont clairement indiqu6 ~t la population que les massacres 6taient ordonn6s et cautionn6s par le Gouvernement. 6.52 The next day, two military planes landed in Butare with numerous Presidential Guard and Para-Commando Battalion soldiers on board. These soldiers, in tandem with the Interahamwe of Butare, took part in murdering and massacring civilians, notably the former Queen of Rwanda, Rosalie Gicanda, a historical symbol for all Tutsi. 6.53 In the days that followed the unleashing of the massacres, Interahamwe-

MRND from outside the prefecture, notably from Kigali, came in to reinforce their fellow militiamen in Butare in perpetrating the massacres. This included a detachment of Interahamwe-MRND that was accompanying their Chairman, Robert Kajuga. 6.54 From 20 April the massacres became widespread within the prefecture. In Butare, as in all the regions of the country, numerous people sought refuge in locations they thought would be safe or impregnable, often locations that had been indicated to them by the authorities, such as Butare university hospital and the premises of the prefecture offices in the town of Butare. In these places, despite the promise made by the authorities that they would be protected, 6.52 Le lendemain, deux avions militaires ont atterri /t Butare, avec fi leur bord des dizaines de militaires de la Garde Pr6sidentielle et du Bataillon Para- Commando. Ces militaires ont particip6 aux c6t6s des Interahamwe de Butare, aux meurtres et aux massacres de civils, parmi lesquels, l’ancienne Reine du Rwanda, Rosalie Gicanda, symbole historique pour tousles Tutsi. 6.53 Dans les jours qui ont suivi le d6clenchement des massacres, des Interahamwe-MRND de l’ext6rieur de la pr6fecture, notamment de Kigali, sont venus pr6ter main forte aux miliciens de Butare pour l’ex6cution des massacres. Ce fut le cas entre autres, d’

un d6tachement d’Interahamwe-MRND accompagnant leur pr6sident, Robert Kajuga. 6.54 A partir du 20 avril, les massacres se sont propag6s dans la pr6fecture. ,~ Butare, comme dans toutes les r6gions du pays, plusieurs personnes ont cherch6 refuge dans des endroits qu’ils croyaient securitaires ou inviolables, souvent sur indication des autorit6s, tel que l’H6pital Universitaire de Butare et l’enceinte du bureau de la pr6fecture dans la ville de Butare. Dans ces endroits, malgr6 la promesse faite par les autorit6s qu’ils seraient prot6g6s, les 52

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW the refugees were attacked, abducted or killed by soldiers and militiamen, often on the orders or with the complicity of those same authorities. 6.55 Between April and July 1994, Prime Minister Jean Kambanda, often accompanied by other ministers, visited several communes, including Ndora and Muganza, in May and June 1994. These visits demonstrated his governments support for the massacres of the Tutsi and moderate Hutu. The approval of the massacres was also made manifest by the dismissal of bourgmestres who dared oppose the killings and by the appointment of bourgmestres who were more cooperative. 6.56 On or about 15 May, Prime Minister Jean Kambanda made a speech at Butare University. He urged the civilian population to take up arms. Subsequently to this meeting he adopted the slogan, "Wima igihigu amaraso imbwa zikayangwera ubusa," (You refuse to spill your blood for your country and the dogs drink it for nothing). The slogan then became a watch- word of his government, included in many of his public pronouncements. In the context of the civilian massacres that had overtaken Rwanda during the period of early April through late July, these incendiary words were a clear signal of support and encouragement of the massacres by the Interim Government. During this period no member of the Interim Government, including Jean de Dieu

Kamuhanda, Augustin Ngirabatware, Augustin Bizimana, ]~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Justin Mugenzi, J6r6me Bicamumpaka and Prosper Mugiraneza, publicly expressed dissention or disagreement or criticism of any of the r6fugi6s ont 6t~ attaqu6s, enlev6s ou tu6s par des militaires et des miliciens souvent sur ordres ou avec la complicit6 de ces m~mes autorit6s. 6.55 Entre avril et juillet 1994 le Premier Ministre Jean Kambanda, souvent accompagn6 d’autres ministres, a visit6 plusieurs communes dont Ndora et Muganza en mai et juin 1994. Ces visites marquaient le soutien de son gouvernement aux massacres des Tutsi et des Hutu mod6r6s. Cette approbation des massacres se traduisait 6galement sous forme de destitution de bourgmestres qui osaient sopposer aux tueries et par la nomination de bourgrnestres plus coop6rants dans ce domaine. 6.56 Vers ou le 15 mai, le Premier Ministre Jean Kambanda a tenu un discours lors d’une r6union qui a eu lieu /: l’universit6 de Butare. I1 a incit6 la population civile /t prendre les armes. A la suite de cette r6union, il a adopt6 le slogan, "Wima igihigu amaraso imbwa zikayangwera ubusa," (Tu refuses de verser ton sang pour ton pays et les chiens le boivent pour rien). Ce slogan est ainsi devenu le leitmotiv de son gouvernement, souvent repris dans ses discours publics. Dans le

contexte des massacres qui se d6roulaient dans tout le pays pendant la p6riode d’avril /t juillet, ce discours incendiaire 6tait un soutien clair et un encouragement aux massacres de la part du gouvernement int6rimaire. Pendant toute cette p6riode aucun membre du gouvernement int6rimaire, Jean de Dieu Kamuhanda, Augustin Ngirabatware, Augustin Bizimana,. ]~douard Karemera, Callixte Nzabonimana, Andr6 Rwamakuba, Eliezer Niyitegeka, Casimir Bizimungu, Justin Mugenzi, J6r6me Bicamumpaka et Prosper Mugiraneza, faisaient partie, n’a 53

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL policies that were endorsed by Jean Kambanda on behalf of the Interim Government. Butare University Hospital 6.57 In late April 1994, numerous Tutsi went to the Butare university hospital to seek refuge or to receive treatment for their wounds. On several occasions, various authorities, including Minister Andre Rwamakuba demanded that the refugees and patients identify themselves. Those identified as being Tutsi were killed on the spot or abducted and executed elsewhere. Casimir Bizimungu did not take any steps to stop the crimes being committed in this public hospital or punish the perpetrators.

