Citation
International Criminal Tribunal for Rwanda
Tribunal pénal international pour le Rwanda
ORIGINAL: ENGLISH
TRIAL CHAMBER I
Before:
Judge Erik Møse, presiding
Judge Jai Ram Reddy
Judge Sergei Alekseevich Egorov
Registrar:
Adama Dieng
Date:
18 December 2008
THE PROSECUTOR
v.
Théoneste BAGOSORA
Gratien KABILIGI
Aloys NTABAKUZE
Anatole NSENGIYUMVA
Case No. ICTR-98-41-T
JUDGEMENT AND SENTENCE
Office of the Prosecutor:
Counsel for the Defence:
Barbara Mulvaney
Christine Graham
Kartik Murukutla
Rashid Rashid
Gregory Townsend
Drew White
Raphaël Constant
Allison Turner
Paul Skolnik
Frédéric Hivon
Peter Erlinder
Kennedy Ogetto
Gershom Otachi Bw’Omanwa
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
TABLE OF CONTENTS
CHAPTER I:
INTRODUCTION........................................................................................1
1.
Overview ...................................................................................................................1
2.
The Accused .............................................................................................................8
2.1
Théoneste Bagosora ................................................................................................... 8
2.2
Gratien Kabiligi ....................................................................................................... 10
2.3
Aloys Ntabakuze ...................................................................................................... 10
2.4
Anatole Nsengiyumva.............................................................................................. 11
CHAPTER II: PRELIMINARY ISSUES..........................................................................14
1.
Introduction............................................................................................................14
2.
Trial Without Undue Delay ..................................................................................14
3.
Initial Appearance Without Delay .......................................................................17
4.
Rule 40 bis ...............................................................................................................20
4.1
Extension of Provisional Detention ......................................................................... 20
4.2
Notification of Charges ............................................................................................ 21
5.
Notice of Charges ...................................................................................................21
5.1
Introduction .............................................................................................................. 21
5.2
Law .......................................................................................................................... 22
5.3
General Challenges to the Indictments .................................................................... 24
5.4
Cumulative Effect of Defects in the Indictments ..................................................... 25
6.
Presence at Trial ....................................................................................................26
7.
Admission of Evidence ..........................................................................................28
8.
Disclosure Before Cross-Examination .................................................................29
CHAPTER III: FACTUAL FINDINGS..............................................................................30
1.
Background ............................................................................................................30
1.1
Arusha Accords........................................................................................................ 30
1.2
Rwandan Armed Forces ........................................................................................... 32
1.3
United Nations Assistance Mission for Rwanda ..................................................... 39
2.
Allegations of Planning and Preparation of the Genocide .................................45
2.1
Introduction .............................................................................................................. 45
2.2
Definition of the Enemy........................................................................................... 46
2.3
Apocalypse Statement, Late October 1992 .............................................................. 50
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2.4
Meetings Before 6 April 1994 ................................................................................. 53
2.4.1 Meetings at Camp Kanombe, 1992 - 1993.......................................................53
2.4.2 MRND Meeting, Umuganda Stadium, 27 October 1993 .................................59
2.4.3 Distribution of Weapons, Bugarama, 28 January 1994 ...................................61
2.4.4 Meeting at Ruhengeri Military Camp, 15 February 1994 ................................65
2.4.5 Meeting at Gisenyi MRND Headquarters, February 1994 ..............................72
2.4.6 Butare Meeting, February 1994 .......................................................................74
2.4.7 Senegalese Dinner, 4 April 1994 .....................................................................80
2.5
Preparation and Use of Lists .................................................................................... 85
2.5.1 Arrests, October 1990 ......................................................................................85
2.5.2 Orders to the General Staff, 1992 ....................................................................92
2.5.3 Déogratias Nsabimana’s Vehicle, 1993 ...........................................................97
2.5.4 Interahamwe...................................................................................................102
2.5.5 Use of Lists, 1994 ..........................................................................................105
2.6
Creation, Training and Arming of Civilian Militias .............................................. 109
2.6.1 Interahamwe and Other Political Party Militias.............................................110
2.6.2 Rwanda’s Civil Defence System and Civilian Assailants..............................111
2.6.3 Jean-Pierre ......................................................................................................124
2.7
Zero Network ......................................................................................................... 129
2.8
AMASASU ............................................................................................................ 134
2.9
Death Squads ......................................................................................................... 146
2.10 Radio Télévision Libre des Mille Collines ............................................................. 158
3.
Events from 6 to 9 April 1994 .............................................................................166
3.1
Death of President Habyarimana ........................................................................... 166
3.2
Meetings, 6 - 7 April .............................................................................................. 166
3.2.1 Crisis Committee............................................................................................167
3.2.2 Meeting with Booh-Booh ...............................................................................169
3.2.3 Meeting with the United States’ Ambassador ................................................170
3.2.4 Meeting at ESM .............................................................................................171
3.3
Political Killings, 7 April ....................................................................................... 174
3.3.1 Political Context .............................................................................................175
3.3.2 Prime Minister Agathe Uwilingiyimana ........................................................176
3.3.3 Officials in Kimihurura ..................................................................................183
3.4
Killing of 10 Belgian Peacekeepers, 7 April ......................................................... 190
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3.5
Events in Kigali After 6 April ................................................................................ 200
3.5.1 Camp Kanombe, 6 - 7 April ...........................................................................200
3.5.2 Centre Christus, 7 April .................................................................................217
3.5.3 Kibagabaga Mosque, 7 - 8 April ....................................................................224
3.5.4 Kabeza, 7 - 8 April .........................................................................................227
3.5.5 Saint Josephite Centre, 8 April.......................................................................233
3.5.6 Augustin Maharangari, 8 April ......................................................................235
3.5.7 Karama Hill and Kibagabaga Catholic Church, 8 - 9 April ...........................240
3.5.8 Gikondo Parish, 9 April .................................................................................242
3.5.9 Separate Radio Network ................................................................................246
3.6
Gisenyi Prefecture .................................................................................................. 251
3.6.1 Military Camp and Gisenyi Town, 6 - 7 April ...............................................251
3.6.2 Market Place and Bus Station, 7 April ...........................................................268
3.6.3 Barnabé Samvura’s House, 7 April ................................................................274
3.6.4 Witness OC’s Husband, 7 April .....................................................................282
3.6.5 Alphonse Kabiligi, 7 April .............................................................................287
3.6.6 Nyundo Parish, 7 - 9 April .............................................................................292
3.6.7 Mudende University and Busasamana Parish, 7 - 9 April .............................303
3.6.8 Umuganda Stadium Meetings, April - June ...................................................315
3.7
4.
Formation of Interim Government ......................................................................... 322
Events from 11 April 1994 ..................................................................................331
4.1
Kigali and Its Environs .......................................................................................... 331
4.1.1 Nyanza, 11 April ............................................................................................331
4.1.2 Islamic Cultural Centre (Kadhafi Mosque), 13 April ....................................347
4.1.3 Centre Hospitalier de Kigali, April - May .....................................................351
4.1.4 IAMSEA, Mid-April ......................................................................................355
4.1.5 Ruhanga Church, 14 - 17 April ......................................................................363
4.1.6 Masaka Hill, Mid-April ..................................................................................366
4.1.7 Kiyovu Roadblock, April - June ....................................................................369
4.1.8 Lieutenant Desiré Mudenge, 21 April ............................................................379
4.1.9 Kabiligi’s Presence at Roadblocks, 21 - 30 April ..........................................383
4.1.10 Meeting at Hôtel des Diplomates, 24 April ...................................................385
4.1.11 Kigali Prefecture Security Meeting, End of April .........................................388
4.1.12 Meeting at Mount Kigali, Late April or Early May .......................................390
4.1.13 Nykabanda Sector, 22 - 25 May .....................................................................392
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4.1.14 Saint André College, May - June ...................................................................398
4.2
Gisenyi Prefecture .................................................................................................. 409
4.2.1 Saint Peter’s Centre, 20 April ........................................................................409
4.2.2 Stanislas Sinibagiwe, May .............................................................................412
4.2.3 Four Tutsi Women, La Corniche Roadblock, Early June ..............................416
4.2.4 Meeting at MRND Headquarters, Early June ................................................420
4.2.5 Espérance Uwayirege (Longin’s Wife), June ................................................423
4.2.6 Sexual Violence .............................................................................................430
4.3
Butare Prefecture ................................................................................................... 434
4.4
Gitarama Prefecture ............................................................................................... 438
4.4.1 Kabgayi Religious Centre, April - June .........................................................438
4.4.2 Musambira Roadblock, 10 June .....................................................................446
4.5
Kibuye Prefecture .................................................................................................. 449
4.5.1 Bisesero, June .................................................................................................449
4.5.2 Prevention of Humanitarian Aid to Tutsis, July.............................................458
4.6
Cyangugu Prefecture .............................................................................................. 464
4.6.1 Meetings at MRND Headquarters and Cercle Sportif, 23 - 24 April.............464
4.6.2 Roadblock Near Hôtel du Lac, Mid-May ......................................................469
4.6.3 Sighting of Kabiligi, August ..........................................................................473
5.
Roadblocks ...........................................................................................................477
5.1
Kigali...................................................................................................................... 477
5.2
Gisenyi ................................................................................................................... 485
6.
Alibi ....................................................................................................................490
6.1
Bagosora, 23 May to 22 June 1994 ........................................................................ 490
6.2
Kabiligi, 28 March to 23 April 1994 ..................................................................... 497
7.
Defence Views on the Causes of the Events in 1994 .........................................503
7.1
Introduction ............................................................................................................ 503
7.2
Deliberations .......................................................................................................... 504
CHAPTER IV: LEGAL FINDINGS .................................................................................508
1.
Criminal Responsibility.......................................................................................509
1.1
Legal Principles ..................................................................................................... 509
1.1.1 Direct Responsibility under Article 6 (1) .......................................................509
1.1.2 Superior Responsibility under Article 6 (3) ...................................................510
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1.2
Bagosora’s Superior Responsibility ....................................................................... 510
1.2.1 Authority – General Considerations...............................................................510
1.2.2 Superior – Subordinate Relationship .............................................................516
1.2.3 Knowledge .....................................................................................................517
1.2.4 Failure to Prevent or Punish ...........................................................................518
1.3
Kabiligi’s Superior Responsibility ......................................................................... 518
1.3.1 De Jure Authority ..........................................................................................518
1.3.2 De Facto Authority ........................................................................................520
1.3.3 Conclusion......................................................................................................523
1.4
Ntabakuze’s Superior Responsibility ..................................................................... 523
1.4.1 Authority – General Considerations...............................................................523
1.4.2 Superior – Subordinate Relationship .............................................................525
1.4.3 Knowledge .....................................................................................................526
1.4.4 Failure to Prevent and Punish ........................................................................526
1.5
Nsengiyumva’s Responsibility .............................................................................. 526
1.5.1 Authority – General Considerations...............................................................526
1.5.2 Superior – Subordinate Relationship .............................................................528
1.5.3 Knowledge .....................................................................................................529
1.5.4 Failure to Prevent and Punish ........................................................................530
2.
Genocide ...............................................................................................................531
2.1
Conspiracy to Commit Genocide ........................................................................... 531
2.2
Genocide ................................................................................................................ 540
2.2.1 Introduction ....................................................................................................540
2.2.2 Law .................................................................................................................540
2.2.3 Deliberations ..................................................................................................541
2.2.4 Conclusion......................................................................................................547
2.3
Complicity in Genocide ......................................................................................... 547
2.4
Direct and Public Incitement to Commit Genocide ............................................... 548
3.
Crimes Against Humanity ..................................................................................549
3.1
Introduction ............................................................................................................ 549
3.2
Widespread and Systematic Attack ....................................................................... 549
3.3
Murder.................................................................................................................... 550
3.3.1 Introduction ....................................................................................................550
3.3.2 Law .................................................................................................................550
3.3.3 Deliberations ..................................................................................................550
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3.3.4 Conclusion......................................................................................................553
3.4
Extermination ......................................................................................................... 554
3.4.1 Introduction ....................................................................................................554
3.4.2 Law .................................................................................................................554
3.4.3 Deliberations ..................................................................................................555
3.4.4 Conclusion......................................................................................................555
3.5
Rape ....................................................................................................................... 556
3.5.1 Introduction ....................................................................................................556
3.5.2 Law .................................................................................................................556
3.5.3 Deliberations ..................................................................................................556
3.5.4 Conclusion......................................................................................................557
3.6
Persecution ............................................................................................................. 557
3.6.1 Introduction ....................................................................................................557
3.6.2 Law .................................................................................................................557
3.6.3 Deliberations ..................................................................................................558
3.6.4 Conclusion......................................................................................................558
3.7
Other Inhumane Acts ............................................................................................. 559
3.7.1 Introduction ....................................................................................................559
3.7.2 Law .................................................................................................................559
3.7.3 Deliberations ..................................................................................................560
3.7.4 Conclusion......................................................................................................561
4. Serious Violations of Article 3 Common to the Geneva Conventions and
Additional Protocol II ....................................................................................................562
4.1
Introduction ............................................................................................................ 562
4.2
Threshold Elements ............................................................................................... 562
4.2.1 Law .................................................................................................................562
4.2.2 Non-International Armed Conflict .................................................................562
4.2.3 Nexus..............................................................................................................562
4.2.4 Victims ...........................................................................................................563
4.3
Violence to Life ..................................................................................................... 564
4.3.1 Introduction ....................................................................................................564
4.3.2 Law .................................................................................................................564
4.3.3 Deliberations ..................................................................................................564
4.3.4 Conclusion......................................................................................................565
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4.4
Outrages upon Personal Dignity ............................................................................ 566
4.4.1 Introduction ....................................................................................................566
4.4.2 Law .................................................................................................................566
4.4.3 Deliberations ..................................................................................................566
4.4.4 Conclusion......................................................................................................566
CHAPTER V: VERDICT .................................................................................................568
CHAPTER VI: SENTENCING .........................................................................................570
1.
Introduction..........................................................................................................570
2.
Submissions ..........................................................................................................570
3.
Deliberations ........................................................................................................571
3.1
Gravity of the Offences .......................................................................................... 571
3.2
Individual, Aggravating and Mitigating Circumstances ........................................ 573
4.
Conclusion ............................................................................................................574
5.
Consequential Orders ..........................................................................................574
ANNEX A: PROCEDURAL HISTORY ...........................................................................576
1.
Théoneste Bagosora .............................................................................................576
2.
Gratien Kabiligi and Aloys Ntabakuze ..............................................................577
3.
Anatole Nsengiyumva ..........................................................................................580
4.
Bagosora and 28 Others ......................................................................................581
5.
Théoneste Bagosora et al. ....................................................................................582
5.1
Pre-Trial Proceedings............................................................................................. 582
5.2
Prosecution Case .................................................................................................... 582
5.3
Defence Case ......................................................................................................... 588
5.4
Further Proceedings ............................................................................................... 594
ANNEX B: CITED MATERIALS AND DEFINED TERMS..........................................595
1.
2.
Jurisprudence .......................................................................................................595
1.1
ICTR ...................................................................................................................... 595
1.2
ICTY ...................................................................................................................... 599
Defined Terms and Abbreviations .....................................................................602
ANNEX C: INDICTMENTS
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
CHAPTER I:
1.
INTRODUCTION
OVERVIEW
(i) Introduction
1.
This case concerns Colonel Théoneste Bagosora, the directeur de cabinet of the
Ministry of Defence, General Gratien Kabiligi, the head of the operations bureau (G-3) of the
army general staff, Major Aloys Ntabakuze, the commander of the elite Para Commando
Battalion, and Colonel Anatole Nsengiyumva, the commander of the Gisenyi operational
sector (I.2).1
2.
The four Accused are charged with conspiracy to commit genocide, genocide, crimes
against humanity (murder, extermination, rape, persecution and other inhumane acts) and
serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II
(violence to life and outrages upon personal dignity). Nsengiyumva is also accused of direct
and public incitement to commit genocide. The Prosecution relies on direct or superior
responsibility.
3.
The Defence has challenged the credibility of the Prosecution’s evidence. In
particular, Bagosora and Kabiligi have contested that they had actual authority over members
of the Rwandan military, and Nsengiyumva and Ntabakuze have disputed that soldiers under
their command committed criminal acts. For some of the events, the Accused have presented
the defence of alibi, most notably Kabiligi and Bagosora. The Defence has also raised a
number of procedural challenges, which are discussed in the judgement.
4.
The evidence of this trial has reiterated that genocide, crimes against humanity and
war crimes were perpetrated in Rwanda after 6 April 1994. The human suffering and
slaughter were immense. These crimes were directed principally against Tutsi civilians as
well as Hutus who were seen as sympathetic to the Tutsi-led Rwandan Patriotic Front (RPF)
or as opponents of the ruling regime. The perpetrators included soldiers, gendarmes, civilian
and party officials, Interahamwe and other militia, as well as ordinary citizens. Nevertheless,
as the evidence in this case and the history of the Tribunal show, not every member of these
groups committed crimes.
5.
Also other persons than Tutsis and moderate Hutus suffered in 1994. The process of a
criminal trial cannot depict the entire picture of what happened in Rwanda, even in a case of
this magnitude. The Chamber’s task is narrowed by exacting standards of proof and
procedure as well as its focus on the four Accused and the specific evidence placed before it
in this case.
1
During the 408 trial days of this case, 242 witnesses were heard, 82 for the Prosecution and 160 for the
Defence. Nearly 1,600 exhibits were tendered. The transcripts of the case amount to more than 30,000 pages,
whereas the final submissions of the parties totalled approximately 4,500 pages. The amount of evidence in this
case is nearly eight times the size of an average single-accused case heard by the Tribunal. During the trial, the
Chamber delivered about 300 written decisions. It pronounced its unanimous judgement on 18 December 2008.
The written judgement was filed on 9 February 2009 after the conclusion of the editorial process.
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(ii) Alleged Conspiracy to Commit Genocide
6.
The Prosecution alleges that the four Accused conspired amongst themselves and with
others from late 1990 through 7 April 1994 to exterminate the Tutsi population. Reference is
made to evidence – mostly circumstantial – which arguably forms links in a chain leading to
a conspiracy to commit genocide in the months or years before April 1994.
7.
Disputing that there was a conspiracy, the Defence argues that the Prosecution relies
on evidence lacking credibility and draws inferences from facts that have not been proven.
The Defence has also advanced a number of alternative explanations for the events which
unfolded. One of them is based on the view that it was the RPF which shot down President
Juvénal Habyarimana’s plane on 6 April 1994, and that this event, together with other factors,
triggered spontaneous killings.
8.
These alternative explanations particularly relate to the count of conspiracy, but they
have also been considered more generally. While some of them may provide a fuller picture
of the events in Rwanda in 1994, they do not raise any doubt about the Chamber’s overall
characterisation of the events as genocide, or the key findings which form the basis of the
judgement.
9.
In relation to the Prosecution submissions about conspiracy, the Chamber points out,
first, that the question is whether it is proven beyond reasonable doubt, based upon the
evidence in this case, that the four Accused committed the crime of conspiracy to commit
genocide. Second, when confronted with circumstantial evidence, the Chamber may,
according to established case law, only convict where this conspiracy is the only reasonable
inference. Third, the evidence implicates the Accused in varying degrees.
10.
The first element referred to by the Prosecution is the participation of Bagosora,
Ntabakuze and Nsengiyumva in a Commission which was set up in 1991 to define “the
enemy”. The Chamber agrees that the over-emphasis on Tutsi ethnicity in the definition of
the enemy was troubling. However, it has not found that the document itself or its subsequent
circulation to soldiers, in particular by Ntabakuze in 1992 and 1993, demonstrate a
conspiracy to commit genocide.
11.
The Chamber considers that Nsengiyumva was involved in the maintenance of lists of
suspected accomplices of the RPF or others opposed to the ruling regime, and that Bagosora,
Kabiligi and Nsengiyumva played a role in the creation, arming and training of civilian
militia. However, it was not proven beyond reasonable doubt that these efforts were directed
at killing Tutsi civilians with the intention to commit genocide.
12.
Several elements underpinning the Prosecution case about conspiracy were not
supported by sufficiently reliable evidence, for instance Bagosora’s alleged utterance in 1992
that he was returning from the Arusha negotiations to prepare for the “apocalypse”. Other
examples are the four Accused’s alleged role in certain clandestine criminal organisations,
including the AMASASU, the Zero Network or death squads. The testimony about a meeting
in Butare in February 1994, where Bagosora and Nsengiumva allegedly drew up a list of
Tutsis to be killed, was not considered credible. The Chamber has reached the same
conclusion with respect to Kabiligi’s alleged speech about genocide in Ruhengeri in February
1994. There are also concerns with the reliability of the information provided by an
informant, Jean-Pierre, and an anonymous letter outlining a “Machiavellian Plan”.
13.
The Chamber certainly accepts that there are indications which may be construed as
evidence of a plan to commit genocide, in particular when viewed in light of the subsequent
targeted and speedy killings immediately after the shooting down of the President’s plane.
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However, the evidence is also consistent with preparations for a political or military power
struggle and measures adopted in the context of an on-going war with the RPF that were used
for other purposes from 6 April 1994.
14.
Consequently, the Prosecution has not proven beyond reasonable doubt that the only
reasonable inference to be drawn from the evidence is that the four Accused conspired
amongst themselves or with others to commit genocide before it unfolded from 7 April 1994.
The Chamber has acquitted them of the count of conspiracy.
(iii) Kigali, 6 - 9 April 1994
15.
It was around 8.30 p.m. on 6 April 1994 that a surface-to-air missile fired from near
the Kigali airport brought down the plane carrying President Habyarimana and other
dignitaries. They were returning from peace negotiations in Dar es Salaam aimed at
implementing the Arusha Accords. The blast heard across Kigali killed all onboard. As the
plane fell to the earth, Rwanda descended into violence, and within 24 hours, armed
hostilities resumed between the Rwandan military and the RPF.
16.
In the evening of 6 April 1994, shortly after the attack on the President’s plane,
Bagosora chaired a meeting of the military Crisis Committee, which was composed of senior
army and gendarmerie officers at Camp Kigali. General Roméo Dallaire, the force
commander of UNAMIR, also participated. During the meeting, Dallaire proposed that the
military contact Prime Minister Agathe Uwilingiyimana. He also suggested that she should
address the country following the shooting down of the President’s plane. Bagosora refused.
Later that night, Bagosora and Dallaire met with Jacques Roger Booh-Booh, the Special
Representative of the United Nations Secretary-General, at his home. Bagosora again refused
to consult with the Prime Minister.
17.
After Bagosora’s return to Camp Kigali, he approved and signed a communiqué to be
read over radio announcing the death of the President. It was issued on behalf of the Minister
of Defence, who was abroad.
18.
During the night, General Dallaire ordered that an UNAMIR escort be provided to the
Prime Minister so that she could address the nation on Radio Rwanda in the morning. Around
5.00 a.m. on 7 April 1994, 10 Belgian peacekeepers were dispatched to her residence. In the
preceding hours, elements of the Reconnaissance Battalion and the Presidential Guard had
surrounded the compound and at times fired on the gendarmes and Ghanaian peacekeepers
guarding the Prime Minister. After the Belgian peacekeepers arrived, the compound came
under attack. The Prime Minister fled her home and hid at a neighbouring compound. She
was found, killed and then sexually assaulted.
19.
At approximately the same time, soldiers from the Presidential Guard killed four
important opposition leaders or prominent personalities in the Kimihurura neighbourhood of
Kigali, namely Joseph Kavaruganda, the President of the Constitutional Court; Frédéric
Nzamurambaho, the chairman of the Parti Social Démocrate and Minister of Agriculture;
Landoald Ndasingwa, the vice-chairman of the Parti Libéral and Minister of Labour and
Community Affairs; and Faustin Rucogoza, an official of the Mouvement Démocratique
Républicain and Minister of Information. The next day, soldiers killed Augustin
Maharangari, the Manager of the Banque Rwandaise de Développement.
20.
The Chamber simply cannot accept that elite units of the Rwandan army would
spontaneously engage in sustained gun and grenade fire with Rwandan gendarmes and United
Nations peacekeepers, murder and assault the Prime Minister of their country, and kill five
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prominent personalities, unless it formed part of an organised military operation pursuant to
orders from superior military authorities.
21.
The Belgian and Ghanaian peacekeepers were disarmed at the Prime Minister’s
residence and taken to Camp Kigali around 9.00 a.m. Shortly thereafter, a crowd of soldiers
in the camp surrounded the Belgian peacekeepers and began assaulting them. Several
Rwandan officers, including Colonel Nubaha, the camp commander, tried to verbally calm
down the Rwandan soldiers.
22.
While this was going on, around 10.00 a.m., Bagosora was chairing a meeting of
high-ranking army and gendarmerie officers at an officer training school (ESM) close by. The
participants were discussing the situation after the death of the President. Nubaha left the
camp, entered the meeting, and informed Bagosora about the threat to the Belgian
peacekeepers. After the meeting, Bagosora arrived at Camp Kigali. He saw the dead bodies
of four Belgians and became aware that others were alive in the office. He claims that he was
threatened and called a traitor by the mob of soldiers, and hence withdrew. No force was used
to quell the volatile situation. Shortly after Bagosora’s departure, camp soldiers killed the
remaining Belgian peacekeepers with high powered weapons.
23.
There were other organised killings involving the Rwandan military, at times working
in conjunction with Interahamwe and other militiamen throughout Kigali, during the first 72
hours after the death of the President. Roadblocks were established throughout the city, and
soon became sites of open and notorious slaughter and rape. At Centre Christus, soldiers
killed 17 Rwandans with guns and grenades after locking them in a room. In Kabeza near
Camp Kanombe, members of the Para Commando Battalion, went from house to house
killing civilians. At the Kibagabago Mosque and Catholic Church in the Remera area as well
as the Saint Josephite Centre in Nyamirambo, soldiers in conjunction with militiamen
attacked and killed Tutsis. The Chamber also finds convincing the testimony about a member
of the Presidential Guard raping a Tutsi refugee during the attack at the Saint Josephite
Centre, and that soldiers killed Tutsi civilians at a roadblock and a school in Karama.
24.
During an attack on Gikondo Parish on the morning of 9 April 1994, the Rwandan
army sealed off the Gikondo area and gendarmes moved systematically through the
neighbourhood with lists, sending Tutsis to Gikondo Parish. The gendarmes checked the
identity cards of the Tutsis at the parish against their lists and then burned the identity cards.
The Interahamwe proceeded to kill the more than 150 Tutsi refugees in an atrocious manner.
The parish priests and UNAMIR military observers were forced to watch at gunpoint. Major
Brent Beardsley of UNAMIR arrived shortly after the attack and described the terrible scene,
which bore witness of killing, mutilation and rape. The Interahamwe returned later that night
to finish off the survivors.
25.
The Chamber has found that Bagosora was the highest authority in the Ministry of
Defence and exercised effective control over the Rwandan army and gendarmerie from 6
until 9 April, when the Minister of Defence returned to Rwanda. For the reasons given in the
judgement, he is responsible for the murder of the Prime Minister, the four opposition
politicians, the 10 Belgian peacekeepers, as well as the extensive military involvement in the
killing of civilians in Kigali during this period. Ntabakuze is responsible for crimes
committed by members of the Para Commando Battalion in Kabeza.
Judgement and Sentence
4
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
(iv) Subsequent Events in Kigali
26.
On 11 April 1994, thousands of Tutsi refugees fled from the École Technique
Officielle (ETO) in Kigali after the Belgian peacekeepers withdrew from their position there.
Tutsis were stopped at the Sonatube junction by members of the Para Commando Battalion.
Members of the battalion as well as Interahamwe then marched the refugees several
kilometers to Nyanza hill. A pick-up truck filled with members of the Para Commando
Battalion passed the refugees. At Nyanza, they were waiting. When the refugees arrived, the
soldiers opened fire. The Interahamwe then killed the survivors with traditional weapons.
27.
In mid-April 1994, members of the Para Commando Battalion along with
Interahamwe also participated in the killing of around 60 Tutsi refugees from L’Institut
Africain et Mauricien de Statistiques et d’Economie (IAMSEA) in the Remera area of Kigali.
28.
In view of Ntabakuze’s command and control over members of the Para Commando
Battalion, as well as the organisation of these crimes, the Chamber considers that he is
responsible for the crimes committed by members of the Para Commando Battalion in
Nyanza and at IAMSEA.
(v) Gisenyi Prefecture
29.
On 7 April 1994, soldiers, Interahamwe and other militiamen engaged in targeted
killings of Tutsi civilians in Gisenyi town and its surrounding area. One of the victims,
Alphonse Kabiligi, had previously been identified as having ties with the RPF on a list
maintained by the Rwandan army. On 8 April, at Mudende University, militiamen
accompanied by a small group of soldiers separated Hutus from Tutsis and killed the Tutsi
civilians. Nyundo Parish was the site of repeated attacks by militiamen from 7 to 9 April.
30.
Nsengiyumva’s responsibility for these attacks is clear. The presence of soldiers, the
systematic nature of the attacks, and the fact they were carried out nearly in parallel and
almost immediately after the President’s death reflect centralised coordination that would
have come only through the highest operational authority in the prefecture. Moreover, at the
time of these attacks, Bagosora was the highest authority in the Ministry of Defence with
control over the army and gendarmerie. He is therefore also responsible for these killings.
31.
In June 1994, Nsengiyumva sent militiamen from Gisenyi prefecture, whose training
he had overseen, to participate in an operation in Bisesero in Kibuye prefecture in mid-June
1994. Once there, and joined by militiamen from Cyangugu, the militia carried out attacks
against Tutsi refugees on Bisesero hill.
(vi) Kabiligi
32.
The Prosecution alleges that, on 28 January 1994, Kabiligi participated in a meeting
in Cyangugu prefecture involving the distribution of weapons and another meeting to plan the
genocide on 15 February 1994 in Ruhengeri prefecture. It also submits that he bears
responsibility for crimes committed at various roadblocks in Kigali and its surrounding areas
in April and June 1994.
33.
Kabiligi has advanced an alibi for 28 January, 15 February and from 28 March until
23 April 1994. The Chamber notes that the allegations against him are based on the evidence
of single witnesses whose credibility is questionable. Furthermore, the Prosecution has not
eliminated the reasonable possibility that the alibi is true. This raises doubt about the specific
crimes in which he was purportedly involved.
Judgement and Sentence
5
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
34.
The Prosecution also contends that Kabiligi bears criminal responsibility as a superior
based on his rank, position, reputation and charismatic influence. It did not, however, present
sufficient evidence to show the scope of his actual authority as a member of the army general
staff. In contrast, the Defence’s military expert and other witnesses testified that this position
did not entail command authority.
35.
In the Chamber’s view, some of the evidence reflected that Kabiligi played a more
active role in the conduct of military operations than simply serving as a desk officer.
However, the exact nature of his role is not clear, in particular whether it entailed command
authority, or whether any of the operations, in which he may have participated, targeted
civilians.
(vii) Verdict
36.
The Chamber has found that Colonel Théoneste Bagosora is responsible as a superior
under Article 6 (3) of the Statute for the killings of Prime Minister Agathe Uwilingiyimana,
Joseph Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza, the
10 Belgian peacekeepers, and Alphonse Kabiligi. The conclusion is the same with respect to
rapes perpetrated at roadblocks in the Kigali area from 7 to 9 April, the crimes committed at
Centre Christus, Kabeza, Kibagabaga Mosque, Kibagabaga Catholic Church, Karama hill,
the Saint Josephite centre, Gikondo Parish, the killings in Gisenyi town on 7 April, Nyundo
Parish and Mudende University. Under Article 6 (1), he is liable for ordering under Article 6
(1) the murder of Augustin Maharangari as well as the killings committed at roadblocks in
the Kigali area between 7 and 9 April. Bagosora is therefore guilty of genocide, crimes
against humanity (murder, extermination, rape, persecution and other inhumane acts) and
serious violations of Article 3 common to the Geneva Conventions and Additional Protocol II
(violence to life and outrages upon personal dignity).
37.
The Chamber acquits General Gratien Kabiligi of all counts.
38.
Major Aloys Ntabakuze bears superior responsibility under Article 6 (3) for the
crimes committed at Kabeza, Nyanza and IAMSEA in April 1994. He is therefore guilty of
genocide, crimes against humanity (murder, extermination, persecution and other inhumane
acts) and serious violations of Article 3 common to the Geneva Conventions and Additional
Protocol II (violence to life). He is not guilty of rape as a crime against humanity and
outrages upon personal dignity as a serious violation of Article 3 common to the Geneva
Conventions and Additional Protocol II.
39.
Colonel Anatole Nsengiyumva is responsible under Article 6 (1) for ordering the
targeted killings in Gisenyi town on 7 April 1994, including Alphonse Kabiligi, as well as at
Mudende University and Nyundo Parish. He also is liable under Article 6 (1) for aiding and
abetting the attacks in the Bisesero area of Kibuye prefecture by sending militiamen to
participate in them. Nsengiyumva is guilty of genocide, crimes against humanity (murder,
extermination, persecution and other inhumane acts) and serious violations of Article 3
common to the Geneva Conventions and Additional Protocol II (violence to life). He is not
guilty of direct and public incitement to commit genocide, rape as a crime against humanity
and outrages upon personal dignity as a serious violation of Article 3 common to the Geneva
Conventions and Additional Protocol II.
40.
Bagosora, Ntabakuze and Nsengiyumva are acquitted in relation to a considerable
number of allegations with which they were charged. This follows from the specific sections
of the judgement dealing with those events.
Judgement and Sentence
6
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
(viii) Sentence
41.
The Chamber has considered the gravity of each of the crimes for which Bagosora,
Ntabakuze and Nsengiyumva have been convicted as well as aggravating and mitigating
circumstances. It sentences Bagosora, Ntabakuze and Nsengiyumva each to a single sentence
of life imprisonment. They shall remain in the custody of the Tribunal pending transfer to the
state where they will serve their sentence.
42.
The Chamber orders the immediate release of Kabiligi and requests the Registry to
make the necessary arrangements.
Judgement and Sentence
7
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2.
2.1
THE ACCUSED
Théoneste Bagosora
43.
Théoneste Bagosora was born on 16 August 1941 in Giciye commune, Gisenyi
prefecture. He is married and the father of eight children, one of whom died in an accident.2
Bagosora enrolled at the École d’Officiers de Kigali, which was later renamed École
Supérieure Militaire (ESM), in 1962 and graduated with distinction as a second lieutenant in
1964.3
44.
Over the next two decades, Bagosora received advanced military training in Europe.
He obtained his Para Commando Certificate following studies at Skaffenberg and NamurMarche-les-Dames in Belgium. In 1980, President Juvénal Habyarimana sent him to France
where his training included how to command major units at the battalion or regiment level.
There, Bagosora enrolled at the École Supérieure de Guerre Interarmées between 1
September 1980 and 11 December 1981 and L’Institut des Hautés Études de Défense
Nationale from where he graduated, with a commendation, on 7 May 1982.4
45.
Meanwhile, Bagosora rose through the military ranks in Rwanda. He was promoted to
lieutenant in April 1967, became a captain in 1970 and major in 1977. In October 1981, he
was promoted to lieutenant-colonel, a rank which he held for eight years. He became a full
colonel on 1 October 1989, his highest rank, until retirement in September 1993.5
46.
In early July 1973, Bagosora assisted General Habyarimana execute the coup d’état
which unseated President Grégoire Kayibanda.6
47.
Bagosora’s duties as an officer increased with his rank. Upon graduation in 1964, he
was assigned as a platoon commander in Kibuye from where he was later transferred to head
a field platoon in Nyanza, and subsequently, in Butare. After returning from training in
Belgium, he was made platoon leader in Ruhengeri. Though still a second lieutenant, he was
then promoted to command the Bugesera or Gako Company, where he served between June
and December 1966. Bagosora was subsequently transferred to head the Butare Company for
approximately one year. This was followed by another year and a half as commander of the
Cyangugu Company. At the end of 1969, as full lieutenant, he became commander of the
Kanombe Training Centre Company. As a captain, Bagosora was appointed commander of
the Kigali Company in 1972 and head of the Military Police Company, which was
responsible for enforcing army discipline, in 1973. He led the military police until the early
1980s.7
48.
From January to October 1982, Bagosora was appointed head of the service de
documentation (SERDOC), a military intelligence service in the Ministry of Defence. Its
mandate was to collate and analyse intelligence provided by army chiefs and others for the
Minister of Defence. He was then appointed to serve as second in command of the ESM, the
military academy, where he spent two and a half years. In 1985, after he declined the
2
Bagosora had one brother and four sisters. Three of his siblings have been killed. See T. 24 October 2005 pp.
4, 13, 44.
3
Id. pp. 51-53; Bagosora Defence Exhibit 206 (École Supérieure Militaire Diplôme).
4
T. 24 October 2005 pp. 34-35, 54-57; Bagosora Defence Exhibit 65 (Brevet d’Études Militaires Supérieures).
5
T. 24 October 2005 pp. 51, 58; T. 25 October 2005 pp. 38, 45-46, 61.
6
T. 25 October 2005 pp. 41, 44-45.
7
Id. pp. 33-35, 39, 45.
Judgement and Sentence
8
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
President’s invitation to take up a civilian post, he was transferred back to SERDOC and
stayed there until 1988.8
49.
In June 1988, two months after the April 1988 assassination of Colonel Stanislas
Mayuya, who was commander of Camp Kanombe, Bagosora took over permanent command
of the camp from Nsengiyumva.9 Command of that camp normally included the elite Para
Commando Battalion. President Habyarimana gave Bagosora responsibility for Kanombe
Camp and the Light Anti-Aircraft Battalion. Bagosora remained in charge of Camp Kanombe
as a full colonel until June 1992 when he was appointed directeur de cabinet for the Ministry
of Defence. He served in that position until 14 July 1994.10
50.
Bagosora retired as an army officer on 23 September 1993, but was recalled to active
military service on 21 May 1994 by Augustin Bizimana, the Minister of Defence. He
therefore continued in the post of directeur de cabinet as a soldier on active duty.11
51.
On 4 December 1991, President Habyarimana set up the Enemy Commission to
present an enemy threat assessment. Bagosora chaired the commission, which presented its
report entitled “Definition of the Enemy” at the end of December 1991 (III.2.2).12 He
participated in several official missions, including the negotiation process in 1992 and 1993
between the Habyarimana Government and the Rwandan Patriotic Front which led to the
Arusha Accords on 4 August 1993 (III.1.1; III.2.3).
52.
Bagosora was active in a number of non-profit organisations. Between 1977 and
1994, he was a founding member and vice-president of AFOTEC, an association for technical
training for soldiers and reservists, which established and ran the AFOTEC School in
Kanombe. Bagosora was also a member of Intwali, a non-profit organisation for war
disabled. In military circles, he was elected on several occasions as president of the
association of the officer’s mess in Kigali.13
53.
On 14 July 1994, Bagosora fled Rwanda for Goma in Zaire. After the defeat of the
Rwandan army in July 1994, he was appointed chair of the political and external relations
committee of the newly reorganised Rwandan Armed Forces High Command. He was also
part of the Cameroonian wing of the Movement for the Return of Refugees and Democracy
8
Id. pp. 51-58. According to Bagosora, he was kept in that position for a while because the President wanted to
keep him close to monitor his activities.
9
Id. pp. 58-59. See also Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp. 2, 5; Nsengiyumva, T. 11
October 2006 p. 79.
10
T. 25 October 2005 pp. 51, 58-59; T. 26 October 2005 p. 8.
11
T. 24 October 2005 p. 3; T. 25 October 2005 pp. 3, 17, 51; T. 26 October 2005 pp. 3, 5, 7; Bagosora Defence
Exhibit 214 (Official Gazette of 15 October 1993 - Series of Presidential Orders). Bagosora was to be replaced
as directeur de cabinet as part of the power sharing agreement of the Arusha Accords where a member of the
MRND was supposed to take up his post. His replacement, however, did not assume this post. Between 23
September 1993 to 21 May 1994, Bagosora continued as the directeur de cabinet.
12
T. 25 October 2005 p. 40; T. 26 October 2005 pp. 44-45.
13
T. 25 October 2005 pp. 5-14, 58-59, 70-75, 78. AFOTEC stands for Association pour la formation technique.
Bagosora was also a founding member and president of the Association for the development of the Giciye and
Karago communes (ADECOGIKA) in 1984, an organisation whose objective was to promote socio-economic
and cultural development in his native region of Bushiru – the same region as President Habyarimana.
ADECOGIKA established and ran the Kibihekane College.
Judgement and Sentence
9
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
to Rwanda (RDR).14 Bagosora subsequently left Zaire for Cameroon where he was arrested in
Yaoundé on 9 March 1996, following which he was transferred to the United Nations
Detention Facility.15
2.2
Gratien Kabiligi
54.
Gratien Kabiligi was born on 18 December 1951 in Kamembe commune, Cyangugu
prefecture. He is married and the father of six children. Kabiligi began his military education
at the ESM in 1971. He graduated in 1974 with the rank of second lieutenant. 16
55.
Kabiligi was promoted lieutenant in 1977, captain in 1980 and major in 1984. Besides
completing various technical military training courses within Rwanda, between 1986 and
1988, he undertook senior officer training at the military academy in Hamburg, West
Germany. He was promoted to lieutenant-colonel in 1988, full colonel in 1992 and brigadiergeneral on 16 April 1994.17
56.
From 1988 until 1991, he served as the Director of Studies at the ESM. Between 1991
and 1992, he commanded the 21st Battalion at the Mutara frontline. In June 1992, he was
appointed commander of military operations in the Byumba operational sector where he
served until August 1993. Kabiligi became the head of the G-3 bureau on the general staff of
the Rwandan Army from September 1993. He retained that post until 17 July 1994.18
57.
After the Rwandan army was defeated in July 1994, Kabiligi was named deputy
commander, as well as commander of the Bukavu Squad, of the newly reorganised Rwandan
Armed Forces High Command which was reconstituted in exile. He was later part of the
Movement for the Return of Refugees and Democracy to Rwanda (RDR).19 Kabiligi was
arrested on 18 July 1997 in Nairobi, Kenya. On the same day, he was transferred to the
United Nations Detention Facility.20
2.3
Aloys Ntabakuze
58.
Aloys Ntabakuze was born on 20 August 1954 in Karago commune, Gisenyi
prefecture. He is married and the father of four children. After attending the ESM, he
graduated on 28 June 1978 with the rank of second lieutenant. He obtained a Level B
Commando Certificate on 31 July 1976 and a Level A Commando Certificate on 28 June
1978, both from the Commando Training Centre of Bigogwe, Rwanda.21
59.
In 1981, Ntabakuze was promoted to the rank of lieutenant. From 1983 to 1984, he
received security training at the Military Security School of Algeria. He became a captain on
1 April 1984 and a commandant in April 1987. Between November 1986 and June 1988,
14
T. 24 October 2005 p. 24; Prosecution Exhibit 339 (Letter from Augustin Bizimana of 11 August 1994:
Reorganisation of the Rwandan Armed Forces); Prosecution Exhibit 419 (RDR: United Nations Security
Council Misled About the Presumed “Tutsi Genocide” in Rwanda).
15
T. 24 October 2005 p. 2. See also Annex A.1 concerning his arrest and transfer to the Tribunal.
16
Kabiligi Closing Brief, paras. 6-7.
17
Id. paras. 8-9.
18
Id. para. 10.
19
Prosecution Exhibit 339 (Letter from Augustin Bizimana of 11 August 1994: Reorganisation of the Rwandan
Armed Forces); Prosecution Exhibit 415 (RDR: Minutes of founding meeting).
20
Kabiligi Closing Brief, para. 39. See also Annex A.2 concerning Kabiligi’s arrest and transfer.
21
T. 18 September 2006 pp. 3-4; Annex to Ntabakuze Closing Brief: Deposition September 2006 pp. 3-5. In
1979, Ntabakuze began training in Belgium, including elementary pilot training, which was never completed.
Judgement and Sentence
10
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Ntabakuze trained in the United States of America, first at the Defence Language Institute of
Lackland Air Force Base in San Antonio, Texas, and then, at the United States Army
Command and General Staff College at Leavenworth, Kansas. He graduated in June 1988. In
1988, he obtained a parachuting certificate from Kanombe Camp. On 1 April 1991, he was
promoted to major with retroactive effect from 1 April 1990.22
60.
From July 1978 to February 1982, Ntabakuze was platoon leader in the Military
Police Company in Kigali. Between July and December 1978 and from August 1979 to
sometime in 1980, his direct superior was Bagosora who at the time was head of the Military
Police Company (I.2.1). Ntabakuze served as platoon leader in the Presidential Guard in
Kigali from February 1982 to November 1983. He held the post of commander of the
Military Police Company in Kigali between June 1984 and November 1986.23
61.
In June 1988, about two months after the assassination of the former commander
Colonel Mayuya, Ntabakuze was appointed to lead the Para Commando Battalion in Camp
Kanombe. He remained commander until 3 July 1994, when he was transferred to head the
operational sector of Gitarama under the overall direction of General Augustin Bizimungu.
During this period, the Para Commando Battalion remained one of his subordinate units. 24
62.
On 4 December 1991, Major Ntabakuze was one of 10 officers that served on the
Enemy Commission chaired by Bagosora (III.2.2).25 In February 1993, the Minister of
Defence appointed him to a governmental commission mandated to establish new regulations
for the integrated army anticipated to follow the Arusha Peace Accords. 26
63.
Following the defeat of the Rwandan Army, Ntabakuze left Rwanda on 17 July 1994.
He was appointed deputy commander of the Goma Squad of the newly reorganised Rwandan
Armed Forces High Command. Later, he joined the Movement for the Return of Refugees
and Democracy to Rwanda (RDR).27 Ntabakuze was arrested in Nairobi, Kenya on 18 July
1997 and subsequently transferred to the Tribunal.28
2.4
Anatole Nsengiyumva
64.
Anatole Nsengiyumva was born on 4 September 1950 in Santinsyi commune, Gisenyi
prefecture. He is married and the father of six children. Nsengiyumva studied at École
d’Officiers de Kigali (later ESM) from August 1969 and completed his studies in April 1971.
In November 1971, he was appointed to the National Police as part of an ad hoc
establishment of police in Ruhengeri. He trained with the German Police where he completed
his course in 1972. Nsengiyumva was appointed second lieutenant in the army and subcommissioner in the police in 1973. He was promoted to first lieutenant in 1974, captain in
1977 and commander in 1980. He became major and lieutenant-colonel in October 1984 and
October 1988, respectively. 29
22
T. 18 September 2006 pp. 3-6; Annex to Ntabakuze Closing Brief: Deposition September 2006 pp. 3-5.
Annex to Ntabakuze Closing Brief: Deposition September 2006 pp. 3-5.
24
T. 18 September 2006 p. 19; Annex to Ntabakuze Closing Brief: Deposition September 2006 p. 5.
25
Bagosora, T. 26 October 2005 p. 58.
26
T. 21 September 2006 pp. 48-49.
27
Prosecution Exhibit 339 (Letter from Augustin Bizimana of 11 August 1994: Reorganisation of the Rwandan
Armed Forces); Prosecution Exhibit 415 (RDR: Minutes of founding meeting).
28
T. 18 September 2006 p. 11. See also Annex A.2 concerning his arrest and detention.
29
Nsengiyumva Defence Exhibit 212 (personal identification sheet); Nsengiyumva Defence Exhibit 213
(Curriculum Vitae), pp.1-6.
23
Judgement and Sentence
11
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
65.
Nsengiyumva began his career as a police officer in the Kigali Detachment but was
soon transferred to Gisenyi. In June 1973, the police was integrated with the army under the
name of National Guard. In September 1973, Nsengiyumva became instructor at the École
des Sous Officiers (ESO) in Butare. From December 1973, he served in Kigali as an officer
within the General Staff of the Rwandan Army in the G-1 department responsible for
personnel administration. As first lieutenant, between March 1974 and December 1976, he
was a private secretary as well as aide-de-camp to President Habyarimana.30
66.
In December 1976, Nsengiyumva, still a first lieutenant, was appointed the head of G2 in the General Staff of the Rwandan Army in charge of military intelligence where he
remained until August 1981, while receiving promotions to captain and commander. From
August 1981, as a commander, he replaced Colonel Félicien Muberuka as interim
commander of Ruhengeri Commando Battalion. Nsengiyumva undertook military training at
the Staff Command School in Compiègne, France between February and July 1982. Between
September 1982 and December 1983, he attended France’s War College.31
67.
In October 1984, Nsengiyumva, now a major, was reappointed as G-2 at the army
headquarters with responsibility for military intelligence. His primary role was to gather and
analyse intelligence relating to the security of the army as well as the internal and external
security of Rwanda.32 He would then prepare reports for President Habyarimana who was
also Minister of Defence and chief of staff of the armed forces.33
68.
After Colonel Mayuya’s assassination in April 1988, Nsengiyumva was appointed to
replace him as the commander of Camp Kanombe and head of the Para Commando Battalion.
He stayed in that post for two months. In June 1988, he handed over command of Camp
Kanombe to Bagosora and of the Para Commando Battalion to Ntabakuze. Nsengiyumva
then returned to his post as G-2, which he held until June 1993.34
69.
As chief of military intelligence, Nsengiyumva was involved in several missions and
commissions dealing with important matters of national security.35 In February 1988, he was
a member of a mission to Kampala, Uganda addressing the problem of Rwandan refugees in
Uganda. In September 1990, he participated in negotiating a trilateral agreement between
Uganda, Rwanda and Zaire under which none of the countries would host armed groups
aimed at attacking another. He was a member of the Enemy Commission that Bagosora
30
T. 4 October 2006 pp. 2-3; T. 11 October 2006 p. 78; Nsengiyumva Defence Exhibit 213 (Curriculum Vitae),
pp. 1, 4.
31
Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp. 2, 5.
32
T. 4 October 2006 pp. 5-6.
33
Id. pp. 5-6; T. 11 October 2006 p. 78; Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp. 2, 5.
34
T. 4 October 2006 p. 6; T.11 October 2006 p. 79; Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp.
2, 5.
35
Nsengiyumva participated in drafting several reports for the government including a report entitled “Causes of
the wind from the east”, dated 22 May 1990 (Nsengiyumva Defence Exhibit 6; T. 4 October 2006 p. 10);
document dated 1 December 1991 regarding the new terrorism strategy of RPF; Nsengiyumva, T. 9 October
2006 p. 33; Nsengiyumva, T. 11 October 2006 p. 80; report dated 2 July 1992 entitled “Internal Security”
(Prosecution Exhibit 20A); and a document dated 27 July 1992 “Mood of the military and civilians”
(Prosecution Exhibit 21); Nsengiyumva, T. 11 October 2006 pp. 82-83. See Nsengiyumva Defence Exhibit 213
(Curriculum Vitae), pp. 6-7.
Judgement and Sentence
12
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
chaired (III.2.2). Afterwards, he was appointed chair of a different commission in November
1992 to assess various scenarios relating to potential enemy threats against Rwanda. 36
70.
On 13 June 1993, Nsengiyumva became commander of the Gisenyi operational
sector.37 He also served as an ex officio member of the Prefectoral Security Council of
Gisenyi. In June 1994, he was asked to serve as Liaison Officer for France’s Operation
Turquoise deployment to Rwanda.38
71.
Nsengiyumva left for Goma, Zaire, on 17 July 1994. He later moved to the Mugunga
Refugee Camp, approximately 10 kilometres from the city, before departing for Cameroon.39
While there, he was part of the Cameroonian wing of the Movement for the Return of
Refugees and Democracy to Rwanda (RDR).40 Nsengiyumva was arrested on 27 March 1996
and transferred to the Tribunal on 23 January 1997.41
36
Prosecution Exhibit 13.1 (Definition de L’Eni, Bureau Du G-2, AR, 21 Sept. 1992); Nsengiyumva Defence
Exhibit 213 (Curriculum Vitae), pp. 6-7; T. 4 October 2006 pp. 17, 29; T. 9 October 2006 p. 61; T. 12 October
2006 p. 2.
37
Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp. 2, 7; T. 4 October 2006 pp. 17, 20.
38
Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), pp. 2-3. Nsengiyumva did not take up this position
since Gisenyi prefecture did not become part of Operation Turquoise’s zone of operation. See T. 4 October 2006
pp. 17-18.
39
Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), p. 3.
40
Prosecution Exhibit 419 (RDR: United Nations Security Council Misled About the Presumed “Tutsi
Genocide” in Rwanda).
41
Nsengiyumva Defence Exhibit 213 (Curriculum Vitae), p. 3. See also Annex A.3 concerning Nsengiyumva’s
arrest and detention.
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CHAPTER II:
1.
PRELIMINARY ISSUES
INTRODUCTION
72.
In their Closing Briefs, the four Accused challenge various aspects of the fairness of
the proceedings. The Prosecution did not mention these issues in its Closing Brief or during
the oral submissions. Many of them have been addressed by the Chamber at various stages of
the trial. Below the Chamber will consider the Defence submissions concerning the right to
trial without undue delay (II.2), the right to an initial appearance without delay (II.3),
provisional detention (II.4), the right to notice (II.5), the right to be present at trial (II.6), the
admission of documents (II.7) and the Prosecution’s disclosure obligations (II.8).
2.
TRIAL WITHOUT UNDUE DELAY
73.
The Defence teams claim that the right to trial without undue delay was violated.42
The Bagosora Defence refers exclusively to events which occurred before the trial opened in
2002. In particular, seven months elapsed from the Tribunal in August 1996 confirmed his
Indictment and ordered his continued detention in Cameroon until he pleaded guilty before
the Tribunal in March 1997. Furthermore, his trial was initially scheduled to start in March
1998, but postponed because the Prosecution requested the joinder of his case with 28 others,
which failed, and then ultimately with Kabiligi, Ntabakuze and Nsengiyumva, which
succeeded. These efforts at joinder delayed the commencement of his trial for four years.43
74.
The Kabiligi and Ntabakuze Defence teams challenge the length of the proceedings
from their arrest in 1997 until the delivery of the judgement, arguing that the 11 year process
cannot constitute a reasonable delay. While the Ntabakuze Defence does not make any
detailed submissions in this regard, the Kabiligi Defence argues that there is no jurisprudence
supporting 11 years of proceedings. Although the case is complex, it was made unnecessarily
complicated by the Prosecution’s request to join the four Accused and other issues such as
translation, Prosecution staffing and availability of judges. The delay caused prejudice to
Kabiligi because some witnesses died, such as Witness LG-1, who would have refuted
allegations against him.44
75.
The right to be tried without undue delay is guaranteed by Article 20(4)(c) of the
Statute. The Appeals Chamber has pointed out that this right only protects the accused
against undue delay, which has to be decided on a case by case basis.45 The following factors
are relevant: (a) the length of the delay; (b) the complexity of the proceedings (the number of
counts, the number of accused, the number of witnesses, the quantity of evidence, the
complexity of the facts and of the law); (c) the conduct of the parties; (d) the conduct of the
authorities involved; and (e) the prejudice to the accused, if any.46
42
The Nsengiyumva Defence team did not expressly raise this challenge in its Closing Brief. However, in the
context of its notice challenge, it does note the delay in Nsengiyumva’s trial due to amendments of the
Indictment. See Nsengiyumva Closing Brief, paras. 19-26.
43
Bagosora Closing Brief, paras. 1915-1929.
44
Kabiligi Closing Brief, paras. 53-75; Ntabakuze Closing Brief, para. 2627.
45
Nahimana et al. Appeal Judgement, para. 1074.
46
Id. para. 1075. See also Mugiraneza, Decision on Prosper Mugiraneza’s Interlocutory Appeal from Trial
Chamber II Decision of 2 October 2003 Denying the Motion to Dismiss the Indictment, Demand Speedy Trial
and for Appropriate Relief (AC), 27 February 2004, p. 3.
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76.
With respect to Bagosora’s time in Cameroon, the Chamber recalls that he was
arrested there on 9 March 1996 pursuant to a Belgian warrant (Annex A.1). He was only
detained pursuant to the Tribunal’s authority on 17 May 1996 when the Tribunal issued an
order for Belgium to defer its jurisdiction and for Bagosora’s provisional detention and
transfer to Arusha. On 16 July 1996, the Tribunal issued a further order for his continued
detention and reiterated its request for transfer. Bagosora’s Indictment was confirmed on 10
August 1997. He arrived at the Tribunal detention facility on 23 January 1997, appeared
before Trial Chamber II on 20 February 1997, and pleaded not guilty on 7 March 1997.
77.
The Defence submissions do not show that the period from Bagosora’s arrest to his
transfer to the Tribunal constituted undue delay, or that the delay was the Tribunal’s
responsibility. Whether there was any undue delay in holding Bagosora’s initial appearance
after his transfer is discussed below (II.3).
78.
Turning to the question of whether there has been undue delay in the trial generally, it
is common ground that the proceedings have been lengthy. This can be explained by the
particular complexity of the case. The three Indictments against the four Accused each
charged direct and superior responsibility and between 10 and 12 counts, including
conspiracy to commit genocide, genocide, complicity in genocide, direct and public
incitement to commit genocide, crimes against humanity (murder, extermination, rape,
persecution and other inhumane acts) and serious violations of Article 3 common to the
Geneva Conventions and Additional Protocol II (violence to life and outrages upon personal
dignity).47 Over the course of 408 trial days, the Chamber heard 242 witnesses, received
nearly 1,600 exhibits and issued around 300 written decisions.
79.
The Accused were senior military officers, allegedly individually responsible for
thousands of deaths which occurred throughout the country from April to July 1994. The
testimonies involved numerous sites and events. While a few of these accounts concerned
only one of the Accused, most of the evidence was relevant, either directly or
circumstantially, to two or more of them. The prominence of the Accused as well as their
alleged role in planning and executing the crimes committed in Rwanda required evidence
covering nearly four years, from October 1990 to July 1994.
80.
In the Nahimana et al. case, the Appeals Chamber held that a period of seven years
and eight months between the arrest of Jean-Bosco Barayagwiza and his judgement did not
constitute undue delay, apart from some initial delays which violated his fundamental rights.
In particular, the Appeals Chamber reasoned that Barayagwiza’s case was particularly
complex due to the multiplicity of counts, the number of accused, witnesses and exhibits as
well as the complexity of the facts and law. It further noted that comparisons with time
frames in domestic criminal courts were not particularly persuasive given the inherent
complexity of international proceedings.48
81.
Like the present case, the Nahimana et al. case involved multiple Indictments and
requests for amendments and joinder.49 This case is also two to three times the size of the
47
Only Nsengiyumva was charged with direct and public incitement to commit genocide.
Nahimana et al. Appeal Judgement, paras. 1076-1077.
49
Nahimana et al. Trial Judgement, paras. 20-38.
48
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Nahimana et al. case.50 There was a need for intervals between the trial segments to allow the
parties to prepare in view of the massive amounts of disclosure relevant to the case, the need
to translate a number of documents, and the securing of witnesses and documents located
around the world. Extensive cross-examination by four Defence teams took time.
82.
As mentioned above, the length of the trial proceedings is largely due to the scope and
gravity of the crimes charged against the Accused.51 There is no undue delay in the
proceedings as a whole that is specifically attributable to any party or the Tribunal. It is true
that some of the individual cases could have started earlier if the Prosecution had not
requested amendment of the Indictments and joinder. However, these procedures are
provided for in the Rules and were warranted in order to reflect the full scope and joint nature
of their alleged criminal conduct. At each stage, the Chamber considering the requests fully
heard the parties and took into account issues of prejudice and delay before determining that
they were warranted in the interests of justice.52 The Defence teams have not identified any
particular error in these determinations. After hearing the evidence it is clear that much of it
was relevant to several Accused, as described above and reflected in the Chamber’s factual
findings.
83.
Turning to any prejudice to the Accused caused by the length of the proceedings, the
Kabiligi Defence has pointed to the death of Witness LIG-1, which it claimed would have
contradicted the allegations made by Witness HN. However, the Chamber has not accepted
Witness HN’s evidence against Kabiligi and thus there can be no prejudice (III.2.6.2).
Bagosora and Ntabakuze made no submissions concerning the prejudice they faced, and the
Chamber cannot identify any, in particular since both have received life sentences in view of
the gravity of their crimes. Furthermore, the Chamber notes that it took a number of steps to
increase the efficiency of the proceedings, including, among other things, ordering a
significant reduction in the Prosecution’s witness list from 225 anticipated witnesses to the 80
witnesses which were ultimately called.53 During the Defence case, 160 witnesses were heard
in the course of 201 trial days.
84.
In view of the size and complexity of this trial, in particular in comparison to the
Nahimana et al. case, the Chamber does not consider that there has been any undue delay in
the proceedings.
50
In particular, the Trial Chamber in Nahimana et al. heard 93 witnesses over the course of 241 trial days. See
Nahimana et al. Trial Judgement, para. 50. This Chamber heard 149 more witnesses and sat an additional 167
days.
51
In the Rwamakuba case, the Appeals Chamber dismissed in part Rwamakuba’s assertion that there was undue
delay in his trial proceedings, which lasted more than eight years, because he did not address the complexity of
his case when it was joined with the Karemera et al. case, which involved a government wide joint criminal
enterprise. See Rwamakuba, Decision on Appeal against Decision on Appropriate Remedy (AC), 13 September
2007, para. 13.
52
See, e.g., Decision on the Prosecutor’s Motion for Joinder, 29 June 2000; Bagosora, Decision on the
Prosecution’s Request for Leave to Amend the Indictment (TC), 12 August 1999; Kabiligi and Ntabakuze,
Decision on the Prosecutor’s Motion to Amend the Indictment (TC) 8 October 1999; Nsengiyumva, Decision of
the Prosecution’s Request for Leave to Amend the Indictment (TC), 2 September 1999.
53
In fact, from this Chamber took over the trial in June 2003, it heard 80 Prosecution witnesses in the course of
170 trial days, ending on 14 October 2004. The commencement of the Defence case, which was originally
scheduled for commencement from January 2005, was postponed to 11 April 2005, because a new Lead
Counsel for Kabiligi had to be appointed (see Annex A.5.2).
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3.
INITIAL APPEARANCE WITHOUT DELAY
85.
The Kabiligi Defence argues that Kabiligi was denied the right to an initial
appearance without delay. It submits that, following his arrest on 18 July 1997, he was only
brought before a judge of the Tribunal after a period of 183 days.54 The Bagosora Defence
also complains about the delay in Bagosora’s initial appearance after his arrest in Cameroon,
but only mentions this briefly in connection with its general submissions concerning undue
delay in the trial proceedings. It notes that he was transferred to the Tribunal in January 1997
and only entered his plea in March of that year.55
86.
The Nsengiyumva Defence notes the delay between his transfer on 23 January 1997
and his initial appearance on 19 February 1997 in the context of his submissions on notice,
but does not specifically claim that his rights were violated.56 The Ntabakuze Defence does
not challenge the delay between his transfer and appearance before a judge.
87.
In accordance with Rules 40 bis (J) and 62, a “suspect” or an “accused” has the right
to be brought before a judge or a Trial Chamber without delay upon his transfer to the
Tribunal. A violation of this right may entail a remedy, including an apology, reduction of
sentence or financial compensation in the event of an acquittal. In each case where the
Appeals Chamber has accorded a remedy for a violation of this right, the accused promptly
challenged the violation.57
Kabiligi
88.
A review of the procedural history of this case shows that the Kabiligi Defence
submissions as to when Kabiligi was first brought before a judge of the Tribunal are incorrect
(Annex A.2). When he was arrested and transferred to the Tribunal’s detention facility on 18
July 1997, he was provisionally detained without an Indictment as a suspect pursuant to Rule
40 bis. Kabiligi was brought before a judge of the Tribunal on 14 August 1997, a period of 27
days after his transfer.58 His identity was confirmed, and he had the opportunity to raise any
concerns through his assigned counsel. Kabiligi appeared with counsel before a judge a
second time a few days later, on 18 August, where the decision on his continued provisional
detention was read into the record.59 On 15 September 1997, Kabiligi and his counsel
appeared a third time.60 His Indictment was confirmed on 15 October 1997, and his initial
appearance was held on 17 February 1998, or 125 days later.61
89.
The Kabiligi Defence did not raise the issue of delay during any of his initial hearings
or in motions which challenged various other aspects of the proceedings. It also does not
appear that the matter was mentioned at any subsequent period until the Defence Closing
Brief, some nine years after these delays occurred.
54
Kabiligi Closing Brief, paras. 47-50. The Kabiligi Defence erroneously states that the initial appearance
occurred on 18 February 1997. It occurred one day earlier. See T. 17 February 1997.
55
Bagosora Closing Brief, para. 1919.
56
Nsengiyumva Closing Brief, para. 21.
57
Rwamakuba, Decision on Appeal against Decision on Appropriate Remedy (AC), 13 September 2007, paras.
3, 28; Kajelijeli Appeal Judgement, para. 324.
58
T. 14 August 1997 pp. 2-15.
59
T. 18 August 1997 pp. 2-4.
60
T. 15 September 1997 pp. 1-87.
61
T. 17 February 1998 pp. 3-32.
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90.
The Chamber considers that the Defence’s failure to promptly bring this challenge
indicates that any prejudice suffered by Kabiligi is at most minimal. This failure has also
prevented the development of a full record which would allow the Chamber to properly
determine to what extent the delay is attributable to the Tribunal as opposed to any waiver of
the right or other circumstances attributable to the Defence.
91.
The 27 day period between Kabiligi’s transfer to the Tribunal on 18 July 1997 and his
first appearance before a judge on 14 August 1997 amounts to delay.62 In the present case,
there is no documentary evidence explaining the delay, but in view of its duration it is, on the
face of it, a violation of his right to be brought before a judge without delay. Assuming that at
least part of it was attributable to the Tribunal, the prejudice to Kabiligi appears to have been
limited. One of the key purposes of bringing a suspect promptly before a judge after his
transfer is to ensure that his rights are being respected.63 In this initial period, there was a
violation of Kabiligi’s right to counsel during a custodial interrogation by the Prosecution.
However, the Chamber has previously addressed that violation and accorded him a remedy
by denying the Prosecution’s request to admit the transcript of the interview into evidence
and excluding portions of other testimony based on it.64
92.
The 125 day period between the confirmation of Kabiligi’s Indictment on 15 October
1997 and his initial appearance on 17 February 1998 appears unduly lengthy. The initial
appearance of Ntabakuze, who was Kabiligi’s co-accused in their original joint Indictment,
occurred on 24 October 1997, nine days after its confirmation.65 Again, the record does not
clearly reflect why Kabiligi did not appear at this time. However, it is difficult to accept that
he would also not have been given his initial appearance at the same time as Ntabakuze
unless there had been some circumstances attributable to his counsel. This is confirmed by
documentary evidence which is available.
93.
After confirmation of the Indictment, the Registry attempted to make arrangements
with Kabiligi’s counsel on a convenient date for the initial appearance. This follows from a
letter of 18 November 1997 between Kabiligi’s counsel and the Registrar which alludes to
these consultations.66 In the letter, his counsel indicated that he had proposed early
December, which conflicted with the Tribunal’s recess. The letter also reflects that the
Registry had fixed 27 November 1997 as the date for Kabiligi’s initial appearance but that
counsel vigorously protested against this on several grounds, including both his professional
commitments and his objection to having a further hearing in the case until the disposition of
his motion filed on 25 September to annul the proceedings. Consequently, the 125 day delay
between the confirmation of Kabiligi’s Indictment and his initial appearance is not
62
The Chamber notes in passing that the delay is significantly less than the violations in the Rwamakuba and
Kajelijeli cases, where the accused were detained without being brought before a judge for 167 and 211 days,
respectively, for the most part without counsel, unlike Kabiligi. See Rwamakuba, Decision on Appeal against
Decision on Appropriate Remedy (AC), 13 September 2007, para. 28; Kajelijeli Appeal Judgement, para. 237.
63
Rwamakuba, Decision on Appeal against Decision on Appropriate Remedy (AC), 13 September 2007, para.
28.
64
Decision on Prosecutor’s Motion for the Admission of Certain Materials Under Rule 89 (C), 14 October 2004,
para. 21 (holding that Kabiligi’s statement was taken in violation of his right to assistance of counsel). See also
Decision on Kabiligi Motion for the Exclusion of Portions of Testimony of Prosecution Witness Alison Des
Forges (TC), 4 September 2006, paras. 2, 5.
65
T. 24 October 1997 pp. 3-32.
66
The Prosecution v. Gratien Kabiligi, Case No. 97-30-I, Letter of 18 November 1997 from Jean Yaovi Degli to
the Registrar, filed on 21 November 1997, RPP 90-89.
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attributable to the Tribunal. The Kabiligi Defence letter of 18 November 1997 and its
subsequent failure to bring this claim for nine years suggests that there was in fact a waiver of
the right to a prompt initial appearance. At any rate, the Chamber observes that at the time he
was represented by counsel who was actively challenging various aspects of the case. As
mentioned above, he had also been brought before a judge on several occasions prior to the
confirmation of his Indictment. Under these circumstances, the prejudice, if any, appears to
be minimal.
Bagosora
94.
Bagosora was transferred to the Tribunal on 23 January 1997 (Annex A.1). On 3
February, the Registry fixed the date of his initial appearance for 20 February.67 Bagosora’s
assigned counsel was not able to be present during the hearing because of problems with his
travel. Bagosora still made an initial appearance before Trial Chamber II on that day.68
During the hearing, he confirmed his identity and asked the Chamber to replace his assigned
counsel with Mr. Luc de Temmerman. He noted that Temmerman was present with him in
court and had originally been his first choice as assigned counsel. The Chamber did not
change the assignment, and, in the absence of Bagosora’s Tribunal counsel, it decided to
postpone the taking of his plea until 7 March 1997.
95.
The Chamber considers that any delay between Bagosora’s transfer and his initial
appearance should be calculated to 20 February 1997, when he first appeared before a Trial
Chamber. This period amounts to 28 days. The fact that he did not enter his plea at this time
cannot be attributed to the Tribunal since it resulted from the travel difficulties of his
assigned counsel which were beyond its control.
96.
The Chamber considers that the 28 day delay in holding Bagosora’s initial appearance
is too long and constitutes a violation of his right to be brought before a judge without
delay.69 The Bagosora Defence’s failure to raise this challenge until its Closing Brief
indicates that there was minimal, if any, prejudice as a result of this violation.
Conclusion
97.
According to the Appeals Chamber, any violation, even if it entails a relative degree
of prejudice, requires a proportionate remedy.70 The Appeals Chamber has also held that in
practice, the effective remedy for violations of fair trial rights will take the form of equitable
or declaratory relief.71 The delays found above are not like in Rwamakuba or Kajelijeli where
financial compensation or the reduction of a sentence are warranted. Those cases involved
excessive delays before the initial appearance and were coupled with other serious fair trial
rights violations including the right to counsel for extended periods. In the Chamber’s view,
67
The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Setting of the Date of the Initial Appearance,
3 February 1997, RP. 37.
68
T. 20 February 1997 pp. 2-9.
69
Again, the Chamber notes that the delay is less extensive than in the cases of Rwamakuba and Kajelijeli.
70
Rwamakuba, Decision on Appeal against Decision on Appropriate Remedy (AC), 13 September 2007, para.
24; Semanza Appeal Decision, para. 125.
71
Rwamakuba, Decision on Appeal against Decision on Appropriate Remedy (AC), 13 September 2007, para.
27.
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the appropriate remedy for the violation of the rights of Kabiligi and Bagosora in view of the
circumstances of this case is formal recognition that they occurred.
4.
RULE 40 BIS
98.
The Kabiligi and Ntabakuze Defence teams challenge various aspects of the
provisional detention ordered pursuant to Rule 40 bis.
99.
Rule 40 bis (C) provides that the provisional detention of a suspect may be ordered
for a period not exceeding 30 days from the day after the transfer of the suspect to the
Tribunal. The order must include the provisional charge and be served on the suspect and his
counsel. Rule 40 bis (F) allows a judge to extend this period for an additional 30 days after
hearing the parties and “before the end of the period of detention”. This period may be
extended twice for 30 days maximum but must not exceed 90 days in total after the date of
the transfer (Rule 40 bis (G) and (H)).
4.1
Extension of Provisional Detention
100. The Kabiligi Defence argues that Kabiligi’s provisional detention was illegally
extended because it violated Rule 40 bis. It submits that he was transferred to the Tribunal on
18 July and that the initial 30 day extension of his detention occurred on 18 August, 32 days
after his transfer.72
101. Judge Laïty Kama held a hearing on 14 August 1997 to determine whether Kabiligi’s
provisional detention should be extended. This was Kabiligi’s 27th day of provisional
detention, after his transfer. A decision by Judge Kama, dated 14 August, granted the
extension and noted that it was to run from 18 August, which was the first day of the new 30
day period.73 Judge Kama orally pronounced the decision on 18 August. It appears that the
decision to extend the provisional detention was taken within the initial 30 day period, but
only communicated to Kabiligi on the 31st day.74 Therefore, there is no violation of Rule 40
bis (F), as Kabiligi suggests.
102. Even if the one day delay in communicating the decision would be considered a
violation of the Rule, this was rectified during the second extension of his provisional
detention which was ordered on 16 September 1997. This would have been within the 30 day
period if the first extension had been announced on 17 August. Furthermore, the total period
of Kabiligi’s provisional detention did not exceed the maximum of 90 days allowed under the
Rules, as his Indictment was confirmed on 15 October 1997, the 89th day after his transfer.
103. The Kabiligi Defence did not raise this challenge until its Closing Brief, more than
nine years after the alleged violation of Rule 40 bis occurred. Given the circumstances
described above, the Chamber cannot identify any prejudice to Kabiligi.
72
Kabiligi Closing Brief, paras. 39-41.
Kabiligi, Decision on the Extension of the Provisional Detention for a Maximum Period of Thirty Days (in
Accordance with Rule 40 Bis (F) of the Rules of Procedure and Evidence) (TC), dated 14 August 1997. The
stamp on the original French version reflects that it was filed with the Registry on 20 August.
74
The Kabiligi Defence’s calculation of the length of his provisional detention – 32 days – does not take into
account that it runs from the day after the transfer.
73
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4.2
Notification of Charges
104. The Kabiligi and Ntabakuze Defence teams submits that the delay in informing the
Accused of the precise charges against them during their period of provisional detention
constitutes a serious injustice. In this respect, they were transferred to the Tribunal’s
detention facility on 18 July 1997, and their joint Indictment was confirmed on 15 October
1997.75
105. A suspect arrested by the Tribunal has the right to be informed promptly of the
reasons for his or her arrest.76 The Appeals Chamber has acknowledged that confirmation and
service of the indictment may follow some time after arrest, but the individual must be
informed in substance of the nature of the charges against him at the time of his arrest or
shortly thereafter.77 In the Semanza case, the Appeals Chamber concluded that a reference to
the accused being provisionally detained “for serious violations of international humanitarian
law and crimes within the jurisdiction of the Tribunal” adequately described the substance of
the charges to satisfy the requirement of notice at that stage.78
106. Rule 40 bis (D) requires the order of transfer to state the “provisional charge” against
the suspect. The order for Kabiligi’s transfer indicated that he was the G-3 officer in charge
of operations and exercised de facto and de jure authority over officers and soldiers of the
Rwandan army, including certain units of the Presidential Guard, Para Commando Battalion
and Reconnaissance Battalion, who participated in massacres of the Tutsi civilian population
with the assistance of militiamen.79 Ntabakuze’s transfer order stated that he was the
commander of the Para Commando Battalion and exercised de facto and de jure authority
over members of his unit. It further noted that these subordinates participated in massacres of
the Tutsi civilian population along with other units, and specified that they killed Hutu and
Tutsi politicians at the camp of the Presidential Guard.80 Both orders also referred to possible
charges of genocide, crimes against humanity and serious violations of Article 3 Common to
the Geneva Conventions and Additional Protocol II.
107. In the Chamber’s view, the orders for the transfer of Kabiligi and Ntabakuze
adequately informed them of the substance of the provisional charges against them.
5.
5.1
NOTICE OF CHARGES
Introduction
108. Throughout the trial, the Chamber extensively considered the issue of notice in a
series of decisions and oral rulings.81 Numerous challenges have been renewed by the
75
Kabiligi Closing Brief, paras. 42-46; Ntabakuze Closing Brief, paras. 2599-2608.
Semanza, Decision (AC), 31 May 2000, para. 78.
77
Id. para. 78, fn. 104.
78
Id. paras. 83-85.
79
Kabiligi, Order for Transfer and Provisional Detention (In Accordance with Rule 40 Bis of the Rules) (TC),
16 July 1997, p. 3.
80
Ntabakuze, Order for Transfer and Provisional Detention (In Accordance with Rule 40 Bis of the Rules) (TC),
16 July 1997, p. 3.
81
The most significant decisions are: Decision on Bagosora Motion for the Exclusion of Evidence Outside the
Scope of the Indictment (TC), 11 May 2007; Decision Reconsidering Exclusion of Evidence Related to Accused
Kabiligi (TC), 23 April 2007; Decision Reconsidering Exclusion of Evidence Following Appeals Chamber
Decision (TC), 17 April 2007; Decision on Nsengiyumva Motion For the Exclusion of Evidence Outside the
76
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Defence in their Closing Briefs. The Defence teams challenge the notice provided to the
Accused of the material facts underpinning the charges in their respective Indictments.
109. The specific challenge to a particular factual allegation is addressed in the relevant
section of the factual findings. In many instances, the Chamber has not revisited those
decisions in its factual findings, in particular where the Prosecution did not prove its case. It
has nevertheless considered the challenges in view of the general principles, as recapitulated
below.
5.2
Law
110. The charges against an accused and the material facts supporting those charges must
be pleaded with sufficient precision in an indictment so as to provide notice to the accused.82
The Prosecution is expected to know its case before proceeding to trial and cannot mould the
case against the accused in the course of the trial depending on how the evidence unfolds.83
Defects in an indictment may come to light during the proceedings because the evidence
turns out differently than expected; this calls for the Trial Chamber to consider whether a fair
trial requires an amendment of the indictment, an adjournment of proceedings, or the
exclusion of evidence outside the scope of the indictment.84 In reaching its judgement, a Trial
Chamber can only convict the accused of crimes that are charged in the indictment.85
111. The Appeals Chamber has held that criminal acts that were physically committed by
the accused personally must be set forth in the indictment specifically, including where
feasible “the identity of the victim, the time and place of the events and the means by which
the acts were committed”.86 Where it is alleged that the accused planned, instigated, ordered,
or aided and abetted in the planning, preparation or execution of the alleged crimes, the
Prosecution is required to identify the “particular acts” or “the particular course of conduct”
on the part of the accused which forms the basis for the charges in question.87
112. If the Prosecution intends to rely on the theory of superior responsibility to hold an
accused criminally responsible for a crime under Article 6 (3) of the Statute, the Indictment
should plead the following: (1) that the accused is the superior of subordinates sufficiently
identified, over whom he had effective control – in the sense of a material ability to prevent
or punish criminal conduct – and for whose acts he is alleged to be responsible; (2) the
criminal conduct of those others for whom he is alleged to be responsible; (3) the conduct of
Scope of the Indictment (TC), 15 September 2006; Decision on Kabiligi Motion for Exclusion of Evidence
(TC), 4 September 2006; Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006.
82
Muvunyi Appeal Judgement, para. 18; Seromba Appeal Judgement, paras. 27, 100; Simba Appeal Judgement
para. 63; Muhimana Appeal Judgement, paras. 76, 167, 195; Gacumbitsi Appeal Judgement, para. 49;
Ndindabahizi Appeal Judgement, para. 16.
83
Muvunyi Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27. See also Kvočka et al.
Appeal Judgement, para. 30; Niyitegeka Appeal Judgement, para. 194; Kupreškić et al. Appeal Judgement, para.
92.
84
Muvunyi Appeal Judgement, para. 18; Ntagerura et al. Appeal Judgement, para. 27. See also Kvočka et al.
Appeal Judgement, para. 31; Niyitegeka Appeal Judgement, para. 194; Kupreškić et al. Appeal Judgement, para.
92.
85
Muvunyi Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 326; Ntagerura et al. Appeal
Judgement, para. 28; Kvočka et al. Appeal Judgement, para. 33.
86
Muhimana Appeal Judgement, para. 76; Gacumbitsi Appeal Judgement, para. 49; Ntakirutimana Appeal
Judgement, para. 32, quoting Kupreškić et al. Appeal Judgement, para. 89. See also Ndindabahizi Appeal
Judgement, para. 16.
87
Ntagerura et al. Appeal Judgement, para. 25.
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the accused by which he may be found to have known or had reason to know that the crimes
were about to be committed or had been committed by his subordinates; and (4) the conduct
of the accused by which he may be found to have failed to take the necessary and reasonable
measures to prevent such acts or to punish the persons who committed them.88
113. A superior need not necessarily know the exact identity of his or her subordinates who
perpetrate crimes in order to incur liability under Article 6 (3) of the Statute.89 The Appeals
Chamber has held that an accused is sufficiently informed of his subordinates where they are
identified as coming from a particular camp and under their authority.90 It has also held that
physical perpetrators of the crimes can be identified by category in relation to a particular
crime site.91
114. The Appeals Chamber has previously stated that “the facts relevant to the acts of
those others for whose acts the accused is alleged to be responsible as a superior, although the
Prosecution remains obliged to give all the particulars which it is able to give, will usually be
stated with less precision because the detail of those acts are often unknown, and because the
acts themselves are often not very much in issue”.92 Moreover, in certain circumstances, the
sheer scale of the alleged crimes makes it impracticable to require a high degree of specificity
in such matters as the identity of the victims and the dates of the commission of the crimes.93
115. Finally, the Appeals Chamber has held that a Trial Chamber may infer knowledge of
the crimes from the widespread and systematic nature and a superior’s failure to prevent or
punish them from their continuing nature. These elements follow from reading the Indictment
as a whole.94
116. An indictment lacking this precision is defective; however, the defect may be cured if
the Prosecution provides the accused with timely, clear, and consistent information detailing
the factual basis underpinning the charge.95 The principle that a defect in an indictment may
be cured is not without limits.96 The Appeals Chamber has held that a Pre-Trial Brief in
certain circumstances can provide such information.97
88
Muvunyi Appeal Judgement, para. 19; Nahimana et al. Appeal Judgement, para. 323; Ntagerura et al. Appeal
Judgement, paras. 26, 152. See also Naletilić and Martinović Appeal Judgement, para. 67; Blaškić Appeal
Judgement, para. 218.
89
Muvunyi Appeal Judgement, para. 55; Blagojević and Jokić Appeal Judgement, para. 287.
90
Muvunyi Appeal Judgement, para. 56; Ntagerura et al. Appeal Judgement, paras. 140, 141, 153.
91
See, e.g., Simba Appeal Judgement, paras. 71-72 (concerning identification of other members of a joint
criminal enterprise), quoting Simba Trial Judgement, paras. 393-393.
92
Ntagerura et al. Appeal Judgement, para. 26 fn. 82, quoting Blaškić Appeal Judgement, para. 218. See also
Muvunyi Appeal Judgement, para. 58.
93
Muvunyi Appeal Judgement, para. 58; Muhimana Appeal Judgement, para. 79; Gacumbitsi Appeal
Judgement, para. 50; Kupreškić et al. Appeal Judgement, para. 89.
94
Muvunyi Appeal Judgement, para. 62.
95
Id. para. 20; Seromba Appeal Judgement, para. 100; Simba Appeal Judgement, para. 64; Muhimana Appeal
Judgement, paras. 76, 195, 217; Gacumbitsi Appeal Judgement, para. 49. See also Ntagerura et al. Appeal
Judgement, paras. 28, 65.
96
In this respect, the Appeals Chamber has previously emphasized: “[T]he “new material facts” should not lead
to a “radical transformation” of the Prosecution’s case against the accused. The Trial Chamber should always
take into account the risk that the expansion of charges by the addition of new material facts may lead to
unfairness and prejudice to the accused. Further, if the new material facts are such that they could, on their own,
support separate charges, the Prosecution should seek leave from the Trial Chamber to amend the indictment
and the Trial Chamber should only grant leave if it is satisfied that it would not lead to unfairness or prejudice to
the Defence.” See Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law
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117. In this respect, the Chamber notes that the Pre-Trial Brief in this case was filed on 21
January 2002. On 23 May 2002, the Chamber ordered the Prosecution to revise its Pre-Trial
Brief to clearly indicate the paragraph in the Indictment to which the summaries in its annex
were relevant.98 The Prosecution filed its Revised Pre-Trial Brief on 7 June 2002, which
consisted of a chart listing the relevant witness pseudonyms next to a given paragraph in the
Indictment. Thus, both briefs must be read together. On 4 November 2002, the Chamber held
that the Revised Pre-Trial Brief was controlling to the extent that there were any
inconsistencies between it and the original.99 Accordingly, the Chamber does not consider
that such difference amount to inconsistent notice. The Chamber recalls that the Revised PreTrial Brief was filed almost a year before the Prosecution led the vast majority of its
evidence.
5.3
General Challenges to the Indictments
118. The Bagosora and Nsengiyumva Defence teams have made lengthy general
challenges to the notice provided to the Accused, mostly consisting of recitations of various
legal principles.100 The Appeals Chamber has held, however, that blanket objections that the
entire indictment is defective are insufficiently specific.101 Some more detailed arguments
will be addressed here.
119. In particular, the two Defence teams argue that the Prosecution’s delay in bringing
amendments, expanding its Indictment several years after the arrest and transfer of the
Accused, reflects the evolving nature of the cases against them as well as a lack of prompt
and concise notice of the charges.102 However, the amendment of an Indictment is allowed
under the Rules and is permissible even during the course of a trial.103 In the present case, the
amendments were allowed after consideration of possible prejudice. They also occurred some
three years before the commencement of trial. In the Chamber’s view, this allowed sufficient
time to prepare for any new allegations.
120. The Nsengiyumva Defence submits that many of the original witnesses that formed
the basis of the confirmation of the Indictment were not ultimately called in the case against
Nsengiyumva.104 There is, however, no requirement for the Prosecution to rely on the same
Raised by the 29 June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), 18 September
2006, para. 30 (internal citations omitted).
97
Muhimana Appeal Judgement, para. 82; Gacumbitsi Appeal Judgement, paras. 57, 58; Ntakirutimana Appeal
Judgement, para. 48; Naletilić and Martinović Appeal Judgement, para. 45.
98
Decision on Defence Motions of Nsengiyumva, Kabiligi, and Ntabakuze Challenging the Prosecutor’s PreTrial Brief and on the Prosecutor’s Counter-Motion (TC), 23 May 2002, para. 19.
99
Decision (Motion by Aloys Ntabakuze’s Defence for Execution of the Trial Chamber’s Decision of 23 May
2002 on the Prosecutor’s Pre-Trial Brief, Dated 21 January 2002, and Another Motion on a Related Matter
(TC), 4 November 2002, para. 14.
100
Bagosora Closing Brief, paras. 1930-2022; Nsengiyumva Closing Brief, paras. 18-68. The Kabiligi and
Ntabakuze Defence teams have mostly raised specific challenges to the relevant paragraphs of the Indictment
and the factual allegations advanced by the Prosecution. These challenges are considered in the Chamber’s
factual findings.
101
Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29
June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), 18 September 2006, para. 46.
102
Bagosora Closing Brief, paras. 1934-1935; Nsengiyumva Closing Brief, paras. 19-24.
103
Karemera et al., Decision on Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8
October 2003 Denying Leave to File an Amended Indictment, 19 December 2003, paras. 24, 29.
104
Nsengiyumva Closing Brief, paras. 20, 32.
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evidence at trial as that used in connection with the confirmation of the Indictment. The
statements of the additional witnesses were disclosed in advance of trial in accordance with
the Rules and the applicable witness protection decisions. Very few witnesses were added
during the course of the trial.
121. The Nsengiyumva Defence refers to the Chamber’s approach in deferring certain
decisions on notice until the end of the case. The Bagosora Defence complains that the
Chamber delayed consideration of its motion for exclusion until after it filed its Closing
Brief.105 The Chamber recalls that exclusion of evidence is only one of several possible
remedies and not the exclusive one. The selection of an appropriate remedy is well within a
Chamber’s discretion which will take into consideration the particular circumstances of the
case.106 A Chamber also has the authority under Rule 89 (C) to admit evidence on unpleaded
facts, even where it is not possible to convict, to the extent it has probative value with respect
to another relevant issue in the case.107 At the time of admission, a Chamber is not always in
the position to fully appreciate the evidentiary value of all aspects of a disputed witness’s
testimony, in particular whether it might be relevant with respect to the overall credibility of
the witness or other evidence, and thus may properly defer consideration to the final analysis
of all the evidence.108
122. The Bagosora Defence challenges the organisation and argumentation of the
Prosecution Closing Brief.109 However, a closing brief is not a relevant document in
determining whether an accused had notice of the charges against him.
5.4
Cumulative Effect of Defects in the Indictments
123. In its notice decisions and judgment, the Chamber has acknowledged that in a number
of instances the Indictments against the Accused were defective with respect to several of the
specific factual allegations advanced by the Prosecution. It determined that in many of these
cases the defects were cured by timely, clear and consistent information, normally found in
the Pre-Trial Brief or a motion to add a witness. The Appeals Chamber has held that, even if
a Trial Chamber finds that the defects in the indictment have been cured by post-indictment
submissions, it should consider whether the extent of these defects materially prejudiced the
accused’s right to a fair trial by hindering the preparation of a proper defence.110
105
Id. paras. 35-37; Bagosora Closing Brief, paras. 1952-1956.
Simba, Decision on the Admissibility of Evidence of Witness KDD (TC), 1 November 2004, para. 15, citing
Krnojelac Appeal Judgement, paras. 142-144; Ntahobali and Nyiramasuhuko, Decision on the Appeals by
Pauline Nyiramasuhuko and Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare
Parts of the Evidence of Witnesses RV and ABZ Inadmissible” (AC), 2 July 2004, para. 16.
107
Ntahobali and Nyiramasuhuko, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom
Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of Witnesses RV and
ABZ Inadmissible” (AC), 2 July 2004, paras. 14-16.
108
Simba, Decision on the Admissibility of Evidence of Witness KDD (TC), 1 November 2004, para. 18. See
also Karemera et al., Decision on Interlocutory Appeal Regarding Witness Proofing (AC), 11 May 2007, para.
12 (“the Appeals Chamber observes that the Prosecution’s act of disclosing new material to the Defence as a
result of a proofing session does not mean that the Trial Chamber will allow the evidence to be led or that it will
ultimately credit the testimony in its final assessment of the case.”).
109
Bagosora Closing Brief, paras. 2004-2022.
110
Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29
June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), 18 September 2006, para. 48.
106
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124. The Chamber observes that, where defects have been cured, they relate to more
generally worded paragraphs and do not add new elements to the case. The curing for the
most part was based on the Pre-Trial Brief and its revision filed nearly a year before the
Prosecution began presenting the majority of its witnesses in June 2003.111 Furthermore, there
have been a number of breaks throughout the proceedings which have allowed the parties to
conduct investigations and prepare for evidence in upcoming trial sessions. The Chamber has
also frequently exercised its discretion, where appropriate, to exclude evidence, to postpone
all or part of a witness’s testimony, and to grant recall for further cross-examination.
125. At its core, this case is, and has always been, about the alleged role of the Accused as
senior military leaders who were involved in planning and preparations of the genocide and
then used their authority to unleash the violence which occurred after the death of President
Habyarimana. The Indictments clearly plead this role. When the individual Indictments are
read as a whole they reasonably identify their subordinates by category with further
geographic and temporal details related to individual events. The specific massacres and
crimes, whether specifically pleaded in the Indictments or cured through timely, clear and
consistent information, remain largely undisputed. The identity of many of the principal
perpetrators are also not for the most part in dispute. Knowledge of the crimes has flowed
mainly from their open and notorious or wide-spread and systematic nature. Furthermore, the
Accused’s exercise of authority to advance the crimes or fail to prevent them is a product of
their clearly identified positions and the organised nature of the attacks. Notice of their
knowledge as well as their participation in the crimes follow from reading the Indictments as
a whole.
126. In the final analysis, the Defence teams’ ability to prepare their case is amply
demonstrated by their ultimate success in impeaching much of the Prosecution’s evidence
against them, through cross-examination, argumentation and evidence. A careful
consideration of the Defence conduct during the course of trial and in their final submissions
plainly reflects that they have mastered the case.
127. Accordingly, the trial has not been rendered unfair due to the number of defects in the
Indictments which have been cured.
6.
PRESENCE AT TRIAL
128. The Nsengiyumva Defence argues that the Accused was denied the right to be present
at trial because the Chamber continued proceedings in his absence when he was medically
unable to attend proceedings. It submits that, between 8 November and 13 December 2006,
Nsengiyumva was unable to instruct his counsel with respect to the testimonies of Witnesses
ALL-42, LAX-2, FB-25, Bernard Lugan, DELTA, André Ntagerura, Luc Marchal and
Jacques Duvivier. To demonstrate prejudice, it incorporates by reference its motion to recall
these witnesses, filed on 23 January 2007.112
111
Trial Chamber III heard two witnesses, Alison Des Forges and Witness ZF, from September to December
2002. The case was transferred to Trial Chamber I in June 2003. Between 16 June 2003 and 14 October 2004,
the Prosecution presented its remaining 80 witnesses. See Annex A.5.2.
112
Nsengiyumva Closing Brief, paras. 3308-3341. The Nsengiyumva Defence refers to its motion entitled
Nsengiyumva Confidential Defence Motion for the Recall of Witnesses ALL-42, LAX-2, FB-25, Bernard
Lugan, DELTA, [André] Ntagerura, Luc Marchal and Duvivier All Who Testified in the Session Beginning
[10th] November to 13th December 2006 in View of the Material Prejudice Arising in the Absence of the
Accused During Their Testimony, 23 January 2007 (“Nsengiyumva Recall Motion”).
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129. Article 20 (4)(d) of the Statute provides that an accused has a right “to be tried in his
or her presence”. The Appeals Chamber has interpreted this right to mean the Accused’s
physical presence in the courtroom. Any restriction on this fundamental right must be in
service of a sufficiently important objective and must impair the right no more than is
necessary to accomplish the objective.113 The Appeals Chamber held that the right to an
expeditious trial guaranteed to all accused in a joint trial is a relevant consideration for a Trial
Chamber in balancing whether or not to proceed in the absence of one of the Accused due to
illness. However, the question of whether a witness’s testimony is likely to concern the
alleged acts and conduct of a co-accused only is not a relevant concern.114
130.
The Chamber considered Nsengiyumva’s submissions on this issue extensively
during the course of the trial. Based on a medical opinion, it found that his absence was
justified due to his medical condition on 8, 9, 10 and 13 November 2006. During these four
days, five witnesses were heard: Kabiligi Defence Witnesses ALL-42, YC-3, LAX-2 and FB25, as well as Bagosora Expert Witness Bernard Lugan. Nsengiyumva attended the
proceedings on 14 November, but was absent for the remainder of the trial session
concluding on 12 December. The Chamber determined that after 13 November,
Nsengiyumva’s absence had not been substantiated by the Tribunal’s medical section.115
131. In the Chamber’s view, there was no violation of Nsengiyumva’s right to be present
between 8 and 13 November. His Defence case had closed; measures had been taken to
address all reasonable concerns raised by the Defence; there was no showing of the relevance
to the Accused of any testimony heard in his absence; and the risk of losing witnesses due to
an adjournment posed a much greater threat of prejudice to Kabiligi than the speculative and
remote prejudice to Nsengiyumva.116 In imposing its narrow four day restriction on
Nsengiyumva’s right to be present at trial, the Chamber considered more than just the
relevance of the evidence to him, for example the real threat of prejudice to his co-accused. In
the Chamber’s view, this was in conformity with the proportionality principle, pursuant to
which any restriction on a fundamental right must be in service of a sufficiently important
objective and must impair the right no more than is necessary to accomplish the objective.117
Finally, it should be noted that this case was in a different procedural stage than in others
cases where the Appeals Chamber has found a violation of the right to be present.118
113
Zigiranyirazo, Decision on Interlocutory Appeal (AC), 30 October 2006, paras. 10-14. See also Stanišić and
Simatović, Decision on Defence Appeal of the Decision on Future Course of Proceedings (AC), 16 May 2008,
para. 6; Karemera et al., Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at
Trial (AC), 5 October 2007, para. 11.
114
Karemera et al., Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at Trial
(AC), 5 October 2007, para. 15.
115
Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses (TC), 19 April 2007,
paras. 1-10, 19; Decision on Nsengiyumva Motion for Adjournment Due to Illness of the Accused (TC), 17
November 2007, paras. 1-12.
116
Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses (TC), 19 April 2007,
para. 3; Decision on Nsengiyumva Motion for Adjournment Due to Illness of the Accused (TC), 17 November
2007, paras. 9-12.
117
Zigiranyirazo, Decision on Interlocutory Appeal (AC), 30 October 2006, para. 14; Karemera et al., Decision
on Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at Trial (AC), 5 October 2007, para.
11.
118
The cases of Zigiranyirazo, Karemera et al. and Stanišić and Simotović were in the prosecution phase or had
not yet started, whereas this trial was about to close.
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132. In making its decision to proceed in his absence, the Chamber specifically envisioned
the possible recall of the witnesses. The Appeals Chamber has recognised this as a possible
remedy to cure any prejudice. The ultimate decision on the appropriateness of recall remains
in the discretion of the Chamber which is best placed to assess the significance of the
proposed evidence in relation to the charges against the Accused.119
133. The Chamber subsequently denied Nsengiyumva’s request to recall eight witnesses
heard during the total period of his absence between 8 November and 13 December.
According to the Defence, the main purpose was to impeach Prosecution evidence and to
bolster his Defence witnesses. In denying the motion, the Chamber reasoned that his case was
closed, none of the witnesses were adverse to him, and they had limited significance to his
case. It further noted that the evidence sought in some respects was general and would have
been cumulative of other testimony.120 In its Closing Brief, the Nsengiyumva Defence simply
raises again issues which were already decided by the Chamber. It has advanced no
additional reasons why the Chamber should reconsider its decision.
134. Nevertheless, the Chamber notes that four of the eight witnesses who Nsengiyumva
sought to recall appeared after 13 November when he was absent without justification.
Therefore, there can be no possible violation with respect to the Chamber’s decision not to
recall these witnesses.121 The Chamber has considered the factual findings underpinning
Nsengiyumva’s convictions with respect to the other four who testified when his absence was
not justified.122 It cannot identify any possible prejudice from hearing them in his absence
and not allowing their recall.123
7.
ADMISSION OF EVIDENCE
135. During the testimony of Nsengiyumva, his Defence sought to introduce a number of
documents. In its decision of 26 February 2007, the Chamber denied the motion to admit 19
documents as well as to allow the recall of certain Prosecution witnesses to be crossexamined on the basis of them.124 The Defence argued that this violated Nsengiyumva’s right
119
Karemera et al., Decision on Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at Trial
(AC), 5 October 2007, para. 16.