GITARAMA 6.58 As from 12 April 1994, the Interim Government, reacting to the pressure of the RPF attacks on the capital and in order to continue to carry out its duties, moved to Gitarama pr#fecture, west of Kigali. The Interim Government was based in Gitarama from 12 April through late May. Gitarama was the home pr#fecture of Grrgoire Kayibanda, President of the First Republic, and an MDR stronghold. The MRND was not well represented in the prefecture in the period leading up to the events of 1994. As from April 1994, the MRND spared no effort to drive out the bourgmestres who were opposed to its policy with regard to massacres and to replace them with loyal party men. 6.59 As in other regions of Rwanda, several meetings were held in Gitarama, exprim6 ni dissension ni opposition ni critique ~t la politique qui a 6t6 publiquement exposre par Jean Kambanda au nom du gouvernement intrrimaire. H@ital Universitaire de Butare 6.57 Vers la fin du mois d’avril, plusieurs Tutsi se sont rendus ~ l’hrpital universitaire de Butare pour y chercher refug, e ou y atre soignrs de leurs blessures. A plusieurs reprises, diffrrentes autoritrs, dont le Ministre Andre Rwamakuba, ont exig6 que les rrfugirs et les patients drclinent leur identitr. Les Tutsi ainsi identifirs ont soit 6t6 turs sur place soit 6t6 enlevrs pour ~tre exrcutrs ailleurs. Casimir Bizimungu, Ministre de la Santr, n’a jamais pris les mesures nrcessaires pour emp~cher la commission des crimes qui se perprtraient dans cet hrpital public ou pour en punir les auteurs.

GITARAMA 6.58 Dbs le 12 avril 1994, sous la pression des attaques du FPR sur la capitale, pour pouvoir continuer/t exercer ses fonctions, le Gouvernement Intrrimaire s’est drplac6 ~t Gitarama prrfecture qui se trouve ~t l’ouest de Kigali. Le gouvernement intrrimaire si6gait /t Gitarama /t partir du 12 avril jusqu’~t la fin du mois de mai. Gitarama 6tait la prrfecture d’origine de Grrgoire Kayibanda, Prrsident de la premirre Rrpublique, et un bastion du MDR. Le

MRND y 6tait trbs minoritaire ~t la veille des 6vrnements de 1994. D6s avril 1994 le MRND va drployer le maximum d’efforts pour y chasser les bourgmestres opposrs /t sa politique de massacres et les remplacer par des hommes qui lui sont fidrles. 6.59 A l’instar de ce qui s’rtait drroul6 dans d’autres rrgions du Rwanda plusieurs 54

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW with members of the Government, senior MRND officials and representatives of the local authorities in attendance. The purpose of the meetings was to supervise the progress of the massacres in the region and encourage the population, the militia and the army to continue committing them. 6.60 Between April and July 1994, in Gitarmama, bourgmestres who had refused to carry out the Governments directives to massacre the Tutsi, or who had not shown sufficient zeal in carrying them out, were reprimanded and even on occasion attacked in front of their citizens, then dismissed or, worse yet, physically eliminated. During a meeting held at Murambi around mid-April 1994, Minister Justin Mugenzi clearly supported the massacres committed by the Interahamwe in Gitarama pr6fecture and asked for the sacking of the Pr6fet and the Bourgmestres opposed to the massacres. Nursing School 6.61 Between April and June 1994, several people found refuge at the secondary nursing school in Kabgayi, Gitarama prOfecture, where students and staff were already located. On several occasions during this period, soldiers and Interahamwe militiamen abducted and raped female Tutsi students and refugees. Minister of Defense Augustin Bizimana and the General Staff of the Rwandan Army were informed of this situation but did not take any effective steps to end the

crimes once and for all. Casimir Bizimungu, Minister of Health, did not take any steps to stop the crimes being r6unions, auxquelles ont particip6 des membres du Gouvernement, de hauts responsables du MRND et des repr6sentants des autorit6s locales, ont 6t6 tenues Gitarama. Elles avaient pour objectif ~ la fois de superviser le d6roulement des massacres dans la r6gion et d’encourager la population, les miliceset l’arm6e continuer ~t les commettre. 6.60 Entre avril et juillet 1994, /t Gitarama, les Bourgmestres qui avaient refus6 d’ex6cuter les directives du Gouvernement, tendant ~t massacrer les Tutsi ou qui n’avaient pas montr6 suffisamment de zble dans l’ex6cution de ces directives, comme dans beaucoup d’autres r6gions, se sont vus r6primand6s ou m~me parfois molest6s devant leurs administr6s avant d’6tre limog6s ou pire encore liquid6s physiquement. Lors dune r6union tenue /~ Murambi vers mi-avril 1994, le Ministre Justin Mugenzi avait nettement pris position pour les massacres perpetr6s par les Interahamwe dans la Pr6fecture de Gitarama et a demand6 la destitution du pr6fet et des bourgmestres oppos6s/~ ces massacres. Ecole d infirmibres 6.61 Entre avril et juin 1994, plusieurs personnes ont trouv6 refuge /~ 16cole secondaire des infirmbres de Kabgayi, pr6fecture de Gitarama, og se trouvaient d6jg des 6tudiants et du personnel. A plusieurs reprises durant cette p6riode, des militaires et des miliciens Interahamwe ont enlev6 et viol6 des 6tudiantes et des r~fugi6es Tutsi. Inform6s de cette situation le Ministre de la D6fense Augustin Bizimana et l’Etat-Major de l’Arm6e Rwandaise n’ont pris aucune mesure efficace pour mettre un terme d6finitif/t ces crimes. Casimir Bizimungu, Ministre de la 55

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL committed in the Kabgayi School of Nursing or punish the perpetrators.

GISENYI 6.62 Gisenyi, the prOfecture of origin of the deceased President, Juv6nal Habyarimana, is located in northwestern Rwanda. From the time of the coup d’6tat in 1973, Gisenyi was the bastion of the Mouvement r@ublicain national pour la dOmocratie et le d~veloppement (MRND) and the Coalition pour la ddfense de la r@ublique (CDR). Several prominent civil and military figures that had espoused the extremist Hutu ideology were from this prefecture. After 1990, the prefecture was the theatre for much inter-ethnic tension and violence, causing the death of many Tutsi. This was the case with the Bagogwe in 1991. In early June 1994, the Interim Government moved to Gisenyi. 6.63 The massacre of the Bagogwe was a precursor to the massive killings that overcame Gisenyi during the period of 7 April to mid-July 1994. In both cases the killings were planned, ordered and coordinated by governmental authorities within the upper echelons of the MRND. During an MRND prefectural meeting in 1993 Augustin Ngirabatware reassured party members by publicly stating that only the Tutsi and their "accomplices" were targeted when the Bagogwe were killed. 6.64 On several other ocassions, notably at a public rally at Umuganda stadium in November 1993, Augustin Ngirabatware stated that "the enemy in this country is the Tutsi, and its accomplices are Hutu married Sant6, n’a jamais pris Ies mesures n6cessaires pour emp6cher la commission des crimes qui se perp6traient dans 16cole d’infirmi6res de Kabgayi ou pour en punir les auteurs.

GISENYI 6.62 Pr6fecture d’origine du d6funt Pr6sident, Juv6nal Habyarimana, Gisenyi est situ6e au nord-ouest du Rwanda. Depuis le coup d’Etat de 1973, elle est le bastion du Mouvement R@ublicain National pour la D~mocratie et le DOveloppement (MRND) et de la Coalition pour la D~fense de la R@ublique (CDR). Plusieurs personnalit6s civiles et militaires partageant l’id6ologie Hutu extr6miste sont originaires de cette pr6fecture. Depuis 1990, elle a 6t6 le th6atre de nombreuses tensions et violences inter- ethniques entrainant la mort de nombreux Tutsi. Ce fut le cas en 1991 avec les Bagogwe. Au d6but de juin 1994, le Gouvernement Int@imaire s’est install6 Gisenyi. 6.63 Le massacre des Bagogwe 6tait pr6curseur des tueries de masse perp6tr6es/: Gisenyi au cours de la p6riode comprise entre le 7 avril et mi-juillet 1994. Dans les deux cas, les massacres ont 6t6 planifi6s, ordonn6s et ex~cut6s par les autorit6s gouvernementales qui 6taient des hauts responsables du MRND. Au cours d’une r6union pr6fectorale en 1993 Augustin Ngirabatware a rassur6 les membres de son parti en d6clarant publiquement, apr6s le massacre des Bagogwe, que seuls les Tutsi et leurs "complices" 6taient vis6s. 6.64 A plusieurs autres occasions, notamment lors d’une r6union publique au stade Umuganda, en novembre 1993, Augustin Ngirabatware a d6clar6 que "l’ennemi dans ce pays est le Tutsi, et ses 56

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW to Tutsi women," and warned the crowd, "don’t look far away because the enemy is right next to you." Significantly, the speeches at this meeting were rebroadcast by

RTLM the following day. 6.65 Augustin Ngirabatware repeated similar statements in March 1994 at MRND party meetings in Nyamyumba commune. Characterizations of the Tutsi as an "enemy" to be exterminated made by highly placed, powerful government officials such as Augustin Ngirabatware were public invitations to kill with impunity, and were part of a larger campaign to organize and prepare the civilian population and civilian militia to commit genocide against the Tutsi. 6.66 Part of the preparation for the genocide in Gisenyi was the appointment of prefectural and local authorities that would impliment the anti-Tutsi policies and directives of the MRND leadership at the national level. Since his family originated in Gisenyi, Augustin Ngirabatware often returned to his home commune of Nyamyumba, where he continued to exercise considerable influence in local affairs. Augustin Ngirabatware was instrumental in having Faustin Bagangu appointed bourgmestre in Nyamyumba. Faustin Bagangu, who had a established record of persecuting the civilian Tutsi population, was percieved by local residents as the eyes and "arms" of Augustin Ngirabatware in the commune. 6.67 Augustin Ngirabatware’s open support of Faustin Bagangu, the known president of the Interahamwe in Nyamyumba, was part of the larger plan to prepare and orchestrate the killings of the Tutsi. Given the complices sont les Hutus mari6s aux femmes tutsies", et a averti la foule en disant " ne cherchez pas loin, car l’ennemi est tout prbs de vous". Fait r6v61ateur, les discours prononc6s lors de cette r6union ont 6t6 rediffus6s sur

RTLM le jour suivant. 6.65 Augustin Ngirabatware a fait des d6clarations similaires en mars 1994 au cours de r6unions du MRND dans la commune de Nyamyumba. Les descriptions du Tutsi comme 6tant ’Tennemi" g 61iminer faites par des membres du gouvemement influents et haut plac6s tels que Augustin Ngirabatware 6taient des invitations publiques ~ tuer impun6ment, et faisaient pattie d’une plus grande campagne visant/t organiser et pr6parer la population civile et les milices civiles /t commettre le g6nocide contre les Tutsis. 6.66 Une partie des pr6paratifs du g6nocide /l Gisenyi a consist6/t nommer des pr6fets et des autorit6s locales pr6ts /~ appliquer, au niveau national, les politiques et les instructions anti-tutsies des dirigeants du MRND. Sa famille 6tant originaire de Gisenyi, Augustin Ngirabatware retoumait souvent chez lui dans la commune de Nyamyumba off il continuait d’exercer une influence consid6rable sur les affaires locales. Augustin Ngirabatware a contribu6 /t la nomination de Faustin Bagangu au poste de bourgmestre de Nyamyumba. Faustin Bagangu, qui s’6tait rendu c616bre pour avoir pers6cut6 la population civile tutsie, 6tait pergu par la population locale comme 6tant l’oeil et le bras d’Augustin Ngirabatware dans la commune. 6.67 Le soutien flagrant accord6 par Augustin Ngirabatware g Faustin Bagangu, qui 6tait le pr6sident des interahamwe Nyamyumba, faisait partie d’un plan plus important visant /~ pr6parer et g orchestrer 57

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL predominance of the MRND in Gisenyi and the demonstrated capacity of Augustin Ngirabatware to direct development funds and projects to his native commune, Augustin Ngirab atware’ s anti-Tutsi pronouncements were a clear message to local residents of the likely rewards that would follow their support for the MRND policy of exterminating the "enemy". 6.68 Augustin Ngirabatware funneled state development funds in the portfolio of his minstry to the MRND for the purchase of weapons and medicines for the "civilian defense program". The arms purchases were not for legitmate purposes of national defense, but were instead intended and used to arm the civilian population and civilian militia to commit crimes against the Tutsi. 6.69 Between 7 April and mid-July the Gisenyi prefecture was the theater of massacres of the civilian Tutsi population its "accomplices." During this same period the militia-men pursued, kidnapped, raped and killed many members of the Tutsi population and the moderate Hutus. 6.70 The rampant violence in Gisenyi was both widespread and systematic, and was directed from above. Rather than putting forth efforts to contain the rampaging and the killing, authories of the civilian governmental administration, the military and MRND, the reigning political party in the prefecture, instead

organized, encouraged, planned and instigated the attacks on the civilian Tutsi population. 6.71 In the night of 6 to 7 April 1994, in Gisenyi prefecture, Military Commander les massacres des Tutsi. Compte tenu de la pr6dominance du MRND g Gisenyi et de la capacit6 av6r6e d’Augustin Ngirabatware /t ramener les projets et les fonds de d6velop- pement vers sa commune d’origine, les d6clarations anti-tutsies de ce dernier 6taient un message clair adress6 ~ la population locale pour lui indiquer les r6compenses probables promises/t ceux qui apporteraient leur soutien /t la politique d’extermination de "l’ennemi" pr6n6e par le MRND. 6.68 Augustin Ngirabatware a achemin6 vers le MRND les fonds de d6veloppement de l’Etat allou6s/~ son minist6re, pour servir /t l’achat d’armes et de m6dicaments au b6n6fice "du programme de d6fense civile". Les armes ainsi achet6es n’6taient pas affect6es aux objectifs 16gitimes de d6fense nationale, mais destin6es et utilis6es plut6t pour armer la population civile et les milices civiles aux fins qu’elles commettent des crimes contre les Tutsi. 6.69 Entre le 7 avril et mi-juillet la prefecture de Gisenyi a 6t6 le th6atre de massacres de la population civile Tutsi et ses "complices". Durant la m~me p6riode les miliciens y ont traqu6, enlev6, viol6 et tu6 plusieurs membres de la population Tutsi et Hutu mod6r6e. 6.70 La violence qui s6vissait /t