120
Decision on Nsengiyumva’s Motions to Call Doctors and to Recall Eight Witnesses (TC), 19 April 2007,
paras. 15-22.
121
In its decision on the Nsengiyumva Recall Motion, the Chamber nevertheless considered the relevance of
these four witnesses to his case.
122
The Defence did not request to recall Witness YC-3, who was also one of the five witnesses who testified
during this period.
123
It follows from the Nsengiyumva Recall Motion, pp. 4-6 that the Defence wished to recall Witness ALL-42
on matters related to RPF infiltration. The Chamber notes that the alleged infiltration of Rwanda by the RPF has
no bearing on Nsengiyumva’s specific crimes. In relation to Witness LAX-2 and FB-25, they were supposed
mainly to impeach Prosecution Witness XXQ. The Chamber observes that it has not relied on this witness in
relation to Nsengiyumva. Witness FB-25 would also testify about the duties of operational sector commanders
and its relationship with other authorities. The Chamber recalls that Witness FB-25 previously appeared during
the trial as Ntabakuze Defence Witness DM-190, when Nsengiyumva was present. Finally, the Defence wanted
to question Berhard Lugan about clandestine organisations and communication networks. However, the
Chamber has not accepted the allegations against the Accused concerning the various clandestine organisations
or his role in planning.
124
Decision on Nsengiyumva’s Motion to Admit Documents as Exhibits (TC), 26 February 2007. In denying the
motion, the Chamber noted that the documents were relevant to Prosecution Witnesses DO, ABQ, OQ and
XBH. The Nsengiyumva Defence did not seek certification of the decision.
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to examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf.125
136. In its ruling on the admissibility of these documents, the Chamber found that they
were either cumulative of other evidence or that the Nsengiyumva Defence had failed to
make a timely request to recall the relevant Prosecution witnesses for further crossexamination on them.126 The Defence has not advanced any argument in its Closing Brief
which would warrant reconsideration of that decision. Furthermore, with the exception of
Witness DO, the Chamber has not relied on any of the witnesses implicated by the documents
in its factual findings against Nsengiyumva.
137. With respect to Witness DO, the Chamber considered Nsengiyumva’s testimony
about the relevant documents in assessing the witness’s credibility together with other
evidence and arguments attempting to impeach him (III.3.6.1). As a result, the Chamber
rejected a number of key aspects of Witness DO’s testimony in the absence of corroboration.
The Chamber was satisfied, however, that the witness participated in targeted killings in
Gisenyi town on 7 April along with soldiers from Gisenyi military camp. This part of his
testimony was corroborated and consistent with his conviction in Rwanda. In the Chamber’s
view, the additional material sought for admission would not have raised questions about this
aspect of the Chamber’s findings. Accordingly, there can be no prejudice from the decision
not to admit the documents.
8.
DISCLOSURE BEFORE CROSS-EXAMINATION
138. The Nsengiyumva Defence contends that the Prosecution did not properly disclose the
immigration documents used to impeach Witnesses LT-1, LIG-2, LM-1, BRA-1, KBO-1 and
Joseph Bukeye, as required by the Appeals Chamber’s decision of 25 September 2006.127 The
Kabiligi Defence also argues that the Prosecution failed to disclose material it used during
cross-examination in connection with Witnesses KVB-19, LX-65, YUL-39 and DELTA.128
The Chamber notes that, in assessing these witnesses, it was not necessary to rely on this
aspect of their examination and thus there is no prejudice.
125
Nsengiyumva Closing Brief, paras. 3342-3367. The Nsengiyumva Defence refers to Prosecution Witnesses
DO, XBM, XBG and OAB in its Closing Brief.
126
Decision on Nsengiyumva’s Motion to Admit Documents as Exhibits (TC), 26 February 2007, paras. 3-20.
127
Nsengiyumva Closing Brief, paras. 3368-3403, citing Decision on Interlocutory Appeal Relating to the
Disclosure under Rule 66 (B) of the Tribunal’s Rules and Procedure (AC), 25 September 2006.
128
Kabiligi Closing Brief, paras. 117-128.
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
CHAPTER III:
1.
1.1
FACTUAL FINDINGS
BACKGROUND
Arusha Accords
Introduction
139. The Arusha Accords were a set of documents negotiated and signed in Arusha,
Tanzania, between 18 August 1992 and 4 August 1993 by the government of Rwanda and the
Rwandan Patriotic Front (RPF) to end a civil war and to lay down a legal framework for a
post-conflict settlement. The final version of the Arusha Accords incorporated a Peace
Agreement between the government of Rwanda and the RPF, signed on 4 August 1993, and
five protocols that focused on, among other things, the rule of law, the formation of a national
army and power-sharing within the government. It also incorporated the N’Sele Ceasefire
Agreement, signed in Tanzania on 12 July 1992, which had established a cessation of
hostilities throughout the territory of Rwanda and had laid out the framework for the
negotiations that followed.129 The Peace Agreement legally established an end to the war
between the two parties. Its provisions, combined with those of the Rwandan Constitution of
10 June 1990, were to form the governing law of the country during its transition to peace.130
140. The Arusha Accords were negotiated under the facilitation of Tanzania, and assisted
by the Organisation of African Unity and the United Nations. Several states observed the
negotiations.131
The Five Protocols of the Arusha Accords
141. The First Protocol of the Arusha Accords, an agreement on the rule of law, was
signed by the Rwandan government and the RPF on 18 August 1992. Both parties expressed
their commitment to pursue national unity, democracy, pluralism and respect for human
rights. Specifically, the document recognised the importance of a multi-party political system
and free and fair elections, and proposed the creation of a National Commission on Human
Rights.132
129
The N’Sele Ceasefire Agreement between the Government of the Republic of Rwanda and the Rwandan
Patriotic Front, as amended at Gbadolite on 16 September 1991 and at Arusha on 12 July 1992, Articles I, II.1,
III, V, VI, VII. The cease-fire agreement was the product of several meetings between the two parties, beginning
in 1990 in Zaire and assisted by the Presidents of Burundi, Tanzania, and Uganda, the Prime Minister of Zaire,
the Secretary-General of the Organisation of African Unity (OAU) and a delegate from the UN High
Commissioner for Refugees.
130
Peace Agreement between the Government of the Republic of Rwanda and the Rwandan Patriotic Front,
dated 4 August 1993 (Peace Agreement), Articles, 1-4. Under the terms of the Agreement, a number of
identified articles of the Constitution were to be replaced by provisions of the Peace Agreement relating to the
same matters. In the event of conflict between other unspecified provisions of the Constitution and the Peace
Agreement, the provisions of the Peace Agreement were to be granted supremacy.
131
Peace Agreement, Articles, 2, 10, 11.
132
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandan Patriotic Front
on the Rule of Law, signed at Arusha on 18 August 1992, Articles 1-17; Prosecution Exhibit 3 (Alison Des
Forges: Leave None to Tell the Story (1999)), pp. 60, 96.
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142. The Second Protocol was signed on 9 January 1993. It provided for a “Broad-Based
Transitional Government”, formed by the political parties that had participated in the
establishment of the coalition government on 16 April 1992, with the addition of RPF
representatives. The protocol also established the numerical distribution of ministerial
“portfolios”: five to the MRND, five to the RPF, four to the MDR (including the Prime
Minister, which according to the final version of the Accords would be Faustin
Twagiramungu), three each to the PSD and the PL, and one to the PDC. Habyarimana would
remain President of the Republic. The Broad-Based Transitional Government was to be
established within 37 days after the signing of the Peace Agreement, or by 10 September
1993. The first elections for a democratically selected government were to be held at the end
of a 22 month transitional period.133
143. The Third Protocol of the Arusha Accords, signed on 9 June 1993, allowed for the
repatriation and resettlement of Rwandan refugees. In this document, the Government of
Rwanda and the RPF recognised that Rwandan refugees had an indisputable right to return to
their country of origin and that allowing their repatriation was an important factor in steps
toward peace, national unity and reconciliation. Article 2 stipulated that “[a]ny Rwandese
refugee who wants go back to his country will do so without any precondition whatsoever” as
long as their resettlement did not encroach on the rights of others. A special assistance fund
was to be established to assist with this overall aim.134
144. The most comprehensive and contentious component of the Accords was the Protocol
of Agreement on the Integration of the Armed Forces. According to this fourth Protocol, the
new national army was reduced to 19,000 troops, including 6,000 gendarmes, requiring each
side to demobilise at least half of its troops. The government forces and the RPF were to
provide 60 and 40 per cent of the new integrated Rwandan army, respectively. The chief of
staff of the army was to be appointed from the Rwandan army, and the chief of staff of the
gendarmerie from the RPF. Posts in the chain of command from army headquarters to
battalion level were to be distributed equally.135
145. Lastly, the Arusha Accords contained a Final Protocol of Agreement on
Miscellaneous Issues and Final Provisions, signed on 3 August 1993, which set out guiding
principles for the state security services and the oath of declaration for the President and other
133
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandan Patriotic Front
on Power-Sharing within the Framework of a Broad-Based Transitional Government, signed at Arusha on 30
October 1992 and 9 January 1993, respectively, Articles 2, 5, 14, 55, 57, 61-62. The Second Protocol also
established the legislative organ of the new government, the Transitional National Assembly. All political
parties registered at the time of the signing of the Protocol were eligible to participate in the Assembly, and each
party was allocated 11 seats, except the PDC which received four seats. See also Peace Agreement, Articles, 6,
7; Prosecution Exhibit 2A (Expert Report of Alison Des Forges), pp. 26-27; Prosecution Exhibit 3 (Alison Des
Forges: Leave None to Tell the Story (1999)), p. 124; Prosecution Exhibit 436 (Expert Report of Bernard
Lugan), p. 8.
134
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandan Patriotic Front
on the Repatriation of Rwandese Refugees and the Resettlement of Displaced Persons, signed at Arusha on 9
June 1993, particularly Articles, 1, 2, 8, 12-21, 21-32.
135
Protocol of Agreement between the Government of the Republic of Rwanda and the Rwandan Patriotic Front
on the Integration of the Armed Forces of the Two Parties, signed at Arusha on 3 August 1993, Articles 2, 74,
144. At the time of the signing of the Accords, the Rwandan army was comprised of more than 30,000 soldiers
and gendarmes and the RPF had approximately 20,000 troops. See Prosecution Exhibit 3 (Alison Des Forges:
Leave None to Tell the Story (1999)), p. 125; Prosecution Exhibit 436 (Expert Report of Bernard Lugan), p. 8;
Prosecution Exhibit 2A (Expert Report of Alison Des Forges), p. 27.
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senior official posts. The implementation of the Arusha Accords was to be overseen by a UN
peacekeeping force. Prior to the Accords, the Government of Rwanda and the RPF had
jointly requested that the United Nations establish a neutral international force to monitor the
peace as soon as an agreement had been signed. Three days after its signing, the Security
Council adopted Resolution 846 (1993) authorising the United Nations Reconnaissance
Mission to Rwanda, which was designed to “assess the situation on the ground and gather the
relevant information” to determine how best to assist with the implementation of the Arusha
Accords. The mission was led by General Roméo Dallaire. It arrived in Rwanda on 19
August 1993 and departed on 31 August 1993. On 5 October 1993, the United Nations
Reconnaissance Mission to Rwanda was succeeded by the United Nations Assistance
Mission in Rwanda (UNAMIR).136
1.2
Rwandan Armed Forces
The Ministry
146. The Rwandan Armed Forces, which was composed of the army and gendarmerie, fell
under the President of the Republic who, consistent with the Constitution, was supreme
commander in chief. In the performance of his duty, he was assisted by the Minister of
Defence who handled daily defence matters, including the Rwandan Armed Forces, and
reported directly to him.137
147. The Minister’s immediate office was divided into the Central Secretariat and Public
Relations Division and included the following key staff: directeur de cabinet, Adviser on
Political and Administrative Affairs; and Adviser on Technical Affairs. The directeur de
cabinet, who could be civilian or military, performed various functions including formulating
department policy, distributing duties and replacing the minister whenever absent. In that
capacity, he also managed and monitored the activities of advisers, press and other support
services; monitored implementation of department decisions; centralised and verified issues
and acts for the Minister’s signature; supervised the timetable of the Ministry’s short-and
medium-term activities; prepared the Ministry’s annual report; presided over the Ministry’s
council; coordinated relevant activities; liaised with the media and the socio-political
establishment; and performed any other duties the minister assigned him. Bagosora served as
directeur de cabinet from June 1992 to July 1994 (I.2.1). 138
148. The functions of the Adviser on Political and Administrative Affairs included
informing, advising and assisting the Minister of Defence on political and administrative
issues, including analysing the socio-political situation of the country. The Adviser on
136
Protocol of Agreement Between the Government of the Republic of Rwanda and the Rwandese Patriotic
Front on Miscellaneous Issues and Final Provisions, signed at Arusha on 3 August 1993, Articles 2-8; Bagosora
Defence Exhibit 71 (Report of the UN Reconnaissance Mission to Rwanda), paras. 2, 3; Bagosora Defence
Exhibit 47 (KIBAT Chronique), p. 6.
137
Constitution of the Republic of Rwanda (1991), Art. 45; Bagosora Defence Exhibit 4 (Journal Officiel de la
République Rwandaise), pp. 1766-1769. During his years in power, President Juvénal Habyarimana periodically
was both commander in chief and Minister of Defence. See Bagosora, T. 26 October 2005 pp. 46-47, 61.
138
Bagosora, T. 26 October 2005 pp. 3,5, 7; T. 25 October 2005 pp. 3, 17, 51; Bagosora Defence Exhibit 4
(Journal Officiel de la République Rwandaise), p. 1766; Bagosora Defence Exhibit 278 (Bagosora: L’assassinat
du Président Habyarimana (30 October 1995)), pp. 4, 5, 9.
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Technical Affairs assisted the Minister of Defence on technical issues and by participating in
mediation missions.139
149. Various administrative divisions and units carried out specific functions for the
Ministry of Defence. They had responsibility for issues ranging from personnel and
administration to finance, social and legal affairs, technical cooperation, training and veterans
affairs. The heads of those divisions and units were subordinate to the Minister of Defence.
Organisation and Structure of the Rwandan Armed Forces
150. In 1994, the Rwandan army was comprised of approximately 30,000 troops.140 It
apparently grew at least fivefold from around 6,000 troops in the pre-1990 period. Some
estimate the army’s strength eventually reached 40,000.141 The army was said to have
lowered its recruiting and training regimen to enable this growth.142 Therefore, during the
early 1990s, officers received only one year of training limited to combat tactics and weapons
handling. Due to this and several other factors, including high levels of fatigue and lowquality equipment, support, finances and morale, some questioned the army’s combat
readiness.143
151. The chief of staff was the operational head of the Rwandan Army and the overall
commander of troops.144 His formal duties included coordinating subordinate activities;
managing and deploying all military forces; and reporting to the Minister of Defence.145 At
the beginning of April 1994, this position was occupied by General Déogratias Nsabimana,
who was killed in the Presidential plane crash on 6 April. The next day, Colonel Marcel
Gatsinzi was promoted to general and appointed acting chief of staff. As part of his command
authority, the chief of staff was supported in his functions by a general staff composed of four
bureaus common to most armies worldwide: G-1 (Personnel and Administration), G-2
(Intelligence), G-3 (Military Operations) and G-4 (Logistics).146
152. The G-1 was responsible for personnel, including both military and civilian Rwandan
Army employees. The G-1’s duties included managing civilian-military relations, training
and discipline. Generally, the chief of the G-1 bureau liaised with civilian and military
authorities to diffuse potential discord – a task that other armies frequently assign to a G-5
bureau.147 The Rwandan army did not have a G-5 bureau.148
139
Bagosora Defence Exhibit 4 (Journal Officiel de la République Rwandaise), p. 1766.
Bagosora Defence Exhibit 71 (UN Reconnaissance Mission Report), p. L0022656 para. 33b; Kabiligi
Defence Exhibit 129 (Expert Report of Colonel Duvivier), p. 27.
141
Reyntjens, T. 15 September 2004 p. 8.
142
Bagosora Defence Exhibit 71 (UN Reconnaissance Mission Report), p. L0022656, para. 35.
143
Id. p. L002657, para. 43.
144
Id. p. L002656, para. 31.
145
Bagosora Defence Exhibit 4 (Journal Officiel de la République Rwandaise), p. 1768.
146
Id. p. 1768; Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), pp. 1-2. However, unlike
most other countries’ armies, the Rwandan army chief of staff was also responsible for the G bureaus and
functional operations. Other armies employed a so-called Super Secretary to tend to these concerns. Duvivier, T.
6 December 2006 p. 63.
147
Duvivier, T. 6 December 2006 p. 51; Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), pp.
2-3, 32. However, the G-1 was not responsible for interrogation, which the G-4 managed.
148
Duvivier, T. 6 December 2006 p. 51; Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p.
32.
140
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153. The G-2, among other functions, protected classified information and acquired
intelligence regarding enemy vulnerability, took counter-intelligence measures to protect
classified documents and signals, directed intelligence and counter-intelligence training for
officers and soldiers and assessed and reported on troop morale to the chief of staff.149
154. The G-3 was generally responsible for military operations. In peace time, the G-3 was
responsible for instruction and training. This included preparing directives, programs and
orders governing troop training, and planning military exercises and manoeuvres. The G-3
also organised and managed the military training centres. During war, the mandate of the G-3
shifted to exclusive planning of military operations, conducting battle and coordinating
tactical deployments in the field based on decisions of the Chief of Staff. The G-3 monitored
and deployed soldiers during war-time for which reason he was relieved of all other
administrative duties. Kabiligi, at the rank of Colonel, was appointed head of G-3 in
September 1993. He was later promoted to Brigadier-General on 16 April 1994. He served as
G-3 until 17 July 1994 (I.2.2).150
155. The G-4, the logistics unit, ensured that the troops were properly equipped. The G-4
also worked closely with the Kanombe Medical Command to provide medical support to the
troops especially during war-time, including evacuating the wounded and delivering medical
supplies.151
156. Rwanda’s Gendarmerie Nationale was comprised of approximately 6,000 personnel
in early 1994. The chief of staff of the gendarmerie in 1994 was General Augustin
Ndindiliyimana whose functions were performed with the assistance of four bureaus: G-1
(Personnel and Administration), G-2 (Intelligence), G-3 (Military Operations) and G-4
(Logistics).152
157. The main responsibility of the gendarmerie was to maintain public order and to
enforce Rwanda’s laws.153 However, where necessary, gendarmes could participate in
military operations with the Rwandan Army. This was particularly so during war-time. When
so deployed, they generally received “secondary” assignments, such as guarding military
positions. The gendarmerie was reported to be poorly equipped, irrespective of whether it
was performing a police or military role. Gendarmes were deployed in the 10 prefectures of
Rwanda. Each of the 10 detachments consisted of between 300 and 400 though Kigali, being
the capital, had approximately 750 gendarmes.154
149
Bagosora, T. 25 October 2005 p. 50; Duvivier, T. 6 December 2006 p. 55; Kabiligi Defence Exhibit 129
(Expert Report of Colonel Duvivier), p. 3.
150
Duvivier, T. 6 December 2006 pp. 51-52, 57; Kabiligi Defence Exhibit 129 (Expert Report of Colonel
Duvivier), pp. 3-4.
151
Duvivier, T. 6 December 2006 p. 55; Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p.
4.
152
Bagosora, T. 25 October 2005 pp. 72-73, 76-77; Bagosora Defence Exhibit 226 (Decisions taken at the
Cabinet meeting held on 9 June 1992); Bagosora Defence Exhibit 71 (UN Reconnaissance Mission Report), p.
L0022658 para. 49 and L0022716 (annex 7).
153
Kabiligi Defence Exhibit 83 (Law Concerning the Creation of the National Gendarmerie, 23 January 1974),
Art. 3.
154
Bagosora Defence Exhibit 71 (UN Reconnaissance Mission Report), p. L002658-59, paras. 48-53 and
L0022716 (annex 7).
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Rwandan Army Units of Particular Relevance to the Indictment
158. In all, the army had approximately 28 infantry battalions, and each was headed by a
Major or a Lieutenant Colonel. Among them were several specialised units including the Para
Commando Battalion, the Presidential Guard Battalion, the Reconnaissance Battalion, the Air
Defence Battalion, the Military Police Battalion, the Huye Battalion, and the Light Air
Defence Battalion.155 In the present case, the Para Commando and the Presidential Guard
Battalions are of particular interest (below).
The Para Commando Battalion
159. The Para Commando Battalion could receive orders directly from the Chief of
Staff.156 Ntabakuze was commander of the Para Commando Battalion from June 1988 to
early July 1994 and had authority over its various units (I.2.3; IV.1.4). The mission of the
Para Commando Battalion was to defend the national territory. The commander’s duties
included overseeing all military and administrative matters relating to the battalion. His
immediate subordinates were the company commanders.157
160. The Para Commando Battalion was organised into five elite combat companies and a
headquarter company which provided administrative and logistical support.158 Four of the
five combat companies were Manoeuvre Companies carrying light arms, while the other was
a Fire Support Company that provided heavier artillery support to the Manoeuvre
Companies.159 Training was organised at the company level, although the battalions
coordinated the companies’ training schedule.160
161. The next rung along the chain of command within the Para Commando Battalion was
the secretive Commando de Recherche et d’Action en Profondeur (CRAP) Platoon. Created
in 1991 by the Army Headquarters, the 33 soldiers in the platoon performed subversive
operations behind enemy lines.161 For example, the CRAP Platoon would ambush the enemy
or spot the enemy’s deployments behind its lines.162
The Presidential Guard Battalion
162. The Presidential Guard Battalion, which was responsible for ensuring security of the
Rwandan President, had a separate chain of command linked directly to him.163 It had three
155
Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p. 27; Bagosora Defence Exhibit 71 (UN
Reconnaissance Mission Report), p. L0022656, 33a; Reyntjens, T. 15 September 2004 p. 12.
156
Bagosora, T. 24 October 2005 p. 69; Ntabakuze Defence Exhibit 235 (Army and Para Commando Battalion
Background), pp. 41-42. According to Ntabakuze, as of 6 April 1994, the Para Commando Battalion came under
operational authority of the commander of Camp Kanombe. Later in April 1994, he came under the commander
of the Kigali East operational sector.
157
Ntabakuze, T. 18 September 2006 p. 10, 12, 19; Ntabakuze Defence Exhibit 235 (Army and Para Commando
Battalion Background), p. 38, para. 7.
158
Ntabakuze, T. 18 September 2006 p. 27.
159
Ntabakuze Defence Exhibit 235 (Army and Para Commando Battalion Background), p. 40; Ntabakuze, T. 18
September 2006 pp. 20-21.
160
Ntabakuze Defence Exhibit 235 (Army and Para Commando Battalion Background), p. 46.
161
Witness BC, T. 1 December 2003 p. 26.
162
Ntabakuze, T. 18 September 2006 pp. 30, 66; T. 21 September 2006 pp. 66-67; Ntabakuze Defence Exhibit
235 (Army and Para Commando Battalion Background), p. 42.
163
Prosecution Exhibit 454 (Reglement sur l’Organisation de l’Armée Rwandaise), pp. L0022042-L0022043.
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companies as follows: the 1st company, 2nd company, and a headquarters and logistics or
services company.164 Between April and July 1994, its commander was Major Protais
Mpiranya.
Operational Sectors and Major Military Camps
163. Rwandan territory was sub-divided into seven operational sectors covering specific
geographic areas: Gisenyi, Ruhengeri, Rulindo, Byumba, Mutara, Kibungo and KigaliVille.165 Together, these sectors covered all of Rwanda. Each such sector contained four or
five battalions. Nsengiyumva was head of the Gisenyi operational sector from 13 June 1993
to 17 July 1994 (I.2.4). His area covered Gisenyi prefecture, which had 12 communes.166
164. Within the operational sectors were various military camps. Camp Kigali was the
army headquarters and message transmission centre located in the Kigali operational
sector.167 It housed, amongst others, the army general staff, ESM, the Prime Minister’s
residence, the Presidential Guard (which had approximately 600 troops), the Reconnaissance
Battalion and the Military Police.168 The Ministry of Defence was located approximately one
kilometre from Camp Kigali.169
165. Camp Kanombe in Kigali was another important military camp. It had a munitions
depot and an armoury, and housed seven units, including the Para Commando Battalion.170
The other camps of interest in the present case were Camp Bigogwe, Camp Bugesera, Camp
Butare, Camp Cyangugu, Camp Gitarama and Camp Kimihurura in Kigali as well as Camp
Kami to the north of Kigali. The latter was the base for the Military Police Battalion.171
Military Attire
166. According to the regulations on uniforms, the different military units wore identical
apparel, consisting of black boots and khaki or camouflage trousers and shirt. However,
certain articles of clothing helped distinguish between units. For example, different groups
wore different coloured berets. The Presidential Guard as well as most of the other army units
wore black berets, the aviation squadrons wore blue ones, and the following four units wore
camouflage-coloured berets: the Para-Commando Battalion, the Ruhengeri Commando
Battalion, the Huye Commando Battalion and the Commando Training Centre of Bigogwe.
Although not part of the army, the gendarmerie had similar uniforms and wore red berets.172
164
Witness DCB, T. 5 February 2004 pp. 105-106.
Bagosora Defence Exhibit 71 (UN Reconnaissance Mission Report), p. L0022715; Kabiligi Defence Exhibit
129 (Expert Report of Colonel Duvivier), p. 27.
166
Nsengiyumva, T. 4 October 2006 pp. 36-37.
167
Witness DA, T. 17 November 2003 pp. 6-8.
168
Bagosora, T. 27 October 2005 p. 4; T. 8 November 2005 p. 85; Witness DA, T. 17 November 2003 p. 9;
Beardsley, T. 30 January 2004 pp. 13-16.
169
Witness DA, T. 17 November 2003 p. 10.
170
Beardsley, T. 30 January 2004 pp. 15-16; Ntabakuze Defence Exhibit 235 (Army and Para Commando
Battalion Background), p. 40.
171
Beardsley, T. 30 January 2004 pp. 14-16; Ntabakuze, T. 18 September 2006 p. 21; Bagosora Defence Exhibit
71 (UN Reconnaissance Mission Report), p. L0022715.
172
Ntabakuze, T. 18 September 2006 pp. 16-17. See also Ntabakuze Defence Exhibit 235, p. 47 (The Army and
the Para Commando Background: “The uniforms of the FAR personnel were generally identical except the
beret. There were red beret, black beret, blue beret and camouflage beret. The gendarmes were wearing a red
165
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167. The Military Police of the Rwandan army wore white helmets during police missions
and red kepis during ceremonial occasions. Further, a red cordelette, or belt, was supposed to
be worn exclusively by commando instructors. Finally, the uniforms of officers had different
epaulettes depending upon their rank.173 The Chamber has also heard evidence that
Interahamwe would alternate between wearing military fatigues, a civilian uniform, or a
combination of the two.174 At other times, soldiers wore no berets at all during combat.175
Hierarchy and Command
168. There were essentially three steps involved when the chief of staff wished to issue an
operational order. First, the Chief of Staff made “Preparations to Decide”, whereby he
assigned a mission, and each of the four bureaus on the general staff gathered and analysed
relevant information to produce multiple options for its execution.176 The G-3 would then
evaluate and rank the different options. Second, the Chief of Staff selected and adapted one
of these options. Finally, the G-3 prepared the operations order, and a written order was
transmitted to sector commanders to continue down the chain of command.177 Even if the
order was verbal, it was supposed to be confirmed in writing.178 However, in practice, many
orders may have been given orally thereby bypassing the chain of command.179 According to
Bagosora, this occurred at least once because events moved too quickly to ensure that a
written order was created, as required by army rules.180
169. Operational orders were to follow the chain of command. The chief of staff gave
orders to the sector commander. He conveyed the order to the battalion commander, who
transmitted it to the company commander, who gave the order to the platoon commander and
so on.181
beret. Normal infantry units had a black beret. The aviation squadron had a blue beret. Then the following
commando units had camouflage beret: Para Cdo Bn, Ruhengeri Commando Bn, Huye Commando Bn and
Commando Training Centre of Bigogwe (CECDO).”). This exhibit was prepared by Ntabakuze. As to
Presidential Guard wearing black berets, see also Witness RO-6, T. 27 April 2005 pp. 13-14; Witness XAI, T. 9
September 2003 p. 27; Witness BB-15, T. 11 September 2006 p. 8. Several other witnesses attested to the use of
camouflage berets by the Para Commando Battalion. See, e.g., Witness AFJ, T. 8 June 2004 p. 80; Witness XAI,
T. 9 September 2003 pp. 26-27; Witness DBN, T. 31 March 2004 p. 80; T. 4 April 2004 p. 48; Witness DBQ, T.
29 September 2003 pp. 46-47; Witness DK-32, T. 28 June 2005 p. 6; Witness LE-1, T. 21 October 2005 p. 54;
Witness RO-6, T. 27 April 2005 pp. 13-14.
173
A senior captain wore three stars formed as an inverted pyramid beneath one bar, a major wore one star
centred above one bar, a Lieutenant Colonel wore two parallel stars above one bar, a Colonel wore three stars
from an inverted pyramid above one bar, a major general wore three stars from a pyramid above two parallel
bars, and a lieutenant general wore two parallel stars above two parallel bars. See Prosecution Exhibit 162
(insignia of Rwandan army).
174
Witness DA, T. 19 November 2003 p. 6.
175
Ntabakuze Defence Exhibit 235 (Army and Para Commando Battalion Background), p. 49. Finally,
according to Ntabakuze, some soldiers would fashion homemade camouflage berets and wear them at irregular
times “in order to show off”. See T. 18 September 2006 pp. 17-18; Ntabakuze Defence Exhibit 235 (Army and
Para Commando Battalion Background), p. 47.
176
Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), pp. 5-6.
177
Duvivier, T. 6 December 2006 p. 56; Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p.
6.
178
Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p. 7.
179
Bagosora Defence Exhibit 61 (statement of Leonidas Rusatira), p. 4.
180
Bagosora, T. 7 November 2005 p. 61.
181
Ntabakuze Defence Exhibit 235 (Army and Para Commando Battalion Background), p. 39.
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170. Each battalion comprised approximately 700 men. There were 160 men in a company,
40 per platoon, and 10 men in a section.182 Whenever a commander conveyed an order – be it
a sector commander, platoon or other commander – he was always required to address five
key aspects: (1) how the mission was to be carried out, (2) the sequence of the impending
operation, (3) the “friendly” situation, (4) the enemy’s situation, and (5) the means to ensure
logistical support and transmissions.183
171. Regardless of its source, command of a unit conferred authority over all of that unit’s
personnel. Transfer of a unit generally conferred authority on the receiving unit’s commander
to use it as he saw fit.184
Discipline
172. The Rwandan Armed Forces established rules governing discipline as well as
procedures that would apply if they were breached.185 The law applied to all officers and
soldiers without any distinction based on rank. Soldiers, including gendarme officers of the
Rwandan Armed Forces drafted as regular soldiers or under contract, were required to
comply with rules regarding use of arms, combat training and exercise of functions based on
the overarching principle of obedience and respect for superior rank.186
173. Pursuant to Article 11 of the Act concerning discipline, authority was linked to duties
so that soldiers were personally responsible for acts taken in the exercise of their authority.
Authority followed the hierarchy principle, except in special circumstances where
dispensation was given by a competent authority. Command of a unit was based on orders
from an authority empowered to execute a mission. Unit command included the right and
obligation to exercise authority over all the personnel in the unit.187
174. Article 3 defined “discipline” as “absolute obedience to the laws, military regulations
and to superiors”. Article 4 defined indiscipline as follows:
“any voluntary or involuntary act or omission but attributable to a fault or
negligence with the purpose or aim of undermining the methodical
performance of military duties, the prompt execution without question of
orders given for service, the privilege or good reputation of the Armed Forces
respect of superiors. The seriousness of the acts of indiscipline is aggravated if
they are repeated or carried out in group.” 188
175. A breach of discipline gave rise to disciplinary measures as well as separate, penal
action.189 Different acts of insubordination elicited various possible punishments, and certain
182
Kabiligi Defence Exhibit 129 (Expert Report of Colonel Duvivier), p. 10. See also Bagosora Defence Exhibit
71 (UN Reconnaissance Mission Report), p. L0022656, para. 33b (estimating 600-800 men per battalion combat
unit).
183
Bagosora, T. 24 October 2005 p. 72.
184
Prosecution Exhibit 155B (Presidential Act No. 413/02, 13 December 1978), p. 3, para. 12; Duvivier, T. 7
December 2006 pp. 4-5 (although the original unit retains administrative responsibility over the transferred
unit).
185
Prosecution Exhibit 155B (Presidential Act No. 413/02, 13 December 1978), p. 1, para. 1.
186
Id. p. 1, para. 2 ([Discipline] is applicable to all without distinction of rank …”).
187
Id. p. 3, para. 11.
188
Id. p. 1, paras. 3, 4.
189
Id. p. 6, para. 32 (1, 2).
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superiors could mete out some punishments.190 As a general rule, those officers without
command authority could not impose disciplinary punishment upon his subordinates.191
176. Rwandan law provided four ways to avoid punishment for indiscipline or
insubordination. First, for instance, a “subordinate shall not execute an order to perform an
obvious unlawful act”. However, if a subordinate failed to execute an order, and then
unsuccessfully argued that the act would have been unlawful, he would still be disciplined for
having failed to obey the order.192 Second, before a soldier was to be disciplined, he was
given an opportunity to explain his actions and to appeal the disciplinary decision to a higher
authority. Third, the Minster of Defence could commute sentences in certain circumstances,
such as national celebrations. Fourth, “[a]fter five years of service without other
punishment”, a punishment could be removed from a soldier’s record by any of the following
individuals: the President in respect of officers, the Minister of Defence in relation to regular
service non-commissioned officers, and the chief of staff in favour of soldiers under
contract.193
1.3
United Nations Assistance Mission for Rwanda
177. On 5 October 1993, the Security Council adopted Resolution 872 which established
the United Nations Assistance Mission for Rwanda (UNAMIR).194 The main purpose of
UNAMIR was to establish and maintain a secure environment for the creation of the BroadBased Transitional Government envisaged by the Arusha Peace Agreement (Arusha
Accords), signed by the Rwandan government and the RPF on 4 August 1993 (III.1.1). This
transitional government was to be in place until elections could be held and the government
and RPF armies integrated.195
178. Consistent with the spirit of the Arusha Accords, UNAMIR was conceived as a short
term mission with the first contingent initially deploying to Kigali for six months. However,
190
For a chart of possible punishments and actors authorised to mete out those punishments, see Prosecution
Exhibit 155A (Presidential Act No. 413/02, 13 December 1978 (French version)), pp. K-223196-97; Kabiligi
Defence Exhibit 129 (Expert Report of Colonel Duvivier), pp. 14-16.
191
Prosecution Exhibit 155A (Presidential Act No. 413/02, 13 December 1978 (French version)), Art. 60.
192
Prosecution Exhibit 155B (Presidential Act No. 413/02, 13 December 1978), p. 4, para. 15 (3).
193
Id. pp. 2 and 5, para. 8, 9 and 20.
194
Resolution 872 (1993) defined the UNAMIR mandate as follows: (a) to contribute to the security of the city
of Kigali inter alia within a weapons-secure area established by the parties in and around the city; (b) to monitor
observance of the cease-fire agreement, which calls for the establishment of cantonment and assembly zones
and the demarcation of the new demilitarised zone and other demilitarisation procedures; (c) to monitor the
security situation during the final period of the transitional government’s mandate, leading up to the elections;
(d) to assist with mine clearance, primarily through training programmes; (e) to investigate at the request of the
parties or on its own initiative instances of alleged non-compliance with the provisions of the Arusha Peace
Agreement relating to the integration of the armed forces, and pursue any such instances with the parties
responsible and report thereon as appropriate to the Secretary-General; (f) to monitor the process of repatriation
of Rwandan refugees and resettlement of displaced persons to verify that it is carried out in a safe and orderly
manner; (g) to assist in the coordination of humanitarian assistance activities in conjunction with relief
operations; (h) to investigate and report on incidents regarding the activities of the gendarmerie and police.
195
Bagosora Defence Exhibit 215 (Peace Agreement between the Government of the Republic of Rwanda and
the Rwandan Patriotic Front), Article 7; Protocol of Agreement between the Government of the Republic of
Rwanda and the Rwandan Patriotic Front on the Integration of the Armed Forces of the Two Parties, Articles
53, 54, 72; Bagosora Defence Exhibit 71 (Report of the UN Reconnaissance Mission to Rwanda) paras. 1-3, 5,
8, 17, 110-112, 156, 217-218 and Annex 1, para. 12(a), p. L0022791; Ntabakuze Defence Exhibit 33 (Roméo
Dallaire: Shake Hands with the Devil (2003)), pp. 75-76, 82, 86-89.
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according to Resolution 872, the Security Council could extend UNAMIR’s mandate if the
Secretary-General determined that there was substantial progress towards the implementation
of the Arusha Accords. It was authorised with the maximum strength of 2,548 military
personnel, including 2,217 formed troops and 331 military observers and 60 civilian
police.196
179. UNAMIR was divided into (a) Office of the Special Representative of the SecretaryGeneral; (b) Civil Police Division; (c) the Military Division and (d) the Administrative
Division. The Special Representative of the Secretary-General, Jacques-Roger Booh-Booh
(Cameroon), was head of mission. Booh-Booh served from November 1993 to May 1994.197
UNAMIR’s mandate and size changed several times during its time in Rwanda.198 Its
mandate was terminated on 8 March 1996. Withdrawal was completed in April 1996.
180. The UNAMIR headquarters was located at the Amahoro (Peace) Stadium in Kigali.
The head of the Military Division, or the Force Commander, reported to the Special
Representative. The Force Commander was based in and operated from the Force
Headquarters.199
181. The UNAMIR Force Commander, Lieutenant-General Roméo Dallaire (Canada), was
appointed on 5 October 1993.200 The mission officially began with his arrival in Rwanda on
21 October 1993. He served also as head of mission until Booh-Booh was appointed and took
up the post of Special Representative in November 1993.201 Dallaire thereafter served only as
the military head of UNAMIR, reporting to the Special Representative, until August 1994.
His deputy, who arrived in Kigali in January 1994, was Brigadier General Henry Anyidoho
(Ghana).202 Major Brent Beardsley (Canada) served as General Dallaire’s executive assistant
196
Resolution 872 (5 October 1993), paras. 7, 2, 6, 9; Bagosora Defence Exhibit 71 (Report of the UN
Reconnaissance Mission to Rwanda) pp. L0022759-22765; Ntabakuze Defence Exhibit 33 (Roméo Dallaire:
Shake Hands with the Devil (2003)), pp. 53-55.
197
Booh-Booh was replaced by Shaharyar M. Khan (Pakistan) in July 1994 until after UNAMIR concluded its
withdrawal from Rwanda in April 1996. Booh-Booh testified for the Defence on 21 and 22 November 2005.
198
Dallaire, T. 19 January 2004 p. 69. On 5 April 1994, a day before President Habyarimana’s plane crashed,
the Security Council, by Resolution 909, extended the mandate of UNAMIR until 29 July 1994. Following the
outbreak of large-scale violence in Rwanda, by Resolution 912 of 21 April 1994, the Security Council reduced
the mandate of UNAMIR to act as an intermediary in order to secure a ceasefire, authorising a reduced force
level of 270, as outlined in paragraph 16 a Special Report of the UN Secretary-General on UNAMIR to the
Security Council dated 20 April 1994. By Resolution 918 (1994) of 17 May 1994, the Security Council
expanded the mandate of UNAMIR to include the additional responsibilities of contributing to the protection of
refugees and civilians at risk, and to provide security and support for the distribution of relief supplies and
humanitarian relief operations. The Security Council increased the force level to 5,500.
199
In the early days of the mission, UNAMIR was temporarily housed at the Hôtel des Milles Collines in Kigali.
The Amaraho Stadium became its permanent headquarters. See Ntabakuze Defence Exhibit 33 (Roméo Dallaire:
Shake Hands with the Devil (2003)), pp. 109-110, 106, 59, 98.
200
Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 96-97. General
Dallaire testified for the Prosecution between 19 and 27 January 2004.
201
Dallaire, T. 19 January 2004 p. 75; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the
Devil (2003)), pp. 98, 114-115.
202
Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 156, 442.
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from October 1993 to May 1994.203 In that role, he oversaw the Force Headquarters and
coordinated UNAMIR’s military operations and administration under Dallaire’s direction.204
182. The Force Headquarters exercised overall authority over all units within the
UNAMIR Military Division. These included both the armed soldiers in the various battalions
of UNAMIR and the unarmed military officers that constituted the Military Observer
Group.205 The Force Headquarters had operational as well as administrative functions in
respect of two main areas: the Kigali Weapon Secure Area (KWSA) and the Demilitarised
Zone (DMZ). The KWSA was established by agreement between the RPF and the Rwandan
Government around 23 December 1993. It was a confidence building measure designed by
UNAMIR where the two sides agreed to store their weapons and ammunition in the Kigali
area. Those secured weapons could only be moved with UNAMIR’s permission and escort.206
183. The area called the DMZ was established in the 1991 N’sele Ceasefire Agreement
(III.1.1) to the north of the country between the forward edge areas of each force. It was
approximately 120 kilometres long and 20 kilometres wide at its widest point.207
184. As troops from the Rwandan Armed Forces and the Rwandan Patriotic Front were
proximate to each other, UNAMIR’s military observers played an important role. Though
unarmed, they were organised into multinational teams and assigned to different parts of
Rwanda, including important Rwandan Army military camps such as Camp Kigali and Camp
Kanombe. Their principal task was to ensure that the parties adhered to the aspects of the
Arusha Accords relating to security by monitoring certain areas, conducting patrols and
reporting the information gathered to the Force Headquarters. Colonel Isoa Tikoka (Fiji) was
the Chief Military Observer. He reported to General Dallaire.208
185. On 19 November 1993, General Dallaire, as Force Commander, issued a directive
outlining the Rules of Engagement governing the use of weapons under UNAMIR’s mandate.
203
Dallaire, T. 19 January 2004 pp. 75-76; Beardsley, T. 30 January 2004 p. 5. Major Beardsley testified for the
Prosecution between 30 January and 5 February 2004.
204
Dallaire’s chef de cabinet was Captain Mbaye Diagne (Senegal) and aide-de-camp Captain Babacar Faye
(Senegal). Dallaire, T. 19 January 2004 pp. 75-76; Beardsley, T. 30 January 2004 pp. 5-6. Faye testified for the
Defence on 28 March 2006. See, in particular, T. 28 March 2006 pp. 28, 31-32, 45.
205
General Dallaire also set up an intelligence unit headed by Lieutenant-Colonel Frank Claeys (Belgium), who
testified as a Prosecution witness on 7 and 8 April 2004. Claeys worked with Captain Amadou Deme (Senegal).
See Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 121-122; Claeys,
T. 7 April 2004 pp. 27-28, 45-47.
206
Dallaire, T. 19 January 2004 pp. 15-18; Marchal, T. 30 November 2006 pp. 5-7, 12-20, 34; T. 4 December
2006 pp. 16-19; T. 5 December 2006 pp. 14-25; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands
with the Devil (2003)), pp. 533, 124-127.
207
Dallaire, T. 19 January 2004 p. 16; T. 21 January 2004 p. 15; Ntabakuze Defence Exhibit 33 (Roméo
Dallaire: Shake Hands with the Devil (2003)), pp. 102, 528. Resolution 872 (1993) also welcomed, in paragraph
5, the efforts of the Organisation of African Unity (OAU) towards the integration of the Neutral Military
Observer Group (NMOG II) into UNAMIR. On 29 March 1991, the Rwandan Government and the RPF had
signed the N’sele Ceasefire Agreement. The agreement was amended on 16 September 1991 and on 12 July
1992. It established a Neutral Military Observer Group (NMOG I), under OAU auspices, to supervise the
ceasefire. Its mandate ended on 31 July 1993 but the OAU deployed NMOG II, with an expanded force of 130,
and the same mandate as NMOG I. The terms of the agreement was incorporated into the Arusha Peace Accord.
See Bagosora Defence Exhibit 215 (Peace Agreement between the Government of the Republic of Rwanda and
the Rwandan Patriotic Front), Article 2; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the
Devil (2003)), pp. 43, 528.
208
Tchemi-Tchambi, T. 6 March 2006 pp. 33-34, 38-41; Apedo, T. 7 September 2006 pp. 30-31; Beardsley, T.
30 January 2004 pp. 17-18; Faye, T. 28 March 2006 pp. 4, 6-10, 12-18.
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The directive stressed the role of UNAMIR as an impartial peacekeeping force under Chapter
VI of the UN Charter. The over-riding rule for UNAMIR was that the use of weapons was to
be avoided. The use of weapons was not authorised, except for self-defence. Any use of
weapons was to be authorised by the UNAMIR chain of command. Weapons could not be
used to deter or retaliate.209 Paragraph 17 of the directive authorised UNAMIR soldiers to use
weapons, including deadly force, to prevent “crimes against humanity”.210
186. The maintenance of law and order in Rwanda was the responsibility of the local
police, monitored by the UN Civilian Police, but UNAMIR military personnel could assist in
controlling criminal activity, if necessary. The Rwandan National Gendarmerie accompanied
most UNAMIR field patrols because the gendarmerie alone had the authority to take
measures regarding public order and to stop and question people.
187. The UNAMIR Military Division was comprised of several national battalions and a
military company that were deployed in strategically important areas of Rwanda. The Belgian
battalion was based in Kigali (KIBAT) and the Bangladeshi battalion in Rutongo (RUTBAT).
Colonel Luc Marchal (Belgium) was the KIBAT and Kigali Sector Commander.211
Lieutenant Colonel Joseph Dewez (Belgium) was a senior officer within KIBAT.212
RUTBAT and KIBAT essentially performed similar duties.213
188. The Ghanaian battalion was based in Byumba in northern Rwanda (BYUBAT) and
had approximately 200 soldiers under the command of Colonel Clayton Yaache (Ghana) who
was responsible for the DMZ. In March 1994, BYUBAT was transferred from the DMZ to
the KWSA to provide permanent protection to the airport and certain personalities. They
relieved the burden on KIBAT and RUTBAT and enabled them to strengthen their patrol
missions.214
209
Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 71-72, 99. The
ROE were drafted by the Force Commander, but were approved by the UN and could only be changed with UN
authority. General Dallaire forwarded the document to New York and to the capitals of all the troop-contributing
nations, asking for confirmation of the ROE. He did not receive any formal written approval of the rules from
the UN. The rules were amended to address some concerns of Belgium and Canada, and were thereafter
considered as tacitly approved by all. According to Dallaire, this posed difficulties for the effective execution of
UNAMIR operations. See, e.g., T. 20 January 2004 p. 22.
210
This is the so-called Chapter Six and a half mandate. Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake
Hands with the Devil (2003)), p. 72. See also Dewez, T. 23 June 2005 pp. 30-31, 33-34, 41.
211
Colonel Marchal testified for the Defence between 30 November and 6 December 2006.
212
Beardsley, T. 5 February 2004 p. 25; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the
Devil (2003)), pp. 112-113, 119-121, 528. Lieutenant-Colonel Dewez testified for the Defence on 23 and 24
June 2005.
213
Routine tasks included guarding the individual camps; providing escorts to accompany and protect specific
people as they moved within and outside the KWSA; guarding the residences of certain important personalities;
setting up roadblocks and checkpoints and engaging in a wide array of patrols. Day and night patrols were
conducted, on foot and in vehicles, to make the UN presence felt, to build local confidence in UNAMIR and to
gather intelligence. Daily patrols to the main roads bordering the south, west, and east of the KWSA were
carried out, as was an intensive three-day foot patrol in the areas farthest from the south of the KWSA. There
was a permanent patrol at the airport. Bagosora Defence Exhibit 47 (KIBAT report), para. 10; Dallaire, T. 19
January 2004 p. 88; Beardsley, T. 3 February 2004 p. 23; T. 5 February 2004 p. 28; Dewez, T. 23 June 2005 pp.
74-76; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 133, 533;
Bagosora Defense Exhibit 47 (KIBAT Chronique), pp. 4, 6.
214
Colonel Yaache became Kigali Sector Commander after the Belgians withdrew from Rwanda in April 1994.
See Dallaire, T. 19 January 2004 pp. 6-7; T. 26 January 2004 p. 6; Ntabakuze Defence Exhibit 33 (Roméo
Dallaire: Shake Hands with the Devil (2003)), pp. 176-178, 203, 216-217, 308-309, 311-312, 317-318, 362.
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189. Though initially based outside Kigali, the Tunisian Company was the Force
Commander’s fire brigade unit used to respond to emergencies. In December 1993, they were
transferred to Kigali to guard the Rwandan National Assembly CND (Conseil national pour
le développement) where an RPF battalion of about 1,000 men were stationed in accordance
with the Arusha Accords.215
190. At its inception, most Rwandans did not know what UNAMIR was or its purpose;
however, the UN was respected as it was known to provide education, health care and food
aid to the country. The attitude of the population varied from place to place. While some
Rwandans were sympathetic towards the mission, the majority was neutral. UNAMIR later
conducted town hall meetings in Kigali to inform Rwandans about its mission and to listen to
their concerns.216
191. UNAMIR faced critical challenges shortly after the mission began. Two massacres of
civilians took place around mid and end of November 1993, respectively, for which the
media and some government officials blamed the RPF. UNAMIR investigations failed to
identify the perpetrators of the massacre. Consequently, it was labelled as “pro-RPF”, thereby
feeding the notion that it was sympathetic towards one of the parties to the conflict. In
contrast, Special Representative Booh-Booh was later accused of being “pro-government,
hard-line”. 217
192. Over time, distrust of UNAMIR and hostility towards certain of its elements mounted.
Disciplinary infractions by some members of the Belgian contingent were reported and
addressed. As part of its anti-Tutsi propaganda, RTLM (Radio Télévision Libre des Mille
Collines) stoked public animosity towards the Belgians, condemning their role in Rwanda
given their countries’ status as a former colonial power.218 The tension peaked in January and
February 1994 with several confrontations between certain UNAMIR forces and Rwandans,
including some involving important figures from the presidential camp.219
193. On 6 April 1994, after President Habyarimana’s plane was shot down, various people
immediately blamed the Belgians.220 The RTLM, which was a propaganda tool, broadcasted
that the Belgian troops had engineered the assassination, thereby inflaming public anger
215
Beardsley, T. 5 February 2004 p. 28; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the
Devil (2003)), pp. 126-127, 128-131, 152; Booh-Booh, T. 21 November 2005 p. 61; Dewez, T. 23 June 2005 p.
76. At the checkpoint outside the CND, KIBAT provided staff every other week, and RUTBAT provided staff
during the other weeks. This was more of a symbolic task to make UN presence felt because the actual checking
was done by a Tunisian guard and the RPF.
216
Dallaire, T. 20 January 2004 pp. 22-26, 42; T. 21 January 2004 pp. 25-26; Ntabakuze Defence Exhibit 33
(Roméo Dallaire: Shake Hands with the Devil (2003)), pp. 47-48, 102, 106, 163, 172, 184.
217
Dallaire, T. 19 January 2004 pp. 47-48; T. 20 January 2004 pp. 23, 45; T. 22 January 2004 p. 5; Booh-Booh,
T. 21 November 2005 p. 65; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the Devil
(2003)), pp. 110-112, 122, 159, 163.
218
Dallaire, T. 19 January 2004 pp. 17, 48, 66; T. 20 January 2004 pp. 4, 23-25; T. 21 January 2004 pp. 29, 25;
T. 23 January 2004 p. 48; T. 26 January 2004 pp. 73-74; Booh-Booh, T. 21 November 2005 pp. 60-61;
Beardsley, T. 4 February 2004 p. 78; T. 30 January 2004 p. 30; Dewez, T. 23 June 2005 pp. 27-29, 45-47, 72,
76-78, 82-83; Claeys, T. 7 April 2004 pp. 41-45, 51; Hutsebaut, T. 2 December 2003 pp. 22, 38; Prosecution
Exhibit 33 (Major Hock’s report), p. 11; Prosecution Exhibit 252 (RTLM transcripts), pp. 10, 32; Prosecution
Exhibit 449 (Report of Luc Marchal), para. 6.
219
Dallaire, T. 21 January 2004 pp. 29-31, 44; Booh-Booh, T. 21 November 2005 pp. 62-63; van Putten, T. 20
March 2006 pp. 7, 15, 34-38; Marchal, T. 4 December 2006 pp. 19-21; T. 5 December 2006 pp. 26-28; Maggen,
T. 13 March 2006 p. 17.
220
Dallaire, T. 19 January 2004 p. 47.
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towards the contingent.221 The next day, 7 April 1994, 10 Belgian peacekeepers were killed at
the Kigali Camp (III.3.4) Five Ghanaian peacekeepers who were with the Belgian soldiers
were not killed. Belgium withdrew its soldiers from Rwanda on 18 and 19 April.222
221
Dallaire, T. 19 January 2004 p. 66; Ntabakuze Defence Exhibit 33 (Roméo Dallaire: Shake Hands with the
Devil (2003)), p. 254.
222
T. 22 January 2004 p. 75-76; Marchal, T. 4 December 2006 pp. 5-6.
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2.
2.1
ALLEGATIONS OF PLANNING AND PREPARATION OF THE GENOCIDE
Introduction
194. The Indictments allege that all four Accused, from late 1990 until July 1994,
“conspired among themselves and others to work out a plan with the intent to exterminate the
civilian population and eliminate members of the opposition, so that they could remain in
power”. This plan consisted of 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 organised, ordered and participated in the massacres
perpetrated against the Tutsi population and of moderate Hutus.223
195. In support of this conspiracy, the Prosecution submits that the genocide was
conceived of and planned significantly before 1994 and executed principally through the
events occurring between April and July 1994. It is not argued that the Accused
simultaneously agreed to a plan, or that such a plan consisted of a single course of equallydivided or unified conduct. Instead, the proper inference to be drawn from the evidence is
that at various times, each of the Accused agreed to participate in a larger, lengthier effort to
increasingly homogenise Rwandan society in favour of Hutu citizens, with the object of
killing Tutsi civilians, as required. It is their participation in this process - and the willingness
to create or exploit various opportunities to achieve it - which is the hallmark of their
agreement.224
196. According to the Defence, there was no plan or conspiracy by the former Rwandan
Government or the Rwandan military to harm civilians between April and July 1994 (III.7).
The Prosecution’s “theory of a planned genocide” is not supported by the evidence. Instead,
the wave of civilian killings that swept Rwanda during this period was triggered by the RPF
attack against Rwanda in October 1990. In launching this attack, the RPF consciously made a
strategic and carefully planned first step that would eventually lead to a violent seizure of
power, leading to a full-blown ethnic conflagration in Rwanda.225
197. Based on the submissions, the Chamber will first consider the earliest alleged
evidence of conspiracy, the work of the Enemy Commission (III.2.2), followed by the socalled “apocalypse statement” (III.2.3); other pre-April 1994 meetings involving the Accused
223
The Bagosora and Ntabakuze Defence teams dispute the use of the term “moderate Hutu”, arguing that it is
vague. In particular, the Bagosora Defence submits that it does not take account of the evolving political
situation in Rwanda, where even members of the opposition of President Habyarimana ultimately opposed
complete RPF control of the government either before or after July 1994. See Bagosora Closing Brief, paras. 6067; Ntabakuze Closing Brief, paras. 2411, 2396, 2437. The Chamber is aware of the elements pointed out by the
Defence. It observes that the term “moderate Hutu” has been utilised in judgements and is a brief way of
referring to Hutus who were either viewed as being in the opposition, allied with RPF positions or did not
favour recourse to violence in order to solve Rwanda’s various political impasses. The use of the term does not
presuppose, as the Bagosora Defence suggests, that similar divisions did not exist amongst Tutsis. For the most
part, the Chamber has not employed this term in the judgement unless it is describing the language used in the
evidence, the Indictments or the parties’ submissions.
224
Prosecution Closing Brief, paras. 31-55, 438, 532, 680, 748-751; T. 2 April 2002 pp. 151-166; T. 28 May
2007 pp. 5, 10, 12-14; T. 1 June 2007 pp. 41-42.
225
Bagosora Closing Brief, paras. 2109, 2133-2216; Kabiligi Closing Brief, paras. 19, 34, 78, 146, 185, 808; pp.
577, 589, 595-600; Ntabakuze Closing Brief, paras. 439-467, 557-608, 754, 2205-2207, 2332-2349, 2502-2516;
Nsengiyumva Closing Brief, paras. 86, 196-223, 3224-3230.
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(III.2.4); the preparation and use of lists (III.2.5); the creation, training and arming of civilian
militias (III.2.6); clandestine organisations (III.2.7-9); and the RTLM (III.2.10).
2.2
Definition of the Enemy
Introduction
198. Having convened and presided over a meeting of high-ranking military officers at
ESM on 4 December 1991, President Habyarimana set up a military commission with the
mandate “to further study and respond to the question: What must be done in order to defeat
the enemy militarily, in the media, and politically”. Bagosora chaired the commission (the
Enemy Commission), which sat until about 20 December 1991. Aloys Ntabakuze and
Anatole Nsengiyumva were members. The report was originally given limited distribution.
However, on 21 September 1992, the Rwandan chief of staff, Déogratias Nsabimana, sent a
letter to all OPS Sector Commanders units, enclosing excerpts of the report (the ENI
document).226 The commanders were asked to “circulate this document widely, highlighting
in particular the chapters concerning the definition, identification and recruiting grounds of
the enemy”.227
199.
According to each of the Indictments, the ENI Document and the use made of it by
senior military officers aided, encouraged and promoted ethnic hatred and violence. The
Prosecution submits that this document is evidence of conspiracy because the final document
took a legitimate purpose (defining the enemy) and shifted it to an illegitimate, criminal
purpose (targeting the Tutsis). The cooperation of Bagosora, Nsengiyumva and Ntabakuze in
connection with the ENI Document is but one illustration of their close and frequent
institutional contact in the context of the preparation of the genocide. As head of the Enemy
Commission, Bagosora is personally responsible for the language used in the Commission’s
report which, in conjunction with his later testimony is sufficient to prove conspiracy.
Nsengiyumva and Ntabakuze are co-conspirators. Kabiligi, although not a member of the
ENI Commission, demonstrated his support for its conclusions.228
200. According to the Defence, the ENI document was not a manifestation of conspiracy to
carry out genocide, but a legitimate military tool that sought to accurately characterise the
enemy that was invading Rwanda. Defining the enemy is normal and necessary in times of
war. The definition, when read in its entirety, did not improperly target Tutsi civilians or
other non-combatants. It focused on acts, not ethnicity, and related to extremists who wanted
to seize power. As officers defending the country from an invading army, it is unsurprising
that the Accused may have participated in meetings and planning sessions related to the war.
The document in evidence is only an excerpt which, when viewed in context, did not lend
itself to the ethnic interpretation sustained by the Prosecution.229
226
Prosecution Exhibit 13.1 (Definition of the Enemy Document).
Prosecution Exhibit 13 (Nsabimana’s letter to operations commanders, dated 21 September 1992).
228
Bagosora Indictment, paras. 5.5-5.7; Ntabakuze and Kabiligi Indictment, paras. 5.5-5.7; Nsengiyumva
Indictment, paras. 5.5-5.7; Prosecution Closing Brief, paras. 36, 269, 508-531, 748-751; T. 28 May 2007 p. 13;
T. 1 June 2007 pp. 37-38, 40.
229
Bagosora Closing Brief, paras. 93-114, 534-539, 1450-1452; T. 26 October 2005 p. 70; Kabiligi Closing
Brief, paras. 33, 1261, 1523-1525; Ntabakuze Closing Brief, paras. 508, 557-592, 2508-2514; T. 21 September
2006 pp. 39-42; Nsengiyumva Closing Brief, paras. 198-207; Nsengiyumva, T. 9 October 2006 pp. 61-62; T. 12
October 2006 pp. 2, 4-10; T. 13 October 2006 p. 10.
227
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Deliberations
201. It is common ground that defining the enemy is done by military authorities in many
countries. Based on such a definition, the armed forces may adapt its strategies and order its
resources.230 Consequently, the establishment of the Enemy Commission on 4 December
1991 was not in itself unusual or illegitimate, in particular in view of the fact that there had
been hostilities on Rwandan territory since the RPF invasion on 1 October 1990. Little is
known about the decision to set down the Commission and its internal working. Whether the
Commission’s activities gave an otherwise legitimate exercise a criminal purpose therefore
depends primarily on the result of its work, bearing in mind subsequent developments. An
assessment of the formulations used by the Commission must be based on the excerpt
distributed on 29 September 1992, as the entire report is no longer available. There is no
dispute about the authenticity of this excerpt.231
202. The excerpt is entitled “Definition and Identification of the Enemy”. It is divided into
three parts. Section A (Definition of the Enemy) describes the enemy, specifies the social
groups from which the enemy and their supporters are mostly recruited, and mentions the
milieu in which enemy activists are found. It also analyses RPF’s and RPA’s political and
military organisation, identifying enemy officials who are responsible for the various fields.
The two first provisions of Section A read as follows:
A. DEFINITION OF THE ENEMY
The enemy can be subdivided into two categories:
the primary enemy
enemy supporters
1. The primary enemy are the extremist Tutsi within the country and abroad who are
nostalgic for power and who have NEVER acknowledged and STILL DO NOT
acknowledge the realities of the Social Revolution of 1959, and who wish to regain
power in RWANDA by all possible means, including the use of weapons.
2. Enemy supporters are all who lend support to the primary enemy. […]
Political opponents who desire power or peaceful and democratic change in the current
political regime in RWANDA are NOT to be confused with the ENEMY or supporters of
the ENEMY.232
B. IDENTIFICATION OF THE ENEMY
The ENEMY, or their accomplices, be they Rwandan or foreign nationals within the
country or abroad, can be identified in particular by any of the following acts:
- Taking up arms and attacking RWANDA;
- Purchasing arms for enemy soldiers;
- Contributing money to support the ENEMY;
230
Des Forges, T. 24 September 2004 p. 15; Dewez, T. 23 June 2005 p. 42; Ntabakuze Defence Exhibit 220B
(Expert Report of Serge Desouter), p. 75; Kabiligi Defence Exhibit 129B (Expert Report of Colonel Duvivier),
p. 30.
231
According to Bagosora, the substantive content of Prosecution Exhibit 13.1 was the same as the
corresponding part of the Commission’s report. See T. 26 October 2005 p. 70.
232
Prosecution Exhibit 13.1(b), which contains a correct translation of the French original. The translation of the
definition in para 5.6 of the Indictments has been critisised by the Defence.
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- Providing any form of material support to the ENEMY;
- Spreading propaganda favourable to the ENEMY;
- Recruiting for the ENEMY;
- Contaminating public opinion by spreading false rumours and information;
- Spying for the ENEMY;
- Divulging military secrets to the ENEMY;
- Acting as a liaison officer or runner for the ENEMY;
- Organising or performing acts of terrorism and sabotage in support of ENEMY
activities;
- Organising or inciting revolts, strikes or any form of disorder to support ENEMY
activities;
- Refusing to fight the ENEMY;
- Refusing to comply with war requisitions.
Political opponents who desire power or peaceful and democratic change in the current
political regime in RWANDA are NOT to be confused with the ENEMY or supporters of
the ENEMY.
203. The Definition of the Enemy clause qualifies the term “Tutsi” as the “extremist”
Tutsis, who are not acknowledging the realities of the 1959 revolution and wish to “regain
power ... by all possible means, including the use of weapons”. The Identification of the
Enemy provision describes the enemy, in particular, by certain enumerated acts, which in
themselves have a connection to war (e.g. taking up arms, carrying out propaganda and
recruitment for the enemy, spying, sabotage). Read in context, the Chamber does not agree
with the Prosecution that the definition implies that all Tutsis are extremists, wanting to
regain power. The Chamber has also noted the exception for political opponents who seek
power within the political system through peaceful means, both in the Definition clause and
the Identification clause. It is, however, aware that such disclaimers may sometimes be more
cosmetic than substantial.233
204. It is clear that the definition of the “enemy” contains both an ethnic component and a
reference to proscribed acts. In the other parts of the document, there is a similar ambiguity.
Section B (Enemy Goals, Resources and Methods) states that the goal of the RPF is to “seize
power in Rwanda and install the political system of its choice” and describes the enemies
various activities, abroad and within the country. Section C (Enemy Strengths and
Weaknesses) covers both the military and political fields. Also these parts of the ENI
document generally use qualifications, such as “extremist” Tutsis, Tutsi “refugees” or the
Tutsi “diaspora”. However, the word “Tutsi” is used 14 times in the document and
interchangeably in some places with “enemy”, and there are generalisations which may
indicate that the Tutsis were unified behind the single ideology of Tutsi hegemony.234
205. It may be asked whether the way the ENI document is formulated, combining both
ethnicity and more direct language about the RPF, is an example of “double language”, the
real intention among its members being to target the Tutsis. However, the composition of the
Commission does not support such a view. Of its 10 members, three of them, Bagosora,
233
The view of Des Forges was that the disclaimer was “ritual courtesy, a nod, in the direction of a commitment
to democracy” in order to maintain a good public image. T. 16 September 2002 pp. 106-107; Prosecution
Exhibit 2 (Expert Report of Alison Des Forges), p. 17.
234
Des Forges, T. 10 September 2002, pp. 77, 80, 93.
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Ntabakuze and Nsengiyumva, have been indicted by the Tribunal.235 Among its members
were persons generally considered as moderate. Two later attained high positions in the post1994 Rwandan government.236 The Prosecution suggests that unlike the Accused, the
moderates distanced themselves from ethnic extremism after 1994.237 The evidence does not
support this view but indicates that they were perceived as moderates also in 1994.238 It is
therefore difficult to conclude that the ambiguous wording of the ENI Document, with its
admittedly prominent ethnic component, is sufficient evidence of a conspiracy within the
Commission around late 1991 to exterminate the Tutsi ethnic group.
206. Another question is whether individual members of the Commission intended the ENI
Document to express anti-Tutsi sentiments.239 Bagosora was appointed chairman by President
Habyarimana. This may be explained by the fact that he was the highest ranking officer
present at the 4 December 1991 meeting.240 As already mentioned, there is virtually no
evidence about the internal working of the Commission. Ntabakuze was one of the two
rapporteurs but stated that he served only briefly on the Commission. This was supported by
Bagosora.241 Leaving aside whether this is correct, the Chamber notes that Cyiza was the
other rapporteur. There is no evidence that a group of extremists within the Commission
imposed their view on the other members or exercised a particular influence on the
Commission’s conclusions.242
235
The Commission was composed of 10 members, of whom three are accused at the Tribunal, four are
deceased or reported missing, and three are at liberty: Colonel Théoneste Bagosora (accused), Colonel
Déogratias Nsabimana (deceased), Colonel Marcel Gatsinzi (at liberty), Colonel Pontien Hakizimana
(deceased), Colonel Félicien Muberuka (at liberty), Colonel Anatole Nsengiyumva (accused), Major Juvénal
Bahufite (deceased), Major Augustin Cyiza (reported missing), Major Aloys Ntabakuze (accused) and Major
Pierre Karangwa (at liberty).
236
Colonel Gatsinzi is the current Rwandan Minister of Defence. Major Cyiza was a former Vice-president of
the Rwandan Supreme Court and human rights advocate of considerable standing, see Bagosora Defence
Exhibit 358 (Expert Report of Bernard Lugan), p. 92; Bagosora, T. 26 October 2005, pp. 52-54. See also Des
Forges, T. 23 September 2002 pp. 103-106; T. 24 September 2002 pp. 2-3 (noting the complexity and
dynamism of Rwandan politics, and the fact that many persons have followed somewhat extraordinary career
paths).
237
T. 1 June 2007 p. 40.
238
See footnote 236 above and section III.4.2.3, where both Prosecution and Defence witnesses testified that
Cyiza was considered an Inyenzi in 1994; Nsengiyumva Defence Exhibit 8 (James K. Gasana: Rwanda: du
Parti-Etat à l’Etat-Garnison (2002), pp. 156-158, in particular 158 (“L’intention génocidaire de la Commission
militaire manque donc de preuves qui soient à la hauteur de la gravité d’une telle accusation. Notons par
ailleurs qu’un des deux rapporteurs de cette commission, le major Cyiza, juriste dont l’integrité n’a jamais été
mise en doute, était et reste un éminent défenseur des droits de l’homme”). As for Gatsinzi, the Chamber notes
that, after his appointment as acting chief of staff, he was ultimately removed on 16 April 1994. See Des Forges,
T. 18 September 2002 p. 114; Bagosora, T. 26 October 2005 p. 53.
239
Des Forges, T. 25 November 2002 p. 44.
240
This decision has been explained by Habyarimana’s desire to imbue Bagosora with special importance, or by
virtue of Bagasora being the highest-ranking officer with the most seniority. Des Forges, T. 10 September 2002
p. 60; T. 23 September 2002 pp. 100-102; Bagosora, T. 25 October 2005 p. 40 and 26 October 2005 p. 56;
Witness DM-190, T. 3 May 2005 p. 14.
241
Ntabakuze Defence Exhibit 235 (deposition of Ntabakuze), p. 32, annexed to the Ntabakuze Closing Brief;
Bagosora, T. 26 October 2005 p. 59. See also Des Forges, T. 25 November 2002 p. 44.
242
Nsengiyumva Defence Exhibit 83 (Augustin Cyiza – Un homme libre au Rwanda, (2004)), contains an
interview with Cyiza before he disappeared. It describes the work of the two rapporteurs, himself and
Ntabakuze, and how the Commission finalised the report, sentence by sentence, in plenary. In his view, the
Commission’s definition of the enemy was a sociological reality (p. 11: “Pour moi, la definition de l’ennemi
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207. Turning finally to the publication of the ENI document, the Chamber recalls that it
was distributed by the chief of staff, Déogratias Nsabimana (III.2.2; III.2.4.1). There is no
evidence that Bagosora, Ntabakuze or Nsengiyumva played any role in connection with the
decision to publish it, several months after the Commission had submitted its report.
208. Consequently, the Chamber does not find it established beyond reasonable doubt that
Bagosora, Ntabakuze and Nsengiyumva acted together in a conspiracy as members of the
Enemy Commission in December 1991, the aim being to exterminate the Tutsi ethnic group.
It reaches the same conclusion with respect to the publication of the ENI Document in
September 1992. Kabiligi was not a member of the Commission and there is no evidence
linking him to the ENI document or its publication.
209. This said, the ENI Document can be interpreted as equating Tutsi civilians with
members of the RPF. The identification between Tutsi civilians and the enemy was an
important precondition of the genocide. It also appeared to over-emphasise the ethnic
component of the conflict in Rwanda. Although not in itself evidence of a conspiracy, the
ENI Document is therefore significant as an early illustration of the tendency to polarise
Rwandan society along ethnic lines. This occurred at a point of particular national
vulnerability which, instead, called for responsible civic leadership.
210. In this light, the question remains whether subsequent use of the ENI Document is an
indication of a conspiracy. The Prosecution points to its circulation by Nsabimana, its use by
Ntabakuze during meetings with his soldiers at Camp Kanombe as well as similar sentiments
expressed by Kabiligi in Byumba in 1992. Reference is also made to a press release by the
CDR party listing enemies which mirrors the ENI Document.243 The Chamber has considered
elsewhere in the judgement the issue of the circulation of the document by Nsabimana and its
use by Ntabakuze (III.2.4.1) as well as Kabiligi’s alleged speech in Byumba (III.2.5.1) and
concluded that these incidents either do not in themselves reflect a conspiracy or were not
proven beyond reasonable doubt. The press release by the CDR party, which identifies as the
“enemy” certain persons who were allegedly collaborating with the RPF, does not allude to
the ENI Document.244 While it makes reference to similar categories found in the ENI
Document, such as persons recruiting for the RPF, this general category does not sufficiently
reflect that there was any collaboration with the CDR party and members of the Commission.
2.3
Apocalypse Statement, Late October 1992
Introduction
211. The Bagosora Indictment alleges that Bagosora was opposed to the Government’s
concessions during the Arusha negotiations and left, “saying that he was returning to Rwanda
to ‘prepare the apocalypse’”. The Prosecution relies primarily on the testimony of Witness
XAM and a written statement of a potential witness, KT, who were both members of the RPF
delegation in Arusha. Some Prosecution witnesses also learned about Bagosora’s alleged
c’est une réalité sociologique. L’interpretation du parti au pouvoir a été que l’ennemi était le Tutsi et
l’opposant politique. Mais ce n’était pas l’esprit de la commission”).
243
Prosecution Closing Brief, paras. 512-524, 602; T. 28 May 2007 pp. 12-13; T. 1 June 2007 pp. 44-45.
244
Prosecution Exhibit 29 (CDR party communiqué No. 5 (22 September 1993)).
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remark from others or the media. According to the Prosecution, this incident shows his
intention to enter into an agreement to commit genocide.245
212. The Bagosora Defence characterises this allegation as RPF propaganda. Bagosora was
not present in Arusha when the purported statement was made. The Defence points to
Witness B-9 as well as Claver Kanyarushoki, who participated in the October 1992 power
sharing talks and testified that Bagosora was not amongst the Rwandan government’s
delegation at that time.246
Evidence
Prosecution Witness XAM
213. Witness XAM, a Tutsi, testified that Bagosora participated in the Arusha Accords
negotiations on power sharing during a session in October 1992 as the most senior member of
the FAR on the Rwandan government’s negotiating team. After a morning of negotiations,
the witness and two colleagues joined Bagosora, who was carrying his suitcases, in a hotel
elevator as the members of the RPF delegation headed for lunch. The witness asked Bagosora
why he was leaving so early for Christmas. Bagosora allegedly responded that he was not
going home for Christmas, but that he was going to prepare the “apocalypse”. Given the
nature of Bagosora’s comment, the witness immediately informed the Rwandan Foreign
Minister, Boniface Ngulinzira, and Claver Kanyarushoki, the Rwandan Ambassador to
Uganda.247
Bagosora
214. Bagosora testified that he never made the alleged statement nor participated in the
power sharing talks, as asserted by Witness XAM. He arrived in Arusha only from 2 to 26
December 1992 to negotiate on a different topic, namely the integration of the armed
forces.248
Bagosora Defence Witness B-9
215. Witness B-9, a Hutu, who participated in the October 1992 power sharing talks as a
member of the Rwandan government delegation, confirmed that Bagosora only joined the
negotiating team during the late November 1992 to early January 1993 session of talks to
participate in discussions concerning military integration.249 To illustrate this, the witness
referred to a list of participants from both delegations attending the second round of
negotiations in October 1992 on the power sharing protocol. The list does not mention
Bagosora. Witness B-9 stated that in December 1992, the discussion on the integration of
245
Bagosora Indictment paras. 5.10; Prosecution Closing Brief, paras. 38, 1548-1551. The Prosecution also
refers to the evidence of Witnesses DCH, AE, ON, AR, ZF and ATY who later heard of the apocalypse
statement from Witness XAM or others (para. 1550), as well as to written statements of James Gasana
(Nsengiyumva Defence Exhibit 219) and Joseph Murasampongo (Bagosora Defence Exhibit 128).
246
Bagosora Closing Brief, paras. 743-767, and more generally paras. 768-792.
247
T. 29 September 2004 pp. 2, 3 (quoting Bagosora as saying: “He was not going for Christmas, but he was
going to prepare apocalypse two.”), 5, 11, 15, 19, 20, 39; Prosecution Exhibit 311 (personal identification
sheet).
248
T. 14 November 2005 pp. 8, 20, 53. See also Bagosora Defence Exhibit 227 (Bagosora’s passport), which
places him in Tanzania between 2 and 26 December 1992. The passport was issued on 1 December 1992.
249
T. 4 July 2005 pp. 20-21. He did not specify Bagosora’s arrival date.
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armed forces had not yet begun and thus the military members who arrived participated in the
continued discussions on power sharing.250
Kabiligi Defence Witness Claver Kanyarushoki
216. Witness Kanyarushoki, a Hutu, testified that Bagosora was not amongst the Rwandan
government’s delegation during the October 1992 negotiations. Witness XAM never
informed the witness about Bagosora’s alleged apocalypse statement.251
Deliberations
217. Witness XAM is the only Prosecution witness who gave direct evidence concerning
Bagosora’s alleged remarks about the “apocalypse”. He was a member of the RPF delegation
during the October and December 1992 negotiations in Arusha. There is a significant
discrepancy between Witness XAM’s account of Bagosora’s participation in the negotiations
and the Defence evidence, which suggests that Bagosora was not in Arusha in October 1992
when he, according to the witness, made the statement.252
218. This contradiction could be explained if Witness XAM was simply mistaken about
when the exchange occurred and it instead took place in December 1992. Both he and
Bagosora were in Arusha that month. Such an explanation would also be consistent with the
reference to Christmas during their alleged conversation. However, the witness was asked
several times to confirm the date of the alleged event. He remained adamant that it took place
in October 1992 during the power sharing talks, even when it was suggested to him that
Bagosora participated in the negotiations only in December.253
219. Moreover, the testimony of Claver Kanyarushoki that Witness XAM never informed
him about Bagosora’s alleged apocalypse statement raises additional questions about the
Prosecution’s evidence.254 The Chamber considers Kanyarushoki’s evidence as credible.
220. During cross-examination, the Defence put to Witness XAM a statement of
Prosecution Witness KT, who was not called.255 The document was admitted in order to
assess Witness XAM’s credibility, not for the truth of its content.256 However, even if it were
considered for purposes of corroboration, as suggested by the Prosecution, there are
discrepancies between that document and the testimony of Witness XAM. Witness KT’s
statement indicates that the incident occurred in the morning around Christmas 1992 as the
RPF delegation headed for breakfast, and that the apocalypse remark was made in response to
250
T. 4 July 2005 pp. 11, 13, 14, 16, 20-22; Bagosora Defence Exhibit 174 (personal identification sheet);
Bagosora Defence Exhibit 175 (List of participants at the second round of political negotiations concerning the
sharing of power).
251
T. 17 November 2006 p. 44; Kabiligi Defence Exhibit 113 (personal identification sheet). This witness was
previously referred to as KVB-46.
252
The negotiations were originally scheduled from 5 to 15 October but were extended to 30 October 1992. T. 4
July 2005 pp. 13-14, 16.
253
T. 29 September 2004 pp. 15-17, 39.
254
T. 17 November 2006 p. 44.
255
Bagosora Defence Exhibit 142 (statement of 25 February 1998).
256
T. 29 September 2004 p. 41. See also Akayesu Appeal Judgement, para. 134 (“In the opinion of the Appeals
Chamber prior statement of witnesses who appear in court are as a rule relevant only insofar as they are
necessary to a Trial Chamber in its assessment of the credibility of a witness. It is not the case, as appears to be
suggested by Akayesu, that they should or could generally in and of themselves constitute evidence that the
content thereof is truthful.”).
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a question from Witness KT. In contrast, Witness XAM categorically placed the event in
October 1992 around lunch time after a morning of heated negotiations, and he claimed that
his question to Bagosora prompted the apocalypse remark. Furthermore, he did not list
Witness KT as one of the individuals accompanying him when the remark allegedly was
made in the elevator.257 In light of these contradictions, the Chamber considers that Witness
KT’s statement does not corroborate Witness XAM’s account but rather raises further doubt
about the reliability of his testimony.258
221. Finally, the Chamber is not persuaded that Witnesses DCH, AE, ON, AR, ZF and
ATY, who subsequently learned of this alleged exchange second-hand or heard other persons
use the term “apocalypse” in 1994, lend any greater strength to Witness XAM’s testimony
that Bagosora made the comment in 1992.259
222. The Chamber finds that the Prosecution has not proven beyond reasonable doubt that
Bagosora made the so-called “apocalypse” statement during the Arusha negotiations, as
alleged in paragraph 5.10 of the Bagosora Indictment.260
2.4
2.4.1
Meetings Before 6 April 1994
Meetings at Camp Kanombe, 1992 - 1993
Introduction
223. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment allege that,
during the course of the negotiations of the Arusha Accords, senior army officers, including
Bagosora and Ntabakuze, held meetings at Camp Kanombe. During this period, Bagosora
and Ntabakuze purportedly urged the military to reject and show its disapproval of the
Arusha Accords. They made statements identifying the enemy as the Tutsis and their
sympathisers as the Hutus in the opposition, and stated that the extermination of the Tutsis
would be the inevitable consequence of any resumption of hostilities by the RPF. In support
257
T. 29 September 2004 p. 3; Prosecution Exhibit 312 (The names of persons in the lift with Prosecution
Witness XAM when he heard Accused Théoneste Bagosora make his statement). This document contains two
names, whereas Witness KT’s statement lists three persons, of whom only one is mentioned in both exhibits.
258
The Defence has also referred to documents purportedly explaining why Bagosora left the negotiations in
December 1992 (Bagosora Defence Exhibits 232-237). The Chamber does not consider it necessary to discuss
these documents.
259
None of these persons were present during the negotiations in Arusha. They heard about Bagosora’s remark
afterwards (without specifying dates). See also Reyntjens, T. 16 September 2004 p. 10; Nsengiyumva Defence
Exhibit 219B (statement of 29 March 1997 by James Gasana, who heard from a representative of the RPF that
Bagosora openly declared that he was going to “prepare the apocalypse”), pp. 6-7; Bagosora Defence Exhibit
128B (statement of 1 December 1997 of Joseph Murasampongo, who heard from his younger brother, an
adviser to Minister Ngulinzira, that after returning from a negotiation mission in Arusha, Bagosora declared that
he was going to unleash the Apocalypse.”), p. 9.
260
Paragraph 5.10 of the Bagosora Indictment also refers Bagosora’s alleged anger at the positions taken by the
Rwandan Foreign Minister Boniface Ngulinzira during the negotiations and Ngulinzira’s subsequent killing on
10 April 1994 as result of his moderate stance. Some testimonies about Ngulinzira’s killing were given by
Prosecution Expert Witness Alison Des Forges (T. 11 September 2002 pp. 97-100; T. 16 September 2002 pp.
95-96; T. 17 September 2002 pp. 47-48; T. 18 September 2002 p. 16), Prosecution Witness DCH (T. 24 June
2004 pp. 57-59) and Prosecution Witness XBM (T. 14 July 2003 pp. 16-17). This evidence, however, is second
hand. In its Closing Brief, the Prosecution does not refer to any direct evidence in support of this allegation, and
the Chamber has not found any basis for it.
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of these allegations, the Prosecution points to evidence that Bagosora met with Ntabakuze at
Camp Kanombe and that Ntabakuze held ideology courses with members of the Para
Commando Battalion at the camp. Reference is made to Witnesses DBQ, DBN, BC, LN,
XAP and DP.261
224. The Bagosora and Ntabakuze Defence teams argue that the Prosecution evidence
lacks credibility. They point to testimonies showing that Bagosora did not visit the camp and
that Ntabakuze did not voice anti-Tutsi sentiments during this period. The Ntabakuze
Defence argues that these alleged incidents fall outside of the temporal scope of the
Tribunal’s jurisdiction and are not specifically pleaded in the Indictment. Reference is made
to Witnesses LMG, DK-11, DM-190, DM-191, DH-51, DM-25, DM-26 and Colonel Joseph
Dewez.262
Evidence
Prosecution Witness DBQ
225. Witness DBQ, a Hutu, testified that he was a member of the First Company of the
Para Commando Battalion. In 1993, there were regular meetings at the office of the
commander of Camp Kanombe between senior officers, including the camp commander
Colonel Muberuka, Colonel Baransaritse from the camp’s medical company, Bagosora and
Ntabakuze. The witness observed approximately 10 meetings, and Bagosora attended seven
or eight of them. Ntabakuze’s bodyguard told him that at one meeting the officers said that
they would rather leave the country than live with the Inkotanyi.263
226. At some point in 1993, the witness also attended a meeting of the entire battalion at
Camp Kanombe where Ntabakuze opposed the merger of the army and the RPF, stating that
he would rather leave the country than have Paul Kagame in the army. He described the
Tutsis as the enemy, but did not distribute the Definition of the Enemy document to the
troops. Ntabakuze predicted that the Arusha Accords would fail and preferred continuation of
the war. He urged solders not to mix with the Inkotanyi and added that, if the Inkotanyi
resumed hostilities, he would start killing the Tutsis near the camp.264
Prosecution Witness DBN
227. Witness DBN, a Tutsi, was a member of the Para Commando Battalion. Between
1992 and 1993, Ntabakuze held bi-monthly meetings of the entire battalion in a wooded area
at Camp Kanombe known as Joli Bois. The witness attended five of the meetings during this
period. Ntabakuze would give updates on the negotiation process for the Arusha Accords and
instructed his soldiers on what their attitude should be towards them. He urged rejection of
the proposed merger between the Rwandan army with the RPF since they could not live with
the Tutsi Inyenzi. Instead, he advocated continued war. Ntabakuze spoke about the “enemy”
which he defined as the Tutsi Inyenzi who had attacked Rwanda from Uganda and wanted to
261
Bagosora Indictment, paras. 5.8, 5.11, 5.12; Kabiligi and Ntabakuze Indictment, paras. 5.8, 5.10, 5.11.
Prosecution Closing Brief, paras. 39, 1109(a), 1119-1120(b), 1216(a), 1320(a), 1324(b), 1325, pp. 715, 793-795.
262
Bagosora Closing Brief, paras. 473-478, 778-781; Ntabakuze Closing Brief, paras. 246-283, 293-335, 634653, 737-748, 754, 797-816, 826-843.
263
T. 23 September 2003 pp. 3, 46, 48-49; T. 29 September 2003 pp. 74-76; T. 30 September 2003 pp. 64-67;
Prosecution Exhibit 99 (personal identification sheet).
264
T. 23 September 2003 pp. 46-48, 50-51; T. 30 September 2003 pp. 57-59.
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conquer the country. He also mentioned that there were Tutsis in the country collaborating
with the RPF.265
Prosecution Witness BC
228. Witness BC was a member of the CRAP Platoon of the Para Commando Battalion.
He attended two meetings of the entire battalion at Joli Bois in Camp Kanombe. During the
first meeting in early 1993, Ntabakuze condemned the negotiation process for the Arusha
Accords and stated that he did not want to sit at the same table as those “Tutsi sons of a
bitch”. He also rejected the power-sharing implications of the agreement. At the second
meeting in late 1993, Ntabakuze expressed concern about the growing strength of the RPF
army, the mounting casualties it was inflicting and the possibility that it was infiltrating the
army’s ranks. A soldier then asked if they should not start dealing with the infiltrators within
their ranks. Ntabakuze told him to sit down and that he should not ask such questions in a
public meeting.266
Prosecution Witness LN
229. Witness LN, a Tutsi, was a member of the Para Commando Battalion, but joined the
medical company at Camp Kanombe after an injury. He testified that, between the end of
1992 and early 1994, weekly mandatory meetings were held at the Joli Bois area of Camp
Kanombe for the battalion members that were not assigned to permanent duties. The witness
attended three at the end of 1992. During the meetings, Ntabakuze defined the “enemy” as
the “Tutsi Inyenzi” and also as those attacking Rwanda from outside, accomplices offering
support within the country, including those in the army, and political opponents of the
MRND. Reference was made at the meetings to the Definition of the Enemy document
circulated by the army general staff. Ntabakuze also advised soldiers to avoid enemy traps,
such as money used by the “enemy” and marrying Tutsi women.267
Prosecution Witness DP
230. Witness DP, a Tutsi, was a member of the General Services Company of the Para
Commando Battalion. In 1992, Ntabakuze addressed a full meeting of the battalion where
one of the soldiers expressed concern, by saying: “We cannot win this war when we go to the
war front and we leave the enemies right here.” Ntabakuze told him that that was possible,
but they had to be careful and assess the situation first. Following the signing of the Arusha
Accords, Ntabakuze held another meeting of the battalion and informed his troops about the
prospective merger between the army and RPF on a 60 to 40 percent basis, respectively.
Ntabakuze said that he would resist the integration. One soldier suggested that the integration
would result in Paul Kagame becoming army chief of staff. Ntabakuze answered that he
would rather leave the country than live with Tutsis.268
265
T. 31 March 2004 pp. 61, 64-68; T. 5 April 2004 pp. 30-31; Prosecution Exhibit 198 (personal identification
sheet).
266
T. 1 December 2003 pp. 25-31; T. 10 December 2003 pp. 93-96; Prosecution Exhibit 147 (personal
identification sheet). Witness BC stated that he did not know his ethnic group. See T. 1 December 2003 pp. 3940.
267
T. 30 March 2004 pp. 48-56; T. 31 March 2004 pp. 14-16, 18-21, 41-45; T. 1 April 2004 pp. 24-28;
Prosecution Exhibit 197 (personal identification sheet).
268
T. 2 October 2003 pp. 7-8, 27-31, 38-39, 66-67; Prosecution Exhibit 112 (personal identification sheet).
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Prosecution Witness XAP
231. Witness XAP was a member of the Second Company of the Para Commando
Battalion. For three months in 1993, Lieutenant Gahutu, the witness’s company commander,
as well as the platoon leaders conducted meetings at the company level three times a week at
Joli Bois in Camp Kanombe in order to explain to their soldiers the definition of the
“enemy”. They explained that the “enemy” were Tutsis outside the country, Tutsis within the
country who sent their children to join the RPF, and members of the opposition, particularly
the PL and the MDR. The officers conducting the meetings also mentioned opposition
politicians, such as Faustin Twagiramungu, an MDR official, and Landouald Ndasingwa, a
PL official, by name. A brochure in Kinyarwanda containing the definition of the enemy
bearing Ntabakuze’s stamp and seal as battalion commander was distributed during the
meetings. Ntabakuze attended one of the meetings, but did not give the lectures.269
Bagosora
232. Bagosora testified that he participated in the negotiations for the Arusha Accords as a
military expert from 2 to 26 December 1992, 16 March to 25 June 1993 and 1 to 25 July
1993. He therefore could not have attended any meetings at Camp Kanombe as alleged by
Witness DBQ.270
Ntabakuze
233. Ntabakuze denied that he met with Bagosora and other senior officers at Camp
Kanombe to discuss opposition to the Arusha Accords. He also disputed that he sanctioned or
participated in meetings with his battalion as described by the Prosecution witnesses. In
particular, there would not have been material distributed in Kinyarwanda since all army
documents were prepared in French. He welcomed the peace agreement after several years
war and even played a role in its implementation by participating in the drafting of
regulations for the integration of the two forces.271
Bagosora Defence Witness LMG
234. Witness LMG, a Hutu soldier, stated that Bagosora only travelled to Camp Kanombe
twice from 1992 to April 1994. He also only heard Bagosora speak positively about the
Arusha Accords.272
Ntabakuze Defence Witnesses DM-190, DM-191, DH-51
235. Witnesses DM-190 and DM-191, both senior Hutu military officers, as well as
Witness DH-51, a Hutu army escort, testified that it would not have been possible for an
officer’s escort to attend a high level meeting, thus allowing him to report its contents to
someone else. Witness DM-190 acknowledged that various units in the army held regular
compulsory “morality sessions”. Witness DM-191 added that all instruction material in the
269
T. 11 December 2003 pp. 11-16, 21-24; T. 15 December 2003 pp. 74-86, 96; Prosecution Exhibit 152
(personal identification sheet). Witness XAP refused to provide his ethnicity. See T. 11 December 2003 pp. 6568.
270
T. 27 October 2005 p. 60; T. 1 November 2005 pp. 8, 15; T. 10 November 2005 p. 75; T. 11 November 2005
p. 20; T. 14 November 2005 pp. 1-2.
271
T. 21 September 2006 pp. 35-40, 44, 48-49; T. 25 September 2006 pp. 23, 31-32, 34-38.
272
T. 15 July 2005 pp. 19-20; T. 18 July 2005 pp. 2-3; Bagosora Defence Exhibit 181 (personal identification
sheet).
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army was prepared in French and documents were interpreted orally into Kinyarwanda if
necessary.273
Ntabakuze Defence Witness DK-11
236. Witness DK-11, a Hutu member of the CRAP Platoon, said that Ntabakuze regularly
held meetings of the entire Para Commando Battalion at Joli Bois in Camp Kanombe. All
soldiers would attend except those with special duties or permission. He attended about half
of these meetings between 1991 and 1994. At some meetings, Ntabakuze described the RPF
as the enemy. However, Ntabakuze never made derogatory comments about Tutsis or the
Arusha Accords.274
Ntabakuze Defence Witness DM-25
237. Witness DM-25, a Hutu, was a member of the MDR party who worked in the office
of Prime Minister Dismas Nsengiyaremye during his term of office from 5 April 1992 until
16 July 1993. After the conclusion of the Arusha Accords, the witness attended a meeting
between military officers and politicians where the agreement was not well received.
Ntabakuze addressed the gathering and praised the Accords as well as the peace process.275
Ntabakuze Defence Witness DM-26
238. Witness DM-26 is an officer who worked with Ntabakuze at Camp Kanombe between
1992 and 1994. The witness did not observe Ntabakuze discriminate against anyone in the
Para Commando Battalion. Ntabakuze did not think it would be realistic for the army and the
RPF to merge after four years of war, but did not seem otherwise opposed to the Arusha
Accords.276
Ntabakuze Defence Witness Joseph Dewez
239. Colonel Dewez, a Belgian, served in Rwanda from 15 March until 19 April 1994 as
commander of UNAMIR’s Kigali Battalion. He attended military training between 1987 and
1988 along with Ntabakuze at Fort Leavenworth in the United States where they became
acquainted. In speaking with Ntabakuze in Rwanda in late March 1994, the witness received
the impression that Ntabakuze was not an extremist and that he was looking forward to
seeing a return to peace in Rwanda.277
Deliberations
240. The Prosecution relies solely on Witness DBQ to establish that Bagosora, Ntabakuze
and other officers met regularly at Camp Kanombe during the negotiation process for the
Arusha Accords. The Chamber has questioned the credibility of aspects of Witness DBQ’s
credibility in other parts of the judgement. In particular, the Chamber recalls that, in
connection with the events which transpired at Camp Kanombe on the night of 6 April, the
273
Witness DM-190, T. 3 May 2005 pp. 30, 40; Ntabakuze Defence Exhibit 94 (personal identification sheet).
Witness DM-191, T. 5 May 2005 pp. 63-64; Ntabakuze Defence Exhibit 98 (personal identification sheet).
Witness DH-51, T. 6 December 2005 p. 10; Ntabakuze Defence Exhibit 199 (personal identification sheet).
274
T. 19 July 2005 pp. 8-12, 20-22; T. 20 July 2005 pp. 18-21; T. 21 July 2005 pp. 37-38; Ntabakuze Defence
Exhibit 144 (personal identification sheet).
275
T. 11 April 2005 p. 61; T. 12 April 2005 pp. 12-20; Ntabakuze Defence Exhibit 81 (personal identification
sheet).
276
T. 1 December 2006 pp. 23, 25, 27; Ntabakuze Defence Exhibit 266 (personal identification sheet).
277
T. 23 June 2005 pp. 16-18, 26-28. Ntabakuze Defence Exhibit 122 (personal identification sheet).
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witness asserted that Bagosora came to the camp and met at the same time as other credible
Prosecution and Defence evidence placed Bagosora in meetings across Kigali with senior
military and UNAMIR officials (III.3.5.1).
241. The Chamber views Witness DBQ’s evidence with similar caution on these meetings
and declines to rely on them in the absence of further evidence on this point. In any event,
even if the Chamber accepted the witness’s evidence as true, his account of what was said at
the meeting is second-hand and uncorroborated. The Chamber therefore does not need to
consider whether Bagosora’s evidence concerning his limited travel to the camp and whether
the general assertions of Witnesses DM-190, DM-191 and DM-51, suggesting that Witness
DBQ could not have heard about the discussions from an escort, raise doubt about his
allegations.
242. Turning to the alleged meetings of the Para Commando Battalion held at Joli Bois, the
Prosecution points to six witnesses, who were members of the Para Commando Battalion, in
support of the contention that Ntabakuze or other officers opposed the Arusha Accords,
defined the enemy or made derogatory comments towards Tutsis during battalion meetings at
the camp.
243. The Chamber notes that many of the witnesses provided a different description of
when and how frequently the meetings were held. Witness DBQ attended one meeting at
some point in 1993. Witness DBN referred to mandatory bi-monthly meetings between 1992
and 1993, of which he attended five. Witness BC attended two meetings, at the beginning and
end of 1993, respectively. Witness LN referred to three meetings at the end of 1992, but
noted that there were weekly meetings between 1992 and 1994. Witness DP participated in
one meeting in 1992 and another after the signing of the Arusha Accords in the second half of
1993. Witness XAP described a series of meetings held three times a week for three months
in 1993. It is also notable that a number of witnesses described the meetings as regular and
mandatory for the entire battalion, yet each of the witnesses only participated in a few of
them. In addition, Witness XAP mentioned that the meetings were held by his company
commander and did not mention the larger meetings of the battalion, which Ntabakuze
supposedly addressed. Witness DBQ is also alone is suggesting that Ntabakuze threatened to
kill Tutsis in the area around the camp.
244. In the Chamber’s view, this lack of consistency raises some concern about the
credibility of the Prosecution’s evidence on this point. The Chamber therefore declines to
accept the specific details of each of the witnesses accounts. Nevertheless, this evidence
taken together suggests that, at some point between 1992 and 1993, Ntabakuze addressed his
battalion on one or more occasions about the Arusha Accords and discussed the definition of
the enemy.
245. In reaching this conclusion, the Chamber is mindful that, on 21 September 1992,
Déogratias Nsabimana, the army chief of staff, circulated the Definition of the Enemy
Document to the commanders of all operational sectors and asked them to widely distribute
the document highlighting the definition, identification and recruiting grounds of the
enemy.278 Ntabakuze was a member of the Enemy Commission that prepared the document
(III.2.2). Therefore, it follows that Ntabakuze as a battalion commander would have
implemented this instruction. Notably, several of the witnesses, including Witnesses DBN,
278
Prosecution Exhibit 13B (letter from Nsabimana to operations commanders, dated 21 September 1992).
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BC and LN, recounted Ntabakuze defining the enemy and its accomplices in a similar fashion
as described in the document. Furthermore, Witness DM-190 noted that there were regular
morality sessions within the army, and Witness DK-11 also recalls Ntabakuze speaking about
the enemy. The fact that the official language of the army was French does not mean that
some material related to this topic could not have been provided in Kinyarwanda. It is also
logical that Ntabakuze would have given an update about the Arusha Accords since the
ongoing process would have impacted the composition of the army.