Gisenyi 6tait ~ la fois g6n6ralis6e, syst6matique et dirig6e d’en haut. Au lieu de conjuguer leurs efforts pour contenir sa prolif6ration et les meurtres, les autorit6s de l’administration gouvernementale civile, les militaires et le MRND, le parti politique le plus populaire de la commune, ont plut6t organis6, encourag6, planifi6 et suscit6 des attaques contre la population civile tutsie. 6.71 Dans la nuit du 6 au 7 avril 1994, dans la pr6fecture de Gisenyi, le 58

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW Anatole Nsengiyumva ordered certain political leaders, local authorities and militiamen to assemble at Gisenyi military camp. At this assembly, Anatole Nsengiyumva ordered the participants to kill all the RPF accomplices and all the Tutsi. At the end of the meeting, Anatole Nsengiyumva ordered his subordinates to distribute weapons and grenades to the militiamen who were present. 6.72 Furthermore, on 7 April 1994, Anatole Nsengiyumva received a telegram from Kigali ordering him to start the massacres. Between 7 April and mid-July 1994, in Gisenyi, Anatole Nsengiyumva ordered militiamen and soldiers to exterminate the civilian Tutsi population and its "accomplices". Between April and July 1994, the militiamen, on the orders of Anatole Nsengiyumva, hunted down, abducted, raped and killed several members of the Tutsi and moderate Hutu population in Gisenyi. 6.73 From May to July 1994, Joseph Nzirorera gave orders to militiamen to kill members of the Tutsi population. He furthermore commended them for their work. He gave them money in proportion to the number of Tutsi killed. 6.74 In late May and early June, several Tutsi and moderate Hutus attempted to flee their prefectures and take refuge in Gisenyi. Informed of this, Joseph Nzirorera ordered militiamen to continue to search for the Tutsi and eliminate them. 6.75 In June 1994,

Fdlicien Kabuga, Joseph Nzirorera, Anatole Nsengiyumva and Juvdnal Uwiligimana held a meeting in Commandant militaire Anatole Nsengiyumva a ordonn6 le rassemblement au camp militaire de Gisenyi de certains dirigeants politiques, des autoritds locales et des miliciens. Lors de ce rassemblement Anatole Nsengiyumva a donn6 l’ordre aux participants de tuer tousles complices du FPR et tous les Tutsi. A la fin de la rdunion, Anatole Nsengiyumva a ordonn6 fi ses subordonnds de distribuer des armes et des grenades aux miliciens pr6sents. 6.72 De plus, le 7 avril 1994, Anatole Nsengiyumva a regu un t616gramme de Kigali lui ordonnant de commencer les massacres. Entre le 7 avril et la mi-juillet 1994, ~t Gisenyi, Anatole Nsengiyumva a donn6 l’ordre ~ des miliciens et /~ des militaires d’exterminer la population civile Tutsi et ses "complices". Entre avril et juillet 1994, les miliciens sous les ordres d’Anatole Nsengiyumva ont traqu6, enlev6, viol6 et tu6 plusieurs membres de la population Tutsi et Hutu mod6r6e de Gisenyi. 6.73 Du mois de mai fi juillet 1994, Joseph Nzirorera a donn6 ordre /t des miliciens de tuer des membres de la population Tutsi. I1 les a par ailleurs f61icit6s pour leur travail. I1 leur a remis de l’argent proportionnellement au nombre de Tutsi tuds 6.74 A la fin du mois de mai et ddbut du mois de juin, plusieurs Tutsi et des Hutu mod6r6s ont tentd de fuir leur prdfecture pour se r6fugier fi Gisenyi. Informal, Joseph Nzirorera a donn6 l’ordre/t des miliciens de continuer de chercher les Tutsi et de les 61iminer. 6.75 En juin 1994, Fdlicien Kabuga, Joseph Nzirorera, Anatole Nsengiyumva et Juv6nal Uwiligimana ont tenu une rdunion/t 59

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL Gisenyi. During the meeting, Joseph Nzirorera and Juv6nal Uwiligimana took note of the names of the Tutsi and moderate Hutu who had come from other prefectures. They drew up a list of people to eliminate, which they handed over to the Interahamwe.

RUHENGERI 6.76 Ruhengeri Prefecture is located in the North Western part of Rwanda and has historically been the site of periodicals massacres of its tutsi population.This was true as well in 1994.

KIBUYE 6.77 Kibuye region is located on the shores of Lake Kivu in westem Rwanda. Between April and July 1994, large-scale massacres of Tutsi took place in this region, particularly in Bisesero. 6.78 Bisesero is located in two communes in Kibuye pr6fecture. Because it was home to a large Tutsi community, it attracted a large mass of Tutsi refugees trying desparately to escape the killings under way everywhere else in the prOfecture. However, from 9 April to 30 June 1994, the Tutsi refugees in Bisesero were the target of repeated attacks by soldiers, gendarmes, police and Interahamwe-MRND. 6.79 From 9 April to 30 June 1994, the Tutsi refugees in Bisesero were the target of repeated attacks by soldiers, gendarmes, police and militia. Buses from ONATRACOM, a state company, were used to facilitate transportation of the attackers. Prominent figures such as the Minister of Information, Eliezer Niyitegeka, were seen among the attackers on several occasions. Gisenyi. Au cours de cette r6union, Joseph Nzirorera et Juv6nal Uwiligimana ont relev6 les noms des Tutsi et des Hutu mod6r6s venus d’autres pr6fectures. Ils ont dress6 une liste de personnes 5- 61iminer qu’ils ont remis aux Interahamwe.

RUHENGERI 6.76 La Pr6fecture de Ruhengeri, situ6e au Nord-Ouest du Rwanda a historiquement 6t6 le site de massacres p6riodiques de ses habitants tutsi. Cela a 6galement 6t6 le cas en 1994.

KIBUYE 6.77 La r6gion de Kibuye se trouve 5- l’ouest du pays au bord du Lac Kivu. Entre avril et juillet 1994 des massacres de Tutsi de grande envergure se sont d6roul6s dans cette r6gion et notamment 5. Bisesero. 6.78 Bisesero s’6tend sur deux communes de la pr6fecture de Kibuye. Parce qu’elle abritait d6js- une communaut6 Tutsi nombreuse elle avait attir6 une masse importante de r6fugi6s Tutsi qui tentaient d6sesp6r6ment d’6chapper aux tueries en progression partout ailleurs dans la pr6fecture. Cependant, depuis le 9 avril au 30 juin 1994 les Tutsi r6fugi6s 5- Bisesero ont 6t6 une cible d’attaques r6it6r6s de la part des militaires, des gendarmes, des policiers et des Interahamwe-MRND. 6.79 Depuis le 9 avril au 30 juin 1994 les Tutsi r6fugi6s 5- Bisesero ont 6t6 une cible d’attaques r6it6r6es de la part des militaires, des gendarmes, des policiers et des milices. Les bus de I’ONATRACOM, soci6t6 de l’Etat, ont 6t6 utilis6s pour faciliter les d6placements des assaillants. Des personnalit6s importantes telles que le Ministre de 1’Information Eliezer Niyitegeka 60

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW By their presence and their speeches, they encouraged the attackers to perpetrate the massacres. 6.80 In May 1994, Eliezer Niyitegeka, Minister of Information in the Interim Government, personally participated in the massacres that took place in Kibuye, by shooting at Tutsis. Sexual Violence as a Policy of Genocide 6.81 During the events referred to in this indictment, rapes and other forms of sexual violence were widely and notoriously committed in Rwanda against the Tutsi population, in particular Tutsi women and girls or Hutu women married to Tutsi men. These acts were often accompanied by killing or were themselves used as a method of killing. They were perpetrated by, among others, militiamen, including Interahamwe- MRND, soldiers and gendarmes. 6.82 Members of the Interim Government generally instigated, encouraged, facilitated, and acquiesced to, among others, the Interahamwe-MRND, soldiers, and gendarmes raping and sexual violating Tutsi women. Government ministers even sometimes committed these acts themselves, thereby encouraging by their own example the commission of such acts by, among others, milicia, Interahamwe-MRND, soldiers and gendarmes over whom they had de ,facto and de jure authority. For example, on or about 20 May 1994, political party affiliates and militia men working directly under the supervision of

]~liezer Niyitegeka forced a young girl to get into his car, whereupon ]~liezer Niyitegeka raped her, and when she got out of the vehicle ]~liezer ont 6t6 vus /~ plusieurs reprises parmi les assaillants. Ils les encourageaient par leur pr6sence et par leurs discours/t perp6trer les massacres. 6.80 En mai 1994, Eliezer Niyitegeka, Ministre de l’information au sein du gouvernement Int6rimaire, a personnellemnt particip6 aux massacres qui se sont d6roul6s /t Kibuye en tirant sur des Tutsi. La violence sexuelle comme politique de la g6nocide 6.81 Lors des 6v6nements auxquels se r6f6re le pr6sent acte d’accusation, des viols, et d’autres formes de violences sexuelles ont 6t6 commis, d’une fagon g6n6ralis6e et notoire contre la population tutsi notamment les femmes et les filles ou contre des femmes hutu mari6es/~ des tutsi. Ces actes 6taient suivis de meurtre ou servaient de moyens de tuer les victimes. Ces crimes ont 6t6 perp6tr6s, entre autres, par des miliciens, dont les Interahamwe-MRND, des militaires et des gendarmes. 6.82 Des membres du gouvernement int6rimaire ont suscit6, encourag6, facilit6 et acquiesc6 aux viols et violences sexuelles commis/~ l’encontre de femmes tutsi, entre autre, par des miliciens, des Interahamwe- MRND, des militaires et des gendarmes. Des ministres du gouvemement ont eux-mames /~ l’occasion commis de tels actes, encourageant par leur exemple la commission d’actes similaires par, entre autres, des miliciens, des Interahamwe- MRND, des soldats et des gendarmes sur qui ils avaient une autorit6 de fait et de jure. Ainsi le ou vers le 20 mai 1994 des militants politiques et des miliciens travaillant sous la supervision de Eliezer Niyitegeka ont forc6 une fille /l monter dans le v6hicule de ce demier off Niyitegeka l’a viol6e; quand la 61

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL Niyitegeka himself shot and killed her. 6.83 Similarly, on several ocassions Interim Government Minister of Family Affairs and Gender Pauline Nyiramasuhuko personally ordered Interahamwe to kill Tutsi men and to rape Tutsi women before killing them. Once the Minister publicly exhorted Interahamwe to rape Tutsi women, stating to a small crowd, "you need to rape these Tutsi women because they are arrogant ... this is your opportunity to see what they are like." As soon as Pauline Nyiramasuhuko concluded her inciting address and returned to her vehicle, the soldiers and Interahamwe began to rape the Tutsi refugees. 6.84 Rape and other forms of sexual violence, including sexual torture, degrading sexual acts and indecent exposure were integral to the genocidal policy of the conspirators that seized political power from the first moments of 7th April, 1994 when political assassinations began. Not even the Prime Minister Agathe Uwiligimana was spared. Her body was discovered on the morning of 7 April 1994 with indicia of sexual torture and sexual degradation. victime sortit du v6hicule, Eliezer Niyitegeka-lui m6me la tua d’un coup de feu. 6.83 De m6me, /t maintes reprises le ministre de la Promotion de la Famille et de la condition feminine au sein du gouvernement int6rimaire,Pauline Nyiramasuhuko, a personnellement intim6 aux

Interahamwe l’ordre de tuer les hommes tutsis et de violer les femmes tutsies avant de les tuer. A une occasion pr6cise elle exhorta publiquement les interahamwe /i violer les femmes tutsies en s’adressant /t eux dans les termes suivants: "I1 faut violer ces femmes tutsies parce qu’elles sont arrogantes ... c’est une occasion qui vous est offerte pour savoir comment elles sont". A la fin de son discours Pauline Nyiramasuhuko est retourn6e/t sa voiture et les militaires et les Interahamwe ont aussit6t commenc6 5. violer les tutsies r6fugi6es. 6.84 Le viol et autres formes de violence sexuelle, torture sexuelle, actes sexuels d6gradants, outrage /t la pudeur ont fait partie de la politique g6nocidaire de ceux qui se sont entendus pour prendre le pouvoir d6s le 7 avril 1994 quand les assassinats politiques ont commenc& M6me le Premier Ministre Agathe Uwiligimana n’a pas 6t6 6pargn6e. Son corps a 6t6 d6couvert dans la matin6e du 7 avril 1994 avec des indices de torture et de violence sexuelle. Responsibility 6.85 From April to July 1994, several hundred thousand people were massacred throughout Rwanda. The majority of the victims were killed solely because they were Tutsi or appeared to be Tutsi. The other victims, nearly all Hutu, were killed because they were considered Tutsi accomplices, Responsabilit6 6.85 D’avril /t juillet 1994, plusieurs centaines de milliers de personnes ont 6t6 massacr6es sur tout le territoire du Rwanda. La plupart des victimes ont 6t6 tu6es pour la seule raison qu’elles 6taient des Tutsi ou ressemblaient ~ des Tutsi. Les autres victimes, surtout des Hutu, ont 6t6 tu6es 62