246. Finally, the Chamber considers that Ntabakuze most likely made some inflammatory
comments about the RPF or the success of the Arusha Accords, in particular given the RPF’s
unilateral resumption of hostilities in February 1993. Witness DM-25’s testimony reflects
that Ntabakuze was highly sceptical of the feasibility of integrating the two forces. The
Chamber accords the evidence of Witnesses DM-25, DM-26 and Dewez about Ntabakuze’s
generally more positive attitude towards the process limited weight. These witnesses did not
attend the meetings where he addressed his troops, and Ntabakuze may well have taken a
different position with these witnesses given their background or positions. Be that as it may,
opposition or statements against the Arusha Accords or elements therein, for example the
integration of armed forces, does not as such constitute criminal conduct.
247. Accordingly, the Prosecution has not proven beyond reasonable doubt that Bagosora,
Ntabakuze and other senior officers met at Camp Kanombe during the negotiation process of
the Arusha Accords. The totality of the evidence suggests that Ntabakuze likely discussed the
definition of the enemy with his battalion and expressed scepticism at the success of the
integration of the army and RPF at some point between 1992 and 1993. The Chamber,
however, is not convinced that this in itself demonstrates that Ntabakuze participated in a
plan to commit genocide or harboured genocidal intent. The Chamber therefore does not need
to address Ntabakuze’s challenge with respect to the notice provided for these incidents.279
2.4.2
MRND Meeting, Umuganda Stadium, 27 October 1993
Introduction
248. Each of the Indictments alleges that Bagosora publicly urged the military to reject and
show its disapproval of the Arusha Accords and that several officers, including Bagosora,
stated that extermination of the Tutsis would be the inevitable consequence of any
resumption of hostilities by the RPF or if the Arusha Accords were implemented. Referring
to Witness XBM, the Prosecution points to a MRND meeting at Umuganda Stadium in
Gisenyi prefecture on 27 October 1993 where Bagosora allegedly spoke.280
249. The Bagosora Defence argues that it did not receive adequate notice of this event. In
addition, Witness XBM’s testimony is uncorroborated and not credible.281
279
The Chamber previously held that Ntabakuze had notice of the alleged meetings between him and Bagosora
at Camp Kanombe. See Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras.
57-59.
280
Bagosora Indictment, paras. 5.11; Kabiligi and Ntabakuze Indictment, paras. 5.10-5.11; Nsengiyumva
Indictment, para. 5.10; Prosecution Closing Brief, paras. 502, 1056, pp. 715, 794-795, 852.
281
Bagosora Closing Brief, paras. 240-241, 673-691, 777-778, 1407, 1623-1625, 1627, 1885-1888, 2191, pp.
349-351; T. 30 May 2007 pp. 5-6. The Kabiligi and Ntabakuze Defence teams do not address this allegation.
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Evidence
Prosecution Witness XBM
250. Witness XBM, a Hutu and a CDR party member from 1992 through 1994, testified
that he attended a MRND party meeting at Umuganda Stadium on 27 October 1993 that
lasted from 10.00 or 11.00 a.m. until around 3.30 p.m. The MRND organised the meeting to
recruit new members. A number of authorities addressed a crowd of at least 4,000. The
bourgmestre of Rubavu commune in Gisenyi prefecture welcomed everyone. The prefect’s
representative introduced the visiting delegates: Augustin Ngirabatware, the Minister of
Planning; Édouard Karemera, a MRND member of parliament; Joseph Nzirorera; Bagosora;
and Mathieu Ngirumpatse, the MRND party chairman. Wellars Banzi, the Gisenyi MRND
chairman, and Ngirabatware discussed the strength of the MRND party in the area. Karemera
spoke about the worthlessness of the Arusha Accords, but nonetheless asked the attendees to
coexist peacefully with supporters of national unity.282
251. Bagosora wore civilian clothes and sat “with other personalities”. During the
introductions, the prefect’s representative informed the attendees that Bagosora was the
directeur du cabinet in the Ministry of Defence and a member of the Arusha delegation. After
Karemera finished speaking, Bagosora addressed the crowd for 15 to 20 minutes. He
disagreed with the Arusha Accords and stated that power should not be shared with the
enemy negotiating in Arusha. The Inkotanyi wanted to reduce the Hutu to slavery. Witness
XBM also heard Bagosora claim that the war would end once the population contributed
financially to its soldiers, and that such contributions were essential to prevent the sort of
infiltration that led to the Tutsi slaughter of Hutus in Kirambo commune. The final speaker,
Ngirumpatse, illustrated the MRND’s strength by pointing to the 500 Interahamwe present in
the stadium, all of whom, he said, had been trained outside of Rwanda.283
252.
The witness testified that, in the evening of 27 October, he heard a Radio Rwanda
newscaster put the rally’s attendance at over 4,000. The reporter also summarised the various
speeches and discussed Bagosora’s presence at the rally.284
Bagosora
253. Bagosora denied attending an MRND meeting in October 1993, adding that, if he had
participated in such a meeting, there would have been news accounts.285
Deliberations
254. Witness XBM was the only witness to testify about the alleged participation of
Bagosora in an MRND meeting at Umuganda stadium in Gisenyi prefecture in October 1993.
He mentioned this rally in his prior statement in February 2003 to Tribunal investigators.286
Given the size of the alleged crowd, it is notable that no other witnesses testified about this
The Nsengiyumva Defence notes that the Chamber excluded this evidence with respect to Nsengiyumva.
Nsengiyumva Closing Brief, paras. 594, 1245, 1260, 2017; T. 31 May 2007 p. 43.
282
T. 14 July 2003 pp. 12, 17-19, 21, 58, 80-83; T. 15 July 2003 pp. 2, 5; Prosecution Exhibit 80 (personal
identification sheet).
283
T. 14 July 2003 pp. 19-20, 80, 82, 84; T. 15 July 2003 pp. 2-5.
284
T. 14 July 2003 pp. 81-83; T. 15 July 2003 p. 1.
285
T. 1 November 2005 pp. 67-68; T. 14 November 2005 p. 11.
286
Bagosora Defence Exhibit 26 (statement of 28 February 2003).
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meeting. There are also no available transcripts from the radio or any other contemporaneous
accounts of the meeting.
255. The Prosecution submits that Witness XBM’s testimony is corroborated by Alison
Des Forges, who testified about common themes in the writings of Bagosora and
Nsengiyumva. The Prosecution notes that the themes expressed during the meeting are
similar to their other writings.287 In the Chamber’s view, however, this does not sufficiently
substantiate that the meeting in fact occurred or that Bagosora was amongst the participants.
256. The Chamber has expressed reservations about the credibility of other aspects of
Witness XBM’s testimony (III.2.4.5; III.3.6.7; III.4.2.4). It therefore views his testimony on
this event with caution and declines to accept his account of this meeting without adequate
corroboration. Accordingly, the Prosecution has not proven beyond reasonable doubt that
Bagosora participated in a meeting at the Umuganda stadium in Gisenyi prefecture in
October 1993.
257. The Chamber held, during the trial, that Bagosora had adequate notice of this
allegation. In view of the Chamber’s findings, it need not revisit the Bagosora Defence
arguments concerning the pleading of this in the Indictment.288
2.4.3
Distribution of Weapons, Bugarama, 28 January 1994
Introduction
258. The Ntabakuze and Kabiligi Indictment alleges that soldiers gave assistance to
civilian militias by providing weapons to them among other support. Specifically, the
Prosecution alleges that on 28 January 1994, Kabiligi and André Ntagerura arrived by
helicopter in Bugarama sector, Cyangugu prefecture and with Emmanuel Bagambiki
distributed weapons to Interahamwe militia at a rally held on a football field. Reference is
made to Witness LAI.289
259. The Kabiligi Defence reiterates that it had insufficient notice of Kabiligi’s
participation in this crime. Furthermore, Witness LAI’s testimony lacks credibility and is
contradicted by Emmanuel Bagambiki and André Ntagerura. Kabiligi was in Egypt on 28
January 1994, as explained by Witness LAX-23.290
287
Prosecution Closing Brief, para. 1059.
The Chamber has concluded that Bagosora had notice of his participation in the meeting. See Decision on
Bagosora Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May 2007, paras.
58-60. The Chamber, however, granted Nsengiyumva’s request to exclude this evidence. See Decision on
Nsengiyumva Motion For Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September 2006
p. 22.
289
Kabiligi and Ntabakuze Indictment, paras. 4.2, 6.45; Prosecution Closing Brief, paras. 683, 1415(b), 14161423, pp. 785-786, 839-840.
290
Kabiligi Closing Brief, paras. 110, 480-481, 941-944, 946-956, 959-963, 1098-1099, 1147-1151, 1165-1167,
1231, 1278, 1310-1311, p. 578; T. 28 May 2007 pp. 35-36, 39, 55-56; T. 29 May 2007 pp. 19-21, 39.
288
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Evidence
Prosecution Witness LAI
260. Witness LAI, a Hutu, was a driver and member of the Interahamwe in 1994. On 5
January 1994, Emmanuel Bagambiki, Mathieu Ngirumpatse, Major Bavugamenshi of the
gendarmerie met with Yussuf Munyakazi, the head of the Interahamwe for Bugarama
commune in Cyangugu prefecture, at his residence. The witness was present with other
Interahamwe and overheard the officials inform Munyakazi that Kabiligi and André
Ntagerura would be coming in a helicopter to deliver weapons. Munyakazi held a meeting
with Interahamwe the next day to inform them of the upcoming event.291
261. On the morning of 28 January 1994, Kabiligi, Ntagerura and Bagambiki arrived by
helicopter at the Bugarama football field where around 20,000 Interahamwe youths from the
Bugarama, Gishoma and Nyakabuye communes were gathered. The witness, who assisted
with protocol for the rally, stood nearby and watched as Munyakazi and various others,
including the bourgmestre, welcomed Kabiligi, who gave Munyakazi a pistol and
congratulated him for being “courageous”. Kabiligi also encouraged the youth to be vigilant
and to fight the enemy, whom he identified as the Tutsis, wherever they were found.292
262. Together with four other individuals, Witness LAI went with Kabiligi and Munyakazi
to offload weapons from the helicopter. The group removed a green wooden crate containing
11 Kalashnikov rifles, 10 boxes of ammunition, a box of grenades, military uniforms bales of
fabric to make Interahamwe uniforms, berets, medals and cords. Kabiligi then met with three
Burundian and two Rwandan militiamen there. He asked them to patrol the border to prevent
Tutsi youth from crossing into Burundi to join the RPF. Kabiligi and Ntagerura remained for
no more than an hour and then left in the helicopter.293
263. The weapons were loaded into Munyakazi’s vehicle and moved to his residence. They
were stored near Munyakazi’s office. The following day, on 29 January, Munyakazi gave
three of the rifles and grenades to the Burundians Kabiligi had met with the day before.294
264. The morning after President Habyarimana’s plane had been shot down, Interahamwe
gathered at Munyakazi’s house, where the weapons were distributed. According to the
witness, these weapons were used during the genocide to kill people in Mibilizi and Kibuye
as well as Shangi, Nyakabuye, Gishoma and other localities.295
Kabiligi Defence Witness Emmanuel Bagambiki
265. Emmanuel Bagambiki, a Hutu and the prefect of Cyangugu prefecture in 1994, denied
that he met with Kabiligi or Ntagerura in Cyangugu prefecture or anywhere else in Rwanda
on 28 January 1994. He further denied that a helicopter came to Bugarama to distribute
weapons on that date. Bagambiki spent that day at home because it was a national holiday.
291
T. 31 May 2004 pp. 3-4, 16-17, 19-20, 66-67, 76-80, 82-86; T. 2 June 2004 p. 10.
T. 31 May 2004 pp. 4, 11-17, 48-49, 86-89; T. 1 June 2004 pp. 8-13; T. 2 June 2004 pp. 1, 4, 13-16.
293
T. 31 May 2004 pp. 14-17, 48-50, 62-68; T. 1 June 2004 pp. 6-8, 10-11, 15-17; T. 2 June 2004 pp. 1-10; T. 3
June 2004 pp. 23-25.
294
T. 31 May 2004 pp. 14-15, 17, 19-20, 62-66; T. 1 June 2004 pp. 6-13; T. 2 June 2004 pp. 1-8; T. 3 June 2004
p. 25.
295
T. 31 May 2004 pp. 17-18; T. 3 June 2004 p. 25.
292
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He said that, even if Ntagerura and Kabiligi had taken a helicopter into his prefecture without
him, the local authorities would have informed him of such an event.296
Kabiligi Defence Witness André Ntagerura
266. André Ntagerura, a Hutu and the Minister for Transport and Communications in 1994,
testified that he was in Kigali on 28 January 1994. He did not travel to Bugarama or attend a
ceremony in Cyangugu where weapons, uniforms or ammunition were distributed to
Interahamwe.297
Kabiligi Defence Witness LAX-23
267. Witness LAX-23, a Rwandan diplomat in 1994, testified that Kabiligi arrived in
Nairobi, Kenya on 24 January and then left for Egypt on 27 January 1994.298
Deliberations
268. The Prosecution relies exclusively on Witness LAI’s purported first-hand account that
Kabiligi attended a rally and distributed weapons in Bugarama commune on 28 January 1994.
The witness had been incarcerated since 1996 and was, at the time of his testimony, awaiting
trial in Rwanda.299 The Chamber views his evidence with caution.
269. Witness LAI’s first statement to Tribunal investigators in 1999 did not mention
Kabiligi, whose alleged participation in the Bugarama event was later reflected in the
witness’s 2000, 2002 and 2003 statements to Tribunal investigators and his testimony in this
trial. According to the 1999 statement, Ntagerura exited the helicopter, addressed the crowd,
spoke with Munyakazi, and delivered weapons. The statement lists prominent government,
political, and law enforcement officials, but makes no mention of Kabiligi’s presence or
involvement in the event.300 The witness explained that his statement was tailored to the
questions asked of him, which focused on specific persons.301 It appears to have been taken in
connection with the investigation of Ntagerura and Munyakazi. Although this may explain
the omission, the lack of reference to Kabiligi remains noteworthy given his significant role
in the event as described by the witness subsequently.302
270. In the Ntagerura et al. trial, Witness LAI testified that the Cyangugu gendarmerie
commander, Bavugamenshi, arrived in the helicopter with Kabiligi and Ntagerura.303 When
testifying in the present case, the witness categorically denied that Bavugamenshi arrived in
296
T. 15 September 2006 pp. 13-14; T. 28 September 2006 pp. 30-31, 60-62; Kabiligi Defence Exhibit 95
(personal identification sheet). He was previously known as Kabiligi Defence Witness KC-55.
297
T. 28 November 2006 pp. 23, 28-29, 31; Kabiligi Defence Exhibit 119 (personal identification sheet). He was
previously identified in the proceedings as Kabiligi Defence Witness JRO-11.
298
T. 21 November 2006 pp. 7-8, 10, 30-31, 39-41; Kabiligi Defence Exhibit 116 (personal identification sheet).
299
T. 2 June 2004 p. 17; T. 3 June 2004 pp. 14-15. When asked about differences between the identification
information in each of his statements to Tribunal investigators and his prior testimony in the Ntagerura et al.
trial, Witness LAI testified that he returned from Zaire to Rwanda on 13 December 1996 and was arrested on 20
December 1996. See T. 31 May 2004 pp. 70-72; T. 1 June 2004 p. 4.
300
Kabiligi Defence Exhibit 46 (statement of 10 July 1999).
301
T. 31 May 2004 pp. 86-87; T. 1 June 2004 pp. 8-9.
302
Kabiligi Defence Exhibit 48 (statement of 7 May 2002); Kabiligi Defence Exhibit 49 (statement of 28
August 2003). In a second statement provided to Tribunal investigators prior to testifying in the Ntagerura et al.
trial, Witness LAI references Kabiligi’s involvement in this event. See Kabiligi Defence Exhibit 47 (statement
of 11 August 2000).
303
Kabiligi Defence Exhibit 51 (Ntagerura et al. testimony of Witness LAI, T. 17 September 2001 p. 32).
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the helicopter or that he had previously testified to this effect, asserting that there was a
recording error in the prior proceeding.304 The Chamber questions this explanation, in
particular because he identified Bavugamenshi by name and position and because
Bavugamenshi’s name was spelled for clarity during his testimony.305 In the present trial,
Witness LAI also testified that he left the football field after the helicopter departed, noting
that he even observed it in the air. He was confronted with his 2002 statement to Tribunal
investigators, wherein he asserted that he did not know when the helicopter departed because
he had left the football field. The witness explained the discrepancy by suggesting that he was
either mistaken or “did not want to say the truth because it was going to incriminate
[him]”.306 Although these inconsistencies are not significant, his explanations for them are
not convincing.307
271. Of greater significance are differences between Witness LAI’s account and the alibi
evidence Kabiligi presented for 28 January 1994 (III.6.2). The witness insisted that the
meeting occurred on 28 January 1994 and provided several reasons why he was certain of
this date.308 However, a letter from the Egyptian Ambassador to the Deputy Prosecutor of the
Tribunal, tendered by the Prosecution, asserts that Kabiligi arrived in Cairo, Egypt on 27
January 1994 and that he departed on 8 February 1994.309 Witness LAX-23 offered
corroboration, testifying that Kabiligi left from Nairobi, Kenya for Egypt on 27 January
1994.310 In light of this evidence, the Prosecution submits that Witness LAI might have been
mistaken about the date of the meeting. However, when confronted with a letter from
Kabiligi detailing his mission in Cairo, Egypt from 27 January to 8 February 1994, Witness
LAI testified that it was fabricated and reiterated his certainty as to the event’s timing.311
Under these circumstances, the Chamber is not persuaded by the Prosecution’s submission
304
T. 31 May 2004 pp. 87-88. The Chamber notes that none of the witness’s statements to Tribunal investigators
describe Bavugamenshi arriving in the helicopter that day. Kabiligi Defence Exhibit 46 (statement of 10 July
1999) mentions the “Chief of the Gendarmerie” awaiting the helicopter’s arrival, whereas Kabiligi Defence
Exhibits 47, 48, and 49 (statements of 11 August 2000, 7 May 2002, and 28 August 2003, respectively) contain
no reference to Bavugamenshi’s presence on that day.
305
See Kabiligi Defence Exhibit 51 (Ntagerura et al. testimony of Witness LAI, T. 17 September 2001 p. 32).
306
T. 31 May 2004 p. 66; T. 1 June 2004 pp. 7-8, 10-11; Kabiligi Defence Exhibit 48 (statement of 7 May
2002).
307
The witness’s estimate that 20,000 people attended the 28 January 1994 rally appears exaggerated, but the
Chamber attaches limited importance to this. See T. 31 May 2004 p. 13; T. 28 May 2007 p. 35.
308
T. 31 May 2004 pp. 15-17; T. 2 June 2004 pp. 14-15. To demonstrate his certainty as to the date, the witness
explained that the event occurred one day after the death of a relative of Munyakazi and the day before the
killing of two individuals based on their ethnicity. Moreover, the witness had testified that the event coincided
with a national holiday, la fête de la démocratie. T. 31 May 2004 pp. 15-17.
309
Prosecution Exhibit 232 C (Letter of 20 June 2002 from the Egyptian Ambassador, Rwanda, to the ICTR
Deputy Prosecutor). This exhibit was tendered during the testimony of a Prosecution investigator, who noted
that he could not testify as to the accuracy of its content. See T. 7 June 2004 pp. 36-38.
310
See also Kabiligi Defence Exhibit 126 (Diary of Witness LAX-23, January 1994) which contains a notation
for 27 January 1994 “Depart Col. Kabiligi”. During the course of Witness LAX-23’s cross-examination, he
indicated that he recorded certain events in a diary in 1994. The witness agreed to provide a copy to the
Prosecution when he returned home. See T. 21 November 2006 pp. 32-33. The exhibit was tendered after
Witness LAX-23’s testimony, and he was not subject to cross-examination with respect to it. See T. 4 December
2006 p. 44. Consequently, the Chamber accords it minimal probative value.
311
T. 2 June 2004 pp. 13-16; Kabiligi Defence Exhibit 50 (Kabiligi’s Mission Report to the Rwandan President,
12 and 13 February 1994) which confirms that Kabiligi went on mission on 27 January 1994 and notes that, on
28 January 1994, Kabiligi was to meet with Egyptian Chief of Weapons and Ammunition, Major-General Samir
Abdel Wahab. The Chamber has no reason to doubt the reliability of the contents of the letter, which was
disclosed to the Kabiligi Defence by the Prosecution. See T. 2 June 2004 p. 13.
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and considers that the evidence of Kabiligi’s alibi raises further doubt as to the reliability of
Witness LAI’s uncorroborated testimony with respect to this event.
272. Finally, Ntagerura and Bagambiki, alleged participants in the rally, testified that they
were not in Bugarama and denied that they participated in the event.312 The Chamber notes
that both witnesses are alleged accomplices of Kabiligi and have a clear interest in denying
that weapons were distributed.313 Nonetheless, their testimonies raise additional doubt about
Witness LAI’s credibility on this event.
273. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond
reasonable doubt that Kabiligi was in Bugarama commune on 28 January 1994 and
distributed weapons there.
274. In its Closing Brief, the Kabiligi Defence renewed its objections to the notice
provided for the Bugarama event, arguing that it is one of many not included in Kabiligi’s
Indictment.314 The Chamber held, during the trial, that Kabiligi had adequate notice of this
allegation. In view of the Chamber’s findings, it need not revisit the Kabiligi Defence
arguments concerning insufficient pleading of this incident.315
2.4.4
Meeting at Ruhengeri Military Camp, 15 February 1994
Introduction
275. All Indictments allege that the Accused conspired amongst themselves and with other
military officers to plan the extermination of the civilian Tutsi population. In support of these
allegations, the Prosecution refers to Witness XXQ who testified about a meeting on 15
February 1994 of local army and gendarmerie officers, chaired by Kabiligi, at the Ruhengeri
Military Camp.316
276. The Kabiligi Defence requests that the testimony of Witness XXQ be excluded,
because Kabiligi received insufficient notice and the Prosecution added this witness to its
witness list without leave. It also submits that he lacks credibility. Witnesses LX-65, LCH-1,
LAX-2, FB-25, YUL-39 and RX-6 dispute that the meeting occurred, and Luc Marchal
testified that Kabiligi was in Kigali at the time. Moreover, Witness BRA-1 testified that
Witness XXQ informed him that he was providing false testimony against Kabiligi.317
312
Bagambiki and Ntagerura were acquitted by this Tribunal for crimes committed in Cyangugu prefecture. See
Ntagerura et al., Trial Judgement, paras. 804-805, which was affirmed in Ntagerura et al., Appeal Judgement,
p. 129.
313
Indeed, the Bugarama event formed part of their trial and it was supported by the testimony of Witness LAI
and two other witnesses. Ntagerura et al., Trial Judgement, paras. 119-132. However, the Ntagerura Chamber,
which expressly accepted Kabiligi’s alibi for 28 January 1994, rejected the Prosecution evidence. Ntagerura et
al., Trial Judgement, paras. 126, 129-132.
314
Kabiligi Closing Brief, paras. 105-116 and more generally section II.5.
315
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, para. 19;
Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, paras. 12-14.
316
Bagosora Indictment, paras. 5.1, 6.27; Kabiligi and Ntabakuze Indictment, paras. 5.1, 5.11, 5.12;
Nsengiyumva Indictment, para. 5.1; Prosecution Closing Brief, paras. 40, 265, 1060, 1570-1577; pp. 709, 757,
789-790, 795-796, 812, 847.
317
Kabiligi Closing Brief, paras. 110, 253, 256, 258, 265, 343-375, 482-485, 1013-1027, 1030-1035, 1074,
1080-1086, 1092, 1100, 1108-1109, 1114, 1124, 1126-1129, 1168, 1172, 1243, 1264, 1273-1274, 1529-1532;
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Evidence
Prosecution Witness XXQ
277. Witness XXQ, a Hutu gendarmerie officer, was based in Ruhengeri prefecture in the
beginning of 1994. On the morning of 15 February, he received a telegram from the
command of the Ruhengeri operational sector announcing a meeting of local army and
gendarmerie officers to be chaired by Kabiligi, the army’s G-3. Later that morning, around
10.00 a.m., the witness attended the meeting in place of the commander of the gendarmerie
squadron. The meeting took place at the Ruhengeri operational sector command and lasted
from 10.00 a.m. to 2.00 p.m. The witness was certain of the date because he had been
summoned to a Kigali court to appear in a civil case following his father’s death.
Furthermore, the meeting with Kabiligi was held one week after another meeting General
Ndindiliyimana had held in Ruhengeri. He also recalled leaving for Kigali to appear before a
military commission on 17 February 1994, two days after the meeting with Kabiligi.318
278. Kabiligi arrived at the meeting by helicopter. Colonel Augustin Bizimungu, who at
the time was the Ruhengeri sector operational commander, introduced him. Other participants
included Lieutenant-Colonel Bivugabagabo, Major Ndekezi, Major Ruhumiliza, Major
Nzabonimpa, who, according to the witness, was the commander of École des gendarmerie
nationale (EGENA), Captain Hasangineza, and Second Lieutenant Niyitegeka, who was
known as “Chuck Norris”. Kabiligi chaired the meeting and introduced the agenda. He first
said that in the Byumba and Mutara operational sectors, which he had just visited, the army
and inhabitants were opposed to the Arusha Accords, in particular the power sharing
provisions. The Arusha Accords could not be implemented because they allocated too many
posts to the RPF within the government and military. In Kabiligi’s view, the RPF should have
had no more than 14 percent of the posts. He added that the military therefore should
“understand the situation and assume their responsibilities”. Kabiligi then stated that the war
would resume on 23 February. To wage this war, it was necessary to train the local
population and distribute weapons so that the civilians could fight the Tutsis when the
soldiers were at the front. He used the term “enemy”, which was meant to designate Tutsis
and pro-Tutsi or pro-RPF Hutus. Kabiligi also said that each sector’s commander should
organise clandestine commando operations. When speaking about killings of the enemy, he
used the French term “déraciner” (uproot). Colonel Bizimungu reiterated Kabiligi’s words
and noted that weapons had been distributed in Kinigi commune, where the RPF might first
attack. Major Ruhumiliza agreed with Kabiligi’s assessment of the Arusha Accords and said
that they were not favourable to Hutus.319
279. It was decided during the meeting to sensitise soldiers to raise awareness about the
resumption of hostilities. The participants also agreed to sensitise and distribute weapons to
the population and to strengthen existing militias, in particular the Turihose militia, led by
Hassan Ngeze, which would carry out commando operations for the government. Witness
XXQ said that members of the Turihose militia had received military training at various
camps, including in Libya and Israel. After the meeting, there was a reception, and then
T. 28 May 2007 pp. 30, 37-38; T. 29 May 2007 pp. 1-8, 21; T. 1 June 2007 pp. 54-55. The other Accused do not
address the allegations concerning the Ruhengeri meeting.
318
T. 11 October 2004 pp. 2, 4-5, 28; T. 12 October 2004 pp. 20-22, 42-44, 51, 73-74; Prosecution Exhibit 316
(personal identification sheet).
319
T. 11 October 2004 pp. 2-3, 5-10; T. 12 October 2004 pp. 25-27, 62, 72.
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Kabiligi departed by helicopter.320 Bizimungu chaired a subsequent meeting that day to
discuss how to implement Kabiligi’s directives. The witness did not know whether any
commando operations were carried out in the days after the meeting since he left for Kigali
on 17 February.321
280. According to Witness XXQ, President Habyarimana and his Burundian counterpart
had chosen “a long time before” the date of 23 February to launch a genocide in both
countries. The hostilities did not resume then because it was during the school year and
therefore students, who would be away from home, would not be killed. It was decided to
postpone the operation until a holiday. The witness saw a telegram sent to all units on 22
February calling off the attack pending an agreement by the Rwandan and Burundian
presidents on a new date. The plane carrying the two Presidents was shot down before a
decision was taken.322
Kabiligi Defence Witness Luc Marchal
281. Colonel Marchal attended a meeting as the representative of UNAMIR on 15
February 1994 at army headquarters in Kigali. It included Kabiligi, General Uytterhoeven of
the Belgian army and General Deogratias Nsabimana, the Rwandan army’s chief of staff. The
meeting lasted from 10.00 a.m. to shortly after 12.00 p.m. The group then had lunch together
until 3.30 p.m. The event was mentioned in Marchal’s diary, recorded during the events.
Marchal also testified that in February 1994, Rwandan army aircraft were based at Kanombe
airport and subject to flight restrictions under the Kigali Weapons Secure Area (III.1.3). He
did not remember Kabiligi using a helicopter on 15 February 1994 and said that it would have
been impossible for him to do so without prior UNAMIR approval. Marchal did not recall
complaints of a helicopter being flown by Kabiligi without such permission. He
acknowledged that Ruhengeri was not part of the KWSA.323
Kabiligi Defence Witness LX-65
282. Witness LX-65, a gendarmerie officer in Ruhengeri prefecture until early February
1994, testified that he knew Witness XXQ well and that they had attended school together. In
February 1994, Witness XXQ was stationed in Gisenyi. Witness LX-65 was unaware of any
meeting held in Ruhengeri prefecture on 15 February 1994. It would be unusual for such a
meeting to occur without all units being informed of it via telegram from army headquarters.
Had all units been informed, he would have known.324
283. The witness commented on the participants who, according to Witness XXQ, were at
the meeting. In February 1994, Major Augustin Budura had replaced Major Joseph
Nzabonimpa as commander of EGENA, whereas Major Nzabonimpa was assigned to
represent the army with UNAMIR. Second Lieutenant Niyonsenga was nicknamed “Chuck
320
T. 11 October 2004 pp. 5, 7-12; T. 12 October 2004 pp. 62-63, 68-69.
T. 11 October 2004 pp. 12-13, 28; T. 12 October 2004 pp. 63-64. At the subsequent meeting, Colonel
Bivugabagabo was asked to distribute weapons, giving priority to Kinigi and Gatonde communes. Captain
Hasangineza was tasked with organising training, and Major Ndekezi was supposed to provide fuel, provisions
and supplies. Second Lieutenant Niyitegeka was placed in charge of supervising commando operations,
targeting Tutsis and Hutus opposed to the government.
322
T. 11 October 2004 pp. 14, 22, 26; T. 12 October 2004 pp. 72-73, 78-79.
323
T. 30 November 2006 pp. 3-5, 7-10, 12; T. 5 December 2006 pp. 23, 33-40; T. 6 December 2006 pp. 8-17;
Kabiligi Defence Exhibit 124 (Extract from Colonel Marchal’s diary for 15 February 1994); Kabiligi Defence
Exhibit 122 (personal identification sheet).
324
T. 26 September 2006 pp. 3-4, 6-8, 13; Kabiligi Defence Exhibit 97 (personal identification sheet).
321
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Norris”, and the witness was unaware of any other gendarmes with that nickname. Witness
LX-65 found it highly unlikely for a gendarmerie commanding officer to be replaced at such
a high level meeting of battalion and sector commanders by a junior officer like Witness
XXQ.325
Kabiligi Defence Witness LCH-1
284. Witness LCH-1 was a Hutu staff officer at the gendarmerie headquarters in Kigali in
early 1994. He had access to communications, including telegrams, but did not see anything
regarding a meeting in Ruhengeri prefecture on 15 February 1994. The witness did not hear
about Kabiligi presiding over such a meeting but admitted that he did not remember all
meetings that took place in February 1994. The army and gendarmerie were separate
institutions, and a local army commander could not convene such a joint meeting without
going through national headquarters. He testified that Major Augustin Budura, and not Major
Nzabonimpa, was the commander of EGENA. Major Nzabonimpa was a liaison officer with
UNAMIR. In addition, Pascal Niyonsenga was nicknamed “Chuck Norris”. According to the
witness, there was no militia called Turihose. The majority of the Rwandan armed forces
supported the Arusha Accords, as they were losing the war to the RPF. Steps were thus taken
at the highest level to ensure implementation.326
Kabiligi Defence Witness LAX-2
285. Witness LAX-2, a Hutu army officer in Ruhengeri prefecture, testified that Kabiligi
did not chair or attend a meeting there on 15 February 1994. As a high ranking officer, he
would have been informed about it and attended it if it had occurred. Furthermore, army and
gendarmerie officers would not attend joint meetings, except in case of war, and there was a
lull in fighting at the time. The witness, who knew Witness XXQ, did not see him in
Ruhengeri in February 1994.327
Kabiligi Defence Witness FB-25
286. Witness FB-25, a Hutu army officer in Ruhengeri in early 1994, was unaware of a
Ruhengeri meeting chaired by Kabiligi on 15 February 1994. Given the rank of the witness,
he would have attended such a meeting had it occurred. Joint meetings of the army and
gendarmerie occurred only in wartime. Junior officers, such as Witness XXQ, would never
have replaced the gendarmerie’s commanding officer in this kind of meeting. The witness
was not aware of Major Ndekezi serving in Ruhengeri and said that Second Lieutenant
Niyonsenga was known as “Chuck Norris”. Witness FB-25 was not aware of telegrams sent
to convene the 15 February meeting or to start a genocide on 23 February 1994. Moreover,
weapons would not be distributed to civilians in Ruhengeri prefecture because it was not on
the frontline.328
Kabiligi Defence Witness YUL-39
287. Witness YUL-39, a Hutu, was an army officer based in Ruhengeri prefecture in
February 1994. He denied that there was a meeting of the command on 15 February and that
325
T. 26 September 2006 pp. 8-10. Witness LX-65 did not know any gendarme called Niyitegeka.
T. 3 October 2006 pp. 16-27; T. 5 October 2006 pp. 38-40; Kabiligi Defence Exhibit 102 (personal
identification sheet).
327
T. 9 November 2006 pp. 82-85; T. 10 November 2006 pp. 1-4, 23; Kabiligi Defence Exhibit 108 (personal
identification sheet).
328
T. 13 November 2006 pp. 3-7, 31-34; Kabiligi Defence Exhibit 109 (personal identification sheet).
326
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Kabiligi came to Ruhengeri via helicopter. It would have been impossible, given the
witness’s rank, for such a meeting of the command to have taken place without his
knowledge. He testified that no telegrams about a meeting or a genocide were received. No
orders were issued for weapons to be distributed to civilians. Furthermore, there was no
militia known as Turihose. The witness said it was impossible for an officer with Witness
XXQ’s functions to have replaced his commander at the alleged meeting.329
Kabiligi Defence Witness RX-6
288. Witness RX-6, a Hutu, was an employee at the Ministry of Defence in February 1994.
He previously worked in the secretariat of the general staff of the army and was familiar with
the practice of incoming and outgoing messages. According to the witness, there was no
message on 22 February 1994 to all units to cancel the military operation on 23 February. If
such a message had been sent, his department in the Ministry of Defence would have
received it as well.330
Nsengiyumva Defence Witness BRA-1
289. Witness BRA-1, a Tutsi and former soldier in the RPF, testified that he knew Witness
XXQ well since they attended the same school and were imprisoned together in Rwanda.
Witness XXQ told Witness BRA-1 that he was going to testify against several accused in
Arusha, including Kabiligi, Nsengiyumva and Augustin Bizimungu. According to Witness
XXQ, his testimony was not truthful because he did not always know the people he testified
against, including Bizimungu, but he knew Kabiligi. After agreeing to testify in Arusha,
Witness XXQ received special treatment at the prison.331
Deliberations
290. Witness XXQ was the only witness to testify about the alleged meeting, chaired by
Kabiligi, on 15 February 1994 in Ruhengeri prefecture.332 His evidence seemed consistent.
However, he was convicted and sentenced to death in Rwanda in March 2001 for his role in
the genocide and his appeal was pending at the time of his testimony.333 The Kabiligi
Defence submits that this gave him an incentive to falsely testify against Kabiligi. It points to
Witness BRA-1 who testified that Witness XXQ told him that he gave false testimony against
Kabiligi, among others, and that Witness XXQ subsequently received special treatment in
prison. The Chamber does not find Witness BRA-1’s testimony entirely convincing because
he did not remember important details of his conversations with Witness XXQ.334 Moreover,
he stated that Witness XXQ testified between January 2003 and February 2004, while the
329
T. 15 November 2006 pp. 27-37, 64-65, 70; Nsengiyumva Defence Exhibit 110 (personal identification
sheet).
330
T. 6 November 2006 pp. 3-4, 6, 9-10, 36; Kabiligi Defence Exhibit 104 (personal identification sheet).
331
T. 5 April 2006 pp. 58-63; T. 6 April 2006 pp. 13-18; T. 29 May 2006 pp. 7, 33-37, 39, 41-45; Kabiligi
Defence Exhibit 171 (personal identification sheet).
332
The Chamber notes that there is no trace of the genocide planning telegram he testified about.
333
T. 12 October 2004 pp. 11-12, 48-49; Kabiligi Defence Exhibit 85 (Judgment of 16 August 2001 rendered by
the Military Court in Rwanda), p. 201.
334
T. 6 April 2006 p. 17.
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witness in fact appeared before the Chamber in October 2004. This said, in view of his
conviction and appeal, the Chamber considers the testimony of Witness XXQ with caution.335
291. Witness XXQ claimed that he attended the meeting chaired by Kabiligi as the
representative of the Ruhengeri gendarmerie squadron commander who was absent.
Witnesses LX-65, LCH-1, LAX-2, FB-25, YUL-39 and RX-6, who were either senior
military officers in Ruhengeri prefecture or at headquarters in Kigali, stated that Witness
XXQ’s was too junior in rank to represent the commander. According to Witness FB-25, it
would be unusual for all the more senior officers in the squadron, who could replace the
commander, to be absent at the same time. Apart from the absence of the commander, the
Chamber notes that no explanation was provided why Witness XXQ would replace the
commander at such an important meeting including high level representatives of the
Rwandan army and gendarmerie in Ruhengeri.
292. The six Defence witnesses mentioned above contradicted other aspects of Witness
XXQ’s testimony. These include the origins and transmission of the telegrams announcing
the meeting and the identity and functions of the other alleged participants at the meeting.
Indeed, some of the witnesses, for example Witness FB-25, doubted whether the gendarmerie
unit, to which they belonged, would have been invited to such a high level planning
meeting.336 The Chamber has taken into account that the former officers had an interest in
distancing themselves from a genocide planning meeting given their admission that they
would have participated in a meeting of officers at such a senior level.337 Nevertheless, their
evidence raises some doubts about the credibility of Witness XXQ’s testimony.
293. The Chamber has considered Witness XXQ’s statements to Tribunal investigators and
Rwandan authorities. It appears that the witness first mentioned this meeting in a letter to
Rwandan military prosecutors, dated 7 July 2000, around the time of his trial, in which he
inculpated senior Rwandan military officers in the planning of the genocide.338 The witness
claimed that he discussed the incident and the role of Kabiligi and others in a statement made
to Rwandan authorities in August 1994.339 There is no record of this statement before the
Chamber to corroborate this. The witness, who in giving such a statement would have
effectively admitted to participation in planning the genocide, was not charged of that crime
during his trial in 2001, and there is no reference to the meeting in the judgment. The
Chamber is therefore not convinced that he mentioned this event to Rwandan authorities in
1994.
294. In cross-examination, the Kabiligi Defence suggested that Witness XXQ had
contacted the Rwandan military prosecutors in the hope of avoiding conviction for genocide
for which he was being tried. The witness denied this. He stated that he wrote the July 2000
letter after he learnt of Kabiligi’s arrest and because he wanted to assist the course of justice.
335
The Chamber had cause for further concerns about the credibility of Witness XXQ. He admitted that during
his time in the army, he had several allegations of indiscipline which led to his appearance before several
military investigation commissions. These included allegations that he was pro-RPF. See T. 11 October 2004 pp.
2, 4-5, 28; T. 12 October 2004 pp. 20-22.
336
T. 13 November 2006 pp. 6-7, 32-33.
337
In this connection, the Chamber has noted that according to Witness RX-6, no mass killing of Tutsis occurred
in Rwanda in 1994. According to the witness, Tutsi members of the population were fleeing as RPF soldiers
were killing civilians while the army was fighting to halt the RPF advance. See T. 6 November 2006 p. 22.
338
T. 12 October 2004 pp. 49-50, 76.
339
T. 12 October 2004 pp. 11-12, 48-49.
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The aim of his letter was to ensure that this Tribunal would learn about this evidence since it
seemed unlikely that the Rwandan officials that took his August 1994 statement would have
transmitted it.340
295. Witness XXQ’s pro justitia statement to Rwandan prosecutors in October 2000
extensively discussed Kabiligi’s 15 February 1994 genocide planning meeting in
Ruhengeri.341 The transcripts of those interviews on 30 and 31 October reflect the contents of
the pro justitia statement. Taken as a whole, the statement and interview transcripts were
generally consistent with the witness’s testimony before the Chamber.342
296. In his only statement to Tribunal investigators in August 2003, the witness did not
mention Kabiligi participating at the 15 February 1994 meeting in Ruhengeri. This particular
statement discusses Witness XXQ’s activities between September 1990 and June 1994,
including the postings he held as an officer in various parts of Rwanda. They include his
initial assignment to, transfer from and subsequent return to Ruhengeri. The statement also
makes various allegations against Lieutenant Bizumuremyi, Lieutenant Colonel
Nsengiyumva, Captain Hasangeniza and Lieutenant Colonel Bivugabagabo but does not
mention the meeting. In his October 2000 statements, Witness XXQ had implicated Captain
Hasangeniza and Lieutenant Colonel Bivugabagabo as participants in the Ruhengeri meeting.
On its own, the Chamber considers that this omission is not fatal to Witness XXQ’s
credibility because it is possible that the Tribunal investigators did not specifically ask him
about the meeting.343
297. However, viewed in context of its overall significance, the omission is important
given the highly incriminating description of Kabiligi’s alleged role in planning the Rwandan
genocide at the Ruhengeri meeting which the witness recounted, in great detail, in his earlier
October 2000 pro justitia statement. This is particularly so in light of Witness XXQ’s claim
that he wrote a letter in July 2000 to Rwandan authorities precisely because he wanted to
share his knowledge about that important meeting with the Tribunal. Furthermore, the
Chamber recalls that the witness insisted that his initial statement regarding this meeting
dated back to August 1994. The Chamber is therefore left with doubts about the reliability of
the witness’s testimony.
298. More importantly, Marchal testified that he was meeting with Kabiligi and others in
Kigali on 15 February. His account of the meeting is credible and corroborated by an entry in
his diary written contemporaneously with the events. The Chamber observes that the diary
did not explicitly mention “Kabiligi”, only that the G-3 officers of the army and gendarmerie
were present.344 The Chamber accepts Marchal’s explanation that this was military shorthand
340
T. 12 October 2004 pp. 9-15.
Kabiligi Defence Exhibit 83 (Pro Justitia Statement of 31 October 2000).
342
Kabiligi Defence Exhibit 82 (Procès Verbal of 30 October 2000); Kabiligi Defence Exhibit 84
(Transcription of the Procès Verbal of the Rwandan Ministry of Justice – Parquet General, dated 30 and 31
October 2000).
343
T. 11 October 2004 pp. 3-5; T. 13 October 2004 pp. 85-88. Nsengiyumva Defence Exhibit 61 (statement of
12 August 2003).
344
See Kabiligi Defence Exhibit 124 (Extract from Colonel Marchal’s diary for 15 February 1994); T. 30
November 2006 p. 12. Marchal made the following entry in his diary: “10 a.m.: Visit for interview or discussion
with minister of national defence, with the two chiefs of staff of the Rwandan armed forces, of the gendarmerie,
the G3 officers of the Rwandan armed forces and the gendarmerie, Colonel Bagosora, the Kigali sector
commander, the liaison officers in the general staff or sector officers, as well as of the force. Very interesting
discussions, open and constructive. Second meal at Pegasus. … 3:30 p.m.: we went on to another activity”.
341
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instead of naming them.345 It also accepts that he knew Kabiligi.346 Finally, the Chamber has
noted Marchal’s evidence that he could not recall Kabiligi requesting authorisation to use a
helicopter to fly to Ruhengeri, and that there was no such authorisation.347
299. The Prosecution suggests that Witness XXQ might have been mistaken about the date
of the meeting. However, the witness insisted that it occurred on 15 February 1994 and
offered several reasons for his certainty of the date for the meeting.348 In the Chamber’s view,
Marchal’s evidence raises serious doubt about the credibility of Witness XXQ’s testimony
concerning Kabiligi’s participation in the meeting.
300. The Prosecution has also argued that Witness XXQ’s testimony about 15 February
1994 is reliable because it “mirrors other pieces of evidence brought before the Chamber”.349
This submission is not persuasive. There may well have been other activities in February
which may be seen as similar preparations as the 15 February Ruhengeri meeting. However,
this does not alter the Chamber’s finding that Kabiligi was not there. Consequently, the
Prosecution has not proven this allegation beyond reasonable doubt.
301. During the course of the trial, the Chamber ruled that Kabiligi had received adequate
notice of Witness XXQ’s allegations in the Pre-Trial Brief.350 Regarding the Prosecution’s
alleged procedural impropriety, the Chamber concluded that the exclusion of Witness XXQ’s
testimony was not appropriate and that the Kabiligi Defence should have requested such a
remedy before the witness appeared to testify.351 In view of the Chamber’s findings, there is
no need to revisit these decisions.
2.4.5
Meeting at Gisenyi MRND Headquarters, February 1994
Introduction
302. Each of the Indictments alleges that army officers from the north of Rwanda saw their
power erode as a result of the Arusha Accords and therefore began to exacerbate the
discourse of ethnic hatred and violence. The Prosecution points to a meeting at MRND
headquarters in Gisenyi prefecture in February 1994 where Nsengiyumva and Bagosora
spoke. Reference is made to Witness XBM.352
303. The Bagosora Defence argues that it did not receive adequate notice of this event. The
Nsengiyumva Defence points to the Chamber’s prior exclusion of Witness XBM’s testimony
345
T. 5 December 2006 p. 52.
T. 30 November 2006 pp. 14-15.
347
Id. 5-14.
348
See the summary of Witness XXQ’s evidence above about him attending court, relating Kabiligi’s meeting to
a previous meeting, and the witness’s departure for Kigali.
349
Prosecution Closing Brief, para. 1575 (intelligence reports, military alert, other meetings, killing of Martin
Bucyana).
350
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, paras.
13-14.
351
Decision on Kabiligi Motion for Exclusion of Evidence (TC), 4 September 2006, paras. 19-21; Decision
Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, para. 37.
352
Bagosora Indictment, para. 5.9; Kabiligi and Ntabakuze Indictment, para. 5.9; Nsengiyumva Indictment,
para. 5.8; Prosecution Closing Brief, paras. 41, 491, 496, 1057, 1059-1060, 1575, pp. 714, 794, 851.
346
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about this meeting in relation to Nsengiyumva. Both Defence teams submit that his evidence
is uncorroborated and not credible.353
Evidence
Prosecution Witness XBM
304. Witness XBM, a Hutu CDR party member from 1992 to 1994, testified that he
attended a meeting at MRND headquarters in Gisenyi prefecture in February 1994. At least
500 people were present, including Jean-Bosco Barayagwiza and Hassan Ngeze, both of
whom represented the CDR; Nsengiyumva; Bagosora, who represented the MRND; about
400 or 500 CDR party members; MRND party members; members of the general population;
and some soldiers. Barayagwiza was the first of three speakers. He announced the CDR’s
decision to change its position and accept the parliamentary seats offered to it because the
CDR needed to monitor the plot between the RPF and its accomplices in Agathe
Uwilingiyimana’s government in Kigali. Barayagwiza asked the Gisenyi population to erect a
roadblock to prevent foodstuff and beer from reaching Kigali. He also claimed to have
evidence that the Tutsis possessed firearms and were prepared to kill the Hutus, prompting
him to request that most Hutu youths be given firearms training for self-defense.354
305. After Barayagwiza’s speech, Nsengiyumva said he was pleased that Gisenyi
prefecture had fewer accomplices than Kigali because they had been chased from Gisenyi. He
said that if the Gisenyi population noticed accomplices in the future, it should call on soldiers
to intervene. A strategy had been adopted to solve the problem once and for all if the issue of
accomplices and plots against the country came up again.355
306. Bagosora spoke last and complained about the ruling regime. Agathe Uwilingiyimana
had convened a meeting with Faustin Twagiramungu and senior officers to ask them to oust
President Habyarimana, but soldiers from the north rejected this idea. The RPF was prepared
to assassinate Habyarimana and start a war. He ended his speech by promising to fulfil
Barayagwiza’s wish to train the youth.356
Bagosora
307. Bagosora denied attending a meeting of MRND and CDR officials in February 1994,
adding that, if he had participated in such a meeting, there would have been news accounts.357
Deliberations
308. Witness XBM was the only witness to testify about the alleged participation of
Bagosora in a meeting at MRND headquarters in Gisenyi prefecture in February 1994. He
mentioned the incident in his statement to Tribunal investigators in February 2003.358 The
353
Bagosora Closing Brief, paras. 673, 676-686, 689, 691, 1407, 1623-1625, 1627, 1885-1888, 2191, pp. 348,
350-351, 372; T. 30 May 2007 pp. 5-6; Nsengiyumva Closing Brief, paras. 594, 1245, 1260, 2017; T. 31 May
2007 p. 43. The Kabiligi and Ntabakuze Defence teams do not address this specific allegation.
354
T. 14 July 2003 pp. 21-24; T. 15 July 2003 pp. 6-9; Prosecution Exhibit 80 (personal identification sheet).
355
T. 14 July 2003 pp. 22-23; T. 15 July 2003 pp. 7, 9.
356
T. 14 July 2003 pp. 23-24; T. 15 July 2003 pp. 8-10.
357
T. 1 November 2005 pp. 67-68; T. 14 November 2005 p. 11.
358
Bagosora Defence Exhibit 26 (statement of 28 September 2003).
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Chamber has expressed reservations about other aspects of his testimony (III.2.4.2; III.3.6.7;
III.4.2.4) and views his testimony on this event with caution.
309. The Prosecution submits that the evidence of Witness XBM is corroborated by Alison
Des Forges, who testified about common themes in the writings of Bagosora. The
Prosecution notes that the themes expressed during the meeting are similar to his other
writings.359 In the Chamber’s view, this is not sufficient to substantiate that the meeting in
fact occurred or that Bagosora participated in it. It is also notable, given the size of the crowd,
that only Witness XBM testified about this event and that there are no other contemporaneous
accounts of the meeting.
310. The Chamber has also noted the difference between the witness’s statement in
February 2003, in which he described himself as an official of the MDR party, and his
testimony which reflects that he was an active member of the CDR party.360 As discussed
below (III.3.6.7), the Chamber does not consider the explanation for his failure to mention his
CDR affiliation in his statement convincing since his party affiliation is the main reason he
attended this and other meetings central to his testimony.361 While it remains possible that the
witness attended the alleged meeting as a member of the general population, the discrepancy
about his party affiliation as well as his explanation for it raise further questions about his
credibility. The Chamber declines to accept his account of this meeting without adequate
corroboration. Accordingly, the Prosecution has not proven beyond reasonable doubt that
Bagosora attended a meeting at MRND headquarters in Gisenyi prefecture in February 1994.
311. The Chamber held, during the trial, that Bagosora had adequate notice of this
allegation. In view of the Chamber’s findings, it need not revisit the Bagosora Defence
arguments concerning the pleading of this incident in his Indictment.362
2.4.6
Butare Meeting, February 1994
Introduction
312. Each of the Indictments alleges that as part of their activities to orchestrate the
genocide, the Accused established lists of people to be killed. In particular, the Prosecution
contends that Bagosora and Nsengiyumva helped prepare such a list at a meeting in Butare
prefecture in February 1994. Shortly thereafter, 33 Tutsis on the list were abducted and
killed. Many other Tutsis were also allegedly killed in various communes in Gisenyi
prefecture, based on the list drawn up in Butare. Reference is made to Witness XBH.363
359
Prosecution Closing Brief, para. 1059.
Bagosora Defence Exhibit 26 (statement of 28 September 2003).
361
Witness XBM explained that he remained a clandestine member of the MDR party and unwillingly joined
the CDR party (III.3.6.7). He also suggested that the investigators failed to ask him about his party affiliation.
However, it follows from his statement that he was questioned on this matter.
362
The Chamber’s conclusion that Bagosora had notice of his participation in the meeting is found in Decision
on Bagosora Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May 2007,
paras. 58-60. However, Nsengiyumva’s request to exclude this evidence was granted. See Decision on
Nsengiyumva Motion For Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September 2006
p. 22.
363
Bagosora Indictment, paras. 5.1, 5.36, 5.40; Kabiligi and Ntabakuze Indictment, paras. 5.1, 5.27, 5.31;
Nsengiyumva Indictment, paras. 5.1, 5.25, 5.29; Prosecution Closing Brief, paras. 46-48, 471-472, 491, 505,
571-577, 585, 1038-1041, pp. 709-710, 731-732, 734-735, 789-790, 809, 811-812, 847-848, 865-866, 868-869.
360
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313. The Bagosora and Nsengiyumva Defences reiterate that these allegations were not
sufficiently pleaded in the Indictments. They further argue that Witness XBH lacks
credibility and is contradicted by his own statements and Witnesses Alphonse Higaniro, BK1, KYZ-1 and LIQ-1.364
Evidence
Prosecution Witness XBH
314. In March 1993, Witness XBH, a Hutu, started working for Captain Idelphonse
Nizeyimana who lived in Butare prefecture. Bagosora and Nsengiyumva came to
Nizeyimana’s home for a meeting in February 1994. Bagosora arrived around 7.00 p.m. in a
blue Toyota, and Nsengiyumva about 10 minutes later in a white Hilux double cabin pickup.
Both wore military fatigues and had escorts. The witness served them food and, after the
meal, Nizeyimana introduced him to Bagosora and Nsengiyumva, asking him to join the
three of them at the table. Nizeyimana stated that those responsible for the killing of Martin
Bucyana in Butare prefecture should be arrested and killed. Bagosora said that important
Hutus were being killed and proposed that they prepare a list of Tutsis to be targeted, starting
with intellectuals and traders, before going on to others. Everyone suggested names as
Nsengiyumva wrote down the list. They eventually completed a list containing names of
about 100 Tutsis.365
315. After Nsengiyumva compiled the list, five or six photocopies were made. Bagosora,
Nsengiyumva and Nizeyimana each took a copy. They instructed Witness XBH to deliver the
three remaining lists to Lieutenant Bizumuremyi, who was the commander of the Butotori
Military Camp in Gisenyi, another to conseiller Faziri of the Gisenyi sector, and the last to
Faustin Bagango, the bourgmestre of Nyamyumba commune in Gisenyi. Bagosora promised
the witness that he would secure him an important job at the Bralirwa factory once the Tutsis
on the list were killed.366
316. A few days later, soldiers acting on the orders of Nizeyimana arrested 33 Tutsi men,
women and children in Butare for their alleged role in Bucyana’s killing and transported them
in a blue Daihatsu truck first to Nizeyimana’s house and then to SORWAL match factory,
where they spent the night.367 The witness did not participate in the arrests. The next day,
Witness XBH and Alphonse Higaniro, the director of SORWAL, escorted a convoy of
vehicles to Gisenyi Town. The Tutsis were in one of the vehicles. The convoy stopped and
364
Bagosora Closing Brief, paras. 126-127, 175, 605-618, 1539-1540, 1589-1590, 1623-1625, 1671, 1673, pp.
342-344, 357; Nsengiyumva Closing Brief, paras. 27, 34-35, 38, 47-50, 52, 151, 286, 539, 600-613, 658, 664,
686, 850-876, 1045-1048, 1066-1067, 1075-1076, 1085-1086, 1093, 1312, 1337-1369, 1382-1392, 1395-1422,
1953, 1992-1997, 2387-2389, 2541-2542, 2547-2552, 2573-2594, 2595-2597, 2603-2605, 2607-2609, 31483150.
365
T. 3 July 2003 pp. 13-22; T. 4 July 2003 pp. 29-31, 33, 35-46, 48; T. 7 July 2003 pp. 34, 45-47; Prosecution
Exhibit 63 (personal identification sheet). Bralirwa was a local beer manufacturing company. The 100 Tutsis on
the list included Safari Nyambwega and his mother Therese, a Tutsi lady called Mukarugambwa, Butira, and
Safari who worked at the Bralirwa factory, Nehemi Munyensanga, Jean-Bosco Rwagasore, Vincent Kayihura,
Daniel Hamuli who was a judge in Rewerere commune, Mukabutare, Munyengabe, and Léonidas Baganahe.
366
T. 3 July 2003 pp. 21-22, 27; T. 4 July 2004 pp. 40-47. The transcripts occasionally mention “Nyamnyumba”
or “Nyumba”, but the correct reference is Nyamyumba commune. See Prosecution Exhibit 67 (Map of Gisenyi).
367
SORWAL was a matches manufacturing company. Witness XBH said the Tutsis spent the night in another
truck there, wedged between cartons of matches. See T. 3 July 2003 pp. 14, 22-23; T. 4 July 2003 p. 53.
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waited at the house of Jean-Bosco Ndarugorogoye – a local trader who was assisting them.
Another vehicle transported soldiers who subsequently took the Tutsis to the Butotori
Military Camp in a Daihatsu. The witness later overheard a telephone conversation between
Ndarugorogoye and Lieutenant Bizumuremyi confirming that they had been executed. He
also thought that the bodies had been thrown into a lake close to the military camp to hide the
identities of those killed. Witness XBH stayed in Gisenyi for seven days and delivered the
lists that had been drawn up in Butare to Lieutenant Bizumuremyi and bourgmestre
Bagango.368
317. After a meeting at Umuganda Stadium on the morning of 8 April, Witness XBH
drove with Bizumuremyi to Nyamyumba commune and attended a meeting of about 100
persons chaired by Bourgmestre Bagango at the Rushubi sector office. Some Interahamwe
indicated a readiness to attack Tutsis but complained about lack of weapons. Bizumuremyi
and Bagango offered guns (Kalashnikov rifles) and grenades. The witness, along with 17
others that included three soldiers, some civilians and members of the civil defence, then left
to start the killings. His group’s objective was to kill eight Tutsis from the list drawn up in
Butare, starting with the officials and traders. The witness led the group that then located and
killed seven of them.
318. They found Jean-Bosco Rwagasore, a Tutsi who was also on the list, at the Bralirwa
factory on 9 April but a group of Interahamwe took him to be killed. That evening, Witness
XBH went to Rubavu commune and informed Conseiller Faziri that they had accomplished
their mission. Faziri explained that everyone on his own list had been killed except Daniel
Hamuli, whom they could not locate.369
319. When Witness XBH returned to Butare, he informed Nizeyimana who then phoned
Bagosora and Nsengiyumva to report that the list had been distributed and 33 Tutsis killed.
That weekend, Bagosora, Nsengiyumva and Higaniro visited Nizeyimana, who asked the
witness to give them an oral briefing. Afterwards, Bagosora and Nsengiyumva commended
him on his bravery.370
320. Sometime in May 1994, the witness saw Nsengiyumva in Rubavu commune
following an incident where a local resident fired at some Interahamwe after refusing to
surrender Tutsi civilians hiding in his home. Nsengiyumva demanded that the Tutsis be
handed over and taken to the Commune Rouge, a cemetery in Gisenyi prefecture where Tutsis
were killed.371
Bagosora
321. Bagosora expressed his surprise that someone like Witness XBH would be centrally
involved in a meeting with two colonels and a captain, and that Nsengiyumva would have
acted as secretary in their presence. Bagosora denied having asked for or seen in 1994, lists
that would be used to eliminate Tutsis. He also observed that the witness’s allegation about
the killing of the 33 Tutsis was uncorroborated and suggested that there would have been
witnesses and grieving family members had such an event taken place.372
368
T. 3 July 2003 pp. 22-26; T. 4 July 2003 pp. 47-54; T. 7 July 2003 pp. 1-6, 9-11, 13-16, 18-19, 48.
T. 3 July 2003 pp. 33-41, 51-53, 58-60, 63; T. 4 July 2003 pp. 8-9; T. 7 July 2003 pp. 54-56, 61-62.
370
T. 3 July 2003 pp. 26-27; T. 7 July 2003 pp. 18-19.
371
T. 3 July 2003 pp. 41-46, 65; T. 7 July 2003 pp. 65-66.
372
T. 31 October 2005 pp. 74-75; T. 14 November 2005 p. 12.
369
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Nsengiyumva
322. Nsengiyumva denied ever visiting Butare in 1993 and 1994. He knew Captain
Nizeyimana from their days at Camp Kanombe but did not have any special relationship with
him. Nsengiyumva had never been to his home and denied ever seeing Witness XBH before
this trial. According to Nsengiyumva, he had never met with Bagosora to draw up a list of
Tutsis to be executed. The suggestion that he, as a colonel, took notes in the presence of a
more junior captain was strange and contradicted the military’s seniority rule.373
323. Bizumuremyi was not in Gisenyi in February 1994, nor was he ever commander of
the Butotori site. Had Nsengiyumva drawn up a list, as Witness XBH alleged, he would have
delivered it to Bizumuremyi himself instead of asking the witness to do so. There was no
record of the 33 Tutsis that were allegedly abducted and killed. The witness’s suggestion that
Nsengiyumva returned to Butare prefecture to receive a briefing on killings conducted in
Gisenyi, where he was based, was illogical.374
324. Nsengiyumva denied that there was a rally at Umuganda Stadium on the morning of 8
April 1994. Furthermore, Bizumuremyi did not distribute any weapons. No Kalashnikov
rifles were used in Gisenyi as only G3 and R4 rifles were available to soldiers and the
gendarmerie. Nsengiyumva had never heard of any of the three soldiers that Witness XBH
allegedly worked with to carry out killings. He had also no knowledge of any of the persons
he was alleged to have killed, nor did he order their deaths.375
Nsengiyumva Defence Witness Alphonse Higaniro
325. Alphonse Higaniro, a Hutu, resided in Butare prefecture between 1992 and 1994 and
was director-general of SORWAL. He was a friend and neighbour of Captain Nizeyimana but
did not know Witness XBH. Higaniro stated that he never met Bagosora or Nsengiyumva at
Nizeyimana’s home. On the day Bucyana was killed, Higaniro left Butare prefecture for two
weeks, which meant that he could not have participated in the killing of the 33 Tutsis.
SORWAL owned a blue Daihatsu truck that could take between 20 and 30 persons but
Higaniro denied any involvement in drawing up a list or in transporting Tutsis to execution in
Gisenyi.376
Nsengiyumva Defence Witness BK-1
326. Witness BK-1, a Hutu from Nyamyumba commune in Gisenyi prefecture, testified
that he knew Witness XBH well as they attended primary school and played football
together. Around Easter in 1993 and in April 1994, they saw each other but Witness XBH
never mentioned having moved to Butare prefecture.377
327. Witness BK-1 confirmed that Faustin Bagango was bourgmestre of Nyamyumba
commune but denied that he was involved in any killings. In fact, some days after
Habyarimana’s death, Bagango publicly reprimanded certain assailants, including Witness
373
T. 9 October 2006 pp. 2- 8, 54; T. 11 October 2006 p. 7.
T. 9 October 2006 pp. 3-5.
375
Id. pp. 5-8, 41.
376
T. 2 October 2006 pp. 19-23, 33-36; Nsengiyumva Defence Exhibit 211 (personal identification sheet).
377
T. 6 July 2005 pp. 3-14; T. 11 July 2005 p. 26; Nsengiyumva Defence Exhibit 86 (personal identification
sheet).
374
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XBH, who were suspected of killing Tutsis. Subsequently, the suspects rallied and suggested
that Nsengiyumva and Bagango, among others, were enemy accomplices because they either
were opposing the killings of Tutsis or were providing them safe haven.378
Nsengiyumva Defence Witness KYZ-1
328. Witness KYZ-1 was a trader in Gisenyi Town in 1994 who knew Jean-Bosco
Ndarugoragoye well. She did not know Witness XBH but was familiar with Alphonse
Higaniro from his work at the factory where her family obtained supplies of matches.
Higaniro never visited Ndarugoragoye’s home or business between February and April 1994,
nor did he or his partners ever bring 33 Tutsis there. Someone like Higaniro, who was well
known, would not have been hosted in Ndarugoragoye’s home without the witness’s
knowledge. She never met Nsengiyumva.379
Nsengiyumva Defence Witness LIQ-1
329. Witness LIQ-1, who lived in Nyamyumba commune in 1994, worked in Bralirwa in
Gisenyi prefecture for over a decade. Witness XBH and his family were acquainted as they
attended the same church. The witness also knew Jean-Bosco Rwagasore. On the evening of
7 to 8 April 1994, Interahamwe severely beat Rwagasore and left him to die in his home. The
witness later learned that the Interahamwe burned him there. Witness LIQ-1 assisted in
Rwagasore’s burial and maintained that he was never abducted from the Bralirwa factory.380
330. He also learned from gacaca sessions that Jean Marie Vianney Bembereza, who was
detained at the Gisenyi prison, had confessed to killing Rwagasore and sought forgiveness
from his family. The witness knew all the people Witness XBH alleged had been killed. At
least one of them was still alive and spoke occasionally with Witness LIQ-1.381
Deliberations
331. Witness XBH was the only Prosecution witness to testify about the alleged meeting at
Captain Idelphonse Nizeyimana’s house in Butare prefecture in February 1994 where lists
were made, and about the subsequent killing of 33 Tutsis in Gisenyi prefecture. At the time of
his testimony, he was serving a sentence of 20 years imprisonment in Rwanda, and the
Chamber views his testimony with caution.382
332. There are differences between Witness XBH’s statements to Rwandan authorities and
his testimony before the Tribunal. His conviction related to one killing, which he had
confessed to in a pro justitia statement to Rwandan authorities in October 1999. In that
statement, he affirmed that he had not committed any other crimes.383 The Rwandan court
found that the witness’s disclosure of the circumstances surrounding that killing was a
mitigating factor when determining his sentence.384 However, in his testimony to the Tribunal
378
T. 6 July 2005 pp. 20-22; T. 11 July 2005 pp. 19-21, 32-33, 37, 40-42.
T. 5 June 2006 pp. 25, 28-29, 30-32, 34, 38, 43-44; Nsengiyumva Defence Exhibit 183 (personal
identification sheet).
380
T. 19 June 2006 pp. 3-11, 14-15, 28-29; Nsengiyumva Defence Exhibit 188 (personal identification sheet).
381
T. 19 June 2006 pp. 10-14, 16, 19-24, 29-30, 33.
382
Bagosora Defence Exhibit 24 (Rwandan judgment of Witness XBH, dated 27 October 2000).
383
Bagosora Defence Exhibit 21 (statement of 8 October 1999), p. 20.
384
Bagosora Defence Exhibit 24 (Rwandan judgment of Witness XBH, dated 27 October 2000), p. 68.
379
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in July 2003, Witness XBH acknowledged participating in several crimes, including helping
to draw up lists of Tutsis to be killed and escorting a convoy of 33 Tutsis that were apparently
taken from Butare prefecture to Gisenyi prefecture for execution. He also admitted to having
participated in the killing of seven other Tutsis over a two day period.
333. When asked about this contradiction, the witness admitted lying to the Rwandan
authorities and stated that this was to avoid being sentenced to death.385 While it might be
understandable that the witness would try to avoid a more severe sanction, his willingness to
mislead Rwandan judicial authorities for more favourable treatment raises some concerns
about his credibility. The Chamber also observes that Witness XBH is an alleged accomplice
of Bagosora and Nsengiyumva and may wish to shift guilt.
334. In his statement to Tribunal investigators in September 2002, Witness XBH stated
that he participated in the alleged meeting to draw up the list of Tutsis with only three other
individuals, namely Nizeyimana, Bagosora and Nsengiyumva. He explained that Bagosora
proposed drawing up the list. Also, the witness offered names while Nsengiyumva alone
wrote them down.386 The witness maintained this position when he testified before the
Chamber in July 2003.
335. In his subsequent interview with Tribunal investigators in June and October 2004, the
witness stated that Bourgmestre Kanyabashi, Minister Augustin Ngirabatware, Alphonse
Higaniro and Félicien Kabuga had all attended the meeting and participated in making the
list.387 As a result of this statement, the Chamber granted a Defence request to recall the
witness for further cross-examination.388
336. When Witness XBH testified before the Chamber for the second time in June 2005,
he gave a different account. He testified that it was Kabuga, not Bagosora, who had proposed
that a list be made. Higaniro, Kanyabashi and Nsengiyumva had then written the names
dictated by the others present.389 Regarding the difference in the number of participants at the
meeting, he explained that his prior testimony in 2003 focused only on the role of military
officers and omitted all references to “civilian” personalities.390 The witness added that he
had told a Tribunal investigator that he could not offer testimony against Ngirabatware or
Kabuga, because of a pact between Ngirabatware’s family and his family. He also simply
forgot to mention Kanyabashi and, in any event, the Tribunal investigator failed to ask
exhaustive questions and did not properly record his statement.391
337. The Chamber does not find these explanations convincing. In particular, the witness
gave detailed testimony in July 2003 concerning how the February meeting unfolded,
including the arrival of the participants. He also confirmed the number of participants several
385
T. 4 July 2003 pp. 4-5, 8-12, 16; T. 7 July 2003 p. 61; T. 20 June 2005 p. 12; T. 21 June 2005 p. 26.
Bagosora Defence Exhibit 20 (statement of 9 and 10 September 2002).
387
Nsengiyumva Defence Exhibit 85 (statement of 3, 4 and 8 June and 5 and 6 October 2004).
388
Anatole Nsengiyumva’s Extremely Urgent Motion to Recall Prosecution Witness XBH for further CrossExamination Pursuant to Rules 54, 90 (G), 73 (A), and 91 (B) of the Rules of Procedure and Evidence and
Articles 19 and 20 of the Statute, filed on 6 April 2005. The Chamber granted the motion in an oral decision.
See T. 18 May 2005 p. 7.
389
T. 21 June 2005 pp. 8-17, 27-28, 30-37, 39; T. 22 June 2005 pp. 17-21, 24, 27.
390
T. 21 June 2005 pp. 6, 20; T. 22 June 2005 p. 3.
391
T. 21 June 2005 pp. 23-26, 43; T. 22 June 2005 p. 16.
386
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times during his examination in 2003.392 His assertion that he omitted Kabuga and
Ngirabatware due to a family pact illustrates the witness’s willingness to alter his account of
events for personal reasons. Furthermore, this account does not explain why he did not testify
in 2003 that Higaniro was present at the meeting. He did implicate Higaniro in relation to
other events in that testimony. His suggestion that this aspect of his testimony was not
properly recorded is therefore not convincing.
338. The discrepancies in Witness XBH’s testimony and statements concerning the
meeting as well as his explanations for them reduce his credibility.393 In addition, the
evidence of Witnesses BK-1, KYZ-1 and LIQ-1, while not definitive, raise additional
questions about the identity of the Tutsi victims mentioned by Witness XBH as well as that of
the perpetrators of the subsequent killings in Nyamyumba commune based on the Butare list.
Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond reasonable
doubt that in February 1994 Bagosora and Nsengiyumva participated in a meeting in Butare
where a list was drawn up of Tutsis to be killed, shortly after which 33 Tutsi were abducted
and killed. Furthermore, given the Prosecution evidence, the Chamber has some doubts about
Nsengiyumva’s responsibility in relation to the alleged killings in April in Nyamyumba
commune and other parts of Gisenyi prefecture.
339. The Chamber held, during the trial, that Bagosora and Nsengiyumva had adequate
notice of these allegations. In view of the Chamber’s findings, it need not revisit the Defence
arguments concerning the pleading of these elements in their respective Indictments.394
2.4.7
Senegalese Dinner, 4 April 1994
Introduction
340. The Bagosora Indictment alleges that on 4 April 1994, Bagosora said that the only
solution to the political impasse was to eliminate all the Tutsis. According to the Prosecution,
he made these comments at a dinner organised by the Senegalese contingent of UNAMIR in
Kigali while in the company of Luc Marchal and Roméo Dallaire. Reference is made to
392
See, e.g., T. 3 July 2003 p. 17 (“Mr. President: There were three persons or four persons present during that
conversation; is that so, Mr. Witness? The witness: There were three people. I was the fourth person, so there
were four of us.”); T. 4 July 2003 p. 38 (“Mr. President: … In that house, on that evening, when you prepared
the meal and the lists eventually were drawn up, who was in the house except for Mr. Bagosora, Mr. Anatole
Nsengiyumva, your chief and yourself? Who else was in the house, please? The witness: No one else. Mr.
President: On that evening there were only four persons in the house? … The witness: Yes.”); Id. p. 41
(Bagosora Defence: “Q. So, from 8:00 onwards there were four of you … Am I right? A. Yes, that is correct.”).
393
In addition, the Chamber notes that during his testimony in June 2005, Witness XBH asserted that a relative
of Bagosora and another individual had solicited him to change his statement for a bribe of three million
Rwandan francs. He further alleged that a staff member of the Tribunal also asked him to modify his statements
and to testify for the defence. Following these allegations, the Chamber ordered the Registry to investigate the
matter. The investigating panel concluded that Witness XBH’s allegations were not in any way credible. See T.
20 June 2005 pp, 14, 16-18; T. 22 June 2005 pp. 31-45, 48-55, 62-64; Bagosora Defence Exhibit 231 (Rapport
sur les allegations du témoin XBH relatives à des tentatives de lui faire changer son témoignage).
394
See Decision on Bagosora Motion for Exclusion of Evidence Outside the Scope of the Indictment (TC), 11
May 2007, paras. 54-57, 77; Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope
of the Indictment (TC), 15 September 2006, paras. 10-12, 19, 22-24; Decision on Defence Objection to
Elements of Testimony of Witness XBH (TC), 3 July 2003.
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Dallaire and Expert Witness Filip Reyntjens.395 The Bagosora Defence disputes the allegation
and refers to the testimony Marchal, Isabelle Uzanyinzoga and Babacar Faye.396
Evidence
Prosecution Witness Roméo Dallaire
341. General Dallaire, the military commander of UNAMIR, testified that on 4 April 1994,
he attended a dinner at the Méridien Hotel in Kigali, organised by the Senegalese contingent
of UNAMIR in celebration of their national holiday. He sat at the same table as Colonel
Marchal, Bagosora and his wife, and some other persons. Dallaire overheard Bagosora state
that the region was faced with a Tutsi hegemony and that the Tutsis wanted to reclaim
power.397
342. During the dinner, Dallaire also observed Marchal and Bagosora in a conversation,
but did not hear the details since he was across from them and the music was loud. Sometime
before Marchal’s evacuation on 18-19 April, Marchal told Dallaire that Bagosora had stated
that the war was at hand and that “a final solution was going to happen”, involving
elimination of the Tutsis. Dallaire was not surprised that he was not informed immediately of
these comments, both because Marchal probably assumed that Dallaire was listening at the
time and because the comments were not different in kind from Bagosora’s general attitude
towards the Tutsis.398
Prosecution Expert Witness Filip Reyntjens
343. Filip Reyntjens, an expert witness in Rwandan history, confirmed that he interviewed
Marchal for research purposes in July 1994. Marchal told Reyntjens that during the
Senegalese national dinner he heard Bagosora state that “the Arusha Accord was going to
lead nowhere, except to disaster, and that the only course of action would be to exterminate
all Tutsi”. This was subsequently reflected in Reyntjens book. In his testimony, he pointed
out that Marchal’s statements, in which he indicated confusion as to whether Bagosora had
predicted the final solution of the Tutsis, were given a long time after the interview.399
395
Bagosora Indictment, para. 5.13; Prosecution Closing Brief, paras. 726-728, 1528, p. 716.
Bagosora Closing Brief, paras. 848–862, 1544, 1594, 1824, 1829, 1850, pp. 349-350.
397
T. 19 January 2004 pp. 19-20; T. 22 January 2004 p. 46.
398
T. 19 January 2004 pp. 20, 21-22 (examination-in-chief: “… [Marchal] related to me a statement by Colonel
Bagosora that he heard and thought that I had heard also in regards to going to the ultimate solutions and clearly
indicating an ethnic war was at hand, and words to that effect. I don’t remember the exact words. … The words
were in nature indicating that war was at hand and a final solution was going to happen. Judge Egorov: And
what was that final solution going to be? The witness: Well, it was directed towards that Tutsi ethnicity. And he
at times said Tutsis and at other times used the RPF, which was over 90 per cent Tutsi. He was demonstratively
hostile to the RPF on most occasions, anyway, although sometimes not overtly. But it was – they had been
talking about the Tutsi hegemony, and from what I gather, was a continuum of that point.”); T. 22 January 2004
pp. 45, 46-47 (cross-examination: “Q. Let us be clear here, General. Did you or didn’t you hear Bagosora say
that the Tutsis had to be eliminated? A. No I did not hear him say that. Q. … Do you agree that … Colonel
Marchal did not hear Bagosora say that Tutsis had to be eliminated? A. No. Colonel Marchal said that he had
heard Bagosora say so. Q. Are you sure that Colonel Marchal didn’t hear Bagosora say the RPF had to be
eliminated? A. It seems to me that it was the Tutsis. If it was a question of eliminating RPF we have to know
that the RPF was 95 percent Tutsi.”).
399
T. 15 September 2004 pp. 33 (quote), 34; T. 17 September 2004 pp. 15, 18-21; Bagosora Defence Exhibit 9
(Filip Reyntjens: Rwanda: Trois jours qui ont fait basculer l’histoire (1995), p. 22.
396
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Bagosora
344. Bagosora attended the Senegalese dinner on 4 April at the invitation of Boubacar
Faye. He sat at the same table as Dallaire, Marchal, Mamadou Kane and his own wife,
Isabelle Uzanyinzoga. The conversation focused on Rwandan regionalism and ethnic
divisions. Bagosora also discussed the RPF’s unwillingness to continue the peace process and
predicted that the RPF intended to seize power through violent means. He denied discussing
the elimination of the Tutsis or the RPF, although he later stated that Marchal’s book
provided an accurate summary of what had been discussed during dinner.400
Kabiligi Defence Witness Luc Marchal
345. Colonel Marchal, the Kigali sector commander of UNAMIR, confirmed that at the
Senegalese dinner on 4 April, he sat with Dallaire, Mamadou Kane, and Bagosora and his
wife. Bagosora, who sat next to Marchal, discussed the long-standing antagonism between
the Tutsis and the Hutus. Marchal was unable to recall whether Bagosora also called for the
elimination of the Tutsis or of the RPF. If Bagosora had made significant statements
regarding the elimination of the Tutsis, Marchal would have entered this into his diary the
same evening. No such entry had been made. He was uncertain whether he later informed
Dallaire of Bagosora’s utterances during the dinner.401
346. Marchal confirmed that he informed Reyntjens in July 1994 that Bagosora had
referred to the extermination of the Tutsis at this dinner. He made similar comments in a Pro
Justitia statement to the Belgian authorities in November 1995. Subsequently, he altered his
views on this event in a statement given to Tribunal investigators in 1997, stating that he was
uncertain whether Bagosora had used the term “Tutsi” or “RPF”. In 2001, he wrote a book
where he recounted his experiences at the Senegalese dinner. Marchal explained that his
conflicting reports were a result of genuine confusion he felt regarding the content of
Bagosora’s utterances at this event.402
Bagosora Defence Witness Isabelle Uzanyinzoga
347. Isabelle Uzanyinzoga, Bagosora’s wife, attended the Senegalese dinner on 4 April
with her husband. During their four hours there, she never left her husband’s side and heard
his every word. Shortly after arriving, they sat next to each other at a rectangular table.
Seated across from them were Dallaire and Marchal. A fifth individual that she could not
identify also sat at the table. Dallaire, Marchal and Bagosora discussed Rwanda’s ethnic
issues, and Bagosora stated that the RPF was preventing the installation of the Broad-Based
Transitional Government. Bagosora never said that the Tutsis or the RPF had to be
eliminated.403
400
T. 2 November 2005 pp. 15-20, 22-23 (“Q. To summarise, Colonel, that is, in relation to the Senegalese
ceremony, based on everything that has been said, can you tell the Court or summarise what you believe you
said during that ceremony? A. I believe that Marchal’s book summarised everything. That is the summary that I
would have given. We did not talk about eliminating Tutsis; no such thing was said.”).
401
T. 4 December 2006 p. 37; Bagosora Defence Exhibit 361 (Extract from Colonel Marchal’s diary, given in a
Pro Justitia statement of 6 November 1995 to Belgian authorities), p. 2.
402
T. 4 December 2006 pp. 38-43, 46-50; T. 6 December 2006 pp. 19-24; Bagosora Defence Exhibit 80
(statement of 11 February 1997), pp. 5-6; Bagosora Defence Exhibit 59 (Colonel Luc Marchal: Rwanda: La
Descente aux Enfers (2001), p. 213.
403
T. 1 December 2005 pp. 2, 14-16, 44, 48-50, 60.
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Bagosora Defence Witness Babacar Faye
348. Lieutenant Colonel Faye, a Senegalese military officer assigned to UNAMIR, testified
that he invited Bagosora and his wife to the 4 April celebration of Senegal’s national day.
There was “great noise” throughout this celebration, due in part to the Ghanaian battalion’s
orchestra playing in an enclosed space, which resulted in loud conversations. When Bagosora
and his wife arrived, Faye seated them at the dignitaries’ table. He did not hear Bagosora
suggest that Tutsis be eliminated during the times he was with Bagosora on this evening.404
Bagosora Defence Witness Jacques Roger Booh-Booh
349. Jacques Roger Booh-Booh, the UN Special Representative to Rwanda, was a guest of
honour at the Senegalese National Dinner. He was not aware that Bagosora had attended this
event or made any derogatory statements during it.405
Deliberations
350. It is undisputed that Bagosora attended the Senegalese National Dinner at the
Méridien Hotel in Kigali on 4 April and that he discussed the Rwandan political situation, the
Arusha Accords, and the RPF with General Dallaire and Colonel Marchal who were seated at
his table. The main question for the Chamber is whether Bagosora, as part of a conversation
with Marchal, proposed eliminating the Tutsis as a solution to the political impasse between
the Rwandan government and the RPF.
351. Only Marchal heard the alleged remark. This is not surprising, given the loud music
that evening. Dallaire testified that Marchal told him about the conversation before 18 April.
The Chamber accepts his evidence even though Marchal did not recall mentioning this to
Dallaire. It follows from Dallaire’s testimony that he was not quite certain about the exact
words used by Marchal. He did not rule out that Bagosora had referred to the elimination of
the RPF and not the Tutsis but noted that the RPF was predominantly composed of Tutsis.406
352. Marchal’s interview with Reyntjens in July 1994 was reflected in the book, published
the following year, where Reyntjens wrote that Bagosora had said that it was necessary to
exterminate all Tutsis.407 Similarly, in a 1995 Pro Justitia statement given to Belgian
authorities on 29 November 1995, Marchal stated that Bagosora had referred to the
“elimination of Tutsis” during the Senegalese dinner.408 Marchal testified that this wording
was influenced by the investigator’s lack of knowledge about the Rwandan situation.409
404
T. 28 March 2006 pp. 39-41. Faye testified that the Senegalese contingent commander, Colonel Seck, may
have been with Bagosora all evening, as he had invited Bagosora to the event. Seck would have informed Faye
if such an event had occurred but never did.
405
T. 21 November 2005 pp. 73-74, 78.
406
T. 22 January 2004 p. 47 (quoted above). In connection with its assessment of Dallaire’s testimony, the
Chamber has taken into account Bagosora Defence Exhibit 245 (Dallaire’s interview with Le Soir on 2
December 1995) as well as the reference to it in Bagosora’s testimony at T. 2 November 2005 pp. 21-24. It
notes that the interview was not put to Dallaire during his cross-examination.
407
Bagosora Defence Exhibit 9 (Filip Reyntjens: Rwanda: Trois jours qui ont fait basculer l’histoire (1995)), p.
22: “Lors d’une reception donnée par le contingent sénégalais de la MINUAR à l’occasion de la fête nationale
de leur pays, le colonel Bagosora disait devant plusieurs témoins que les accords d’Arusha n’offraient aucune
perspective et qu’il fallait exterminer tous les Tutsi”.
408
This Pro Justitia Statement was not entered as an exhibit but the relevant portion was read into the record
during Marchal’s cross-examination. See T. 4 December 2006 p. 38 (“In answer to your question regarding
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353. When Marchal gave his statement to Tribunal investigators in 1997, he was uncertain
whether Bagosora had referred to the elimination of the RPF rather than the Tutsis but
maintained that Bagosora had predicted the elimination of Tutsis.410 And in his book,
published in 2001, he wrote that Bagosora had referred to the elimination of the RPF and not
the Tutsis.411 Before the Chamber, Marchal explained that he was in doubt about the exact
words used by Bagosora, in particular because his diary, which was filled in on the evening
of 4 April 1994, did not refer to elimination of Tutsis as such.412
354. Marchal has explained his different accounts as confusion about what was said.
However, as late as in February 1997, Marchal understood Bagosora’s utterance as a
prediction of the elimination of the Tutsis. He was even surprised that Bagosora had said this
in the presence of UNAMIR representatives. This indicates that Bagosora’s remark was more
significant than reflected in Marchal’s diary. Nevertheless, his present uncertainty about the
exact content of the statement raises some doubt concerning what was said.
355. Having assessed the totality of the evidence, the Chamber finds it established that
Bagosora mentioned the elimination of the RPF. However, it has not been demonstrated that
he also referred to Tutsis in general, either explicitly or by implication. Consequently, the
Chamber does not find it proven beyond reasonable doubt that Bagosora expressed himself in
favour of elimination of “all the Tutsis”, as alleged in the indictment, during the conversation
with Marchal at the Senegalese National Dinner on 4 April 1994.
statements by Colonel Bagosora on a plan intended to eliminate the Tutsis, ‘My answer is that, indeed, at the
reception of the 4th of April at the Méridien hotel, on the occasion of the Senegalese national day, Colonel
Bagosora said that the only plausible solution for Rwanda would be the elimination of the Tutsis’”).
409
T. 4 December 2006 p. 40 (“But I can tell you that the person who was questioning me at that time, apart
from what information they may have accessed in the press with regard to Rwanda, had no other idea or precise
elements to define the RPF, the Tutsis, what’s the difference between the Tutsis and the RPF and in the Tutsis
living along the borders of Rwanda? None of these points were on the agenda or within the knowledge of that
investigator”).
410
Bagosora Defence Exhibit 80 (statement of 11 February 1997), pp. 5-6 (“[Bagosora] summarised his view in
the following terms: The RPF has only one objective, to take power by force, and the RPF has no intention of
participating in power through democratic means and as there is no way of getting along with the RPF, the only
solution is to eliminate the Tutsis. Today, I am not sure of the word used at the end of the above sentence:
“RPF” or “Tutsi”. What I am sure of is that his analysis of the situation predicted the elimination of the Tutsis
because, in the course of the conversation, Bagosora commented on the traditional antagonism between the
Hutus and the Tutsis ... I was surprised, however, that Bagosora said such a thing in public, given his position as
directeur de cabinet in the Ministry of Defence”).
411
Bagosora Defence Exhibit 59 (Colonel Luc Marchal: Rwanda: La Descente aux Enfers (2001), p. 213:
“Insistant sur l’antagonisme ancestral entre Hutus et Tutsis, il conclut que le FPR n’a pas la moindre intention
de participer au processus de paix par des moyens démocratiques mais que sa seule et unique motivation est la
conquête du pouvoir par la force. Dans ces conditions, la seule possibilité pour le Rwanda de connaître un jour
la paix est de l’éliminer”).
412
T. 4 December 2006 pp. 37-38 (“And I am very much convinced that if Colonel Bagosora had made
significant statements that made it possible for me to believe that the conclusion of his speech was really the
elimination of Tutsis as such, I am convinced that this would have been reflected in the transcripts of that event.
But that is not the case.”); Bagosora Defence Exhibit 361 (Extract from Colonel Marchal’s diary entry for 4
April 1994, given in a Pro Justitia Statement of 6 November 1995 to Belgian authorities): (“1700 HR réception
donnée par les Sénégalais à l’occasion de leur fête nationale. Très belle réussite, chaleureuse ambiance. Je
prends le repas en compagnie du FC [Force Commander], de Mr Kane et du Col Bagosora et de son épouse.
Intéressante discussion sur la situation politique au Rwanda et sur l’importance de l’ethnie dans les relations
entre les communautés. En fait la thèse défendue est que la seule motivation du FPR en prenant les armes
contre le gouvernement actuel n’est pas la victoire de la démocratie, mais la conquête du pouvoir par la
violence. Je suis assez prêt de partager cette thèse qui me semble conforme à mes observations et deductions.”).
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2.5
Preparation and Use of Lists
356. Each of the Indictments alleges that, as part of the Accused’s conspiracy to eliminate
Tutsis and members of the opposition, civilian and military authorities and militia prepared
lists of persons to be eliminated. As early as October 1990, lists were used by Bagosora and
Ntabakuze as part of the mass arrests following an RPF offensive into Rwanda. At a 1992
meeting, Bagosora instructed the two general staffs of the army and gendarmerie to create
lists of the “enemy and its accomplices”, which had been defined in the Definition of the
Enemy document (III.2.2). The army intelligence bureau (G-2) prepared and updated these
lists under the supervision of Nsengiyumva and later Aloys Ntiwirabogo. One of these lists
was found in the vehicle of Déogratias Nsabimana, the army chief of staff, after a traffic
accident in 1993. On 10 January 1994, an Interahamwe leader informed UNAMIR that he
had received orders to prepare lists of Tutsis to be eliminated. From 7 April to late July 1994,
the military and Interahamwe allegedly used these pre-established lists to massacre Tutsis
and moderate Hutus.413
357. The Defence teams challenge the pleading in their respective Indictments of these
allegations. They also dispute the evidentiary basis for the Prosecution’s claims.
Nevertheless, they do not seriously dispute that civilian or military authorities may have
maintained lists. The Bagosora, Ntabakuze and Nsengiyumva Defence teams notably intimate
that it is normal for governments or political parties to maintain lists. The Defence teams
contest that the purpose of any such list, if it existed, would be to eliminate particular
individuals. At any rate, targeted killings for political purposes would contradict claims that
the murders constituted genocide.414
358. A number of the events, discussed below, precede the Tribunal’s temporal jurisdiction
of 1 January to 31 December 1994. The Appeals Chamber has held that this does not
preclude the admission of such evidence if it is relevant and has probative value in terms of
clarifying the context in which the crimes occurred, establishing by inference an Accused’s
criminal intent, or showing a deliberate pattern of conduct.415 These pre-1994 events are not
themselves material facts on which a conviction can be based. The Chamber therefore does
not find it necessary to discuss the challenges by the Defence to the pleading of the pre-1994
incidents in the Indictments.
2.5.1
Arrests, October 1990
Introduction
359. In support of the allegation that Bagosora and Ntabakuze used lists in connection with
their role in the mass arrests after the RPF attack on 1 October 1990, the Prosecution relies on
Witnesses DBY, DBQ, XAB, XXC, XAI and Expert Witness Alison Des Forges, as well as
Defence Witness DM-25, discussed below (III.2.5.2-3). Expert Witness Filip Reyntjens and
413
Bagosora Indictment, paras. 1.18, 5.1, 5.36-5.40, 6.34, 6.52; Kabiligi and Ntabakuze Indictment, paras. 1.18,
5.1, 5.27-5.31, 6.24; Nsengiyumva Indictment, paras. 1.18, 5.1, 5.25-5.29, 6.28. The relevant portions in the
Prosecution Closing Brief are referenced below in each sub-section.
414
Bagosora Closing Brief, paras. 126-140, 1985-1987, pp. 526-527; Kabiligi Closing Brief, paras. 185, 1522,
1537, pp. 605-607; Ntabakuze Closing Brief, paras. 2298-2301; T. 30 May 2008 pp. 85-86; Nsengiyumva
Closing Brief, paras. 663-685.
415
Nahimana et al. Appeal Judgement, paras. 315-316.
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Ambassador Flatten also gave relevant testimony. The Prosecution submits that Kabiligi
would have been “closely involved” in the events since he was a senior officer at ESM in
1990. To demonstrate this, it points to evidence of similar conduct from Witness XAI that
Kabiligi gave orders to capture and kill “Inyenzis” in Byumba prefecture in 1992.416
360. The Bagosora and Ntabakuze Defence teams do not dispute that individuals arrested
in October 1990 were previously identified. However, the evidence of the Accused’s role in
the arrests lacks credibility and relevance to the events which unfolded after 6 April 1994.
Reference is also made to Witnesses LE-1 and DM-52 as well as Expert Witness Bernard
Lugan. The Kabiligi Defence disputes that Kabiligi used lists and that he issued orders to
capture and kill “Inyenzis” in 1992, pointing to Witnesses DVD-7 and FB-25.417
Evidence
Prosecution Witness DBY
361. Witness DBY, a Tutsi, was a member of the Para Commando Battalion in October
1990. The army chief of staff dispatched several army units, including a company of the Para
Commando Battalion, to the war front in Byumba prefecture on the night of 1 October 1990
immediately following the RPF attack on Rwanda. The next day, the witness accompanied
Ntabakuze and the rest of the Para Commando Battalion to Gabiro in Byumba prefecture.
They returned to Camp Kanombe on 4 October 1990. That night, the witness heard sustained
gunfire coming from the airport towards the camp, and the battalion was assembled and
informed that the “Tutsis” had arrived in Kigali.418
362. On 5 and 6 October 1990, Witness DBY accompanied Ntabakuze, his guards and
driver on an operation in Kigali where soldiers arrested Tutsis and individuals without
identity cards. Ntabakuze read out names from a typed three page list of people who were
then sought for arrest. Ntabakuze also unsuccessfully tried to locate a Hutu business man on
the list named Ndagije, who was suspected of being an accomplice based on his connections
to Uganda.419
Prosecution Witness DBQ
363. Witness DBQ, a Hutu, testified that he was a member of the Para Commando
Battalion in 1990. Shortly after the RPF invaded Rwanda in October 1990, Tutsis and Hutus
identified as RPF accomplices were selectively arrested in areas such as Kanombe,
Gikorongo, Gikondo and Remera and brought back to Camp Kanombe. The witness
participated in the arrest of four people in Kimironko. He heard from the bodyguards of
Bagosora and Ntabakuze that these Accused used lists to identify and arrest individuals
416
Prosecution Closing Brief, paras. 277-281, 592, 1099-1100(a), 1103(c-d), 1108, 1109(g), pp. 731-735, 809813, 865-868.
417
Bagosora Closing Brief, paras. 479-505; Kabiligi Closing Brief, paras. 110, 115-116, 234-235, 339-342, 404409, 729, 742-744, 751, 1126-1127, 1537, 1728; Ntabakuze Closing Brief, paras. 509-556; T. 30 May 2007 pp.
7, 25 (Bagosora). The Nsengiyumva Defence does not address this allegation in its Closing Brief.
418
T. 12 September 2003 pp. 43, 46-48; T. 22 September 2003 p. 2; Prosecution Exhibit 95 (personal
identification sheet).
419
T. 22 September 2003 pp. 3-6, 19.
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suspected of being RPF accomplices. However, he did not see any of these lists and only
received verbal orders during the operation.420
Prosecution Witness XAB
364. Witness XAB, a Tutsi member of the Para Commando Battalion, was deployed to
Mutara in October 1990 and returned to Camp Kanombe on 5 October 1990. That evening,
the Light Anti Aircraft Battalion fired heavy weapons steadily towards Masaka hill, and
Witness XAB heard that the “enemy” had reached Kigali. The following morning, homes
were searched and people were asked for identification. Tutsis were gathered at the
Nyarugunga sector office.421
Prosecution Witness XXC
365. Witness XXC, a Hutu, lived in the Kicukiro sector of Kanombe commune in 1990 and
worked as a watchman in the Kiyovu area. Sometime after 1 October 1990, he heard heavy
gunfire, and the next day, at about 5.00 a.m., approximately 20 soldiers wearing camouflage
uniform as well as black and camouflage berets surrounded his neighbourhood. They
searched the houses and inspected the identity cards of the residents. The soldiers arrested
Tutsis, individuals without identity cards and residents with issues of the newspaper Kanguka
in their home. Those arrested were ferried on buses to Nyamirambo stadium. As the witness
boarded one of the buses to be taken to the stadium, people from Gisenyi prefecture, who
lived in the neighbourhood, pointed out Bagosora leaning on his jeep nearby and said: “If this
attack is led by Bagosora, those who can pray better do so now.” The witness next saw
Bagosora at the stadium three days later. A soldier called for Landoald Ndasingwa over a
megaphone after speaking with Bagosora. As Ndasingwa approached, Bagosora struck him
on the shoulder with a pistol. There were around 50 persons between the witness and
Bagosora.422
Prosecution Witness XAI
366. Witness XAI, a Hutu soldier with the 17th Battalion in Byumba prefecture, stated
that, at some point in 1992, Kabiligi addressed officers and soldiers at the Byumba military
camp, which was five kilometres from the war front. He told them that the RPF would
infiltrate Rwanda disguised as civilians in order to provide information on the army’s military
positions in advance of an attack. Kabiligi further stated that the soldiers should be vigilant so
that the infiltrators could be captured.423
Prosecution Expert Witnesses Alison Des Forges and Filip Reyntjens
367. Alison Des Forges, an expert in Rwandan history, testified that, following what she
believed to be a staged RPF attack in Kigali on 4 October, authorities proceeded to arrest
thousands of people in the city and around the country. A large number of detainees were
420
T. 23 September 2003 pp. 3, 25-26; T. 26 September 2003 p. 3; T. 30 September 2003 pp. 10-11; T. 25
February 2004 pp. 36-37; T. 29 March 2004 p. 4; T. 30 March 2004 pp. 34-36, 39-40. Prosecution Exhibit 99
(personal identification sheet).
421
T. 6 April 2004 pp. 20, 43; Prosecution Exhibit 200 (personal identification sheet).
422
T. 17 September 2003 pp. 11-12, 35; T. 18 September 2003 pp. 8-14, 31, 44, 49; T. 19 September 2003 pp.
10-27; Prosecution Exhibit 96 (personal identification sheet). Witness XXC was arrested in 1995 after being
accused of involvement in the genocide. He was acquitted and released in October 2000. See T. 17 September
2003 pp. 8-11; T. 18 September 2003 pp. 36, 38, 44-49. The witness identified Bagosora in court. See T. 17
September 2003 pp. 41-42.