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OTHER VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW were linked to them through marriage or were opposed to the extremist Hutu ideology. 6.86 From 7 April 1994 around the country, most of the massacres were perpetrated with the participation, aid and instigation of Interahamwe-MRND militiamen,military personnel and gendarmes. 6.87 The massacres thus perpetrated were the result of a strategy adopted and elaborated by political, civil and military authorities in the country, such as Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, Juvenal Kajelijeli, Andr6 Ntagerura, Pauline Nyiramasuhuko and l~liezer Niyitegeka, who conspired to exterminate the Tutsi population. As from 7 April, other authorities at the national and local levels espoused this plan and joined the first group in encouraging, organizing and participating in the massacres of the Tutsi population and its accomplices. 6.88 Members of the Interim Government, political leaders, military officers and local authorities aided and abetted their subordinates and others in carrying out the massacres of the Tutsi population and its accomplices. Without the complicity of the local and national civil and military authorities, the principal massacres would not have occurred. 6.89

Knowing that massacres of the civilian population were being committed, the political and military authorities, including Augustin Ngirabatware, Jean de Dieu Kamuhanda, Augustin Ngirabatware, parce qu’elles 6taient qualifi6es de complice des Tutsi, li6es ~ces derniers par mariage ou oppos6es/t l’id6ologie Hutu extr6miste. 6.86 Dbs le 7 avril 1994, partout au Rwanda, la plupart des massacres ont 6t6 commis avec la participation, l’aide et l’encouragement des miliciens Interahamwe-MRND, des militaires et des gendarmes. 6.87 Les massacres perp6tr6s 6taient le r6sultat d’une strat6gie adopt6e et 61abor6e par des autorit6s politiques, civiles et militaires du pays dont Jean de Dien Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera, , Juvenal Kajelijeli, Andr6 Ntagerura, Pauline Nyiramasuhuko et t~liezer Niyitegeka, qui se sont entendues pour exterminer la population Tutsi. A partir du 7 avril, d’autres autorit6s nationales et locales ont adh6r6/t ce plan et se sont jointes au premier groupe pour encourager, organiser et participer aux massacres de la population Tutsi et ses complices. 6.88 Des membres du Gouvernement Int6rimaire, des dirigeants politiques, des officiers militaires et des autorit6s locales ont aid6 et encourag6 leurs subordonn6s et des tiers /~ commettre les massacres de la population Tutsi et de ses complices. Sans la complicit6 des autorit6s locales et nationales, civiles et militaires, les principaux massacres n’auraient pas eu lieu. 6.89 Sachant que des massacres 6taient commis contre la population civile, les autorit6s politiques et militaires dont Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper 63

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AUTRES VIOLATIONS DU DROIT HUMANITAIRE INTERNATIONAL Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Eliezer Niyitegeka, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera and Juv6nal Kajelijeli took no measures to stop them. On the contrary, they refused to intervene to control and appeal to the population as long as a cease- fire had not been declared. This categorical refusal was communicated to the Special Rapporteur via the Chief of Staff of Rwandan Army, Major-General Augustin Bizimungu. 6.90 Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera and Juv6nal Kajelijeli, in their position of authority, acting in concert with, notably Andr6 Ntagerura, Pauline Nyiramasuhuko, ]~liezer Niyitegeka, Tharcisse Renzaho, F61icien Kabuga, Augustin Bizimana, Callixte Nzabonimana and Th6oneste Bagosora, participated in the planning, preparation or execution of a common scheme, strategy or plan, to commit the atrocities set forth above. The crimes were committed bythem personally, by persons they assisted or by their subordinates, and withtheir knowledge or .. consent. Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Eliezer Niyitegeka, Edouard Karemera, Andr6 Rwamakuba,

Mathieu Ngirumpatse, Joseph Nzirorera, et Juv6nal Kajelijeli n’ont pris aucune disposition pour les arr6ter. Au contraire ils ont refus6 d’intervenir pour contr61er et faire appel/t la population tant qu’un accord de cessez-le- feu ne serait pas ordonn6. Ce refus cat6gorique a 6t6 transmis au Rapporteur sp6cial par l’interm6diaire du Chef de l’Etat- Major de l’Arm6e Rwandaise, le Major- G6n6ral Augustin Bizimungu. 6.90 Jean de Dieu Kamuhanda, Augustin Ngirabatware, Casimir Bizimungu, Prosper Mugiraneza, J6r6me Bicamumpaka, Justin Mugenzi, Edouard Karemera, Andr6 Rwamakuba, Mathieu Ngirumpatse, Joseph Nzirorera et Juvenal Kajelijeli, dans leur position d’autorit6, en agissant de concert avec notamment Andr6 Ntagerura, Pauline Nyiramasuhuko, I31iezer Niyitegeka, Tharcisse Renzaho, F61icien Kabuga, Augustin Bizimana, Callixte Nzabonimana et Th6oneste Bagosora ont particip6 ~ la planification, la pr6paration ou l’ex6cution d’un plan, d’une strat6gie ou d’un dessein commun, afin de perp6trer les atrocit6s 6nonc6es ci-dessus, .Ces crimes ont 6t6 perp6tr6s par eux-m6mes ou par des personnes qu’il ont aid6es ou par leurs subordonn6s, alors qu’ils en avaient connaissance ou y consentaient. 64

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12 1 7: CHARGES 7: CHARGES 7: LES CHEFS D’ACCUSATION COUNT 1: PREMIER CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. conspired with others to kill and cause serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed

CONSPIRACY

TO

COMMIT GENCODE, a crime stipulated in Article 2(3)(b) of the Statute of the Tribunal, which he is individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute Par les actes et omissions drcrits aux paragraphes 5.1 /t 6.90 et plus particulirrement aux paragraphes rrfrrencirs ci-dessous: Jean de Dieu Kamuhanda: -conformrment ~t l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~t l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. s’est entendu avec d’autres pour tuer et porter des atteintes graves h l’intrgrit6 physique ou mentale de membres de la population tutsi dans l’intention de drtruire en tout ou en partie ce groupe ethnique ou racial, et a, de ce fair, commis le crime D’ENTENTE

EN

VUE DE COMMETTRE LE GENOCIDE tel que pr~vu ~t l’article 2(3)(b) du Statut Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 et punissable en vertu des articles 22 et 23 du Statut. 65

Page 317

7. LES CHEFS DACCUSATION COUNT 2: DEUXIl~ME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed GENOCIDE, a crime stipulated in Article 2(3)(a) of Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute. Par les actes et omissions d6crits aux paragraphes 5.1 ~ 6.90 et plus particuli6rement aux paragraphes r6f6renci6s ci-dessous: Jean de Dieu Kamuhanda: -conform6ment h l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to

5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conform6ment /t l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. est responsable de meurtres et d’atteintes graves ~t l’int6grit6 physique ou mentale de membres de la population tutsi dans l’intention de d6truire en tout ou en partie ce groupe ethnique ou racial et a, de ce fait, commis le crime de GI~NOCIDE tel que prrvu ~ larticle 2(3)(a) du Statut Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du Statut. 66

Page 318

7: CHARGES Or, alternatively Ou, alternativement COUNT 3: TROISIEME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Par les actes et omissions d6crits aux paragraphes 5.1 ~ 6.90 et plus particuli6rement aux paragraphes r6f6renci6s ci-dessous: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for killing and causing serious bodily or mental harm to members of the Tutsi population with the intent to destroy, in whole or in part, a racial or ethnic group, and thereby committed

COMPLICITY IN GENOCIDE, a crime stipulated in Article 2(3)(e) of the Statute of the Tribunal, which he is individually responsible pursuant to Article 6 and which is punishable in reference to Articles 22 and 23 of the Statute. Jean de Dieu Kamuhanda: -conformrment /t l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~ l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. est responsable de meurtres et d’atteintes graves/t l’intrgrit6 physique ou mentale de membres de la population tutsi dans l’intention de drtruire en tout ou en pattie ce groupe ethnique ou racial et a, de ce fait, commis le crime de COMPLICITI~ DANS LE GI~NOCIDE tel que prrvu l’article 2(3)(e) du Statut du Tribunal lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du Statut. 67

Page 319

i 7. LES CHEFS DACCUSATION COUNT 4: QUATRII~ME D’ACCUSATION:

CHEF By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Par les actes et omissions drcrits aux paragraphes 5.1 ~t 6.90 et plus particulirrement aux paragraphes rrfrrencirs ci-dessous: Jean de Dieu Kamuhanda: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~ l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~ l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for the

murder of persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(a) of the Statute of Tribunal, for which is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. est responsable d’assassinats de personnes dans le cadre d’une attaque systrmatique et grnrralisre contre une population civile, en raison de son appartenance politique, ethnique ou raciale, et a, de ce fait commis un CRIME CONTRE L’HUMANITE, tel que pr6vu ~ l’article 3(a) du Statut Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du Statut. 68

Page 320

7: CHARGES COUNT 5: ii CINQIEME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Par les actes et omissions d6crits aux paragraphes 5.1 /t 6.90 et plus particuli6rement aux paragraphes r6f6renci6s ci-dessous: Jean de Dieu Kamuhanda: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conform6ment ~ l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conform6ment /t l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for the extermination of persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME

AGAINST HUMANITY, a crime stipulated in Article 3(b) of the Statute Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. est responsable d’ extermination de personnes dans le cadre d’une attaque syst6matique et g6n6ralis6e contre une population civile, en raison de son appartenance politique, ethnique ou raciale, et a, de ce fait commis un CRIME CONTRE L’HUMANITE, tel que pr6vu/l l’article 3(b) du Statut du Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du Statut. 69

Page 321

7. LES CHEFS DACCUSATION COUNT 6: SIXEME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6. 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 5.39, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 5.39, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for rape as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(g) of the Statute the Tribunal, for he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. Par les actes et omissions d6crits aux paragraphes 5.1 g 6. 6.90 et plus particulibrement aux paragraphes r6f6renci6s ci-dessous: Jean de Dieu Kamuhanda: -conform6ment /~ l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to

5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 5.39, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conform6ment /t l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 5.39, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. est responsable de viols dans le cadre d’une attaque syst6matique et g6n6ralis6e contre une population civile, en raison de son appartenance politique, ethnique ou raciale, et a, de ce fair commis un CRIME CONTRE L’HUMANITI~, tel que pr6vu l’article 3(g) du Statut du Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du m~me Statut. 70

Page 322

7: CHARGES COUNT 7: SEPTII~ME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Par les actes et omissions drcrits aux paragraphes 5.1 ~ 6.90 et plus particulibrement aux paragraphes rrfrrencirs ci-dessous: Jean de Dieu Kamuhanda: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~ l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conformrment ~t l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to

6.68, 6.75, 6.79 to 6.90. is responsible for inhumane acts against persons as part of a widespread and systematic attack against a civilian population on political, ethnic or racial grounds, and thereby committed a CRIME AGAINST HUMANITY, a crime stipulated in Article 3(i) of Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. est responsable d’actes inhumains contre des personnes dans le cadre d’une attaque systrmatique et grnrralisre contre une population civile, en raison de son appartenance politique, ethnique ou raciale, et a, de ce fait commis un CRIME CONTRE L’HUMANITE tel que prrvu l’article 3(i) du Statut du Tribunal pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du mrme Statut. 71

Page 323

7. LES CHEFS DACCUSATION COUNT 8: HUITIEME CHEF D’ACCUSATION: By the acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhanda: -pursuant to Article 6(1), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -pursuant to Article 6(3), according paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. is responsible for outrages upon personal dignity, in particular humiliating and degrading treatment, rape and indecent assault, as part of an armed internal conflict, and thereby committed SERIOUS

VIOLATIONS

OF ARTICLE 3

COMMON

TO

THE

GENEVA

CONVENTIONS

AND OF ADDITIONAL PROTOCOL II, a crime stipulated in Article 4(e) of the Statute of the Tribunal, for which he is individually responsible pursuant to Article 6 of the Statute and which is punishable in reference to Articles 22 and 23 of the Statute. Par les actes et omissions d6crits aux paragraphes 5.1 /~ 6.90 et plus particuli6rement aux paragraphes r6f6renci6s ci-dessous: Jean de Dieu Kamuhanda: -conform6ment ~ l’article 6(1), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. -conform6ment /~ l’article 6(3), selon les paragraphes: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90. est responsable d’atteintes ~ la dignit6 de la personne, notamment de traitements humiliants et d6gradants, de viols et d’attentats g la pudeur dans le cadre d’un conflit arm6 interne, et a, de ce fair, commis le crime de VIOLATIONS