423
T. 9 September 2003 pp. 8-9, 29-30. Prosecution Exhibit 94 (personal identification sheet).
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Tutsis and alleged to have supported the RPF attack. Des Forges had examined a number of
lists in the Butare prefecture comprising hundreds of names identified and arrested in 1990 as
supporters of the enemy. Referring to these lists, she noted that some had been updated with
an additional column to include the individuals’ more recent activities. Filip Reyntjens, also
an expert in Rwandan history, testified that lists were used to identify persons who were
arrested in 1990.424
Bagosora
368. Bagosora denied that he, Ntabakuze or soldiers generally prepared lists or participated
in arrests or killings in October 1990. Bagosora did not give information to assists those who
carried out the arrests, and he denied that torture or killing occurred in Camp Kanombe or
that anyone was detained there.425
369. A committee including representatives of the Ministry of Justice, the Ministry of
Defence, the Central Intelligence Services and the Ministry of the Interior, chaired by
Alphonse Nkubito, Rwanda’s Prosecutor General, was established and responsible for
creating lists of people to arrest. Bagosora denied going to Nyamirambo stadium when these
arrests occurred. Reading from a document entitled “List of people arrested following the
Inkotanyi attack of 1st October 1990”, he explained that the Ministry of Justice seal was on
the document because Nkubito belonged to this ministry. The document, which is
incomplete, purports to list 6,334 individuals, and Bagosora was unaware of the Ministry of
Defence preparing similar documents.426
Ntabakuze
370. Ntabakuze denied that he and members of the Para Commando Battalion carried out
arrests in October 1990 using lists, as his battalion was deployed to fight against the
aggression. One company of the Para Commando Battalion was deployed to Mutara on 1
October 1990 with other elements joining the following day.427
Nsengiyumva Defence Witness LE-1
371. Witness LE-1, a Hutu, was an army officer from 1973 to 1992 and worked at army
headquarters in 1990. He never saw lists prepared by the military, containing names of
persons to be killed.428
424
Des Forges, T. 5 September 2002 pp. 118-121; T. 16 September 2002 pp. 31-32; T. 17 September 2002 pp.
61-62; Reyntjens, T. 22 September 2004 p. 60.
425
T. 26 October 2005 pp. 32-39, 50. Bagosora also testified that after the RPF attack on Kigali on the evening
of 4 to 5 October 1990, he and other unit commanders at Kanombe camp arrested several of their own soldiers,
who had fired into the camp and at command positions. These enemy infiltrators were sent to the Kigali
prosecutor. More than 10 non-commissioned officers were imprisoned.
426
T. 26 October 2005 pp. 36-38, 40-41; T. 1 November 2005 p. 59; T. 10 November 2005 p. 76. Bagosora
Defence Exhibit 223 (listes des personnes arretées suite à l’attaque des Inkotanyis du 1 Octobre 1990; du 1
Octobre 1990 au 31 Mars 1991).
427
T. 18 September 2006 pp. 14-16; T. 21 September 2006 p. 34; T. 22 September 2006 p. 42; Ntabakuze
Defence Exhibit 226 (Report by United States Embassy, 8 November 1990).
428
T. 19 October 2005 pp. 38-39, T. 20 October 2005 pp. 29-30; Nsengiyumva Defence Exhibit 112 (personal
identification sheet). While in exile in 1995, a man named Barnabé Twagiramungu presented Witness LE-1 with
a list that allegedly contained names of people to be killed. Starting with number 49, the list was incomplete, but
included the names of the Ugandan President, the bishop of Goma, a Ugandan bishop, Rwandans abroad and
others. See T. 20 October 2005 pp. 29-30.
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372. After the RPF invasion on 1 October 1990, infiltrators attacked sensitive targets in
Kigali on the night of 4 to 5 October. President Habyarimana established a committee,
comprised of various government ministers, designed to avoid civilian reprisals and to
provide for official action against those alleged to have conspired with the RPF. The
committee set up a sub-committee, chaired by Alphonse Nkubito, the Prosecutor of Kigali. It
included representatives from the Ministries of Defence and Interior as well as the Central
Intelligence Service. National security agents and gendarmes arrested around 8,000 Hutus,
Tutsis and Twas beginning from 7 October pursuant to warrants issued by the prosecutor.
The detainees were sorted at Nyamirambo stadium before being placed in commune jails and
military camps. The prosecutor decided whether there was sufficient evidence to keep them
detained. Under pressure from the international community, President Habyarimana gave
amnesty to all the detainees sometime in 1991 or 1992. Witness LE-1 was not aware of the
participation of Bagosora or Ntabakuze in this operation. Ntabakuze was at the war front at
the time.429
Ntabakuze Defence Witness Robert Flatten
373. Robert Flatten was the United States Ambassador to Rwanda from 1990 to November
1993. When he arrived in December 1990, approximately 8,000 people, nearly all Tutsis,
were incarcerated because they had allegedly supported the RPF after the October invasion.
The international community, human rights organisations and many Rwandans mounted
pressure on the government to try the detainees. Given the relative inability to provide
defence representation to so many detainees, they were released.430
374. Flatten was aware of plans to kill Tutsis, had seen lists of people to be eliminated and
heard threats against persons known to support the Arusha Accords. However, he was not
aware of a broad plan to commit genocide and believed that the lists were not prepared by
individuals who were mainstream members of President Habyarimana’s party or the
government with whom he dealt.431
Kabiligi Defence Witnesses DVD-7 and FB-25
375. Witness DVD-7, a Hutu, was a company commander deployed in the field within the
Byumba operational sector in 1992. He did not hear about Kabiligi’s alleged speech at the
Byumba camp in 1992. Kabiligi would not have given the speech in the absence of company
commanders within the sector.432 Witness FB-25, a Hutu, was an officer assigned to the
Byumba operating sector in December 1992. He was not aware of any speech made by
Kabiligi to soldiers on the tarmac of the camp. Given his position, the witness would have
heard about it if it had occurred.433
429
T. 19 October 2005 pp. 76-78; T. 20 October 2005 pp. 25-29, 47-48, 64-70; T. 21 October 2005 pp. 56-59.
T. 30 June 2005 pp. 31-32, 54-55; Ntabakuze Defence Exhibit 140 (personal identification sheet). Flatten
testified that some Tutsi members of his own staff were among those arrested.
431
T. 30 June 2005 pp. 64, 70-72; T. 1 July 2005 pp. 1-2.
432
T. 6 November 2006 pp. 66-67, 70-71; Kabiligi Defence Exhibit 105 (personal identification sheet). Witness
DVD-7 was not part of the 17th Battalion.
433
T. 13 November 2006 pp. 3, 7-8, 15, 26; Kabiligi Defence Exhibit 109 (personal identification sheet).
Witness FB-25 also appeared in the proceedings as Witness DM-190. He was not a member of the 17th
Battalion.
430
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Bagosora Defence Expert Witness Bernard Lugan
376. Bernard Lugan, an expert in Rwandan history, testified that of the nearly 6,000 to
7,000 individuals arrested in Kigali after the RPF attack in October 1990, nearly 61 percent
were Hutus.434
Deliberations
377. Several thousand people were arrested and detained in Kigali in the wake of the RPF
attack on Rwanda in October 1990 and, at least some of these arrests, were based on preestablished lists. There is some dispute as to when this operation commenced. Witness DBY,
for example, indicated that soldiers were dispatched on the morning of 5 October, whereas
Witness LE-1 noted that arrests occurred beginning on 7 October after a committee chaired
by Prosecutor Nkubito met and drew up a list. In view of Witness DBY’s first-hand account,
the Chamber is satisfied that arrests began as early as 5 October following an attack in Kigali
on the previous night. This evidence does not mean that arrests were not also conducted
based on the lists drawn up by the committee described by Witness LE-1 and Bagosora. The
question for the Chamber is to what extent Bagosora, Ntabakuze and Kabiligi were involved
in this operation.
378. The main evidence of Ntabakuze’s involvement in the operation comes from the firsthand evidence of Witnesses DBY and DBQ as well as to a lesser extent from Witness XXC.
Witness DBY personally accompanied Ntabakuze during the operation and saw him carrying
a list of names of people to arrest. His evidence was neither extensive nor detailed on the
arrest operation, except for Ntabakuze’s role in the unsuccessful attempt to locate Ndagije,
the Hutu businessman. In particular, he did not clearly identify the units participating in the
arrests, other than those accompanying Ntabakuze in his vehicle, beyond noting that some
came from Camp Kanombe. Nevertheless, it is implicit in Ntabakuze’s participation that at
least some of the soldiers participating in the mass arrests would have been from the Para
Commando Battalion. During the cross-examination of Witness DBY, the Ntabakuze
Defence only focused on his ability to see the names on the list which Ntabakuze carried.435
This point is not material given the witness’s claim that he saw the list, not the names, while
in close proximity to Ntabakuze, and that he heard names being read out from it. In the
Chamber’s view, Witness DBY gave a credible first-hand account. The participation of the
Para Commando Battalion is corroborated by Witness XXC who observed soldiers wearing
camouflage berets, exclusively worn by commando units, participating in the arrest.
379. Witness DBQ attested to directly participating in the arrest operation with other
members of the Para Commando Battalion. The Ntabakuze Defence contests that he was in
fact a member of the battalion during the relevant events by pointing to the testimony of
several members of the battalion and company, who had never heard of him, as well as
discrepancies between his current name and religion and that of the person listed on the roles
of the battalion.436 For witness protection reasons, the Chamber will not fully detail this
evidence related to his credibility here. It suffices to note that the evidence concerning his
membership in the battalion at the time is equivocal. In any event, the Chamber has raised
concerns about the credibility of his testimony with respect to several other events. It
434
T. 14 November 2006 pp. 4, 11-14; Bagosora Defence Exhibit 358 (Expert Report of Bernard Lugan), p. 28.
T. 22 September 2003 p. 19.
436
Ntabakuze Closing Brief, paras. 257-281.
435
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therefore views his evidence on this incident with equal caution and declines to rely on it in
making factual findings.
380. Witness XAB, a member of the Para Commando Battalion testified about the arrests
following the RPF invasion but the parties did not ask him to give details on the identity of
the participants in the operation. Therefore, his testimony has limited probative value on this
point.
381. The Ntabakuze Defence presented evidence through Ntabakuze and Witness LE-1 to
show that neither Ntabakuze nor members of the Para Commando Battalion could have
participated in the operation since they were stationed at Mutara, where Camp Gabiro is
located, and because other security forces executed the arrest warrants.437 The Chamber is
mindful that, given their positions, both of these witnesses would have an interest in
distancing themselves from the 1990 arrest operation. Ntabakuze does not dispute that he was
sent to Mutara after the initial RPF attack, and Witness LE-1 testified that on the evening of 3
to 4 October, a decision was made to withdraw soldiers in Gabiro to defend the capital
against a possible RPF attack on Kigali.438 Bagosora confirmed Witness LE-1’s account that
Rwandan army officials suspected a possible RPF attack in the city and that the Para
Commando Battalion was recalled based on this suspicion.439 In view of this and Witness
DBY’s first-hand account of returning to Camp Kanombe from Camp Gabiro on 4 October,
the Chamber is satisfied that Ntabakuze and the Para Commando Battalion were in a position
to participate in the operation in Kigali around that time. Witness DBY’s direct evidence
demonstrates that Ntabakuze and members of the Para Commando Battalion participated in
the arrest operation. The level of detail in Witness DBY’s testimony, however, does not
permit the Chamber to make findings on the full scope of Ntabakuze’s involvement.
382. Turning to Bagosora, only Witness XXC provided a first-hand account placing him
on the ground during the arrest operation and at the stadium where he allegedly assaulted
Landoald Ndasingwa. The witness had no prior knowledge of Bagosora when he observed
him during the arrest and instead heard other unidentified individuals living in his
neighbourhood, who were purportedly from Gisenyi prefecture, make reference to Bagosora.
In addition, at the stadium, there were approximately 50 people between the witness and
Bagosora during the alleged altercation with Ndasingwa. In the Chamber’s view, he did not
have a reliable basis for identifying Bagosora, who was the commander of Camp Kanombe,
at the time of the events in 1990, in particular given the difficult circumstances under which
he observed him. Consequently, the Chamber declines to accept Witness XXC’s testimony
concerning Bagosora in the absence of corroboration.
383. With respect to Kabiligi, there is no testimony implicating him in the 1990 arrest
operation. The Prosecution’s submission that he would have participated in the operation,
given his position as a senior officer at ESM in 1990, is not supported by any evidence. The
Prosecution also suggests that his involvement in the 1990 arrests follows from his role in a
437
Paragraph 459 of the Kabiligi Closing Brief points out that Reyntjens made no mention of the Para
Commando Battalion in relation to these arrests. This omission has limited significance since he did not testify
extensively about the operation.
438
T. 20 October 2005 p. 25 (“We proposed that the units which were engaged on the Gabiro highway be
withdrawn to the capital in order to defend the capital because it was a dire situation. We just got confirmation
that the attack would take place, and accordingly, defend the Kayonza crossroads, but also to check RPF
advance, because there was another column which wanted to capture Ngarama sous préfecture.”).
439
T. 26 October 2005 p. 36.
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similar event occurring in 1992 in the Byumba operational sector where he allegedly asked
soldiers to be vigilant of RPF infiltrators disguised as civilians. Witness XAI was the only
witness who testified about this event.440 Witnesses FB-25 and DVD-7 suggested that
Kabiligi never gave such an address, but their evidence is of limited probative value.441 Even
if this event occurred, the Chamber is not convinced that Kabiligi was involved in the arrest
operation two years earlier.
384. The Prosecution has not made specific submissions in its Closing Brief to connect
Nsengiyumva to the arrest operation.
385. Accordingly, the Chamber accepts that Ntabakuze and members of the Para
Commando Battalion participated in the mass arrests in October 1990 following the RPF
invasion of Rwanda. Lists were used to identify certain individuals while others were arrested
based on their ethnicity, lack of identification documents or possession of certain material,
such as the Kanguka newspaper, which might identify them as RPF sympathisers. The
evidence allegedly connecting Bagosora to the operation is not clear. The Chamber is not
convinced by the circumstantial evidence showing that Kabiligi was part of the event. There
is no evidence reflecting that Nsengiyumva participated in the operation.
2.5.2
Orders to the General Staff, 1992
Introduction
386. The Indictments allege that Bagosora instructed the general staffs of the army and
gendarmerie to create lists of the “enemy and its accomplices” during a 1992 meeting, which
were then updated by the army intelligence bureau (G-2) under Nsengiyumva and then Aloys
Ntiwirabogo. The Prosecution supports this allegation with evidence that Bagosora sent a
telegram in 1992 to the army units defining the enemy as Tutsis. This was allegedly followed
by the preparation of lists and demobilisation of Tutsi soldiers and Hutus suspected of being
RPF accomplices. The Prosecution refers to Expert Witness Alison Des Forges and
Witnesses DBY, XAP and DM-25.442
387. The Defence teams dispute the role of their clients in the preparation of lists in 1992
and argue that no reliable evidence connects them to this allegation. The Nsengiyumva
Defence also submits that regular reports from the Minister of Defence to the Prime Minister
during this period demonstrate that the keeping of lists by the military of suspected RPF
recruits, for example, was not unusual. The Bagosora and Ntabakuze Defence dispute that
Bagosora sent the 1992 telegram, resulting in the creation of lists and the demobilisation of
soldiers. Reference is made to Witnesses DM-25, DM-52, DK-110, DK-120, DBN and
BC.443
440
The Chamber has expressed concern about the reliability of certain aspects of Witness XAI’s testimony in
other parts of the judgement (III.2.5.1; III.4.4.1; III.4.5.2).
441
Witness DVD-7 noted that he was assigned to the field during this period, not at the camp. Witness FB-25
only arrived in the sector in December 1992 and acknowledged that he would not be aware of what transpired
before his assignment there.
442
Prosecution Closing Brief, paras. 47, 592, 773, pp. 732, 810, 867.
443
Bagosora Closing Brief, paras. 130-132, 586-603, p. 526; Kabiligi Closing Brief, para. 1537; Ntabakuze
Closing Brief, paras. 609, 611, 614-653; Nsengiyumva Closing Brief, paras. 663-664, 669-670, 675.
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Evidence
Prosecution Expert Alison Des Forges
388. Alison Des Forges, an expert in Rwandan history, stated that, in early October 1992,
some 10 days after the Definition of the Enemy document was circulated (III.2.2; III.2.4.1),
the chief of staff of the Rwandan army, Déogratias Nsabimana, directed all military units to
prepare lists of people suspected of any association with the enemy. As a basis for this
assertion, she referred to a letter of 2 February 1993, in which then Prime Minister Dismas
Nsengiyaremye criticised the efforts to compile lists and asked that any existing lists be given
to the Minister of Justice. The letter makes reference to previous correspondence concerning
the order to compile the lists. It also warns that the government needs to act delicately and
should avoid that innocent people suffer the “ignominies” of 1990 when 8,000 people were
arrested, maltreated and incarcerated on unfounded denunciations. Des Forges agreed that it
is appropriate for military authorities to remain alert in the midst of war, but that this did not
occur during a state of emergency. Military intelligence on “traitors” should have been
distributed to the proper judicial authorities and not generally among soldiers.444
Prosecution Witness DBY
389. Witness DBY, a Tutsi member of the Para Commando Battalion, testified that, in late
1992, he saw a telegram from the Ministry of Defence, signed “MINADEF”, addressed to the
general staff and unit commanders throughout the country. In the witness’s view, this meant
it was from Bagosora. The telegram identified Tutsis as the enemy and warned the recipients
to be vigilant since they were in their midst. Afterwards, Tutsi members of the army in
general, including the Para Commando Battalion, were identified and demobilised based on
lists. The witness did not see the lists. He cited the example of Corporal Zitoni, a Tutsi from
Gitarama prefecture, who was dismissed from the Para Commando Battalion. Several other
Tutsis and Hutus, who were suspected of being accomplices or affiliated with opposition
parties, were also dismissed. Witness DBY could not recall the other names. The formal
reason given for the dismissals was disciplinary grounds. By 1994, only about 15 Tutsis,
including the witness, who had distinguished themselves in battle, remained at Camp
Kanombe.445
Prosecution Witness XAP
390. Witness XAP, a member of the Second Company of the Para Commando Battalion,
said that, in August 1993, one of Ntabakuze’s bodyguards told him that the battalion’s
command was preparing lists of Tutsis and those who acted like Tutsis in order to demobilise
444
T. 16 September 2002 pp. 39-43, 81, 91; T. 17 September 2002 pp. 53-54; T. 24 September 2002 pp. 53-54;
Prosecution Exhibit 22 (Letter of 2 February 1993 from Dismas Nsengiyaremye to the Rwandan Minister of
Defence). Des Forges also said that, “in February”, Stanislas Kinyoni, an officer in the gendarmerie, assembled
gendarmes from the Kigali brigades and asked them to prepare lists of people with suspected ties to the RPF.
The parties did not seek further details on this incident, for instance about her source of information. See T. 17
September 2002 p. 61. In this context, the Chamber also notes the evidence of Nsengiyumva Defence Witness
RAS-1, a Hutu who worked in the intelligence bureau (G-2) of the gendarmerie from 1990 to 1994. He testified
that the gendarmerie did not compile lists and that Major Kinyoni, who was appointed G-2 at the end of 1993,
did not request gendarmes in Kigali to do so. See T. 13 October 2005 pp. 65-66, 69; T. 14 October 2005 p. 6; T.
18 October 2005 pp. 32-33.
445
T. 22 September 2003 pp. 8-11, 19, 21-33, 35-36, 41-43, 46; Prosecution Exhibit 95 (personal identification
sheet).
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them. The witness heard that he was on the list, and also saw the list. He was not
demobilised..446
Bagosora
391. Bagosora denied that he instructed two general staffs to establish lists of the enemy
and its accomplices in a meeting in 1992. As directeur de cabinet, he could only convene a
meeting of the general staffs in the Minister of Defence’s absence to discuss urgent matters.
However, the Minister, James Gasana, was in Rwanda in 1992. Bagosora denied ever calling
a meeting under such circumstances from his appointment as directeur de cabinet in 1992 up
until 5 April 1994.447
392. While directeur de cabinet, Bagosora was unaware of the February 1993 letter from
Prime Minister Dismas Nsengiyaremye, discussing an order from the Rwandan army general
staff to create lists of alleged Inkotanyi accomplices. Bagosora, noting that the letter was
addressed to the Minister of Defence, had no recollection of it being discussed in a meeting.
He was unaware of such an order coming from the Rwandan army headquarters. Bagosora
acknowledged that identifying the enemy and its accomplices is a routine part of intelligence
gathering, but denied that he could have given an order to collect such intelligence. Unlike
the Minister of Defence, Bagosora did not have authority over Rwandan army or gendarmerie
staff headquarters to give such orders.448
393. Bagosora testified that he did not send a telegram in 1992 or 1993 to unit commanders
defining the Tutsis as the enemy. The Ministry of Defence would have violated the principles
of military hierarchy if it had sent messages directly to Camp Kanombe.449
Nsengiyumva
394. Nsengiyumva testified that he did not participate in the preparation of lists of Tutsis to
be killed and was not aware of such lists. He also did not hear about the February 1993 letter
from the Prime Minister until it was disclosed to him in his trial by the Prosecution.
Nsengiyumva disputed its authenticity and denied receiving an order from the chief of staff of
the army to establish lists as reflected in it. He acknowledged, however, that as chief of the
intelligence bureau (G-2) at the time, he would have been tasked with identifying enemy
supporters, if it in fact had been ordered.450
Ntabakuze Defence Witness DM-25
395. Witness DM-25, a Hutu, was a member of the MDR party and worked in the office of
Prime Minister Dismas Nsengiyaremye during his term of office from 5 April 1992 until 16
July 1993. The Prime Minister became aware that the Rwandan army was updating lists of
suspected RPF accomplices. He did not suspect that massacres were being planned, but rather
was concerned about the army’s involvement in such matters, which were outside its
jurisdiction, in view of the excesses of the mass arrests in 1990. The Prime Minister wrote a
letter to the Minister of Defence on 2 February 1993 asking him to transmit the lists to the
446
T. 11 December 2003 pp. 11, 27-29; T. 15 December 2003 pp. 87-88, 93; Prosecution Exhibit 152 (personal
identification sheet). Witness XAP refused to provide his ethnicity. See T. 11 December 2003 pp. 65-68.
447
T. 1 November 2005 pp. 3-4.
448
Id. pp. 4-6.
449
T. 27 October 2005 p. 8; T. 14 November 2005 pp. 11-12.
450
T. 5 October 2006 pp. 21-23; T. 12 October 2006 pp. 11-15, 18-19; T. 13 October 2006 p. 9.
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Ministry of Justice so that it could open judicial files on the suspected individuals. The Prime
Minister never saw a copy of the lists.451
396. Witness DM-25 was shown a copy of the February 1993 letter, purporting to be from
the Prime Minister to the Minister of Defence concerning lists, which was the same letter that
Des Forges had examined during her testimony. He recognised the signature of the Prime
Minister and the office’s official seal. After further examination, he raised concerns about
whether the letter was in fact authentic, noting several anomalies in the text. However, he
agreed that the substance of the letter was accurate since the Prime Minister was aware of the
creation of lists and gave the order contained in the letter to the Minister of Defence.452
397. The witness explained that the Prime Minister’s office and the Ministry of Interior
had their own intelligence offices which gathered information concerning activities occurring
in Rwanda. The Ministry of Defence had an office which focused on external security. The
general staffs of both the army and gendarmerie also had intelligence bureaus (G-2), which
were supposed to focus on military operations. The Prime Minister received a weekly
security briefing from the Minister of Defence compiled from his own intelligence service as
well as those in the army and gendarmerie. Some of those reports contained lists of suspected
RPF recruits.453
Ntabakuze
398. Ntabakuze testified that he was unaware of the 1992 telegram defining the Tutsis as
the enemy. Furthermore, he did not demobilise soldiers, such as Corporal Zitoni, based on
their ethnicity. To illustrate this point, he also pointed to the fact that Witnesses DBN, DP,
XAB, BC and XAO, who were Tutsi members of the Para Commando Battalion, remained in
the battalion for the duration of the war in 1994. Ntabakuze also referred to a list of the Third
Company of the Para Commando Battalion prepared in December 1993 for the purposes of
the Social Security Fund, which contains Corporal Zitoni’s name.454
Ntabakuze Defence Witness DM-52
399. Witness DM-52, a Hutu, was an officer in the Para Commando Battalion until 1993.
He said that Corporal Zitoni was still in the battalion at the time of his departure.455
Ntabakuze Defence Witnesses DK-120 and DK-110
400. Witnesses DK-120 and DK-110, both Hutu members of the Para Commando
Battalion, testified that they were not aware of any soldier being dismissed from the battalion
based on ethnicity from 1992 and 1993.456
451
T. 11 April 2005 pp. 54, 75-77; T. 12 April 2005 pp. 4, 37-40, 71-72; T. 13 April 2005 pp. 7-8, 13, 15;
Ntabakuze Defence Exhibit 81 (personal identification sheet).
452
T. 11 April 2005 p. 74; T. 12 April 2005 pp. 48-61.
453
T. 12 April 2005 p. 61; T. 13 April 2005 pp. 5, 8-9, 16-17. A number of individuals suspected of receiving
training from the RPF are listed as part of one of the written security reports. See Nsengiyumva Defence Exhibit
63 (external security report of 15 October 1992), p. 4.
454
T. 21 September 2006 pp. 37-39; Ntabakuze Defence Exhibit 135 (list of members of the Third Company).
455
T. 27 June 2005 p. 23.
456
Witness DK-120, T. 4 July 2005 p. 71; Ntabakuze Defence Exhibit 141 (personal identification sheet);
Witness DK-110, T. 12 July 2005 p. 59; Ntabakuze Defence Exhibit 143A (personal identification sheet).
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Prosecution Witnesses BC and DBN
401. Witnesses BC and DBN, also members of the battalion, testified that there was no
discrimination based on ethnic origin in the battalion.457
Deliberations
402. The main evidence that an order was issued to the two general staffs of the army and
gendarmerie to prepare lists comes from a copy of a February 1993 letter written by Prime
Minister Dismas Nsengiyaremye to the Minister of Defence. The Prosecution also refers to
evidence from Witnesses DBY that Bagosora sent a telegram to the army staff and unit
commanders describing Tutsis as the enemy. Witness DBY and XAP referred to the
preparation of lists of Tutsi soldiers for demobilisation.
403. The Prime Minister’s letter refers to an October 1992 order by the army chief of staff
to all units and camps to identify suspected accomplices of the “Inkotanyi”. The Defence
disputes its provenance by pointing to Witness DM-25, who questioned its authenticity.
However, in the Chamber’s view, the letter appears to be authentic. It bears the seal of the
office of the Prime Minister as well as his signature. More significantly, Witness DM-25
confirmed the accuracy of the substance of the letter, namely that the Prime Minister was
aware that an order had been given to compile lists of suspected RPF accomplices, that this
raised concerns, and that he had requested the Minister of Defence to forward the list to the
Minister of Justice, as the proper authority to handle the matter.
404. The Prime Minister’s letter alone does not demonstrate that an order was given by the
army to prepare lists of suspected accomplices, in particular since it is second-hand. The
Chamber, however, has viewed this evidence in the context of the evidence related to the
1990 mass arrests which, as discussed above, involved the participation of the army.
Furthermore, one of the written security reports submitted by the Minister of Defence to the
Prime Minister in October 1992 contains names of several individuals suspected of being
trained by the RPF.458 Of significance is also the evidence of the list found in the car of
Déogratias Nsabimana, the army chief of staff, discussed below (III.2.5.3). In the Chamber’s
view, this evidence taken together indicates that the army was engaged in making lists of
suspected RPF accomplices in 1992. The evidence does not show that the purpose of the lists
was to identify Tutsis, as such, and to eliminate them.
405. The question remains whether the Accused were involved in the preparation of these
lists. The Chamber is satisfied that Nsengiyumva was involved in the preparation and
maintenance of the lists given his position as head of the intelligence bureau (G-2) on the
army staff as well as his admission that he would have been tasked with this function if it had
been ordered.
406. As directeur de cabinet of the Ministry of Defence, Bagosora would certainly have
been aware of the creation and existence of lists, in particular since lists of suspected RPF
accomplices featured in written reports from the Ministry of Defence to the Prime Minister.
However, there is no direct evidence suggesting that he was responsible for ordering their
457
Witness DBN, T. 5 April 2004 p. 8; Prosecution Exhibit 198 (personal identification sheet); Witness BC, T. 1
December 2003 p. 51; Prosecution Exhibit 147 (personal identification sheet). Witness DBN is a Tutsi, while
Witness BC stated that he did not know his ethnic group. See T. 1 December 2003 pp. 39-40.
458
See Nsengiyumva Defence Exhibit 63 (external security report of 15 October 1992), p. 4.
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creation and no evidence whatsoever about him instructing the general staffs at a meeting in
1992, as alleged in the Indictments.
407. There is evidence from Witness DBY that Bagosora issued a telegram at the end of
1992 informing the general staff and unit commanders that Tutsis were the enemy, which was
followed by the preparation of lists of Tutsis and Hutus, suspected of being accomplices, and
their demobilisation. The alleged telegram has not been entered as an exhibit, and Witness
DBY’s uncorroborated testimony provides the only evidence that it existed. The Chamber
notes that the alleged telegram was signed “MINADEF”, an acronym for the Ministry of
Defence, and not by Bagosora personally. The witness believed it was from Bagosora
because of his prominence. In the Chamber’s view, this does not invariably show that it came
from Bagosora, although it accepts that Bagosora would have known about such a sensitive
issue. That said, it is also possible that the witness confused the telegram with the distribution
of the Definition of the Enemy document which was distributed by the army chief of staff on
21 September 1992 (III.2.2; III.2.4.1).459
408. With respect to the subsequent preparation of lists of Tutsi soldiers, Witness XAP’s
testimony corroborates Witness DBY’s evidence on this point in some respects. Several
aspects of their testimony on this point raise some concern. In particular, their evidence about
the existence of the lists is mostly second-hand, although Witness XAP claimed that he saw
it. He did not explain when and under what circumstances this happened, nor was he asked to
elaborate. In addition, Witness DBY placed these events at the end of 1992 or the beginning
of 1993, whereas Witness XAP suggested it occurred after the signing of the Arusha Accords
in August 1993. Witness DBY had first-hand knowledge of the demobilisation of soldiers,
but he could only give one specific example, Corporal Zitoni. In this context, the Chamber
notes the conflicting evidence from Witness DM-52 who stated that Zitoni was still in the
battalion at the end of 1993. This is corroborated by a list of members of the Third Company
as of December 1993.460
409. Finally, the Chamber notes that Witness DBY, a Tutsi, and Witness XAP, who was
supposedly on the list, were not ultimately demobilised. Other members of the Para
Commando Battalion, including Witnesses DK-110 and DK-120, did not recall the alleged
demobilisations. Furthermore, Prosecution Witnesses BC and DBN testified that there was no
discrimination in the battalion.461 In view of the foregoing, the Chamber is not convinced
beyond reasonable doubt that Ntabakuze ordered the demobilisation of Tutsis or Hutus
suspected of being accomplices based on lists.
410. There is no evidence connecting Kabiligi to the creation of lists based on the order
from army headquarters.
2.5.3
Déogratias Nsabimana’s Vehicle, 1993
Introduction
411. In support of the allegation that a list was found in 1993 in the vehicle of Déogratias
Nsabimana after an accident in February 1993, the Prosecution points to Experts Witnesses
Alison Des Forges and Filip Reyntjens. Reference is made to Witnesses AAA, AS, ZF and
459
Prosecution Exhibit 13 (Nsabimana’s letter to operational commanders, dated 21 September 1992).
Ntabakuze Defence Exhibit 135 (list of members of the Third Company).
461
Witness DBN, T. 5 April 2004 p. 8; Witness BC, T. 1 December 2003 p. 51.
460
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OAB to prove the allegation that some of the individuals on the list were killed after 6 April
1994.462
412. The Defence teams do not dispute that a list was recovered from Nsabimana’s vehicle,
but contest its purpose and that the Accused were involved in its creation. Reference is made
to Witness DM-25.463
Evidence
Prosecution Expert Witness Alison Des Forges
413. Alison Des Forges, an expert in Rwandan history, testified that General
Ndindiliyimana, the gendarmerie chief of staff, recovered a list of 331 names from the
vehicle of Déogratias Nsabimana, the army chief of staff, after an accident in 1993. Noting
that the document was entitled “persons to contact”, Des Forges acknowledged that it was
impossible to ascertain whether there was an intention to kill each individual on the list.
However, she emphasised that the list must have been significant if it was important enough
for Ndindiliyimana to raise with members of his general staff and James Gasana, the Minister
of Defence. The list was published in a book edited by André Guichaoua, an expert in
Rwandan history.464
Prosecution Expert Witness Filip Reyntjens
414. Filip Reyntjens, an expert in Rwandan history, learned from the former governor of
Banque Nationale de Rwanda, Jean Birira, about a list of 1,500 people discovered in
February 1993 in Nsabimana’s vehicle after an accident. Reyntjens stated that, in the
Rwandan context, this meant that the individuals on the list were to be eliminated if “things
turned sour”. He believed that excerpts from it, names of not more than 200 individuals, were
reproduced in an extract in the book edited by Guichaoua.465
Other Prosecution Witnesses
415. Witness AS, a person close to Alphonse Kabiligi in 1994, testified that, on 7 April
1994, Interahamwe and an individual, whom the witness believed to be a soldier, killed
Alphonse Kabiligi. He was a member of the PSD party and a division head at the Economic
Community of Great Lakes Countries in Gisenyi town (III.3.6.5).466 Witness OAB, a Hutu
who lived in Gisenyi town in April 1994, confirmed a passage from his statement given to
Tribunal investigators in January 1999 that he observed Bernard Munyagashari kill Augustin
462
Prosecution Closing Brief, paras. 573, 587, 1071, 1469(c), pp. 732, 810, 866-867.
Bagosora Closing Brief, paras. 135-140; Kabiligi Closing Brief, para. 1537; Nsengiyumva Closing Brief,
paras. 663-670, 675, 682-684. The Ntabakuze Defence does not specifically address this allegation in its Closing
Brief.
464
T. 17 September 2002 p. 55; T. 25 September 2002 pp. 12-14. The list annexed to Guichaoua’s book was
tendered during the cross-examination of Bagosora. See T. 15 November 2005 p. 76; Prosecution Exhibit 370
(Extract of list from André Guichaoua: Les Crises Politiques au Burundi et au Rwanda (1995)). Des Forges also
testified that Nsabimana reported to “a member of his family” in 1992 that a list of 60 enemies existed.
According to Des Forges, this number grew to 500 sometime in 1993 and 1,500 a year later. This point was not
developed by the parties. See T. 17 September 2002 p. 55.
465
T. 21 September 2004 pp. 11-12; T. 22 September 2004 pp. 56-57, 59-60.
466
T. 2 September 2003 pp. 44-45, 51; T. 3 September 2003 pp. 16-18; Prosecution Exhibit 88 (personal
identification sheet). Alphonse Kabiligi was a Hutu originally from Butare prefecture.
463
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Kalimuda, a Bralirwa employee, near the Edelweiss Hotel on 7 April.467 Witness AAA, a
Hutu and local official in Kigali, stated that, on the morning of 7 April, a Tutsi pastor named
Amon Iyamuremye and his family were killed by Interahamwe and members of the
population.468 Witness ZF, a radio operator in Gisenyi in 1994, testified that Lieutenant
Bizumuremyi informed him that a businessman named Rwemalika, who was on a list, was
captured and killed in Kigali.469 These victims were all mentioned in the extract of the list
published in Guichaoua’s book.470
Bagosora
416. Bagosora confirmed that the extract in Guichaoua’s book is the list retrieved from
Nsabimana’s vehicle. He became familiar with the list in 1993 after reading a report
mentioning it. The report was generated followed a meeting organised by the Ministry of
Defence that included the chief of staff of the gendarmerie. The report did not make
conclusive findings on its origins. Bagosora noted that the list included individuals close to
the RPF. The individuals listed between numbers 326 to 331 were outside of Rwanda, and the
list was subtitled “Persons to Contact”. Both these elements suggest, in his view, that this
could not have been a list identifying people to be killed. Bagosora stated that it was possible
that someone within the RPF created it as a list of sympathisers to contact.471
Nsengiyumva
417. Nsengiyumva knew that Déogratias Nsabimana had been in an accident but was not
aware that a list had been found in his car until he read his indictment. Nsengiyumva also saw
the list in Guichaoua’s book, entitled “Aide Memoire for the Protection of the Rights of the
Person” and subtitled “Persons to Contact”. He noted that the list makes no mention that
those included were to be killed. A Pro Justitia statement of 27 October 1997, given by
Augustin Ndindiliyimana, confirmed that he had recovered the list from Nsabimana’s car.
The statement indicated that Nsabimana had later told Ndindiliyimana that Caritas
Ngomanzungu, the wife of an officer named Fulgence Ngomanzungu, gave Nsabimana the
list. Nsengiyumva believed the woman still lived in Kigali.472
418. Nindiliyimana’s Pro Justitia statement and a letter of 8 May 1997 from James
Gasana, the former Minister of Defence, to Ndindiliyimana indicate that an investigation was
opened into the matter but that no conclusions had been reached before Gasana’s departure in
July 1993. Nsengiyumva was not involved in or informed about the investigations. Gasana’s
letter further states: “Regarding the list in question, there’s no basis whatsoever to
467
T. 25 June 2003 pp. 25-26; Prosecution Exhibit 58 (personal identification sheet); Nsengiyumva Defence
Exhibit 22 (statement of 17 January 1999).
468
T. 14 June 2004 pp. 30-33; T. 15 June 2004 p. 1; T. 18 June 2004 pp. 7-8; Prosecution Exhibit 263 (personal
identification sheet).
469
T. 28 November 2002 pp. 81-82. Rwemalika appears to have been a Tutsi. See T. 2 December 2002 p. 62.
470
See Prosecution Exhibit 370 (Extract of the list from André Guichaoua: Les Crises Politiques au Burundi et
au Rwanda (1995)). Amon Iyamuremye is listed as no. 211, Rwemalika as 227, Kalimuda as 241 and Alphonse
Kabiligi as 247.
471
T. 1 November 2005 pp. 3, 6-8; T. 15 November 2005 pp. 69-75. He added that Ndindiliyimana, who
conducted the investigation, did not get along with Nsabimana, in whose car the list was found. This might
explain the prominence given to the investigation by Ndindiliyimana.
472
T. 5 October 2006 pp. 21-25, 57; T. 12 October 2006 pp. 16-19; T. 13 October 2006 p. 9; Prosecution Exhibit
370 (Extract of the list from André Guichaoua: Les Crises Politiques au Burundi et au Rwanda (1995));
Nsengiyumva Defence Exhibit 67A (Pro Justitia statement of Augustin Ndindiliyimana, October 1997).
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categorically assert that it was not a tract, or a leaflet.” In Nsengiyumva’s view, this
demonstrated that the list was not authentic.473
419. Nsengiyumva also read from a March 1997 statement of James Gasana and an April
2000 statement of Faustin Twagiramungu, a former chairman of the MDR party, which were
both given to Tribunal investigators. Twagiramungu’s statement indicates that “lists of
persons to be eliminated existed”, but that he was uncertain whether they were created prior
to 1994 because he would have known about them. Gasana’s statement indicates that “[m]any
lists were circulating with varying contents” but that the “authors were never identified”.
Nsengiyumva highlighted the ambiguity about the content of the lists to which Gasana
referred and the fact that the authors had not been identified.474
Ntabakuze Defence Witness DM-25
420. Witness DM-25, a Hutu, was a member of the MDR party. He worked in the office of
Prime Minister Dismas Nsengiyaremye during his term of office from 5 April 1992 until 16
July 1993. The witness was aware of a list of Hutus and Tutsis allegedly found in the vehicle
of Déogratias Nsabimana, the army chief of staff, after a traffic accident in 1993. He saw a
portion of the list later published as an annex to Guichaoua’s book at some point after July
1994. The lists were said to have been created through various military intelligence services.
However, he was not certain if Nsengiyumva was responsible for them.475
Deliberations
421. There is no dispute that a list of individuals was found in the vehicle of Déogratias
Nsabimana, the army chief of staff, after an accident in February 1993. An excerpt of that list
has been reproduced in André Guichaoua’s book. A comparison of this list with the evidence
of Witnesses AS, AAA, OAB and ZF shows that it identifies several individuals who were
ultimately killed after 6 April 1994.476 The main questions for the Chamber are whether this
list was prepared with the intention of killing Tutsis and suspected accomplices, and whether
the Accused participated in its creation.
422. The Chamber observes that the list was entitled “Aide Memoire for the Protection of
the Rights of the Person” and has a notation below the title indicating “Persons to Contact”.
Some of the names on the list refer to individuals living outside of Rwanda.477 The list also
contains annotations, such as:
473
T. 5 October 2006 pp. 28-29; T. 12 October 2006 p. 17; Nsengiyumva Defence Exhibit 67A (Pro Justitia
statement of Augustin Ndindiliyimana, October 1997); Nsengiyumva Defence Exhibit 67B (Letter of 8 May
1997 from James Gasana to General Augustin Ndindiliyimana).
474
T. 5 October 2006 pp. 60-66; Nsengiyumva Defence Exhibit 218 (statement of Faustin Twagiramungu,
13 April 2000); Nsengiyumva Defence Exhibit 219 (statement of Witness ED, 29 March 1997), p. 7.
475
T. 11 April 2005 pp. 54, 70; T. 12 April 2005 pp. 4, 37-40, 71-73; T. 13 April 2005 pp. 13-15, 19-20;
Ntabakuze Defence Exhibit 81 (personal identification sheet).
476
The Chamber has expressed concerns about the credibility of certain aspects of the evidence of Witnesses
AAA, OAB and ZF in other parts of the judgement. The death of the individuals to whom they referred is not
disputed.
477
The Chamber notes that Prosecution Exhibit 13.1B (Definition of the Enemy Document) includes Rwandans
abroad within its description of the enemy: “The Enemy, or their supporters, be they Rwandan of foreign
nationals within the country or abroad, can be identified in particular by any of the following acts”). See section
III.2.2.
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- Below the road by Bar Mont Jari, sells cement in a container, in front of his shop.
Fraudulent business. Holds meetings of Tutsi in his shop late in the evening and then
returns to Kicukiro in Remera. He has evacuated his family. Before October, he housed
unknown persons and Ugandans.
- During the recent attack by the RPF, he said the following: “Just wait and see our boys.
They are not good-for-nothing people, and they would invade Kigali within a time frame
which is not short, and those ugly Hutus will be exterminated.”
- Near Ruhara, Pascal's place, a former soldier who fools people that he's an idiot.
Remera pédagogique office. Attends the above-mentioned meetings; always in company
of young Tutsi. His father-in-law was killed in October 1990 because of his wickedness
of always spitting in the mouth of peoples, … the residues from his pipe. So he wanted to
avenge the death of the latter.478
423. There is no direct evidence concerning the origin of this list. According to Bagosora,
Nsengiyumva and Witness DM-25, the investigation by Ndindiliyimana into the list’s origins
was inconclusive. The Chamber accords this little weight, given the military’s interest in
distancing itself from such acts, and there is reason to believe that the list was generated by or
for members of the Rwandan army. The list was discovered in the vehicle of the army chief
of staff, and the annotations suggest that it is a list of individuals with suspected ties to the
RPF. In forming its view, the Chamber has also taken into account the evidence, discussed
above, concerning the preparation of lists by army units in 1992 as well as the evidence
concerning the use of lists in connection with the events in 1990.
424. The list does not indicate the intent with which it was created. The Chamber is not
convinced that the only reasonable conclusion to draw from the existence of the list is that it
was prepared with the intention to kill the individuals on it. In this respect, the mass arrests in
October 1990, which also involved lists, is illustrative. That operation, which included some
killings and was condemned by many experts and observers, did not result in extensive
killings.
425. As directeur de cabinet of the Ministry of Defence, Bagosora would certainly have
been aware of lists of suspected RPF accomplices (III.2.5.2). The evidence in connection
with the discovery of the list in Nsabimana’s vehicle does not show that he played any role in
the creation and maintenance of lists by the army. The situation with Nsengiyumva is
different. At the material time, he held the position of head of the bureau of intelligence (G-2)
on the army general staff. As he concedes, he would have been responsible for preparing or
maintaining lists of suspected accomplices of the enemy. There is no evidence linking
Ntabakuze or Kabiligi to compilation of this list.
478
See Prosecution Exhibit 370 (List extracts from André Guichaoua: Les Crises Politiques au Burundi et au
Rwanda (1995)). The quotes are taken from entries 180, 186 and 187 of the list. They were interpreted during
the cross-examination of Bagosora. See T. 15 November 2005 pp. 72-73.
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2.5.4
Interahamwe
Introduction
426. In support of the allegation that UNAMIR was informed that the Interahamwe were
compiling lists of Tutsis to be eliminated, the Prosecution points to the testimony of
Lieutenant Colonel Frank Claeys concerning an informant called Jean-Pierre. Further
evidence follows from Witnesses BY, DCH, AAA and LAI.479
427. The Defence teams do not dispute that an informant named Jean-Pierre told UNAMIR
officials that the Interahamwe were compiling lists of Tutsis to eliminate. They contest,
however, the reliability of this source as well as the Prosecution witnesses in general.480
Evidence
Prosecution Witness Frank Claeys
428. Lieutenant Colonel Claeys, a Belgian, was the adviser to UNAMIR’s reconnaissance
team in 1994. On the evening of 10 January 1994, he met with an Interahamwe informant
named “Jean-Pierre”. The informant explained that MRND authorities, including its
president, Mathieu Ngirumpatse, and possibly the secretary-general, Joseph Nzirorera, had
ordered the drafting of lists recording the names, family composition, addresses, and streets
or sectors of Tutsis. Claeys deduced that the process was informal, consisting of basic
observation compiled by asking neighbours to provide information about neighbours. He
understood that the informant updated the lists regularly and that they were kept at MRND
headquarters. Claeys was unaware of how many Tutsis had been registered.481
429. Jean-Pierre explained to Claeys that the listing of Tutsis was initially done by the
MRND to ensure that weapons would not be distributed to them if Kigali was attacked by the
RPF. The informant sensed that the purpose of the lists shifted around UNAMIR’s arrival in
October and November 1993. After UNAMIR’s arrival, MRND authorities again ordered the
creation of lists, and the informant believed they were part of a plan to facilitate the
extermination of Tutsis. Claeys never saw the informant’s list. Jean-Pierre stated that he
could produce the list but a precondition for doing so was his personal protection, which was
479
Prosecution Closing Brief, paras. 587-590, 1339-1342, 1415(e), 1468-1469(b), 1479, 1495, 1504(e), pp. 732734, 809-811, 867-868. The Prosecution also points to the evidence of General Dallaire, the force commander of
UNAMIR, and Major Beardsley, his personal assistant. General Dallaire confirmed that he was informed by
Claeys about the conversation with Jean-Pierre which included the preparation of lists. See T. 22 January 2004
pp. 15-16, 20-21; T. 26 January 2004 p. 53. Major Beardsley gave some evidence about Claeys’s meeting with
Jean-Pierre, but he did not specifically discuss the issue of lists. T. 30 January 2004 p. 3; T. 4 February 2004 pp.
26-27, 32. Des Forges’s testimony about the preparation of lists and Jean-Pierre was based on information from
Claeys. See T. 17 September 2002 pp. 55-60.
480
Bagosora Closing Brief, paras. 129, 133-134; Kabiligi Defence Brief, paras. 1168 (fn.1191), 1541, pp. 605607; Ntabakuze Defence Brief, paras. 122-123. The Nsengiyumva Defence did not address the credibility of
Jean-Pierre in its Closing Brief.
481
T. 7 April 2004 pp. 27-31, 33, 35, 72-73; T. 8 April 2004 pp. 7, 9-10; Prosecution Exhibit 204 (personal
identification sheet); Prosecution Exhibit 170 (Situation Reports, various); Prosecution Exhibit 32 (11 January
1994 Dallaire Fascimile to U.N. Headquarters), according to which the informant stated that “[s]ince
UNAMIR’s mandate [the informant] has been ordered to register all Tutsi in Kigali”). Jean-Pierre also provided
other information concerning weapons caches and training. This evidence is discussed in section III.2.6.3.
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not secured prior to the final meeting with him. The informant did not identify names
appearing on the list. UNAMIR lost contact with him.482
Prosecution Witness BY
430. Witness BY, a Hutu, was an important official within the Interahamwe between 1991
and 1994. He testified that MRND leaders supported the making of lists at various points
between the end of 1990 and the beginning of 1993. In the first few months of 1994, several
members of the MRND raised concerns about security, noting that some of their neighbours
had disappeared for periods and were believed to have undergone training by the RPF in
Mulindi. Party leaders and the national committee for the Interahamwe endorsed the idea of
creating lists identifying individuals who were suspected “infiltrators”, pro-RPF, MRND
political opponents as well as new or unknown persons observed in neighbourhoods and
families hosting them. The witness believed that the “entire Tutsi population was included”
on the lists. Nevertheless, ethnicity was never a criterion. Rather, those placed on lists were
those considered to be the “enemy”. The lists were created on a neighbourhood by
neighbourhood basis and generally sent to the MRND bureau in Kigali. They were also
distributed to local MRND party leaders in various neighbourhoods. Witness BY did not
make any lists or read any, but observed attendants at meetings exchanging lists. After the
President’s plane had been shot down on 6 April, the lists were used to eliminate Tutsis in
various neighbourhoods throughout Kigali.483
Prosecution Witness DCH
431. Witness DCH, a Hutu member of the Interahamwe, testified that he attended an
Interahamwe meeting in Kabuga in Rubungo commune in Kigali-Rurale prefecture sometime
after March 1993. During that meeting, recommendations were made to identify Inyenzi
supporters and to create lists of those opposed to the Interahamwe’s activities. These lists
were created near the end of 1993. Cellules kept lists of inhabitants and their ethnic origins.
The responsable in Kabuga, a local MRND official, allowed the Interahamwe access to this
information. The witness agreed that some of the lists prepared by the Interahamwe were
aimed at identifying targets for recruitment, funding and the manning of roadblocks. A
commission coordinated by Laurent Semanza to monitor the creation of lists was established
at an Interahamwe meeting in the beginning of April 1994 at Michel Bagaragaza’s
residence.484
Prosecution Witness LAI
432. Witness LAI, a Hutu, was a driver and member of the Interahamwe in Cyangugu
prefecture in 1994. He testified that lists of Tutsis living in Bugarama commune were
prepared before April 1994. At the end of 1993, the witness began observing lists being
482
T. 7 April 2004 pp. 31, 33, 72-74; T. 8 April 2004 pp. 7, 9-10, 13-14, 45.
T. 2 July 2004 pp. 17-18, 36-40; T. 6 July 2004 pp. 51-52, 76; T. 8 July 2004 pp. 8-9, 18-25; T. 9 July 2004
pp. 17, 64-65, 79-81. Prosecution Exhibit 284 (personal identification sheet). At the time of his testimony,
Witness BY was incarcerated and subject to prosecution in Belgium. See T. 2 July 2004 pp. 17-18; T. 6 July
2004 pp. 38-39, 58-59.
484
T. 23 June 2004 pp. 4-9; T. 24 June 2004 pp. 65-66; Prosecution Exhibit 275 (personal identification sheet).
Witness DCH pleaded guilty and was convicted of crimes committed primarily in the Kabuga area. He was
sentenced to seven years’ imprisonment. Ntabakuze Defence Exhibit 70C (Rwandan judgment of 8 December
2000), pp. 23-24. It is not clear if the meeting at Bagaragaza’s home took place prior to or after 6 April. See T.
23 June 2004 p. 8.
483
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created at the house of Yussuf Munyakazi, an Interahamwe leader in Cyangugu prefecture.
“Senior officials” instructed Munyakazi to create lists. When Munyakazi passed on these
instructions it was clear that lists were being made all over Rwanda. The lists of Tutsis and
Hutus who did “not want to be members of the MRND” contained some names of individuals
who were mentioned as assisting the RPF on Radio Muhabura, its station. There was a typewritten list that contained over 50 sheets of paper, entitled “The Country’s Enemies”. The list
was organised so that it first identified the name, then sector, and then cellule.485
433. By April 1994, people knew where Tutsis were, including those suspected of being
RPF accomplices, and this facilitated arrests and massacres. Witness LAI pointed to the arrest
of Karasira who was an “agronomist”, and the killing of an engineer named Côme. The
witness was unaware of who was responsible for these incidents. In April, “people” were
asking if individuals listed had been killed and if not, such individuals were sought after.
Even Tutsis who were members of the MRND were targeted in April.486
Prosecution Witness AAA
434. Witness AAA, a Hutu local official in Kigali prefecture in 1994, testified that the
Interahamwe had prepared lists of persons to be killed at the sector level. The lists included
alleged Inkotanyi accomplices as well as Hutus opposed to those in power and to the
Interahamwe. These lists were drawn up prior to massacres, making it easier to locate and kill
the targeted individuals.487
435. The witness first saw a list of Tutsis and moderate Hutus on 28 February 1993 at a
meeting of around nine MRND party members and Interahamwe at a bar in Kigali. Two
individuals who worked for the office of the President also attended. The list was four pages
in length, but the witness only observed two hand-written pages, containing about 30 names
each. It included information such as the individual’s name, cellule neighbours, and work
place and position. The witness was familiar with several names on the list of people from his
locality and noted that they were Tutsis, or Hutus suspected of being accomplices of the
Inkotanyi. The lists were prepared by local officials and Interahamwe leaders. At the time,
the witness did not know that those on it would be targeted for killing.488
436. Witness AAA also said that MRND officials chose Innocent Sebuhuguro to prepare a
list within the witness’s cellule in 1993. The witness saw it but did not provide further details.
He believed that Sebuhuguro was chosen to create the list because he had a stronger
relationship with the MRND than the witness.489
485
T. 31 May 2004 pp. 3-4, 36; T. 2 June 2004 p. 10; T. 3 June 2004 pp. 2-3, 7-12, 17-18, 25-26; Prosecution
Exhibit 221 (personal identification sheet). At the time of his testimony, Witness LAI was imprisoned in
Cyangugu having pleaded guilty to crimes in Rwanda. See T. 31 May 2004 pp. 71-73; T. 2 June 2004 p. 17; T. 3
June 2004 pp. 14-15.
486
T. 3 June 2004 pp. 7-8.
487
T. 14 June 2004 pp. 11-13, 30-33, 47-48; T. 15 June 2004 p. 66; T. 17 June 2004 p. 53; T. 18 June 2004 pp.
4-5, 7; Prosecution Exhibit 263 (personal identification sheet).
488
T. 14 June 2004 pp. 77-85; T. 15 June 2004 pp. 1, 66; T. 16 June 2004 pp. 46, 53-54; T. 17 June 2004 p. 53;
T. 18 June 2004 pp. 3-7, 13; Prosecution Exhibit 270 (name of bar). During this meeting, the responsable
introduced Captain Simbikangwa to those present. They informed the captain that they lacked weapons. He
promised to provide arms, which were recieved on 5 March 1993. Witness AAA concluded that the purpose of
the weapons was to target Tutsis who were accomplices of the Inkotanyi and to fight at the front. See T. 14 June
2004 pp. 83-84.
489
T. 18 June 2004 pp. 7-8, 13.
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Deliberations
437. On 10 January 1994, UNAMIR received information from an informant known as
Jean-Pierre concerning his preparation of lists by the Interahamwe. The Defence teams
primarily contest his overall credibility, intimating that he was not reliable and was likely an
RPF propaganda tool intended to discredit the Habyarimana regime. As discussed below
(III.2.6.3), the Chamber considers that Jean-Pierre had access to information concerning the
activities of the Interahamwe. However, given the second-hand nature of his evidence as well
as other concerns, discussed in that section, the Chamber views the evidence based on JeanPierre’s information with caution.
438. The evidence of Witnesses BY, LAI, DCH and AAA amply corroborates JeanPierre’s information that members of the Interahamwe were preparing lists of individuals
identified as enemies. In other sections of the judgement, the Chamber has raised questions
about the credibility of other aspects of the testimony of these witnesses. The Chamber,
therefore, declines to accept as reliable the specific details of their accounts. However, when
taken together and viewed in context with the information received by Colonel Claeys as well
as the totality of the evidence, the Chamber is convinced that the Interahamwe made an
organised effort to create lists of suspected opponents of the regime. The information
available, including the accounts of Witness BY and AAA, indicates that these lists were not
focused exclusively on ethnicity. The evidence does not show that the Accused played any
role in the preparation of lists by the Interahamwe.
2.5.5
Use of Lists, 1994
Introduction
439. In support of the allegation that members of the military and Interahamwe used preestablished lists as part of their effort to massacre Tutsis and moderate Hutus in 1994, the
Prosecution points to a substantial body of evidence about lists and their use to facilitate
killings, in particular events related to the killing of the Prime Minister and other political
officials in Kimihurura; Centre Christus; Alphonse Kabiligi; Mudende University; Gikondo
Parish; Kabgayi religious centre; a February 1994 meeting and subsequent killings in Butare
and Gisenyi prefectures; a meeting held at Barnabé Samvura’s house; Centre Hospitalier de
Kigali; the Remera area and finally the killing of religious personnel at Nyundo Parish in
Gisenyi prefecture. This evidence is discussed in detail in other parts of the judgement.
Reference is also made to Witnesses KJ, ZF and A, which is summarised below.490
440. The Defence teams dispute the involvement of their clients in the use of preestablished lists in 1994. The Bagosora, Ntabakuze and Nsengiyumva Defence further
emphasise that, if lists were used for targeted killings of political opponents, it would run
counter to the claim of a genocide.491
490
Prosecution Closing Brief, paras. 45-48, 85, 104-105, 208, 263, 271, 282, 284, 409, 424, 439, 449, 462, 471473, 491, 505-507, 552, 555, 571-604, 611, 732, 773, 972, 974-975, 1035(b, c), 1038-1039, 1040(c), 1066(a, c),
1069(e), 1071-1072, 1099-1100(a), 1108, 1109(g), 1183(b), 1185, 1223, 1224(e), 1261, 1274(c), 1340-1342,
1370, 1379-1380, 1388(b), 1415(e), 1425(f, h), 1457(b), 1468, 1469(b), 1473, 1474(d), 1479, 1495, 1504(e, k),
1514(b, c), 1533(b), 1538(b), 1539, 1542, 1550(h), 1581(b), pp. 733-735, 809, 812, 867-869.
491
Bagosora Defence Brief, paras. 815, 1190-1195, 1623, 1625; Kabiligi Closing Brief, para. 1537, p. 605;
Ntabakuze Closing Brief, paras. 2298-2301; Nsengiyumva Closing Brief, paras. 663-664, 668. Each of the
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Evidence
Prosecution Witness KJ
441. Witness KJ, a gendarme of mixed ethnicity stationed in Kibuye prefecture in 1994,
testified that he attended a meeting in March 1994 with his commander Major Jean-Baptiste
Jabo and his deputy Lieutenant Masengesho. According to the witness, Jabo and Masengesho
had attended an earlier meeting with Clement Kayishema, the prefect of Kibuye prefecture,
who had received a telegram from the Ministry of the Interior saying that RPF accomplices
were scattered throughout the area. The intelligence staff of the gendarmerie was
subsequently increased and a joint effort with the Ministry of the Interior was undertaken to
search for accomplices and individuals opposed to the MRND. Between 10 and 15 April
1994, these efforts generated a list of 20 to 30 alleged Inkotanyi and individuals in Kibuye
prefecture who opposed the government. The witness recognised some of the names and later
learned that they were killed. He also saw a national list sent by the Ministry of the Interior in
Major Jabo’s office that had been sent to the prefectures and was a point of reference for lists
created within the various prefectures.492
Prosecution Witness ZF
442. Witness ZF, a Hutu radio operator in Gisenyi in 1994, testified that Lieutenant
Bizumuremyi had informed him of a “black list” of people that needed to be arrested. It
included persons suspected of being RPF accomplices, intellectuals, businessmen and
ordinary people. Bizumuremyi did not show him the list, but businessmen named Bwanafeza
and Rwemalika and a woman in charge of the Edelweiss hotel, whose name the witness could
not remember, were mentioned in connection with the list.493
Prosecution Witness A
443. Witness A, a Hutu high-ranking national official with the Interahamwe, testified that
he spoke with Jean Kambanda in the first half of 1997 in Nairobi, Kenya. Kambanda told the
witness that Bagosora showed him “a list of people to be killed”, which contained the names
of “Tutsis and Tutsi businessmen”, during the first cabinet meeting held at the Hôtel des
Diplomates sometime between 9 April and 12 April 1994. Kambanda had not known up until
the meeting that there had been pre-established lists.494
Defence teams also make submissions concerning the specific events referred to by the Prosecution, which are
discussed in the relevant sections of the judgement.
492
T. 19 April 2004 pp. 4-6, 43-48, 52-55, 59-60; T. 22 April 2004 pp. 35-39; T. 27 April 2004 pp. 24-30;
Prosecution Exhibit 212 (personal identification sheet). Witness KJ was arrested in Rwanda in December 1994
but released without being tried in 2002. See T. 19 April 2004 p. 6. See also Prosecution Exhibit 213 (Format of
the document containing lists of names of accomplices in Kibuye). On the list was written, “Republic of
Rwanda, MINADEF – Ministry of the Interior, intelligence service”, and a PO Box number. The list was
entitled “List of Accomplices Wanted” or “List of Accomplices to be Looked for” and appeared to have come
from Kigali. It contained columns for the individual’s name, commune, the father’s and mother’s names and
comments such as the person’s political party or charges levelled against him or her. The list also mentioned the
individual’s ethnic group. T. 19 April 2004 pp. 48, 54.
493
T. 27 November 2002 p. 13; T. 28 November 2002 pp. 81-82. Witness ZF later learned from Bizumuremyi
that Bwanafeza and Rwemalika were killed, and he heard that the Edelweiss employee had crossed the border to
Goma. The witness believed that they were Tutsis. See T. 2 December 2002 p. 62. The witness’s father was a
Hutu, but the witness was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
494
T. 1 June 2004 pp. 45-46, 79-80; T. 2 June 2004 p. 56; T. 3 June 2004 pp. 54-56, 99; Prosecution Exhibit 222
(personal identification sheet).
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Bagosora
444. Bagosora denied that he created lists of people to be killed or gave lists to soldiers on
7 April 1994. He also did not provide Jean Kambanda, or any member of the government,
with a list of individuals to be killed. Bagosora did not attend cabinet meetings before,
during, or after Jean Kambanda held the position of interim Prime Minister.495
Bagosora Defence Witness Jean Kambanda
445. Jean Kambanda, former Prime Minister of the Interim Government, testified that
Bagosora never attended a cabinet meeting from April to July 1994, as only ministers
attended such meetings. Delegates were not used in place of ministers even during a
minister’s absence. Bagosora never gave Kambanda a list of individuals to be killed.
Kambanda denied informing Witness A in 1997 that Bagosora had referred to a list.496
Deliberations
446. Witness KJ provided first-hand and convincing evidence about the creation and use of
lists after April 1994 in Kibuye prefecture, and the Chamber accepts it. His testimony
demonstrated that military officials continued to compile lists of suspected RPF sympathisers
and political opponents in 1994 and cooperated with other parts of the Rwandan government
in this effort.
447. Witness ZF directly implicated Nsengiyumva in the use of lists in Gisenyi prefecture
in 1994. The Chamber has expressed doubts about aspects of his evidence in other parts of
the judgement and views his testimony with caution also here. Witness ZF’s basis of
knowledge was second-hand and uncorroborated, and the Chamber declines to accept his
evidence on this point.
448. Witness A directly implicated Bagosora in the creation and use of lists in 1994, but
his testimony was second-hand. His source, Prime Minister Jean Kambanda, disputed that he
provided this information to Witness A. The Chamber is mindful of the credibility issues
related to Kambanda’s account. He is serving a life sentence for his role in the events during
Rwanda in 1994 and is an alleged accomplice of Bagosora. Nevertheless, his evidence raises
further concern about Witness A’s uncorroborated and indirect testimony.
449. Much of the evidence referred to by the Prosecution is assessed in other parts of the
judgement, along with the accompanying Defence evidence and submissions. The Chamber
only recount the salient aspects of its findings here.497
450. The Chamber has heard evidence that elite units of the Rwandan military perpetrated
targeted political killings in Kigali on the morning of 7 April 1994 (III.3.3; III.3.5.2).498
495
T. 8 November 2005 p. 57; T. 9 November 2005 pp. 12-13.
T. 11 July 2006 pp. 30-31; T. 12 July 2006 pp. 5-8, 66-67; T. 20 November 2006 pp. 3-10; Bagosora Defence
Exhibit 346 (personal identification sheet); Bagosora Defence Exhibit 348 (name of individual referred to as Mr.
“X” or “A” during Kambanda’s testimony).
497
The Chamber has not accepted the Prosecution’s allegations that lists were used after a February 1994
meeting in killings in Butare and Gisenyi prefectures (III.2.4.6) in killings following a meeting held at Barnabé
Samvura’s house in Gisenyi prefecture (III.3.6.3). The Prosecution also refers to a “list” at RTLM of prominent
individuals who were executed on 7 April 1994. See Prosecution Closing Brief, para. 552. However, having
examined the evidence, the Chamber considers that this was not a pre-established list, but rather an accounting
of the killings.
496
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Around the same time in Gisenyi prefecture, Alphonse Kabiligi, a Hutu member of the PSD
party, was killed by militiamen and members of the military working in close cooperation
(III.3.6.5). He was previously identified as a target for arrest or killing. On the night of 8
April, masked assailants came to Mudende university in Gisenyi prefecture and used lists in
an attempt to check the identity cards of survivors of an earlier attack (III.3.6.7).499
451. The Chamber has also found that, on 9 April 1994, the Rwandan army sealed off the
Gikondo area of Kigali, and gendarmes moved systematically through the neighbourhood
with lists, sending Tutsis to Gikondo Parish. The gendarmes checked the identity cards of the
Tutsis at the parish against their lists before the Interahamwe proceeded to kill them
(III.3.5.8). Targeted killings of patients were also carried out by soldiers at the Centre
Hospitalier de Kigali (III.4.1.3). Between April and June 1994, military personnel
accompanied by Interahamwe regularly abducted refugees from the Kabgayi religious centre
in Gitarama prefecture, sometimes using lists (III.4.4.1).
452. The evidence suggests that the lists prepared and maintained by the Rwandan military
and the Interahamwe (III.2.5.3-4) were directed primarily at identifying suspected
accomplices of the RPF and opponents of the Habyarimana regime or MRND party. The lists
contained both Tutsis and Hutus and did not single out only Tutsis, as such. It is not clear that
the lists were generated with the intent to kill the persons who were included, as opposed to
arrest them or keep them under surveillance. However, given the identifying details
accompanying them, it is obvious that they were meant to assist in locating the individuals, if
necessary. Their use after 6 April 1994, in particular in the first several days, demonstrate that
they facilitated the killings of specific individuals.
453. The Chamber is satisfied that Nsengiyumva, as the former head of the intelligence
bureau (G-2) on the army general staff, participated in generating and maintaining these lists
(III.2.5.3). It is not clear what role Bagosora played in their creation. However, the Chamber
has no doubt that he was aware of their existence and use after 6 April 1994, given his
authority at the time, his position as directeur de cabinet of the Ministry of Defence, and his
prior post as head of the Ministry’s military intelligence service (I.2.1). The evidence does
not reflect what role Ntabakuze played in the creation of lists. Nevertheless, his use of them
during the October 1990 arrest operation indicates his awareness of their existence (III.2.5.1).
The Chamber heard no evidence directly connecting Kabiligi to the creation or use of lists.
498
UNAMIR observers also witnessed members of the Presidential Guard, gendarmerie and civilian militias
going from house to house in the Kimihurura area with lists. See Beardsley, T. 3 February 2004 p. 40.
499
There were also other targeted killings in Gisenyi prefecture on 7 April in Gisenyi town and at Nyundo
Parish (III.3.6.1; III.3.6.6).
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2.6
Creation, Training and Arming of Civilian Militias
454. Each of the Indictments alleges that the various political parties in Rwanda created
youth wings, such as the Interahamwe (MRND) and the Impuzamugambi (CDR), which were
converted into civilian militias and provided with training and weapons to serve as a
complementary force to the Rwandan military to ensure the “extermination of the enemy and
its ‘accomplices’”. More specifically, it is submitted that military authorities, such as
Ntabakuze and Nsengiyumva, and civilian authorities supervised the training conducted
simultaneously throughout the country in places such as Kigali, Cyangugu, Gisenyi and
Butare prefectures and in and around military camps, including Gabiro, Gako, Mukamira and
Bigogwe. Furthermore, the Accused and other military authorities purportedly provided
weapons to militiamen during the course of the events referred to in the Indictments.500
455. Each of the Defence teams argue that there is no credible first-hand evidence
demonstrating that that the army trained and armed civilian militiamen, or that the Accused
or the army had any authority over them. The Bagosora Defence does not dispute that some
weapons were distributed to certain areas at the war front, but distinguishes the legitimate
civilian self-defence system from groups such as the Interahamwe. The Kabiligi Defence
submits that the allegations concerning training and distribution of weapons are vague and do
not give sufficient detail connecting Kabiligi to these activities. The Prosecution has not
established a link between him and the Interahamwe. The Ntabakuze Defence argues that
most of the evidence of training occurred in 1993, which is outside of the Tribunal’s temporal
jurisdiction, and that the allegations are not pleaded in the Indictment. It also refers to
Defence evidence contradicting claims that Ntabakuze or members of the Para Commando
Battalion provided training, arms and logistical support to the Interahamwe. The
Nsengiyumva Defence also submits that these allegations are too vague. It points to Defence
evidence refuting claims that militiamen were trained and armed in Gisenyi prefecture.501
500
Bagosora Indictment, paras. 1.17, 1.19, 3.11, 5.1, 5.16-5.35, 6.48, 6.58, 6.63; Kabiligi and Ntabakuze
Indictment, 1.17, 1.19, 3.9, 5.1, 5.13-5.26, 6.32, 6.35; Nsengiyumva Indictment, paras. 1.17, 1.19, 3.9, 5.1, 5.125.24, 6.16, 6.21; Prosecution Closing Brief, paras. 44-45, 54, 491, 495, 497, 499-501, 503-504, 536-538, 560566, 613-615, 625-626, 761-762, 856-866, 969-971, 984-987, 1000, 1001(c, f), 1005, 1016-1017, 1018(d),
1019(b, d), 1050, 1055, 1058(a), 1100(b), 1162, 1163(f), 1178, 1287(d), 1291(b), 1310-1317, 1358(c), 1361,
1363(m), 1365, 1370, 1383, 1387, 1388(a, c), 1413, 1415(c), 1422-1423, 1425(c), 1469(a), 1478-1479, 1481,
1497, 1504(b, c), 1571(c), 1649, 1765-1766, pp. 717-731, 772-773, 783, 786, 796-808, 811-812, 831-834, 853865; T. 28 May 2007 p. 14. The Prosecution points to testimony of Witness XBM concerning various meetings.
See Prosecution Closing Brief, paras. 1051(a), 1052-1053, 1056-1057, 1059-1060. The Chamber previously
excluded this evidence. See Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope
of the Indictment (TC), 15 September 2006, declaration 4.
501
Bagosora Closing Brief, paras. 71, 116-119, 122-125, 142, 156, 550-561, 636-672, 800, 822, 1094, 12021208, 1432, 1620, 1622, 1623, 1703, 1860-1861, pp. 352-353; Kabiligi Closing Brief, paras. 19, 72, 184-185,
253, 265, 293-299, 398-399, 696-697, 793, 833-854, 910-911, 950, 963, 982, 985, 989, 1090, 1092, 1106, 1114,
1122, 1469-1482, 1493, 1533-1536, 1622, 1642-1649, pp. 351, 411-412, 570, 583, 592-596, 608, 616;
Ntabakuze Closing Brief, paras. 285-287, 290-292, 485,756-796, 1540, 1666-1668, 2359-2360; Nsengiyumva
Closing Brief, paras. 27, 35, 159-168, 176, 183, 246-258, 276-278, 281-282, 329-459, 472-531, 541-550, 567569, 571, 573-577, 583, 817, 1045-1046, 1048, 1052-1053, 1055, 1124-1125, 1135-1139, 1271, 1227, 1307,
1440-1441, 1473, 1751-1754, 1756, 1759-1760, 1762-1765, 1886-1891, 1916, 1964, 1968-1973, 2022, 2140,
2372-2376, 2380-2381, 2402, 2707, 2710, 2726-2729, 2738-2739, 2910, 2915-2917, 2949-2951, 3180-3181,
3347; T. 29 May 2007 pp. 76-77; T. 30 May 2007 pp. 22-24; T. 31 May 2007 pp. 47-48.
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2.6.1
Interahamwe and Other Political Party Militias
456. Constitutional amendments in June 1991 legalised multi-party politics in Rwanda, and
several political parties were formed. At the end of 1991, the parties began establishing youth
wings, such as the Inkuba (MDR), the Interahamwe (MRND), the Impuzamugambi (CDR),
the Abakombozi (PSD) and the jeunesse du PL (PL). At times, these groups would engage in
violent clashes following political rallies. The violence was mainly between the MRND’s
Interahamwe and the MDR’s Inkuba.502
457. The Interahamwe was founded following two meetings at the end of 1991. The
second meeting officially established the Interahamwe, and 11 leaders were elected, five
forming the national committee with six others serving as advisers.503 The Interahamwe had a
hierarchical structure and was organised at each level of government. There were Hutu and
Tutsi members at its inception, and its president, Robert Kajuga, was of Tutsi descent. It
targeted the unemployed youths in the Kigali area, who were mainly war refugees, to fill its
ranks. President Habyarimana made the first donation of 500,000 Rwandan francs to the
organisation, which was used to purchase uniforms and to provide transport to meetings and
rallies. Interahamwe members wore kitenge uniforms of mixed colours, which appeared
similar to camouflage, and bore either an effigy of President Habyarimana or the MRND
insignia.504
458. In 1992 and 1993, members of the Interahamwe and other civilians began receiving
military training and weapons with the support of the Rwandan military.505 As discussed
below (III.2.6.2), it is not clear whether this training was directed at training the Interahamwe
as such or whether some members were trained as part of the civil defence system.
459. After the RPF resumed hostilities in February 1993, the political divisions between
the youth wings began to narrow into two camps: pro-RPF and anti-RPF. At a rally in Kigali
in October 1993, calls of Hutu power and solidarity were made in an effort to get members of
502
Prosecution Exhibit 2A (Expert Report of Alison Des Forges), pp. 17-18; Prosecution Exhibit 436B (Expert
Report of Bernard Lugan), pp. 6-7.
503
The Interahamwe had a National Committee and a College of Advisers. The National Committee was
composed of President (Robert Kajuga); 1st Vice-president (Phénéas Ruhumuliza); 2nd Vice-president (Georges
Rutaganda); Secretary-General (Eugène Mbarushimana); and a Treasurer General (Dieudonné Niyitegeka). The
College of Advisers was composed of Chairmen who headed different Commissions: Commission on Social and
Legal Matters (Bernard Maniragaba); Research and Development Commission (Joseph Serugendo);
Commission on Political Matters and Propaganda (Jean Pierre Sebanetsi); Economic and Financial Commission
(Ephrem Nkezabera); Follow-up and Assessment Commission (J.M.V. Mudahinyuka); and External Relations
and Documentation Commission (Alphonse Kanimbe). See Prosecution Exhibit 33B (2 February 1994 Report
on the Study on the Interahamwe Militias by Major Hock), pp. 1, 14; Prosecution Exhibit 223 (“Comité national
provisoire des Interahamwe”).
504
Witness A, T. 1 June 2004 pp. 35-39; T. 3 June 2004 p. 61; T. 3 June 2004 pp. 82-83. In view of the
uniforms’ similarity to military-style camouflage and evidence that some members wore portions of military
fatigues, the Chamber has considered throughout the judgement whether assailants could have been in fact
Interahamwe before identifying them as members of the Rwandan military.
505
Witness DBY suggested that, in 1992, Bagosora authorised the distribution of weapons to Interahamwe who
had been previously trained in Gabiro because he saw a telegram emanating from the Ministry of Defence
referring to Interahamwe and “Foray at Remera”. A week later he saw an Interahamwe in Remera named Foray
carrying new weapons. The witness said that Foray had previously received training in Gabiro. See T. 12
September 2003 p. 42; T. 22 September 2003 pp. 6-8, 35, 41-43, 46-48. The telegram, however, was not
tendered into evidence, and Witness DBY’s testimony is the only evidence of its existence. The Chamber
therefore declines to accept this testimony in the absence of further corroboration.
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the various political parties to put aside their differences and focus on their common enemy,
the RPF.506 Eventually, civilians involved in the killings in Rwanda from 7 April were
commonly referred to as Interahamwe even if they were not specifically members of the
MRND youth wing.507
2.6.2
Rwanda’s Civil Defence System and Civilian Assailants
Evidence
460. Authorities in Rwanda took various steps to establish a “civil defence system”508 from
the RPF’s invasion in October 1990 when they mobilised the population to erect roadblocks,
check identity cards at them and engage in neighbourhood patrols. Following the February
1993 resumption of hostilities by the RPF, these efforts continued to exist, but they were
primarily focused in the northern border regions in areas closest to RPF occupied territory.
During this period, some members of the local population were armed and trained and
conducted patrols with soldiers to prevent RPF incursions.509
461. After the RPF resumed hostilities in February 1993, there was a sharp increase in
interest in implementing a broader civil defence system. President Habyarimana, the CDR
party and Ferdinand Nahimana, a prominent MRND party member called for civil selfdefence on the radio, in press releases and letters.510 In February and March 1993, Bagosora
participated in meetings at the Ministry of Defence to promote civil defence in certain
communes. He claims that he took notes during these discussions which are written as entries
in his agenda.511
462. Following the RPF’s February 1993 actions, the prefects of Ruhengeri and Byumba
prefecture made requests to James Gasana, the Minister of Defence, for weapons to arm the
506
Des Forges, T. 24 September 2002 p. 102; T. 25 September 2002 pp. 30-31; T. 19 November 2002 p. 43;
Prosecution Exhibit 436B (Expert Report of Bernard Lugan), p. 11. See also Kabiligi Defence Exhibit 10 (James
Gasana: La Violence Politique au Rwanda 1991-1993 (1998)), para. 100.
507
See, e.g., Witness XBG, T. 8 July 2003 p. 94; Witness OQ, T. 16 July 2003 p. 44; Witness ABQ, T. 6
September 2004 p. 8; Des Forges, T. 25 November 2002 pp. 10-12.
508
The Chamber uses the term “civil defence” in this section as it was understood and applied in Rwanda at the
time. The term “civil self-defence” is sometime also used in the evidence. As discussed in this section,
Rwanda’s efforts at civil defence more approximates the creation of armed resistance groups than the definition
of the term in Article 61 of Additional Protocol I to the Geneva Conventions. Under Article 61, “Civil defence”
refers to humanitarian tasks intended to protect the civilian population against or help it recover from the
immediate effect of hostilties or disasters, such as warning, evacuation, medical services and fire-fighting. See
also International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1997 to the
Geneva Conventions of 12 August 1949 (1987), pp. 713-736.
509
Des Forges, T. 17 September 2002 pp. 79-80; T. 18 November 2002 pp. 53-54. In a letter of 29 September
1991 to the Minister of Defence, Colonel Nsabimana proposed providing one gun for every 10 households and
1,760 guns for Muvmba, Ngarama, Muhara and Bwisige communes. To this end the government distributed 500
Kalashnikovs to civilian authorities, according to Dr. Augustin Iyamuremye, the secretary-general of central
information services, in a Human Rights Watch interview. Along the northern war front in 1991, Nsabimana
initiated civilian self-defence to assist the army against the RPF invaders. Des Forges, T. 17 September 2002 pp.
79-80.
510
Des Forges, T. 17 September 2002 pp. 80-81; Prosecution Exhibit 35 (CDR press release). Nahimana recirculated his letter calling for a Civil Defence force in March 1994. See Des Forges, T. 17 September 2002 pp.
127-128.
511
T. 28 October 2005 p. 7; T. 31 October 2005 pp. 17-18. The significance of the agenda is discussed in this
section below.
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population. According to a book written by Gasana, he refused these requests since there was
no organic law on the organisation of civil defence and because such an effort might frustrate
on-going peace negotiations. He claimed that, in his absence, Bagosora illegally arranged for
the distribution of weapons in four communes in Gisenyi prefecture. According to the book,
Gasana successfully recuperated the weapons on his return. The prefect of Byumba, Augustin
Bizimana, became Minister of Defence after Gasana fled Rwanda.512
463. Bagosora did not dispute that weapons were distributed to certain bourgmestres in
Gisenyi, Ruhengeri and Byumba prefectures. However, he did not authorise the distribution.
It was done in accordance with proper procedures, with an order directed from the Ministry
of Defence to staff headquarters, which then transmitted instructions to the relevant military
camps. Furthermore, Gasana had returned to Rwanda on 13 February 1993, making it
impossible for Bagosora to have authorised the distribution of weapons without Gasana’s
consent in view of the limits on his authority (IV.1.2). Finally, the weapons were withdrawn
after the cease fire with RPF was signed in Dar es Salaam on 7 March 1993. The only
exception was Karago commune in Gisenyi prefecture.513
464. On 14 December 1993, Nsengiyumva drafted a letter to the chief of staff of the
Rwandan army. The letter noted that civilians, mainly from Kigali, had been trained and
armed with Kalashnikov rifles in connection with civil defence in four communes in Gisenyi
prefecture – Mutura, Karago, Rwerere and Rubavu – but that most of these weapons were
returned. The letter requested additional weapons, and Nsengiyumva noted in it that the
training and distribution “will be handled at [his] level”.514 These communes were also
referred to in Bagosora’s agenda made several months earlier.515
465. Nsengiyumva confirmed that the four communes in Gisenyi received weapons in late
1993 in the aftermath of an RPF attack on Kabatwa, and that an early distribution had taken
place in March 1993 as well. The Ministry of Defence provided approximately 300 weapons
to Gisenyi military camp to be given to three bourgmestres in December 1993. Nsengiyumva
said that he had no role in choosing which citizens would receive the weapons, did not know
the political affiliations of the bourgmestres receiving the weapons, and was not involved in
any training as people had already been trained. He denied that any incidents in April 1994
were connected to these weapons and did not believe that they were distributed to the
Interahamwe. Nsengiyumva clarified that this instance of weapons distribution was separate
from the civil defence program later established by the government.516
466. Around the same time, on 28 December 1993, Bishop Kalibushi of the Nyundo
Diocese issued a press release condemning the distribution of weapons to civilians in the
area, which was resulting in increased tensions, and called on authorities to explain the
purpose of it.517
512
Kabiligi Defence Exhibit 10 (James Gasana: La Violence Politique au Rwanda 1991-1993 (1998)), para. 67.
Bagosora, T. 31 October 2005 pp. 63-68; T. 14 November 2005 p. 4.
514
Des Forges, T. 17 September 2002 pp. 117-118; Prosecution Exhibit 36B (Nsengiyumva letter of 14
December 1993).
515
Prosecution Exhibit 278 (Expert Report of Antipas Nyanjwa, Test Collection A: Bagosora Agenda). The
communes are mentioned on the entries for 18 and 20 February, 4 March and the “Contact page ABC” (T. 31
October 2005 pp. 47-48).
516
Nsengiyumva, T. 9 October 2006 pp. 58-60, 70-71; T. 12 October 2006 pp. 38-49; T. 13 October 2006 p. 8.
517
Prosecution Exhibit 37 (Kalibushi letter). See also Des Forges, T. 17 September 2002 pp. 123-124, 126;
Sagahutu, T. 27 April 2004 pp. 64, 77-80; T. 28 April 2004 pp. 46-49. The minutes of a meeting of 28 March
513
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467. The Prosecution has also presented other first and second-hand evidence of military
and civilian authorities providing training and weapons to civilians from 1992 through April
1994.518 The Defence has presented witnesses to refute some of the specific allegations made
by these witnesses.519 Other evidence concerning the distribution of weapons is discussed in
other parts of the judgement.
1994, discussed in detail below, between the army chief of staff, the Kigali operational sector commander and
the prefect of Kigali mention ongoing military involvement in civil defence efforts in the northern border
regions. See Prosecution Exhibit 38 (Nsabimana letter of 29 March 1994, p. 2, para. 10: “The efforts undertaken
by the Ops Section Commanders neighbouring the DMZ in the framework of civilian self-defence will continue
with the collaboration of local administrative authorities.”).
518
See, e.g., Prosecution Exhibit 33B (2 February 1994 Report on the Study on the Interahamwe Militias by
Major Hock), pp. 2-3, which lists various camps and suggests that 1,300 young Interahamwe have been trained
in camps outside Kigali. For training at Gabiro, see Dallaire, T. 19 January 2004 pp. 94-97; T. 26 January 2004
p. 14; Beardsley, T. 3 February 2004 pp. 5-8, 86; T. 5 February 2004 pp. 2-3; Witness DA, T. 19 November
2003 pp. 6-8, 10; T. 10 December 2003 pp. 18-20; Witness CW, T. 8 October 2004 p. 22; Witness XAB, T. 6
April 2004 pp. 29-31; Witness XXY, T. 11 June 2004 pp. 7-8, 45; Witness DBY, T. 12 September 2003 p. 42;
T. 22 September 2003 pp. 6-8, 35, 41-43, 46-48; Witness GS, T. 17 February 2004 pp. 68-69, 72-73; T. 18
February 2004 pp. 43-45; Witness DCH, T. 23 June 2004 pp. 12-14, 27; T. 24 June 2004 p. 56; Des Forges, T.
17 September 2002 pp. 59-60, 62, 76-77; T. 25 September 2002 pp. 18-19; T. 26 September 2002 p. 74; T. 19
November 2002 pp. 22-23, 28-29, 31-32. For training at Camp Kimihurura, see Witness DA, T. 19 November
2003 pp. 6-10; T. 10 December 2003 pp. 18-19. For training in Rulindo, see Witness XXJ, T. 14 April 2004 pp.
25-27, 32-33, 57-58. For training in Mukamira and Cyabalarika camps, see Witness DN, T. 19 February 2004
pp. 3-7, 10-15, 18-23; Witness DCH, T. 23 June 2004 pp. 12-17, 27-31, 38-39; T. 24 June 2004 pp. 56-57; T. 25
June 2004 pp. 8-9, 22; T. 28 June 2004 pp. 73-74. For training in Cyangugu, see Witness LAI, T. 31 May 2004
pp. 20-27, 29-31, T. 2 June 2004 pp. 11-13, 17; T. 3 June 2004 pp. 2-7, 14-17, 25. For training at Mount Kigali
and in Gabiro, see Witness AAA, T. 14 June 2004 pp. 23-24, 75-76; T. 15 June 2004 pp. 58-60, 66. For training
at Bigogwe camp, see Witness XBM, T. 14 July 2003 pp. 12-14, 33-38; T. 15 July 2003 pp. 27-28, 36-42;
Beardsley, T. 3 February 2004 pp. 6-8; T. 4 February 2004 pp. 86-88; T. 5 February 2004 pp. 1-3; Prosecution
Exhibit 401 (Letter of 20 April 1994, signed by Edouard Karamera). For training at the Mutura commune office,
see Witness XBM, T. 14 July 2003 pp. 33-35, 37-39, T. 15 July 2003 pp. 33-36; Witness XBG, T. 8 July 2003
pp. 23-24, 28-29, 94; T. 9 July 2003 pp. 51, 58-59; Witness OAB, T. 24 June 2003 pp. 54, 68-69; T. 25 June
2003 pp. 88-89; Witness OAF, T. 23 June 2003 pp. 5-6, 65-66; Witness BY, T. 2 July 2004 pp. 27-32; T. 7 July
2004 pp. 19-25; T. 8 July 2004 pp. 32-33; T. 9 July 2004 pp. 31-36; Witness A, T. 1 June 2004 pp. 39-40; T. 2
June 2004 p. 78; T. 3 June 2004 pp. 70-73; Witness ZF, T. 28 November 2002 pp. 10-16, 35-36; Serushago, T.
18 June 2003 pp. 6-7, 9-10, 80-88. For training in Gishwati forest, see Sagahutu, T. 27 April 2004 pp. 65-68, 7273, 77, 80-81; T. 28 April 2004 pp. 33, 36-42; T. 29 April 2004 pp. 7, 17-19. For training at Saint Fidèle
institute, see Witness ABQ, T. 7 September 2004 p. 19; T. 8 September 2004 pp. 32-33. For distribution of
weapons at the Hôtel Meridien, see Witness ZF, T. 28 November 2002 pp. 3-10, 26, 30-32; T. 3 December 2002
pp. 3-5, 72-76; T. 4 December 2002 pp. 63-64; T. 5 December 2002 pp. 67-76; Serushago, T. 18 June 2003 pp.
9, 13-15, 60-61, 63, 65-74, 83-85. For distribution of weapons in Kigali, see Witness BY, T. 5 July 2004 pp. 1617, 21-25, 56-57, 79; T. 7 July 2004 pp. 79-83; T. 8 July 2004 39-43; 46-49; T. 9 July 2004 pp. 1-10; Witness
A, T. 1 June 2004 pp. 69-70, 83; T. 2 June 2004 pp. 28-29; T. 3 June 2004 pp. 38-44.
519
With respect to training at Bigogwe, see Nsengiyumva, T. 6 October 2006 pp. 8-11; Biot, T. 21 September
2006 pp. 77-78; Tchemi-Tchambi, T. 6 March 2006 pp. 33, 35, 37-44; Witness NATO-1, T. 27 June 2006 pp. 69, 20-21, 23-24; Witness LIG-1, T. 13 April 2005 pp. 42, 64-66; Witness BDR-1, T. 14 April 2005 p. 65; T. 15
April 2005 pp. 2, 3-6, 18-19; Witness YD-1, T. 12 December 2005 pp. 38-40, 48-49, 56-57; Witness CF-2, T.
29 November 2005 pp. 49-50, 72. Concerning training at the Mutura commune office, see Witness ICJ, T. 13
October 2006 pp. 58, 60, 63. For training at Saint Fidèle institute, see Witness LN-1, T. 7 July 2006 p. 6. With
respect to training in Gisenyi in general, see Witness LK-2, T. 19 May 2005 pp. 2, 29; Witness R-1, T. 27 July
2005 pp. 17-18; T. 28 July 2005 p. 15. Concerning the distribution of weapons at Hôtel Meridien, see
Nsengiyumva, T. 4 October 2006 pp. 30-31; T. 6 October 2006 pp. 12-13, 42-43; Nzirorera, T. 16 March 2006
pp. 64-65; T. 12 June 2006 p. 26; Witness TRA-2, T. 21 June 2006 pp. 24-27; Witness XEN-1, T. 30 May 2006
pp. 10-11. With respect to the role of the Para Commando Battalion in training at Camp Gabiro, see
Ntabakazue, T. 21 September 2006 pp. 36-37; Witness DM-26, T. 1 December 2006 p. 22; Witness DM-190,
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468. An undated document setting out a detailed framework for the implementation of a
civil defence system was seized on Prime Minister Jean Kambanda when he was arrested in
1997 (“Civil Defence Document”).520 A review of the Civil Defence Document reflects that it
was prepared during the cease fire between the arrival of UNAMIR in October 1993 and the
resumption of hostilities between the RPF and the Rwandan army on 7 April 1994. This
follows from certain passages in the document alluding to the participation of UNAMIR in
joint patrols and the need for resistance “in the event of resumed hostilities”.521 Bagosora
denied authoring and familiarity with it until his trial.522
469. According to the Civil Defence Document, the basic principles of the system were
secrecy and the close collaboration between the army, gendarmerie and “political parties
defending the principle of the Republic and Democracy” in recruiting and training members
of resistance groups.523 The objectives of civil defence were to ensure the security of the
people and encourage them to defend the country against RPF attacks; protect public
infrastructure and property; obtain information on the actions and presence of the enemy
within localities; denounce infiltrators and collaborators of the enemy; disorganise any enemy
action ahead of the intervention of the armed forces; and act as agents of the army and the
national gendarmerie.524
470. The proposed structure for it was hierarchical and included coordinating committees
at every level of government from the national to the sector level. Military and civilian
personnel were to serve on each of these committees. The individual civil defence groups
were to be formed at the level of the cellule.525 Recruits for the civil defence groups were to
be drawn from reservists, soldiers and gendarmes living in residential areas, “youths of
political parties with republican leanings” and others convinced of the need for civil
defence.526
471. The Ministry of Defence’s tasks included appointing members of the national
coordinating committee in conjunction with the Ministry of Interior, preparing lists of
soldiers and reservists living in residential areas, and finding trainers. Military and civilian
leaders were responsible for identifying the individuals to serve as part of the civil defence
groups. In particular, general staff of the army and gendarmerie were to select the military
personnel living outside of camps. The others were to be identified by the commune
coordinating committees and political parties.527
472. The Civil Defence Document contained detailed instructions on the urgent
organisation of civil defence in Kigali, Kigali-Rural, Byumba, Ruhengeri and Gisenyi
T. 14 March 2006 p. 28. Concerning the alleged distribution of weapons to Witness BY, see Bagosora, T. 9
November 2005 pp. 10-12; T. 10 November 2005 p. 5; Witness XO-3, T. 26 July 2005 pp. 13-15, 27-32;
Witness LMG, T. 18 July 2005 pp. 15. For general denial that civilians were trained in military camps in 1993,
see Witness DM-191, T. 5 May 2005 p. 51.
520
Nkole, T. 8 June 2004 p. 49; Prosecution Exhibit 254 (Organisation of Civil Defence). Kambanda stated that
other ministers were referring to the Civil Defence Document at the time he issued his own directive on the
implementation of civil defence to the prefects on 25 May 1994. See T. 12 July 2006 p. 52.
521
Prosecution Exhibit 254B (Organisation of Civil Defence), pp. 3-4.
522
Bagosora, T. 16 November 2005 p. 21.
523
Prosecution Exhibit 254B (Organisation of Civil Defence), p. 4.
524
Id. p. 5.
525
Id. pp. 11-13.
526
Id. p. 9.
527
Id. pp. 5-8.
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prefectures, notably identifying specific communes as well as the manpower and weapons
(rifles and bladed traditional weapons) needed for each.528 These areas were highlighted due
to imminent threats from the RPF or strong indications of acts of violence by infiltrators in
the event of a resumption of hostilities.
473. On 29 March 1994, Déogratias Nsabimana, the army chief of staff, convened a
meeting at army headquarters with Tharcisse Renzaho, the prefect of Kigali, and Colonel
Félicien Muberuka, the commander of the operational sector of Kigali, in order “to hone the
civil self-defence plan”. The following day, Nsabimana forwarded to the Minister of Defence
the minutes outlining the decisions taken at the meeting.529
474. The minutes reflect military oversight and involvement in the civil defence system.
For example, an experienced soldier living outside of the camp was to be placed in charge of
each cellule. The commander of the Kigali operational sector would assign “operational
cellules” to defend their neighbourhood and “to search for and neutralise infiltrators within
the various neighbourhoods of the city”. Military camps would be used to gather civil
defence forces in order to give them operational directives. It was also agreed that the
operational commander would contact the Ministry of Defence and the Ministry of Interior
for weapons and ammunition and take the civilian forces into account in Kigali’s defence
plan.
475. With respect to civilian involvement, the prefect of Kigali was asked to provide lists
of reservists and other “reliable civilians” who would work with soldiers in defending the
neighbourhoods. It was suggested that bourgmestres instruct the population in traditional
weapons since there were insufficient firearms. On 31 March 1994, Renzaho sent Nsabimana
a list of 250 individuals identified for training and noted that additional lists would follow.530
Witness STAR-1, an officer in the Huye Battalion, explained that there was no time to
implement this civil defence system before the hostilities resumed with the RPF on 7 April.531
476. The civil defence system was formally implemented throughout the country on 25
May 1994 in a Directive by Prime Minister Jean Kambanda addressed to all prefects.532
Nevertheless, there are a number of references in the evidence concerning its implementation
prior to that date. For example, according to Des Forges, Colonel Tharcisse Muvunyi asked
local officials on 21 April in Butare prefecture to provide training for the area’s civil
defence.533
477. On the same day Kambanda sent the 25 May Directive to all prefects on the
organisation of civil defence, Edouard Karemera, the Minister of the Interior, issued an
528
Id. pp. 9-11, 13-16.
Des Forges, T. 17 September 2002 pp. 129, 131-134; T. 18 September 2002 pp. 2-3; Prosecution Exhibit 38
(Nsabimana letter of 30 March 1994). Witness CE, a soldier attached to one of the bureaus on the army general
staff, testified that he saw a document in late 1993 or early 1994 from Muberuka concerning the selection of
members of the population to undergo weapons training to defend Kigali against an “Inkotanyi” attack because
of the disarmament of soldiers under the Arusha Peace Accords. The witness was not familiar with other
exchanges on the issue. See T. 13 April 2004 pp. 3-4, 19-23, 82-84; T. 14 April 2004 pp. 1-4.
530
Des Forges, T. 18 September 2002 pp. 3-5; Prosecution Exhibit 39 (Letter of 31 March 1994 from Renzaho
to Nsabimana).
531
T. 23 February 2006 pp. 21, 29, 68-69.
532
Prosecution Exhibit 47 (Prime Minister’s Civil Defence Directive (25 May 1994)).
533
Des Forges, T. 18 September 2002 p. 86; T. 25 September 2002 p. 127.
529
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instruction on the implementation of the directive.534 The Prime Minister’s directive begin by
noting that, in view of the RPF’s attack after the death of President Habyariamana, every
Rwandan is “duty-bound” to defend the country, which includes supporting the armed forces.
It notes that Rwanda’s “most effective weapon” is the “Rwandan people who have
relentlessly given their unflinching support to the current government”. In this regard, it calls
on people to join the army. The directive further recognise the need to organise the people
and train them within the next 15 days.535
478. The guidelines and objectives for the implementation of the civil defence strategy
tracks the formulations in the Civil Defence Document, mentioned above.536 The directive
indicate that communal police and reservists were responsible for providing training in each
locality.537 The prefects were asked to set up civil defence committees to coordinate
operations in each sector, commune and prefecture, which would be responsible for
supervision of training, discipline and providing weapons and logistical support. The prefect,
bourgmestre and conseiller were to chair the committee established at their administrative
level. The local commanding officer in the area was responsible for ensuring regular
supervision and evaluation of the civil defence efforts.538 At the national level, a coordinating
committee was responsible for general supervision and planning related to the entire system.
It was composed of eight members including the Minister of the Interior (chairman), Minister
of Defence (vice-chairman) and the chief of staff of the army.539
479. In the middle or second half of June 1994, Minister Edouard Karemera issued an
instruction noting that there had not been full compliance with the 25 May Directive of the
Prime Minister, in particular in connection with establishment of coordination committees at
all levels. Nevertheless, the instruction informed the prefects that the Rwandan government
has made available money for each prefecture to establish a civil defence fund. It provided
further guidance on how the civil defence funds should be spent, including transport to zones
of “intervention” and the purchase of traditional bladed weapons (“armes blanches”).540
480. According to Des Forges, the civil defence system was administered by Bagosora’s
office in the Ministry of Defence.541 She described its creation as a way to unite the political
party militias towards a single purpose and bring them under control. It also augmented their
strength with a larger popular participation and the organisation of each level of the country’s
534
Prosecution Exhibit 48 (Ministerial instruction on the implementation of civil defence (25 May 1994)).