GRAVES DE L’ARTICLE 3

COMMUNE AUX CONVENTIONS DE GENl~VE

ET DU PROTOCOLE ADDITIONNEL II tel que pr6vu ~t l’article 4(e) du Statut du Tribunal et pour lequel il est individuellement responsable en vertu de l’article 6 du Statut et punissable en vertu des articles 22 et 23 du m6me Statut. 72

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14/11 ’00 TLIE 16:21 FAX 31705125358 14/11 ’.OO 11:14 FAX 5241

PROSECUTOR ICTY OTPkRUSIL~ [~001 @o02 7" CHAKG~8 COUNT 9: ,, By th~ acts or omissions described in paragraphs 5.1 to 6.90 and more specifically in the paragraphs referred to below: Jean de Dieu Kamuhauda: -pursuant to Article 6(i), according to paragraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 5.14 to 6,19, 6.21 to 6.26, 6.2S, 6.30 to 6.39, 6.41 to 6.46. 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6,79 to 6.90. NEUVIEME CHEF ]}’ACCUSATION" Par [es ~tes ct omissions d~crits aux pamgraphes 5.1 ~ 6.90 el: plus particuli~rem~mtaux pamgraphes rdf6renci&s oi-dessous: Jean de Dieu Kamuhanda: -conform6ment ~ l’a~cle 6(I), selon les paragraphes: 5.1, 5~2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5,38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6,30 to 6.39, 6.41 to 6.46, 6.48 to 6.51, 6.54, 6.56,6.61 to 6.68, 6.75, 6.79 to 6.90, -pursuant to Article 6(3), acr~rding p~agraphs: 5.1, 5.2, 5.11 to 5.13, 5.16, 5.18, 5.21, 5.23, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6.10, 6.14 to 6.19, 6.21 to 6.26, 6.28, 6.30 to 6.39, 6.41 1o 6.46, 6,48 to 6.51, 6.54, 6.56,6.61 to 6.6S, 6.75, 6.79 to 6.90. -confo~m6msnt ~t l’artide 6(3)° sclon les pamgraph~: 5,1, 5.2, 5.11 m 513, 5.16, 5.18, 5.21, 513, 5.24, 5.30, 5.33, 5.34, 5.38, 6.5, 6.7 to 6,10, 6.14 to 6.19, 6.21 to 6,26, 6.28, 6.30 to 6.39, 6.41 to 6.46, 6.4S to 6.51, 6.54, 6.56,6.61 to 6168, 6.75, 6_79 to 6.90. is responsible for killing and causing violence to health and to the physical or mental well-being of civilians as part of an armed internal conflict, a~d thereby committed SERIOUS VIOLATION OF

ARTICLE 3 COMMON

TO THE

GENEVA

CONVENTIONS AND ADDITIONAL PRO’fOCAL H, a ~-fime stipulated in Article 4(a) of the Statute of the Tribtmal, for whic~ he is are individually responsible pursuant to Article 6 of t~c Statute and whic~ is punishable in reference to Articles 22 and 23 of the Statatv. est r~poasable de m=urLres, d’a~temtes ~ la sent6 et an bien 8tre physique ou meatal de personnes civiles dane le cadre d’un ~onflit arm6 inteme~ et % do ce fait, commis le crime de VIOLATIONS GRAVES DE L’ARTICLE 3 COMMON

AUX

CONVENTIONSS DE GENEVE ET DU PROTOCOLE ADDITIONNEL II tel que pr6vu h l’article 4(a) du Statut Tn’btm~ ct pour lequ~l il ¢st individuellemaut responsable en vertu de l’article 6 du Statttt et puuissable en vertu des articles 22 et 23 du Statut. 14/11 ’00 T[TE i0:07 [TX/RX NO 6SlS]

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International Criminal Tribunal for Rwanda Tribunal P6nal International pour le Rwanda Arusha Inlemstional Confefence C€ntre P_O.Box6016, Arusha, Tazsnia - B.p.6016. Arusha. Tanzani€ Tel:255 57 504207-11 504367-72.f 12129632a50 Fax 2ss 57 5O4OOO/504373 ot 1212 3 2a/€'t1s

PROOF OF SERVIGE - ARUSHA

PREUVE DE NOTIFICATION - ARUSHA Date: 2610112004 ] Case Name,/Atralre.- The Prosecutorv JEAN DE D|EU KAMUHANDA Case No / Atraire Nr.: ICTR-9964A-T To: A: E rc1 fl Judge E.Msse, President E Judge J.R. Reddy E Judge S.A. Egorov E E. Nahamya, Co-ordjnator El rc2 ! Judge W. H. Sekule E Judge W C. Maqutu El Judge A. Ramaroson E C. Eboe-Osuji, SLO E A.Leroy, Co-ordinator fl rc3 n Judge L. c. \Mlliams rcceived by I regu par: ' .*:70l:' ::n: :^: ALO: tr !ntr tr trtrtrtr ntrtr ! Judge A. Vaz E Judge S.A. Egorov (Temporarily) ................... tr .....................Co-ordinator EotP t BUREAU DU PROCUREUR .^ A- tr TriatAttorney in charg" ot "".", (})@ irooTe / EDEFENcE/DEFEvse:,47- F-Zlr>ll tCj E Accused /,,qccusd: JEAN DE Dttu *"Jti"bi-' t " I receiv ea ov fi . :... 4,1 a pnq 6mpr€16 /rempri CMS4 FORM E tr I by faX -'prerar-pr.,cMs3bis FoRM. E by fax clnpt€t€ / Edplr " cMs3bis FoRM E Appeals Chamber Unit, The Hague All Decisions & lmportant Public Documenb: E Suzanne Chenault, Jurist Linguist Press & Public Affairs l-l Leoal Lil From: De: trJP. Fom6r6 (chier cMs) trN.pia oOcl) KR gl\o (rc 2t DF.raron(rc3) f] F. raton (Appeah) Cc: n A. Dieng E A. Mitler. oLA, Ny ! Nt. rurunro\ f] r.il. Nt"ng tr S. Van Driessche E t A/SS- D E WVSS-P E E. O'Donne fl DCMS ! P. Nyambe E P. Enow Kf ndly find attached the folfowing docum enllsl I Veuittez trorr"r., "r* ,.1g *-.n4"1 *r*61, bubJect Objet; Docnments name / /itre du document

JUDGMENT

AND SENTENCE Date Flled / Date ehregisbA Pages 23101t2004 325