Prosecution Exhibit 47B (Prime Minister’s Civil Defence Directive (25 May 1994)), paras. 1-4.
536
Compare id. paras. 5-6 with Prosecution Exhibit 254B (Organisation of Civil Defence), pp. 4-5.
537
Prosecution Exhibit 47B (Prime Minister’s Civil Defence Directive (25 May 1994)), para. 7.
538
Id. paras. 8.1-8.8.
539
Id. para. 8.9.
540
Prosecution Exhibit 49 (Ministerial Instruction on the use of civil defence funds). The instruction is not
dated. However, it refers to a telegram of 13 June, indicating that it was issued sometime after that period. See
also Des Forges, T. 18 September 2002 pp. 89-91, 96-98.
541
Des Forges, T. 18 September 2002 pp. 86-89. Des Forges based this opinion on an unidentified witness. She
also relied in part on a statement written by Kabiligi. The Chamber has excluded this evidence as well as her
testimony based on it, except like here where it also draws on other sources of information. Decision on Kabiligi
Motion for the Exclusion of Portions of Testimony of Prosecution Witness Alison Des Forges (TC),
4 September 2006, paras. 2, 5. See also Decision on Prosecutor’s Motion for the Admission of Certain Materials
Under Rule 89 (C), 14 October 2004, para. 21 (holding that Kabiligi’s statement was taken in violation of his
right to assistance of counsel).
535
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administrative structure from the national level to each cellule. The militias of the political
parties, however, remained the “cutting edge” of the civil defence system.542
481. Witness BY, a high-ranking Interahamwe leader, stated that the interim government
instituted a civil defence program to militarily train and arm the civilian population, and
included the use of the Interahamwe, the Impuzamugambi and the Inkuba. Within the
Interahamwe, instruction was based upon its existing training structure. The witness attended
two civil defence meetings in May 1994 in Kigali, including one presided over by Colonel
Gasake at the Ministry of Defence. Representatives of the MDR party and the CDR’s
Impuzamugambi were also present. At the meeting, Gasake asked the leaders of the youth
wings to carry out an inventory of the needs and of the people who were in a position to be
armed and provide civil defence.543 Witness A, a high-ranking Interahamwe leader,
acknowledged that members of the Interahmwe participated at times in military operations
against the RPF with the army. When engaged in these operations, the Interahamwe fell
under the control of the army, but otherwise it was not under the army’s authority.544
Kambanda also explained that the Interahamwe was a militia separate from civil defence.545
482. As discussed below (III.4.5.1), a set of written exchanges in June 1994 reflects that
Edouard Karemera, the Minister of Interior, issued instructions to Nsengiyumva to deploy
civil defence forces to Kibuye prefecture to reinforce military operations in the Bisesero
area.546 The evidence in that section also indicates that Nsengiyumva deployed these forces to
reinforce the army in Kigali.
483. In this same vein, Witness HN, a Hutu soldier stationed at army headquarters, testified
about three messages relating to the Interahamwe. They were sent to various operational
commands. The first transmission, at the end of April 1994, was from the G-3 office to the
commanding officer of military operations in Gitarama prefecture, stating that there was a
need to recruit 150 Interahamwe, who would require training and weapons. The witness
observed a second transmission from the G-3 office in Kabiligi’s handwriting in May 1994
on a table in the transmission centre. It stated that there was a need to use Interahamwe at
roadblocks in Kigali town. Witness HN was able to determine that the message was written
by Kabiligi because he recognised his handwriting from a message Kabiligi had previously
brought to the transmission centre. In June 1994, the witness heard Kabiligi communicating
with troops in Kigali at a place called Mburabuturo. Ten minutes later, Kabiligi gave a
message to the transmission centre instructing that Interahamwe manning roadblocks should
be sent to Mburabuturo to assist in fighting the RPF.547
484. In the opinion of Des Forges and Filip Reyntjens, the references in the documents
mentioned above to arming civil defence forces with traditional weapons indicated that their
542
Des Forges, T. 18 September 2002 pp. 11, 78, 82-83, 89-90.
Witness BY, T. 5 July 2004 pp. 48-50; T. 9 July 2004 pp. 26-27.
544
Witness A, T. 1 June 2004 pp. 64-67; T. 3 June 2004 pp. 58-59, 68-70.
545
Kambanda, T. 12 July 2006 p. 39.
546
See also Des Forges, T. 18 September 2002 p. 102; Nsengiyumva Defence Exhibit 187 (Kayishema
Telegram to the Ministry of Defence, dated 12 June 1994); Prosecution Exhibit 396 (Édouard Karemera’s handwritten notes of meeting on 17 June 1994); Prosecution Exhibit 50 (Edouard Karamera’s telegram to
Nsenigyumva, undated); Prosecution Exhibit 394 (Edouard Karamera telegram’s to the Kibuye Prefect, dated 20
June 1994).
547
T. 24 February 2004 pp. 28-32, 34-39, 43-46, 52-55, 57-68, 78-80; Prosecution Exhibit 196 (personal
identification sheet).
543
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target was civilian rather than military.548 Peter Caddick-Adams, a Defence expert, expressed
a contrary view on the use of traditional weapons, based on his review of the Civil Defence
Document, seized from Kambanda, and the expert report of Reyntjens. He stated that there
was nothing sinister in Rwanda’s civil defence planning and that it was consistent with those
of other western countries.549
485. According to the Caddick-Adams report, all states have historically maintained some
kind of “civil defence” program, which in times of peace focus on what to do if there is a
crisis or civil emergency, and in war focus on how to kill an invader. Rwanda’s civil defence
structure resembles those found in many European traditions. The fact that the instructions
envision negotiating with governments to provide training suggests that the government
intended to institute a permanent national institution drawing on the experiences of other
nations. The instructions for Rwanda’s civil defence program indicate that it is to act as an
auxiliary force in addition to the army and gendarmerie. It was to have a logical military
structure with a central hierarchy overseen jointly by the Ministries of Defence and
Interior.550
486. The Caddick-Adams report disagrees with the conclusion that the use of traditional
weapons evinced an intent to kill civilians. The use of traditional weapons and the limited
distribution of firearms reflects the government’s limited resources, the risks of having too
many automatic weapons in circulation, and the need to discourage these forces from
engaging the better trained troops where they would certainly lose. It is also consistent with
the purposes of these forces, which are not to engage an enemy formation, but rather to focus
on infiltrators, accomplices and looters.551
487. The report concluded with the caveat that there is always a risk that such
organisations once formed can be subverted to tasks other than its original purpose. However,
nothing in its proposed structure or armament hints at anything other than a valid attempt to
set up an institution designed to counter an enemy threat in the event of hostilities.552
Deliberations
(i) General Findings
488. It is clear that Rwanda’s civil defence system existed in some form from October
1990 until July 1994, even though it was only formalised through the 25 May 1994 Directive
548
Des Forges, T. 17 September 2002 pp. 133-134; T. 18 September 2002 pp. 97-98; Prosecution Exhibit 302
(Expert Report of Filip Reyntjens). In addition, Des Forges also highlighted certain expenditure on civil defence
in areas which were not on the war front. T. 18 September 2002 p. 100; T. 19 November 2002 pp. 104-105.
549
Caddick-Adams, a lecturer in global security at the Security Studies Institute of the United Kingdom Defence
Academy, is an expert in the field of armed conflict. He did not appear as a witness in the trial, but his expert
report assessing the civilian self defence program in Rwanda was admitted as a Bagosora Defence Exhibit. See
Bagosora Defence Exhibit 362 (Expert Report of Peter Caddick-Adams). Helmut Strizek, a Nsengiyumva
Defence expert witness, shared the views expressed by Caddick-Adams that there was nothing unusual about
Rwanda’s civil defence efforts. See Nsengiyumva Defence Exhibit 78 (Strizek report).
550
Bagosora Defence Exhibit 362 (Expert Report of Peter Caddick-Adams), paras. 1-10, 17, 19, 21-24, 29-30.
551
Id. paras. 4, 21-29, 31. According to the report, the use of rudimentary weapons is at the core of all civil
defence movements worldwide since they are minimally resourced. The report points to the example of the
British Home Guard during World War II whose initial weapons included pitchforks and bayonets affixed to
wooden shafts.
552
Id. paras. 18, 31.
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issued by Prime Minister Kambanda. The Defence does not dispute that civilians were trained
and armed within this system by military and civilian authorities.
489. There is a significant body of evidence concerning the training of civilians, in many
cases identified as Interahamwe, which may have been part of Rwanda’s civil defence
system, given the similarities in training locations attributed to the civil defence system. It is
not necessary to set forth an assessment of this evidence in detail. The Chamber has raised
questions about the credibility of several of the factual witnesses in other sections of the
judgement. Furthermore, some of the evidence is second-hand, vague or conflicts with other
evidence. The Chamber declines to accept as reliable all details of their accounts, but is
convinced by the totality of the evidence that Rwandan military and civilian authorities were
arming and training civilians before April 1994.
490. The creation of Rwanda’s civil defence system does not in itself demonstrate an intent
on the part of the relevant authorities to kill civilians. The Caddick-Adams report reflects that
the structure outlined in the document on the organisation of civil defence appears consistent
with existing and previous systems in other countries. Alison Des Forges acknowledged that
not all persons associated with this effort understood it to be directed at killing Tutsi
civilians.553 She further stated that the purpose of civil defence evolved over time from an
understandable response to the February 1993 resumption of hostilities by the RPF to attacks
on Tutsi civilians after 6 April 1994.554
491. The discussions held at army headquarters on 29 March 1994 reveal the extensive
involvement of the Rwandan army at the highest levels in the planning, implementation and
oversight of the civil defence system. This follows in particular from the participation of the
army chief of staff, the operational sector commander for Kigali and the prefect as well as the
immediate correspondence with the Minister of Defence on the issue. These efforts were
formally established and extended throughout the country by the 25 May 1994 Directive.
However, the Civil Defence Document relating to the organisation of civil defence in Kigali,
Kigali-Rural, Gisenyi, Ruhengeri and Byumba prefectures, as well as the minutes of the
meeting held on 29 March 1994, provide some guidance on the general structure and purpose
of the system before 25 May.
492. The evidence is limited as to the extent the structure envisioned in the Civil Defence
Document, the minutes of the 29 March 1994 meeting and the Prime Minister’s directive was
put into actual practice. This is evidenced by the Ministerial Instruction of June 1994, which
indicated that the system had not been fully implemented. Nevertheless, common themes
emerge, namely joint oversight by civilian and military authorities and the channelling of
operational instructions through the military command in each operational sector. This
follows most clearly from the meeting on 29 March 1994, as well as references to active or
retired soldiers serving as the operations officers at each level of coordination, both in the
Civil Defence Document and Kambanda’s 25 May Directive. Furthermore, the evidence in
this case reflects clear coordination by military and civilian assailants before 25 May 1994 in
several organised operations, for example, at Kibagabaga Mosque (III.3.5.3), the Saint
Josephite Centre (III.3.5.5), Gikondo Parish (III.3.5.8), Nyanza hill (III.4.1.1), the Islamic
553
Des Forges, T. 26 September 2002 pp. 84-85 (“I believe I indicate quite carefully in my report that not all
persons associated with this effort and not all participants in this effort understood it to be directed against Tutsi
civilians.”).
554
Id. pp. 17-18.
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Cultural Centre (III.4.1.2), IAMSEA (III.4.1.4), in Gisenyi town (III.3.6.1; III.3.6.5) and at
Mudende University (III.3.6.7). After 25 May, this coordination is also illustrated by the
correspondence related to Nsengiyumva’s deployment of Gisenyi-based militiamen to
Kibuye prefecture in the second-half of June 1994 as well as his deployment of forces to
Kigali (III.4.5.1).
493. Turning to the relationship between the civil defence system and party militias, such
as the Interahamwe, the Chamber notes that the Civil Defence Document and Kambanda’s 25
May Directive emphasise cooperation with member of political parties in connection with
recruitment.555 The Civil Defence Document specifically recommends recruiting “youths of
political parties with republican leanings”.556 The incorporation of the Interahamwe within
the civil defence structure also follows from the evidence of Des Forges and Witness BY.
While Witness A disputed that the Interahamwe were part of the civil defence system, he
nonetheless acknowledged that they at times participated in military operations against the
RPF alongside the army. One telling example is Bagosora’s statement during the meeting of
17 May 1994 with Colonel Clayton Yaache and Major Donald MacNeil of UNAMIR.557 The
meeting was video-taped and shown during the testimony of Expert Witness Alison Des
Forges. In the course of their discussions, Bagosora refers to chairing an earlier meeting of
the leaders from the youth movements of the political parties. Bagosora describes them as
being in charge of the civil defence in Kigali.558 According to Bagosora’s testimony, this was
a reference to the Interahamwe, Impuzamugambi and Abakombozi.559
494. In the Chamber’s view, the evidence shows a considerable overlap between political
party militias, such as the Interahamwe, and the civil defence system. This does not
necessarily mean that all members of the Interahamwe were part of the civil defence structure
555
Prosecution Exhibit 47B (Prime Minister’s Civil Defence Directive (25 May 1994)), para. 5 (“Close
cooperation between territorial administration authorities and political parties that uphold republican and
democratic ideal is a prerequisite for the recruitment of members of resistance groups and the organisation and
training of such groups.”).
556
Prosecution Exhibit 254B (Organisation of Civil Defence), p. 4.
557
Bagosora, T. 9 November 2005 pp. 47-54. The evidence of Major MacNeil, as corroborated by the report
prepared after the meeting, indicates that the meeting occurred on 17 May 1994. See T. 23 November 2005 pp.
60-61; Bagosora Defence Exhibit 291 (Report of meeting on 17 May 1994). Major Donald MacNeil, a Canadian
operations officer in UNAMIR’s humanitarian cell, prepared the report and translated for Yaache at the meeting.
See MacNeil, T. 23 November 2005 pp. 45-47, 51-52, 60-63.
558
Prosecution Exhibit 44 (video footage); T. 18 September 2002 p. 61 (“We have summoned the different
authorities of the youth movements in the parties, who are in charge of the civil defence in Kigali, to talk about
them about this problem -- to talk with them, rather, about this problem. So, personally, I was in charge of this
meeting of the different leaders of the youth movements. We agreed that to evacuate the orphans, there would
be no problem.”) Bagosora addressed the meeting in French. The French transcription of this portion of his
statement reads: “Et nous avons convoqué les différents responsables des jeunesses des partis qui font la défense
civile dans Kigali pour leur parler de ce problème. Alors, moi, personnellement, j’ai dirigé cette réunion des
différents responsables des jeunesses des partis, nous avons convenu que, pour l’évacuation des orphelins, qu’il
n’y avait pas de problème.” See T. 18 September 2002 pp. 95-96 (French). Major MacNeil testified that he
would have used the word “called” rather than “summoned” in translating “convoqué”. See T. 23 November
2005 p. 64.
559
Bagosora, T. 9 November 2005 p. 44 (“Those young people, I cannot say that they were Interahamwe
because that word ‘Interahamwe’ was not written on their foreheads. But during the period in question,
Interahamwe, the Impuzamugambi, Abakombozi, were all mixed together, and that is why I’m talking about the
young people of various parties. Young people of various parties are not militiamen, because these were the
youth wings of various political parties that had come together in every neighbourhood so as to ensure their
safety and security in the neighbourhoods by setting up roadblocks.”).
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or that all civil defence participants were Interahamwe. Given the ad hoc and at times
informal implementation of the system, in particular in the context of a war, its mere
existence and connections to the military did not mean that the actions of its forces or of other
militiamen were invariably the responsibility of military authorities. As Des Forges noted, the
militias once armed threatened to go their own way.560 In other words, the Chamber is
mindful of the sometimes chaotic and disorganised nature of civilian forces operating in
Rwanda at the time.
495. Therefore, in assessing whether civil defence forces or party militiamen were acting
under the authority of the Rwandan military, the Chamber must carry out a concrete
evaluation of each specific event, considering the actual facts on the ground. Factors
suggesting that these groups were operating under the military’s command include evidence
of the issuance of direct orders from a military commander, joint participation or physical
presence of military personnel, the provision of logistical support, and the nature and scope of
the operation. With respect to the positions of roadblocks, manned exclusively by civilian
personnel, the Chamber will consider the significance of their location, such as their presence
in strategic areas and their proximity to public buildings or border crossings, where civilian
or military forces would normally operate. The factual context of a given event will guide the
Chamber’s assessment of whether primary responsibility for these installations is attributable
to either military or civilian authorities.
(ii) The Involvement of the Accused
496. The Chamber will now consider the evidence which suggests that the Accused played
a key role in forming and implementing Rwanda’s civil defence efforts. Alison Des Forges
testified that Bagosora was in charge of the civil defence system as well as its architect. She
relied in particular on the entries in his agenda and another source, which she did not
identify.561 Bagosora stated that his annotations were made in connection with meetings held
at the Ministry of Defence following the RPF attack in February 1993. The discussions
focused on the promotion of civil defence in certain communes.
497. Entries in the agenda for the months of February and March 1993 relate to training of
militia by the communal police and reserve soldiers, training of “people” by the Rwandan
military, arming of youths and displaced people, the criteria of those selected to be armed,
coordination with the military, orders for ammunition from South Africa and Russia, and
names of military officers. Other notes indicate numbers, places, names, types of weapons,
supplies, requisitions, phone numbers, vehicles, calculations, invoices, meetings and “to do”
lists. Notable entries include: “Who is the enemy of the country?”; “Songs praising the
bravery of the army, Bikindi and others”; “General amnesty for all war crimes”.562
560
T. 18 September 2002 p. 83 (“As one bourgmestre told me, himself apparently involved in the genocide, he
said, ‘You know, it was a good thing that the RPF arrived when it did, because the thugs were about to take
over’, meaning those young people who had been given guns, whom the older more ‘respectable’ genocidal
leaders were having difficulty controlling.”). See also Prosecution Exhibit 457B (Report of the High Command
of the Rwandan Army (2-6 September 1994), p. 18: “Many problems are being encountered in the supervision
of the Interahamwe and all civil defence recruits and serious incidents are reported every day. … Simply
directing the recruits and Interahamwe to civilian sites might create a climate of serious insecurity in the refugee
camps”).
561
T. 18 September 2002 p. 86.
562
See Prosecution Exhibit 278 (Expert Report of Antipas Nyanjwa, Test Collection A: Bagosora Agenda).
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498. According to Bagosora, his notes were made for personal purposes during the
meetings at the Ministry of Defence.563 He explained the entry, “Who is the enemy of the
country?”, by referring to discussions about the need to raise awareness amongst the
population about the identity of the “enemy”, which according to his testimony were RPF
combatants.564 As for the mention of Bikindi, he noted that it concerned discussions about
playing his songs as well as those of other musicians, which praised the bravery of the armed
forces on its radio program.565 Regarding the note on amnesty, he said that it was a reference
to a peace agreement which was being negotiated with the RPF that was supposed to include
an amnesty clause.566
499. Indeed, the entries sketch out many of the core elements of what would later become
the Rwanda’s formalised civil defence strategy. The agenda was provided to the Prosecution
by Alison Des Forges, who received a copy of excerpts of it from the RPF, and was entered
into evidence.567 Antipas Nyanjwa, the Prosecution’s handwriting expert, confirmed that
Bagosora wrote the entries.568 Bagosora also acknowledged this during the course of his
testimony.569 Nevertheless, the Bagosora Defence argues that it lacks probative value because
neither the original nor copies of the entire agenda were disclosed. In view of this, it suggests
that other portions contain exculpatory material and that the portions on the record were
manipulated.570
500. During the course of the trial, the Chamber denied the Bagosora Defence requests to
exclude the agenda as evidence and that the Prosecution should disclose the entire
document.571 The Chamber noted that the Prosecution was not in possession of the original
agenda and decided to consider the agenda’s probative value when making its factual
findings. Bagosora has not sufficiently identified what exculpatory information might be in
the remaining pages of the agenda which were not available at the time of trial or how they
might alter the meaning of the exhibited entries. The Chamber observes that the areas of the
agenda, which Bagosora suggested have been manipulated, do not appear material.572
563
T. 28 October 2005 p. 7; T. 31 October 2005 pp. 17-18.
T. 28 October 2005 pp. 31-32.
565
Id. 30, 33-34.
566
T. 31 October 2005 p. 11.
567
Des Forges, T. 17 September 2002 pp. 85-86.
568
See Prosecution Exhibit 278 (Expert Report of Antipas Nyanjwa), p. 3. The Bagosora Defence also presented
a handwriting expert, Michèle Langois, but her testimony did not focus on Bagosora’s agenda. See T. 5 April
2006 p. 6 (“Madam Langlois, your report breaks down the documents that you received into three groups: L1,
L2 and L3. Your testimony today will be limited to the questioned document contained in collection L2, as my
understanding is there is no dispute with respect to the documents under L1 and L3.”) “L1” is a reference to
Bagosora’s agenda whereas L2 is series of lists of individuals, some apparently related to civil defence. L2
corresponds to Test Collection B annexed to Nyanjwa’s expert report. See Prosecution Exhibit 278 (Expert
Report of Antipas Nyanjwa, Test Collection B). In Langois’s assessment, the writing attributed to Bagosora by
the Prosecution’s handwriting expert Antipas Nyanjwa in this document (L2) was in fact written by three
different authors, none of whom were Bagosora. See T. 5 April 2006 p. 7. In view of this contradiction, there is
some doubt that this document (the series of lists of individuals) can be attributed to the Accused.
569
T. 27 October 2005 p. 67 (“I do recognise the notes that I wrote down. But when those notes are taken out of
the agenda which I cannot see, that is where I have a problem.”).
570
Bagosora Closing Brief, paras. 619-635.
571
Decision on Bagosora Motion to Exclude Photocopies of Agenda (TC), 11 April 2007, paras. 5-6; Decision
on Bagosora Motion for Disclosure of Agenda (TC), 11 April 2007; Decision on Request for Certification or
Reconsideration Concerning the “Bagosora Agenda” (TC), 8 May 2007.
572
See, e.g., T. 27 October 2005 p. 72 (Bagosora pointed out that the word “ Kanama” was added to his notes).
564
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Consequently, these arguments do not call into question the authenticity of the agenda, given
that Bagosora testified extensively on relevant entries, acknowledged writing them, and
explained the circumstances surrounding their drafting.
501. The Chamber considers that the entries in Bagosora’s agenda, as well as his
explanations for them, demonstrate that he was actively involved in the military’s
development and implementation of a civil defence system. Several of the specific entries are
troubling, and Bagosora’s explanations for them are not entirely convincing. However, the
Chamber cannot exclude the possibility that he was taking notes on suggestions made by
others. Moreover, when viewed in the context of the immediate aftermath of the RPF’s
violation of the cease fire agreement, it does not necessarily show an intention to use the
forces to commit genocide. Des Forges’s testimony that Bagosora was responsible for
running the civil defence program does not alone prove beyond reasonable doubt that this
was his role because it was based on a single unidentified source.
502. The Chamber has found that, from the night of 6 April to the return of the Minister of
Defence on 9 April, Bagosora exercised authority over the Rwandan military (IV.1.2).
Therefore, the Chamber will consider in the context of the specific events and in its legal
findings whether civil defence forces or party militiamen came under that authority.
503. With respect to Kabiligi, the evidence indicates that civilians were trained and
participated in civil defence activities in Byumba prefecture where he was the operational
commander from June 1992 until August 1993. This does not in itself demonstrate an intent
to kill civilians. The Prosecution also emphasises that the minutes of the 29 March 1994
meeting were sent to the Minister of Defence on official stationary bearing a reference to the
G-3 bureau, which in its view demonstrates the office’s involvement with the civil defence
program. The Chamber notes, however, that Kabiligi did not attend the meeting concerning
civil defence because he was in Egypt from 28 March until around 8 April (III.6.2).
Furthermore, the minutes forwarded to the Minister of Defence were personally signed by the
chief of staff. The Chamber is therefore not convinced that the use of G-3 stationary by the
army chief of staff for the minutes demonstrates any involvement of Kabiligi in the
establishment of the civil defence forces.
504. The Prosecution also points to the evidence of Witness HN’s testimony concerning
three telegrams that Kabiligi purportedly sent between the end of April and early July 1994
concerning the deployment and use of Interahamwe in Kigali. The witness observed the three
telegrams. His uncorroborated testimony is the only evidence of their existence.573 He did not
see Kabiligi write any of the three messages.574 Additionally, they were written in French, a
573
The Prosecution asserts that Witness HN’s testimony is corroborated by the testimony of Witness DA, who
testified to a similar message emanating from the G-3 bureau. See Prosecution Closing Brief, para. 1316; T. 17
November 2003 pp. 22-23. Witness DA’s testimony is the only evidence of the existence of this telegram. He
also saw it on 7 April, when Kabiligi was not in the country (III.6.2). The Prosecution also points to Witnesses
DCH, BY and DY, all of whom testified regarding the fact that Interahamwe were in fact sent to Mburabuturo
to assist the Rwandan army. See Prosecution Closing Brief, para. 1316. In the Chamber’s view, this
circumstantial evidence does not adequately corroborate the actual existence of these transmissions.
574
T. 24 February 2004 pp. 44-45, 79 (“Judge Reddy: So, again, the only reason why you say that this was a
message from Kabiligi is because he brought this piece of paper to you; is that the situation? The witness: Yes,
that’s the only reason.” While the witness indicated that the April telegram contained an abbreviated signature
(“paraph”), he was only able to speculate that the initials were Kabiligi’s. “Judge Reddy: Let’s now focus on the
very first message that you had seen. Now, did you see Kabiligi write that message? The witness: I did not see
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language of which Witness HN only knew “a few words.”575 In the Chamber’s view, this
evidence is not sufficient to prove beyond reasonable doubt that Kabiligi issued orders
concerning the deployment of Interahamwe.576
505. Turning to Ntabakuze, the Prosecution has not presented credible evidence that he
participated in the arming or training of civil defence forces or party militiamen.577 The
Chamber will consider in the context of specific events whether civil defence forces or party
militiamen came under his authority.
506. Finally, as discussed above, Nsengiyumva played a role in the arming and training of
civil defence forces in Gisenyi prefecture in 1993. This does not in itself demonstrate an
intent to kill civilians. However, the Chamber has also found that he participated in training
of these forces between April and June 1994, and dispatched them to Kibuye prefecture and
Kigali in the second half of June 1994 (III.4.5.1). In its factual and legal findings, the
Chamber will consider in the context of specific events whether he bears responsibility for
these and other events involving civil defence forces and party militia.
2.6.3
Jean-Pierre
Introduction
507. Each of the Indictments alleges that, on 10 January 1994, an Interahamwe leader
named “Jean-Pierre” informed UNAMIR of a secret plan to train militia to exterminate the
Tutsis and their “accomplices”. The Prosecution refers to General Roméo Dallaire, Major
Brent Beardsley, Lieutenant-Colonel Frank Claeys, Witnesses A and BY as well as Expert
Witnesses Alison Des Forges and Filip Reytnjens.578
him. Judge Reddy: Did you see Kabiligi put his paraph to that message? The witness: I did not see him do
that.”).
575
Id. 39, 45-46.
576
In addition, the Kabiligi Defence referred to several witnesses to refute Witness HN’s allegations. Witness
KVB-19, a Hutu officer with East Kigali operational sector, testified that he never saw any telegrams from
Kabiligi discussing the deployment of Interahamwe at roadblocks or at Mburabuturo as reinforcements. See T.
27 September 2006, pp. 8-9; Kabiligi Defence Exhibit 184 (personal identification sheet). Witness FC-77, a
Hutu officer at the Gitarama military camp and later at army headquarters, stated that no messages were sent by
Kabiligi concerning the recruitment and training of Interahamwe, the deployment of Interahamwe at roadblocks,
or the deployment of Interahamwe in Mburabuturo. See T. 7 September 2006, pp. 75-76; Kabiligi Defence
Exhibit 92 (personal identification sheet). Witness FLA-4, a Hutu officer in stationed in Kigali, said that he
never saw any telegrams from Kabiligi discussing the deployment of Interahamwe at roadblocks or in
Mburabuturo. See T. 6 September 2006 pp. 77, 79; Kabiligi Defence Exhibit 91 (personal identification sheet).
According to Witness RX-6, a Hutu staff member of the Ministry of Defence, no messages were sent by
Kabiligi concerning the recruitment and training of Interahamwe, the deployment of Interahamwe at roadblocks,
or the deployment of Interahamwe in Mburabuturo, and Kabiligi was never present at the Centre de
Transmission. See T. 6 November 2006, pp. 7-10; Kabiligi Defence Exhibit 104 (personal identification sheet).
Witness YC-3, a Hutu staff officer on the army general staff, said that Kabiligi never sent a message concerning
the deployment of Interahamwe at roadblocks. See T. 9 November 2006 pp. 44-45; Kabiligi Defence Exhibit
107 (personal identification sheet).
577
The Prosecution presented several witnesses concerning an alleged distribution of weapons from Camp
Kanombe from 7 April 1994, including Witnesses GS and XAB. In section III.3.5.1 the Chamber has noted the
conflicting nature of the evidence of what transpired at the camp during that period.
578
Bagosora Indictment, paras. 5.3, 5.24, and 5.35; Kabiligi and Ntabakuze Indictment, paras. 5.3, 5.18, 5.26,
5.30; Nsengiyumva Indictment, paras. 5.3, 5.17, 5.28; Prosecution Closing Brief, paras. 1240, 1261, 1338-1355;
pp. 712, 725, 730, 733-734, 781-792, 803-806, 810-811, 849, 861, 867-868.
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508. The Defence teams accept that UNAMIR officials received information from an
informant named Jean-Pierre. However, they dispute his reliability as a source suggesting that
he exaggerated his credentials and was likely an RPF operative intent on providing
misinformation to UNAMIR. Reference is made to Witnesses Jacques Roger Booh-Booh,
Luc Marchal, BRA-1, Joseph Bukeye, ALL-42, as well as Expert Witnesses Strizek, Lugan
and Desouter.579
Evidence
509. In early January 1994, General Roméo Dallaire, the UNAMIR Force Commander,
was informed by Faustin Twagiramungu, the Prime Minister designate for the Broad-Based
Transitional Government, that a member of the Interahamwe’s high command had
information concerning its secret plan to exterminate Tutsis. Twagiramungu expressed
confidence in the information, but told Dallaire that it would need to be verified. On 10
January 1994, Lieutenant-Colonel Frank Claeys and Colonel Luc Marchal, along with two
other UNAMIR officers, met with Jean-Pierre.580
510. Jean-Pierre claimed to be a former Para Commando and previous member of the
Presidential Guard and current top level trainer of Interahamwe. He told UNAMIR that
approximately 1,700 to 1,900 Interahamwe had been trained in the use of military equipment
at Camp Kanombe and other camps around Kigali. Both Lieutenant-Colonel Claeys and
Major Beardsley testified that Jean-Pierre said that Kigali was divided into 20 cells and that
each cell was responsible for exterminating Tutsis registered in their cell, so that 1,000 Tutsis
could be killed in Kigali every 20 minutes. The Interahamwe were preparing lists to assist in
this purpose. During the 10 January meeting, Jean-Pierre also informed UNAMIR of
weapons caches that existed in Kigali and that both the Minister of Defence and Colonel
Bagosora were involved in a plan to distribute weapons to the militiamen. Furthermore, JeanPierre spoke of a plan to get Belgians to overreact to the militia’s provocations in order to
trap them and force UNAMIR to withdrawal.581
511.
Following the meeting, Dallaire was briefed on what had occurred, at which point he
and others from the UNAMIR staff drafted and sent a code cable to UN headquarters in New
York. On 11 January, Special Representative Booh-Booh received a cable from Kofi Annan,
the head of the United Nations Department of Peacekeeping Operations, addressed to both
Booh-Booh and Dallaire, asking them to see President Habyarimana about dismantling the
weapons caches cited by Jean-Pierre. Booh-Booh was also asked to meet with Ambassadors
of Western countries and, if need be, put pressure on President Habyarimana. Annan’s
telegram denied Dallaire permission to inspect the weapons caches cited by Jean-Pierre,
stating that the UNAMIR mandate did not extend far enough for such an operation.582
579
Bagosora Closing Brief, paras. 294-311, p. 344; Kabiligi Closing Brief, paras. 1541-1547; Ntabakuze
Closing Brief, paras. 122-124, 133-136; Nsengiyumva Closing Brief, paras. 287-288, 479-486.
580
Dallaire, T. 20 January 2004 pp. 5-7; T. 22 January 2004 pp. 12; T. 26 January 2004 pp. 19-22.
581
Dallaire, T. 20 January 2004 pp. 7-10, 12, 23, T. 22 January 2004 pp. 14-18, 23-28; T. 26 January 2004 pp.
45-54; Beardsley, T. 4 February 2004 pp. 20-32, 72-76, 86-87; T. 5 February 2004 pp. 70-78; Claeys, T. 7 April
2004 pp. 30-31, 33-35, 50-51, 57-59, 61-62, 72-75; T. 8 April 2004 pp. 6-13, 57-58.
582
Dallaire, T. 20 January 2004 pp. 3-7; T. 22 January 2004 pp. 22-24; T. 26 January 2004 pp. 19-30, 45-46;
Beardsley, T. 3 February 2004 pp. 12-17; T. 4 February 2004 pp. 28-29; T. 5 February 2004 pp. 74-76; Claeys,
T. 8 April 2004 pp. 47-48; Booh-Booh, T. 21 November 2005 pp. 35-45; T. 22 November 2005 pp. 22-25; T. 22
November 2004 pp. 78-81; Ntabakuze Defence Exhibit 27 (Outgoing cable from UNAMIR to UN 11 January
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512. On 12 January 1994, Booh-Booh and Dallaire held a meeting with the Ambassadors
of Belgium, the United States, Germany and the chargé d’affaires of France to discuss the
information provided by Jean-Pierre and Kofi Annan’s instructions on how to proceed with
the matter. After this meeting, Booh-Booh and Dallaire met President Habyarimana. They
informed him that they were in possession of information on weapons caches and would give
him time to dismantle the caches; otherwise, the matter would be referred to the Security
Council. Habyarimana stated that he was unaware of these weapons caches but promised to
pursue the issue. During the meeting with Habyarimana, no mention was made of the list of
Tutsis, the killing of 1,000 Tutsi within 20 minutes or a plan to force the Belgian
peacekeepers to withdraw. Subsequently, four or five MRND officials including the chairman
and secretary-general of the party met with UNAMIR. These officials denied the existence of
the arms caches and said they could not dismantle something of which they were not
aware.583
513. Between January and March 1994, Lieutenant-Colonel Claeys was designated to be
Jean-Pierre’s sole UNAMIR contact and met with him on five occasions. Each meeting was
documented in a series of reports prepared afterwards. During these meetings, Claeys learned
that weapons coming from the army were being transported to caches in police vehicles.
According to Jean-Pierre, most of the weapons that the Interahamwe had were new, but it
was difficult to provide more weapons because of UNAMIR monitoring. Jean-Pierre said that
Interahamwe were using the Motorola system utilised by the Presidential Guard. At nearly
every meeting following the first, he informed Claeys that he was being pressured to speed up
his weapons distribution. Jean-Pierre asked UNAMIR for assistance in relocating him and his
family to a “friendly western country”. Booh-Booh testified that he discussed this possibility
with the Ambassadors of Belgium, the United States, Germany and the chargé d’affaires of
France.584
514. Witness A, a high-ranking Hutu Interahamwe leader, knew Jean-Pierre. He learned
from Robert Kajuga, the president of the Interahamwe, that Jean-Pierre was in charge of
distributing 800 weapons that had been given from the Ministry of Defence to the MRND for
the purpose of defending MRND authorities. Jean-Pierre gave 400 of these weapons to
Kajuga, but then sold the 400 remaining weapons to an individual named Frodebu and
disappeared.585 Witness BY, also a high-ranking Hutu Interahamwe leader confirmed that
Jean-Pierre was involved in distributing weapons and also that there was suspicion that JeanPierre had been diverting weapons.586
515. Dallaire and Beardsley were convinced of Jean-Pierre’s status as a well-placed
Interahamwe because he knew verbatim parts of conversations that Dallaire had with the
president of the MRND. Beardsley and Claeys testified about a videotape viewed by
UNAMIR of an MRND rally where Jean-Pierre was present in a business suit giving
directions with a hand-held radio to uniformed Interahamwe. Dallaire and UNAMIR also
1994, number 79); Ntabakuze Defence Exhibit 23 (Outgoing Cable from United Nations to UNAMIR of 11
January 1994, Number 100).
583
Dallaire, T. 20 January 2004 pp. 4-5, 6-13, 19-20, 40; T. 26 January 2004 pp. 29-30; Claeys, T. 7 April 2004
p. 56; Booh-Booh, T. 21 November 2005 pp. 45-54; T. 22 November 2005 p. 25.
584
Dallaire, T. 26 January 2004 p. 55; Claeys, T. 7 April 2004 pp. 32-37, 50-51, 53, 65-72, 76-86, 94-95; T. 8
April 2004 pp. 11-14, 32, 36, 45-47, 64; Prosecution Exhibit 172 (Reports of meetings with Jean-Pierre).
585
Witness A, T. 1 June 2004 pp. 40-41, 44-45; T. 2 June 2004 pp. 73-76; T. 3 June 2004 pp. 60-61, 73-75, 7881.
586
Witness BY, T. 2 July 2004 pp. 32-35; T. 8 July 2004 pp. 2, 4-9, 17; T. 9 July 2004 pp. 37-38.
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took steps to verify some of the information provided by Jean-Pierre. While Claeys waited in
a car, Jean-Pierre took Captain Amadou Deme, a UNAMIR officer, into an MRND building
and showed him an arms cache containing approximately 50 G3 and AK-47 rifles, along with
ammunition, machetes and grenades. Jean-Pierre also drove with Claeys around Kigali and
pointed out three other locations allegedly holding weapons caches. Claeys did not personally
observe the arms in these locations.587
516. There is evidence which suggests that the information Jean-Pierre provided to
UNAMIR concerning his background was not correct. For example, Witnesses A and BY
identified Jean-Pierre as an MRND driver and said that he served as a liaison between the
MRND party and the Interahamwe. Witness A could not remember that Jean-Pierre received
commando training, and Witness BY did not recall that Jean-Pierre was ever a member of the
Presidential Guard or even the Rwandan army. Joseph Buckeye, Jean-Pierre’s former
employer, identified Jean-Pierre as a man named “Turatsinze”. He confirmed that Jean-Pierre
had a connection with MNRD party headquarters and Twagiramungu, but refuted JeanPierre’s contention that he had military training.588
517. Marchal stated that he could not exclude the possibility that the introduction of JeanPierre to UNAMIR was part of a manipulation strategy by Twagiramungu to embarrass
President Habyarimana. Alternatively, Marchal speculated that Jean-Pierre could have been
an RPF agent whose information was part of RPF machinations.589 Witness ALL-42, a
member of the RPF, testified that Jean-Pierre was an RPF agent who had infiltrated the
Interahamwe. The witness asserted that Jean-Pierre’s actions were part of a plan to
manipulate UNAMIR. Dallaire also conceded that there was a risk that the information
provided by Jean-Pierre had been manipulated, but felt that in context, there were reasonable
grounds to rely on the information.590
Deliberations
518. It is not contested that, in early January 1994, Faustin Twagiramungu introduced
UNAMIR to Jean-Pierre, an individual with close connections to the MNRD and the
Interahamwe. He met with Claeys on five occasions from January to March 1994. He also
showed UNAMIR officers the locations of several weapons caches, one of which was
personally inspected by Captain Deme. The evidence of Witnesses A and BY as well as video
footage of him at an Interahamwe rally demonstrate that he was a well-placed member of the
organisation. Other evidence from Witnesses A, BY, Buckeye, ALL-42 and Marchal raises
questions about the true nature of his identity, his involvement within the Interahamwe power
structure and his motivations for providing information to UNAMIR.
519. When looking at how the events unfolded in Kigali after the death of President
Habyarimana, the Chamber notes the similarity of how they corresponded to Jean-Pierre’s
587
Dallaire, T. 20 January 2004 pp. 6-9, 40; T. 22 January 2004 pp. 18, 26; T. 26 January 2004 pp. 49-55;
Beardsley, T. 3 February 2004 pp. 15-16; T. 4 February 2004 pp. 23-27, 71-76; T. 5 February 2004 pp. 71-74,
76-78; Claeys, T. 7 April 2004 pp. 31-37, 50-51, 53, 65-72 76-86; T. 8 April 2004 pp. 4-8, 14-15, 22-23, 37-39,
45-46.
588
Witness A, T. 3 June 2004 pp. 74-75; T. 9 July 2004 pp. 37-38; Buckeye, T. 8 September 2006 pp. 23-28, 32,
34.
589
Marchal, T. 30 November 2006 p. 32.
590
Dallaire, T. 22 January 2004 pp. 10-11; Witness ALL-42, T. 9 November 2006 pp. 1-4; Marchal, T. 30
November 2006 pp. 31-32; T. 4 December 2006 pp. 9, 23; T. 6 December 2006 pp. 24-27.
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information. His account could therefore be true. This is particularly so when viewed together
with an unsigned letter of December 1993 supposedly from a Rwandan military officer to
Dallaire outlining President Habyarimana’s “Machiavellian plan” to commit massacres
throughout the country and commit targeted assassinations of certain political officials in
order to incite the RPF to violate the cease-fire agreement. The letter, however, is
anonymous, disputed and lacks detail as to which officers formed part of the purported
plan.591 Furthermore, the evidence based on Jean-Pierre’s information is entirely second or
third-hand, and his whereabouts and the circumstances concerning his disappearance are
unknown. Notably, Witnesses A and BY, who were both well placed Interahamwe officials,
did not corroborate Jean-Pierre’s information about the plan to kill Tutsis. These concerns
warrant considerable caution in relying on this main aspect of Jean Pierre’s information.
520. The substance of Jean-Pierre’s information, described above, was documented by
Claeys and others in reports or cables prepared after each meeting. Certain aspects of his
information were verified by UNAMIR and other sources. For example, Claeys and Deme
both confirmed the existence of at least one weapons cache in Kigali. The others could not be
verified due to external constraints placed on UNAMIR discussed above. Furthermore,
Witnesses A and BY also confirmed that Jean-Pierre played a role in the distribution of
weapons to Interahamwe. In the Chamber’s view, this evidence taken together demonstrates
that the Interahamwe had at least one weapons cache with firearms and traditional weapons
in early 1994. However, the existence of a weapons cache is not inconsistent with civil
defence preparations, which would have had to be kept secret, in view of the ongoing peace
process. Furthermore, Witness A and BY’s suggestion that Jean-Pierre was involved in
diverting weapons raises questions about his motivations and the reliability of some of the
specific details of his information.
521. In addition, the Chamber has heard ample evidence considered above about the
training of civilians prior to April 1994, which corroborates to some extent Jean-Pierre’s
information that members of the Interahamwe were trained. It cannot be excluded that the
training of civilians and the distribution of weapons prior to 6 April 1994 were part of a
larger civilian self-defence strategy in response to the fear of resumed hostilities (III.2.6.2).
There is also corroboration for Jean-Pierre’s information concerning the preparation of lists
by members of the Interahamwe (III.2.5.4). However, the other information available
indicates that these lists were not focused exclusively on ethnicity and instead were directed
more generally at suspected opponents of the regime.
522. In sum, the information provided by Jean-Pierre lends some credence to the fact that
the Interahamwe received training and had secret caches of weapons. However, in light of the
concerns raised above, the Chamber is hesitant to rely on his assertion that the purpose of
these activities was to kill Tutsis, as such.
591
Prosecution Exhibit 169 (anonymous letter to General Dallaire, UNAMIR Force Commander, 3 December
1993). In an interview of 22 December 1994 with Belgian officials, the Rwandan Minister of Justice
acknowledged familiarity with the letter. He suggested that it was written by the political opposition as an
attempt to manipulate UNAMIR in order to see its reaction. See Kabiligi Defence Exhibit 13 (Auditorat
Militaire près le Conseil de Guerre à Bruxelles, 5 January 1995), pp. 2-3.
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2.7
Zero Network
Introduction
523. The Prosecution alleges that the four Accused and other senior military and political
figures in Rwanda were members of a secret group called the “Zero Network”. It was closely
linked to other clandestine groups and used a secret radio network. According to the
Prosecution, the Accused’s purported affiliation to the Zero Network is evidence of
conspiracy and planning. Reference is made primarily to Witness ZF but also to the more
general evidence of Expert Witnesses Alison Des Forges and Filip Reyntjens.592
524. The Kabiligi, Nsengiyumva and Ntabakuze Defence contend that the Accused lacked
proper notice of Witness ZF’s allegations. All four Defence teams argue that the evidence
concerning the Zero Network lacks credibility. The Nsengiyumva Defence, in particular,
points to Witnesses BDR-1, LM-1, NR-1, RO-1 and RAS-1. It also takes issue with the
timing of the disclosure of Witness ZF’s pre-trial statement and the special protection
measures put in place for him.593
Evidence
Prosecution Witness ZF
525. Prosecution Witness ZF, a Hutu who worked at the Butotori military training camp in
Gisenyi prefecture, testified that his work afforded him access to senior military officials,
including Nsengiyumva and Bagosora. At the end of 1992, Lieutenant Bizumuremyi, who
was involved in intelligence matters in the Gisenyi operational sector, informed him about the
existence of a clandestine radio network, called “Zero Network”.594 The network was used by
a group of prominent military and civilian individuals who had some form of trust between
them and did not want their activities to be monitored. In particular, it was used to transmit
the orders of the “Dragons”, a group of persons who were in charge of death squads. The
Dragons were also referred to as the “Abakozi”. Other secret groups affiliated to this group
were the AMASASU, and the “Friends of the Alliance”. According to Bizumuremyi, the
Zero Network had an extensive membership of at least 76 members, including Bagosora,
592
Bagosora, Nsengiyumva as well as Kabiligi and Ntabakuze Indictments paras. 1.13-1.16 (the Zero Network
is not explicitly mentioned); Prosecution Closing Brief, paras. 37, 492, 766-767, 1000, 1001(h), pp. 761, 832.
The Indictments also refer to the use of a “separate radio network” in 1994. This is not charged under count 1
(conspiracy), but count 2 (genocide). It is discussed with the events in Kigali after 6 April (III.3.5.9).
593
Bagosora Closing Brief, paras. 550-556, fn. 1736; Kabiligi Closing Brief, paras. 110, 697-699, 701-713,
1526-1528, pp. 593, 597; T. 1 June 2007 p. 58 (Kabiligi); Ntabakuze Closing Brief, paras. 666-671, 712-715;
Nsengiyumva Closing Brief, paras. 1098-1113, 2056-2059, 2065, 2087, 2142, 3112, 3116.
594
Multiple spellings of “Bizumuremyi” have been used in the transcripts, such as “Bizimuremye”,
“Bizumuremye” and “Biziremye”. The Chamber has elected to use the spelling in Nsengiyumva Defence
Exhibit 16 (Situation Officers of the Rwanda Army on 5 March 1994). The witness stated that Lieutenant
Bizumuremyi held the position of S2 officer in charge of intelligence during part of his time in Gisenyi. During
Nsengiyumva’s tenure at Gisenyi military camp, Bizumuremyi was responsible for coordination between
Nsengiyumva and the Gisenyi militia. See T. 27 November 2002 pp. 14-15; T. 28 November 2002 p. 10.
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Kabiligi, Ntabakuze and Nsengiyumva. The witness said that Bizumuremyi received the list
of names from either Colonel Bahufite or Nsengiyumva.595
526. Witness ZF heard that the Zero Network had a main station in Kigali and regional
transmission centres located throughout the country. He was told that the station for Gisenyi
prefecture was located in Nsengiyumva’s home. As Bizumuremyi was a close friend, he
trusted the witness with this secret information.596
Prosecution Expert Witness Alison Des Forges
527. Alison Des Forges explained that the term “Zero Network” was introduced into
Rwandan society through an open letter of 15 August 1992 from Christophe Mfizi to the
MRND party, in which he resigned from the party. His letter denounced the corruption
surrounding President Habyarimana and described the Zero Network as an organisation
carrying out a number of immoral and illegal acts to keep President Habyarimana in
power.597
Prosecution Expert Witness Filip Reyntjens
528. Filip Reyntjens testified that the “Zero Network” was a term coined by Christophe
Mfizi to describe a group of influential persons, without permanent membership, membership
cards or fixed leadership. When Reyntjens in October 1992 reported the findings of a Belgian
fact-finding mission to Rwanda, five separate and unidentified sources indicated that
Bagosora and Nsengiyumva were members of the Zero Network, or death squads. Two of the
sources had been associated with the network. The aim of this group was to destabilise the
country and the democratisation process.598
Prosecution Witness Roméo Dallaire
529. General Dallaire stated that he was told by informants, prior to 6 April 1994, that
Bagosora was at the heart of various organisations, such as “Opération Zero”, the Zero
Network and death squads.599
595
T. 26 November 2002 pp. 94-95; T. 27 November 2002 pp. 8-13, 33-37, 62-67; T. 28 November 2002 pp.
23-25; T. 3 December 2002 pp. 62-64; T. 4 December 2002 pp. 59-61, 94-99; T. 5 December 2002 pp. 3-9.
Witness ZF’s father was a Hutu, but the witness was raised as a Tutsi by his mother’s family. See T. 27
November 2002 p. 13.
596
T. 27 November 2002 pp. 34-35; T. 28 November 2002 p. 25.
597
T. 11 September 2002 p. 61; Nsengiyumva Defence Exhibit 104 (Le Reseau Zero, letter of 15 August 1992
from Christophe Mfizi to the MRND party). Mfizi had been head of the national information service
(ORINFOR) and had been replaced by Ferdinand Nahimana. Des Forges states in her book that the Zero
Network was comprised of Habyarimana’s closest allies, who Mfizi denounced as having taken control of the
state. Reference is also made to a report from the International Commission of Inquiry in 1993, which concluded
that the Zero Network was linked to the highest circles of power in Kigali and was responsible for many attacks.
See Prosecution Exhibit 3 (Alison Des Forges, Leave None to Tell the Story (1999)), pp. 44, 58 and Prosecution
Exhibit 27 (Report of the International Commission of Investigation on Human Rights Violations in Rwanda
since October 1, 1990 (1993)).
598
T. 16 September 2004 pp. 39 (his mentioning of “relays”, does not, according to the context, refer to radio
transmissions), 57-58; Prosecution Exhibit 303 (Filip Reyntjens: Information on the “Escadrons de la Mort”
[Death Squads], dated 9 October 1992, included in a Pro Justitia statement to Belgian authorities of 18 October
1996).
599
T. 19 January 2004 pp. 56-57; T. 21 January 2004 pp. 71-72. Dallaire confirmed that he had numerous
informants who told him about the Zero Network, including, but not limited to, the OAU Secretary-General and
his representative, foreign ambassadors and military attachés.
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Bagosora
530. Bagosora denied being a member of death squads, the Dragons or the Zero Network.
He rejected the allegation in Reyntjens’ 1992 report that he was a member of the death
squads. The International Commission of Inquiry Report of 1993, which was set up to
investigate human rights violations in Rwanda since October 1990, did not mention his name
in connection with death squads or the Zero Network.600
Nsengiyumva
531. Nsengiyumva denied having a separate radio transmission centre in his home and
added that his only knowledge of the Zero Network came from Christophe Mfizi’s open letter
of 15 August 1992 to the MRND party. That letter used the phrase “Zero Network” to
describe President Habyarimana’s inner circle that were stifling progress within the MRND
party but did not mention any particular individual affiliated with the network.601
Bagasora Defence Expert Witness Eugène Shimamungu
532. Eugène Shimamungu, an expert in Kinyarwanda and French linguistics, testified that
the term “Zero Network” was invented by Christophe Mfizi, the former director of
information in the Rwandan information authority, in a document published in August 1992.
The document named the members of this group as the powers surrounding Habyarimana.
The witness did not know if this was an organised group.602
Nsengiyumva Defence Witness RAS-1
533. Witness RAS-1, a Hutu, was an officer in the gendarmerie in 1994. He said that
Bizumuremyi was stationed at the Kacyiru Gendarmerie Camp with him until at least January
1994 and was not stationed in Gisenyi. He had read Christopher Mfizi’s letter about the Zero
Network. The term was used to describe a group of people close to President Habyarimana
who prevented him from being objective.603
Kabiligi Defence Witness Luc Marchal
534. Colonel Marchal stated that he was informed by the intelligence service of the
Belgian army that the Zero Network conducted the “dirty tasks” of the government and that
Bagosora was the “brains” of the group. At the time of the assassination of Gatabazi on 21
February 1994, he was of the opinion that his elimination had been carried out by the Zero
Network. Persons working in UNAMIR and media reports also shared the opinion that this
had been the work of a death squad.604
Defence Witnesses BDR-1, LM-1, NR-1, RO-1 and LIG-1
535. Witnesses BDR-1, LM-1, NR-1, RO-1 and LIG-1, all Hutus, were familiar with
Witness ZF and his work in the Gisenyi operational sector. The first four witnesses described
the Zero Network as a rumour. In particular, Witness NR-1, an alleged member of the
network, testified that he was not affiliated or familiar with a secret radio network. The
600
T. 1 November 2005 p. 61; T. 10 November 2005 pp. 75-76.
T. 6 October 2006 p. 36.
602
T. 6 June 2006 pp. 58-59.
603
T. 13 October 2005 pp. 65, 71-72; T. 14 October 2005 pp. 7-10; Nsengiyumva Defence Exhibit 100
(personal identification sheet).
604
T. 4 December 2006 pp. 15, 21-22. Félicien Gatabazi was the Minister of Public Works and the head of the
PSD party. See Prosecution Exhibit 3 (Alison Des Forges, Leave None to Tell the Story (1999)), p. 163.
601
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witnesses also indicated that Lieutenant Bizumuremyi, the source of Witness ZF’s
information in 1992, was not posted to Gisenyi operational sector until early 1994. Witnesses
BDR-1 and LM-1, who supervised Witness ZF at various periods, disputed his direct access
to high-ranking military authorities, such as Nsengiyumva and Bagosora.605
Deliberations
536. The evidence raises questions about the existence of Zero Network, its activities,
including whether it used a secret radio network, and its membership. It seems undisputed
that the term “Zero Network” was introduced in Rwanda through Christophe Mfizi’s open
letter of 15 August 1992 to the MRND. In his letter, he tenders his resignation from the party,
citing the dominance of the Zero Network within the MRND as the primary reason. He
describes this network as a secret clique, which stood out as the “leading defender” of
President Habyarimana, thereby representing a barrier to change. Its members are referred to
as a “hardcore of people”, who pervade the “entire national life at the political, military,
financial, agricultural, scientific, scholarly, family and even religious levels”.
537. Des Forges testified that the Zero Network described a group of people performing
illegal or immoral acts to keep President Habyarimana in power. According to the report
written by Reyntjens in 1992, the Zero Network was affiliated to death squads or groups of
individuals actively trying to sabotage the political process and impeding the Arusha peace
process. The international commission of investigation on human rights abuses also described
its activities.606 The Chamber notes that the term “Zero Nework” was coined by Mfizi and not
used by persons within this group.607 Irrespective of its name, the Chamber finds that there is
considerable evidence of a group or network, close to President Habyarimana, which
exercised influence within Rwanda.
538. There is limited information about the activities of the group but the indirect evidence
indicates that it instigated violence.608 The question arises whether it operated a secret radio
network. Christophe Mfizi’s letter did not mention this, nor did the expert witnesses or
Dallaire. Only Witness ZF provided evidence to this effect. The witness referred to this group
of prominent military and civilian persons, as the “Dragons”, “Abakozi”, AMASASU, and
605
Witness BDR-1, T. 14 April 2005 pp. 64-65, 68, 76-80, 82-86, 89, 92; Nsengiyumva Defence Exhibit 72
(personal identification sheet); Witness LM-1, T. 1 March 2006 pp. 34-41, 64; Nsengiyumva Defence Exhibit
144 (personal identification sheet); Witness NR-1, T. 23 November 2005 pp. 3, 6, 12-14; Nsengiyumva Defence
Exhibit 121 (personal identification sheet); Witness RO-1, T. 27 July 2005 p. 19-20; Nsengiyumva Defence
Exhibit 98 (personal identification sheet). Witness LIG-1, T. 13 April 2005 pp. 61, 63; Nsengiyumva Defence
Exhibit 69 (personal identification sheet). Witness LIG-1 did not testify about the Zero Network.
606
Prosecution Exhibit 27 (Report of the International Commission of Investigation on Human Rights
Violations in Rwanda since October 1, 1990 (1993), p. 44 of the English version: “The attacks against
communities or individuals, the creation of an atmosphere of fear and intimidation through the militias and the
discourse of hatred and suspicion all recall a level of coordination and organization at the top. Those leading the
operations, who are known collectively as the ‘Zero network’, were able to direct civilians, military and judicial
authorities and the militias. They determined the ideological bent, the choice of means, and the selection of
targets for the abuses”).
607
See, e.g., Reyntjens, T. 16 September 2004 pp. 57-58 (“…[Mfizi] explains why he coins that group Zero
Network. But it is certainly, not the members of the zero network and they would, anyway, say that such a thing
never existed”).
608
Marchal heard that the Zero Network was responsible for the assassination of Gatabazi. There is other
evidence to suggest that this was carried out by the RPF. See Ruzibiza, T. 9 March 2006 p. 35; Witness BRA-1,
T. 6 April 2006 pp. 20-23; Bagosora, T. 1 November 2005 pp. 61-63.
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the “Friends of the Alliance”.609 According to Witness ZF, these persons used this radio
network to secretly conduct their activities. Although mostly vague about what they were
doing, he did state that the Dragons, who used the radio network, were in charge of death
squads.
539. The Chamber accepts that Witness ZF held a sensitive position within the Gisenyi
operational sector from the end of 1990 through July 1994. This is corroborated by Witnesses
BDR-1, LM-1, NR-1 and RO-1. In particular, Witnesses BDR-1 and LM-1, who held senior
military and civilian positions, were tasked with intelligence matters and testified about their
interactions with him. Witness ZF was therefore in a position to interact with individuals
responsible for military intelligence in the area.
540. However, Witness ZF did not have any direct knowledge about the use of the Zero
Network as a clandestine communications network. He did not have access to it and
purportedly learned about the network and its members from Lieutenant Bizumuremyi, who
in turn received this information from Nsengiyumva or Bahufite. The witness’s evidence was
frequently speculative.610 This is problematic, not only because the witness’s basis of
knowledge is second or third hand, but also in view of the corroborated Defence evidence,
suggesting that Bizumuremyi was not stationed in Gisenyi in 1992 when he according to
Witness ZF revealed this information.611 The Chamber cannot exclude that the “Zero
Network” used a clandestine radio communications but finds the evidence to be
inconclusive.612
541. As regards the membership of the “Zero Network”, the Chamber notes that Alison
Des Forges did not identify individuals associated with this group but asserted that its
membership came from the highest echelons of the Habyarimana regime. Luc Marchal stated
that Belgian military intelligence had identified Bagosora as the central figure in the Zero
Network. Information given to Dallaire in 1993-94 also included his name. In Reyntjens’
1992 Report, five independent sources, two of whom had been associated with the group,
identified Bagosora and Nsengiyumva as members of the Zero Network. However, none of
the four accused were mentioned by the international commission of investigation in March
609
The allegations relating to “AMASASU” are dealt with in section III.2.8.
See, e.g., Witness ZF, T. 27 November 2002 p. 35 (“No, Counsel, I don’t know where the station was, but I
heard that the mother station existed and I believed it was true because you cannot have radios on a regional
basis without having another -- a mother station on a national level. Q. Do you know within what organisation
the mother station would have been with? A. Your Honour, I wouldn’t be able to say what organisation, but I
believe it was an organisation. There was someone at the head of the organisation who was in charge of the
centre of the radios and there was, most likely, an operator who had been assigned there by the person in charge
of the network.”); T. 28 November 2002 pp. 23-25, 27 (“Q. And was the zero network an official military
network? A. No, Counsel. I don’t know how to describe this network, but this network was not official. … Q.
Do you have any idea what kind of information was transmitted on the network, the zero network? A. Counsel, I
can speak generally. Information on this was confidential information which dealt with the activities and the
program and projects of the dragon group. … Q. And did you ever see that radio? A. No, Counsel.”); T. 4
December 2002 p. 61 (“I did not have the frequency of the Zero Network.”).
611
See also Nsengiyumva Defence Exhibit 15 (Situation Officers of the Rwandan Army on 1 January 1993).
This exhibit does not refer to Bizumuremyi. However, he is listed as a gendarme in Nsengiyumva Defence
Exhibit 16 (Situation Officers of the Rwanda Army on 5 March 1994). Nsengiyumva Defence Exhibit 105
(Report of meeting on 18 January 1993) lists Bizumuremyi as a participant at a meeting of gendarmerie officers
chaired by the Gendarmerie Chief of Staff.
612
When reaching its conclusion, the Chamber has taken into account the alleged use of a “separate radio
network” in 1994 (III.3.5.9).
610
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1993, which pointed to other prominent figures in Habyarimana’s circle as members of this
group.613 In a statement given to the Prosecution in 1998, Witness ZF did not mention the
membership of the Zero Network but identified individuals who he had been told that he
could communicate with and trust. On this trust list, he only identified Kabiligi and
Nsengiyumva.614 However, during his testimony, Witness ZF identified 76 members of the
Zero Network, including all four Accused.
542. The Chamber finds it clear that there is insufficient evidence to link Ntabakuze and
Kabiligi to this network. There are more indications about Bagosora and Nsengiyumva, but
this evidence is general or hearsay. The Chamber has taken into account that it is difficult to
provide direct evidence about a clandestine group, which allegedly performed illegal
activities. On the other hand, a finding based on inferences about membership in such a
loosely knit network, risks giving undue weight to rumours and speculation. Having assessed
the totality of the evidence, the Chamber does not find it proven beyond reasonable doubt that
Bagosora and Nsengiyumva were members of the Zero Network and operated a secret radio
network.
543. In their Closing Briefs, the Kabiligi, Ntabakuze and Nsengiyumva Defence teams
objected to the evidence of Witness ZF relating to the “Zero Network”, arguing that it was
not included in their respective indictments, that this prejudiced their ability to properly
prepare for cross-examination, and that the evidence should be excluded for lack of notice.615
The Chamber rejected similar submissions during trial and in light of the above reasoning
does not consider it necessary to revisit this issue.616
2.8
AMASASU
Introduction
544. The Indictments allege that “prominent civilian and military figures” who shared an
“extremist Hutu ideology” worked together from as early as 1990 to pursue a “strategy of
ethnic division and incitement to violence”. Specifically, the Prosecution argues that the
Accused were members of a clandestine group called the AMASASU whose activities
613
According to the report, witnesses frequently identified Colonel Elie Segatwa, Protais Zigiranyirazo, Léon
Mugesera, Mathieu Ngirumpatse, Alphonse Ntirivamunda, Joseph Habiyambere, Come Bizimungu and Pascal
Simbikangwa as members of the Zero Network but this enumeration was not exhaustive. See Prosecution
Exhibit 27 (Report of the International Commission of Investigation on Human Rights Violations in Rwanda
since October 1, 1990 (1993), p. 83 of the French version, which is more complete than the English summary.
614
Witness ZF’s statement to the Prosecution refers to the “Secretaire Particulier” or “Private Secretary” of the
Minister of Defence which appears to be different from the Directeur de Cabinet, the post that Bagosora held.
See Nsensiyumva Defence Exhibit 14A (French original), p. 6 and 14B (English translation), p. 4. But even
assuming that this is meant to be a reference to Bagosora, the Chamber’s finding (below) would remain the
same.
615
Kabiligi Closing Brief, paras. 701-713; Ntabakuze Closing Brief, para. 2393; Nsengiyumva Closing Brief,
paras. 1098-1113.
616
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, para. 19;
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 11-14; Decision on
Nsengiyumva Motion for Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September 2006,
paras. 33-34.
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allegedly included plotting the genocide and distributing weapons to execute it. Reference is
made to Witnesses XXQ, ZF and DCH as well as Expert Witness Alison Des Forges.617
545. The Kabiligi, Ntabakuze and Nsengiyumva Defence teams submit that the
Prosecution’s evidence concerning the AMASASU falls outside the scope of the Indictment
and cannot provide a basis for conviction. The Kabiligi and Ntabakuze Defence also contend
that the Prosecution has led no evidence demonstrating criminal conduct by the AMASASU.
All Defence teams argue that the Prosecution’s evidence is unreliable and indirect. They rely
primarily on the testimony of the Accused, Witness NATO-1 as well as Expert Witnesses
Helmut Strizek and Eugène Shimamungu.618
Evidence
Prosecution Expert Witness Alison Des Forges
546. Alison Des Forges, an expert in Rwandan history, testified about the origins and
purpose of the AMASASU, including two letters emanating from the organisation. In
particular, she referred to a letter of 20 January 1993, signed by Commander Mike Tango of
the supreme counsel of the AMASASU. The term is an acronym, defined in the letter as
Alliance des Militaires Agacés par les Séculaires Acts Sournois des Unaristes.619 She noted
that it is also a word in Kinyarwanda that means “bullets, or the report of a weapon which has
been fired”.620 The letter was initially provided to Des Forges by human rights colleagues in
late 1993 or early 1994. She was unaware of its author but testified that former Minister of
Defence, James Gasana, had linked Colonels Nsengiyumva, Bagosora, Nsabimana and others
to the group. Gasana had fled based on threats from the AMASASU.621
547. Des Forges emphasised that the 20 January 1993 letter contains views in accord with
those expressed by various important military officers and political leaders, including Leon
Mugesera, Bagosora, Nsengiyumva and Jean-Bosco Barayagwiza. It links the RPF with the
Union Nationale Rwandaise (UNAR), suggesting the shared intent to restore the Tutsi
monarchy and its abuses. The letter supports the concept of “legitimate self-defence” – that
the people have the right to take the law into their hands. According to Des Forges, this
concept had been espoused by Mugesera two months before the letter. It also mentions as one
of its objectives to detect and destroy hypocritical politicians who are attempting to maintain
or accede into power fraudulently through the war and threatens to “strike without pity those
who have sold our country”. Des Forges testified that these expressions mirror sentiments and
617
Bagosora Indictment, paras. 1.12-1.16; Kabiligi and Ntabakuze Indictment, paras. 1.13-1.16; Nsengiyumva
Indictment, paras. 1.13-1.16; Prosecution Closing Brief, paras. 37, 50-51, 783-786, 1001(i), 1493, 1571(b),
1574; T. 1 June 2007 pp. 21, 38-40.
618
Bagosora Closing Brief, paras. 1456, 1515, 1729, 2174-2175, 2185-2187; Kabiligi Closing Brief, paras. 110111, 697, 700-713, 1029-1034, 1079, 1543, pp. 593, 597-598; Ntabakuze Closing Brief, paras. 197-198, 483,
654-661, 666-701, Annex pp. 29, 30, 42; Nsengiyumva Closing Brief, paras. 52(e), 1105-1115, 1863, 18691872, 3002, 3010-3011, 3126-3127. See also T. 28 May 2007 pp. 29-30, 36-37 (Kabiligi); T. 29 May 2007 p. 62
(Bagosora); T. 31 May 2007 pp. 36-38 (Nsengiyumva).
619
Prosecution Exhibit 30.1. The French expression means “alliance of soldiers irritated by the underhanded
acts of those belonging to the UNAR party”. UNAR was a royalist Tutsi party that gained prominence in the late
1950s. See Prosecution Exhibit 2A (Expert Report of Alison Des Forges), p. 7.
620
T. 17 September 2002 p. 22.
621
Id. pp. 22-26, 30-32; T. 24 September 2002 pp. 84-88; T. 18 November 2002 pp. 29-33, 91-93, 114.
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language used in a letter written by Nsengiyumva on 27 July 1992.622 She also suggested that
the 20 January 1993 letter portrays the conflict as one based on the Hutu-Tutsi ethnic divide
rather than political divisions, paralleling themes from a document written by Bagosora in
1995 while in Yaoundé, Cameroon.623
548. A second, undated document signed “For the AMASASU Supreme Council,
Commander Tango Mike” and entitled “Note to the MRND and the CDR” was also
introduced through Des Forges. She became aware of it shortly before appearing to testify. In
her view, it appears to have been written after the 20 January 1993 document as it notes that
the organisation is growing satisfactorily. The letter seeks support “especially in the operation
to eliminate RPF accomplices who are working here on the inside”, to counter “certain bitter
opposition leaders”, and to spread the AMASASU message.624
549. Des Forges has written that “Commandant Mike was a pseudonym, of course, but it
seems likely that he is either Colonel Théoneste Bagosora or someone working closely with
him”.625 She recognised that the AMASASU letters could be used to manipulate opinion, but
was of the view that Gasana’s conviction that the AMASASU existed made it “very likely, if
not certain, that such an organisation existed”.626
Prosecution Expert Witness Filip Reyntjens
550. Filip Reyntjens, an expert in Rwandan history, testified that Bagosora was one of a
few officers alleged to have authored a letter dated 20 January 1993, signed under the title
AMASASU, which expressed opposition to the Arusha Accords and the threat of
“monarchist Tutsi”. He noted that the 20 January 1993 date fell a couple of days after the
second meeting in Arusha on the protocol of power sharing where Bagosora allegedly said he
was preparing for the apocalypse or that the power sharing would cause an apocalypse in
Rwanda.627 Reyntjens noted that the letter was signed under a pseudonym.628
Prosecution Witness XXQ
551. Witness XXQ, a Hutu officer in the gendarmerie, first learned of the AMASASU in
July 1992 from a letter challenging the Arusha Accords. He was also told about the group by
a friend, Lieutenant Bizumuremyi, who was responsible for recruiting junior officers to the
AMASASU. Bizumuremyi said that the AMASASU consisted of senior officers living in
Kigali, including each of the accused, as well as members of the MRND who planned the
genocide. Bagosora was the suspected leader.629
622
Prosecution Exhibit 21 (Letter of 27 July 1992 from Nsengiyumva to the Rwandan Army Chief of Staff
entitled “Mood of the Military and Civilians”). See also Des Forges, T. 17 September 2002 pp. 29-33, 42, 50
(noting that the English text had been prepared from an incomplete version of the French document and reading
from a complete French version); T. 24 September 2002 pp. 84-88.
623
T. 17 September 2002 pp. 41-43, 49-51, 79-81; T. 18 November 2002 pp. 100-114.
624
T. 17 September 2002 pp. 26-29; T. 24 September 2002 pp. 85-87; Prosecution Exhibit 30 (“Note au
M.R.N.D et à la C.D.R.”, undated).
625
Prosecution Exhibit 3 (Alison Des Forges, Leave None to Tell the Story (1996)), p. 104.
626
T. 24 September 2002 p. 88; T. 18 November 2002 p. 114.
627
The Chamber has not found that Bagosora made the “apocalypse” statement as alleged by the Prosecution
(III.2.3).
628
T. 16 September 2004 pp. 6-7, 10, 21-22, 25, 27-28. The Prosecution Closing Brief does not refer to
Reyntjens in connection with the AMASASU.
629
T. 11 October 2004 pp. 28-29, 31-32; T. 13 October 2004 pp. 3-17; Prosecution Exhibit 316 (personal
identification sheet). Witness XXQ confirmed a prior statement given to Rwandan judicial authorities that
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552. The AMASASU distributed weapons even if such acts were not approved by the
Ministry of Defence. Witness XXQ also suggested that the AMASASU was behind
massacres in the Kayove-Ngororero, where the witness was deployed in 1993.630 Based on
conversations on 8 April 1994 with Major Kinyoni, a G-2 in the gendarmerie and a member
of the AMASASU, who described a meeting that occurred at ESM that day, the witness
discerned that the AMASASU was behind the installation of Sindikubwabo as President and
Kambanda as Prime Minister.631
553. The basis of Witness XXQ’s belief that Nsengiyumva participated in the AMASASU
comes from a letter that the Accused had written on 27 July 1992 to army staff
headquarters.632 This letter explained that most of the civilian and army population were
against the Arusha Accords. It did not contain the term AMASASU although the witness
emphasised that it shared the group’s ideology. Additionally, James Gasana, then Minister of
Defence, wrote a letter to President Habyarimana on 26 July 1992 and informed him that
senior officers were members of the AMASASU and that he was receiving insulting phone
calls from them. The witness was given both letters. Colonel Sagatwa, the head of security
for the President, assigned him to conduct an investigation into the accuracy of
Nsengiyumva’s letter, and he submitted his findings in a report on 3 August 1992. The
investigation revealed that Nsengiyumva’s characterisation of the civilians’ and front line
soldiers’ reactions to the Arusha Accords were incorrect. Civilians were tired of the ongoing
fighting and soldiers on the frontline were prepared for a merger. Military officers, however,
were concerned about losing their posts. James Gasana gave a speech over Radio France
International a month after he fled Rwanda in 1993, indicating that he left because the
AMASASU “wanted to kill” him.633
554. Witness XXQ also identified a document attributed to the AMASASU that was
directed to the MRND and CDR. The witness observed the document while in Kigali
gendarmerie squadron office in October 1992. He was told to remain cautious and that there
was a need to continue collecting information to prevent destablisation within the country.
The witness saw the 20 January 1993 letter in early April 1993.634
Bizumuremyi had told him that Bagosora, Kabiligi, Colonel Rusatira, Colonel Serubuga, Colonel Gasake, Major
General Nsabimana, Colonel Rwarakabije, Major Gakara, Major Stanislas Kinyoni, Colonel Tharcisse Renzaho,
Major Nyamuhimba, and Colonel Laurent Munyakazi were members of the AMASASU. T. 13 October 2004 p.
14; Kabiligi Defence Exhibit 82 (statement of 30 October 2000), p. 5.
630
It appears that Witness XXQ is referring to massacres that occurred in December 1992 based on a statement
he gave to Rwandan judicial authorities. See Kabiligi Defence Exhibit 82 (statement of 30 October 2000), p. 1,
where he states that “[f]rom January to March 1993, the Rwandan government selected me to go and ensure the
safety of the victims of the massacres that took place in Ngororero and Kayove”.
631
T. 11 October 2004 p. 31; T. 12 October 2004 pp. 17-20; T. 13 October 2004, pp. 19-20, 29-33, 47-50, 5456, 63-74.
632
During Witness XXQ’s examination-in-chief, the Chamber precluded the Prosecution from leading evidence
on Nsengiyumva’s involvement in the AMASASU based on lack of notice. This arose as the witness testified
regarding the 27 July 1992 letter from Nsengiyumva. See T. 11 October 2004 pp. 32-38, 42; T. 13 October 2004
pp. 4-5; Prosecution Exhibit 21 (Letter of 27 July 1992 from Nsengiyumva to the Rwandan Army Chief of Staff
entitled “Mood of the Military and Civilians”). Notwithstanding, Defence counsel, after consultation with each
other, cross-examined Witness XXQ regarding the contents of Nsengiyumva’s letter as it related to the
AMASASU. See T. 13 October 2004 pp. 4-7. The Prosecution was not allowed to re-examine Witness XXQ on
the basis of this letter. See id. pp. 97-101.
633
Id. pp. 3-17.
634
Id. pp. 96-97; Prosecution Exhibit 30 (“Note au M.R.N.D et à la C.D.R.”, undated); Prosecution Exhibit 30.1
(Letter of 20 January 1993 from the AMASASU to the President of the Republic).
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Prosecution Witness ZF
555. Witness ZF, a Hutu who worked at the Butotori military training camp in Gisenyi
prefecture, was made aware of several clandestine groups including the AMASASU,
Abakozi, death squads, the “dragons”, and the “friends of the alliance”. The witness first said
that he was unable to identify who gave him “information” regarding such organisations,
noting that he lived in “a milieu where all that happened”, but later said that Lieutenant
Bizumuremyi had given him the list of members related to the organisations. According to
the witness, the AMASASU was comprised of soldiers in Kigali as this was where it “carried
out its activities”. These soldiers worked with the commanders of the “dragons”. The witness
never attended a meeting of any of these organisations and was unable to confirm when the
AMASASU was formed, but he noted that it was discussed in 1993.635
Prosecution Witness DCH
556. Witness DCH, a Hutu and member of the Interahamwe, testified that the AMASASU
was composed of soldiers in the Para Commando Battalion in Camp Kanombe led by
Ntabakuze. The group was responsible for intimidating those opposed to the MRND. The
AMASASU existed in 1992 and 1993. The witness never attended any of its meetings. He
did not see a list of its members or know any of its organisational details but became aware of
the organisation through a soldier named Boniface Sengoza. Witness DCH was uncertain if it
existed in 1994 but noted that it was related to, and, indeed, difficult to distinguish from,
groups such as the Akazu and commandos de chasse, who were composed of soldiers, and
the Zulus, who were Interahamwe.636
Bagosora
557. Bagosora denied that he was a member of the AMASASU, or that he was the author
of the 20 January 1993 letter, signed by “Commander Tango Mike”. He became aware of the
document when James Gasana, the Minister of Defence, held a cabinet meeting to ascertain
its origins. Gasana directed Colonel Laurent Rutayisire, the Head of External Security at the
time, to investigate who the authors were. Bagosora believed that Gasana left before the
results of the investigation but Bagosora was unaware if a report was turned in. Bagosora had
left in March 1993 for Arusha and when he returned in July he did not ask Rutayisire about
the results of the investigation. Rutayisire did not question Bagosora and no charges were
brought against him suggesting he had authored the letter at that time. In connection with the
investigation, Rutayisire indicated that Hassan Ngeze claimed to have authored the
document. He commented that Mike Tango is an Anglophone name and any investigation
into the group’s existence should be geared towards the RPF rather than himself, a
Francophone.637
635
T. 26 November 2002 pp. 93-95; T. 27 November 2002 pp. 13, 65, 67-68; T. 28 November 2002 pp. 4-5; T.
3 December 2002 pp. 62-66; T. 4 December 2002 p. 38; T. 5 December 2002 pp. 3-9. Witness ZF testified that
the dragons also controlled the death squads, who worked secretly. See T. 3 December 2002 p. 63. The witness’s
father was a Hutu, but the witness was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
636
T. 23 June 2004 pp. 1, 45-46, 51-53; T. 30 June 2006 pp. 48-50; Prosecution Exhibit 275 (personal
identification sheet). The Chamber notes that Witness ZF had heard that Bagosora and Nsengiyumva were
members of the Akazu. T. 25 June 2004 pp. 14-15.
637
T. 31 October 2005 pp. 72-74; T. 11 November 2005 p. 2; T. 14 November 2005 pp. 2-3.
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Ntabakuze
558. Ntabakuze denied that the AMASASU was a unit within the Para Commando
Battalion. He first learned of the organisation in 2000 when he received Witness DCH’s
statement.638
Nsengiyumva
559. Nsengiyumva stated that Witness XXQ’s assertions that he was part of the
AMASASU lacked credibility. The witness did not mention Nsengiyumva’s name to
Rwandan authorities but said to Tribunal investigators and the Chamber that Nsengiyumva
was alleged to be involved in the AMASASU.639
Ntabakuze Defence Witness DM-25
560. Witness DM-25, a Hutu senior Rwandan official who worked closely with the Prime
Minister, testified that he was aware of the AMASASU through a sole communiqué. He did
not provide particulars about the communiqué other than it threatened “accomplices or
traitors to the fatherland” and encouraged people to stop having agreements with the
Inkotanyis. The witness confirmed that rumours circulated, particularly among opposition
democratic parties, that Bagosora was involved in this group. However, no report was
received from the Prime Minister’s intelligence services that would have enabled the witness
to conclude that Bagosora was a founding member of the AMASASU. Additionally, he was
unaware of how the group operated, and he testified that no follow-up was conducted as the
group was not heard of after the letter.640
Ntabakuze Defence Witness NATO-1
561. Witness NATO-1, a Hutu soldier stationed in the Bigogwe training camp in Gisenyi
prefecture, testified that he was unaware of the existence of AMASASU until he appeared to
testify before the Tribunal. What he knew was that the word “AMASASU” meant “bullets”
or “ammunition” in Kinyarwanda. Based on his knowledge, he was of the view that Boniface
Sengoza could not have told Witness DCH about its existence.641
Nsengiyumva Defence Witness BDR-1
562. Witness BDR-1 was a Hutu who worked in the Gisenyi operational sector until
around mid-1993. Rumours circulated among soldiers about the existence of a group of
officers called the AMASASU that were not in agreement with the Arusha Accords as they
were being prepared. Some officers gathered intelligence and found civilians discussing
rumours of the AMASASU. However, he was not aware of evidence linking any individual to
this group and said that without a leader the group merely amounted to a rumour.642
Ntabakuze Defence Witness DM-190
563. Witness DM-190, a Hutu member of the Rwandan Armed Forces stationed in
Ruhengeri in 1994, observed in 1992 a “tabloid press” referring to tracts of an organisation
638
T. 21 September 2006 pp. 34-35.
T. 9 October 2006 p. 72; Nsengiyumva Defence Exhibit 61 (statement of 12 August 2003); Kabiligi Defence
Exhibit 84 (statement of 17 March 2003 in Rwandan judicial proceedings), pp. 16-18.
640
T. 11 April 2005 pp. 53-54; T. 12 April 2005 pp. 29-30, 63-64; Ntabakuze Defence Exhibit 81 (personal
identification sheet).
641
T. 27 June 2006 pp. 3-4, 10, 28-29; Nsengiyumva Defence Exhibit 197 (personal identification sheet).
642
T. 14 April 2005 pp. 64-66, 69, 92; Nsengiyumva Defence Exhibit 72 (personal identification sheet).
639
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called the AMASASU. The witness was otherwise unaware of the organisation and its
membership and noted that at that time there was a “proliferation” of rumours.643
Nsengiyumva Defence Expert Witness Helmut Strizek
564. Helmut Strizek, an expert in Rwandan history, challenged assertions that Bagosora
was the leader of AMASASU. The theories regarding the planning of the genocide rely
largely on anonymous documents, and there is no proof linking the 20 January 1993 letter to
Bagosora. Strizek said that if Bagosora was the author, he would have been taking a great risk
in writing such a letter. Instead, Strizek considered that the document was created by the
RPF, who were interested in the removal of Minister of Defence James Gasana. Specifically,
Strizek pointed to the tensions that existed between Gasana, a civilian, on the one hand, and
the military, on the other hand, and suggested that the RPF could have played on this tension
by authoring the document and threatening Gasana, who eventually fled the country. He also
noted that Gasana was not liked by the MRND, which tends to give the appearance that this
document would be authentic.644
Bagosora Expert Witness Eugène Shimamungu
565. Eugène Shimamungu, an expert in Kinyarwanda and French linguistics, testified that
he was familiar with the term AMASASU from a document. Shimamungu did not describe
the document, other than that its source had not been verified. He was unaware if the group
existed.645
Deliberations
566. It follows from the submissions that the existence of the AMASASU is disputed, and
that the Accused deny having been members of such an organisation. The Chamber will
address both issues based on the available evidence.
(i) Existence of AMASASU
567. The 20 January 1993 letter, signed by someone calling himself Tango Mike, military
call signs, appears to have been the first public indication of the AMASASU’s existence. It is
addressed to President Habyarimana and describes the group as members of the Rwandan
army from the “commanding officer to smallest FAR soldier”. It outlines the group’s
intention to thwart the “malicious plans of the members of the UNAR party”. The letter talks
of ongoing preparations by the Inkotanyi and Inyenzi to take Rwanda by force and that
infiltrators have already been identified. Training of civilian youth in regions throughout
Rwanda in order to support the army is suggested and Prime Minister Dismas Nsengiyaremye
is praised, particularly for his support of people defending themselves and for speaking in
favour of soldiers. The letter warns that the AMASASU is prepared to render justice itself.646
568. The undated note addressed to the MRND and CDR, also signed by Tango Mike,
seems to have followed the 20 January 1993 letter, noting that the AMASASU’s
643
T. 3 May 2005 p. 7; T. 4 May 2005 pp. 20-21; Ntabakazue Defence Exhibit 94 (personal identification
sheet).
644
T. 11 May 2005 pp. 34-35; T. 12 May 2005 pp. 30-31.
645
T. 6 June 2006 pp. 3-6, 58-59.
646
Prosecution Exhibit 30.1 (“AMASASU: Alliance des Militaires Agacés par les Séculaires Acts Sournois des
Unaristes”, dated 20 January 1993), in particular paragraphs 2 and 4, 5.1 to 5.3, 5.4 to 5.6.
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“membership is increasing satisfactorily”.647 It acknowledges its support for the two political
parties and seeks their support in the case of an RPF attack. The letter asks the organisations
to assist, in particular, “in the operation to eliminate the RPF accomplices who are working
here on the inside”.648
569. The AMASASU letter and note, which the Chamber will refer to collectively as “the
AMASASU documents”, purport to be expressions of frustrated officers and their content
creates an inference of having originated from military officers. According to Bagosora, the
20 January 1993 letter was sufficiently provocative to prompt the Minister of Defence, James
Gasana, to order the Head of External Security, Colonel Rutayisire, to conduct an
investigation into who authored it. Bagosora, however, was unaware of the results of this
investigation and pointed to indications that Hassan Ngeze might have written the letter.
Witness BDR-1 testified that intelligence gathered revealed only rumours about the group’s
existence. While evidence of contemporaneous investigations in Rwanda concerning the
AMASASU’s existence suggests inconclusive results,649 the group appears to have been
perceived both to be real and threatening. James Gasana’s 20 July 1993 letter cites threats
from the AMASASU as the basis for his resignation as Minister of Defence.650 Gasana’s
conviction that the group existed, in part, led Des Forges to conclude that it was “very likely,
if not certain, that such an organisation existed”.651
570. Notwithstanding, and aside from the AMASASU documents, only unspecific and
varied evidence concerning the purported group’s existence and activities is in the record.
Turning first to Witness XXQ, the Chamber notes that he had been detained since 1997 in
Mulindi, Kigali, and sentenced to death in 2001 for crimes related to the genocide. The
witness’s appeal was pending when he provided his testimony.652 Consequently, the Chamber
647
In Des Forges’s opinion, the letter’s content suggests that it was written “perhaps a month, two months, three
months further along” from the group’s formation and likely after the 20 January 1993 letter. T. 24 September
2002 p. 86. Witness XXQ suggested, however, that the document was obtained by the Kigali gendarmerie in
October 1992. The Chamber agrees with Des Forges’s analysis and, as discussed below, has reservations about
the reliability of Witness XXQ’s testimony relating to the AMASASU.
648
Prosecution Exhibit 30 (“Note au M.R.N.D et à la C.D.R.”, undated).
649
The Chamber recalls that Witness XXQ purportedly conducted an investigation in 1992 into Nsengiyumva’s
27 July 1992 letter leading him to conclude Nsengiyumva was involved in the AMASASU. At the outset, the
witness’s testimony reveals that the investigation was aimed at verifying the contents of Nsengiyumva’s letter
rather than verifying the AMASASU’s existence. Moreover, his testimony appears incongruent with evidence in
the record. He testified that the investigation was initiated in part by a 26 July 1992 letter received from the
Minister of Defence, James Gasana, alleging that the AMASASU was threatening him, and noting in particular,
that he had received insulting phone calls. It is surprising that Gasana would have sent such a letter nearly five
months prior to the apparent release of the 20 January 1993 letter introducing the AMASASU’s existence.
While the contents of the Gasana letter as described by the witness are not precisely the same, they are strikingly
similar to those in Gasana’s 20 July 1993 resignation letter to the President. See T. 13 October 2004 pp. 4, 7-9;
Prosecution Exhibit 243 (Letter of 20 July 1993 from James Gasana to the President). The Chamber cannot
exclude the possibility that the AMASASU existed before the release of 20 January 1993 letter, and that Gasana
had complained about threats from the group a year before he resigned. However, this aspect of Witness XXQ’s
testimony, in the Chamber’s view, fails to establish the AMASASU’s existence in 1992.
650
Prosecution Exhibit 243 (Letter of 20 July 1993 from James Gasana to the President), which sets forth
Gasana’s intent to leave the Minister of Defence, citing, in particular, insecurity created by an anonymous
political/military organisation known as the AMASASU. The exhibit was tendered through a Prosecution
investigator. See T. 7 June 2004 pp. 101-103.
651
T. 24 September 2002 p. 88.
652
See T. 12 October 2004 pp. 5-9; Kabiligi Defence Exhibit 85A (Rwandan judgments of 5 March and 16
August 2001), pp. 16, 217.
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views his evidence with caution and will not accept it without adequate corroboration.
Witness XXQ testified that the AMASASU distributed weapons and perpetrated massacres in
the Kayove-Ngororero near the beginning of 1993.653 He provided no further detail with
respect to the AMASASU distributing weapons.654 With respect to the alleged KayoveNgororero massacres, the only apparent link the witness creates between the massacres and
AMASASU are reported instructions he received from Lieutenant-Colonel Rwarakabije, who
he identified as a member of the AMASASU, to follow orders on the ground. The witness
also referred to Major André Bizimana’s statements that the massacres were planned by the
government and that the gendarmes were not to intervene.655 The Chamber finds that this
general evidence tends to presume, rather than establish beyond reasonable doubt, the group’s
existence.656
571. Witness DCH testified that the group existed in 1992 and 1993 and intimidated those
opposed to the MRND.657 The Chamber notes that the witness pleaded guilty and was
sentenced to seven years’ imprisonment for crimes committed in the Kabuga area.658 It
therefore considers his testimony with caution. In the Chamber’s view, this testimony also
does not provide sufficient independent basis to establish the group’s existence or activities
beyond reasonable doubt or detail to corroborate Witness XXQ’s testimony. Witness ZF’s
testimony that the group executed “orders or the manoeuvres of the dragon” also fails to
sufficiently delineate the group’s existence or activities.659 Moreover, the witness failed to
reference the AMASASU once in a statement given to Tribunal investigators in June 1998,
notwithstanding the fact that nearly 16 pages of it discuss groups and incidents predating 6
April 1994.660
572. In addition to the relative ambiguity in the Prosecution evidence, Defence witnesses
raise further doubts about the group’s existence. Witness DM-25, a figure centrally placed in
the Rwandan government at the time, was unaware of any information other than the 20
January 1993 letter as it related to the group. Witnesses BDR-1 and DM-190 testimonies
suggest the group’s existence was merely rumoured but unsubstantiated.
653
Witness XXQ also concluded, based on a conversation with an alleged AMASASU member, that the group
was responsible for the installation of Sindikubwabo as President and Kambanda as Prime Minister. The
Chamber reviews evidence surrounding the installation of the Interim Government below (III.3.7).
654
The Chamber did not find credible Witness XXQ’s allegations relating to the February 1994 meeting wherein
Kabiligi allegedly discussed the need to distribute weapons (III.2.4.4).
655
See T. 12 October 2004 pp. 17-21; T. 13 October 2004 pp. 19-28.
656
Additional issues raise concerns about the reliability of Witness XXQ’s testimony as it relates to the
AMASASU. For example, the witness is alone in asserting that the AMASASU was made public in a document
in July 1992 (T. 11 October 2004 p. 32) and “started being known by the public in the month of July 1992” (T.
13 October 2004 p. 3).
657
Witness DCH testified that he knew about AMASASU based on demonstrations in Camp Kanombe and
soldiers leaving the front after Prime Minister Dismas Nsengiyaremye’s call for soldiers to be demobilised.
Some Kanombe camp soldiers tried to kill the Prime Minister. Furthermore, the witness noted that the Minister
of Defence had to flee the country. See T. 18 June 2004 pp. 17-18; T. 23 June 2004 pp. 45-46; Kabiligi Defence
Exhibit 65 p. 5 (statement of 5 November 2003). The witness did not offer further clarification as to how he
linked these activities to the AMASASU.
658
See T. 29 June 2004 pp. 20-21; Ntabakuze Defence Exhibit 70 C (Rwandan judgment of 8 December 2000),
pp. 2-3, 23-24, 31. The Chamber has determined that other aspects of Witness DCH’s testimony lacked
credibility, in part, based on his apparent willingness to mislead judicial officials about the full scope of his
culpability in the events (III.4.1.5).
659
T. 3 December 2002 p. 63.
660
Nsengiyumva Defence Exhibit 14 (statement signed 24 June 1998).
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573. Before concluding, the Chamber will consider the evidence about the Accused’s
alleged membership in the AMASASU.
(ii) Membership of the AMASASU
574. Another disputed matter is whether the Accused were members of the AMASASU.
Bagosora denied authoring the 20 January 1993 letter or being a member of the group, while
Nsengiyumva disputed Witness XXQ’s testimony linking him to it. Ntabakuze testified that
he was unaware of the group before 2000. Prosecution Witnesses XXQ, ZF, and DCH only
provided second-hand evidence concerning its membership. Witness XXQ, relying on
information from Bizumuremyi, testified that each of the Accused were AMASASU
members.661 However, in his statement to Tribunal investigators in August 2003, Witness
XXQ made no mention of the AMASASU or the Accused’s membership in it. Although it is
not clear that he was asked questions relating to the group, the Chamber finds it somewhat
surprising that such information was not volunteered given that the statement discusses his
evolving relationship with Bizumuremyi as well as Bizumuremyi’s connections with
Nsengiyumva prior to 1994.662
575. Witness XXQ did not mention Nsengiyumva, Ntabakuze or Bizumuremyi in
connection with this organisation in prior statements given to Rwandan judicial authorities in
October 2003.663 He explained that the transcription of his statement may omit references to
Nsengiyumva and Bizumuremyi where ellipses appear or at points where the transcript reads
“inaudible”. The Chamber does not find these explanations convincing. Having reviewed the
transcript, it appears to employ ellipses to reflect natural pauses in speech rather than
unrecorded testimony. The context surrounding relevant indications of “inaudible” does not
make it likely that portions of the statement would be referring to either Nsengiyumva or
Bizumuremyi.664 As a second explanation, the witness suggested that these omissions may be
due to the fact that he answered only general questions about the AMASASU. However, the
transcript reflects that the witness was asked repeatedly about the group’s membership and
purpose. Witness XXQ testified at length about Nsengiyumva’s involvement, noted that
Ntabakuze had “distinguished” himself as member, and stated that Bizumuremyi was a
purported source of information on the AMASASU. His failure to mention these individuals
raises questions about the reliability of his testimony on this issue.665 Consequently, the
Chamber will not accept it absent adequate corroboration.
576. Turning to Witness ZF, the Chamber reiterates that his basis for knowledge is secondhand, relying on Bizumuremyi for information regarding the AMASASU’s as well as the
661
See T. 11 October 2004 pp. 27-29; T. 13 October 2004 p. 14.
Nsengiyumva Defence Exhibit 61 (statement of 12 August 2003). This conclusion is bolstered by the fact
that the witness described the AMASASU in a statement to Rwandan judicial authorities without being
prompted by a question specifically about the group. See Kabiligi Defence Exhibit 82 (statement of 30 October
2000), p. 5.
663
See Kabiligi Defence Exhibit 84 (Transcripts of interviews of 30 and 31 October 2003). Witness XXQ also
failed to mention these names in a statement given to Rwandan judicial officials in 2000. See Kabiligi Defence
Exhibit 82 (statement of 30 October 2000).
664
See Kabiligi Defence Exhibit 84C (Transcripts of interviews of 30 and 31 October 2003), pp. 16-18.
665
See T. 11 October 2004 pp. 27-29; T. 13 October 2004 pp. 14, 83-89; Kabiligi Defence Exhibit 84
(Transcripts of interviews of 30 and 31 October 2003).
662
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Zero Network’s membership.666 The witness identified each of the Accused specifically in
relation to the Zero Network, but he did not expressly link any of them to the AMASASU.667
Rather, the AMASASU’s constituency is summarised as soldiers who worked with
“commanders of the dragons and also had to execute the orders or manoeuvres of the
dragons”.668 Accordingly, the Chamber is not convinced that Witness ZF’s evidence
adequately corroborates Witness XXQ’s regarding any of the Accused’s membership in the
purported organisation.
577. With respect to Witness DCH, he testified that Ntabakuze was a member of the
AMASASU, which was a “group of soldiers in Camp Kanombe and they were part of the
Para Commando Battalion”.669 Like Witnesses XXQ and ZF, Witness DCH’s knowledge of
the AMASASU is second-hand, having purportedly learned of it through Boniface Sengoza.
However, Witness NATO-1’s testimony raises doubt as to whether Sengoza would have had
any knowledge about the organisation or spoke with the witness about it. This raises concern
about Witness DCH’s second-hand evidence on this point.670
578. In addition to these witnesses’ evidence, Des Forges drew extensive parallels in the
sentiments expressed in the AMASASU documents and other writings by Nsengiyumva and
Bagosora in particular to demonstrate membership. Consistent with and in addition to Des
Forges’s observations, the Chamber observes parallels among Nsengiyumva’s 27 July 1992
letter, Bagosora’s 1995 Cameroon document and the AMASASU documents. For instance,
there are calls for democratic resolve671 yet at the same time Tutsis are characterised as
666
See T. 5 December 2002 pp. 3-4 (“Q. … Let us begin with the organisations that you named. The zero
network, the Alliance, the Abakunzi, the Amasasu ... Q. … You said the organisations were secret organisations;
is that right? A. Yes, Counsel. Q. Who gave you the list of members of these organisations? A.: Counsel, the
person who gave me these lists is indeed Lieutenant Bizumuremyi.”). See also T. 4 December 2002 pp. 91-96.
See also section III.2.6 about the Zero Network.
667
See, e.g., T. 27 November 2002 pp. 36-37, 61-62, 66.
668
T. 3 December 2002 p. 63. The description’s ambiguity is compounded by the fact that the witness initially
testified that the terms “dragons” and “AMASASU” were used interchangeably to describe seemingly the same
group. T. 27 November 2002 p. 65 (“But this is a very long list, but in addition to the names that I can remember
and would like to disclose, there were all the ministers on the list, all the MRND ministers. I don’t know if they
were actually in the MRND or supporters of the MRND, but also the CDR, all of the préfets from the MRND,
all of the bourgmestres from the MRND, CDR, all of those persons were members of the Abakozi, which others
called the death squad, which others called dragons, which others called AMASASU.”).
669
T. 23 June 2004 p. 45.
670
The Chamber also notes Bagosora Defence Exhibit 61 (statement of 20 February 1999 by Witness GHI to
Tribunal investigators), pp. 4-5, which draws connections between the AMASASU letter and Bagosora,
Nsengiyumva and Ntabakuze. It was introduced by the Defence during cross-examination of General Roméo
Dallaire, T. 22 January 2004 pp. 9-10. According to the statement, Hassan Ngeze claimed to have written a tract
for the AMASASU, but it also reads: “It is likely that someone familiar with the thinking of some officers
expressed those thoughts on their behalf in the tract. At any rate, some officers were more highly-placed and
more committed than others but what they had in common was that they were mainly from the north or had
close ties with the President’s family. These officers, whose center of gravity was Col. Bagosora, did not make
life easy for the opposition parties. Among them, I can mention: Lt. Col. Anatole Nsengiyumva; Major
Mpiranyia, Major Ntabakuze.” The witness did not give in-court testimony and was not subject to crossexamination. The Chamber accords this document limited weight.
671
See the 20 January 1993 letter, para. 4 (“We support political pluralism and democracy with all our might
because we want to see real justice established in Rwanda.”) and Nsengiyumva’s July 1992 letter, p. 6 (“To this
end, the democratic process must be kept on course and, whenever necessary, shown to the world to prove that,
in spite of our current difficulties, we are still committed to democracy or, rather, to the democratic process….”)
and Bagosora’s 1995 Cameroon document, p. 24 (“However, this should stop, because after so many human
lives have been lost for such an unjust cause, Tutsis and Hutus should see reason and follow the example of the
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untrustworthy672 and their historical aggression towards Hutus is emphasised.673 Written prior
to April 1994, Nsengiyumva’s 27 July 1992 letter and the 20 January 1993 AMASASU letter
also express soldiers’ vexation with leadership,674 the need to prepare for war,675 and the
letters threaten unsanctioned attacks within Rwanda against those ostensibly aligned with the
Tutsis.676 In the Chamber’s view, this evidence creates an inference that Bagosora and
Nsengiyumva were behind the AMASASU documents and possibly part of a group of
Rwandan army officers who shared these views.
579. Notwithstanding, additional considerations raise concerns particularly as it relates to
the Accused’s involvement in the group. According to Bagosora, an investigation into the
origins of the 20 January 1993 letter was ordered by the Minister of Defence, but there is no
evidence that he was ever charged with having authored it or that any of the other Accused
were implicated. Moreover, the Prosecution experts affirm that the AMASASU documents
are of unknown origin, and Des Forges stated that the AMASASU was “a group which is
difficult to define”.677 Additionally, Des Forges’s testimony that links Bagosora to the group
relies in part on material the Chamber excluded. Subsequently, the Chamber determined that
no weight would be given to Des Forges’s opinions based on that material and excluded her
testimony describing it.678
South African community. And they should start thinking that democracy, the only system based on the
majority rule offering maximum guarantee for the minorities with genuine power sharing, can lead to a fair and
lasting solution to the now secular conflict.”).
672
See the 20 January 1993 letter, paras. 2, 4, 5.2 (discussing the “underhanded acts” and “malicious plans of the
members of the UNAR party” and referring to “blackmailing Inyenzi” and “unrepentant members of the UNAR
party”) and Bagosora’s 1995 Cameroon document, pp. 21, 24 (referring to Tusti as acting with “arrogance” and
as “self-important, arrogant, wily and sly ….”) and Nsengiyumva’s July 1992 letter, pp. 5-6 (suggesting that any
display of good intention by the UNAR party to international observers is “subterfuge aimed solely at taking
power …”). See also the undated Note to the MRND and CDR (“you must work hard to counter sneaky
manipulations of certain bitter opposition leaders.”).
673
See the 20 January 1993 letter, para. 4 (noting that the UNAR party has been “aggressing us from 1959 to
present”) and Bagosora’s 1995 Cameroon document, pp. 21-24 (detailing Tutsi attacks against Hutu).
674
See the 20 January 1993 letter, para. 5.6 (noting that the AMASASU, which purports to be an alliance of
soldiers, “has noticed with indignation that often soldiers are victims of injustice served by capricious leaders”)
and Prosecution Exhibit 21 (generally). See also undated Note to the MRND and CDR (“You must find a
strategy to support us; especially in the operation to eliminate RPF accomplices who are working here on the
inside, otherwise the war will never end.”).
675
See the 20 January 1993 letter, para. 5.4 (suggesting the need to establish civilian defence units) and
Nsengiyumva’s July 1992 letter, pp. 5, 7 (noting that the military “must also get ready to continue with the war
– if the enemy opts for it…” and setting forth specific tasks “[i]n order to prepare ourselves for the continuation
of hostilities, which in the final analysis are inevitable …”).
676
See the 20 January 1993 letter, paras. 5.2, 5.5 (noting that the AMASASU has identified “most virulent” of
the “blackmailing Inyenzi” and “will render justice ourselves”) and Nsengiyumva’s July 1992 letter, p. 2,
(discussing soldiers who are threatening to “settle old scores” with government leaders that have yielded to
enemy demands).
677
T. 18 November 2002 p. 92.
678
See T. 17 September 2002 pp. 23-24; T. 24 September 2002 p. 88; Decision on the Prosecutor’s Motion for
the Admission of Certain Materials Under Rule 89 (C) (TC), 14 October 2004, paras. 3-4, 11-21; Decision on
Kabiligi Motion for the Exclusion of Portions of Testimony of Prosecution Witness Alison Des Forges (TC), 4
September 2006, para. 6.
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(iii) Conclusion
580. The available evidence about the AMASASU is limited and to a large extent secondhand. It is clear that a group made its existence known through the AMASASU documents.
While some persons centrally placed in the Rwandan government perceived the group to be a
reality, others were not convinced. Information about the AMASASU’s activities is sparse
and imprecise when looking beyond the AMASASU documents purporting to represent it.
Apart from its alleged involvement in massacres in late 1992, there is no evidencing
concerning illegal acts from 1993 onwards that is directly linked to the AMASASU.
581. Evidence concerning membership is also questionable. The AMASASU documents
are of unknown origin, with no evidence directly linking the Accused to their creation or
circulation. The parallels between the AMASASU documents and the writings of the
Accused are significant. Nonetheless, the Chamber is not convinced that the only reasonable
inference to be drawn from them is that any one of the Accused authored the documents or
were necessarily aligned with those who did. Moreover, the Chamber is unsatisfied that the
second-hand accounts of Witnesses XXQ, ZF and DCH provides a sufficient independent
basis to establish the Accused’s membership in the group or that their evidence adequately
corroborate other evidence implicating the Accused as members. In light of the foregoing, the
available evidence fails to prove beyond reasonable doubt that the Accused were members of
the AMASASU.
582. The Kabiligi, Ntabakuze and Nsengiyumva Defence have raised notice arguments in
connection with allegations that they were part of the AMASASU and related organisations
similar to those that the Chamber rejected at trial.679 Based in part on the findings above, the
Chamber does not find it necessary to revisit these submissions.
2.9
Death Squads
Introduction
583. The Indictments allege that “prominent civilian and military figures” who shared an
“extremist Hutu ideology” worked together from as early as 1990 to pursue a “strategy of
ethnic division and incitement to violence”. Specifically, the Prosecution submits that death
squads existed. Support is found primarily in the testimonies of Expert Witness Filip
Reyntjens and Witnesses XXC, XAQ, ZF, DO and General Roméo Dallaire.680
584. The Defence teams argue that allegations about death squads fall outside the scope of
the Indictments. Additionally, each of the Accused contends that the Prosecution evidence
lacks credibility. Reference is made primarily to the testimony of the Accused, Witnesses
679
See Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, paras.
17-20; Decision Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April
2007, paras. 6-10; Decision on Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the
Indictment (TC), 15 September 2006, paras. 33-34; Decision on Ntabakuze Motion for Exclusion of Evidence
(TC), 29 June 2006, paras. 11-14.
680
Bagosora Indictment, paras. 1.13-1.16; Kabiligi and Ntabakuze Indictment, paras. 1.13-1.16; Nsengiyumva
Indictment, paras. 1.13-1.16; Prosecution Closing Brief, paras. 492, 900, 1000, 1103(g), 1305(a), 1306; T. 1
June 2007 pp. 38-40.
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DM-25, BRA-1, ACL-1, ALL-42, Joshua Abdul Ruzibiza, Colonel Luc Marchal, Pascal
Ndengejeho and Expert Witnesses Helmut Strizek and Bernard Lugan.681
Evidence
Prosecution Expert Filip Reyntjens
585. Filip Reyntjens, an expert in Rwandan history, testified that following attacks in
Murambe in late 1991, Bugesera in March 1992, and Kibuye in August 1992, he came to
Rwanda to do research on organised destabilisations. Reyntjens drafted a report on his
findings in October 1992 at President Habyarimana’s request, who appeared to express
genuine concern about the events and discovery of death squads. The report only mentions
persons as members of the death squads where the individual had been identified by all five
of Reyntjens’s sources. These individuals, including Bagosora, were identified as being at the
core of destabilisations aimed at discrediting the democratisation process and, later, the
Arusha peace process. The group did not have fixed membership, hierarchy such as president
or secretary, or identity cards. Reyntjens’s investigation did not reveal specific meetings or
activities of death squads, including acts of Bagosora.682
586. Reyntjens identified Janvier Afrika, a self-proclaimed member of a death squad, and
Colonel Bonaventure Buregeya, a former director of ESM, as two sources for the report.
Afrika had written an article about death squads in a journal called Umurava, which was
released prior to Reyntjens’s investigation.683
587. Reyntjens’s research was not a judicial inquiry and he did not consider this a scientific
report. Rather, it was akin to an activist memo, raising awareness about violent destabilisation
and to appeal for an international inquiry to be conducted.684
Prosecution Witness XXC
588. Witness XXC, a Hutu who worked as a residential watchman in the Kiyovu quarter
from 1990 to 1994, believed the death squad was a group of powerful natives from President
Habyarimana’s region in Gisenyi, who did not want regime change, and included Captain
Pascal Simbikangwa, Bagosora, Colonel Elie Sagatwa and Protais Zigiranyirazo.685
589. The witness first heard about the death squad during a rally of opposition parties at
the round-about in Kimihurura near the Prime Minister’s office in 1992. Faustin
Twagiramungu, the president of the MDR party, and Félicien Gatabazi, the president of the
PSD party, said that the death squads were against those who opposed the Habyarimana
regime. They would arrest people, take them to the President’s office and torture them.
681
Bagosora Closing Brief, paras. 160-175, 238, 719, 1348; Nsengiyumva Closing Brief, paras. 49, 52(e), 111112, 1101, 1106, 1108, 1549, 1581-1582, 1613, 1925, 1987, 3125; Ntabakuze Closing Brief, paras. 483, 654671, 2207, 2254, 2298, p. 226; Kabiligi Closing Brief, paras. 698-713, pp. 593, 597-598. T. 28 May 2007 pp.
29-30 (Kabiligi); T. 31 May 2007 pp. 42-43 (Nsengiyumva). The Chamber has also taken into account the
testimony of Ntabakuze Defence Expert Witness Desouter, T. 4 April 2006 pp. 33-34, 57; Ntabakuze Defence
Exhibit 220 (Expert Report of Serge Desouter), p. 75; Witness, A-8, T. 9 May 2005 pp. 54-55; and Witness LM1, T. 1 March 2006 p. 58.
682
T. 16 September 2004 pp. 30-45; T. 22 September 2004 pp. 9-12.
683
T. 16 September 2004 pp. 33-36; T. 21 September 2004 pp. 53-54; T. 22 September 2004 pp. 3-6, 10.
684
T. 16 September 2004 pp. 33, 36-38.
685
T. 17 September 2003 pp. 11-12, 24-25; T. 18 September 2003 pp. 31, 50-51; Prosecution Exhibit 96
(personal identification sheet).
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Bagosora, Simbikangwa, Sagatwa, Zigiranyirazo, Colonel Célestin Rwagafita and others
were identified as members.686
590. During the same rally, Boniface Ntawuyirushintege, a journalist and musician,
addressed a gathering. He said that he was detained by Simbikangwa, struck on his knees
with a hammer and whipped on the soles of his feet. He was using crutches, was bandaged,
and the witness saw that there was no skin on his legs. A female writer for the newspaper
“Umurangi” also spoke the same day, stating that she was arrested and tortured by a death
squad.687
Prosecution Witness XAQ
591. Witness XAQ, a Hutu, testified that he was a member of the Para Commando
Battalion until 1993. While in exile in the Central African Republic in July 1994, Corporal
Eric Munyankindi, a member of the Para Commando Battalion, informed the witness that he
was a member of the death squad. It existed from the advent of multi-party politics, and he
had been sent to eliminate innocent people. The witness could not identify any individual
murdered by the death squad prior to 1994. Newspapers also wrote about it, identifying
senior officials as members.688
Prosecution Witness ZF
592. Witness ZF, a Hutu who worked at the Butotori military training camp in Gisenyi
prefecture, was made aware of several clandestine groups, including the death squads, by
Lieutenant Bizumuremyi. Although these groups worked in close association, the death
squads were distinguished from the Zero Network, as “small groups apparently of welltrained people who were in charge of executing the decisions of the members of these
networks”. In particular, the death squads executed the orders of the dragons. The dragons,
synonymous with Abakozi, were the “masterminds” behind activities directed at accomplices.
The witness heard about a meeting in the Méridien Hôtel near the end of 1993 or beginning
of 1994 attended by Joseph Nzirorera and unidentified Gisenyi militia chiefs who were chiefs
of death squads.689
686
T. 17 September 2003 pp. 24-28; T. 19 September 2003 pp. 27-28.
T. 17 September 2003 pp. 24-28; T. 19 September 2003 pp. 28-29, 47. The Prosecution Closing Brief,
paragraph 1103(g), refers to Witness XXC’s testimony that Bagosora was present when the female journalist
was tortured and forced her to sit on an electric chair until she accepted not to write any further articles. The
Bagosora Defence argues that the Prosecution indicated that it would not rely on this evidence. See Bagosora
Closing Brief, para. 719. The Chamber agrees that the Prosecution undertook not to rely on this evidence, and
will disregard it. See T. 19 September 2003 pp. 29-30 (“Ms. Mulvaney: I’m not – Mr. President, I’m not sure
how you withdraw evidence. I have made a representation that we are not going to rely on that.”).
688
T. 23 February 2004 pp. 2-4, 17-19, 43, 46-47; Prosecution Exhibit 195 (personal identification sheet).
Witness XAQ testified that the death squad was responsible for the deaths of Landoald Ndasingwa and Joseph
Kavaruganda on 7 April. T. 23 February 2004 pp. 46-47. The Chamber assesses these allegations in section
III.3.3.3.
689
T. 26 November 2002 pp. 93-95; T. 27 November 2002 pp. 13, 65, 67-68; T. 28 November 2002 pp. 3-5; T.
3 December 2002 pp. 62-66; T. 4 December 2002 pp. 38, 92-96; T. 5 December 2002 pp. 3-9. Subsequent to the
meeting at the Méridien Hôtel, Witness ZF observed Bizumuremyi distribute weapons, including ammunition,
pistols and radios at Gisenyi military camp to militiamen. See T. 28 November 2002 pp. 3-10. The Chamber
discusses the evidence related to weapons distribution above (III.2.6.2). The witness’s father was a Hutu, but the
witness was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
687
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Prosecution Witness DO
593. Witness DO, a Hutu, testified that the death squad in Gisenyi existed when he arrived
there in 1992. Michel Mabuye, a commander of it, informed him that Nsengiyumva
established the death squad. It began in 1991, around the advent of the multi-party political
system, and was supported by the MRND and CDR. Nsengiyumva gave instructions to this
paramilitary force and Bizumuremyi supervised its activities. Amongst its members were an
Interahamwe named Kiguru, Mubarak, a person named “Agronom”, Munyagishari and
Hassan Gitoki. The witness was unaware of any victims of the death squad in 1990 up until
President Habyarimana’s death but testified that they were responsible for a vast majority of
the deaths afterwards. The witness used the term death squad to denote the group’s activities
in killings in 1994.690
Prosecution Witness Roméo Dallaire
594. General Dallaire, the UNAMIR force commander in 1994, first heard about death
squads in November 1993 when receiving information that well trained Togolese men or
officers were being brought in by the extremists to conduct assassinations inside Rwanda.
Dallaire did not receive proof of this, but he observed that the RPF opposed Togolese
UNAMIR observers.691
595. The intelligence about the death squad as well as the Group Zero was generally
uncorroborated. Bagosora was mentioned as being at the heart of such organisations. While
Dallaire did not see information contrary to this suggestion, he did not have informants with
respect to death squads and believed that not all information he received was the truth.692
Bagosora
596. Bagosora denied that he was a member of death squads. He became aware of such
groups from reading documents concerning the RPF and subsequently from hearing about an
article written by Filip Reyntjens, Senator Kuijpers and Marie Cros in Le Soir. It was
published in the end of 1992 and, because he was implicated as a member, Bagosora initiated
a libel lawsuit against Reyntjens. He was not able to pursue the lawsuit because of the events
beginning in April 1994.693
597. Séraphin Rwabakumba, who was Colonel Sagatwa’s younger brother and
Habyarimana’s brother-in-law, was mentioned in Reyntjens’s report as being a member of
the death squads. Rwabakumba sent a letter requesting the Prosecutor General, Alphonse
Nkubito, to conduct an investigation into the existence of death squads and the purported
membership of several high ranking government, military and political officials.694 No
690
T. 30 June 2003 pp. 19, 32-33; T. 1 July 2003 pp. 39-41, 71-74; T. 2 July 2003 pp. 22-24, 56-58; T. 17
October 2005 pp. 9-10; Prosecution Exhibit 61 (personal identification sheet). The witness also identified Omar
Serushago, Hassan Ngeze, Barnabé Samvura and Sibomana as members of the death squad. T. 17 October 2005
pp. 9-10.
691
T. 21 January 2004 pp. 73-74.
692
T. 19 January 2004 pp. 89-94; T. 20 January 2004 p. 57; T. 21 January 2004 pp. 71-72. See also Beardsley,
T. 30 January 2004 pp. 16; Bagosora Defence Exhibit 71 (Report of UN Reconnaissance Mission), p. 59, which
notes the prevalence of arms throughout the country, a history of banditry and death squads, and the existence of
paramilitary wings of certain political parties.
693
T. 1 November 2005 pp. 55-61, 63-64; T. 10 November 2005 pp. 75-77; T. 17 November 2005 p. 41.
694
Bagosora, who had also been identified by Reyntjens as a member of the death squads, testified that he was
contacted before the letter was sent and agreed with this course of action. T. 1 November 2005 pp. 58-59;
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investigation was conducted. According to Bagosora, death squads operating in Rwanda
came from the RPF. They succeeded in convincing people that the MRND were killing
people as well as linking killings to the “presidential camp”. As examples, he pointed to
evidence that the 17 or 18 May 1993 killing of Emmanuel Gapyisi, a senior official of the
MDR party, and the 21 February 1994 killing of Félicien Gatabazi, President of the PSD, had
been carried out by the RPF.695 Bagosora did not deny that the “presidential camp”
committed killings. However, he suggested that killings would generally be attributed to the
MRND whenever they were done clandestinely.696
Ntabakuze
598. Ntabakuze rejected the allegations by Witnesses ZF and XAQ that he was in a death
squad. He was not aware of such groups within the Para Commando Battalion.697
Nsengiyumva
599. Nsengiyumva denied that he established the death squad in Gisenyi in 1991. He heard
rumours about death squads composed of people close to the President. In his view, RPF
groups were killing individuals and blaming the MRND. As examples, he pointed to evidence
that Gapyisi and Gatabazi were assassinated by the RPF.698
600. The persons identified as members of death squads in Janvier Afrika’s article in the
Umurava magazine, in Reyntjens’s 1992 report, and in the report of the 1993 International
Commission of Investigation all reflect people who Anastase Gasana, the Minister of Foreign
Affairs in 1993, had identified in a letter he wrote to the MDR in May 1991.699 In this letter,
Gasana suggested that people close to the Interahamwe were at the root of problems befalling
the nation. Nsengiyumva spoke to Froduald Karamira, vice-chairman of the MDR, in Gisenyi
in May 1994. Karamira told him that the MDR identified people as members of death squads,
and in particular Habyarimana’s closest aides, to bring down Habyarimana’s regime and
allow the opposition to share power with the RPF. Karamira said he brought Reyntjens to
Janvier Afrika and encouraged him to sensitise the European public to the death squads.
Bagosora Defence Exhibit 241 (Letter of 8 June 1993 from Séraphin Rwabakumba to the Prosecutor General),
which reads: “We therefore wish to request you, Sir, to conduct an investigation into the “escadrons de la mort”
affair, and to prosecute us, if there are grounds for it, or protect us if there is no case to answer. Obviously, this
affair, which is a hoax used for political ends, nevertheless poses a real and permanent threat to our security.”
695
Bagosora pointed to an article authored by André Guichaoua and statements by Ruyenzi, a Tutsi who fled the
RPF regime, attributing the killings to the RPF. Guichaoua’s article was entitled “The assassination of President
Habyarimana had been planned as early as 1993”, and appeared in Le Monde on 6 May 2004. The article
attributes the death of Gapyisi to Corporal Amani Mahoro, an imprisoned second lieutenant, and Sergeant Dan
Ndaruhutse, a lieutenant in the Republican Guard. With respect to Gatabazi’s death, the article notes that
according to testimonies gathered by the ICTR and the French investigating judge Jean-Louis Bruguière, two
specific RPF soldiers were said to have committed this crime. See T. 1 November 2005 pp. 61-63.
696
T. 1 November 2005 pp. 58-64.
697
T. 21 September 2006 pp. 34-35.
698
T. 6 October 2006 pp. 37, 41; T. 11 October 2006 pp. 54, 63-64. Specifically, Nsengiyumva identified
Lieutenant Joshua Abdul Ruzibiza and BRA-1 as witnesses who attributed killings to the RPF. T. 6 October
2006 p. 41.
699
Nsengiyumva also testified that in March 1993, Prime Minister Nsengiyaremye and the Chairman of the RPF
met, and Nsengiyaremye suggested that those identified by Gasana needed to be dismissed or tried for their
involvement in massacres. If the RPF presented this recommendation in a letter to the Rwandan government it
would be more sympathetic to that request than Nsengiyaremye’s. Sometime after, the RPF’s Patrick
Mazimhaka sent a letter to the Rwandan Foreign Minister, which included the names of those identified by
Gasana. See T. 6 October 2006 p. 39.
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Nsengiyumva was not questioned by Reyntjens or the 1993 International Commission of
Investigation about his alleged association with death squads.700
Ntabakuze Defence Witness DM-25
601. Witness DM-25, a Hutu senior Rwandan official who worked closely with the Prime
Minister’s office, testified that particularly when violence increased in the 1990s, people
attributed killings to “death squadrons” or “death squads”. The witness was never able to
identify any group or members of a death squad, even to the extent the RPF may have been
responsible. An international investigation was initiated after the killings in the Bigogwe
area. It presented a report in March 1993, which suggested that members of the Rwandan
army participated in human rights violations. Subsequently, the Cabinet met in 1993 and
prepared an addendum explaining the Rwandan government’s position on the findings. It
expressed the government’s commitment to correct human rights violations that were
occurring in areas under its control but also stated that a report about violations in areas under
RPF control should have been made.701 Witness DM-25 believed that the Prosecutor carried
out an investigation into death squads, but he was unaware of any conclusions about this.702
Ntabakuze Defence Witness Joshua Abdul Ruzibiza
602. Joshua Abdul Ruzibiza, a Tutsi member of the RPF until he went into exile in
February 2001, joined the Rwanda Patriotic Army in October 1990. He stated that its soldiers
killed Félicien Gatabazi and Emmanuel Gapyisi. Gatabazi was killed on 21 February 1994 by
soldiers that belonged to the Ruzibiza’s reconnaissance sub-group. Charles Ngabonziza from
the Third Battalion of the Rwandan Patriotic Army told Ruzibiza that he killed Emmanuel
Gapyisi in 1993. Retrospectively, Ruzibiza concluded that the killings, which were attributed
to the Habyarimana’s government, gave the appearance of its inability to provide security for
the population and were used as a justification for the RPF to resume hostilities.703
Nsengiyumva Defence Witness BRA-1
603. Witness BRA-1, a Tutsi soldier who joined the RPF in 1991, testified that in late 1993
or early 1994, Félicien Gatabazi, the PSD president, was killed by Godfrey Kiyago, along
with Samuel Kibanda and Gatashya. Witness BRA-1 did not see the killing but Kiyago, and
others who had accompanied him, told him about it. The witness believed Paul Kagame
ordered the killing. He also believed Kagame ordered the killing of Gapyisi, who was
assassinated by an RPA soldier from the 101 unit named Ngomanziza, early in the war.704
700
Id. pp. 37-41. Nsengiyumva testified that Bizumuremyi had been singled out by opposition parties due to his
role in anti-riot activities. Bizumuremyi was the sole lieutenant identified in opposition newspapers as being on
a death squad. T. 4 October 2006 pp. 40-41.
701
It appears that the government’s comments, which addressed the findings of the January 1993 International
Commission of Inquiry on Human Rights Violations in Rwanda Since 1 October 1990, were attached as an
addendum to the report by the United Nations’ Special Rapporteur on extrajudicial, summary or arbitrary
executions issued in August 1993. See Prosecution Exhibit 28 (Report of 11 August 1993 by the United Nations
Special Rapporteur Bacre Waly Ndiaye on Extrajudicial, Summary or Arbitrary Executions and Addendum of 7
April 1993 of the Rwandan offices of the President and Prime Minister), pp. 27-32.
702
T. 12 April 2005 pp. 28-29, 64-66; T. 13 April 2005 pp. 4, 7, 18; Ntabakuze Defence Exhibit 81 (personal
identification sheet); Nsengiyumva Defence Exhibit 65 (Letter of 15 April 1993 from Prefect Tharcisse Renzaho
to the Kigali Prosecutor General).
703
T. 9 March 2006 pp. 5-7, 35-36, 80-81; Ntabakuze Defence Exhibit 214 (personal identification sheet).
704
The Chamber notes that the name “Ngomanziza” provided by Witness BRA-1 is similar to the name
“Ngabonziza” provided by Witness Ruzibiza. The name given by Witness BRA-1 was on a list of proper names
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The witness heard about his killing over an RPF radio and Ngomanziza discussed it with the
witness in Mulindi prison in 1993. The killings were done as part of destabilisation
activities.705
Nsengiyumva Defence Witness ACL-1
604. According to Witness ACL-1, a Hutu priest, assertions that Nsengiyumva was a
leader of death squads in Gisenyi during the genocide were untrue.706
Nsengiyumva Defence Expert Helmut Strizek
605. Helmut Strizek, an expert in Rwandan history, testified that he had found no credible
evidence regarding the existence of death squads. With respect to Reyntjens’s inquiry, Strizek
said that Janvier Afrika, who used a pseudonym and remained anonymous, was not a credible
source. According to Strizek, the 1993 International Commission of Investigation was
secured by the RPF. He pointed to Jean Carbonare, who was known to be aligned with the
RPF at that time, as an example of an RPF supporter who headed this investigation. Its report
discussed the existence of deaths squads.707
606. According to Strizek, the existence of death squads provided a justification in the eyes
of the international community for the RPF’s 8 February 1993 attack in violation of the
cease-fire.708 Strizek also noted that the killings of Emmanuel Gapyisi and Félicien Gatabazi
had been attributed to the Habyarimana government and Hutu extremists. However, he
pointed to information provided by André Guichaoua and Joshua Abdul Ruzibiza, which
suggested that the RPF killed them. 709
Bagosora Defence Expert Witness Bernard Lugan
607. Bernard Lugan, an expert in Rwandan history, testified that he spoke with Colonel
Robardey, a French gendarme, who explained that in early 1993, the French gendarmerie
carried out a judicial police inspection regarding death squads. Major Corrier, a French
gendarme and instructor in the judicial police inspection centre, interrogated Janvier Afrika in
prison. Corrier tried to ascertain whether Janvier Afrika knew the people he identified,
whether he had gone to places he cited, and whether the information he provided was
to be referred to during his testimony, whereas Ruzibiza spelled the name he provided. It is unclear whether the
two witnesses referred to the same person.
705
T. 5 April 2006 pp. 58-59; T. 6 April 2006 pp. 20-23; Nsengiyumva Defence Exhibit 171 (personal
identification sheet).
706
T. 23 March 2006 pp. 5, 26-27, 36; Nsengiyumva Defence Exhibit 168 (personal identification sheet).
707
T. 11 May 2005 pp. 34-35, 42-43; T. 12 May 2005 pp. 28-30; T. 13 May 2005 p. 4.
708
According to Strizek, death squads were a creation of the RPF, and he testified that James Gasana’s book, Du
Parti-Etat à L’Etat-Garnison (2002), mentions an RPF letter indicating that its attack should be postponed until
after the Commission left Rwanda. T. 12 May 2005 p. 28.
709
T. 11 May 2005 pp. 42-43; T. 12 May 2005 pp. 28-30. See also Bagosora Defence Exhibit 136 (statement of
14 March 2004 by Joshua Abdul Ruzibiza), p. 19, which reads: “After killing a number of political leaders and
trying unsuccessfully to assassinate others, the RPF claimed always that the killings were the work of the
MRND except that a few cases were really the work of the MRND and the CDR; many, including the
international community, continued to blame the government. This gave the impression that the then
Government was creating chaos in order to hinder the coming into effect of the Broad based transitional
government. This was a trap set by the RPF; the government fell into it; nobody ever thought that it was the
work of the RPF. As a matter of fact, if we reconsider what we, the Inkotanyi, did in the zone we controlled and
what happened to innocent civilians in the north of Rwanda, it was difficult to draw a line of difference between
Inkotanyi’s killings and those of the CDR” (emphasis in original).
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consistent with observations by those who claimed to be his sources. Major Corrier’s report
to Colonel Robardey categorically concluded that Janvier Afrika did not go to places he
claimed to visit and that he failed to establish certain facts.710
Kabiligi Defence Witness Luc Marchal
608. Colonel Marchal, the Kigali Sector Commander of the Kigali Battalion for UNAMIR
in 1994, testified that he initially believed that Félicien Gatabazi’s assassination on 21
February 1994 was the work of the Zero Network or a death squad. However, Colonel
Sagatwa, the head of Presidential security, asked Marchal if UNAMIR intended to investigate
the murder, and the conviction with which the request was made gave Marchal the
impression that the RPF might be responsible. UNAMIR was unable to obtain precise
information regarding the assassination.711
Kabiligi Defence Witness ALL-42
609. Witness ALL-42, a Hutu member of the RPF, testified that “death squad” commando
units were RPF agents that laid mines, employed grenades and other weapons and engaged in
other acts. They would attribute such activities to the MRND.712
Ntabakuze Defence Witness Pascal Ndengejeho
610. Pascal Baylon Ndengejeho was a professor at the National University for Rwanda
until 1994 and became a member of the MDR in 1991. The term “death squads” was
commonly used but the witness was unable to identify any members. Terms like Akazu and
escadron de la mort existed. The witness did not know the origin of the term death squad but
it was said that every regime punishes its opponents through massacres.713
Deliberations
611. It follows from the evidence that as early as 1992, international observers began
conducting inquiries in Rwanda based on purported extrajudicial killings and other acts that
had the effect of destabilising the democratisation process.714 The parties have different views
as to who was responsible for various killings prior to April 1994, and, in particular, if death
squads, with ties close to the President, were responsible for them. It is also disputed whether
any of the Accused were members of such groups.
710
T. 14 November 2006 pp. 4-5, 28-30.
T. 30 November 2006 pp. 3-4, 23, 33; T. 4 December 2006 pp. 21-23.
712
T. 8 November 2006 pp. 12-13, 16, 51-52; Kabiligi Defence Exhibit 106 (personal identification sheet).
713
T. 13 September 2006 pp. 3-4, 21-22; Kabiligi Defence Exhibit 94 (personal identification sheet).
714
The Bagosora Defence expressly does not dispute that massacres occurred, for example, in Kibilira and
Bugesera, prior to these investigations (Bagosora Closing Brief, para. 163) and Defence evidence, although
somewhat indirectly, tends to corroborate that killings occurred. See Witness DM-25, T. 12 April 2005 pp. 2829; Flatten, T. 30 June 2005 pp. 51-52; Ruzibiza, T. 10 March 2006 p. 19; Lugan, T. 14 November 2006 pp. 2628. See also Prosecution Witnesses BY, T. 7 July 2004 p. 4; Reyntjens, T. 16 September 2004 pp. 37, 44-45;
Des Forges, T. 16 September 2002 p. 108; T. 18 September 2002 p. 14; Prosecution Exhibit 28 (Report of 11
August 1993 by the United Nations Special Rapporteur Bacre Waly Ndiaye on Extrajudicial, Summary or
Arbitrary Executions and Addendum of 7 April 1993 of the Rwandan offices of the President and Prime
Minister), p. 29, which reads: “With regard to the massacres and attacks against persons and property, the
Government acknowledges and regrets that such human rights violations took place in Kibilira, north-west
Rwanda, against the Bagogwe, in Bugesera and all other places in the country where ethnic and/or political
unrest has occurred.”
711
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612. Several pieces of documentary evidence highlight that Rwandans and the international
community were concerned that killings and provocations were being coordinated within the
country by people placed at the highest levels of the Rwandan government, military and
political parties. In an article found in the journal Umurava, published in late 1992, an author
calling himself Janvier Afrika stated that “unrest” experienced in Bugesera, Murambi, Kigali
town, Gitarama and Ruhengeri had been organised by “determined Interahamwe”. They
included Bagosora, the President and other high ranking government, military, political
officials and those closely associated with them.715 Shortly thereafter, Reyntjens conducted
an investigation and his report of 9 October 1992 expressly discussed “death squads” in
Rwanda.716 Relying on the testimonies of two people who proclaimed to be associated with
the groups, including Janvier Afrika, and three others, including Colonel Bonaventure
Buregeya, the report identified Bagosora and Nsengiyumva among other political,
government and military leaders as members at the national level. Their activities sought to
destabilise the democratisation process, intimidate Tutsis and opposition parties, and impede
the Arusha peace process by giving a message that neither the RPF nor refugees would be
safe in Rwanda.717
613. Reyntjens’s report was followed by the international commission of investigation in
January 1993 (“1993 Commission”), which reported in March 1993 that witnesses generally
confirmed the existence of death squads.718 The 1993 Commission found that massacres,
assassinations and various disturbances of opposition parties were organised by the
President’s entourage. Individuals such as Elie Sagatwa, Protais Zigiranyiranzo, Léon
Mugesera, Matthew Ngirumpatse, Alphonse Ntirivamunda, Joseph Habiyambere, Côme
Bizimungu and Pascal Simbikangwa among others were cited repeatedly as being involved.
None of the Accused was mentioned among this group.719 In particular, the report pointed to
death squad meetings, attested to by Janvier Afrika, which were aimed at organising the
killing of Bagogwe Tutsis in 1991. These meetings involved high-ranking government,
715
The article also identifies Jean-Bosco Barayagwiza, Martin Bucyana, Matthieu Ngirumpatse, Protais
Zigiranyiranzo, Séraphim Rwabukumba, Joseph Nzirorera, Laurent Serubuga, Elie Sagatwa, Alphonse
Uwimana, Chantal Rushingabigwi, Alphonse Ntirivamunda, Tharcisse Renzaho, Gatete Rwambuka, Pascal
Simbikangwa, Ribanje Rubugo, Pasteur Musabe, Casimir Biziumungu, Boniface Rucagu, Charles
Nzabageregeza, Damien Seyoboka, Amandin Rugira, Noel Mbonabaryi, Major Nkundiye and James Gasana.
Nsengiyumva Defence Exhibit 57 (Umurava No. 10, August 1992).
716
According to Reyntjens, this article was published at least a month before he conducted his research. See T.
22 September 2004 p. 10; Prosecution Exhibit 303 (Report of 9 October 1992 by Filip Reyntjens on Information
on the “Escadrons de la mort”). The report also discusses the Zero Network. The Chamber addresses evidence
related to the Zero Network in section III.2.7.
717
The report also identifies as part of the national level group Joseph Nzirorera, Protais Zigiranyirazo,
Séraphim Rwabukumba, Colonel Laurent Serubuga, Colonel Elie Sagatwa, Chantal Rushingabigwi, Alphonse
Ntirivamunda, Captain Pascal Simbikangwa, Boniface Rucagu and Major Leonard Nkundiye. Prosecution
Exhibit 303 (Report of 9 October 1992 by Filip Reyntjens on Information on the “Escadrons de la mort”), pp. 34, 7.
718
Des Forges, T. 16 September 2002 pp. 108-124; T. 17 September 2002 pp. 6-8. Prosecution Exhibit 27 is Des
Forges’s translation of the original French report of 17 March 1993 of the International Commission of
Investigation on Human Rights Violations in Rwanda since 1 October 1990, the latter admitted as Prosecution
Exhibit 26. See Des Forges, T. 16 September 2002 pp. 107-118. Having reviewed both exhibits, the Chamber
has relied on the French original, which appears to be more complete than the translation. Compare Prosecution
Exhibit 27 pp. 43-44 (English version of the “Death Squads and the Climate of Terror” section) and Prosecution
Exhibit 26 pp. 78-84 (French version of the “Escadrons de la mort et climat de terreur”).
719
Prosecution Exhibit 26 (Report of 17 March 1993 of the International Commission of Investigation on
Human Rights Violations in Rwanda since 1 October 1990), p. 83.
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political and military figures.720 It contained Janvier Afrika’s assertions that the death squad
decided to attack Bugesera, and that it was composed of Interahamwe from various sectors of
Kigali, military from Camp Kanombe and members of the Presidential Guard.721 In April
1993, after its report, the 1993 Commission issued a press release, where it clarified that it
had used the conditional tense when identifying certain names in its analysis of the death
squads. It was not in a position to confirm the existence of death squads or its members.
However, it reiterated that the evidence supported the assertion that groups did exist to kill.722
614. Additional evidence of investigations into the existence of death squads in Rwanda
was presented through the August 1993 report of United Nations’ Special Rapporteur Bacre
Waly Ndiaye. The report documented the groups’ aims as creating terror and discrediting
democratic reforms through, for example, assassinations and provoking riots in collaborations
with militias and members of the armed forces in civilian attire.723 Although little first-hand
and reliable evidence existed to corroborate allegations surrounding death squads or a Zero
Network involving the President and his close entourage, it found that there were “sufficient
indications” to conclude that a “second power exists alongside that of the official authorities”.
This report attached a response prepared by the Rwandan President’s and Prime Minister’s
offices, which disputed the 1993 Commission findings that the government was involved in
death squads and criticised it for relying on a single witness to suggest the President’s
involvement.724
720
The report identifies the President, his wife, Joseph Nzirorera, Charles Nzabagerageza, Côme Bizimungu,
Casimir Bizimungu, Elie Sagatwa, Protais Zigiranyiranzo, Rucagu as having attended meetings. Prosecution
Exhibit 26 (Report of 17 March 1993 of the International Commission of Investigation on Human Rights
Violations in Rwanda since 1 October 1990), pp. 38-39.
721
Prosecution Exhibit 26 (Report of 17 March 1993 of the International Commission of Investigation on
Human Rights Violations in Rwanda since 1 October 1990), p. 47.
722
Nsengiyumva Defence Exhibit 58 (Press release of 15 April 1993 of the International Commission on Human
Rights Violations in Rwanda since 1 October 1990), pp. 3-4. See also Reyntjens, T. 22 September 2004 pp. 1112.
723
Prosecution Exhibit 28 (Report of 11 August 1993 by the United Nations Special Rapporteur Bacre Waly
Ndiaye on Extrajudicial, Summary or Arbitrary Executions and Addendum of 7 April 1993 of the Rwandan
offices of the President and Prime Minister), p. 13, which reads: “The existence of ‘death squads’ is the subject
of much argument in Rwanda, particularly since the close entourage of the Head of State, and even the President
himself, have been explicitly accused of being involved in a clandestine organization known as ‘Network Zero’.
It has been reported that the objective of such groups is to get rid of troublesome individuals in order to create a
climate of terror and insecurity, thus discrediting democratic reforms, the multi-party system and the peace
process initiated at Arusha. Methods used are said to include assassinations of the regime’s opponents (notably
by poisoning, terrorist attacks or faked robberies), and provoking bloody riots and confrontations, sometimes in
collaboration with the militias of parties close to those in power, plain-clothes members of the armed forces or
representatives of the authorities. Several observers accuse such groups of being responsible for the planning of
massacres of one part of the population by another. Unfortunately, there is little first-hand and reliable evidence
to corroborate these allegations. There are nevertheless sufficient indications to enable the Special Rapporteur to
conclude that a second power exists alongside that of the official authorities.”
724
Prosecution Exhibit 28 (Report of 11 August 1993 by the United Nations Special Rapporteur Bacre Waly
Ndiaye on Extrajudicial, Summary or Arbitrary Executions and Addendum of 7 April 1993 of the Rwandan
offices of the President and Prime Minister), p. 30, which addresses allegations related to death squads, and, in
part, reads: “[T]he report of the International Commission of Inquiry makes an inadmissible mistake in giving
the impression that the Government is responsible for the criminal acts perpetrated by ‘death squads’. This
question calls for clarification by the International Commission of Inquiry, which states, on the basis of
testimony by a single individual, that the President of the Republic chaired a ‘death squad’ meeting during
which it was decided to massacre the Bagogwe.”
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615. The Chamber’s view is that the Prosecution evidence reflecting contemporaneous
investigations into the existence of death squads is compelling. The reports appear to reflect
evolving investigations related to various attacks in Rwanda from 1990 and make convincing
arguments that the violence was not disorganised or spontaneous but committed with
cooperation of various government and military authorities.725 According to Reyntjens, he
carefully considered the quality of the evidence he received with respect to death squads.726
His methodology incorporated measures to safeguard against reporting misinformation.727
Nonetheless, he conceded that his research was not a judicial inquiry and that a more serious
international inquiry was required.728 The 1993 Commission expanded on Reyntjens’s
research and, when testifying, he found its findings compelling. Moreover, he did not think
that the participation of Jean Carbone, an RPF sympathiser, improperly influenced the
report.729 However, Reyntjens did not believe that the facts reported by the 1993 Commission
were established beyond reasonable doubt. He noted that the 1993 Commission was not
conducting a judicial inquiry but revealing the findings of concerned human rights and
development advocates.730
616. Some of the testimonies about death squads from Prosecution Witnesses XXC, XAQ,
ZF, DO, Dallaire and Beardsley corroborate the prior reports that clandestine groups began to
engage in targeted violence beginning around the advent of multi-party politics. Like the
prior investigations, Witness XXC testified that figures close to the President, such as
Simbikangwa, Sagatwa and Zigiranyirazo, were purported members of the death squad.
Indeed, Witness XXC’s testimony offers striking parallels to activities of certain members
that were also mentioned in the contemporaneous investigations.731 However, the witnesses’
evidence of the existence and activities of the death squads prior to 1994 is second-hand, and,
Dallaire, for example, did not view the source of his information to be wholly reliable.
617. Turning to the Accused, the evidence implicating them as members of death squads is
also second-hand. Janvier Afrika did not provide testimony. His article, which identified
725
Ruzibiza also testified that the killings of Bagogwe Tutsis in Ruhengeri and the attacks in Bugesera involved
Rwandan “government forces as well as members of the local administration”. See T. 10 March 2006 p. 19.
726
See, e.g., T. 22 September 2004 pp. 4-8.
727
Prosecution Exhibit 303 (Report of 9 October 1992 by Filip Reyntjens on Information on the “Escadrons de
la mort”), pp. 3-4, which notes that the testimony was collected separately and only persons identified by all five
witnesses were mentioned explicitly in the report as responsible for upheavals. See also T. 16 September 2004
pp. 33, 35-36 (noting that if Janvier Afrika was his only witness he would not have written his report, which
only mentions individuals identified by several sources); T. 22 September 2004 p. 9 (affirming that his report
only identified by name individuals identified by all five sources).
728
T. 16 September 2004 pp. 33, 36-38, 39-41; Prosecution Exhibit 303 (Report of 9 October 1992 by Filip
Reyntjens on Information on the “Escadrons de la mort”), pp. 7-8, which reads: “In order, as far as possible, to
get right to the bottom of these events and to avoid their repetition, it is imperative to have an exhaustive
international investigation.”; Bagosora Defence Exhibit 127 (Letter of 27 October 1992 from Filip Reyntjens to
Colonel Sagatwa), which also suggests that it is in everyone’s interests that a serious international investigation
be conducted.
729
T. 16 September 2004 pp. 43-44; T. 20 September 2004 pp. 17-18.
730
T. 16 September 2004 pp. 43-44.
731
Compare, e.g., Witness XXC’s testimony, summarised above, suggesting that Simbikangwa was involved in
torturing an individual and that death squads employed the president’s residence for this purpose and
Prosecution Exhibit 26 (Report of 17 March 1993 of the International Commission of Investigation on Human
Rights Violations in Rwanda since 1 October 1990), p. 83, which, in identifying purported members of the death
squad or zero network, reads: “le captain Pascal Simbikangwa (également repute pour avoir torture de
nombreuses personnes de ses mains dans les locaux memes de la présidence, au service dit ‘du fichier’)”.
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Bagosora assisting those who organised disturbances in Bugesera and elsewhere, does not
expressly detail Bagosora’s actions.732 Reyntjens’s report appears to be the only
contemporaneous investigation implicating both Nsengiyumva and Bagosora as members of
the death squads.733 However, Reyntjens was clear to point out that his limited investigation
did not reveal specific activities of either.734 Additionally, Dallaire also testified that he had
heard that Bagosora was a member of death squads but his basis for knowledge was secondhand, and unverified in his view. Witness DO’s testimony that Nsengiyumva was involved
with the death squad was also second-hand. Moreover, while Witness XAQ’s testimony
suggests that the death squad was part of the Para Commando Battalion, his evidence did not
directly implicate Ntabakuze.735
618. The Defence led evidence to suggest that targeted killings in Rwanda were conducted
by the RPF and attributed to those aligned with Habyarimana. This information is also
second-hand and, in the Chamber’s view, does not preclude the possibility that targeted
killings and disturbances discussed in the Umurava article or investigated by Reyntjens, the
1993 Commission, and the United Nations Special Rapporteur, were carried out by
individuals aligned with Habyarimana.
619. The Chamber finds that considerable evidence points to the existence of death squads
in Rwanda years before the killings in April 1994. Several sources from this period point to
Bagosora as a member of death squads. Nsengiyumva is less frequently identified, and
Ntabakuze’s participation can only be inferred based on the suggestion that members of the
Para Commando Battalion were part of the death squads. As all the sources are second-hand
and evidence describing the Accused’s activities is limited, the Chamber cannot find beyond
reasonable doubt that they were members of death squads. There is no evidence linking
Kabiligi to death squads.
620. The Chamber has previously found that the Accused had sufficient notice of the death
squad allegations. In light of the findings above, it does not find it necessary to revisit the
Defence submissions about notice.736
732
Nsengiyumva Defence Exhibit 57 (Umurava No. 10, August 1992).
Bishop Kalibushi’s statement of July 1997 to Tribunal investigators describes Nsengiyumva as the head of
the death squads in Gisenyi prefecture. See Prosecution Exhibit 422B (statement of 29 July 1997), p. 4 which
reads: “As far as I can tell you about the activities of Colonel Anatole Nsengiyumva during the genocide period
… He was the supreme leader of the ‘Esquadron de la mort’ (Death Squad) in Gisenyi Prefecture … This man
was a killer and supreme commander of death squads.” The statement was tendered during the crossexamination of Nsengiyumva in connection with the assessment of the Accused’s credibility. It does not
indicate the bishop’s basis of knowledge for the assertion.
734
See T. 16 September 2004 pp. 38-39; T. 22 September 2004 p. 10.
735
The Chamber notes that in response to a question of whom the death squads targeted, Witness XAQ testified
that Munyankindi informed him that Ntabakuze led soldiers in a failed attempt to eliminate Prime Minister
Dismas Nsengiyareme. T. 23 February 2004 pp. 19-20. However, the Defence objected to this evidence and the
Chamber excluded it. See T. 23 February 2004 pp. 20-21, 30-32. See also Bagosora et al., Decision on
Prosecutor’s Interlocutory Appeals Regarding Exclusion of Evidence (AC), 19 December 2003, paras. 7, 22-23.
736
Decision Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April 2007,
paras. 6-10. See also Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 1114; Decision on Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 33-34; Decision on Bagosora Motion for the Exclusion of Evidence Outside the
Scope of the Indictment (TC), 11 May 2007, paras. 61-65.
733
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2.10 Radio Télévision Libre des Mille Collines
Introduction
621. Each of the Indictments alleges that prominent figures close to President
Habyarimana created RTLM as a mechanism for the dissemination of ethnic hatred and calls
to ethnic violence. The Prosecution contends that the Accused were involved in RTLM in
various ways, including ownership of shares. Reference is made primarily to Expert Witness
Alison Des Forges as well as Witnesses XBM, Georges Ruggiu and DA. Several other
witnesses testified about the nature of RTLM’s content, such as Witnesses DBN, DBJ, CJ,
FW, AAA and LN.737
622. The Bagosora Defence accepts that Bagosora was a shareholder in RTLM, but
submits that his brother bought the shares for him for commercial reasons. There is no
evidence to suggest that Bagosora had any involvement in the content or ideology of RTLM’s
broadcasts. The Nsengiyumva Defence disputes the credibility of Witness XBM’s assertion
that Nsengiyumva attended the inauguration meeting at Mount Muhe and refers to Witnesses
CF-2 and YD-1 to refute his account. The Kabiligi Defence challenges the credibility of
Ruggiu’s assertion that Kabiligi provided any support to RTLM.738
Evidence
Prosecution Expert Witness Alison Des Forges
623. Alison Des Forges, an expert in Rwandan history, testified that a vast majority of
RTLM’s shareholders, approximately 800 out of 1,137 in total, held only one share because
“there was an effort to enlist the maximum number of shareholders possible in order to create
the sense that this was a voice of a large number of Hutu”. She noted that the nature of the
ownership of RTLM’s shares was an “unusual structure” atypical of Rwanda at the time.
Bagosora was one of only nine shareholders who owned 50 shares or more, including
President Habyarimana who held the largest number. According to a receipt, Bagosora’s
shares were valued at 250,000 Rwandan Francs. Nsengiyumva had 10 shares, and Ntabakuze
had one share. From October 1993, the content of RTLM was highly politicised, calling for
the assassination of Tutsis and members of the Hutu opposition. In the months leading up to
737
Bagosora Indictment, para. 1.16; Kabiligi and Ntabakuze Indictment, para. 1.16; Nsengiyumva Indictment,
para. 1.16; Prosecution Closing Brief, paras. 299, 386, 431, 540-554, 494, 634, 761, 1009, 1010(c-f), 1054,
1124, 1125(a), 1193(d), 1199(h), 1319, 1469(h); T. 28 May 2007 p. 13. The Prosecution also points to the diary
of Witness DH-91, which was a contemporaneous account of the events, indicating that RTLM encouraged
people to view the conflict in Rwanda as an ethnic one and stirred hatred in all parts of the country. See
Prosecution Exhibit 334 (Diary of Witness DH-91). Witness DH-91 acknowledged that he refused to listen to
RTLM in view of its content. See T. 26 April 2005 p. 6.
738
Bagosora Closing Brief, paras. 793-799; Kabiligi Closing Brief, paras. 716, 718-720, 725; T. 28 May 2007
pp. 23-24 (Kabiligi); T. 30 May 2007 p. 22 (Bagosora). The Nsengiyumva Closing Brief does not address the
installation ceremony or Nsengiyumva’s ownership of RTLM shares, but the Defence made oral submissions on
these issues, see T. 31 May 2007 pp. 34-35, 47-48 (Nsengiyumva). The Ntabakuze Defence did not comment
upon these allegations.
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the genocide, RTLM contributed to creating an atmosphere of fear and hatred, repeatedly
conveying the message that the Tutsis were the enemy.739
Prosecution Witness Georges Ruggiu
624. Georges Ruggiu, a Belgian and Italian national, worked as a broadcast journalist for
RTLM from 6 January to 14 July 1994. At its inception, RTLM’s mandate was to promote a
pro-MRND agenda and to counter the RPF in the media. After the death of President
Habyarimana on 6 April 1994, the editorial policy changed, and RTLM became a radio
station at war with the RPF. Its programming content expanded to promote a pro-Hutu
agenda and to support the army, Interahamwe and interim government in their fight against
“all Inyenzis”, which could be interpreted as Tutsis. Broadcasters referred to the RPF and
their supporters as “Inyenzi-Inkotanyi”. According to Ruggiu, the coverage was not
balanced.740
625. The daily management of the station fell under Gaspard Gahigi, the editor-in-chief,
who worked with Phocas Habimana, the director-general, and Ferdinand Nahimana, a
member of the station’s comité d'initiative. This committee was composed of at least 12
members, including Nahimana who supervised editorial content, Jean-Bosco Barayagwiza
who along with Nahimana dealt with financial matters, and Joseph Serugendo who handled
technical issues. RTLM cooperated with the interim government and the army. Habimana
served as the main contact between RTLM and the army and regularly communicated with
General Augustin Bizimungu, the army Chief of Staff.741
626. RTLM received its information for broadcasts from the Interahamwe, the military as
well as foreign media outlets. The Interahamwe and the army would sometimes call with
names of people who were wanted and should be arrested, which were then broadcast in
order to assist with the war effort. The Ministry of Defence provided information through its
communications liaison officer or weekly briefings on the situation at the war front as well as
anything else which might be advantageous to the war effort and demoralising to the RPF.
The army also asked the station to suppress disadvantageous information, such as the ongoing
killings, but had “no business in the editorial policy” of RTLM. According to Ruggiu,
Habimana and Gahigi imposed this censorship, and no one complained about it.742
627. Around the end of January or beginning of February 1994, Ruggiu requested a permit
from the Ministry of Defence for a pistol after an incident at a press conference. After 6
April, Ruggiu felt threatened by the Belgian contingent of UNAMIR and feared arrest. He
739
T. 18 September 2002 pp. 15, 32-33, 35-36, 39; Prosecution Exhibit 41 (Copy of a receipt for RTLM shares
purchased by Bagosora). Des Forges did not identify the other prominent shareholders than Habyarimana and
three of the Accused, but noted that they included “a number of important shareholders among military officers
and among other notable personages in society”. Id. p. 39. However, an incomplete list of the shareholders can
be found at Prosecution Exhibit 336, which names several other individuals who have been charged before the
Tribunal, such as Ferdinand Nahimana (10 shares), Michel Bagaragaza (10 shares), Augustin Ngirabatware (20
shares), Félicien Kabuga (100 shares), Simon Bikindi (one share), Joseph Serugendo (10 shares) Pauline
Nyiramasuhuko (one share) and Jean Bosco Barayagwiza (15 shares).
740
T. 16 June 2003 pp. 3, 5, 10-12, 25-27, 31-32; T. 17 June 2003 pp. 2, 86-87. Ruggiu pleaded guilty before the
ICTR to persecution as a crime against humanity and incitement to genocide for the content of broadcasts he
made during his employment with RTLM. He was sentenced to 12 years’ imprisonment. See also Ruggiu Trial
Judgement, pp. 19-20.
741
T. 16 June 2003 pp. 12-13, 26-27; T. 17 June 2003 pp. 7, 40-43, 80, 85.
742
T. 16 June 2003 pp. 29-31; T. 17 June 2003 pp. 6-8, 28, 76, 86-88.
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therefore requested protection and was allowed to stay at Camp Kigali for a few days. Later,
Ruggiu, Gahigi and three or four other journalists were allowed to stay at the Hôtel des
Diplomates, which the military authorities had requisitioned. Ruggiu noted that Bizimungu
facilitated his stay at the hotel. In connection with his fears, he was provided with a driver
and an escort, which he claimed was approved by Kabiligi. While at Camp Kigali, he asked
to wear military attire so that he would not be as conspicuous at the camp. For the most part,
other RTLM staff did not receive this same treatment, but he was given privileges because he
had been threatened.743
628. After 6 April, members of the Presidential Guard, who were at the nearby office of
the President, as well as police made available by the office of Kigali-Ville prefecture, began
providing security for RTLM. On 4 July 1994, as the RPF took Kigali, the Rwandan army
moved RTLM’s transmitter to Mount Muhe in Gisenyi prefecture on buses it had
commandeered. The station’s journalists moved there as well with vehicles and fuel provided
by the army. RTLM’s last broadcast from Gisenyi prefecture was transmitted on 13 July
1994.744
Prosecution Witness DA
629. Witness DA, a Hutu member of the Reconnaissance Battalion, testified that Captain
Sagahutu encouraged him and other members of their battalion to purchase shares of RTLM.
According to the witness, Sagahutu was a principal shareholder. Sagahutu told the soldiers
that the RTLM was their radio station and that it would allow the military to air its views.745
Other Prosecution Witnesses746
630. Witness DBN, a Tutsi member of the Para Commando Battalion, listened to RTLM
from April until June 1994 and regularly heard broadcasts encouraging Hutus to
“exterminate” Tutsis.747 Witness DBJ, a Tutsi, heard on the morning of 7 June 1994, Prefect
Tharcisse Renzaho saying on RTLM that “Inyenzi” who had been forgotten were hiding in
the ceiling of the Saint Josephite Centre in the Nyamirambo area of Kigali.748 Witness CJ, a
Hutu, heard RTLM denounce Frédéric Nzamurambaho, the Chairman of the PSD party and
Minister of Agriculture, who was ultimately killed by the military on the morning of 7 April
1994.749
743
T. 16 June 2003 pp. 6-10; T. 17 June 2003 pp. 12-18, 21-22, 40, 64-65. Ruggiu did not specify the nature of
the incident which prompted him to request the pistol.
744
T. 16 June 2003 pp. 18-20, 23, 28.
745
T. 19 November 2003 pp. 17-18; Prosecution Exhibit 129 (personal identification sheet).
746
Several other witnesses, not referred to by the Prosecution in its Closing Brief, also attested to the extremist
content of RTLM broadcasts and in particular to its incitement of killing after 6 April 1994. See, e.g., Beardsley,
T. 3 February 2004 p. 29 (RTLM was an extremist radio station which refused a request by General Dallaire
made on 7 April 1994 that a communiqué be broadcast across the country appealing for calm); Dallaire, T. 20
January 2004 pp. 32-33 (heard numerous RTLM broadcasts after April 1994 inciting people to violence,
specifically messages focusing on violence towards women); Sagahutu, T. 27 April 2004 pp. 59-60; T. 28 April
2004 p. 37 (RTLM regularly propagated ethnic hatred).
747
T. 1 April 2004 pp. 60-61; Prosecution Exhibit 198 (personal identification sheet).
748
T. 24 November 2003 pp. 14-17; Prosecution Exhibit 136 (personal identification sheet). The evidence
concerning the attack in June 1994 at the Saint Josephite Centre is discussed in section III.4.1.14.
749
T. 25 November 2003 pp. 38, 40-41, 46; Prosecution Exhibit 137 (personal identification sheet). The killing
of Nzamurambaho is discussed below (III.3.3.3).
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631. Witness FW, a Tutsi, listened to RTLM in early April and heard broadcasts urging
Tutsis to return from their hiding places to their homes and also informing the army that
Tutsis were hiding at the Islamic Cultural Centre in the Nyamirambo area of Kigali.750
Witness AAA, a Hutu local official in Kigali, heard RTLM broadcasts summoning the army
and Interhamwe to kill Tutsis at a house in his locality.751 Witness LN, a Tutsi and former
member of the Para Commando Battalion, heard RTLM broadcast on the night of 6-7 April
that the Inyenzi-Inkotanyi, their accomplices as well as the Belgians had to pay for the killing
of President Habyarimana.752
Prosecution Witness XBM
632. Witness XBM, a Hutu member of the CDR party in Gisenyi prefecture, testified that
he and more than 1,500 other persons attended the inauguration ceremony of the RTLM radio
antenna on Mount Muhe in Mutura commune in October 1993. Barayagwiza told those
assembled that the purpose of RTLM was to “know who the real enemy is and be able to
fight against the enemy”. According to the witness, Nsengiyumva spoke next and said that
civilians had to help the army in fighting the enemy. 753
Bagosora
633. Bagosora owned 50 shares in RTLM, but testified that they were purchased by his
brother as an investment without his prior knowledge. He had no other connection with
respect to the station. RTLM was established in order to support the Presidential camp and to
counter the RPF radio station, Radio Muhabura. The news content and music were not to his
taste. In Bagosora’s view, the station was mismanaged and the tone of the broadcasts
endangered people. He had no authority in his position to shut the station down. Bagosora
was not aware if the station operated with the support of the Ministry of Defence.754
634. Bagosora recognised the importance of the media in connection with the war effort as
well as the radio as a medium of communication in Rwanda. In particular, in discussing the
work of the Enemy Commission which he chaired, he noted that its mandate included finding
ways to defeat the enemy militarily, politically and in the media, emphasising the importance
of propaganda. Bagosora also noted that radio was the main means of mass communication
because most of the Rwandan population did not read newspapers.755
635. The notations in Bagosora’s agenda for the date of 10 February 1993 include notes
concerning “censorship imposed on the radio” and “listening to all radio programs”.
Bagosora made these entries during meetings at the Ministry of Defence. After the
government refused to accept a proposed state of emergency, the Ministry proposed
reviewing and imposing some form of censorship on radio programs which went against the
defence of the country. He noted that at the time the war was on and that information had to
750
T. 3 November 2003 pp. 2-4, 9-10; Prosecution Exhibit 116 (personal identification sheet). The killings at the
Islamic Cultural Centre are discussed below (III.4.1.2).
751
T. 14 June 2004 pp. 46-47; Prosecution Exhibit 263 (personal identification sheet).
752
T. 30 March 2004 pp. 57-59; Prosecution Exhibit 197 (personal identification sheet).
753
T. 14 July 2003 pp. 4, 31-32, 51, 54; T. 15 July 2003 p. 45; Prosecution Exhibit 80 (personal identification
sheet).
754
T. 25 October 2005 pp. 20-25, 27-29, 31-32; T. 15 November 2005 pp. 41-45, 49-50.
755
T. 26 October 2005 pp. 47, 52, 81.
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be geared to assisting the war effort and not demoralising the soldiers. At the time of the
entries, only Radio Rwanda existed.756
Nsengiyumva
636. Nsengiyumva said that he purchased 10 shares in RTLM as a commercial investment.
He was unaware of the editorial content of the station, as he was not able to receive it in
Gisenyi prefecture. Nsengiyumva denied attending a meeting for the inauguration of a RTLM
antenna at Mount Muhe in 1993.757
Nsengiyumva Defence Witnesses CF-2 and YD-1
637. Witness CF-2, a Hutu CDR official in Gisenyi prefecture, testified that he was
familiar with his party’s activities from 1992 until 1994. According to the witness, the
installation of the RTLM antenna at Mount Muhe was a private event, which he did not
attend, and not a major gathering, which would have been inconsistent with the Arusha Peace
Accords.758 Witness YD-1, a Hutu who lived in close proximity to Mount Muhe during the
relevant time period, said that he was unaware of a large ceremony or meeting being held at
Mount Muhe for the purposes of installing an RTLM antenna.759
Deliberations
638. The Chamber notes that the Prosecution has not listed the relevant allegations in the
Indictments related to RTLM under any of the charges against the Accused.
639. It is clear that RTLM played a significant role in sowing ethnic discord before 6 April
1994 and in inciting genocide against members of the Tutsi population after the death of
President Habyarimana on 6 April. This follows from Witnesses Ruggiu, DBN, DBJ, CJ,
FW, AAA, LN, Dallaire and Beardsley as well as Expert Witness Alison Des Forges.760
These findings are also in accord with the conclusions of the Appeals Chamber and Trial
Chamber in the Nahimana et al. case.761
640. The principal question for the Chamber is whether the Accused played a role in the
establishment and operation of RTLM. The Prosecution points to evidence that the Enemy
Commission (III.2.2), which included Bagosora, Nsengiyumva and Ntabakuze, recognised
the need to control the media as part of its strategy to defeat the RPF. This premise was
allegedly later underscored by Bagosora in his testimony and in entries in his diary,
756
T. 28 October 2005 pp. 25-27; Prosecution Exhibit 278 (Expert Report of Antipas Nyanjwa, Test Collection
A: Bagosora Agenda).
757
T. 9 October 2006 pp. 46-47; T. 12 October 2006 pp. 83-84.
758
T. 29 November 2005 pp. 48-49, 57, 68-69, 71, 75; Nsengiyumva Defence Exhibit 127 (personal
identification sheet).
759
T. 12 December 2005 pp. 40, 47-48, 54-56; Nsengiyumva Defence Exhibit 131 (personal identification
sheet). Witness YD-1 lived approximately 4.5 kilometres from Mount Muhe.
760
The Chamber has expressed reservations about the credibility of Witness AAA in sections III.4.1.10-11 of
the judgement, but accepts his evidence about the incident in the present context. His description mirrors a
pattern which also follows from other evidence.
761
Nahimana et al. Appeal Judgement, paras. 754, 758 (“The Appeals Chamber thus finds that, although it is
clear that RTLM broadcasts between 1 January and 6 April 1994 incited ethnic hatred, it has not been
established that they directly and publicly incited the commission of genocide … The Appeals Chamber finds
that it has not been demonstrated that the Trial Chamber erred in considering that some of the RTLM broadcasts
after 6 April 1994 called for the extermination of Tutsis and amounted to direct and public incitement to commit
genocide.”), citing Nahimana et al. Trial Judgement, para. 486.
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emphasising the importance of radio broadcasts in Rwanda and the need to communicate
with the population during war. Against this backdrop, the Prosecution highlights the
ownership of shares in RTLM by Bagosora, Nsengiyumva and Ntabakuze, in particular
Bagosora’s significant ownership interest in RTLM as compared with other shareholders. It
also points to Nsengiyumva’s participation in the inauguration of RTLM’s radio antenna on
Mount Muhe and the privileges and protection extended to RTLM personnel such as Ruggiu
by Kabiligi.762
641. The Chamber is not persuaded that the recognition in the Enemy Commission’s report
that control of the media was essential to obtain victory against the RPF demonstrates that
Bagosora, Nsengiyumva and Ntabakuze played any particular role in the creation or control
of RTLM, even when seen in the light of subsequent developments. Likewise, RTLM’s calls
for the population to support the army does not itself illustrate army control of the station.763
This said, it does suggest that RTLM and the army shared some common goals.
642. Bagosora, Nsengiyumva and Ntabakuze were among the 1,137 shareholders of
RTLM. In particular, Bagosora’s ownership interest appears significant since his 50 shares
are amongst the largest held by a single individual. But there is no evidence that ownership of
these shares gave the Accused any role in RTLM’s operation or in the shaping of its
broadcasts. The Prosecution points to no further evidence of any significant interaction on
their part in support of the station, with the exception of Nsengiyumva (discussed below).
643. More generally, the Prosecution suggests that the army’s alleged encouragement of
soldiers to buy RTLM shares, based mainly on the testimony of Witness DA, illustrates the
military’s overall support for the creation and mission of the station. However, even if
accepted, Witness DA’s evidence does not refer to encouragement by any of the Accused.
There is also no evidence as to what percentage of the shareholders belonged to the army.
Furthermore, bearing in mind the relatively low price for an individual share and the efforts
to maximise the number of single share owners, the Chamber is not convinced, by Witness
DA’s evidence alone, that purchasing shares was a genuine policy of senior army officials to
encourage support of the station, in particular when taking account of the relative size of the
army, numbering around 30,000 (III.1.2), when compared to the number of shareholders
totalling only 1,137.
644. Turning to Nsengiyumva’s alleged participation in the inauguration of RTLM’s radio
antenna, the Chamber notes that Witness XBM was the only witness to testify about
Nsengiyumva’s presence at this event. The Chamber has expressed reservations about his
credibility elsewhere in the judgement (III.3.6.7). Consequently, the Chamber declines to
accept this aspect of his testimony without additional corroboration. Witnesses CF-2 and YD1 did not attend the ceremony, and their evidence is of limited value.
762
Prosecution Closing Brief, paras. 540-543, 546, 549, 551-553. The Prosecution also suggests that RTLM was
created because Radio Rwanda was not sufficiently supportive of the Rwandan army. Id. paras. 544-545. The
evidence referred to by the Prosecution is inconclusive and, even if true, does not concretely show a specific
connection between the Accused and RTLM.
763
The Prosecution refers to transcripts of a RTLM broadcast of 10 March 1994. See Prosecution Closing Brief,
para. 548, quoting Prosecution Exhibit 250C (“But I have to remind you that since we started broadcasting these
songs when RPF said it wanted to fight again, we found out that it was compulsory to support our army. The
military were pleased as they called us many times and some of them even expressed their support to them
because they said those songs raise their spirits. Whenever they hear them it pleases them and there are some
who dance. In few, they say those songs help them very much.”).
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645. With respect to the Rwandan army’s support to RTLM and its personnel, the
Prosecution relies primarily on Ruggiu. In particular, he recounted how the army provided
him with a firearm, military attire, housing at Camp Kigali and the Hôtel des Diplomates, fuel
and an escort and vehicle. Furthermore, he said that the station was guarded by members of
the Presidential Guard after 6 April and that the military transported RTLM’s transmitter
from Kigali to Gisenyi prefecture on 4 July in a commandeered bus. There are no disputes
about these aspects of Ruggiu’s testimony.
646. The Chamber observes that most if not all of Ruggiu’s perquisites, such as his
firearm, military attire and housing, appear to have been extended to him alone and not to
RTLM staff in general. Moreover, they were provided in view of his individual
circumstances after he personally requested them. Thus, the evidence of benefits extended to
Ruggiu does not convincingly reflect an overall policy of army support for RTLM.
647. However, in the Chamber’s view, the security provided by Presidential Guard at the
station after 6 April, the housing provided to some RTLM staff at the Hôtel des Diplomates,
and the role played by the army in moving RTLM’s transmitter from Kigali to Gisenyi
prefecture reflect a more substantial form of assistance by the army to the station. This
evidence is indicative of the army’s efforts to ensure that RTLM continued its broadcasts,
thus reflecting its general approval of the editorial content. By itself, however, it does not
demonstrate any overall editorial control by the army of the station’s broadcasts. Indeed,
Ruggiu was clear that RTLM was not under the military’s authority. While he pointed to
frequent contacts by the station manager and General Bizimungu, the witness did not
participate in their discussions.
648. Furthermore, Ruggiu’s testimony about military support to RTLM does not directly
implicate the Accused. He makes only two brief references to Kabiligi authorising his
military escort.764 This aspect of Ruggiu’s testimony is lacking in detail and, in particular,
does not clarify his basis of knowledge for Kabiligi’s role in assigning the escort. The
Prosecution did not pursue this part of his testimony, and the Chamber does not consider that
this brief and unsubstantiated reference convincingly demonstrates any involvement by
Kabiligi in assisting Ruggiu or playing a role in RTLM. Ruggiu mainly implicated General
Bizimungu, as well as lower level liaison officers, as the main contact points between the
station and the army.
649. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond
reasonable doubt that the Accused played a significant role in the creation or control of
RTLM. Nevertheless, Bagosora’s relatively significant ownership interest in the station is
noteworthy. It amounted to three times his monthly income.765 Even if one were to accept his
argument that he was unaware of the initial purchase made by his brother, he never moved to
disassociate himself from RTLM, for instance, by selling the shares, even as the content of its
broadcasts became progressively more extremist and ultimately criminal after 6 April 1994.
The much smaller ownership interest by Nsengiyumva and Ntabakuze to be less significant in
764
See T. 16 June 2003 p. 7 (“Q. Who assigned the escort to you? A. The first time it was the French soldiers I
met at Gisneyi in Rwanda. Later, it was General Kabiligi who assigned an escort to me every week.”); T. 17
June 2003 p. 13 (“It was General Kabiligi who issued the order that I be provided with military escort, and these
were made available to me for one week.”).
765
Bagosora, T. 15 November 2005 p. 42.
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this regard. The Chamber also finds that the army provided substantial assistance to RTLM in
order to ensure that it continued its broadcasts, reflecting its general approval of the station.
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3.
3.1
EVENTS FROM 6 TO 9 APRIL 1994
Death of President Habyarimana
650. Around 8.30 p.m. on 6 April 1994, a surface-to-air missile fired from near the Kigali
airport brought down a plane carrying President Juvénal Habyarimana of Rwanda, President
Cyprien Ntaryimara of Burundi, and General Déogratias Nsabimana, the chief of staff of the
Rwandan army. They were returning from peace negotiations in Dar es Salaam aimed at
implementing the Arusha Accords. The blast heard across Kigali killed all on board and, as
the wreckage of Habyarimana’s plane fell to the earth, Rwanda descended into violence.
651. Within 24 hours, armed hostilities resumed between the Rwandan military and the
RPF, and several leading politicians and 10 Belgian peacekeepers were killed. Mass killings
of Tutsi civilians in Kigali and Gisenyi also swiftly followed the blast and then spread
throughout the country with intensified brutality throughout the conflict.
652. According to the Prosecution, the killing of President Habyarimana created a
significant void in Rwanda’s political and military leadership at a sensitive period within its
transition to multi-party politics and in the implementation of the Arusha Accords. It reflected
a point of crisis which the four Accused allegedly used as a pretext to maintain control over
the government. Determining the author of the attack has limited bearing on their
responsibility in relation to their alleged criminal conduct before and after the event.766
653. In the view of the Defence, General Kagame and the RPF launched the attack on
President Habyarimana’s plane in order to seize control of Rwanda through a decisive
military victory. Through the attack, the RPF triggered well-predicted civilian massacres as
part of its war plan, knowing that the Rwandan military would not be able to cope with the
massacres and defend itself against a superior invading force at the same time. According to
the Defence, this undermines the Prosecution’s theory of a long planned conspiracy to
commit genocide and supports the proposition that the mass killings were the result of
spontaneous violence in response to the death of President Habyarimana. These alternative
explanations for the events are addressed below (III.7).
654. In the present context, the Chamber observes that the attack on Habyarimana’s plane
is not charged as a crime in the Indictments and, accordingly, is simply background to the
case. The Chamber will nonetheless bear in mind the evidence highlighted by the Defence in
making its factual findings and address it where it raises reasonable doubt about the
Prosecution’s case.
3.2
Meetings, 6 - 7 April
655. According to the Indictments, Bagosora asserted himself “as the man of the moment
capable of managing the crisis” following the death of President Habyarimana and the army’s
chief of staff and in the absence of the Minister of Defence. From 6 to 7 April 1994,
Bagosora chaired several important meetings of senior military officers and allegedly
presented himself as the representative of the Rwandan government to the public and
international community. The Prosecution claims that, during this period, Bagosora refused to
766
Prosecution Closing Brief, paras. 249 (“No matter who was ultimately responsible for President
Habyarimana’s death, it is clear that his demise titled the Rwandan government military as lords of the Rwandan
manor”), 250-254.
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recognise the political authority of Prime Minister Agathe Uwilingiyimana and attempted to
seize control of the country for the military. It argues that, during this critical period, the final
authority of the Rwandan state rested with Bagosora.767
656. The Defence does not dispute much of the chronology of the official meetings held in
the first 24 hours after the death of the President. However, it contests that the military was
attempting to seize power in a coup d’état or that the meetings reflect a conspiracy to commit
genocide. Instead, the Defence argues that the meetings were not criminal but were normal
actions taken to ensure security in the midst of a crisis.768
3.2.1
Crisis Committee
Introduction
657. Each of the Indictments alleges that on the night of 6 April 1994, Bagosora chaired a
meeting of the two General Staffs of the Rwandan military at the army headquarters in Camp
Kigali. The Indictments further allege that, during this meeting of senior officers, Bagosora
expressed a desire to take power of the government and refused to consult with the Prime
Minister. Furthermore, the Nsengiyumva Indictment alleges that, during this meeting,
Bagosora withdrew on several occasions to receive calls and spoke with Nsengiyumva, who
then gave the order to begin the massacres in Gisenyi.769
Evidence
658. The Chamber heard largely consistent evidence from individuals who directly
participated in this meeting of the Crisis Committee, namely Bagosora, General Dallaire,
Major Beardsley and Colonel Marchal. From the evidence of these witnesses, the following
series of events emerge.
659. In the hours that followed the plane crash on 6 April, Bagosora chaired a military
crisis committee of senior military officials from both the army and gendarmerie at army
headquarters in Camp Kigali which continued into the early hours of the next day.770
Bagosora felt that he was the most appropriate person to chair the meeting because, although
he was not the most senior officer present, as chief of staff of the Ministry of Defence, in his
opinion, he had the authority to speak to both branches of the armed forces in the absence of
the Minister. The Crisis Committee decided that Colonel Marcel Gatsinzi would serve as the
interim chief of staff. General Dallaire and Major Beardsley joined the ongoing meeting of
767
Bagosora Indictment, paras. 6.2-6.8, 6.29-6.30; Kabiligi and Ntabakuze Indictment, paras. 6.2-6.7;
Nsengiyumva Indictment, paras. 6.2-6.6; Prosecution Closing Brief, paras. 249-253 (“But on the night of 6 and
7 April 1994, when the Habyarimana regime was put to rest, the final authority that led Rwanda was Colonel
Bagosora.”).
768
Bagosora Closing Brief, paras. 863-1102; Ntabakuze Closing Brief, para. 2368. The Nsengiyumva Defence
does not address these meetings in its Closing Brief. As there is limited disagreement about the events, the
evidence in the following sections will not be summarised piecemeal.
769
Bagosora Indictment, para. 6.3; Nsengiyumva Indictment, paras. 6.3-6.4; Kabiligi and Ntabakuze Indictment,
para. 6.4.
770
Dallaire, T. 19 January 2004 pp. 22-23, 28; Bagosora, T. 2 November 2005, pp. 77-78. See also Beardsley, T.
3 February 2004 pp. 24-25 (referring to Bagosora’s prominent role in the meeting).
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senior officers between 10.30 and 11.00 p.m. at the request of Lt. Colonel Rwabalinda, the
Rwandan army’s liaison officer with UNAMIR.771
660. During the meeting, Bagosora explained that the military’s main concern was to keep
Kigali calm and secure and to maintain authority until a political structure could be put in
place.772 Dallaire then asked Bagosora why he did not recognise Prime Minister Agathe
Uwilingiyimana as the political authority in the aftermath of Habyarimana’s death.773
Bagosora explained that the Prime Minister was not the right person for the situation and that
the armed forces could not be placed under her authority. Dallaire suspected that the military
was in fact staging a coup d’état, notwithstanding Bagosora’s insistence during the meeting
that this was not the case.774
661. Colonel Marchal arrived around 12.00 a.m., shortly before Bagosora, Lt. Colonel
Rwabalinda and General Dallaire left the meeting in order to discuss the situation with UN
Special Representative Jacques-Roger Booh-Booh at his residence. After Marchal’s arrival,
he and General Ndindiliyimana discussed the possibility of joint patrols with UNAMIR, a
topic they also spoke about with Dallaire after he returned from meeting with Booh-Booh at
about 2.00 a.m. (III.3.2.2). Marchal expressed concern about the safety of UN peacekeepers,
and it was ultimately decided not to have joint patrols. General Dallaire and Major Beardsley
left the army headquarters in Camp Kigali sometime after 2.30 a.m.775
Deliberations
662. The evidence about what transpired at this meeting remains largely uncontested. The
Chamber considers that the Prosecution has proven beyond reasonable doubt that Bagosora
chaired the Crisis Committee meeting of the two General Staffs and refused to recognise the
authority of Prime Minister Agathe Uwilingiyimana. However, the Prosecution did not
present any direct testimony on Bagosora’s alleged attempt to seize control of the
government for the military, an attempt that was rebuffed by other officers. Furthermore,
there was no testimony that Bagosora withdrew several times during the Crisis Committee
meeting to give orders to Nsengiyumva to begin the massacres in Gisenyi prefecture.776
771
Dallaire, T. 19 January 2004 pp. 22-23, 38; Bagosora, T. 2 November 2005, pp. 73-80; Booh-Booh, T. 21
November 2005 p. 80. See also Beardsley, T. 3 February 2004 pp. 24-25; Bagosora Defence Exhibit 66B
(Minutes of meeting of 6-7 April 1994: “On the night of 6-7 April 1994, the directeur de cabinet of MINADEF
chaired a meeting bringing together the Gendarmerie chief of staff, MINADEF Officers [and] the Army and
Gendarmerie Senior Staff.”), para. 1.
772
Dallaire, T. 19 January 2004 p. 24.
773
Id. pp. 24-25; Beardsley, T. 3 February 2004 p. 25.
774
Dallaire, T. 19 January 2004 pp. 24-25; Beardsley, T. 3 February 2004 p. 25; Bagosora, T. 7 November 2005
pp. 5, 8-9.
775
Dallaire, T. 19 January 2004 pp. 26-28, 34-35; Marchal, T. 4 December 2006 p. 57.
776
However, the Chamber heard evidence on communications from Bagosora and Nsengiyumva on 6 April
1994 from Prosecution Witness ZF, who allegedly overheard Nsengiyumva receive a call from Bagosora. This
evidence was excluded with respect to Bagosora based on lack of notice. See Decision on Bagosora Motion for
the Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May 2007, para. 73. The evidence is
discussed with respect to Nsengiyumva in section III.3.6.1.
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3.2.2
Meeting with Booh-Booh
Introduction
663. The Bagosora Indictment alleges that, in the early morning of 7 April 1994, Bagosora
and General Roméo Dallaire met with UN Special Representative Jacques-Roger Booh-Booh
at his residence. The Prosecution contends that Bagosora introduced himself as the
“interlocutor of reference” and acted as the representative of the Rwandan government. It
also alleges that he refused to consult with the Prime Minister.777
Evidence
664. General Dallaire, Bagosora and Special Representative Booh-Booh directly
participated in this meeting and provided generally consistent evidence on the unfolding of
the event.
665. Between 12.30 a.m. and 1.00 a.m., Bagosora, Lt. Colonel Rwabalinda and General
Dallaire left Camp Kigali to meet with Booh-Booh.778 Bagosora briefed Booh-Booh about the
ongoing situation and expressed concern that the events would be viewed as a coup d’état.779
Bagosora added that the military’s role was to administer security and maintain calm pending
the transfer of power to an interim government.780 Booh-Booh told Bagosora that the military
should consult with Prime Minister Agathe Uwilingiyimana as the Arusha Accords still
governed the political situation in the country.781 Bagosora rejected the proposal to consult
with the Prime Minister.782 He acknowledged that she was the Prime Minister, but refused to
place the military under her command, citing her status in the minority of the MDR party and
her possible participation in a coup d’état several days earlier.783
666. Booh-Booh proposed a meeting with the Ambassadors of the United States, France
and Belgium the following morning at 9.00 a.m. to further discuss the situation.784 The
meeting with Booh-Booh ended around 1.30 a.m., and Dallaire, Bagosora and Rwabalinda
returned to army headquarters at Camp Kigali around 1.30 or 2.00 a.m.785
667. Bagosora denied that he introduced himself as the “person or representative of
reference” and explained that he was the representative of the armed forces.786 Booh-Booh
denied that Bagosora presented himself as the head of the government.787
777
Bagosora Indictment, para. 6.4; Prosecution Closing Brief, pp. 744-745.
Dallaire, T. 19 January 2004 pp. 28-29.
779
Id. pp. 32-33.
780
Id. p. 32; Bagosora, T. 7 November 2005 p. 20.
781
Booh-Booh, T. 7 November 2005 p. 22; T. 21 November 2005 pp. 80-81.
782
Dallaire, T. 19 January 2004 p. 44; Bagosora, T. 7 November 2005 p. 21; Booh-Booh, T. 21 November 2005
p. 81.
783
Bagosora, T. 7 November 2005 pp. 19, 21-22, 26.
784
Dallaire, T. 19 January 2004 p. 44.
785
Id. p. 34; Bagosora, T. 7 November 2005 p. 26.
786
Bagosora, T. 7 November 2005 p. 17.
787
Booh-Booh, T. 21 November 2005 p. 82.
778
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Deliberations
668. The evidence concerning the meeting with Booh-Booh is not disputed. The Chamber
considers that the Prosecution has proven beyond reasonable doubt that Bagosora attended a
meeting with Booh-Booh around 1.00 to 1.30 a.m. on 7 April in which he acted as the
representative of the armed forces and refused to consult with the Prime Minister.
3.2.3
Meeting with the United States’ Ambassador
Introduction
669. The Bagosora Indictment alleges that Bagosora met with the Ambassador of the
United States at his residence at around 9.00 a.m. and presented himself as the representative
of the civil and political authorities. According to the Prosecution, Bagosora was silent when
asked by the Ambassador why the Prime Minister was being prevented from making a radio
address. Bagosora allegedly also explained the shooting heard in the city as shots fired in the
air by Presidential Guard soldiers who were upset by President Habyarimana’s death.788
Evidence
Prosecution Witness Roméo Dallaire
670. General Dallaire did not attend the meeting, but he testified that the meeting did not
take place as planned because the security situation prevented most of the ambassadors from
attending. Booh-Booh could not join the meeting because an armoured personnel carrier did
not arrive on time to transport him to the Ambassador’s residence.789
Bagosora
671. Bagosora, General Ndindiliyimana and Lt. Colonel Rwabalinda met with the United
States Ambassador at his residence at 9.00 a.m. for about 45 minutes. Bagosora denied that
he presented himself as the representative of the civil and political authorities, noting that the
Ambassador was already aware of his position as chief of staff of the Ministry of Defence.
Bagosora conceded that he may have discussed the shooting heard throughout the city with
the Ambassador, but testified that he was not informed of the initiative to have the Prime
Minister deliver a radio address to the country, nor did he know about her security situation.
When the other ambassadors did not arrive, the meeting ended because the officers had to
attend the meeting at ESM, which was to begin at 10.00 a.m.790
Deliberations
672. The Chamber finds that Bagosora, General Ndindiliyimana and Lt. Colonel
Rwabalinda met with the United States Ambassador for about 45 minutes around 9.00 a.m.
on 7 April 1994. It also accepts the testimony of General Dallaire that the security situation in
Kigali prevented Booh-Booh and the French and Belgian Ambassadors from attending. The
Chamber considers that Bagosora was clearly acting as an authority of the military during the
meeting and that the security situation in Kigali was discussed. However, in the absence of
788
Bagosora Indictment, para. 6.7; Prosecution Closing Brief, p. 746.
Dallaire, T. 19 January 2004 pp. 33, 38.
790
T. 7 November 2005 pp. 64-65, 68-69, 71, 73.
789
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any direct evidence from the Prosecution, the Chamber cannot find that Bagosora presented
himself as the representative of the civil and political authorities in the country or that the
Prime Minister’s radio address was discussed.
3.2.4
Meeting at ESM
Introduction
673. Each of the Indictments alleges that, on the morning of 7 April 1994, Bagosora
chaired a meeting of Rwandan army and gendarmerie officers, including members of the two
general staffs as well as sector and camp commanders. Bagosora allegedly reiterated that the
military should take power and refused to consult with the Prime Minister, adding that he did
not know if she was still alive. According to the Bagosora Indictment, Bagosora and General
Ndindiliyimana were informed during this meeting by Colonel Nubaha that Belgian
peacekeepers were under risk of death at Camp Kigali, but did nothing. The Kabiligi and
Ntabakuze Indictment states that, after the meeting, Bagosora ordered Ntabakuze,
Commander of the Para Commando Battalion, Major François-Xavier Nzuwonemeye,
Commander of the Reconnaissance Battalion, and Lieutenant-Colonel Léonard Nkundiye, a
former Commander of the Presidential Guard, to proceed with the massacres. Reference is
made to General Dallaire and Expert Witness Filip Reyntjens791
674. The Defence teams do not dispute that a number of senior military officers met at
ESM on 7 April or that Bagosora chaired the meeting. The Bagosora Defence dispute that he
was not informed of the risk to the Belgian soldiers during the course of the meeting and only
learned of this afterwards when he visited Camp Kigali. Furthermore, the Bagosora and
Ntabakuze Defence teams contest that Bagosora ordered Ntabakuze to proceed with the
massacres after the meeting. Reference is made to Witnesses A-8, DM-191, DK-32, STAR-1,
DH-51, DK-19, Major Peter Maggen and Expert Witness Eugène Shimamungu.792
Evidence
675. The Chamber notes that the basic sequence of events during the meeting at ESM is
not in dispute. The meeting was scheduled to start at 10.00 a.m., but began late because
Bagosora arrived closer to 10.15 a.m.793 He chaired the meeting, along with General
Ndindiliyimana, and spoke first, updating the participants about the meetings he had
conducted the previous evening.794 Afterwards, Bagosora opened the floor for the officers to
make comments. During the course of the meeting, the officers agreed with the idea of
having a Crisis Committee, composed of the participants of the previous evening, and chaired
791
Bagosora Indictment, paras. 6.8, 6.24-6.25; Kabiligi and Ntabakuze Indictment, paras. 6.7, 6.24;
Nsengiyumva Indictment, para. 6.6; Prosecution Closing Brief, paras. 307-309, 312, 314, 318, 1767, 1769 (c),
1786 (f), pp. 747-748, 756, 822, 830, 876.
792
Bagosora Closing Brief, paras. 1056-1059, 1084-1086, 1109, 1116; Ntabakuze Closing Brief, paras. 13271354. The Kabiligi and Nsengiyumva Defence teams do not address this event in its Closing Brief.
793
Bagosora, T. 7 November 2005 pp. 73-74; Ntabakuze, T. 18 September 2006 p. 48; Witness A-08, T. 9 May
2005 p. 77; Witness DM-191, T. 6 May 2005 p. 23; DK-32, T. 27 June 2005 p. 56.
794
Bagosora, T. 7 November 2005 pp. 73-74; Ntabakuze, T. 18 September 2006 p. 50; Witness A-08, T. 9 May
2005 pp. 78-79; Witness DM-191, T. 6 May 2005 p. 26; Witness DK-32, T. 27 June 2005 p. 73; Witness STAR1, T. 23 February 2006 p. 43.
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by Ndindiliyimana.795 It was also agreed that the Crisis Committee would have two tasks:
first, to coordinate the actions of the army and gendarmerie in order to ensure security; and
second, to provide material support to politicians so they could form the new government.796
According to one of Expert Witness Des Forges’s sources, the news of the Prime Minister’s
death reached Bagosora during the meeting, and, when someone raised the issue of
contacting her, Bagosora allegedly responded: “I have, unfortunately, just learned that [the]
prime minister has been killed”.797
676. Around 10.45 a.m., Colonel Nubaha, the commander of Camp Kigali, entered the
meeting and spoke into Bagosora’s ear for a minute or less before leaving again.798
According to Bagosora, Colonel Nubaha said that there was “great tension at Kigali Camp”
and that the situation was dire. Bagosora testified that he understood by Nubaha’s words that
there was tension with the soldiers at Camp Kigali and cut Nubaha off, telling him to go back
to the camp and calm the situation and that he would check on it after the meeting.799 After
Nubaha’s departure, the meeting participants heard gunshots outside coming from the
direction of Camp Kigali, which caused some of the participants to panic.800
677. General Dallaire arrived at the meeting around 11.00 a.m., just after Colonel Nubaha
left and after the participants heard the gunshots.801 Seating was arranged for Dallaire at the
podium.802 Bagosora informed Dallaire that he had gathered senior military officers to brief
them on the prevailing situation and to give them general direction on security. After a few
additional remarks in Kinyarwanda to the assembled officers, Bagosora continued in French
for five or 10 more minutes, telling the officers to keep the situation under control, to
maintain discipline and to curtail excesses.803
678. Bagosora then gave the floor to Dallaire to make a few comments.804 Dallaire spoke
for about five minutes, first offering his condolences on the loss of the President and the army
chief of staff.805 He then stated that UNAMIR would stay and support them to keep the
implementation of the Arusha Accords on track.806 General Dallaire emphasised that it was
crucial for the commanders to maintain control of their troops so as not to degenerate into a
civil war.807 Finally, he informed them that, based on information he had received that
795
Bagosora, T. 8 November 2005 p. 33; Witness DK-32, T. 27 June 2005 p. 75; Witness STAR-1, T. 23
February 2006 p. 44.
796
Bagosora, T. 7 November 2005 p. 77; Witness DK-32, T. 27 June 2005 p. 76; Witness STAR-1, T. 23
February 2006 pp. 44-45.
797
See Des Forges, T. 25 September 2002 p. 106.
798
Bagosora, T. 8 November 2005 pp. 6-7, 10-11; Witness DK-32, T. 27 June 2005 p. 77.
799
Bagosora, T. 8 November 2005 pp. 7, 10-11.
800
Bagosora, T. 8 November 2005 p. 6; Witness A-8, T. 10 May 2005 pp. 5-6; Witness DK-19, T. 11 July 2005
p. 64; Defence Witness DK-32, T. 27 June 2005 p. 73; Witness STAR-1, T. 23 February 2006 pp. 46, 49;
Apedo, T. 7 September 2006 p. 46.
801
Dallaire, T. 19 January 2004 pp. 36, 39; Bagosora, T. 7 November 2005 p. 77; Witness DK-32, T. 27 June
2005 p. 78.
802
Dallaire, T. 19 January 2004 pp. 36-37; Witness DK-32, T. 27 June 2005 p. 78; Maggen, T. 13 March 2006
p. 10.
803
Dallaire, T. 19 January 2004 pp. 37-38.
804
Id. p. 38.
805
Id. pp. 38, 39; Witness STAR-1, T. 23 February 2006 p. 45.
806
Dallaire, T. 19 January 2004 p. 38.
807
Id. p. 38; Witness STAR-1, T. 23 February 2006 p. 45; Maggen, T. 13 March 2006 pp. 10, 15.
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morning, the RPF forces were staying where they were and were not planning to conduct any
kind of altercation.808
679. Following Dallaire’s intervention, Bagosora spoke for a few more minutes, repeating
his concerns that the security of the nation was crucial and that the officers had to maintain
control in order to resolve the reactions seen by a few units in Kigali.809 He also reminded the
members of the Crisis Committee that he wanted their statement explaining the current
situation in the country by 2.00 p.m. to broadcast it over the radio.810 Bagosora then thanked
the participants and adjourned the meeting between noon and 12.30 p.m.811 The officers stood
at attention, and Bagosora left immediately before Dallaire had a chance to approach him
about the situation with the 10 Belgian peacekeepers.812
680. After the meeting, Dallaire spoke with Ndindiliyimana about the 10 Belgian
peacekeepers in Camp Kigali. According to Dallaire, Ndindiliyimana informed him that
Camp Kigali was in riot, that it was being looked into and that Dallaire could not return to the
camp because even some senior officers had been pulled back. Dallaire then met with the
Crisis Committee for about 30 minutes, but left between noon and 12.30 p.m. because, in his
view, the discussions were going nowhere.813
681. The Chamber also heard evidence from Prosecution Expert Witness Filip Reyntjens
concerning an alleged order given by Bagosora at the end of the meeting to commence the
genocide. According to Reyntjens, when he was conducting interviews for his book, one
potential witness stated that he overheard Bagosora use the phrase “muhere aruhande” while
talking to Ntabakuze, Colonel Nkundiye and Major Nzuwonemeye after the meeting.
Reyntjens’s source told him that, after Bagosora used this phrase, the four participants
departed, and the source believed that they understood what Bagosora meant. Reyntjens, who
is not a Kinyarwanda speaker, explained that the source said that the phrase meant, “Go about
it systematically from one place to another”, as when tilling a field or clearing a bush. He
believed that this may have been the order to start the genocide.814
682. Bagosora and Ntabakuze denied that the incident referred to by Reyntjens occurred.815
Defence Witnesses A-8, DK-32, DM-191 and DK-19, who were present at the meeting,
testified that Bagosora did not meet privately with officers, such as Ntabakuze, Colonel
Nkundiye and Major Nzuwonemeye after the meeting.816
683. According to Defence Expert Witness Eugène Shimamungu, a Kinyarwanda language
expert, “muhere aruhande” was not a phrase that existed in Kinyarwanda the way that
Reyntjens used it. The witness was of the view that Reyntjens mistakenly used the phrase
either because he is not a native Kinyarwanda speaker or because it was a typographical
808
Dallaire, T. 19 January 2004 p. 38.
Id. p. 39; Witness A-8, T. 10 May 2005 p. 6; Witness DK-32, T. 27 June 2005 p. 78; Witness STAR-1, T. 23
February 2006 pp. 46-47.
810
Dallaire, T. 19 January 2004 p. 39.
811
Ntabakuze, T. 18 September 2006 p. 50; Witness A-8, T. 10 May 2005 p. 6; Witness DK-32, T. 27 June 2005
p. 78.
812
Dallaire, T. 19 January 2004 p. 39; Witness A-8, T. 10 May 2005 p. 6.
813
Dallaire, T. 19 January 2004 pp. 39-40.
814
T. 15 September 2004 p. 32; T. 17 September 2004 p. 80; T. 22 September 2004 pp. 28-29.
815
Bagosora, T. 10 November 2005 p. 66; Ntabakuze, T. 18 September 2006 pp. 50-51.
816
Witness A-8, T. 10 May 2005 p. 10; Witness DK-32, T. 27 June 2005 p. 58; Witness DM-191, T. 5 May
2005 p. 56; Witness DK-19, T. 11 July 2005 pp. 64-65.
809
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error. The witness agreed, however, that there is a phrase in Kinyarwanda, “muhere
ruhande”, which is an agricultural metaphor and means to start from one side and move
progressively on to the other.817
Deliberations
684. The foregoing evidence is generally undisputed. Bagosora conducted the meeting of
senior officers at ESM on 7 April 1994 and acted as a main authority even in relation to the
Crisis Committee, which was set up to coordinate the General Staffs of the army and the
gendarmerie. The Chamber finds that during the course of the meeting, Bagosora was made
aware of a serious threat to the safety of the 10 Belgian peacekeepers at Camp Kigali. This
follows from Colonel Nubaha’s interruption of the meeting and the evidence of Dallaire who
was informed immediately after it ended about the situation at Camp Kigali.
685. The Prosecution has not presented any direct evidence that Bagosora discussed the
situation of the Prime Minister during the meeting, or that he proposed that the military seize
control of the country. The Chamber heard some evidence concerning discussions about the
Prime Minister from Des Forges. However, this evidence is second-hand.
686. The evidence concerning Bagosora’s alleged order to Ntabakuze, Colonel Nkundiye
and Major Nzuwonemeye to perpetrate the massacres after the meeting is second-hand and
uncorroborated. The Chamber is unwilling to rely on this type of evidence in order to
establish such a serious allegation, in particular where there is conflicting Defence evidence
about whether these officers met privately after the meeting. Therefore, the Chamber is not
satisfied that the Prosecution has proven beyond reasonable doubt that Bagosora issued such
an order at the end of the meeting.818
3.3
Political Killings, 7 April
687. Each of the Indictments alleges that, while the senior officers were meeting at ESM
on the morning of 7 April 1994, members of the Presidential Guard, the Para Commando
Battalion and the Reconnaissance Battalion “tracked down, arrested, sexually assaulted, and
killed” Prime Minister Agathe Uwilingiyimana. During this same period, members of these
units also allegedly arrested and killed other important opposition leaders, namely Joseph
Kavaruganda, Faustin Rucogoza, Landoald Ndasingwa and Frédéric Nzamurambaho. The
Indictments assert that the elimination of these “political opponents” made it possible to set
aside the establishment of the Broad-Based Transitional Government stipulated in the Arusha
Accords, in favour of an Interim Government, thus removing a major obstacle to the pursuit
of the massacres. The Prosecution relies on several witnesses as well as circumstantial
evidence, regarding such issues as the timing, organisation and the similarity of the crimes, to
illustrate prior planning and to connect them to the Accused.819
817
T. 6 June 2006 pp. 9-10; T. 7 June 2006 pp. 20-22.
The Chamber, however, finds unpersuasive the Defence evidence that this event did not occur simply
because Reyntjens may have misspelled the Kinyarwanda version of the alleged order. It follows from
Shimamungu’s testimony that a virtually identical phrase conveys the same meaning attributed by Reyntjens’s
source to Bagosora.
819
Bagosora Indictment, paras. 6.9-6.10, 6.37-6.38; Nsengiyumva Indictment, paras. 6.7-6.8; Kabiligi and
Ntabakuze Indictment, paras. 6.8-6.9; Prosecution Closing Brief, paras. 255-272, 274-284, pp. 746-748, 822824, 876. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment refer to the four male victims by
818
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688. To demonstrate motive and to place these murders in the larger context of the mass
killings which occurred after 6 April 1994, the Prosecution relies principally on Expert
Witnesses Des Forges and Reyntjens to argue that the deaths of these important opposition
political figures destroyed the continuity of the Arusha Accords and created a power vacuum,
which facilitated the military’s, and in particular Bagosora’s, takeover of the government.
The Prosecution submits that, not only did the assassination of opposition leaders make it
easier for Hutu extremists to unleash the genocide, but it also formed part of a broader vision
to destroy alleged Tutsi supporters.820
689. The Bagosora Defence accepts that certain elements of the military killed these
political figures. However, it disputes both the units and the level of organisation involved in
the killings, noting that they did not conform to an organised military operation. There is
limited and questionable direct evidence, emanating solely from Prosecution Witnesses ATY
and DA, connecting Bagosora to the killings. With respect to the political significance of the
killings, the Defence highlights the already lengthy delay in implementing the Arusha
Accords and further rejects that these officials were instrumental in that process, thus
eliminating any motive for Bagosora to have these individuals killed.821
690. The Ntabakuze Defence argues that the sections of the Kabiligi and Ntabakuze
Indictment referring to these killings are vague. In particular, they fail to identify which unit
or soldiers of the Para Commando Battalion participated in the crimes, do not give the time of
the assassinations or the manner in which the victims were allegedly killed, and do not
adequately describe Ntabakuze’s role in the crimes. Furthermore, the evidence tendered in
support of this allegation is limited, contradictory and unreliable hearsay. Ntabakuze would
not have been in operational command of any of the members of the Para Commando
Battalion that were transferred to the Presidential Guard before 6 April 1994.822
691. The Kabiligi Defence submits that the Prosecution presented no evidence linking
Kabiligi to the political killings on 7 April 1994, emphasising that he was out of the country
at the time and did not have operational command over the army.823
3.3.1
Political Context
692. Prosecution Expert Witness Filip Reyntjens testified about the political situation in
the months preceding the death of President Habyarimana. In particular, he attested to a
political stalemate in the institution of the Broad-Based Transitional Government envisioned
by the Arusha Accords (III.1.1).824 During this period, Prime Minister Uwilingiyimana was
portrayed by her political opponents as being close to the RPF.825 In light of the Prime
Minister’s perceived alignment with the RPF, it was alleged, in particular by Bagosora, that
on 4 April 1994 she had held a meeting with opposition party leaders in an alleged attempt to
their political offices, not by name. The Nsengiyumva Indictment only contains a general reference to members
of the political opposition. The Prosecution witnesses relied on are mentioned in connection with the specific
events.
820
Prosecution Closing Brief, paras. 258-262, pp. 748-749, 823-824, 876.
821
Bagosora Closing Brief, paras. 1003-1055, 1683, 1691, pp. 365, 375-376.
822
Ntabakuze Closing Brief, paras. 1249-1290, 2369-2376.
823
Kabiligi Closing Brief, paras. 400-418. The Nsengiyumva Closing Brief does not address political killings in
Kigali.
824
Reyntjens, T. 16 September 2004 pp. 92-95.
825
Id. pp. 108-109.
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garner support to overthrow President Habyarimana.826 Bagosora pointed to this alleged coup
d’état attempt as a significant reason for refusing to consult with her after the death of
President Habyarimana.827
693. According to Des Forges and Reyntjens, the military killed Prime Minister
Uwilingiyimana as well as Joseph Kavaruganda, Faustin Rucogoza, Landoald Ndasingwa and
Frédéric Nzamurambaho because of the substantial influence they wielded over the situation
following the death of Habyarimana.828 In their view, their assassination destroyed the
continuity of the Arusha Accords and created a power vacuum allowing extremist elements
of the MRND to seize power.
694. Defence Expert Witness Bernard Lugan noted that the Prime Minister played no role
in the implementation of the Broad-Based Transitional Government, which was to be headed
by Faustin Twagiramungu. Lugan asserted that the succession rules established by the 1991
Constitution applied, according to which Theodore Sindikubwabo would lead the interim
government.829 Bagosora testified that the killing of these political officials had no relation to
the implementation of the Broad-Based Transitional Government which had been stalled
since September 1993.830 Rather, he stated that they were simply a “settlement of scores”
arising from neighbourhood or political disputes or were done for other reasons that he could
not define.831
3.3.2
Prime Minister Agathe Uwilingiyimana
Introduction
695. The Chamber heard extensive evidence on the events surrounding the death of Prime
Minister Agathe Uwilingiyimana from a number of witnesses. In particular, General Dallaire,
Major Beardsley, Colonel Marchal, Colonel Dewez and Sergeant Hutsebaut gave testimony
on the role of UNAMIR in attempting to arrange for the Prime Minister to address the nation
on Radio Rwanda. Witnesses XXO, AE, ATY, DA, DAK, XXJ, HP and Ruggiu testified
about the organisation and perpetrators of the attack on the Prime Minister’s residential
compound. The Defence did not present any evidence attempting to refute the killing of the
Prime Minister. Instead, their arguments focus on whether the evidence connects them to the
crime and whether the attack conformed to a military operation.832
826
Des Forges, T. 25 September 2002 pp. 96-100; Bagosora, T. 2 November 2005 p. 75, T. 15 November 2005
p. 65.
827
Dallaire, T. 19 January 2004 p. 25; Beardsley, T. 3 February 2004 p. 25; Bagosora, T. 7 November 2005 pp.
5, 8-9.
828
Des Forges, T. 18 September 2002 p. 39; Reyntjens, T. 15 September 2004 p. 17.
829
T. 14 November 2006 pp. 42, 44-45.
830
Bagosora, T. 8 November 2005 p. 50. See also Bagosora Closing Brief, paras. 1003-1011.
831
T. 8 November 2005 p. 49.
832
Bagosora Closing Brief, paras. 1003-1055, 1683, 1691, pp. 365, 375-376; Kabiligi Defence Brief, para. 203.
The Ntabakuze and the Nsengiyumva Defence teams do not address the allegations concerning the death of the
Prime Minister in their Closing Briefs.
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Evidence
696. Much of the evidence concerning the death of the Prime Minister is not in dispute.833
On the night of 6 April 1994, Prime Minister Uwilingiyimana was at her residential
compound in the Kiyovu neighbourhood of Kigali, located about 200 to 300 metres away
from ESM. Her security detail included 10 Rwandan gendarmes and six Ghanaian
peacekeepers from UNAMIR. Around 8.30 p.m., the head of her Rwandan security detail
informed the Prime Minister about the death of President Habyarimana and advised her to
leave before the surrounding area became blockaded. The Prime Minister, however, refused
to leave.834
697. General Dallaire spoke by telephone with Prime Minister Uwilingiyimana several
times before 10.30 p.m., and she informed him that she was having difficulty reaching
members of her cabinet.835 During the meeting of the Crisis Committee, as discussed above
(III.3.2.1), Bagosora expressly refused Dallaire entreaties to consult with the Prime Minister.
In addition, Dallaire also proposed that she should address the country about Habyarimana’s
death.836 Bagosora again refused to consult with her during a meeting at the residence of
Special Representative Booh-Booh later that night (III.3.2.2). At the end of that meeting,
Dallaire and Booh-Booh spoke privately and agreed that UNAMIR would escort the Prime
Minister to a radio station in the morning to address the country.837
698. Bagosora and Dallaire returned to military headquarters around 2.00 a.m.838 Dallaire
asked Colonel Marchal, who had been meeting with General Ndindiliyimana, to prepare an
escort to take the Prime Minister to Radio Rwanda and to secure Radio Rwanda.839 When
Beardsley and Dallaire returned to UNAMIR headquarters a short time later, around 3.00
a.m., he reiterated this plan, and Dallaire contacted the Prime Minister to inform her that an
escort was on its way.840 Dallaire’s efforts to arrange the address with Radio Rwanda were
ultimately refused after the director of the station informed him that members of the
Presidential Guard, who were at the station, would prevent it.841 In addition, Dallaire’s
attempts to arrange access for the Prime Minister with RTLM were immediately rejected.842
699. Marchal relayed Dallaire’s orders to Colonel Dewez sometime after 2.00 a.m. and
further ordered him not to use force in executing the mission.843 Dewez then tasked a
contingent of Belgian peacekeepers, headed by Lieutenant Lotin, with escorting the Prime
833
As mentioned previously (III.3.2), the Chamber, thus, sees no need to summarise the evidence piecemeal.
Witness XXO, T. 19 November 2003 pp. 44, 49-51; T. 20 November 2003 pp. 16-17.
835
Dallaire, T. 19 January 2004 p. 24.
836
Beardsley, T. 3 February 2004 pp. 25, 27-29. This is reflected in the Code Cable drafted shortly after the
meeting from Dallaire to Maurice Baril, head of the military division of the United Nations Department of
Peacekeeping Operations. See Prosecution Exhibit 170 (Code Cable of 7 April 1994 from General Dallaire to
Baril), para. 11. Colonel Marchal also testified that the issue of a radio address was raised during the meeting,
but that no decision was taken as to who would give the address. T. 4 December 2006 p. 60.
837
Dallaire, T. 19 January 2004 p. 34.
838
Id. p. 45; Bagosora, T. 7 November 2005, p. 26.
839
Dallaire, T. 19 January 2004 pp. 28, 35, T. 22 January 2004 pp. 70-72; Beardsley, T. 3 February 2004 p. 29.
840
Beardsley, T. 3 February 2004 p. 29; Dallaire, T. 22 January 2004 pp. 70-71. General Dallaire recalled
raising the issue with the Prime Minister after meeting with Special Representative Booh-Booh and noted that
he may have spoken to her from the Rwandan military headquarters.
841
Dallaire, T. 21 January 2004 p. 27, T. 22 January 2004 p. 71; Beardsley, T. 3 February 2004 p. 29.
842
Dallaire, T. 22 January 2004 p. 71; Beardsley, T. 3 February 2004 p. 29.
843
Marchal, T. 4 December 2006 p. 61; Dewez, T. 24 June 2005 pp. 4-5.
834
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Minister to Radio Rwanda.844 In addition, Dewez dispatched a second group of Belgian
peacekeepers in order to secure Radio Rwanda.845 This second group, however, was
prevented from reaching the station at a roadblock manned by soldiers.846 Lotin’s double
escort of four jeeps arrived at the Prime Minister’s residence around 5.00 a.m., after receiving
information on a passable roadblock.847
700. Meanwhile, the situation at the Prime Minister’s residential compound in the
preceding hours had become increasingly tense. The Rwandan gendarmes in the Prime
Minister’s security detail had received reports from their platoon commander that members of
the Presidential Guard were moving through the Kimihurura neighbourhood of Kigali
targeting government ministers.848 The Prime Minister had contacted UNAMIR twice around
12.00 and 2.15 a.m. seeking reinforcements to her security detail.849 During the course of the
evening, her security detail noticed that nearby roadblocks had been reinforced by soldiers
and that an armoured vehicle from the Reconnaissance Battalion had arrived and pointed its
cannon at the Prime Minister’s residential compound. Soldiers manning the roadblock near
ESM periodically fired guns and grenades at the compound as the security detail scouted the
compound for escape routes.850
701. Witness XXO, who was present, explained that the Prime Minister’s residential
compound came under sustained gun and grenade fire around 5.00 a.m. after the Belgian
peacekeeping contingent arrived.851 Around that time, the security detail was trying to
arrange for the Prime Minister to take refuge at the neighbouring compound of an American
diplomat.852 When this proved unsuccessful, the gendarmes moved the Prime Minister, her
husband and children into hiding in separate rooms in another nearby home.853 Before going
into hiding, the Prime Minister spoke with General Dallaire sometime on the morning of 7
April to inform him that Rwandan troops had arrived outside her home and she was
leaving.854 After hiding the Prime Minister, the gendarmes then returned to her compound to
monitor the situation with the Belgian and Ghanaian peacekeepers.855
702. Between 7.30 and 8.00 a.m., a large number of soldiers from the Presidential Guard
and ESM advanced on the compound and ordered the peacekeepers and gendarmes to drop
their weapons. The advancing Rwandan soldiers then opened fire on the Prime Minister’s
compound. The gendarmes retreated to the neighbouring home where the Prime Minister was
844
Marchal, T. 4 December 2006 p. 61; Dewez, T. 24 June 2005 p. 8.
Dewez, T. 24 June 2005 pp. 3-4.
846
Id. p. 5.
847
Hutsebaut, T. 2 December 2003 p. 57; Dewez, T. 24 June 2005 p. 11.
848
Witness XXO, T. 20 November 2003 pp. 17-18.
849
Hutsebaut, T. 2 December 2003 pp. 25, 45.
850
Witness XXO, T. 20 November 2003 pp. 18-22.
851
T. 20 November 2003 pp. 24-25; Dewez, T. 24 June 2005 p. 14.
852
T. 20 November 2003 p. 24.
853
Id. pp. 24-25, T. 21 November 2003 p. 8.
854
Beardsley, T. 3 February 2004 p. 37.
855
Witness XXO, T. 20 November 2003 p. 25. See also Dewez, T. 24 June 2005 p. 15 (Colonel Dewez
explaining that he ordered the Belgian peacekeepers not to accompany the Prime Minister into hiding in order to
remain transparent and to remain in radio contact with him. He stated that the contingent thus remained at the
residence). The Ghanaian peacekeepers were already stationed at the Prime Minister’s residence as part of her
security detail. See Beardsley, T. 3 February 2004 p. 30.
845
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hiding. The peacekeepers were disarmed and taken to nearby Camp Kigali on a minibus
(III.3.4).856
703. Around 8.30 or 9.00 a.m., Witness XXO spoke with his superior, Lt. Colonel
Bavugamenshi, to apprise him of the attack. Bavugamensi said that he would ask for the
attack to be stopped during a meeting of military officers being held at ESM that morning.
The witness subsequently received a call from Bavugamenshi as the Rwandan soldiers
attacked the residence where the Prime Minister was hiding. The soldiers arrested Witness
XXO and gendarmes in the Prime Minister security detail. The witness then heard the
soldiers shout that they had found the Prime Minister after searching the house.857
704. On the morning of 7 April 1994, Witness AE, who was stationed at a roadblock near
ESM, heard soldiers from ESM shouting that the Prime Minister had been found and saw her
emerge from a nearby home. According to the witness, soldiers from the Prime Minister’s
residence and Camp Kigali then ran toward her. Witness AE stated that the Prime Minister
asked not to be killed and to instead be taken to army headquarters. He heard several soldiers
arguing about what to do with the Prime Minister with some saying she should be killed and
others saying she should be taken to military headquarters.858
705. Witness AE stated that he ordered his soldiers back to their positions at ESM and then
heard gunshots a few minutes later. The Prime Minister’s naked and bullet ridden body was
seen lying openly in the compound with a bottle shoved into her vagina.859 Soldiers from
several units including the Presidential Guard, ESM, the Reconnaissance Battalion and the
Huye Battalion, were seen walking around the property.860 Around 1.00 to 1.30 p.m., Dallaire
travelled from the Ministry of Defence to the UNDP compound passing by the Prime
Minister residence. He saw blood and bullet holes on the walls of the compound, but
explained that the Prime Minister’s body had been taken away.861
706. The Prosecution also presented other evidence from Witnesses ATY, DA, DAK, XXJ,
HP and Ruggiu relating to the organisation and perpetrators of the attack on the Prime
Minister’s residential compound. Parts of this specific evidence are disputed.862
Prosecution Witness ATY
707. Witness ATY, a Tutsi who lived in Kiyovu, recalled that, a few days before 6 April
1994, her husband showed her a list of names of people to be killed. It included among others
Prime Minister Agathe Uwilingiyimana, Faustin Rucogoza, Landoald Ndasingwa and
Frédéric Nzamurambaho.863
708. The witness stated that, on the morning of 7 April, soldiers from the Presidential
Guard came to her house, pointed a gun at her, and one of them said it was necessary to kill
all Tutsis. A Presidential Guard captain prevented this soldier from killing her, saying: “But
why do you want to kill this lady? Bagosora has given us a list, and he has said that we
should finish that list by 1 p.m. Do you think we are going to do everything, finish off all
856
Witness XXO, T. 20 November 2003 pp. 28-30. See also Witness AE, T. 16 December 2003 pp. 38-39.
Witness XXO, T. 20 November 2003 pp. 30-32.
858
Witness AE, T. 16 December 2003 p. 41.
859
Id. pp. 42-43; Witness DA, T. 18 November 2003 p. 49.
860
Witness DA, T. 18 November 2003 pp. 51-52.
861
Dallaire, T. 20 January 2004 pp. 49-51.
862
The Chamber will therefore follow its usual way of summarising the testimonies witness by witness.
863
T. 27 September 2004 pp. 14-16; Prosecution Exhibit 309 (personal identification sheet).
857
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those who are on that list? Do you think we'll have scoured the whole Kiyovu
neighbourhood?”.864
709. On the advice of the Presidential Guard captain, Witness ATY then fled, but as she
left her house she saw soldiers take the Prime Minister out of her residential compound. She
heard a soldier say to the Prime Minister, “I don't know you. I have nothing against you, but
Bagosora and the government asked us to kill you.” The witness returned to her home later
that day and hid behind bottle crates in a dark storage room near the garage. In the afternoon,
Bagosora called her house and spoke with one of her children to ask if their father had been
killed. Her son responded that both parents were dead. Around 6.30 p.m., she observed
Bagosora at her house, taking some of her husbands papers and speaking with her children.
The witness thought that he was also confirming that she was dead. Bagosora explained to
her children that their father, who was murdered on the same occasion as the Prime Minister,
had been killed because he collaborated with the enemy and Tutsis. He regularly called the
children in 1994 to try to assist them.865
Prosecution Witness DA
710. Witness DA, a Hutu soldier stationed at Camp Kigali, testified that, on 6 April 1994,
Major Nzuwonemeye of the Reconnaissance Battalion tasked Captain Sagahutu with the
mission of preventing the Prime Minister from leaving her residence. Sagahutu in turn
dispatched Chief Warrant Officer Bizimungu and several armoured vehicles with the
operation. The witness claimed that, on the morning of 7 April, he replenished the
ammunition of the soldiers near the Prime Minister’s residence. In addition, he overheard
radio communications between Major Nzuwonemeye and Captain Sagahutu discussing
Bagosora’s instructions to complete the mission using any reinforcements as necessary, in
particular, to ensure that no one had access to Radio Rwanda. Witness DA also stated that he
accompanied Captain Sagahutu to identify the body of the Prime Minister and saw her
bloodied naked corpse.866
Prosecution Witnesses DAK, XXJ and HP
711. Witness DAK, a Hutu member of the Reconnaissance Battalion, testified that Captain
Sagahutu dispatched him to Radio Rwanda and the Prime Minister’s residence with
instructions to prevent the Prime Minister from gaining access to the radio station.867 Witness
XXJ, a Hutu army officer, overheard a similar order over the radio network.868 Witness HP, a
Hutu member of the Reconnaissance Battalion, attested to overhearing a radio transmission
between Captain Sagahutu and Chief Warrant Officer Bizimungu concerning what to do with
the Prime Minister. Bizimungu informed Sagahutu that they had found her and asked if he
should bring her. Sagahutu responded by asking why he would bring her to the camp.
Witness HP stated that, between 4.40 and 6.00 p.m. on 7 April 1994, he transported the body
864
T. 27 September 2004 p. 23; T. 28 September 2004 p. 20.
T. 27 September 2004 pp. 24, 29; T. 28 September 2004 pp. 34-41.
866
T. 17 November 2003 pp. 19-20, 24, 25-27, 30, 32, 33; T. 18 November 2003 pp. 46-49, 52; Prosecution
Exhibit 129 (personal identification sheet).
867
T. 7 November 2003 pp. 35-38; Prosecution Exhibit 121 (personal identification sheet).
868
T. 14 April 2004 pp.18, 20, 21, 69-70; Prosecution Exhibit 208 (personal identification sheet).
865
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of the Prime Minister, her husband and two other victims from the Prime Minister’s residence
to Camp Kanombe.869
Prosecution Witness Georges Ruggiu
712. Georges Ruggiu, a Belgian and Italian journalist with RTLM, testified that, on 7
April, a group of Presidential Guard soldiers informed him that they had received orders to go
to the Prime Minister’s residence. The members of the Presidential Guard explained that,
after disarming the Belgian peacekeeping contingent and removing them from the area, they
asked the Prime Minister to remove her dress before killing her.870
Deliberations
713. In the Chamber’s view, General Dallaire and Major Beardsley provided largely
consistent and credible accounts of Dallaire’s unsuccessful efforts to convince Bagosora to
consult with the Prime Minister as well as Dallaire’s failed attempts to arrange for her to
make a radio address on the morning of 7 April. Both witnesses directly participated in these
events, and, in particular, Beardsley’s main function at the time was to take contemporaneous
notes on what transpired at the meeting and to prepare a cable later that night conveying the
information to Maurice Baril, head of the military division of the United Nations Department
of Peace Keeping Operations in New York. The cable largely confirms the account as
described by the two witnesses.871
714. Dallaire testified that he did not inform members of the Crisis Committee of his
specific plan to dispatch Belgian peacekeepers to escort the Prime Minister to Radio
Rwanda.872 Beardsley recalled, however, that Dallaire proposed that the Prime Minister
address the country during the first part of the meeting with the Crisis Committee. This is
reflected in the cable drafted shortly after the meeting.873 In the context of Rwanda, such an
address would clearly be given over the radio. Therefore, in the Chamber’s view, Bagosora
would have been aware, at the very least, of Dallaire’s desire to arrange for the Prime
Minister to make a radio address.
715. It also follows from the evidence of Dallaire and Beardsley that Dallaire tasked
Colonel Marchal with the mission to escort the Prime Minister to Radio Rwanda. Dallaire
gave this order at the Rwandan military headquarters at Camp Kigali in the presence of other
Rwandan military officers after returning to the camp with Bagosora from the meeting with
Special Representative Booh-Booh. The Chamber notes that Marchal does not recall speaking
with Dallaire or seeing him at Camp Kigali at this time.874 However, the corroborated
accounts of Dallaire and Beardsley, confirming that Dallaire spoke with Marchal about the
mission at the camp, are more convincing. Therefore, the totality of the evidence indicates
869
T. 10 November 2003 p. 49; T. 11 November 2003 pp. 21, 23-24, 27-28; Prosecution Exhibit 122 (personal
identification sheet).
870
T. 16 June 2003 pp. 38-39.
871
Beardsley, T. 3 February 2005 p. 26. See also Prosecution Exhibit 170 (Code Cable of 7 April 1994 from
Dallaire to Baril).
872
Dallaire, T. 22 January 2004 p. 72.
873
Prosecution Exhibit 170 (Code Cable of 7 April 1994 from Dallaire to Baril: “The FC asked who would
speak to the population and suggested the PM Agathe.”), para 11.
874
Marchal, T. 4 December 2006 p. 57.
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that senior Rwandan military officials, including Bagosora, were likely aware of this more
specific plan.
716. The Chamber considers that Dallaire, Beardsley, Marchal, Colonel Dewez and
Sergeant Hutsebaut provided generally consistent and credible evidence concerning the
issuance and the execution of the orders ultimately tasking the Belgian peacekeeping
contingent with escorting the Prime Minister to Radio Rwanda and securing the station.
717. With respect to the killing of Prime Minister Uwilingiyimana, the Chamber considers
that Witnesses XXO and AE provided credible and convincing first-hand accounts of what
transpired at her residence from 6 to 7 April 1994. Both witnesses were in a position to
closely follow the events, and the Defence generally does not dispute the accuracy of their
evidence.875 From their accounts, it clearly follows that elements of the Presidential Guard
and Reconnaissance Battalion participated in the attack on the Prime Minister’s residence as
well as her murder and sexual assault.
718. Witnesses DA, DAK, HP, XXJ and Ruggiu offered varying degrees of corroboration.
They confirmed the key aspects of the testimonies of Witnesses XXO and AE concerning the
build-up of soldiers around the Prime Minister’s residence, the presence of armoured vehicles
and the condition of her body. The Chamber notes that the Defence does not specifically
contest their evidence on these general points.
719. The Defence emphasises that the testimonies of Witnesses XXO, AE and other
witnesses reflects the chaotic nature of the attack, which shows that it did not conform to an
organised military operation. In support of this, the Bagosora Defence points to the evidence
of Marchal, who reviewed Witness AE’s evidence, and agreed that the killing of the Prime
Minister did not appear to be organised, given the disagreement about what to do with her.876
720. In the Chamber’s view, however, the attack on the Prime Minister’s residence in
Kiyovu was an organised military operation. The Chamber notes the proximity in time of the
attack to the killing of other moderate politicians in the Kimihurura area nearby (III.3.3.3).
Furthermore, the use of armoured vehicles and the build-up of soldiers during the course of
the night, including elite units of the Rwandan army, also strongly suggest an organised
military operation. Moreover, the Chamber simply cannot accept in this context that elite
units of the Rwandan army would spontaneously engage in sustained gun and grenade fire
with Rwandan gendarmes and United Nations peacekeepers, arrest these individuals, and
then brutally murder and sexually assault the Prime Minister of their country unless it formed
part of a military operation. The fact that Witness AE observed some soldiers who did not
wish to pursue this ultimate course of action in the overall context does not detract from the
Chamber’s finding.
721.
The question remains, however, to what extent this military operation can be
attributed to the Accused. Witnesses ATY and DA connected Bagosora directly to the
killings. However, the Chamber is not convinced that this evidence is credible and reliable. It
is not disputed that Witness ATY’s husband was killed along with the Prime Minister.
However, some aspects of the witness’s evidence appear speculative and lack clarity and
coherence. For example, the witness provided a vague explanation of how her husband
875
876
Bagosora Closing Brief, paras. 1683, 1691.
Id.; Marchal, T. 4 December 2006 p. 68.
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obtained a purported list of assassination targets.877 She also claimed that she knew all of the
members of the Presidential Guard, but became evasive when pressed for the identity of the
soldiers who came to her home.878 The Chamber also has doubt that Bagosora was at her
house on the afternoon of 7 April in light of prevailing circumstances in Kigali and evidence
that he was at Camp Kanombe at that time.
722. Witness DA claimed that, on the morning of 7 April, Bagosora ordered the
Reconnaissance Battalion to use reinforcements, if necessary, to prevent anyone from
accessing Radio Rwanda. This follows from a conversation the witness allegedly overheard
between Sagahutu and Major Nzuwonemeye. Bagosora was not discussed during the
conversation, and the witness inferred that the order came from him since Nzuwonemeye
mentioned that he was going to consult a meeting of officers which had been convened by
Bagosora. In the Chamber’s view, this evidence is not sufficiently reliable to show that
Bagosora issued the instructions.
723. Nevertheless, the Chamber has found that Bagosora had authority over the Rwandan
army at the time of the attack (IV.1.2). The organised attack, involving elite units of the
Rwandan army, targeted a senior government official. In the Chamber’s view, the order for
such an assault could only have come from the highest military authority, which at the time
was Bagosora. In this respect, the Chamber also bears in mind his refusal to consult with the
Prime Minister, his suspicions that she was involved in an attempted coup d’état, and his
awareness that UNAMIR wanted her to address the nation.
724. The Chamber has not heard sufficient evidence directly implicating Kabiligi,
Ntabakuze or Nsengiyumva in this crime.
3.3.3
Officials in Kimihurura
Introduction
725. Each of the Indictments alleges that, on the morning of 7 April 1994, members of the
Presidential Guard and Para Commando Battalion killed four important opposition figures in
the Kimihurura neighbourhood of Kigali, namely Joseph Kavaruganda, the President of the
Constitutional Court; Frédéric Nzamurambaho, the Chairman of the PSD party and Minister
of Agriculture; Landoald Ndasingwa, the vice-chairman of the PL and Minister of Labour
and Community Affairs; and Faustin Rucogoza, an MDR official and Minister of
Information. In support of these allegations, the Prosecution relies primarily on Witnesses
Annonciata Mukarubibi, XAO, CJ and EQ, who provided first-hand evidence on the arrest or
killing of these officials.879
726. The Defence does not dispute that elements of the Presidential Guard killed these
political officials. The Ntabakuze Defence, in particular, asserts that the evidence connecting
the Para Commando Battalion to these attacks is not reliable or credible. It further argues
that, even if members of the Para Commando Battalion were involved in the attack, the
877
Witness ATY, T. 27 September 2004 pp. 61-63.
Witness ATY, T. 28 September 2004 pp. 17-18.
879
Bagosora Indictment, paras. 6.9, 6.38; Kabiligi and Ntabakuze Indictment, para. 6.8; Nsengiyumva
Indictment, paras. 6.7, 6.38; Prosecution Closing Brief, paras. 282, 283, 296-305.
878
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section transferred to the Presidential Guard camp in Kimihurura was no longer under
Ntabakuze’s command.880
Evidence
Prosecution Witness Annonciata Mukarubibi
727. Within hours of the downing of Habyarimana’s plane on 6 April 1994, Joseph
Kavaruganda and his wife Annonciata Mukarubibi observed their neighbour Casmir
Bizimungu, a member of the MRND party and the Minister of Health, leaving his home after
loading some of his personal property onto a truck. Around midnight, Frédéric
Nzamburambaho called his neighbour Kavaruganda and reported that the President was dead.
Nzamburambaho also informed Kavaruganda that their neighbour André Ntagerura, a
member of the MRND and the Minister of Transport, was being evacuated from his home as
well.881
728. Sometime after 4.00 a.m. on 7 April, Frédéric Nzamburambaho called his neighbour
Joseph Kavaruganda to report that the Kimihurura neighborhood was surrounded and that no
one could leave. About 45 minutes later, Annonciata Mukarubibi heard gunshots.882
729. Around 5.00 a.m., Joseph Kavaruganda spoke twice with several Rwandan soldiers,
whom he believed were members of the Presidential Guard and the Para Commando
Battalion. Kavaruganda informed his wife that he thought the group was headed by a
Presidential Guard soldier named Captain Kabrera, one of his former students at the military
academy. Kavaruganda also reported to his wife that these soldiers wanted to take him away
so that he could not administer the oaths of office to the ministers and members of
parliament.883
730. Kavaruganda believed that the Rwandan soldiers wanted to kill him and called
UNAMIR around 6.00 a.m. for advice and to state that he was under attack. He was advised
to remain at his residence and protect his family from gunfire. Kavaruganda and his family
then hid on the floor in their bathrooms. A short time later, the soldiers broke into
Kavaruganda’s home and found his children. A Rwandan soldier held a gun to the head of
Kavaruganda’s daughter as she begged her father to open his bedroom door. Kavaruganda
and his wife emerged from their hiding place, and the soldier lowered his weapon.884
731. The soldiers identified themselves as members of the Presidential Guard and the Para
Commando Battalion. They placed Kavaruganda, his wife and two children onto a red pickup
truck emblazoned with “MINADEF” on the side and headed toward the Presidential Guard
Camp. After travelling about 200 metres, Captain Kabrera ordered Mukarubibi and her
children off the truck. They returned to their residence around 6.30 or 7.00 a.m., where
soldiers were looting their property. The soldiers asked Mukarubibi for money. She told them
that the other soldiers had already taken her husband’s money. A few minutes later, Captain
880
Bagosora Closing Brief, paras. 1003, 2286, pp. 543-544; Ntabakuze Closing Brief, paras. 1249-1290;
Kabiligi Closing Brief, para. 202. The Nsengiyumva Defence does not address these allegations.
881
T. 27 November 2003 pp. 18-19; Prosecution Exhibit 139 (personal identification sheet). The Prosecution
Brief and the transcripts refer to Annonciata Mukarubibi as Annonciata Kavaruganda. Her personal
identification sheet, which she affirmed as correct, uses the name Annonciata Mukarubibi.
882
T. 27 November 2003 p. 20.
883
Id. pp. 20-22.
884
Id. pp. 22-24.
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Kabrera returned with Joseph Kavaruganda who attempted to give his wife his identity card
and 5,000 Rwandan Francs. The soldiers took the money and threw the identity card to the
floor. Kabrera then left with Joseph Kavaruganda, and his wife never saw him again. Two
days later, she heard over the radio that he was dead.885
732. The soldiers who remained at Kavuraganda’s residence continued looting and beating
Kavaruganda’s family members. They then broke up into smaller groups, and one contingent
went to the neighbouring Nzamburambaho residence.886
Prosecution Witness Didier Hutsebaut
733. In the early morning hours of 7 April, Sergeant Hutsebaut, a Belgian peacekeeper,
observed extensive troop movements of the Rwandan army from his post in the Kimihurura
neighbourhood of Kigali. He heard gunfire and grenade explosions in that neighbourhood
from around 6.00 a.m. From his post, he saw ordinary soldiers, gendarmes and members of
the Para Commando Battalion going from house to house.887
Prosecution Witness CJ
734. Witness CJ, a Hutu staying with Frédéric Nzamburambaho, was awakened around
4.00 a.m. by the sound of increased gunfire. The Rwandan gendarmes guarding
Nzamburambaho advised the Minister to hide in nearby maize and sorghum fields. The
witness and members of Nzamburambaho’s family, however, remained in the residence.
Witness CJ watched as the soldiers entered Kavaruganda’s neighbouring house.888
735. Around 7.00 a.m., Witness CJ watched as the soldiers came from Kavaruganda’s
house to Nzamburambaho’s home. The witness also identified some soldiers as members of
the Presidential Guard and others as gendarmes. They unsuccessfully searched the residence
for Nzamurambaho and then ordered everyone in the house to lie face down in the living
room. The soldiers beat Nzamurambaho’s family with farm implements which they found in
the house before shooting them in the head. The witness managed to escape and hide in the
ceiling of Nzamurambaho’s room. From there, he heard the soldiers return to the house with
Nzamurambaho and ask for money. The soldiers then shot Nzamurambaho in the head.889
Prosecution Witness XAO
736. Witness XAO, a Tutsi member of the Para Commando Battalion, testified that, on the
morning of 7 April, he was stationed outside the Camp Kimihurura. In the preceding days,
the Second Company of the Para Commando Battalion had been transferred to Camp
Kimihurura and placed under the command of the Presidential Guard. Around 6.30 a.m., he
saw six Presidential Guard soldiers escorting a man in civilian dress into Camp Kimihurura.
The soldiers explained that they had arrested the person who was responsible for swearing in
the new Rwandan President. The witness later learned that the arrested person was
885
Id. pp. 24-31.
Id. p. 31.
887
T. 2 December 2003 pp. 4, 26-32; Prosecution Exhibit 148 (personal identification sheet). For example,
Hutsebaut and other UNAMIR peacekeepers were forcibly denied entry at the home of Félicien Ngango, a
prominent member of the PSD, by around 25 members of the Rwandan armed forces, including gendarmes, Para
Commandos, and regular soldiers, as the peacekeepers attempted to evacuate the family. The witness later heard
screams and gunfire coming from the house.
888
T. 25 November 2003 pp. 43, 44-45, 52-53.
889
Id. pp. 45-48, 52, 53.
886
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Kavaruganda, the President of the Constitutional Court. Around 30 minutes later, the
witness’s commanding officer, Lieutenant Gahutu, stated that Kavaruganda had been shot.890
737. Around 10.00 a.m., six Presidential Guard soldiers escorted Faustin Rucogoza, his
wife, two daughters and a domestic servant into Camp Kimihurura. Witness XAO did not
recognise Rucogoza but recalled soldiers taunting him with respect to his position as Minister
of Information. One of the soldiers escorting him and his family shouted, “kill this dog”. The
witness watched as Murwanashyaka, a member of the Second Company of the Para
Commando Battalion, shot and killed all of them. Murwanashyaka then laughed, and the
soldiers threw the bodies in a trench. Witness XAO, who was also a member of
Murwanashyaka’s company, stated that no one attempted to prevent the killings or to punish
anyone for them.891
Prosecution Witness EQ
738. Witness EQ, a Hutu night watchman, testified that, around 7.00 a.m., 20 members of
the Presidential Guard stormed Landoald Ndasingwa’s residential compound, firing guns and
grenades at the doors and windows. After gaining access to the house, they demanded money
from Ndasingwa and gathered his family in a bedroom. The witness was forced to watch as
the soldiers first shot Ndasingwa and then his mother, his children, his wife and a domestic
servant. Witness EQ and the gendarmes guarding the Ndasingwa residence then left the
compound and walked past the Kavaruganda residence. The witness saw Captain Kabrera of
the Presidential Guard in a red pickup truck in front of Kavaruganda’s home. Around 8.00
a.m., as the witness walked toward an intersection leading to the Presidential Guard camp, he
saw a white Renault which he claimed belonged to Bagosora.892
Prosecution Witness XXO
739. Witness XXO, a Hutu gendarme, heard reports at his post at the Prime Minister’s
residence of attacks on ministerial homes in Kimihurura neighborhood by members of the
Presidential Guard.893
Prosecution Witness DCB
740. Witness DCB, a Hutu member of the Presidential Guard stationed at Camp
Kimihurura, confirmed that the Second Company of the Para Commando Battalion under the
command of Lieutenant Gahutu was transferred to the camp. Around 1.00 a.m. on 7 April,
the witness was dispatched to Camp Kanombe, but he returned to Camp Kimihurura around
9.00 a.m. later that day. Around mid-day, he saw the dead bodies of five people lying in a
trench near the camp’s second entrance. A soldier informed him that Faustin Rucogoza was
one of those who were killed. Sometime before noon, Witness DCB saw Bagosora and a
number of other soldiers enter the camp in a Mercedes Benz jeep and drive toward the office
of the camp commander. Around the same time, he also saw soldiers escorting several
890
T. 11 November 2003 pp. 56-59, T. 12 November 2003 pp. 1, 15; Prosecution Exhibit 124 (personal
identification sheet).
891
T. 11 November 2003 p. 60, T. 12 November 2003 pp. 1-5.
892
T. 13 February 2004 pp. 7-20, 23-25; Prosecution Exhibit 182 (personal identification sheet).
893
T. 20 November 2003 pp. 17-18; Prosecution Exhibit 133 (personal identification sheet).
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prominent officials into the camp, including André Ntagerura, Casimir Bizimungu and
Ferdinand Nahimana.894
Kabiligi Defence Witness André Ntagerura
741. André Ntagerura, a Hutu Minister in the interim government, acknowledged that he
sought refuge at the Presidential Guard camp on the night of 6 April on the advice of the
gendarmes guarding his residence.895
Deliberations
742. The Chamber considers that Witnesses Annonciata Mukarubibi, CJ and EQ provided
largely credible first-hand accounts of the attacks on the Kavaruganda, Nzamburambaho and
Ndasingwa residences in Kimihurura. Sergeant Hutsebaut corroborated certain aspects of
their evidence, in particular the timing of the general military activities in the area. These
witnesses were directly involved in the events and could closely follow what transpired.
Witnesses Mukarubibi and CJ gave a consistent time frame and chronology for the attacks at
the Kavaruganda and Nzamburambaho residences. The Chamber therefore accepts the main
features of the evidence of these witnesses.
743. There is a discrepancy between the time of 7.00 a.m., which Witness EQ offered for
the attack on the Ndasingwa residence, and the credible evidence from Beardsley and
Marchal of UNAMIR, who said that they spoke with Ndasingwa and his wife as late as 11.00
a.m.896 In the Chamber’s view, this does not undermine Witness EQ’s overall testimony
about the attack, but does suggest that the attack on the Ndasingwa residence probably
occurred later in the morning than explained by him.
744. Witness XAO provided a credible first-hand account of members of the Presidential
Guard bringing Joseph Kavaruganda and Faustin Rucogoza to the Camp Kimihurura. As a
member of the Para Commando Battalion stationed at the camp, he would have been in a
position to recognise members of the Presidential Guard. In addition, though the witness did
not personally recognise Kavaruganda and Rucogoza, the soldiers accompanying them
referred to their official positions. The witness’s estimate of the timing of Kavaruganda’s
entry into the camp is similar to the time frame provided by Annouciata Mukarubibi for
when he was taken away toward the camp.897 Furthermore, the testimony of Witness DCB
who saw the dead bodies of Rucogoza and his family adds some corroboration to Witness
XAO’s account of that killing.
745. It is not disputed that members of the Presidential Guard participated in the attacks on
the Kavaruganda, Nzamburambaho and Ndasingwa residences. This also follows from
894
T. 5 February 2004 pp. 105-106, 108-109; T. 6 February 2004 pp. 2-6, 9-12, 23, 37, 39, 43-46, 53-55;
Prosecution Exhibit 175 (personal identification sheet).
895
T. 28 November 2006 pp. 34-35; Kabiligi Defence Exhibit 119 (personal identification sheet).
896
Beardsley, T. 3 February 2004 pp. 37-38 (testifying that he spoke with Ndasingwa from around 9.00 a.m. to
10.00 a.m.); Marchal, T. 4 December 2006 p. 66 (stating that he conversed with Ndasingwa and his wife around
11.00 a.m.).
897
The Chamber notes the discrepancy between Witness XAO’s testimony that he heard about the killing of
Joseph Kavaruganda around 7.00 a.m. and his prior written statement to Tribunal investigators in which he
indicated that he learned this news around 2.00 p.m. The witness explained that the investigator was mistaken in
taking down his statement. See T. 12 November 2003 p. 20. The Chamber accepts this explanation. The
statement was not tendered into evidence.
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Witness Mukarubibi, who explained that the soldiers identified themselves as members of the
Presidential Guard and led her husband toward Camp Kimihurura. These same soldiers then
went to the Nzamburambaho residence. Witness CJ, who attended school in Camp Kigali,
and Witness EQ, who had a military background, were also able to identify many of the
soldiers as part of the Presidential Guard.898 The account of Witness XAO, discussed above,
corroborates the role of the Presidential Guard in the attacks that morning and in ordering the
killing of Faustin Rucogoza. Considering this evidence together, the Chamber finds beyond
reasonable doubt that members of the Presidential Guard participated in these attacks.
746. The question remains whether members of the Para Commando Battalion also
participated in these attacks. It is not disputed that the Second Company of the Para
Commando Battalion was transferred to Camp Kimihurura to reinforce the Presidential
Guard a few days before the death of Habyarimana. According to Annonciata Mukarubibi,
several of the soldiers attacking her home identified themselves as Para Commandos. These
soldiers also asked Mukarubibi’s daughter if they knew her from Camp Kanombe, where the
Para Commando Battalion was located. Sergeant Hutsebaut saw members of the Para
Commando Battalion in the Kimihurura area on the morning of 7 April. Furthermore, the
Chamber notes the first-hand account of Witness XAO that a member of the Para Commando
Battalion killed Faustin Rucogoza at Camp Kimihurura on orders from a member of the
Presidential Guard.
747. Considering the totality of the evidence, the Chamber is satisfied beyond reasonable
doubt that elements of the Para Commando Battalion stationed at Camp Kimihurura
participated in the attack on Kavaruganda residence and in the killing of Faustin Rucogoza.
However, the Chamber notes the testimony of Witness XAO that the Para Commandos at
Camp Kimihurura were under the command of the Presidential Guard.899 The Prosecution has
not pointed to any material refuting this aspect of Witness XAO’s account.
748. The Chamber now turns to evidence connecting Bagosora to Camp Kimihurura and
its vicinity during the killings. Witness EQ claimed that he saw a white Renault belonging to
Bagosora being driven by his military escorts around 8.00 a.m. on 7 April.900 However, the
witness did not see Bagosora in the vehicle, and his knowledge of the Accused’s official
vehicle as well as his military escorts was several years old. Thus, this testimony has limited
probative value.
749. Sometime before noon on 7 April, Witness DCB identified Bagosora in a moving
vehicle filled with an unknown number of soldiers. He explained that this was the first time
that he had seen Bagosora come to the Presidential Guard camp. He recognised Bagosora
from having seen the Accused occasionally at Camp Kanombe several years earlier. The
898
Witness CJ, T. 25 November 2003 p. 48; Witness EQ, T. 13 February 2004 p. 20.
T. 12 November 2003 p. 15 (“Q. Did your company not operate under the command of the officer
commanding the presidential guard? A. The platoon had been transferred to the presidential guard; in other
words, therefore we had to obey the command of the officer commanding the presidential guards. Q. So you do
confirm, Witness, that Major Ntabakuze was not in charge of commanding the operations regarding the defence
of the camp in which you were involved? A. No, he was not the one. Q. Do you also confirm that the
commander of your company was Lieutenant Gahutu? A. That is correct. Q. Do you further confirm that it was
Lieutenant Gahutu -- or that Lieutenant Gahutu got his orders from the commander of the Kimihurura camp? A.
That is correct, because it was in that camp that we were.”).
900
T. 13 February 2004 pp. 20, 23, 31.
899
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witness further acknowledged that a number of similar vehicles were in service in the
Rwandan army.901
750. Witness DCB’s testimony should be considered in the context of corroborated
evidence that Bagosora participated in a meeting with the United States Ambassador at 9.00
a.m. and then chaired a meeting at ESM from around 10.00 a.m. until 12.30 p.m. (III.3.2.3;
III.3.2.4). The Chamber cannot exclude the possibility that Bagosora could have stopped by
Camp Kimihurura before attending the meeting at ESM. However, his participation in these
meetings raises sufficient doubt about his presence at Camp Kimihurura on the morning of 7
April.902
751. The Chamber finds that the Prosecution has proven beyond reasonable doubt that, on
the morning of 7 April 1994, elements of the Presidential Guard and Para Commando
Battalion killed Joseph Kavaruganda, the President of the Constitutional Court; Frédéric
Nzamurambaho, the Chairman of the PSD party and Minister of Agriculture; Landoald
Ndasingwa, the vice-chairman of the PL and Minister of Labour and Community Affairs; and
Faustin Rucogoza, an MDR official and Minister of Information. In particular, members of
the Second Company of the Para Commando Battalion stationed at Camp Kimihurura played
a role in the arrest of Joseph Kavaruganda and the killing of Faustin Rucogoza. At the same
time these leading opposition figures were killed, the same elements of the Rwandan army
provided sanctuary to prominent members of the MRND party at Camp Kimihurura, such as
Ntagerura. It cannot be excluded that the purpose of the killings of these officials and the
Prime Minister was to prevent the implementation of the Broad-Based Transitional
Government, envisioned under the Arusha Accords. However, the evidence does not point
unambiguously in this direction. It remains possible that the murders were primarily directed
at eliminating political opponents or those viewed as sympathetic to the RPF.
752. The killing of the opposition political officials consisted of an organised military
operation, in particular when viewed together with the evidence of the killing of Prime
Minister Agathe Uwingiliyimana (III.3.3.2), and considering the involvement of elite military
units. The Chamber has found that Bagosora had authority over the Rwandan military at the
time of the attack (Section IV.1.2). Bagosora concedes that he was aware of the killings. The
organised attack involving elite units of the Rwandan armed forces targeted senior
government officials. In the Chamber’s view, the order for such an assault could only have
come from the highest military authority, which at the time was Bagosora.
753. The Prosecution has not presented sufficient evidence to prove beyond reasonable
doubt that the members of the Second Company of the Para Commando Battalion who
participated in the killings were acting under the authority of Ntabakuze. The Chamber has
no basis for implicating Kabiligi or Nsengiyumva in these crimes.
901
T. 6 February 2004 pp. 37, 46, 53-55.
Moreover, the Chamber notes that Witness DCB allegedly saw André Ntagerura arriving at Camp
Kimihurura around the same time as Bagosora. See T. 6 February 2004 p. 3. Ntagerura, however, testified that
he arrived the preceding night. See T. 28 November 2006 pp. 34-35.
902
Judgement and Sentence
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3.4
Killing of 10 Belgian Peacekeepers, 7 April
Introduction
754. Each of the Indictments alleges that elements of the Rwandan military killed 10
Belgian peacekeepers at Camp Kigali on the morning of 7 April 1994 after arresting them at
the residence of Prime Minister Uwilingiyimana. The death of the peacekeepers prompted the
withdrawal of most of UNAMIR’s contingents, removing a major obstacle to the pursuit of
the massacres. The Prosecution primarily relies on the evidence of Witnesses XAF, CE, AH,
DA, KJ and XXQ and Roméo Dallaire.903
755. The Bagosora Defence emphasises the circumstantial nature of the Prosecution
evidence. In particular, the attack on the peacekeepers was a spontaneous “mutiny” and not
planned or ordered by Bagosora. Although he lacked authority over the assailants, he tried to
stop the attack, having been informed of it after the meeting at ESM. Reference is made to
Witnesses Apedo, R-3, R-6 and RN-1. The Ntabakuze and Kabiligi Defence teams submit
there is no evidence connecting their clients to the attack.904
Evidence
Prosecution Witness XAF
756. Witness XAF, a Hutu member of the Reconnaissance Battalion stationed at Camp
Kigali in April 1994, testified that, around 9.30 and 10.00 a.m. on 7 April, he saw two dead
Belgian peacekeepers. Five disabled Rwandan soldiers were beating two other Belgians to
death with crutches. A crowd of around 100 Rwandan soldiers and others at the camp stated
in Kinyarwanda that the Belgians were responsible for the death of President Habyarimana.
The Rwandan soldiers then tried to convince several other peacekeepers to come out of a
nearby office, which was used by UNAMIR at the camp, with promises that they would not
be harmed.905
757. The witness saw two Belgian peacekeepers emerge. A camp guard shot and killed one
of them, and disabled soldiers beat the other to death with crutches. Two other Belgian
peacekeepers also left the office with around six African peacekeepers. The disabled soldiers
903
Bagosora Indictment, paras. 6.9-6.10, 6.22, 6.23; Kabiligi and Ntabakuze Indictment, paras. 6.8-6.9, 6.15,
6.16; Nsengiyumva Indictment, paras. 6.7-6.8; Prosecution Closing Brief, paras. 306-329, pp. 753-757, 826-829,
876. The Bagosora and Ntabakuze and Kabiligi Indictments more specifically allege that, on arrival at Camp
Kigali around 9.00 a.m., Rwandan soldiers, in the presence of officers, attacked the Belgian peacekeepers killing
four instantly. Five Ghanaian peacekeepers were ultimately released, but the attacks against the surviving
Belgians continued over the course of the next several hours until all were killed. The Bagosora Indictment
alleges that, during the course of these attacks while several peacekeepers were still alive, Lt. Colonel Nubaha,
the camp commander, allegedly told Bagosora about the risk of death to the Belgian soldiers, and Bagosora “did
not take any decision and carried on with the meeting” at the nearby ESM. The Bagosora and Kabiligi and
Ntabakuze Indictments further place the killing of the 10 Belgian peacekeepers in a larger context of an
ultimately successful effort by “certain members of the extremist political circles” to provoke the withdrawal of
the Belgian contingent, which also included negative propaganda, demonstrations, and a plan to turn the
Interahamwe against Belgian troops. See Bagosora Indictment, paras. 6.17-6.21, 6.24-6.26; Kabiligi and
Ntabakuze Indictment, paras. 6.11-6.14, 6.16-6.17.
904
Bagosora Closing Brief, paras. 1072-1116; Kabiligi Closing Brief, paras. 202-204; Ntabakuze Closing Brief,
paras. 2426-2427. The Nsengiyumva Defence does not address these allegations.
905
T. 9 February 2004 pp. 2-8, 10, 25-27, 29, 42-43; Prosecution Exhibit 178 (personal identification sheet).
Judgement and Sentence
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killed the two Belgian peacekeepers. The African peacekeepers were informed that the
soldiers had no problem with them and were shown out of the camp. While these attacks
were going on, Witness XAF saw Major Ntuyahaga, Captain Ndangurura and Lieutenant
Munana pass by the crowd and do nothing to stop it.906
758. Around 10.00 a.m., the two surviving Belgian peacekeepers were able to kill and
disarm a Rwandan soldier who tried to enter the office. These peacekeepers then fired into
the crowd and dispersed it. Around 2.30 to 3.00 p.m., Witness XAF saw Major Ntuyahaga
speak briefly with Major Nzuwonemeye, the commander of the Reconnaissance Battalion.
After that, Major Ntuyahaga boarded an armoured vehicle with several members of the
Reconnaissance Battalion, who were armed with a grenade launcher, and headed towards the
camp entrance near the office with the two surviving peacekeepers. The witness then heard
six shots fired and later saw the bodies of the remaining Belgian peacekeepers being carried
out of the office.907
Prosecution Witness CE
759. Witness CE, a soldier stationed at Camp Kigali, testified that, around 8.00 a.m. on 7
April, a minibus carrying Belgian and African peacekeepers arrived at the camp and let them
off near the entrance. About 30 minutes later, a Rwandan soldier at the camp started saying to
other soldiers in the area that these peacekeepers had killed President Habyarimana. Another
15 minutes passed before around 40 soldiers, composed of the various units stationed at the
camp, including disabled soldiers, surrounded the peacekeepers and began beating them to
death. Some of the peacekeepers were able to seek refuge in the nearby office that UNAMIR
used at the camp.908
760. The witness stated that he saw Colonel Nubaha, the camp commander, try to
intervene and stop the attackers, but they did not listen to him. About 20 to 30 minutes after
the attack began, one of the peacekeepers fired into the crowd of soldiers, dispersing it.
Witness CE was then ordered to a defensive position in another part of the camp and later
heard gunfire coming from the area where the peacekeepers were located.909
Prosecution Witness AH
761. Witness AH, a soldier stationed at Camp Kigali who had Tutsi family members,
stated that, at around 9.00 a.m. on 7 April, he saw 10 unarmed Belgian peacekeepers being
brought into the camp on foot by members of the Presidential Guard. The officer
commanding the contingent of Presidential Guard soldiers spoke with a group of assembled
soldiers at the camp. The witness heard later that the officer told the soldiers that the
peacekeepers were responsible for the death of President Habyarimana. After that exchange,
around 50 soldiers from the camp surrounded the peacekeepers and began beating them to
death. Disabled soldiers joined the attack somewhat later. Around 9.30 a.m., Colonel Nubaha
tried to intervene, but the assailants refused to listen to him.910
906
T. 9 February 2004 pp. 5-8, 10, 27, 29, 42-43.
Id. pp. 7, 9-13, 27, 28, 30-32, 42.
908
T. 13 April 2004 pp. 2-3, 35-37, 51, 53-56, 58; Prosecution Exhibit 205 (personal identification sheet).
909
T. 13 April 2004 pp. 37-38, 55-59.
910
T. 19 February 2004 pp. 27-29, 31, 32, 38, 42-46; T. 20 February 2004 pp. 1-7, 24, 39; Prosecution Exhibit
194 (personal identification sheet). Witness AH’s ethnicity is unclear.
907
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
762. After an hour, six of the peacekeepers were dead, and the surviving four took refuge
in the nearby office used by UNAMIR at the camp. The remaining peacekeepers began
exchanging fire with the attacking soldiers for four hours. Around 2.00 p.m., Witness AH
saw a soldier from the Reconnaissance Battalion fire approximately five grenades into the
office, killing the remaining four peacekeepers.911
Prosecution Witness DA
763. Witness DA, a Hutu soldier stationed at Camp Kigali, explained that, at some time
before 11.00 a.m., he saw Belgian peacekeepers sitting on the ground in the presence of a
number of Rwandan soldiers as well as Colonel Nubaha. The witness heard that the
peacekeepers were being questioned in connection with the death of President Habyarimana.
He learned later that eight peacekeepers were beaten to death and that two other Belgian
peacekeepers, who were stationed at the camp, were killed with grenades between 1.30 and
2.00 p.m. in the office that UNAMIR used.912
Prosecution Witness Roméo Dallaire
764. General Dallaire, the force commander of UNAMIR, testified that, around 11.00 a.m.
on 7 April, he and Major Peter Maggen passed the main gate of Camp Kigali in a vehicle on
their way to a meeting of senior officers of the Rwandan military. A major in the Rwandan
gendarmerie, who had volunteered to drive Dallaire, spoke with the soldiers at the camp gate
and learned that the meeting was being held at ESM. Dallaire noted that Camp Kigali was in
a state of high alert. He also briefly glimpsed two injured or dead bodies in Belgian army
uniforms about 30 metres inside the camp’s gate. When Dallaire arrived at ESM, he found
Captain Apedo, a Togolese military observer from UNAMIR, and five Ghanaian
peacekeepers who had been guarding the Prime Minister. Captain Apedo informed Dallaire
that Belgian peacekeepers had been taken to Camp Kigali where they were being beaten.
Dallaire proceeded to the meeting at ESM where he raised the issue of the Belgian
peacekeepers with General Ndindiliyimana after the meeting. Although he spoke briefly to
Bagosora when he arrived and addressed the officers present, he did not mention the situation
he observed at Camp Kigali.913
765. After the meeting at ESM, Dallaire went to the Ministry of Defence around 12.15
p.m. in order to meet with Bagosora and Ndindiliyimana. A Rwandan officer informed
Dallaire that Bagosora was having lunch. While he waited, Dallaire communicated with his
headquarters and began receiving reports that some of the Belgian soldiers at Camp Kigali
might be dead. Bagosora and Ndindiliyimana arrived around 2.00 p.m. Dallaire immediately
asked them what was happening in connection with the Belgian peacekeepers. Bagosora
responded that he went to Camp Kigali to intervene and that he had begun to take action. He
also told Dallaire that the camp was in chaos and that none of the officers had been able to
bring the situation under control. Dallaire said that he would go to the camp, but Bagosora
refused, stating that he would be killed as the situation was out of hand and that they would
continue to work on it. Dallaire informed Bagosora that he was receiving reports that the
911
T. 19 February 2004 pp. 29-31, 42; T. 20 February 2004 pp. 4, 6-7.
T. 18 November 2003 pp. 54-57; T. 19 November 2003 pp. 1-3; Prosecution Exhibit 129 (personal
identification sheet).
913
T. 20 January 2004 pp. 47-49; T. 22 January 2004 pp. 75-78.
912
Judgement and Sentence
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Belgians were being blamed for killing President Habyarimana. According to Dallaire,
Bagosora responded that “it is time to get the Belgians out of here fast”.914
766. Around 6.00 p.m., Dallaire participated in a Crisis Committee meeting at the Ministry
of Defence, chaired by Ndindiliyimana. Dallaire raised the issue of the Belgian peacekeepers
again, and a number of individuals made unsuccessful efforts to get information. Dallaire
finally stopped the meeting, saying nobody would leave until he got his men. Fifteen minutes
after that, Ndindiliyimana made a phone call and confirmed that the peacekeepers had been
killed and that their bodies were at the Kigali hospital. Dallaire then walked to the hospital
where he saw the bodies of the Belgian peacekeepers piled in the hospital’s morgue.915
Prosecution Witnesses XXQ and KJ
767. Witness XXQ, a Hutu army officer at Camp Kigali, saw a telegram on the morning of
7 April, prepared as a result of the Crisis Committee meeting the previous night, which
blamed the Belgians for killing President Habyarimana.916 Witness KJ, a gendarme of mixed
Hutu-Tutsi ancestry, testified that, between 7 and 8 April at the gendarmerie camp in Kibuye
prefecture, he saw a telegram emanating from the Ministry of Defence, stating that Belgian
peacekeepers had killed President Habyarimana and that they should be brought to the
nearest military camp.917
Bagosora
768. Bagosora testified that, after the meeting at ESM around 12.00 or 12.15 p.m., he
returned to his office at the Ministry of Defence and tried to contact Colonel Nubaha for an
update on the problem at Camp Kigali mentioned by Nubaha during the meeting (III.3.2.4).
Bagosora did not proceed directly to the camp because he had heard gunshots coming from
there during the meeting and was concerned for his safety. Nubaha’s secretary informed
Bagosora that several Belgian peacekeepers had been killed and that others were being fired
on by soldiers at the camp. Bagosora then went to Camp Kigali accompanied by two escorts
and found a mob of soldiers armed with guns, crutches and blocks of concrete. He saw no
officers present. He addressed the crowd and asked them to return the bodies of the dead
peacekeepers. The soldiers refused and said they would not return the bodies until the
peacekeepers, who had killed one of the Rwandan soldiers, were dead. Bagosora was
threatened and called a traitor. He withdrew and returned to the Ministry of Defence and
contemplated what to do to bring the situation under control.918
769. After returning to his office, Bagosora told Dallaire that he had been unsuccessful at
quelling the chaos at Camp Kigali, that four of the Belgian peacekeepers had been killed, but
that others were still alive in the camp’s UNAMIR office. According to Bagosora, Dallaire
was silent and went to the Ministry’s communication’s centre. Dallaire returned only to pass
on a message he had received from the RPF.919
914
T. 19 January 2004 pp. 42-44, 47-48, 66; T. 22 January 2004 pp. 75-76, 79-80.
T. 20 January 2004 pp. 51-53.
916
T. 13 October 2004 pp. 29, 43-44; Prosecution Exhibit 316 (personal identification sheet).
917
T. 19 April 2004 pp. 55-56; Prosecution Exhibit 212 (personal identification sheet). Witness KJ did not see
the signature on the telegram, but explained that it would normally be signed by Bagosora.
918
T. 8 November 2005 pp. 6-8, 11, 20-22, 24-25.
919
Id. pp. 21-22, 25-26.
915
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bagosora Defence Witness Kodjo Apedo
770. Captain Apedo, a Togolese peacekeeper with UNAMIR, was stationed at Camp
Kigali in April 1994 as a military observer monitoring the weapons stores at the camp. He
spent the night of 6 April at Camp Kigali in the small office assigned to UNAMIR located
near the camp’s gate. Apedo awoke to the sounds of gunfire around 5.00 to 5.30 a.m. He
made a brief patrol around the camp and its perimeter and observed armed soldiers moving
about and two roadblocks manned by soldiers outside the camp. Around 6.30 a.m., he
returned, and the commander of the headquarters company informed him that the weapons
stores had to be opened because there was now a state of war due to President Habyarimana’s
death. Apedo returned to UNAMIR’s office at the camp to prepare a situation report. The
camp commander, Colonel Nubaha, then held a general assembly.920
771. Around 9.00 a.m., a minibus carrying 10 Belgian and five Ghanaian peacekeepers
entered the camp. The minibus dropped the peacekeepers off in front of the UNAMIR office
at the camp. Captain Apedo and Lieutenant Lotin, who was in command of the arriving
Belgian contingent, went into the UNAMIR office to discuss what had transpired. Lotin
briefly informed Apedo that the peacekeepers had been posted at the Prime Minister’s
residence and that the Rwandan soldiers had disarmed them, promising to take them to a safe
place. Apedo reported this to his superiors and then gave Lotin his Motorola radio in order to
contact his commander.921
772. After this brief exchange, Apedo saw Rwandan soldiers at the camp, including
disabled ones, beating the Belgian and Ghanaian peacekeepers with butts of their weapons,
belts and sticks. The attackers refused Apedo’s pleas to stop the attack, stating that the
peacekeepers had killed President Habyarimana. Some Rwandan officers, including
Lieutenant Munyana, also asked the crowd to stop the attack without success. Apedo urged
the peacekeepers to crawl under a UNAMIR vehicle and take shelter in the office. All but
four or five Belgian peacekeepers made it to the office, which Apedo then locked. A
Rwandan soldier armed with a machine-gun demanded that Apedo move from the front of the
office or he would be shot.922
773. A sergeant from the Reconnaissance Battalion, who had received some military
training in Togo, pulled Apedo away from the door into a nearby office, urging him not to
return for his safety. He then posted a soldier to guard Apedo. During a lull in the frenzy,
Apedo returned to the UNAMIR office to get his radio to report to his superiors. The radio
was taken away from him by a Rwandan soldier. A Rwandan lieutenant a short time later
threatened to kill Apedo. However, another Rwandan soldier told the assailant that he could
not kill Apedo because he was Togolese. The Rwandan lieutenant responded that “Whether
he is a black or a white, UNAMIR is UNAMIR” and placed a gun to Apedo’s head. Apedo
was saved when another Rwandan soldier pulled the gun away.923
774. Several staff officers from the camp, including Colonel Nubaha, attempted to stop the
attackers from lynching the Belgian peacekeepers. Nubaha and Apedo tried to place the four
injured peacekeepers in a vehicle to take them to a hospital, but the crowd of attackers
prevented this. Nubaha then left the camp and walked toward ESM around 10.00 or 10.30
920
T. 7 September 2006 pp. 29-31, 33-37; Bagosora Defence Exhibit 350 (personal identification sheet).
T. 7 September 2006 pp. 37-39, 56-58.
922
Id. pp. 39-41, 44, 55-56.
923
Id. pp. 41-43.
921
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a.m. Nubaha sent one of his escorts who brought Apedo out of the camp. As the escort said
that the soldiers did not have any problem with the “blacks”, Captain Apedo asked him to
bring out the Ghanaian peacekeepers and do everything he could to assist the Belgians. The
escort returned with the five Ghanaian peacekeepers, but said he could not do anything for
the Belgians because they would have been lynched on the spot.924
775. Apedo remained with the Ghanaian peacekeepers at ESM. He then heard gunfire
coming from the camp for the first time since the attack against the peacekeepers began. The
escort said that the Belgians were probably being killed. Apedo then saw General Dallaire
arrive at ESM. He informed Dallaire that four Belgian peacekeepers had been seriously
injured, but that six remained alive in the UNAMIR office in the camp. Dallaire asked a
major in the Rwandan gendarmerie to drive Apedo and the Ghanaian peacekeepers back to
UNAMIR headquarters.925
Bagosora Defence Witness RO-3
776. Witness RO-3, a Hutu injured soldier at Camp Kigali in April 1994, testified that,
between 7.30 and 9.00 a.m. on 7 April, he heard several soldiers at the camp saying that the
UNAMIR peacekeepers who had killed President Habyarimana were at the parade ground.
The witness saw between 15 and 17 peacekeepers, who people said were from Belgium and
Ghana, in front of the office that UNAMIR used in the camp. A number of disabled soldiers
approached the peacekeepers and began beating them with their crutches. Over the course of
the next hour, the Rwandan soldiers continued to beat the peacekeepers as a succession of
Rwandan officers, including Colonel Nubaha, Lt. Colonel Kanyandekwe and Chief Warrant
Officer Sebutinyongera unsuccessfully tried to intervene. The witness heard the assailants
refer to these officers as accomplices.926
777. The witness was frightened by the violence so he withdrew several times during the
attack, but felt compelled to return eight to 10 times to see what was happening. At one point
when Witness RO-3 returned, some of the peacekeepers had taken refuge inside the
UNAMIR office. Nubaha was preventing the attackers from throwing grenades into it.
According to the witness, most of the crowd of soldiers became “crazy”. After Nubaha left, a
soldier with a Kalashnikov gun tried to force the peacekeepers out of the office, but was
taken hostage and killed. The peacekeepers then fired and dispersed the crowd. One of the
peacekeepers tried to flee the camp and was shot.927
778. Bagosora arrived at the camp between 12.30 and 1.30 p.m. and addressed the
attackers. At that time, several peacekeepers were still alive in the office. According to
Witness RO-3, Bagosora told the 70 to 80 soldiers on the scene to stop the attack and to give
him the bodies of the peacekeepers that had been killed. According to the witness, the crowd
responded with anger and called Bagosora an accomplice. The assailants began shooting in
the air, and Bagosora left immediately after. The witness returned around 10 minutes later.
He subsequently heard grenades being fired, and the remaining peacekeepers were killed.928
924
Id. pp. 42-45.
Id. pp. 45-48.
926
T. 5 May 2005 pp. 3-6, 8-9, 12-23, 26, 30-31, 36-38; Bagosora Defence Exhibit 162 (personal identification
sheet).
927
T. 5 May 2005 pp. 8-9, 12-19.
928
Id. pp. 15-30.
925
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bagosora Defence Witness RO-6
779. Witness RO-6, a Hutu army officer in Camp Kigali, testified that around 9.00 a.m. on
7 April, he saw Major Ntuyahaga arrive at the camp in a minibus along with a number of
Belgian and Ghanaian peacekeepers. According to the witness, around 50 disabled soldiers
approached the peacekeepers and began searching them and taking their personal belongings.
One Rwandan soldier held up a piece of paper, which he had found on one of the
peacekeepers, saying that it was a list of people to be killed. After that, the Rwandan soldiers
began beating the Belgian peacekeepers with crutches and stones while leaving the Ghanaian
peacekeepers unharmed. There were shouts that the peacekeepers had killed the President.
Several Rwandan officers tried unsuccessfully to turn back the attackers, but Colonel Nubaha
succeeded in getting the peacekeepers into the office used by UNAMIR at the camp. After
Colonel Nubaha departed, a soldier knocked on the door and told the Ghanaian peacekeepers
that they could leave safely. The witness also stated that around 10.20 a.m., he saw General
Dallaire enter the camp for several minutes before proceeding to ESM.929
780. At about 11.00 a.m., the Belgian peacekeepers in the UNAMIR office obtained a
weapon and began firing at the crowd of soldiers periodically until around 1.00 p.m. At
approximately 12.30 p.m., Bagosora arrived at the camp. He tried to stop the disabled
soldiers from continuing their attack. The attackers threatened Bagosora and called him an
accomplice, but no one fired during the 15 minutes that he was there.930
Nsengiyumva Defence Witness RN-1
781. Witness RN-1, a Hutu army officer posted at Camp Kigali, testified that, on 7 April
1994, he returned to the camp and saw a crowd of Rwandan soldiers, including wounded and
convalescing soldiers, beating a group of Belgian peacekeepers. Two non-commissioned
officers named Kagango and Sebutiyongera were trying to calm the attackers down. Witness
RN-1 and Captain Apedo also tried to intervene. The witness contacted the camp’s
headquarters and Colonels Kanyandekwe and Ndahimana arrived. A Rwandan soldier fired
above Colonel Kanyandekwe’s head as he addressed the crowd.931
782. Two Belgian peacekeepers were shot as they ran toward the camp’s gate. A Belgian
peacekeeper managed to get into the UNAMIR office at the camp and found a machine gun
there. He fired at the crowd, dispersing it, which allowed other peacekeepers to seek refuge in
the office. Colonel Nubaha arrived after this and tried to prevent any further attacks by the
soldiers at the camp. These efforts were unsuccessful, and the peacekeepers had to fire
periodically to prevent Rwandan soldiers from advancing on the office. Witness RN-1 did not
remain in the area since he had to ensure that the defences in other parts of the camp were
reinforced. He was informed that grenades were ultimately thrown into the office where the
peacekeepers had taken refuge. The witness was also told that Bagosora came to the camp to
try to bring the situation under control.932
929
T. 27 April 2005 pp. 19-25; Bagosora Defence Exhibit 154 (personal identification sheet).
T. 27 April 2005 pp. 25-27, 30-32.
931
T. 13 February 2006 pp. 49, 63, 66-70, 72, 80-81; Nsengiyumva Defence Exhibit 133 (personal identification
sheet).
932
T. 13 February 2006 pp. 66-72, 80-83.
930
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Deliberations
783. There is no dispute that, on 7 April, Rwandan soldiers killed 10 Belgian peacekeepers
at Camp Kigali after their arrest at the Prime Minister’s residence (III.3.3.2). The main
questions for the Chamber are whether the Accused are responsible for these killings and
whether these deaths were part of a plan to weaken UNAMIR in order to facilitate the
massacre of Tutsi civilians. In answering these questions, the Chamber first sets forth the
basic chronology of the events surrounding the death of the peacekeepers.
784. The Chamber heard a number of purported first-hand accounts of what transpired
after peacekeepers were brought to Camp Kigali on the morning of 7 April. Most of the
witnesses were Rwandan soldiers stationed at the camp. There are several discrepancies
between these testimonies.933 The Chamber accepts that each of the witnesses was present at
Camp Kigali and observed at least some parts of the attacks which unfolded over the course
of four to five hours. The differences may be explained by the chaotic nature of the events,
the varying vantage points of the witnesses and some of the witnesses’ desire to distance
themselves from their own possible responsibility for the killings. These discrepancies leave
the Chamber hesitant to accept the specific details or assertions offered by a given witness.
785. The most reliable and credible account of what transpired emerges from Captain
Apedo, the UNAMIR observer stationed at the camp. He played a direct role interacting with
both the peacekeepers, the assailants and Rwandan officers at the camp as the events
unfolded in the first hour and a half after the peacekeepers were brought to the camp. His
testimony is convincing and coherent and the Chamber therefore considers it as a point of
departure in making its findings on this event.
786. The evidence shows that, around 9.00 a.m., Major Ntuyahaga brought the 10 Belgian
and five Ghanaian peacekeepers to Camp Kigali in a minibus after disarming them at the
Prime Minister’s residence with assurances that they were being taken to a safe place. They
were let off in front of the UNAMIR office at the camp, and Captain Apedo and Lieutenant
Lotin spoke briefly inside the office. Shortly thereafter, a crowd of soldiers from the camp,
including disabled soldiers, surrounded the Belgian and Ghanaian peacekeepers who
remained outside and began assaulting them with rifle butts and crutches, shouting that they
had killed President Habyarimana. Apedo attempted to intervene and tried to assist the
peacekeepers into the UNAMIR office. The assailants blocked four of the Belgian
peacekeepers from entering and continued to severely beat them outside as a crowd gathered.
Several Rwandan officers, including Colonel Nubaha, the camp commander, intervened by
verbally trying to calm the soldiers down before proceeding to a meeting of officers at the
nearby ESM. However, no force was used to quell the volatile situation.
787. Around 10.30 a.m., Colonel Nubaha sent his escort into Camp Kigali to bring Captain
Apedo and the Ghanaian peacekeepers to safety at ESM. At this point, it appears that four
Belgian soldiers were either seriously wounded or dead and six remained barricaded in the
UNAMIR office at the camp. Although the assailants primarily directed their attack against
the Belgian soldiers, Apedo’s testimony indicates that the African peacekeepers were targeted
as well by some of the soldiers.
933
In particular, these discrepancies concern the role of the Presidential Guard, the role of officers at the camp,
the use of firearms, the treatment of the Ghanaian peacekeepers, how many peacekeepers sought refuge in the
UNAMIR office, and how the Belgian peacekeepers obtained a firearm.
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788. Between 10.30 and 11.00 a.m., shots were heard coming from the camp. Based on
Apedo’s testimony, the Chamber considers that these were probably the first shots fired
during the attack, and thus it does not accept the assertions from various witnesses that some
of the Belgian soldiers or the Rwandan officers were fired on during the initial stages of the
attack. Around 11.00 a.m., Apedo informed General Dallaire that four Belgian soldiers were
seriously injured at the camp, but that six others remained alive in the UNAMIR office.
789. After Apedo’s departure from the camp, the evidentiary situation remains less clear. It
follows from the evidence that the Belgian peacekeepers in the office were able to obtain a
firearm from one of the attacking Rwandan soldiers and use it to defend themselves. At some
point between 12.15 and 2.00 p.m., Bagosora arrived at the camp and spoke with the
assailants while several peacekeepers were still alive in the UNAMIR office. After he left,
grenades were used to kill the remaining peacekeepers between 1.30 and 2.00 p.m. After 2.00
p.m., Bagosora and Dallaire spoke about the situation of the peacekeepers at the Ministry of
Defence. Notwithstanding the chaos at Camp Kigali, Bagosora remained calm and took no
action.
790. Turning to the question of Bagosora’s responsibility, the Chamber is of the view that
there is not sufficient evidence to prove beyond reasonable doubt that Bagosora planned the
killing of the 10 Belgian peacekeepers taken to Camp Kigali. The main evidence of this
comes from Witnesses KJ and XXJ who both purportedly saw telegrams blaming the Belgian
soldiers for killing President Habyarimana and instructing that, if found, they be brought to
the nearest military camp. However, their evidence on this point should be viewed with
caution since the telegrams were not placed in evidence, and the only proof of their existence
comes from these testimonies. Witness KJ was found credible in other parts of the judgement,
but in these circumstances, in the Chamber’s view, his evidence requires further
corroboration.934 Witness XXJ’s vague reference to seeing a similar telegram at the
conclusion of the Crisis Committee meeting on the night of 6 to 7 April is not sufficiently
reliable to provide such corroboration. In particular, his evidence is lacking in detail and
failed to mention the most significant aspect of the telegram, the purported order to arrest
Belgian soldiers.
791. The Chamber accepts that the initial assault on the peacekeepers after they were
brought to the camp may have resulted from insubordination. The evidence that a number of
officers unsuccessfully tried to intervene equally supports this proposition and suggests that
these killings were not part of a highly coordinated plan.
792. Nevertheless, the Chamber has found that Bagosora had authority over the Rwandan
army at the time of the attack (IV.1.2). It also concluded that he was aware of the threat posed
to the Belgian peacekeepers around 10.45 a.m. when Colonel Nubaha informed him of the
unrest at Camp Kigali. In any event, he was fully apprised of the dire situation facing them
when he personally visited the camp between 12.15 and 2.00 p.m. after the conclusion of the
meeting and saw the bodies of the dead peacekeepers. At the time, many of the peacekeepers
were still alive in the UNAMIR office at the camp.
934
Even if the telegram described by Witness KJ existed, the Chamber is not satisfied that the only reasonable
conclusion from its message is that Bagosora intended Belgian soldiers to be killed upon arrest. In particular, as
described below, the manner in which the attack on the Belgian peacekeepers unfolded at its outset does not
clearly demonstrate prior planning. Finally, there is no evidence showing that Bagosora was behind the rumours
that the Belgians had shot down the plane, which provoked the soldiers at Camp Kigali.
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793. Bagosora’s testimony, as corroborated by Witnesses RO-6 and RO-3, suggests that
the rioting soldiers refused to heed his calls for calm, and he withdrew from the camp. The
Chamber does not find this evidence persuasive, bearing in mind their interest in distancing
themselves from the crimes. In addition, the Chamber has also viewed the attack and the
Defence evidence considering that the camp remained well guarded during the attack and that
the guard posts were in fact reinforced as the events escalated. At no point did Bagosora or
other military officers order the use of force to quell a highly volatile situation,
notwithstanding the presence of the Reconnaissance Battalion, an elite unit at the camp. It is
also noteworthy that a significant number of high-ranking military officials were meeting a
few hundred metres away at ESM. Furthermore, the Chamber is satisfied that Bagosora had
the means to quash the attack on the peacekeepers. In these circumstances, the Chamber finds
that there was a clear failure by Bagosora to prevent the killing of the Belgian peacekeepers
and that his inaction, in fact, had the effect of encouraging the assailants. Indeed, the attack
escalated shortly after Bagosora’s departure as the assailants used powerful weapons to finish
off the surviving peacekeepers.
794. As to the other Accused, the Prosecution did not clearly demonstrate that they played
any role in the attack. At the time, Kabiligi was in Cairo, Egypt (III.6.2), and Nsengiyumva
was in Gisenyi prefecture (III.3.6). While Ntabakuze attended the meeting at ESM and likely
heard gunshots coming from the camp, the evidence does not show that he was aware that
Belgian peacekeepers were under attack or that his subordinates were involved in it.
795. The question remains whether the killing of the 10 peacekeepers was part of a larger
effort to provoke the withdrawal of the Belgian peacekeeping contingent and weaken
UNAMIR in order to facilitate the subsequent massacres. It is evident that the death of the
Belgian peacekeepers prompted the withdrawal of that contingent from UNAMIR on 18 to 19
April. An informant told UNAMIR officials in January 1994 about a plan for the
Interahamwe to bait the Belgian peacekeepers into using force (III.2.6.3). The Chamber has
also recognised that there was a general hostility directed towards the Belgian contingent of
UNAMIR in 1994, as propagated by RTLM and certain authorities, and that the Belgians
were blamed after 6 April for complicity in the assassination of President Habyarimana
(III.1.3). Nevertheless, the Chamber is not satisfied beyond reasonable doubt that the attack
formed part of a concerted strategy to further the massacres by forcing the withdrawal of the
Belgian peacekeeping contingent. As mentioned above, the evidence suggests that these
killings were not necessarily part of a highly coordinated plan. It remains possible that the
animosity towards the Belgian contingent followed from anti-colonial sentiments and their
perceived support of the RPF.
796. Accordingly, the Chamber finds beyond reasonable doubt that Rwandan soldiers
stationed at Camp Kigali killed the 10 Belgian peacekeepers who had been previously
arrested at the Prime Minister’s residence. Bagosora had knowledge of the threat they faced
as an attack against them unfolded. He had the authority and means to prevent it, but failed to
do so. It has not been proven beyond reasonable doubt that Kabiligi, Ntabakuze or
Nsengiyumva played a role in these killings.
Judgement and Sentence
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3.5
3.5.1
Events in Kigali After 6 April
Camp Kanombe, 6 - 7 April
Introduction
797. The Prosecution contends that, between 6 and 7 April 1994, Bagosora met with
Ntabakuze on one or more occasions at Camp Kanombe. Ntabakuze then allegedly held one
or more assemblies at the camp with members of the Para Commando Battalion and ordered
them to avenge the death of President Habyarimana by killing Tutsis. As a result,
Ntabakuze’s soldiers purportedly killed Tutsi civilians that night and the next morning in
residential areas near Camp Kanombe, including Akajagali, Kabeza and Remera. Reference
is made primarily to Witnesses DBQ, XAI, XAQ, XAP, LN, BC, DBN, XAB, DP, GS and
XXJ.935
798. The Bagosora Defence argues that the evidence of the witnesses who claim that
Bagosora met with Ntabakuze lacks credibility. Bagosora attended meetings with various
officials when witnesses claimed he was at the camp. The Ntabakuze Defence reiterates that
it lacked proper notice of the alleged meetings at Camp Kanombe and the subsequent
killings. Furthermore, the Prosecution’s evidence is unreliable. Ntabakuze secured the plane
crash site, met with officers and assembled his soldiers only on the afternoon of 7 April. They
were then deployed to military positions to fight the RPF and in order to defend the airport.
Reference is made primarily to Witnesses DM-26, DK-19, DK-14, DH-51 and DH-87.936
Evidence
Prosecution Witness DBQ
799. Witness DBQ, a Hutu, testified that, in April 1994, he was a member of the First
Company of the Para Commando Battalion. On the night of 6 April, he was stationed at
Camp Kanombe. Between 8.20 and 8.30 p.m., the witness saw the downing of President
Habyarimana’s plane as it approached Kanombe airport. The camp’s bugle sounded, and
members of the Para Commando Battalion gathered their weapons from the armoury and
assembled on the parade grounds in front of Ntabakuze’s office. Ntabakuze briefly addressed
the battalion and told them that the “Inkotanyi” had shot down the President’s plane and that
they should prepare for an attack. He then visited the crash site for about one to one and a
half hours. Some members of the CRAP Platoon accompanied him to the site. The battalion
remained on the parade ground, and other units at the camp were deployed in its defence.937
935
The Prosecution bases these contentions on several general allegations in the Indictments alleging that groups
of soldiers killed civilians on the night of 6 to 7 April 1994, and that from 7 April elements of the Rwandan
military and the Interahamwe perpetrated massacres of Tutsis in Kigali. See Bagosora Indictment, paras. 6.39,
6.50; Kabiligi and Ntabakuze Indictment, paras. 6.19, 6.27, 6.36; Prosecution Closing Brief, paras. 63, 154, 158,
168, 173, 177, 264, 419-420, 425, 1094-1097, 1109(b-c, f), 1120 (e, g), 1216 (b, c), 1223, 1224, (a-c), 1287 (a,
b), 1305(b), 1307, 1320(c, d), 1324(a), 1326-1327, 1330-1331, 1335, 1363(p), pp. 767, 829, 831-832; T. 28 May
2007 pp. 11, 16.
936
Bagosora Closing Brief, paras. 501-505, 961-967, 1706-1708; Ntabakuze Closing Brief, paras. 848-1248.
937
T. 23 September 2003 pp. 3-4, 12-15, 21; T. 26 September 2003 pp. 41-43, 45-50; T. 29 September 2003 pp.
14, 57-58; T. 30 September 2003 pp. 39, 43, 47, 74; Prosecution Exhibit 99 (personal identification sheet).
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800. Ntabakuze returned between 9.00 and 10.00 p.m. and immediately met with the camp
commander Colonel Muberuka, Colonel Baransaritse from the camp’s medical company, as
well as several of the battalion’s officers, including its company commanders. Bagosora also
attended the meeting, arriving in his Mercedes-Benz jeep from the crash site, 20 to 30
minutes after the meeting began. The witness claimed that the individuals attending the
meeting were members of the Akazu, a group of individuals close to President Habyarimana.
The meeting lasted two to three hours, and Bagosora left the camp at its conclusion.938
801. After the meeting, around 1.00 a.m. on 7 April, Ntabakuze addressed the full
assembly of his battalion. He told his men that the “Inkotanyi/Inyenzi” had shot down the
President’s plane and that they should start killing “people who were against the government,
including Tutsis”. Ntabakuze ordered the deployment of each of the companies. The First
Company was to be sent to a neighbourhood near the camp known as “Akajagali”, the Third
Company to Kabeza and the Fourth Company to Remera. Witness DBQ explained that the
Second Company was not present because it had previously been reassigned to Camp
Kimihurura to reinforce the Presidential Guard. The companies departed the camp later that
morning, although a few soldiers left at night. Ntabakuze left the camp with the Third
Company which killed civilians in Kabeza.939
802. Witness DBQ and the First Company left the camp around 6.00 a.m. on the morning
of 7 April. On their departure, they were joined by Interahamwe armed with traditional
weapons as well as some volunteers from the CRAP Platoon. They began a house to house
sweep of the Akajagali neighbourhood near the camp. Two to three soldiers would approach
each house and demand the identification of the residents. The assailants then killed anyone
who was a Tutsi. Some women were also raped. Witness DBQ did not kill anyone.
Ntabakuze passed through the area twice between 10.00 and 11.00 a.m. and again between
1.30 and 2.00 p.m. On the second occasion, the witness heard Ntabakuze tell Lieutenant
Muhawenimana, the commander of the First Company: “If the operation is over and there are
no Tutsis, assemble the soldiers and take them to Remera … so that we can try to repulse the
RPF attack.” At the time, 25 to 30 dead bodies were in full view of Ntabakuze. The soldiers
departed around 3.30 to 4.00 p.m., and the witness estimated that between 1,000 and 1,500
persons were dead. The company proceeded to Remera, where other members of the Para
Commando Battalion were engaged in the massacre of civilians until the RPF began
engaging in combat later that day. The witness remained posted there until May.940
Witness DBQ identified several locations pertinent to his testimony and identified the camp and the President’s
residence on Prosecution Exhibits 100-103 (various sketches of Kanombe and surrounding areas).
938
T. 23 September 2003 pp. 15-17; T. 29 September 2003 pp. 14-15, 22-31, 33-34, 38-40, 42-43; T. 30
September 2003 pp. 39-43, 45, 52-54, 59-61, 70. According to Witness DBQ, the officers included Captain
Hakizimana, Lieutenant Rusingizandekwe, Lieutenant Muhawenimana, Lieutenant Maniriho, Second
Lieutenant Udahemuka and Second Lieutenant Cyaka.
939
T. 23 September 2003 pp. 21-23, 29; T. 26 September 2003 pp. 47-48, 57-58, 60; T. 29 September 2003 pp.
15-18, 20, 44-45, 49-51, 54, 57; T. 30 September 2003 pp. 23-24, 76-77. Witness DBQ initially testified that
both the Third and Fourth companies were deployed to Remera, and then during cross-examination said that one
company was sent to Remera and the other to Kabeza.
940
T. 23 September 2003 pp. 23-35; T. 26 September 2003 pp. 57-60; T. 29 September 2003 pp. 1-4, 17, 46, 4849, 51-54, 57-59; T. 30 September 2003 pp. 1-3, 11-14, 16, 19, 21, 23, 78. During cross-examination, Witness
DBQ stated that, after the killings in Akajagali, the First Company returned to Camp Kanombe on the afternoon
of 7 April for an assembly where they were dispatched to Remera. See T. 29 September 2003 pp. 49-50. The
witness named a number of soldiers who he personally saw kill civilians in Akajagali (T. 23 September 2003 pp.
27-28). Ntabakuze was accompanied by Captain Rusingizandekwe, Captain Hakizimana (S-3) and his escorts
Judgement and Sentence
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Prosecution Witness XAI
803. Witness XAI, a Hutu, testified that he was a former member of the 17th Battalion
who, as a result of injuries, was at the Camp Kanombe hospital on the night of 6 April.
Around 8.40 p.m., he heard the sound of the camp’s bugle. Soldiers at the hospital told the
patients to assemble on the camp’s tarmac, if they were well enough to do so. The witness
gathered there with approximately 1,500 other soldiers, including around 800 members of the
Para Commando Battalion. Ntabakuze was already there. He said that President
Habyarimana’s plane had been shot down and that those responsible “should die like dogs”.
Then he ordered his battalion to gather their weapons. When his soldiers returned to the
tarmac, he told them to go after the “enemy” and then dispatched them to Akajagali, Mulindi,
Kicukiro, Gikondo, Remera, Kigali town centre and even Rubungo. The assembly concluded
around 9.00 p.m., and the soldiers left immediately. Witness XAI was around 20 metres away
from Ntabakuze when he spoke.941
804. After the soldiers departed, Ntabakuze remained on the tarmac and spoke with
Colonel Renzaho, Colonel Muberuka, Captain Hakizimana and Lieutenant Shumbusho. A
short time later, the witness heard gunfire from the neighbourhood near the camp. The next
morning drunken soldiers returned to the camp. They said that they had killed Tutsis in
various locations, including a warrant officer named Ndamage who had been murdered near
the camp. The witness heard about another assembly held on the morning of 7 April where
Ntabakuze told his soldiers to only kill at night and to allow the Interahamwe to kill during
the day.942
Prosecution Witness XAQ
805. Witness XAQ, a Hutu and a member of the Engineering Company, was stationed at
Camp Kanombe on the night of 6 April 1994. He was on guard duty near the headquarters of
his company, between 300 and 400 metres away from the office of the Para Commando
Battalion. Around 8.30 p.m., he heard three explosions and saw a flash in the sky, and a state
of confusion immediately prevailed in the camp. A short time later, Ntabakuze left for the
crash site and returned to the camp. He assembled the members of the Para Commando
Battalion on the tarmac. The witness moved within 20 metres of the assembly so that he
could learn what had happened. Ntabakuze told his soldiers that the “Inyenzis” had killed the
President and that they needed to “avenge his death” (“Tugomba kumuhorera”). The
assembly ended around 9.00 p.m., and the soldiers went to the arms depot for weapons and
left the camp. The witness heard gunfire as they started killing Tutsis in Akajagali, near the
camp. The soldiers periodically returned to the camp for additional ammunition. A few hours
later, the witness participated in an assembly with his own company.943
Corporals Mpakaniye and Uwimana. See T. 23 September 2003 pp. 31-32. The witness identified a sketch of
Akajagali prepared by the Ntabakuze Defence, admitted as Ntabakuze Defence Exhibit 8. See T. 30 September
2003 pp. 6-8.
941
T. 8 September 2003 pp. 5-6, 39-48; T. 10 September 2003 pp. 3, 28-31; T. 11 September 2003 pp. 1-5, 9,
29-34, 36-38, 45-49; T. 12 September 2003 pp. 3-4, 10-11, 35, 38-40; Prosecution Exhibit 94 (personal
identification sheet).
942
T. 8 September 2003 pp. 42, 47, 50-52; T. 11 September 2003 pp. 34, 37; T. 12 September 2003 pp. 5-9, 3840.
943
T. 23 February 2004 pp. 4, 23-26, 40-43, 48-57; Prosecution Exhibit 195 (personal identification sheet).
Judgement and Sentence
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Prosecution Witness XAP
806. Witness XAP was a member of the Second Company of the Para Commando
Battalion in April 1994. He was at the Camp Kanombe hospital on the night of 6 April when
he heard the Presidential plane explode. A bugle sounded, signalling the soldiers, even the
sick and wounded, to assemble on the camp’s tarmac. The witness estimated that around
2,000 from the various units stationed at the camp gathered. Most of the soldiers were from
the Para Commando Battalion. The CRAP Platoon was dispatched immediately to the crash
site to gain information. After its departure, Ntabakuze addressed the assembly since the
camp commander, Colonel Muberuka, was not there. He informed the soldiers that President
Habyarimana was dead, that the Tutsis brought down the plane, and that the soldiers had to
avenge the President’s death. Ntabakuze met with his company commanders and then they
left with their units for Remera and the Akajagali neighbourhood near the camp. Witness
XAP heard gunfire throughout the night, and soldiers returning at dawn the next day
confirmed that they were killing Tutsis.944
807. Around 11.00 a.m. on 7 April, the witness saw Lieutenant Sylvestre Nzabonariba, the
commander of the battalion’s support company, kill a soldier from Cyangugu prefecture,
suspected of supporting the “Inkotanyi”, near the barracks of the Second Company.
According to the witness, Nzabonariba was not punished and retained his command.945
Prosecution Witness LN
808. Witness LN, a Tutsi and former member of the Para Commando Battalion, testified
that he was injured and thus part of the Medical Company at Camp Kanombe in April 1994.
He lived at the camp’s hospital, but did administrative work at the camp. Around 8.30 p.m.
on 6 April, the witness heard an explosion, and someone from the nearby Akajagali
neighbourhood came to the hospital and said that a plane had been shot down. The witness
listened to RTLM which immediately broadcast that a senior officer at Camp Kanombe had
confirmed that the “Inyenzi-Inkotanyi, their accomplices, as well as the Belgians” had
assassinated President Habyarimana. That night, the witness heard gunshots coming from the
Akajagali neighbourhood.946
809. Around midnight or 1.00 a.m. on 7 April, Corporal Masitimu, the bodyguard of the
camp’s medical director Colonel Baransaritse, passed by Witness LN’s room at the hospital
for a drink. Masitimu, who was a friend, told the witness that Colonel Baransaritse was
meeting at the hospital with Bagosora, Ntabakuze, Major Ntibihora and Major Mutabera. The
purpose of the meeting was to discuss how to avenge the death of President Habyarimana.
Masitimu stated that they were planning to kill Tutsis and prominent politicians, such as
Agathe Uwilingiyimana, Landoald Ndasingwa, Faustin Twagiramungu and others, including
Belgians. Around 5.00 a.m., Masitimu returned and informed the witness that the participants
of the meeting had left for army headquarters and that the soldiers were looking for the
944
T. 11 December 2003 pp. 11, 29-35, 73, 74, 88, 91-92; T. 15 December 2003 pp. 13-14, 28-41, 49-56;
Prosecution Exhibit 152 (personal identification sheet). Witness XAP refused to provide his ethnicity. See T. 11
December 2003 pp. 65-68. He estimated that the plane crash occurred at 7.30 p.m. and that the CRAP Platoon
was dispatched between 7.40 and 8.00 p.m. Ntabakuze spoke in that same time-frame immediately after their
departure. The members of the Para Commando Battalion left the camp around 10.00 p.m. The Chamber notes
that the witness’s estimate for the time of the plane crash is approximately an hour before it actually occurred.
945
T. 11 December 2003 pp. 36, 38, 79-82.
946
T. 30 March 2004 pp. 49-50, 57-63; T. 31 March 2004 pp. 9, 11-12, 29-32; T. 1 April 2004 pp. 6-13;
Prosecution Exhibit 197 (personal identification sheet).
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individuals which they had discussed. The witness was not certain as to the exact time the
meeting ended.947
810. Later that morning, a soldier from the camp confirmed that Tutsis were being killed in
the areas surrounding the camp. The witness heard gunfire and saw houses burning from
nearby Ndera hill. Around 9.00 a.m. on 7 April, the witness saw Ntabakuze address the Para
Commando Battalion, which was assembled near the camp’s tarmac. He heard Ntabakuze say
that the nature of the war had changed because the President had been killed by the Tutsis.
Ntabakuze told the soldiers that the enemy was the Tutsis living nearby or Hutus opposed to
the regime, and that they had to be eliminated. Ntabakuze specifically referred to the area of
Kabeza, which was said to be an RPF stronghold. He also warned his troops not to loot or to
rape women. The witness then saw Second Lieutenant Sylvestre Nzanbonariba kill Murekezi,
a soldier from Cyangugu prefecture, on the tarmac. After the killing, Ntabakuze spoke with
Nzanbonariba, as the witness was leaving. The witness did not hear about any investigation
into the killing and learned three days later that the lieutenant returned to his post.948
Prosecution Witness BC
811. Witness BC testified that he was a member of the CRAP Platoon of the Para
Commando Battalion in April 1994. Between 7.30 and 8.30 p.m., he heard an explosion near
the residence of President Habyarimana and immediately headed to the armoury at Camp
Kanombe. At the time, the witness did not know that the President’s plane had crashed.
Ntabakuze dispatched the witness and 18 other members of the CRAP Platoon to the
President’s residence to investigate. Once there, the witness saw the debris of the plane.
Lieutenant Kanyamikenke ordered the platoon to secure the crash site and look for bodies.
Ntabakuze also visited the crash site that night.949
812. At dawn, Lieutenant Kanyamikenke, the commander of the CRAP Platoon, told the
soldiers not to worry if they heard shooting nearby since it would be from their soldiers. The
witness later heard gunfire from the Nyarugunga neighbourhood between the camp and the
President’s residence. Between 8.00 and 9.00 a.m., Sergeant Ndayisaba, Corporal Camake
and Corporal Dusi went back to the camp to attend a meeting at Joli Bois, a wooded area
within the camp, with members of the Para Commando Battalion, called by Ntabakuze. When
they returned between 8.30 and 9.00 a.m., they informed the members of the platoon at the
crash site that Ntabakuze had ordered the soldiers to maintain discipline and systematically
eliminate Tutsis. However, Ntabakuze and Kanyamikenke never directly gave him any orders
to kill Tutsis. He never saw any member of his battalion kill civilians, but added that
everywhere the battalion was deployed there were dead bodies.950
Prosecution Witness DBN
813. Witness DBN, a Tutsi and a member of the General Services Company in the Para
Commando Battalion, testified that, around 8.00 p.m. on 6 April, he heard a loud explosion
and saw a plane crash over President Habyarimana’s residence. The bugle at Camp Kanombe
sounded, and he rushed to the camp. He was ordered to gather his weapon and man his
947
T. 30 March 2004 pp. 60-63; T. 31 March 2004 pp. 29-41.
T. 30 March 2004 pp. 63-68, 70-73; T. 1 April 2004 pp. 29, 31, 33-35.
949
T. 1 December 2003 pp. 25, 32; T. 10 December 2003 pp. 79-80; Prosecution Exhibit 147 (personal
identification sheet). Witness BC stated that he did not know his ethnic group. See T. 1 December 2003 pp. 3940.
950
T. 1 December 2003 pp. 32-35; T. 10 December 2003 pp. 81-87, 91-92.
948
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vehicle, which was 20 metres from Ntabakuze’s office. The battalion’s company
commanders met with Ntabakuze in his office for around 30 minutes as the rest of the
soldiers gathered with their respective companies. After the meeting, the company
commanders left the camp with their units towards the Akajagali neighbourhood behind the
camp. Around 9.30 p.m., the witness fell asleep in his vehicle.951
814. Around 7.00 a.m. on 7 April, around 500 members of the Para Commando Battalion
gathered again in front of Ntabakuze’s office. Ntabakuze addressed his soldiers for about 20
minutes. He told them that the “Tutsis” had shot down President Habyarimana’s plane and
that they had to avenge his death. After the meeting, two companies left the camp for
Akajagali, and the witness returned to his guard post near Ntabakuze’s office. He heard
gunfire and grenade explosions.952
815. After the meeting ended, Bagosora arrived at the camp alone around 7.30 a.m. in a
white car, most likely a Peugeot, with military licence plates. He spoke with Ntabakuze in his
office for about 20 minutes, and then left the camp. After his departure, the witness was
ordered to take food to members of the Presidential Guard at the President’s residence. As he
passed through the Akajagali neighbourhood, he saw members of the Para Commando
Battalion, wearing camouflage berets. There were bullet ridden dead bodies in the street and
many of the houses looked as if they had been damaged by grenades.953
816. Around 10.00 a.m., Witness DBN drove a truck in a five vehicle convoy, carrying
around 30 soldiers each, to Remera. The soldiers were deployed at various locations there,
including near Chez Lando and the SGP Petrol station, in order to prevent the RPF from
leaving their cantonment at the CND. He saw members of the Para Commando Battalion
going from house to house in Kabeza. Around 1.00 p.m., he again took food to the
Presidential Guard at President Habyarimana’s residence. Soldiers and Interahamwe were
breaking into houses. On this trip, he could see houses burning on Ndera, Masaka, Rusororo
and Gasogi hills. In particular on Ndera hill, the witness also saw soldiers operating, but
could not identify their unit given the distance.954
817. Witness DBN also testified about the death of a soldier from Cyangugu on the parade
ground in front of Ntabakuze’s office at Camp Kanombe. At some point before noon on 7
April, the witness heard a gunshot and went towards Ntabakuze’s office to see what was
happening. The soldiers there said that Lieutenant Nzanbonariba, a company commander,
shot a soldier from Cyangugu prefecture, who some believed was Tutsi. After the incident,
Ntabakuze called Nzabonariba into his office where the two spoke briefly.955
Prosecution Witness XAB
818. Witness XAB, a soldier in the Third Company of the Para Commando Battalion, said
that he is a Tutsi but that his identification card indicated that he was a Hutu. After the crash
of President Habyarimana’s plane on the night of 6 April, an alarm was sounded at Camp
951
T. 31 March 2004 pp. 63, 68-70, 73, 75; T. 5 April 2004 pp. 31-39, 87; Prosecution Exhibit 198 (personal
identification sheet). Witness DBN did not remember the names of the company commanders.
952
T. 31 March 2004 pp. 75-77; T. 5 April 2004 pp. 39-41.
953
T. 31 March 2004 pp. 77-81; T. 1 April 2004 p. 40; T. 5 April 2004 pp. 41-42, 75-81, 86-90, 101. Witness
DBN identified several of the soldiers as Bizimungu, Mpiranya, Camake, Kiyogera and also Muyandinda from
the battalion’s CRAP Platoon and General Services Company.
954
T. 1 April 2004 pp. 40-42, 45-49, 51; T. 5 April 2004 pp. 42-50.
955
T. 1 April 2004 pp. 61-63; T. 5 April 2004 pp. 51-54.
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Kanombe. The witness attempted to return to the camp from his nearby home, but was turned
away by the guards at the gate. After returning home, he heard gunfire from the Akajagali
area near the President’s residence, which he referred to as Nyarugunga.956
819. Around 5.45 a.m. on 7 April, Witness XAB arrived at Camp Kanombe and saw 15
minutes later a fellow soldier named Nkurunziza who was carrying his child. Nkurunziza told
the witness that a member of the CRAP Platoon named Dusi had killed Nkurunziza’s wife
and members of her Tutsi family. He also learned that other Tutsis were killed in the area by
members of the Para Commando Battalion. Other colleagues informed him that members of
the CRAP Platoon had killed Tutsi refugees at Centre Christus and that the Prime Minister
had been killed. Around 7.00 to 7.30 a.m., Ntabakuze assembled the Para Commando
Battalion and told his soldiers to avenge the death of the President and that the enemy was the
“Tutsi and all of their accomplices”. The Fourth Company was sent to Camp Kimihurura to
replace the Second Company, which had been deployed there. The Second Company was
redeployed to Kicukiro. The First and Third Companies were sent to Remera. The witness
remained at Camp Kanombe to assist his family and did not join the company until 9 April.957
820. After the assembly, Witness XAB heard gunfire as the companies prepared to deploy.
He rushed back to the tarmac and saw the dead body of a soldier named Murekezi from
Cyangugu prefecture. The witness learned that Lieutenant Sylvestre Nzabonariba had killed
him, after saying that there was no need to look for Inyenzi outside the camp because there
were several within their own ranks. After the killing, the witness saw Ntabakuze pull
Nzabonariba aside. At 8.00 a.m., he observed Bagosora arrive in a camouflage colour Land
Rover jeep along with his bodyguards. He spoke with Ntabakuze for about 10 minutes
outside Ntabakuze’s office at Camp Kanombe. Nzabonariba was taken into the office while
Bagosora was there, and after the meeting he was transferred to the Light Anti-Aircraft
Battalion.958
Prosecution Witness DP
821. Witness DP, a Tutsi, was a member of the General Services Company of the Para
Commando Battalion in April 1994. Around 8.30 p.m. on 6 April, he saw President
Habyarimana’s plane explode as it approached the airport. He then rushed to the homes of
other soldiers living in his neighbourhood, known as Akajagali, which is in Nyarugunga
sector near Camp Kanombe. He told them that the President was dead and that they needed to
go to the camp. The camp’s bugle then sounded, and the soldiers went to the assembly area.
The battalion assembled around 9.00 p.m., and the witness heard Ntabakuze informing his
soldiers that he was going to investigate the crash site to see if the President had been killed.
Ntabakuze returned at 9.30 p.m. and confirmed the President’s death. He told the battalion to
stay together and then deployed members of the CRAP Platoon to secure the site. The
battalion remained on standby for the night.959
956
T. 6 April 2004 pp. 20-22, 63, 85; Prosecution Exhibit 200 (personal identification sheet).
T. 6 April 2004 pp. 22-24, 63-70, 78, 85-94.
958
T. 6 April 2004 pp. 24-27, 33, 44-45, 90, 92-94; T. 7 April 2004 pp. 1-2, 4-12, 16-17, 19-20.
959
T. 2 October 2003 pp. 11, 15, 56-58, 61, 73-74; Prosecution Exhibit 112 (personal identification sheet).
Witness DP testified that he is a Tutsi, but in 1994 most people believed he was Hutu as indicated on his identity
card at the time. His personal identification sheet indicates that he was a Hutu. He explained that the Prosecution
wrote that he was a Hutu because a Tribunal investigator asked him what his identity card said in 1994. See T. 2
October 2003 pp. 56, 72; T. 3 October 2003 pp. 26-28.
957
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822. Between 8.00 and 9.30 a.m. on 7 April, the witness gathered the bodies of the crash
victims from the President’s residence and guarded them in the mortuary of the hospital at
Camp Kanombe. At 9.30 a.m., he left to attend an assembly of the Para Commando Battalion,
which began around 10.30 or 11.00 a.m., at a wooded area in the camp known as Jolis Bois.
Ntabakuze told his soldiers that war would resume and that the RPF had left the CND and
attacked Remera. He cautioned that there were many Tutsis living in Remera and that the
soldiers had to kill them. The meeting ended around 2.00 p.m. The witness returned to guard
the bodies at the hospital but slipped away to briefly visit the family of his fiancée in
Akajagali. On the way to Akajagali, at around 3.00 p.m., he heard gunshots and saw dead
bodies and soldiers moving about, including two members of the battalion’s First Company.
On 8 April 1994, the witness returned and saw that his fiancée and her family, all Tutsis,
were dead. A soldier who accompanied the witness told him to leave the house before the
Presidential Guard found him there.960
Prosecution Witness GS
823. Witness GS, a Hutu, was a member of the Military Construction Company at Camp
Kanombe in April 1994. Around 8.30 p.m. on 6 April, he saw President Habyarimana’s plane
explode in the sky over the Presidential residence. He then heard the sound of gunshots being
fired in the air and gathered with other soldiers in front of the office of Major Ntibihora, his
company commander, to find out what happened. Around 9.00 p.m., the witness saw
Ntabakuze meet with Major Ntibihora and Lieutenant Colonel Baransaritse in front of the
office of the Military Construction Company. The witness heard Ntabakuze say that the
Tutsis had killed the President and that they had to avenge his death. The officers went into
Ntibihora’s office and, after a short while, came out and ordered members of the Military
Construction Company to make coffins for the crash victims.961
824. Around midnight, Witness GS heard shooting coming from the direction of the
President’s residence and suspected that it was coming from members of the Presidential
Guard. Around 4.00 a.m. on 7 April, members of the Para Commando Battalion left the
camp, passing the witness’s guard post, and began killing civilians in the nearby residential
area. Around 7.00 a.m., he left the camp to see members of his father-in-law’s family who
lived close by in Kamashashi cellule, Nyarugunga sector, also referred to as Akajagali. He
saw dead bodies in the neighbourhood surrounding the camp. Residents of the area said that
members of the Para Commando Battalion, wearing camouflage berets, had already passed
through the area, killing Tutsis, including the family of the witness’s father-in-law. A
member of the Presidential Guard near his father-in-law’s house warned him to be careful so
as not to be killed by the “Inkotanyi”. The witness also saw a member of the Light AntiAircraft Battalion named Gasutamo, who appeared to be confirming that the killings had been
carried out.962
Prosecution Witness XXJ
825. Witness XXJ, a Hutu, was an officer in a support unit stationed at Camp Kanombe in
April 1994. Approximately three weeks before the death of President Habyarimana, his unit
commander, Major Mutabera, chaired a meeting informing his soldiers that the RPF intended
960
T. 2 October 2003 pp. 12-17, 19-23, 75-76, 78-80; T. 3 October 2003 pp. 5-9.
T. 17 February 2004 pp. 42-43, 45-46; T. 18 February 2004 pp. 21-22, 24-28, 30-32; Prosecution Exhibit 191
(personal identification sheet).
962
T. 17 February 2004 pp. 42, 45-48, 55; T. 18 February 2004 pp. 33-43, 66.
961
Judgement and Sentence
207
18 December 2008
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to kill the President and to resume hostilities. According to the witness, the army general staff
had transmitted this plan to each unit. After the plane crash on 6 April, the witness assembled
with his unit in front of Mutebera’s office, who instructed them to take up the previously
agreed positions and await further instructions.963
826. On the morning of 7 April, an army captain contacted Witness XXJ by radio and
asked him to verify the situation of his fiancée, who was in the Akajagali neighbourhood near
the camp. The witness left the camp between 7.00 a.m. and 8.00 a.m. and saw members of the
Presidential Guard and Para Commando Battalion canvassing the area. He found the woman
alive, but several members of her family were dead, including her father, Corporal Ndamage.
Other bodies were also visible outside the house. It was said that Ndamage was a Tutsi and
that his son had joined the ranks of the Inkotanyi. While bringing the captain’s fiancée back
to the camp, the witness encountered a group of soldiers from the Para Commando Battalion,
including a second lieutenant named Niyitegeka. The woman told the witness that they were
responsible for the death of her family.964
Bagosora
827. Bagosora denied that he was at Camp Kanombe and met with Ntabakuze between the
evening of 6 April through the morning of 7 April. He pointed to meetings he attended with
General Dallaire and Special Representative Booh-Booh, which lasted from 10.30 p.m. until
approximately 2.00 a.m., and his subsequent presence at staff headquarters until 4.30 a.m. to
finalise the radio announcement regarding the President’s death. Bagosora left staff
headquarters for his home, arriving at approximately 5.00 a.m., and he remained there for
approximately one hour before departing for staff headquarters again to meet with officers.
Bagosora accounted for his time on the morning of 7 April, noting his presence at the
Ministry of Defence for an MRND between around 6.45 and 8.30 a.m., and then his presence
at the United States Ambassador’s residence from 9.00 a.m. to approximately 9.45 a.m.
Afterwards Bagosora stopped briefly at the Ministry before his meeting at ESM with
commanders, where he arrived at approximately 10.15 to 10.30 a.m.965
828. According to Bagosora, he went to Camp Kanombe around 5.00 p.m. on 7 April,
when he deposited his family at a friend’s residence there. He left and returned at
approximately 6.00 p.m. after he was unable to return to Camp Kigali. Bagosora departed for
President Habyarimana’s residence sometime around 7.00 to 7.30 p.m., returning to his
friend’s residence at Camp Kanombe between 9.00 and 9.30 p.m. where he slept, leaving at
approximately 7.00 a.m. the following morning.966
829. Bagosora estimated that the distance between the Ministry of Defence and Camp
Kanombe is approximately 20 kilometres and that a round trip would take about 40
minutes.967
963
T. 14 April 2004 pp. 16-18, 51-55, 57-58, 60, 63-65; T. 15 April 2004 pp. 80, 86-87; Prosecution Exhibit 208
(personal identification sheet).
964
T. 14 April 2004 pp. 22-24; T. 15 April 2004 pp. 73-76, 79-84.
965
T. 7 November 2005 pp. 29, 35-38, 48, 51, 53, 55-57, 61-65, 71-73; T. 15 November 2005 pp. 38-39.
966
T. 8 November 2005 pp. 52-54, 57-58, 75.
967
T. 7 November 2005 p. 66.
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Ntabakuze
830. Ntabakuze testified that around 8.15 p.m. of 6 April 1994, he was in his quarters at
Camp Kanombe when he heard three loud explosions. Rushing outside, he saw a fireball
falling to the ground near the President’s residence. He immediately left his home and headed
for his office. There he saw the commanding officer of the Kigali operational sector, Colonel
Muberuka, who told him that he had tried to reach the Presidential Guard for more
information about what had occurred but had been unsuccessful. He ordered Ntabakuze to
seek information from the Presidential Guard post at the residence and to take the CRAP
Platoon to locate the crash site. Ntabakuze spoke to Lieutenant Kanyamikenke, the
commander of the CRAP Platoon, took two of his men to reinforce his escort detail, and then
left Camp Kanombe for the President’s residence with the four soldiers. Ntabakuze left
through the main entrance of Camp Kanombe and did not observe any soldiers killing any
civilians in Akajagali. He noticed that there was no movement in the neighbourhood and
surmised that residents had returned to their homes because of the explosion.968
831. Upon arrival at the guard post of the President’s residence, Ntabakuze was informed
by Lieutenant Sebashyitsi that the crash site’s precise location had not been found yet.
Ntabakuze located the wreckage in a banana plantation approximately 200 metres from the
President’s residence. Observing the national flag on the plane’s tail, Ntabakuze recognised
the plane as the President’s. He returned to Camp Kanombe, passing through the entrance
where Akajagali is located, to update Colonel Muberuka. He did not observe any soldiers
killing anyone in Akajagali. In a meeting of the unit commanders chaired by Muberuka, they
were ordered to “reinforce the perimeter of the Camp” and to be ready to intervene on short
notice. Between 9.00 and 9.30 p.m., Ntabakuze drove along with Muberuka, who was in his
own car, to the crash site. They stayed there for 20 minutes, extended condolences to the
bereaved Habyarimana family and then returned to Camp Kanombe.969
832. At approximately 10.00 p.m., Ntabakuze took Major de Saint-Quentin, the head of the
French parachute training team in Rwanda who was based at Camp Kanombe, to see the
French nationals that had died in the crash. Again the convoy passed Akajagali and no
soldiers were observed killing civilians. Ntabakuze left Major de Saint-Quentin there and
returned to Camp Kanombe. He called a meeting of his Company Commanders to inform
them about the death of the President, report Muberuka’s orders and receive updates on the
status of their various units. The meeting lasted about an hour. Ntabakuze asked all his
commanders to inform their soldiers about the attack, to put them on high alert and to be
ready to intervene at short notice. He did not give any orders for subordinates to leave the
camp. Ntabakuze then spent the rest of the night in his office.970
833. On 7 April at approximately 6.00 a.m., Ntabakuze went to his house for
approximately 45 minutes and then returned to his office at Camp Kanombe. Between 7.30
and 8.00 a.m., he met Major de Saint-Quentin and informed him about the meeting at ESM
scheduled for 10.00 a.m. At 9.25 a.m., Ntabakuze left for ESM and arrived around 9.50 a.m.
He drove past Akajagali and parts of Kigali but did not see any soldiers, dead bodies or any
unusual activity. The ESM meeting, with approximately 50 to 60 military officers present,
was chaired by Bagosora and General Ndindiliyimana and attended by Muberuka and
968
T. 18 September 2006 pp. 25-32, 36.
Id. pp. 31-33, 36-43.
970
Id. pp. 43-47.
969
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
General Dallaire among others. After the meeting, at 12.30 p.m., Ntabakuze returned to
Camp Kanombe, but passed through Mburabuturo with Major Mutabera, commander of the
field artillery battalion at Camp Kanombe. He arrived at the camp around 1.15 or 1.20 p.m.
The soldiers were still on standby near the office of the Company Commanders. He then went
to his residence on Camp Kanombe for lunch and returned to his office around 2.30 p.m.971
834. At 3.30 p.m., Muberuka ordered Ntabakuze to send reinforcements to Camp
Kimihurura to reinforce the soldiers there because their position was under attack from the
RPF. The rest of Ntabakuze’s Para Commando companies were to be on standby should there
be another mission. After the brief meeting, Ntabakuze gathered all his units on the tarmac
for a parade. He informed them that the RPF had resumed hostilities and that they now had to
fight the enemy. He then ordered the Fourth Company, under Second Lieutenant Hakizimana,
to head for Camp Kimihurura. They left around 3.40 p.m. The Company did not report any
killings in Akajagali.972
835.
At around 4.00 p.m., Muberuka informed Ntabakuze that the RPF had attacked near
the airport and captured the gendarmerie brigade in Remera. He ordered Ntabakuze to send
reinforcements and to prevent the capture of the airport. Ntabakuze immediately dispatched
the First Company. He subsequently met with Major de Saint-Quentin who had passed by to
seek information. As they were discussing, Ntabakuze heard shots and rushed outside to
discover that Lieutenant Nzabonariba had killed one of his soldiers. Ntabakuze disarmed
Nzabonariba, replaced him and ordered an investigation.973
836. Ntabakuze testified that he later deployed the Third Company to Remera. He
explained that each of the combat companies were dispatched with elements of the Fire
Support Company. This meant that all his units were deployed by that point, leaving only
about 60 or so administrative personnel in Camp Kanombe. At around 6.30 p.m., he spoke
with Major de Saint-Quentin about the death of the Belgian peacekeepers. Ntabakuze
subsequently left to establish his command post at the airport, which was on higher ground,
so that he could communicate with his deployed units as well as Camp Kanombe. He held
that post until May 20 when they had to withdraw because of the RPF advance.974
837. Ntabakuze stated that the only assembly of the entire Para Commando Battalion took
place on 7 April around 3.30 p.m. During the assembly he did not speak about revenge; he
only said that they had to counter-attack the enemy. Ntabakuze denied having met Bagosora
in Camp Kanombe on 6 or 7 April. During this time period, Ntabakuze passed through
Akajagali about four times: three times during the night and once in the morning to reach
ESM. He did not see any soldiers engaged in killing civilians.975
Ntabakuze Defence Witness DM-26
838. Witness DM-26 is an officer who was stationed at Camp Kanombe at the beginning of
April 1994. Around 8.30 p.m. on 6 April, he heard the explosion of President Habyarimana’s
plane followed by the sound of gunfire, which he interpreted as an attack on the camp. He
tried to reassure his family and then proceeded to the office of Major Ntabakuze in order to
obtain information about what had happened. Ntabakuze left for the crash site, and the
971
Id. pp. 47-52, 53.
Id. pp. 53-54, 58-59, 60.
973
Id. pp. 54-56.
974
Id. pp. 54, 56-57, 66, 72.
975
Id. pp. 30, 39, 47-49, 53, 59.
972
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
witness remained in an office near the assembly point for the Para Commando Battalion.
Ntabakuze returned, informed the witness about the crash of the President’s plane and asked
him to accompany him to the crash site. The witness was not aware of any speech given by
Ntabakuze to his soldiers that evening.976
839. Between 9.30 and 10.15 p.m., Witness DM-26 visited the crash site and remained
there until around 2.00 to 4.00 a.m. Members of the CRAP Platoon were searching for the
bodies of the crash victims. He returned to the crash site between 8.00 and 9.00 a.m. on the
morning of 7 April and again remained for several hours. On both occasions, the witness
passed through the area between the camp and the President’s residence known as Akajagali.
He described the neighbourhood as calm and did not see members of the Para Commando
Battalion operating there or hear gunshots.977
840. Witness DM-26 met with Ntabakuze in his office on the morning of 7 April and for a
second time in the course of the afternoon. While they were speaking in the afternoon, he
heard a gunshot coming from the tarmac and saw two members of the Para Commando
Battalion restraining the brother of a soldier who had just been shot. In his view, Ntabakuze
then tried to calm the situation down. The witness added that he was not aware of any speech
given by Ntabakuze to his soldiers that morning.978
Ntabakuze Defence Witness DH-51
841. Witness DH-51, a Hutu, was a member of the Para Commando Battalion in 1994 and
part of Ntabakuze’s escort after 6 April. In the evening of 6 April, he was seated outside the
Para Commando commander’s office when he heard two explosions and saw a plane crash
and burst into flames. Afterwards, at approximately 8.30 p.m., Ntabakuze arrived at the office
in a Toyota Hilux and spoke with Colonel Muberuka.979
842. The witness, along with four soldiers from the Para Commando Battalion and two
others from the CRAP Platoon, escorted Ntabakuze to the crash site, where they remained
there for about 20 minutes. They were not aware that President Habyarimana was dead,
learning of this only during a subsequent visit when they were informed that his body had
been found.980
843. In the meantime, the Camp Kanombe bugle had been sounded. The Para Commando
Battalion soldiers assembled, unarmed, in front of the company offices around 9.00 p.m.
After the first visit to the crash site, Ntabakuze returned to Camp Kanombe and had a short
conversation with Colonel Muberuka. They all then returned to the crash site, in two separate
vehicles. The second visit to the crash site lasted over 15 minutes. The soldiers from the
Presidential Guard and the CRAP Platoon were also present and people were trying to
extinguish the fire.981
844. Witness DH-51 escorted Ntabakuze on a third visit to the crash site that night. They
drove Colonel Muberuka and Major de Saint-Quentin, the head of the French parachute
training team stationed in Camp Kanombe, and returned to the camp at around 11.00 p.m.
976
T. 1 December 2006 pp. 21, 23, 26, 29; Ntabakuze Defence Exhibit 266 (personal identification sheet).
Id. pp. 23-24, 26, 29-31, 34-35.
978
Id. pp. 25, 27, 36.
979
T. 6 December 2005 pp.10-12; Ntabakuze Defence Exhibit 199 (personal identification sheet).
980
Id. pp. 12-13.
981
Id. pp. 12-14.
977
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
The soldiers were still at the parade ground in front of the company offices. Ntabakuze went
directly to his office. At around midnight, Ntabakuze met with the company commanders in
another office. The meeting lasted for about one hour to an hour and a half. The witness did
not see Bagosora come to Ntabakuze’s office nor did Ntabakuze assemble members of the
battalion that evening.982
845. On 7 April 1994, at around 9.00 a.m., Ntabakuze returned from picking up a change
of his clothes at his residence near the camp. Witness DH-51 then escorted Ntakabuze to a
meeting at ESM. They passed by Akajagali. According to the witness, no soldiers were
present, the situation was normal, and people were moving without difficulty. The soldiers of
the Para Commando Battalion were in front of the offices of their respective companies at the
assembly ground, except for the Second Company which was at Kimihurura.983
846. The witness waited in the parking lot of the ESM. The meeting lasted about an hour
and a half. Ntabakuze left the ESM at the same time as the other participants. This was about
11.00 a.m, and they arrived back in Camp Kanombe at about 11.30 a.m. The situation in the
Akajagali neighbourhood, which they passed by, seemed normal. The soldiers of the Para
Commando Battalion were still at the assembly ground.984
847. Between 2.30 and 3.00 p.m. that afternoon, Ntabakuze assembled all the soldiers. He
told them that the RPF had resumed hostilities and that there had been an attack on the plane
of the President, who had been killed. He said that staff headquarters had ordered the Fourth
Company to Kimihurura for reinforcement of the soldiers there. The First and Third
Companies later received orders to deploy between Remera and IAMSEA. Witness DH-51
testified that no orders were given to kill civilians in order to avenge the death of the
President.985
Ntabakuze Defence Witness DK-14
848. Witness DK-14, a Hutu, was a member of the First Company of the Para Commando
Battalion in April 1994. At approximately 8.30 p.m. on 6 April, the witness observed a “spark
in the sky” and heard an explosion. After the crash of President Habyarimana’s plane, the
soldiers were summoned by a bugle, and they gathered with their weapons. At around 11.00
p.m., the battalion’s company commanders informed the assembled soldiers that the
President’s plane had been brought down and that they should await further instructions.
They remained there through the night until 7 April at 2.00 to 3.00 p.m., when Ntabakuze
assembled them to inform them that the President was dead and that Camp Kimihurura had
been attacked. At about 3.35 p.m., Ntabakuze dispatched the Fourth Company to Kimihurura,
while the remaining companies were deployed to Remera. According to Witness DK-14,
none of the members of the First Company were deployed to the Akajagali neighbourhood
near the camp. The witness denied that Ntabakuze held other assemblies during the night of 6
April, on the morning of 7 April, or that the soldiers went outside the camp before Ntabakuze
gave these orders.986
982
Id. pp. 14-17, 50-51.
Id. pp. 19-20, 37-38, 42.
984
Id. pp. 21, 26, 38-42, 46-48.
985
Id. pp. 22, 51.
986
T. 14 March 2006 pp. 24, 29-31; T. 16 March 2006 pp. 5-6, 9-11; Ntabakuze Defence Exhibit 218 (personal
identification sheet).
983
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Ntabakuze Defence Witness DK-19
849. Witness DK-19, a Hutu, was a member of the Engineering Company at Camp
Kanombe in April 1994. At approximately 8.00 p.m. on 6 April, he was in Colonel Mayuya’s
camp and saw a plane on its final approach towards the Kanombe airport. The witness heard
two missile shots, observed the plane change its path and heard an explosion which he
attributed to the plane crashing. After the crash, a clarion called for the soldiers to assemble.
At approximately 10.00 p.m., the witness’s company commander told his unit that it was
likely the Presidential plane had been brought down and to await further instructions. A noncommissioned officer later asked them to get their weapons.987
850. Around 2.00 a.m., Witness DK-19’s company commander confirmed the death of the
President and asked that they remain on camp grounds. The witness did not attend any
assembly of the Para Commando Battalion and did not see anyone leave the camp. He could
not see or hear from the tarmac what was occurring where the Para Commando Battalion
assembled, nor could he see the main exit of Camp Kanombe. At approximately 9.00 a.m. on
7 April, the witness left Camp Kanombe for ESM, passing briefly by Akajagali. He did not
observe any traces of violence in Akajagali or cross any roadblocks. The witness estimated
that he arrived at ESM shortly before 10.00 a.m. Returning on to Camp Kanombe on the
same route, he indicated that the situation in Akajagali at approximately 1.00 p.m. was the
same as he had previously observed.988
Ntabakuze Defence Witness DH-87
851. Witness DH-87, a Hutu and a driver with the Presidential Guard, testified that,
between 7.00 and 7.30 a.m. on 7 April, he passed by Akajagali on his way to the President’s
home. Akajagali was calm, and he did not observe soldiers there. He went to Camp
Kanombe and between 8.00 and 8.30 a.m. observed around 400 members of the Para
Commando Battalion gathered on the parade grounds at Camp Kanombe. In his view, the
soldiers appeared to be awaiting instructions since they were not in specific formation. The
witness remained at the camp for approximately 20 to 30 minutes, and then departed. Again,
he did not observe any soldiers as he passed Akajagali.989
Deliberations
852. It follows from the evidence that, after the downing of President Habyarimana’s
plane, an alarm was sounded at Camp Kanombe, and members of the Para Commando
Battalion assembled on the tarmac near Ntabakuze’s office a short time later. It is also
undisputed that members of the Para Commando Battalion were eventually deployed to
various positions in Kigali, most notably Remera. The main issues are whether Ntabakuze
met with Bagosora at Camp Kanombe at some point between 6 and 7 April 1994, and
whether Ntabakuze ordered his soldiers to avenge the death of President Habyarimana by
killing Tutsis in nearby localities, such as Akajagali.
853. The Prosecution has presented 11 purported first-hand accounts of what transpired at
Camp Kanombe and in its vicinity between 6 and 7 April. This evidence comes from
987
T. 11 July 2005 pp. 51-53, 55, 57-59; T. 12 July 2005 pp. 18-19, 48–49; Ntabakuze Defence Exhibit 142
(personal identification sheet).
988
T. 11 July 2005 pp. 59-60, 63, 65; T. 12 July 2005 pp. 20-21.
989
T. 18 April 2005 pp. 59-65, 67-70, 72, 75-76; Ntabakuze Defence Exhibit 85 (personal identification sheet).
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members of the Para Commando Battalion as well as other units stationed at the camp. The
Ntabakuze Defence has presented six witnesses, including Ntabakuze, who were also in a
position to follow at least a part of the events during that period. There are a number of
significant differences between these testimonies as to what actually happened. In addition,
several Prosecution and Defence witnesses, discussed in other sections, equally provided
first-hand testimony placing Bagosora and Ntabakuze at other locations at times when certain
Prosecution witnesses placed them at Camp Kanombe (III.3.2; III.3.7).
(i) Alleged Meeting Between Bagosora and Ntabakuze at Camp Kanombe
854. The Chamber will first consider whether Bagosora met with Ntabakuze at Camp
Kanombe between 6 and 7 April 1994. Two witnesses said Bagosora was present at the camp
on the night of 6 April, whereas two others placed him at the camp the next morning between
7.30 and 8.00 a.m. With respect to his presence at the camp on the night of 6 April, Witness
DBQ gave direct testimony that Bagosora arrived around 9.00 or 10.00 p.m. and met with
Ntabakuze and other officers for two to three hours in Ntabakuze office. Bagosora then left
the camp, and Ntabakuze addressed the battalion around 1.00 a.m. Witness LN only heard
that Bagosora met with Ntabakuze and other officers at the camp’s hospital between midnight
and 1.00 a.m. The accounts of Witnesses DBQ and LN appear to contradict each other as to
the time and location of the meeting, although it is possible that Ntabakuze and Bagosora met
twice, first at Ntabakuze’s office in the camp and subsequently at the hospital, just outside the
camp.
855. A more significant contradiction, however, exists between their accounts and the
corroborated and credible testimonies of General Dallaire, Major Beardsley, Colonel
Marchal, Special Representative Booh-Booh and Bagosora. According to these witnesses,
which the Chamber accepts, Bagosora was at Camp Kigali attending a meeting of the Crisis
Committee from around 9.30 p.m. until about 12.00 p.m., when he and Dallaire met with
Booh-Booh at his residence (III.3.2.1-2). They returned to Camp Kigali around 2.00 p.m.990
These meetings occurred at the times when Witnesses DBQ and LN placed him at Camp
Kanombe.991 The Prosecution does not reconcile the evidence of Witnesses DBQ and LN
with the accounts of its other witnesses, including Dallaire and Beardsley, placing Bagosora
at other locations in Kigali at the same time.992 In the Chamber’s view, this contradiction
calls into question the reliability of the testimonies of Witnesses DBQ and LN about
Bagosora’s presence at Camp Kanombe. The Chamber is therefore not satisfied that the
Prosecution has proven beyond reasonable doubt that Bagosora met with Ntabakuze on the
night of 6 April.
856. Turning to the morning of 7 April, Witnesses DBN and XAB placed Bagosora at
Ntabakuze’s office at the camp at approximately the same time, around 7.30 to 8.00 a.m.
Both witnesses gave similar approximations for the length of the meeting, ranging from 10 to
990
Prosecution Expert Witness Filip Reyntjens testified that Bagosora has a time span of about five hours that
are unaccounted for on the morning of 7 April 1994 between 1.30 a.m. to about 6.30 a.m. Reyntjens surmised
that it was during that period that Bagosora set the killings in motion. See T. 15 September 2004 pp. 25-28; T.
17 September 2004 pp. 35, 66. Bagosora claimed that he left army headquarters at Camp Kigali around 4.30
a.m. to go home and returned for a meeting around 6.00 a.m. See T. 7 November 2005 pp. 35-36, 48; T. 9
November 2005 pp. 56-57; T. 10 November 2005 p. 55.
991
As mentioned above, Bagosora estimated that the distance was 20 kilometres. See T. 7 November 2005 p. 66.
992
Prosecution Closing Brief, paras. 250-252, 264, 419-420, 1109(b), 1319, 1240, 1251(a), 1252-1255.
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20 minutes. There are, however, some differences in their account. Witness DBN testified
that Bagosora arrived alone in a white Peugeot vehicle. In contrast, Witness XAB stated that
he arrived in a military Land Rover, accompanied by bodyguards. The Prosecution suggests
that these witnesses corroborate each other, but has made no attempt to reconcile this
difference in their accounts.993
857. Furthermore, the Prosecution alleges in paragraph 6.13 of the Bagosora Indictment
that Bagosora was meeting with Mathieu Ngirumpatse and others at the Ministry of Defence
about 7.00 a.m., as reflected in the evidence (III.3.7). It is also alleged in paragraph 6.7 that
he met with the United States Ambassador at his residence at 9.00 a.m., which the Chamber
has accepted (III.3.2.3). The Chamber further observes that the distance between the Ministry
of Defence, Camp Kanombe and the residence of the United States Ambassador in Kaciyiru
raises doubt that Bagosora could have met briefly with Ntabakuze at Camp Kanombe in
addition to the other meetings he attended that morning.994 For the foregoing reasons, the
Chamber is not satisfied that the Prosecution has proven beyond reasonable doubt that
Bagosora met Ntabakuze at Camp Kanombe on the morning of 7 April.
(ii) Ntabakuze’s Alleged Order to Kill Tutsis in Areas Surrounding Camp Kanombe
858. Turning to the question of whether Ntabakuze ordered his soldiers to avenge the death
of the President by killing Tutsis in nearby areas, the Prosecution and Defence witnesses are
in general agreement that the members of the Para Commando Battalion assembled at the
camp shortly after the downing of the plane. Their testimonies, however, differ significantly
as to when and how Ntabakuze addressed his soldiers and dispatched them. A review of the
accounts of the Prosecution witnesses reveals two main versions of what happened after the
death of President Habyarimana. According to four witnesses, Ntabakuze addressed his
battalion on the night of 6 April. It immediately left the camp to kill Tutsis in surrounding
areas. Eight witnesses suggests that Ntabakuze addressed the battalion on the morning of 7
April and then dispatched it. One witness lends support to both versions. The Prosecution
contends, for the most part, that each of its witnesses concerning this event corroborate each
other and makes no effort to reconcile the varying details of their narratives. For its part, the
Ntabakuze Defence presented evidence, suggesting that the battalion remained on standby
until Ntabakuze dispatched them on the afternoon of 7 April to counter an RPF offensive.
859. The main evidence that Ntabakuze dispatched members of the Para Commando
Battalion to kill Tutsis shortly after the crash comes from Witnesses XAI, XAQ, XAP and
DBN. Each of them indicated that the full battalion was deployed to the neighbourhoods
surrounding the camp around 9.00 p.m., approximately 30 minutes after the downing of the
President’s plane. There are, however, a number of differences between their individual
accounts. For example, Witnesses XAI and XAP indicated that Ntabakuze addressed all the
units in the camp. In contrast, Witness XAQ suggested that he only addressed assembled
members of the Para Commando Battalion, which is consistent with evidence from other
witnesses that each of the camp’s units received its own address from its respective
commander. This difference could possibly be explained by the passage of time and varying
vantage points of the witness shortly after a chaotic event.
993
994
Id. paras. 1331, 1335, 1336.
Prosecution Exhibit 53 (scaled street plan of Kigali).
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860. However, there is a more significant difference between Witnesses XAI, XAQ and
XAP who recounted Ntabakuze’s calls for vengeance on the night of 6 April, and Witness
DBN, who stated that Ntabakuze did not address the battalion that evening. According to
Witness DBN, on the evening of 6 April, Ntabakuze simply met privately with the battalion’s
company commanders in his office. These company commanders then left the camp a short
time later with their respective units. Witness DBN maintains that Ntabakuze’s alleged calls
for vengeance came at a separate assembly the following morning, when the battalion was
dispatched for a second time. This discrepancy cannot be easily reconciled.
861. The Chamber notes that two other witnesses spoke about Ntabakuze addressing his
battalion on the night of 6 April shortly after the downing of the President’s plane. Witness
DBQ stated that Ntabakuze blamed the Inkotanyi for shooting down the plane and asked his
soldiers to prepare for an attack. Witness DP asserted that Ntabakuze simply confirmed the
President’s death and asked his soldiers to remain on standby. While both witnesses
ultimately contend that Ntabakuze urged his soldiers to seek vengeance, they were adamant
that the battalion was dispatched to neighbouring areas only on the morning of 7 April. In the
Chamber’s view, the above examples illustrate that the Prosecution has not presented clear
and consistent evidence about what happened at Camp Kanombe on the night of 6 April.
862. The main evidence that Ntabakuze dispatched members of the Para Commando
Battalion to kill Tutsis on the morning of 7 April comes from Witnesses DBQ, LN, DBN,
XAB, BC, DP, GS and XXJ. Six of these witnesses referred to Ntabakuze allegedly
addressing an assembly of the Para Commando Battalion before dispatching them to
surrounding areas. Of these six witnesses, four (Witnesses DBQ, LN, DBN, and XAB)
indicated that the assembly occurred on the camp’s tarmac in front of Ntabakuze’s office
while the other two (Witnesses BC and DP) placed it in Joli Bois in another part of the
camp.995
863. Leaving aside the varying location of the meeting, the witnesses also gave differing
times for the assembly as well as the deployment of the battalion. With respect to those
placing the assembly on the tarmac in front of Ntabakuze’s office, Witness DBQ suggested
that it occurred around 1.00 a.m. with the soldiers leaving at 6.00 a.m.; Witness LN said the
meeting and deployment occurred around 9.00 a.m.; Witness DBN indicated the events
occurred around 7.00 a.m.; and Witness XAB placed them between 7.00 and 7.30 a.m. As for
those witnesses suggesting that the assembly took place at Joli Bois, Witness BC indicated
the meeting occurred around 8.00 to 9.00 a.m., and Witness DP suggested it occurred
between 11.00 a.m. and 2.00 p.m. Finally, Witness GS saw the battalion leave the camp
around 4.00 a.m., and Witness XXJ saw its members operating in the Akajagali area around
7.00 a.m. The Prosecution has not sought to reconcile these divergent accounts, which further
illustrates the lack of coherency in its evidence concerning the events at Camp Kanombe.
864. In contrast to the Prosecution’s evidence on this point, the Ntabakuze Defence has
presented a largely consistent account of what transpired at the camp after the death of
President Habyarimana. In particular, the evidence of Ntabakuze, as corroborated mainly by
Witnesses DM-26 and DH-51, indicates that, after the crash on the night of 6 April,
Ntabakuze placed his battalion on alert, visited the crash site several times and met with his
company commanders and other officers at the camp. Furthermore, on the morning of
995
Witness GS simply saw members of the Para Commando Battalion leave the camp, and Witness XXJ
encountered them in the Akajagali area.
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7 April, he met with other Rwandan officers at ESM and addressed and deployed his
battalion in the afternoon after the RPF attacked Camp Kimihurura and the gendarmerie
brigade in Remera.
865. The Chamber certainly views Ntabakuze’s evidence with caution given his inherent
self-interest in distancing himself from the criminal allegations against him. Similarily,
Witness DH-51’s evidence carries limited weight given the nature of his previous close
working relationship with Ntabakuze during the relevant events. Witness DM-26 also
previously had a professional relationship with Ntabakuze, but his testimony is both firsthand and appears credible. Witness DM-26 was near Ntabakuze’s office shortly after the
plane crashed and again on the morning of 7 April during the relevant periods when
Prosecution witnesses claimed that Ntabakuze was addressing and deploying the battalion.
He travelled from the camp to the President’s residence through Akajagali on the night of 6
April and the morning of 7 April and reported that it appeared calm on both occasions. If
Ntabakuze had in fact addressed and deployed his battalion at these times to kill Tutsis in
Akajagali, as suggested by several Prosecution witnesses, it is likely that Witness DM-26
would have been aware of these events given his presence at the camp and in its vicinity.
866. The lack of coherence in the Prosecution evidence about the sequence of events at
Camp Kanombe after the death of President Habyarimana coupled with the evidence
presented by the Ntabakuze Defence leave the Chamber with doubt about what actually
transpired. That said, the Chamber is also not fully convinced by the Defence evidence, in
particular that the entire battalion remained on the tarmac for nearly 18 hours after the death
of the President awaiting orders for deployment.
867.
Accordingly, the Prosecution has not proven beyond reasonable doubt that Ntabakuze
ordered members of the Para Commando Battalion to avenge the death of President
Habyarimana in the areas surrounding the camp between 6 and 7 April. In view of these
findings, the Chamber does not need to revisit the Ntabakuze Defence arguments concerning
the notice it received in the Indictment for Ntabakuze’s alleged role in this crime.996
3.5.2
Centre Christus, 7 April
Introduction
868. The Bagosora Indictment alleges that, on 7 April 1994 at the Centre Christus in the
Remera area of Kigali, soldiers used the Centre record to select many persons, mostly Tutsis,
forcibly confined them, and ordered militiamen to kill them. The Prosecution submits that
Bagosora was seen at a nearby petrol station giving orders to a group of Interahamwe to kill
Tutsis in the area. Kabiligi and Ntabakuze are purportedly responsible for the role played by
the CRAP Platoon of the Para Commando Battalion in the killing of the 17 Tutsis at the
Centre. The basis is a general allegation in their Indictment that, starting on 7 April, elements
of the Rwandan army, gendarmerie and Interahamwe perpetrated massacres of the civilian
996
The assembly of the Para Commando Battalion is alleged in the Indictments to have occurred on 8 April, but
the Chamber has decided during the trial that this paragraph referred to assemblies on the night of 6-7 April. See
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 17-22. There is no specific
allegation in the Indictment that Bagosora met with Ntabakuze at Camp Kanombe on the night of 6 April.
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Tutsi population. Reference is made primarily to Witnesses CW, ET, DAN, XAB and
DCB.997
869. The Bagosora Defence submits that the uncorroborated evidence of Witness CW that
Bagosora was in Remera on the morning of 7 April lacks credibility and is contradicted by
Witness X-4. The Ntabakuze Defence renews its arguments that the Indictment does not
provide proper notice. The evidence of Witness XAB contradicts the direct evidence of
Witnesses ET and DAN. Witnesses DP, BC, DBN and DM-26 demonstrated that the CRAP
Platoon was deployed at the crash site of President Habyarimana’s plane. Reference is also
made to Colonel Marchal and Expert Witness Filip Reyntjens who testified that from 7 April,
the RPF was operating in the Remera area near Centre Christus killing civilians with lists.998
Evidence
Prosecution Witness CW
870. Witness CW, a Tutsi, testified that, on the morning of 7 April 1994, he was hiding in
bushes near the SGP petrol station in the Remera area of Kigali. Around 5.00 a.m., he saw a
large number of Interahamwe armed with guns and traditional weapons gather at the station.
After a vehicle arrived at a nearby home of a local Interahamwe leader, the witness saw
Bagosora, accompanied by Colonel Nzabonita as well as military escorts, speaking with a
small group of Interahamwe leaders. The witness was 4.5 metres away. He recognised
Bagosora because he was a prominent military figure and since he had seen him in his
neighbourhood several times between 1991 and 1994 at Interahamwe meetings. Bagosora
was holding pieces of paper and told the leaders to go from house to house and kill “Inyenzi”.
After hearing this, the witness fled. On the morning of 8 April, he saw dead bodies along the
street, while on his way to seek refuge at Centre Christus. Other refugees at the Centre from
neighbouring areas said that their family members had been killed by Interahamwe. A foreign
priest asked the witness to assist in digging graves for a number of priests who had been
killed at Centre Christus the previous day.999
Prosecution Witness ET
871. Witness ET, a foreign priest who was at Centre Christus, explained that, on 7 April
1994, there were 13 permanent residents living at the centre, including six Jesuit priests and
seven nuns, as well as 22 other guests. One of the Jesuit priests, Father Chrysologue
Mahame, was a Tutsi and President of an organisation called Volontaires de la Paix, whose
purpose was to work for peace and reconciliation. According to the witness, Father Mahame
was not a member of a political party, but he was part of a predominately Tutsi organisation
working for peace and reconciliation. He had a good relationship with President
Habyarimana, but might also have had enemies. Father Christian De Fays, a Belgian priest at
997
Bagosora Indictment, paras. 6.33, 6.54; Kabiligi and Ntabakuze Indictment, para. 6.36; Prosecution Closing
Brief, paras. 420-421, 1182-1186, 1265(f), 1335(g), 1552-1568, 1595-1598, 1719(e), pp. 767, 769, 836.
998
Bagosora Closing Brief, paras. 734-742, 968-982, 1681-1682, pp. 541, 550; Ntabakuze Closing Brief, paras.
238-244, 1291-1326. The Kabiligi Defence does not address this incident in its Closing Brief.
999
T. 8 October 2004 pp. 4-5, 7-13, 15, 17, 20, 24-30, 34-35, 39-44, 48-51, 54, 56-57, 60; Prosecution Exhibit
314 (personal identification sheet). Witness CW identified the various sites relevant to his testimony on a map
of the Remera area, entered as Prosecution Exhibit 315. He identified Bagosora in court. T. 8 October 2004 p.
17. The witness did not attend the meetings which he claimed Bagosora attended between 1991 and 1994.
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the Centre who had been in Rwanda for a long time, had told the witness in 1992 that
Mahame’s name was on a list of 80 names of individuals who had to be killed.1000
872. Around 6.10 a.m. on 7 April, Witness ET attended mass at a nearby convent and
returned to the Centre’s main hall around 7.30 a.m. He learned from Father De Fays that, in
the meantime, six Rwandan soldiers had come to the Centre and asked for the register of the
residents and guests there. The soldiers then assembled everyone in the main hall and
checked their identification papers. Afterwards, they locked the Rwandan nationals in a
room, except for Father Mahame and Father Patrick Gahizi, who refused to leave their
quarters.1001
873. Around 9.00 a.m., a pickup truck filled with soldiers arrived and ordered the foreign
nationals to lock themselves in the Centre’s common room. From that room, the witness saw
the soldiers forcibly leading Father Mahame and Father Gahize towards the room where the
other Rwandan nationals were being held. Ten to 15 minutes later, the witness heard
explosions and gunfire coming from the room. The witness was certain that the soldiers were
from the Rwandan army because the RPF was not yet operational in the area. The foreign
nationals remained locked up for several hours until a gendarme, who the witness saw
frequently in the area, arrived around 1.00 p.m. The gendarme had brought two children,
whose mother had just been killed, to the Centre.1002
874. Father De Fays told the gendarme what had happened at the Centre earlier that day.
The gendarme replied: “Oh, the killers passed through this place!” He then accompanied the
De Fays to the room where the Rwandan nationals were being held. They saw 17 dead
bodies. Two other Rwandans were later found hiding in another room at the Centre. The next
day, the priests buried the bodies. As the graves were being dug, the Rwandan army and the
RPF exchanged gunfire nearby, which occurred on other days as well. The Belgian
peacekeepers evacuated the foreign nationals on 10 April. The witness said that he did not see
Interahamwe at the Centre and described the killings on 7 April as a “military operation”.1003
Prosecution Witness DAN
875. Witness DAN did not testify. His statement was admitted pursuant to Rule 92 bis, and
the Defence declined to call him for cross-examination. He was temporarily staying at the
Centre Christus in April 1994. Around 7.00 a.m. on 7 April, the witness and other residents
and guests at the Centre gathered in its chapel for a prayer service. About 15 minutes later,
two or three soldiers entered the chapel and ordered the congregants to produce their
identification. After a few minutes, three or four other soldiers assembled all of the guests
and residents in a central location. The soldiers then locked up the Rwandan nationals in a
room. Two Rwandan members of the Jesuit religious order, including Father Mahame,
refused to enter the room.1004
876. Around 10.00 a.m., a group of six to 10 soldiers arrived. They went to the residence
of the Jesuit order and forced Father Mahame and the other priest towards the room with the
other Rwandans. The soldiers threatened the foreign nationals with death if they left the
1000
T. 18 November 2003 pp. 6, 10-12, 29-31; Prosecution Exhibit 131 (personal identification sheet).
Id. 13-15.
1002
Id. 15-18, 33, 35.
1003
Id. 18-22, 26-28, 32-33. Witness ET identified a photograph of the names of the 17 victims, which was
entered as Prosecution Exhibit 132. T. 18 November 2003 pp. 22-25.
1004
Prosecution Exhibit 459B (statement of 18 June 1999), pp. 3-4.
1001
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priests’ living room. A short time later, the witness heard 20 minutes of sustained gunfire
coming from where the Rwandans were being held. Around 1.00 p.m., two gendarmes
arrived with two children whose mother had been killed. The gendarmes accompanied the
witness and another priest to the room where they saw 17 dead bodies, including Father
Mahame. Two Rwandans, Juvenal Rutumbu and Beatrice Nyiramafaranga, were later found
hiding in another room.1005
Prosecution Witness XAB
877. Witness XAB, a Tutsi member of the Para Commando Battalion, stated that he
arrived at Camp Kanombe around 5.45 a.m. on 7 April 1994. Around 6.00 a.m., Corporal
Chrysologue Munyankindi, Ntabakuze’s bodyguard, told him that members of the CRAP
Platoon of the Para Commando Battalion had participated in massacres at Centre Christus in
Remera.1006
Prosecution Witness DCB
878. Witness DCB, a Hutu member of the Presidential Guard, heard from soldiers at Camp
Kimihurura and Camp Kanombe while he was running errands that members of the Para
Commando Battalion were targeting Tutsis in the Remera area near Centre Christus.1007
Bagosora
879. Bagosora testified that he never attended meetings with Interahamwe leaders in
Remera before 6 April 1994. If that had occurred, it would have been widely reported given
his position in the Ministry of Defence. He also denied meeting with Interahamwe leaders in
Remera on the morning of 7 April, as alleged by Witness CW. There were killings at Centre
Christus targeting “the priest there and some of his colleagues”, and “unfortunately” other
people also had the “misfortune” to stay the night there. He acknowledged that he was aware
that Father Mahame had been killed by the evening of 7 April. Bagosora attributed other
killings in the area to the RPF.1008
Bagosora Defence Witness X-4
880. Witness X-4, a Hutu, was working in the vicinity of the SGP petrol station in Remera
on the night of 6 April 1994. On the morning of 7 April, around 20 Interahamwe, who were
known as the Zulus, gathered at an Interahamwe flag down the road from the petrol station.
He also saw Interahamwe returning from looting and attacking Tutsis. The witness did not
see any military personalities hold a meeting that morning near the petrol station. However,
he observed military vehicles later that day, and several hundred soldier arrived on 9
April.1009
1005
Id. pp. 4-6.
T. 6 April 2004 pp. 21-23, 30-32, 63-64; Prosecution Exhibit 200 (personal identification sheet).
1007
T. 5 February 2004 p. 105; T. 6 February 2004 p. 16; Prosecution Exhibit 175 (personal identification
sheet).
1008
T. 1 November 2005 p. 69; T. 7 November 2005 pp. 66-68; T. 8 November 2005 pp. 47-48; T. 10 November
2005 pp. 20-21; T. 15 November 2005 pp. 38-39.
1009
T. 24 March 2006 pp. 3-10, 12-15, 18-19, 22-24, 26, 34-36, 38-39; Bagosora Defence Exhibit 328 (personal
identification sheet). Witness X-4 identified a number of photographs of the area around the petrol station
(Bagosora Defence Exhibits 329, 330) as well as a sketch of the Remera area (Bagosora Defence Exhibit 331).
1006
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Ntabakuze
881. Ntabakuze stated that members of the Para Commando Battalion did not participate in
the killing of civilians at Centre Christus or in the surrounding area. He said that the RPF
took control of the area on 7 April.1010
Ntabakuze Defence Witness DM-26 and Prosecution Witnesses DP, BC and DBN
882. Witness DM-26, a military officer, was at Camp Kanombe on the night of 6 to 7 April
1994. He visited the site of the crash of the President’s plane at 10.00 p.m. on 6 April and
saw members of the CRAP Platoon there. Witnesses DP, BC and DBN, who were members
of the Para Commando Battalion, also testified that the CRAP Platoon was deployed to the
crash site on the night of 6 April. Witness BC added that members of the CRAP Platoon were
not involved in the massacre at the Centre Christus.1011
Kabiligi Defence Witness Luc Marchal
883. Colonel Marchal, the Belgian commander of the Kigali sector of UNAMIR, stated
that, on 7 April 1994, the RPF attacked the gendarmerie battalion in Remera and also killed
several hundred people in the area on the basis of lists. He learned of the RPF attack on the
brigade from the radio network as well as from Major Nzabonimpa, the gendarmerie’s liason
to UNAMIR. Nzabonimpa also informed Marchal about the RPF’s killing of civilians with
lists.1012
Prosecution Expert Witness Filip Reyntjens
884. Filip Reyntjens, an expert in Rwandan history, testified that, based on his research,
the RPF sent groups of soldiers out of the CND and killed a number of people in the
surrounding vicinity on the night of 6 April 1994. According to Reyntjens, the RPF left the
CND at 4.20 p.m. on 7 April. During its operations in Remera, from 7 to 9 April, it killed 121
people in that area using lists.1013
Ntabakuze Defence Witness DK-37
885. Witness DK-37, a Hutu gendarme stationed at the Remera brigade, said that, around
9.00 or 10.00 a.m. on 7 April 1994, three civilians fleeing from IAMSEA informed him that
the RPF was firing on members of the population there. A short time later, the RPF attacked
the brigade headquarters. Between 12.00 and 1.00 p.m., the gendarmes retreated from
Remera to Kicukiro. On the way, the witness passed by Centre Christus. The witness did not
see any Rwandan soldiers in Remera on the morning of 7 April.1014
1010
T. 20 September 2006 pp. 54-55; T. 21 September 2006 pp. 2-5; T. 25 September 2006 p. 16.
Witness DM-26, T. 1 December 2006 pp. 21, 23; Witness DP, T. 2 October 2003 pp. 74-76; Witness BC, T.
10 December 2003 pp. 79, 81; Witness DBN, T. 5 April 2004 pp. 32-35.
1012
T. 30 November 2006 pp. 3-4, 26; T. 1 December 2006 p. 1; T. 5 December 2006 pp. 43-45; Kabiligi
Defence Exhibit 122 (personal identification sheet).
1013
T. 16 September 2004 pp. 51-52; T. 20 September 2004 p. 4; T. 22 September 2004 pp. 30, 56-57. A list of
121 victims of the RPF attack in Remera between 7 and 9 April is attached to Reyntjens’s book. Bagosora
Defence Exhibit 9 (Rwanda: Trois jours qui on fait basculer l’histoire (1995)).
1014
T. 26 July 2005 pp. 57-63, 64-66, 71; Ntabakuze Defence Exhibit 152 (personal identification sheet).
1011
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Deliberations
886. It is not disputed that 17 Rwandan nationals were killed by soldiers at Centre Christus
in the Remera area of Kigali on the morning of 7 April 1994. This follows clearly from the
undisputed accounts of Witnesses ET and DAN, who provided largely consistent and mostly
first hand evidence of the events at the Centre. Neither witness saw the soldiers kill the
Rwandans. However, Witness DAN was present when they were locked by soldiers in a room
at the Centre, and Witness ET arrived a short time later and visited the group. They both
watched as a second group of soldiers forced two other Rwandan priests towards the room
and heard explosions 10 to 15 minutes later from that direction. It also follows from Witness
ET’s evidence that the soldiers who imprisoned the Rwandans used the Centre’s register as
well as the residents’ identification cards to separate the Rwandan nationals from the others.
Witness DAN experienced the separation first-hand, and Witness ET learned about it from
Father Christian De Fays shortly after it occurred. The Chamber has not heard any evidence
as to the ethnicity of the group other than Witness ET’s evidence that Father Mahame was a
Tutsi. The Chamber finds the evidence of Witnesses ET and DAN credible.
887. The main question for the Chamber is whether Bagosora, Ntabakuze or Kabiligi
played a role in this crime. Neither Witnesses ET nor DAN were in a position to identify the
military unit which conducted the operation to kill the Rwandan nationals at Centre Christus.
Indeed, both witnesses expressly stated that they were not familiar with the uniforms and
insignia of the soldiers.1015 Witness ET, however, was certain that the soldiers were members
of the Rwandan army as opposed to the RPF. The Chamber accepts Witness ET evidence that
the perpetrators were members of the Rwandan army, notably because the attack occurred on
the morning of 7 April. Both Reyntjens and Marchal noted that the RPF did not leave the
CND to attack Remera until mid-afternoon on 7 April. In view of these two witnesses, the
Chamber considers that Witness DK-37 was mistaken when he suggested that the RPF
attacked the Remera gendarmerie brigade.
888. The Prosecution points to Witnesses XAB and DCB to show that the soldiers who
perpetrated the killings at Centre Christus were members of the Para Commando Battalion,
and in particular the battalion’s CRAP Platoon. However, these two witnesses provided
second-hand evidence, which lacked detail, and they did not indicate whether their sources
had direct knowledge of the attacks. The Chamber therefore considers that their evidence has
limited weight. Furthermore, Witness XAB heard about the attack around 6.00 a.m., which
was several hours before the actual killings occurred, according to the reliable and
corroborated evidence of Witnesses ET and DAN. This further calls into question the
credibility of his evidence on this point. Accordingly, the Chamber is not satisfied that the
Prosecution has shown that members of the Para Commando Battalion participated in the
killings at Centre Christus.
1015
Witness DAN, Prosecution Exhibit 459B, p. 4 (statement of 18 June 1999: “They were in military uniforms;
I do not remember what colour the uniforms were.”); Witness ET, T. 18 November 2003 p. 32 (“Q. … But is it
true that you cannot identify whether, for example, they were members of the presidential guard? It’s true, isn’t
it? A. You’re absolutely correct. I also said so in the course of my evidence here, that I was absolutely unaware
of what their uniforms looked like. I know nothing. I knew that they were soldiers, that they were armed … Q.
But would you agree with me that the soldiers -- or the gendarmes, the members of the gendarmerie, wore
uniforms that were very similar to those of the FAR or of the Forces Armée Rwandaise? A. I’m not aware of
those differences in uniforms …”).
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889. The Chamber finds beyond reasonable doubt that Rwandan soldiers killed 17
Rwandan nationals at Centre Christus in the Remera area of Kigali. However, the
Prosecution has not established the specific unit that conducted the killings. The Chamber has
found elsewhere that Bagosora had authority over the Rwandan army at the time of the attack
(IV.1.2). He was also aware of the killings at Centre Christus, in particular of Father
Mahame.
890. Witness ET heard that Father Mahame was on a list as early as 1992. His evidence on
this point is hearsay and, furthermore, does not clearly demonstrate the basis and reliability of
his source’s information. However, it is clear that Mahame was identified on a list of
suspected accomplices by the CDR party in September 1992.1016 Furthermore, the
circumstances of the attack, described above, indicate that this was a targeted killing. Bearing
in mind the evidence of other such killings on the morning of 7 April (III.2.5.5; III.3.3;
III.3.6.1; III.3.6.5) the Chamber is satisfied that Mahame was previously identified as a target
for arrest or killing by the military as well. This conclusion is further bolstered by the fact
that Bagosora was personally informed about Mahame’s killing on the night of 7 April along
with the victims of other political assassinations.
891. The Chamber is not persuaded that the Prosecution has shown a connection between
the attack at Centre Christus and Kabiligi and Ntabakuze. Consequently, there is no need to
revisit the Ntabakuze Defence arguments concerning alleged insufficient notice.
892. Turning to other killings in the Remera area, Prosecution and Defence evidence
suggests that both parties to the conflict perpetrated killings there. While the evidence about
RPF crimes is largely second-hand, the Prosecution has presented direct evidence from
Witness CW that Bagosora personally incited the killings of Tutsis at dawn on 7 April. The
witness claimed that he observed Bagosora address local Interahamwe leaders from a
distance of 4.5 metres while hiding in a bush. Witness CW’s basis of knowledge for
identifying Bagosora was the witness’s familiarity with his role as a military officer as well
as Bagosora’s previous visits to Remera. His evidence about Bagosora’s previous
participation in meetings with the Interahamwe in the area was vague and inconsistent.1017
The Chamber, therefore, has doubt about his ability to identify Bagosora, in particular
bearing in mind that he was hiding and afraid for his life.
893. Furthermore, Witness CW asserted that the alleged meeting occurred at dawn as it
was becoming light. On the morning of 7 April, Bagosora held a number of meetings with
MRND political officials at the Ministry of Defence, the United States Ambassador at his
residence, and military officials at ESM, beginning at 7.00 a.m. (III.3.2). While the witness
suggested that the meeting occurred around 5.00 a.m. in the morning, the Chamber notes that
he placed it after the communiqué was broadcast urging the public to remain at home.1018
Other evidence suggests that this communiqué was broadcast around 6.30 a.m.,1019 placing
1016
Prosecution Exhibit 29B (CDR party communiqué No. 5 (22 September 1993)), pp. 1-2 Father Mahame is
listed as number 14 under the heading of persons suspected of recruiting for the “Inyenzi-Inkotanyi”.
1017
See T. 8 October 2004 pp. 39-44. In particular, Witness CW said that he saw Bagosora “more than twice”
(p. 40) , “regularly” (p. 40), “two or three times” (p. 42), “frequently” (p. 43). He confirmed that he told
Tribunal investigators that Bagosora came “several times a week” (p. 42). The witness also then claimed that he
did not mention the number of times per week that Bagosora came and that he did not say “several times per
week” (p. 43).
1018
T. 8 October 2004 pp. 7, 44-45.
1019
Reyntjens, T. 15 September 2004 p. 24.
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the incident much closer in time to when Bagosora was attending other meetings. This raises
some doubt as to whether he was also in Remera. The evidence of Witness X-4, although not
definitive, raises additional concern about Witness CW’s testimony concerning Bagosora’s
presence in Remera.
894. Accordingly, the Prosecution has not proven beyond reasonable doubt that Bagosora
encouraged Interahamwe to kill Tutsis in the Remera area on the morning of 7 April.
3.5.3
Kibagabaga Mosque, 7 - 8 April
Introduction
895. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege
that, on 7 April 1994, soldiers and militiamen attacked the Kibagabaga mosque in the Remera
area of Kigali. They killed a number of the mostly Tutsi refugees there. Reference is made to
Witness HU who testified about attacks on 7 and 8 April.1020
896. The Bagosora Defence challenges the credibility of Witness HU, in particular with
respect to the question of whether soldiers acted in concert with militiamen during the attack,
and disputes that Bagosora was involved. The Kabiligi and Ntabakuze Defence argue that the
wording of this allegation does not mention their clients. Kabiligi was out of the country
during this period (III.6.2). No evidence connects Ntabakuze or members of the Para
Commando Battalion to the attack.1021
Evidence
Prosecution Witness HU
897. Witness HU, a Tutsi, lived near the Kibagabaga mosque in April 1994, which was in
the Remera area of Kigali between Camp Kami and Camp Kanombe. On the night of 6 April,
the witness heard an explosion in the sky over Kanombe which was followed by gunfire
throughout the night from the various hills in Kigali. On the morning of 7 April,
approximately 300 persons from the Remera area sought refuge at the mosque, including
around 170 Hutus and 130 Tutsis. The refugees told the witness that they were fleeing from
Interahamwe supported by soldiers. Around 11.00 a.m., the witness saw a group of 10
Interahamwe, led by a local CDR member named Bizimana, kill a Tutsi with a machete blow
to his neck, as the victim was running towards the mosque. The refugees then began to arm
themselves with traditional weapons.1022
898. After killing the Tutsi in front of the mosque, Bizimana and his Interahamwe
threatened to attack the mosque if the Tutsi refugees were not handed over to them. Witness
HU and the other refugees refused. Around 30 Interahamwe armed with traditional weapons
and a few grenades returned with a pickup truck between 11.00 a.m. and 3.30 p.m. They
1020
Bagosora Indictment, para. 6.55; Kabiligi and Ntabakuze Indictment, para. 6.39; Prosecution Closing Brief,
paras. 422, 1086-1089, pp. 769, 837-838.
1021
Bagosora Closing Brief, paras. 1674-1675, p. 550; Kabiligi Closing Brief, para. 215; Ntabakuze Closing
Brief, paras. 2464-2465.
1022
T. 4 September 2003 pp. 2-8, 19-20, 26, 28, 33-35, 39, 42, 44-45, 51; Prosecution Exhibit 90 (personal
identification sheet). Witness HU identified a photo of the mosque (Prosecution Exhibit 91). He said that most
of the refugees were Tutsis while the Hutus came to pray, but remained in view of the security situation.
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launched three attacks on the mosque. The assailants were repulsed by the refugees who
threw stones. The Interahamwe did not use their grenades because the refugees said they also
had grenades. There were no further attacks on 7 April. After 4.00 p.m., a soldier, whom the
witness believed was a member of the Presidential Guard, came to the mosque and demanded
his sister because further acts of violence might occur there. The young woman did not want
to leave and asked her brother to save all of the refugees. Witness HU advised her to go, and
she left with the soldier. The witness heard gunshots throughout the night.1023
899. Between 2.00 and 3.00 p.m. on 8 April, more than 10 soldiers, wearing camouflage
jackets and black berets, and about 50 Interahamwe, surrounded the mosque. The commander
of the soldiers demanded that all the refugees leave the mosque and line up on the road with
their identity cards. Based on their uniforms, Witness HU thought the soldiers were from the
Presidential Guard. The refugees refused, and the soldiers opened fire for a few minutes,
killing three persons. The commander then demanded that the men line up in front of the
mosque and began inspecting their identity cards, as the soldiers searched the mosque for
weapons. No grenades were found. After checking 20 refugees, the commander said that
most of the refugees were Tutsis and ordered his soldiers to withdraw a short distance. The
Interahamwe then killed with machetes anyone with a Tutsi identification card. The witness
saw 20 bodies on the road. The soldiers remained nearby watching the attack unfold.1024
900. Before the Interahamwe left, they warned Witness HU against helping the wounded,
threatening with a renewed attack. He and others buried five victims later that day and
another 14 victims on 9 April. The witness estimated that more than 20 persons died at the
mosque or as they fled. The RPF gained control of the area between 11 and 13 April.1025
Deliberations
901. Witness HU is the only witness who testified about the events at Kibagabaga mosque
on 7 and 8 April 1994. He provided direct and detailed testimony concerning the role of
soldiers and Interahamwe in the attacks on the mosque. The Bagosora Defence points out that
according to the testimony, Interahamwe killed a Tutsi in front of the mosque and then
engaged in repeated attacks on 7 April, whereas in his statement to Tribunal investigators the
events took place on 8 April. The witness acknowledged that he made a mistake concerning
the date in his statement. He explained this by the passage of time since the events and the
nature of the investigators’ questions.1026 The Chamber is satisfied by this explanation and
considers Witness HU’s testimony credible.
902. Based on the testimony, the Chamber finds that, on the morning of 7 April, around
300 Hutu and Tutsi refugees gathered at the Kibagabaga mosque due to increasing insecurity
in the area. After killing a Tutsi in front of the mosque, 10 local Interahamwe threatened the
refugees there with attack if they did not surrender the Tutsi refugees there. Later that day, 30
Interahamwe armed mainly with traditional weapons unsuccessfully attacked the mosque
1023
T. 4 September 2003 pp. 8-10, 40, 44-46, 52.
Id. pp. 10-16, 28-29, 36-40, 47-48, 52-53. Witness HU heard from other people that members of the
Presidential Guard wore black berets. He did not know if there was any other distinguishing feature on their
uniform to differentiate them from other soldiers, except for members of the Para Commando Battalion who
wore camouflage berets. See id. pp. 66-67.
1025
Id. 16-19, 49, 53-54. Witness HU noted that elements of the RPF were in the area even before 7 April. T. 4
September 2003 pp. 47-48.
1026
Id. pp. 28-29, 40-41. The statement was not tendered as an exhibit.
1024
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three times. In addition to throwing stones, the refugees told the assailants that they had
grenades to dissuade further attacks. That afternoon, a soldier came to the mosque for his
sister, intimating that further attacks were coming. On 8 April, soldiers and Interahamwe
surrounded the mosque and demanded that the refugees come out. The soldiers fired for a few
minutes at the mosque, killing several persons, when the refugees refused. This prompted the
refugees to line up on the street. The soldiers checked several identity cards and searched the
mosque before withdrawing a short distance away. The Interahamwe continued checking
identity cards and killed a number of Tutsi refugees. There were more than 20 mostly Tutsi
victims of the attack.
903. Witness HU identified the soldiers who participated in the attack as members of the
Presidential Guard because others had told him that his unit wore black berets. This is not a
sufficient basis to establish that the soldiers were in fact from the Presidential Guard, as
members of other Rwandan army units also wore black berets (III.1.2). The Chamber is not in
a position to identify the particular unit of the soldiers. However, it is clear from the
description of the colour of the berets that the soldiers were not members of the Para
Commando Battalion, who wore camouflage colour berets (III.1.2).1027
904. The Chamber acknowledges, as the Bagosora Defence submits, that the claim by the
refugees to possessing grenades may have legitimately prompted the army to search the
premises of the mosque. However, the manner in which the operation was conducted can
only be viewed as manifestly unlawful. In particular, the soldiers were accompanied by
Interahamwe, who had previously threatened and repeatedly attacked the refugees at the
mosque for harbouring Tutsi. Rather than firing warning shots, the soldiers killed three
refugees in the mosque in order to intimidate them. Finally, the soldiers withdrew only a
short distance away and watched as the Interahamwe killed the other, mostly Tutsi refugees.
These facts clearly demonstrate that this attack was a coordinated effort between the soldiers
and the militiamen.
905. The Chamber finds that the Prosecution has proven beyond reasonable doubt that, on
8 April, soldiers and Interahamwe killed more than 20 mostly Tutsi refuges at the
Kibagabaga mosque. The Chamber has found that Bagosora had authority over the Rwandan
army at the time of the attack (IV.1.2). There is no evidence directly showing that Bagosora
was aware of the specific attack at the mosque. However, given the widespread killing
throughout Kigali perpetrated by or with the assistance of soldiers, the Chamber is satisfied
that Bagosora was aware that soldiers under his authority participated in killings.
906. The Chamber has not heard sufficient evidence directly implicating Kabiligi or
Ntabakuze in this crime. Kabiligi was not in Rwanda at the time of the attack (III.6.2). The
description of the soldiers wearing black berets indicates that they were not members of the
Para Commando Battalion, who wore camouflage berets (III.1.2). Therefore, there is no need
to address the fact that the wording of their Indictment does not mention them.
1027
In addition, even Witness HU distinguished the soldiers from members of the Para Commando Battalion
based on the colour of the berets. See id. p. 66.
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3.5.4
Kabeza, 7 - 8 April
Introduction
907. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment allege that, from
7 April 1994, elements of the Rwandan army, gendarmerie and Interahamwe perpetrated
massacres of the civilian population. The Prosecution points to evidence from Witnesses BL,
DBN, AH and DCB that killings were committed by members of the Para Commando
Battalion and the Presidential Guard in the Kabeza area. Ntabakuze allegedly personally
supervised the killings in the area on 8 April around 10.00 a.m.1028
908. The Ntabakuze Defence reiterates that the Indictment does not provide proper notice
that Ntabakuze or members of the Para Commando Battalion participated in attacks in
Kabeza. In addition, the evidence of Witness AH and BL lacks credibility. Reference is made
to Witnesses DH-51, DI-40 and Colonel Dewez.1029
Evidence
Prosecution Witness BL
909. Witness BL, a Tutsi, lived in Kabeza cellule, Kanombe sector in April 1994, which
she described as a mixed, but majority Tutsi area. Around 6.00 a.m. on 7 April, Colonel
Tharcisse Renzaho, the prefect of Kigali, informed the population over the radio that
President Habyarimana had died and that everyone should remain at home. Between 8.30
a.m. and 9.00 a.m., the witness saw that members of the Para Commando Battalion
congregated outside of her home. She identified their unit by their uniform, which included
camouflage berets. A short time later, she heard gunfire. The wife of Alexi, one of her Tutsi
neighbours, sought refuge in her home, saying that her husband had just been killed by
soldiers from the Para Commando Battalion. The next day she saw approximately 10 to 15
Interahamwe carry the dead body of Musoni, another Tutsi, out of his home. There were
many more deaths in the following days, which the witness believed were perpetrated by
Interahamwe.1030
Prosecution Witness DBN
910. Witness DBN, a Tutsi member of the General Services Company in the Para
Commando Battalion, testified that, around 1.00 p.m. on 7 April 1994, he delivered supplies
to the Para Commando position in Remera. As he passed through Kabeza, he saw members
of the Para Commando Battalion forcibly entering houses and setting fire to their roofs. He
1028
Bagosora Indictment, para. 6.50; Kabiligi and Ntabakuze Indictment, paras. 6.36; Prosecution Closing Brief,
paras. 1265(f), 1295, 1296(d), 1298-1302, 1324(a), 1327, 1405 (a), pp. 767, 836; T. 28 May 2007 p. 16.
1029
Ntabakuze Closing Brief, paras. 154-155, 398-414, 1570-1598, 1609-1633; T. 30 May 2007 p. 59; T. 31
May 2007 p. 7. The Ntabakuze Defence also refers to Witness DM-26, a military officer stationed at Camp
Kanombe, who did not hear about crimes committed by members of the Para Commando Battalion. See T. 1
December 2006 p. 27. It makes similar submissions with respect to General Dallaire, Colonel Marchal and
Colonel Dewez, noting that they travelled through Kabeza on the way to the airport but did not testify about the
commission of any crimes. It also refers to Prosecution Witnesses XAB, DP and DBN, members of the Para
Commando Battalion, who were posted at the Giporoso junction a few kilometrees away and did not testify
about attacks in Kabeza. The Bagosora and Kabiligi Defence teams do not directly address this allegation in
their Closing Briefs.
1030
T. 5 May 2004 pp. 2-6, 10, 14-18; Prosecution Exhibit 219 (personal identification sheet).
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could not see what was going on in the houses. On 8 April, the number of soldiers in the area
had declined and nearly all of the houses had been burned. The neighbourhood was calm. He
recognised several members of the Para Commando Battalion, its CRAP Platoon and a
member of the Light Anti-Aircraft Battalion in the area. The witness did not see any killings
or bodies in Kabeza. He located Kabeza on the map in an area between Nyarugunga and
Nonko on the road from the camp passing by the airport.1031
Prosecution Witness AH
911. Witness AH, a soldier stationed at Camp Kigali who had Tutsi family members, was
stationed at Camp Kigali in April 1994. On the night of 7 April, he returned to his home in
Kabeza cellule in Kanombe sector to evacuate his family to Camp Kanombe, which was
nearby. His wife told him that soldiers had stopped by their house earlier, but left her alone
since she was married to a soldier. On the morning of 8 April, he saw members of the
Presidential Guard and the CRAP Platoon of the Para Commando Battalion going from house
to house, killing people. He recognised the members of the Para Commando Battalion by
their camouflage beret and noted that the members of the Presidential Guard were wearing
black berets.1032
912. Around 10.00 a.m., Witness AH saw Ntabakuze, accompanied by members of the
Para Commando Battalion, driving slowly through the area in a blue Toyota Hilux. The
witness thought that he was supervising the killings. Ntabakuze asked him to which unit he
belonged and why he was not with the soldiers at his camp. The witness answered that he was
a member of the headquarters company at Camp Kigali and that he was waiting for a vehicle
to evacuate his family to Camp Kanombe. Ntabakuze did not respond and continued on his
way. Around 11.00 a.m., the witness took his family to Camp Kanombe.1033
Prosecution Witness DCB
913. Witness DCB, a Hutu member of the Presidential Guard, heard from soldiers at Camp
Kimihurura and Camp Kanombe while running errands that members of the Para Commando
Battalion were targeting Tutsis in the Kabeza area.1034
Ntabakuze
914. Ntabakuze testified that the Para Commando Battalion was not deployed to Kabeza.
He denied having been present in Kabeza on the morning of 8 April 1994 and stated that he
was with a Belgian doctor, Colonel Pasuch, at 10.00 a.m. in Kanombe military hospital.1035
Ntabakuze Defence Witness Joseph Dewez
915. During his testimony, Colonel Dewez, the commander of UNAMIR’s Kigali Battalion
(KIBAT) referred to the KIBAT Chronique, a daily record of the activities of the Belgian
1031
T. 31 March 2004 pp. 61-62; T. 1 April 2004 pp. 49-53; T. 5 April 2004 pp. 48-50, 54-58; Prosecution
Exhibit 198 (personal identification sheet); Ntabakuze Defence Exhibit 54 (map of area around Camp
Kanombe).
1032
T. 19 February 2004 pp. 27, 33-35, 37; T. 20 February 2004 pp. 24-25, 38, 40-41; Prosecution Exhibit 194
(personal identification sheet). Witness AH’s own ethnicity is unclear.
1033
T. 19 February 2004 pp. 35-37; T. 20 February 2004 pp. 36-38, 41.
1034
T. 5 February 2004 p. 105; T. 6 February 2004 p. 16; Prosecution Exhibit 175 (personal identification
sheet).
1035
T. 20 September 2006 pp. 52-54.
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UNAMIR contingent from 6 to 19 April 1994.1036 He explained that, on 7 April, KIBAT’s
surgeon and an anaesthetist were with a Belgian colleague, Colonel Pasuch, at Camp
Kanombe. Pasuch was working with the Belgian military in the area of medical cooperation.
The KIBAT doctors had remained at Camp Kanombe for the previous day and a half due to
fears of anti-Belgian sentiments.1037
916. According to the KIBAT Chronique, at 9.57 a.m. on 8 April, the headquarters of
KIBAT contacted the Belgian doctors at Camp Kanombe requesting assistance for a seriously
injured UN observer. Colonel Pasuch then contacted Major Saint Quentin, a French officer
who was stationed at Camp Kanombe, for assistance. At 10.30 a.m., Saint Quentin left
Pasuch’s house with the doctors for Ntabakuze’s house. Ntabakuze, accompanied by Saint
Quentin, then drove the doctors in a pickup truck to the École Technique Officielle (ETO).
They arrived at 12.24 p.m.1038
917. Ntabakuze accompanied them to facilitate the crossing of roadblocks and to ensure
that they did not encounter any problems. Before Ntabakuze accompanied the doctors, he had
met with a Belgian UNAMIR officer at the airport to facilitate their evacuation from the
camp.1039
Ntabakuze Defence Witnesses DH-51
918. Witness DH-51, a Hutu member of Ntabakuze’s escort team, testified that the Para
Commando Battalion did not commit any massacres in Kabeza nor did Ntabakuze supervise
any killings of civilians there.1040
Ntabakuze Defence Witness DI-40
919. Witness DI-40 was a Hutu resident of Kabeza cellule whose wife was a Tutsi. He
stated that, before 6 April 1994, there were a number of RPF supporters and a majority of
Tutsis in his area. Eight gendarmes were posted to the area when there was instability after
the assassination of Emmanuel Gapyisi and Felicien Gatabazi. On the morning of 7 April, the
witness heard gunshots in the area, and a short time later the gendarmes stopped by the
witness’s home to ask him to drive them to the hospital at Camp Kanombe. One of the
gendarmes had been shot when they confronted an armed group of about 10 civilians led by
someone named Paulin from the Remera area of Kigali. On 8 and 9 April, the witness also
heard gunfire. Others in the area said that the armed gang was searching for RPF
accomplices, who were primarily Tutsis in the area. The witness did not see any soldiers
operating in the area from 7 to 9 April.1041
1036
The KIBAT Chronique (Prosecution Exhibit 149) was prepared in September 1995 based on field journals
(journal de campagne) as well as interviews of battalion members, and thus was limited to these sources. Dewez
explained that he was ultimately responsible for the final editing and fact checking of the KIBAT Chronique.
See T. 24 June 2005 pp. 18-24; Prosecution Exhibit 149, para. 3(b) (KIBAT Chronique). The introduction to the
KIBAT Chronique explains how the information was collected.
1037
T. 23 June 2005 pp. 51-52, 54; Ntabakuze Defence Exhibit 122 (personal identification sheet). KIBAT was
composed of Belgium’s Second Para Commando Battalion (III.4.1.1).
1038
Prosecution Exhibit 149, para. 25 (KIBAT Chronique). See also T. 23 June 2005 pp. 51-52, 54. The KIBAT
Chronique refers to the arrival destination as “Beverly Hills”, which was the code for ETO.
1039
T. 23 June 2005 pp. 52, 54.
1040
T. 6 December 2005 pp. 24-25; Ntabakuze Defence Exhibit 199 (personal identification sheet).
1041
T. 7 March 2006 pp. 3-7, 10-12, 14-17; T. 8 March 2006 p. 10; Ntabakuze Defence Exhibit 212 (personal
identification sheet). Emmanuel Gapyisi and Felicien Gatabazi were leaders of the MDR and PSD political
parties, respectively. See Prosecution Exhibit 3 (Leave None to Tell the Story (1999)), pp. 113, 437.
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Deliberations
920. There is no dispute that Tutsi civilians suspected of ties to the RPF were targeted in
the Kabeza area of Kigali on 7 and 8 April 1994. The main questions for the Chamber are
whether members of the Presidential Guard and Para Commando Battalion participated in
this operation, and whether Ntabakuze was present on the morning of 8 April supervising it.
921. Witness BL saw members of the Para Commando Battalion, whom she identified by
their camouflage beret, congregated outside of her house on the morning of 7 April and heard
that they had killed her neighbour’s husband. Witness AH heard from his wife that “soldiers”
had stopped by their house on the night of 7 April. On the morning of 8 April, the witness
saw members of the Para Commando Battalion and Presidential Guard going from house to
house in the area shooting civilians.1042 He was able to distinguish between the two units
based on their uniforms, in particular noting that members of the Para Commando Battalion
wore camouflage berets. Witness BL only saw and heard about Interahamwe in the area on 8
April. Witness DCB heard that members of the Para Commando Battalion were operating in
Kabeza, but did not have any direct knowledge of this.
922. The Prosecution also asserts that Witness DBN, who saw members of the Para
Commando Battalion in Kabeza on 7 and 8 April, corroborates this evidence.1043 While the
witness referred to “Kabeza”, he placed it in a different location than the one referred to by
Witnesses BL and AH.1044 Therefore, Witness DBN’s testimony concerns a different event,
discussed below, and does not provide corroboration.
923. The evidence of Witnesses BL and AH demonstrates that members of the Para
Commando Battalion and the Presidential Guard were operating in Kabeza on 7 and 8 April.
Both witnesses provided direct and convincing testimony and accurately identified members
of the Para Commando by their distinctive camouflage beret. The Chamber is mindful that
members of the Ruhengeri Commando Battalion, Huye Commando Battalion and the
Commando Training Center of Bigogwe also wore camouflage berets.1045 However, the
Chamber is satisfied that the unit operating in Kabeza were part of the Para Commando
Battalion given the close proximity of Kabeza to Camp Kanombe. Furthermore, given
Witness AH’s profession as a soldier, the Chamber is convinced that he was in a position to
accurately identify the military units of the assailants.1046 The fact that Witness BL did not
1042
The Ntabakuze Defence asserts that Witness AH in one of his prior statements did not indicate that he had
direct knowledge of the incident. See Ntabakuze Closing Brief, para. 1584. The Defence did not confront the
witness with the statement or tender it as an exhibit.
1043
Prosecution Closing Brief, paras. 1331, 1406.
1044
See Witness DBN, T. 5 April 2004 pp. 49-50; Ntabakuze Defence Exhibit 54 (map of area around Camp
Kanombe). Witness AH described the route he took from Camp Kigali to Kabeza on a map, entered as
Ntabakuze Defence Exhibit 35. See T. 20 February 2004 pp. 27-35. A comparison of the two maps reflects that
Witness DBN is referring to a different location on the other side of the airport. The map does not refer to it as
Kabeza. The location referred to by Witness AH is named Kabeza on the map.
1045
The Chamber has noted in other sections that these four Commando units wore camouflage berets (III.1.2).
1046
Witness AH claimed to have first hand-knowledge of the arrival of the 10 Belgian peacekeepers at Camp
Kigali on the morning of 7 April (III.3.4). He suggested that they came on foot with members of the Presidential
Guard. See T. 19 February 2004 pp. 42-45. The Chamber found, however, based on the reliable evidence of
several other eye-witnesses, that the peacekeepers arrived by mini-bus with members of the Reconnaissance
Battalion. When confronted with this difference, Witness AH simply reaffirmed his testimony. See T. 19
February 2004 pp. 43-44. However, with respect to the incident in Kabeza, the witness accurately described the
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also see soldiers on 8 April does not detract from Witness AH’s evidence since she fled her
home that day.1047
924. Witness AH also claimed that he had a brief conversation with Ntabakuze at 10.00
a.m. on 8 April while the soldiers were moving through the neighbourhood. He is the sole
witness to testify about Ntabakuze’s presence in the area. The witness did not indicate his
basis of knowledge for identifying the officer as Ntabakuze. In addition, he was not asked to
identify him in court. Consequently, the Chamber doubts the witness’s identification of
Ntabakuze in Kabeza. Furthermore, the evidence of Colonel Dewez and the KIBAT
Chronique indicate that Ntabakuze departed Camp Kanombe for ETO around 10.30 a.m. in
connection with the evacuation of the Belgian medical personnel at the camp. It reasonably
follows from this evidence that he would have been at the camp for a period of time
communicating with the Belgian and French officers there with respect to the evacuation.
While it remains possible that the incident described by Witness AH could have occurred
before Ntabakuze returned to Camp Kanombe, the Chamber considers that this evidence still
raises additional doubt about whether Ntabakuze was supervising soldiers in Kabeza on 8
April.
925. In the Chamber’s view, the general assertions of Witnesses DH-51 and DI-40 that
there were no soldiers operating in Kabeza does not raise any doubt about the first-hand
accounts of Witnesses BL and AH. In particular, Witness DI-40, although in Kabeza, did not
have direct knowledge about the identity of the assailants there. Furthermore, his testimony
that the area was suspected of harbouring RPF sympathisers presents a clear motive for
soldiers to search the neighbourhood.1048 The Chamber has also considered the credibility of
the two Prosecution witnesses in view of Defence evidence, which suggests that members of
the battalion did not leave Camp Kanombe until mid-afternoon on 7 April (III.3.5.1). The
Chamber, however, is not fully convinced that the entire battalion remained on the tarmac for
nearly 18 hours after the death of the President awaiting orders for deployment. When
weighed against the credible accounts of Witness BL and AH, the Chamber is satisfied that at
least a small contingent was present in Kabeza.
926. The Chamber finds beyond reasonable doubt that, on 7 and 8 April, members of the
Para Commando Battalion were going from house to house in the Kabeza area and killing
civilians. Members of the Presidential Guard also participated on 8 April. Kabeza was
predominately Tutsi and viewed as sympathetic to the RPF.
927. In light of his command and control over members of the Para Commando Battalion
(IV.1.4) as well as the organisation of the crime, the Chamber considers that it could only
have been carried out with the knowledge and approval of Ntabakuze. The Chamber has
found that Bagosora had authority over the Rwandan army at the time of the attack (IV.1.2).
There is no evidence directly showing that Bagosora was aware of the specific attack at the
mosque. However, given the widespread killing throughout Kigali perpetrated by or with the
uniform of the Para Commando Battalion. Furthermore, Witness BL identified the same unit operating in the
area on the previous day.
1047
T. 4 May 2004 p. 21.
1048
The Ntabakuze Defence submits that Witnesses DM-26, DBN, XAB, DP, General Dallaire, Colonel Dewez
and Colonel Marchal were either stationed near Kabeza or passed through the area on 7 and 8 April. In the
Defence’s view, the fact that none of these witnesses mentioned an attack in Kabeza calls into question the
Prosecution’s evidence. See Ntabakuze Closing Brief, paras. 1591-1593, 1597. The Chamber does not find this
convincing since these witnesses were not specifically questioned on these points by the parties.
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assistance of soldiers, the Chamber is satisfied that Bagosora was aware that soldiers under
his authority were participating in killings. The Chamber has no evidence directly connecting
Kabiligi to this specific attack.
928. Finally, the Chamber will address the Ntabakuze Defence assertion that it was not
reasonably informed of the material facts concerning Ntabakuze’s role in the killing of
civilians in Kabeza.1049 The issue of notice for this event has been the subject of previous
litigation during the trial. In its decision of 26 June 2006, the Chamber determined that
paragraph 6.36 of the Kabiligi and Ntabakuze Indictment was vague in relation to the specific
allegation concerning the killing of civilians in Kabeza.1050 The Chamber, however, found
that this defect in the Indictment was cured by timely, clear and consistent information,
notably by the summary of anticipated testimony of Witness AH in the Prosecution’s PreTrial Brief, filed on 21 January 2002.1051 This notice came almost two years before the
appearance of Witness AH whose testimony underpins the Chamber’s factual findings on this
event. From the Chamber’s findings above, Ntabakuze’s role in the event is based on his
command of the Para Commando Battalion, which is clearly pleaded in paragraph 4.8 of the
Kabiligi and Ntabakuze Indictment.1052
929. The question remains whether members of the Para Commando Battalion were
participating in attacks on the afternoon of 7 April in the area between Nyarugunga and
Nonko described as “Kabeza” by Witness DBN. The Chamber has expressed concerns with
the credibility of other aspects of his testimony and thus views his evidence on this point with
caution. The witness did not mention this incident in his first two statements to Tribunal
investigators in August 1999 and February 2000.1053 The allegations surfaced in a will-say
statement in December 2003, around four months before his testimony.1054 The witness
explained that he did not remember the incident at the time he gave his statements.1055 This
explanation is not entirely convincing since Witness DBN’s statement of August 1999 refers
to a similar incident of seeing attacks by members of the Presidential Guard as he was
delivering food to their position on 7 April, which occurred just before he observed the
incident in “Kabeza”.1056 The Chamber declines to accept Witness DBN’s evidence on this
point in the absence of corroboration.
1049
The Bagosora Defence did not raise the issue of notice with respect to this incident.
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 32-35.
1051
Id. paras. 34-35. See also Prosecution Pre-Trial Brief (21 January 2002), Annex, p. 4 (“On the night of 7th to
8th April 1994 in the Kabeza area, military elements belonging to the Para-Commando Battalion and Presidential
Guard Battalion went from family to family to kill civilians. The witness knew Ntabakuze well. At about 15h00
on 8th April 1994, the witness met Ntabakuze in a blue Hilux, on the main road to Kanombe. Ntabakuze
questioned the witness on what he was doing there, the unit to which he belonged and why he wasn’t with the
others. The witness stated that he met Ntabakuze at the crossing between Kanombe and Kabeza where his troops
were searching for and killing civilians and erecting roadblocks.”). The revision to the Prosecution Pre-Trial
Brief, filed in June 2002, specifically references Witness AH’s summary in the January 2002 Pre-Trial Brief to
paragraph 6.36 of the Kabiligi and Ntabakuze Indictment. See Prosecution Pre-Trial Brief (7 June 2002), p. 13.
1052
Paragraph 4.8 of the Kabiligi and Ntabakuze Indictment reads: “In his capacity as Commander of the ParaCommando Battalion of the Rwandan Army, Aloys Ntabakuze exercised authority over the units of this
Battalion.” Paragraphs 3.3 and 6.34 refer to the “elite’ nature of the battalion.
1053
Ntabakuze Defence Exhibit 49 (statement of 20 August 1999); Ntabakuze Defence Exhibit 50 (statement of
25 February 2000).
1054
Ntabakuze Defence Exhibit 52 (will-say statement of 14 December 2003).
1055
T. 5 April 2004 p. 55.
1056
Ntabakuze Defence Exhibit 49 (statement of 20 August 1999).
1050
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3.5.5
Saint Josephite Centre, 8 April
Introduction
930. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment allege that, from
7 April 1994, elements of the Rwandan army, gendarmerie and Interahamwe perpetrated
massacres of the civilian population. It is alleged that rape and sexual assault occurred during
the course of these attacks. The Prosecution points to evidence of Witness DBJ who attested
to an attack on 8 April 1994 at the Saint Josephite Centre in the Nyamirambo sector of
Kigali.1057
931. The Bagosora Defence argues that Witness DBJ’s testimony is contradicted by
Witnesses DH-90 and DH-91.1058
Evidence
Prosecution Witness DBJ
932. Witness DBJ, a Tutsi, sought refuge along with other Tutsis at the Saint Josephite
Centre in Nyamirambo from April to June 1994. Around 5.30 p.m. on 8 April, he saw a group
of Interahamwe scale the walls of the Centre and began attacking the refugees. When the
refugees resisted, about 20 soldiers shot at the main gate in order to reinforce the assailants.
The witness believed the soldiers were from the Presidential Guard because they were
wearing black berets and new camouflage uniforms. One of the soldiers also identified
himself to the witness as a member of that unit.1059
933. Initially, the assailants asked to see the refugees’ identity cards but eventually they
just opened fire on the refugees because most were Tutsis. If the assailants recognised Hutus
during the attack, they told them to leave. The Interahamwe used their traditional weapons to
kill those who were fleeing. Over the course of the next two hours, the assailants killed
around 85 Tutsi civilians. Many of the female victims were asked to undress before being
killed. He also saw one of the soldiers take a Tutsi female student into an empty room at the
Centre. The girl refused, but the soldier forcefully undressed her. He raped the girl and then
killed her. Witness DBJ believes he survived the attack because his features were not
common for a Tutsi.1060
Ntabakuze Defence Witness DH-90
934. Witness DH-90, who lived in Nyamirambo during the relevant events, testified that,
in April 1994, Tutsi refugees were gathered at the religious institutions in the area, including
the Saint Charles Lwanga Church, the Saint André College, the Saint Josephite Centre, the
1057
Bagosora Indictment, paras. 6.50, 6.65; Kabiligi and Ntabakuze Indictment, paras. 6.36, 6.47; Prosecution
Closing Brief, paras. 151-152, 429, 1193, pp. 767, 776, 836, 841, 892. The Prosecution also refers to the rape
described by Witness DBJ in support of paragraph 6.34 of the Nsengiyumva Indictment, which alleges that rape
and sexual assault occurred during the massacres perpetrated in Rwanda.
1058
Bagosora Closing Brief, para. 1684. The other Defence teams do not address this allegation.
1059
T. 24 November 2003 pp. 4-6, 44-47, 50; T. 25 November 2003 pp. 17-19; Prosecution Exhibit 136
(personal identification sheet). The witness thought that an Interahamwe named Kigingi played a role in the
attack because he later became well-known as the head of the militiamen in the area. See T. 25 November 2003
p. 32.
1060
T. 24 November 2003 pp. 4-10, 41-42, 45-46, 50-51; T. 25 November 2003 pp. 20-22, 32.
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Beneberika Convent and the Carmelite Convent. They first arrived around 31 March 1994,
after the death of a prominent CDR party member in Biryogo commune. The witness testified
about an attack on the church conducted by militiamen and soldiers wearing black berets on 8
April. He also referred to an attack on Saint André College by Interahamwe on 13 April, but
did not mention any particular attack on the Saint Josephite Centre on 8 April.1061
Ntabakuze Defence Witness DH-91
935. Witness DH-91 testified that he was in a position to closely follow the events in the
area surrounding the Saint Charles Lwanga Church, where he stayed from April to June 1994.
A number of Hutu and Tutsi civilians first sought refuge at the church on 31 March 1994,
fleeing violence in Biryogo commune, following the death of a prominent CDR party
member. After the death of President Habyarimana, hundreds more arrived at the various
religious institutions in Nyamirambo area, including Saint André College, the Saint Josephite
Centre, the Beneberika Convent, and the Carmelite Convent.1062
936. The witness testified about an attack on 8 April on the Saint Charles Lwanga Church
involving soldiers and militiamen. His diary which is a contemporaneous account of the
events also refers to that attack. Neither he nor his diary explicitly referred to an attack on the
Saint Josephite Centre on 8 April. However, an entry in his diary for 11 April 1994 alludes to
centre being “seriously endangered” with 17 dead and 10 wounded.1063
Deliberations
937. Witness DBJ is the only witness to testify about the attack on the Saint Josephite
Centre on 8 April 1994. His testimony on the attack was first-hand and largely consistent.1064
In the Chamber’s view, the fact that Witnesses DH-90 and DH-91 did not mention it does not
undermine Witness DBJ’s testimony. The witnesses were not specifically questioned about
whether there was an attack on the Saint Josephite Centre on 8 April.1065 Nevertheless, their
evidence provides general corroboration as they attested that soldiers and Interahamwe
1061
T. 25 April 2005 pp. 6-7, 28, 36-37, 41-45; T. 26 April 2005 pp. 14, 25-26, 31-32; Ntabakuze Defence
Exhibit 88 (personal identification sheet). With respect to the identity of the soldiers, Witness DH-90 stated: “At
the time I thought, without being sure, that they were members of the Presidential Guard.” T. 25 April 2005 p.
44. The witness, who was at Saint Charles Lwanga Church, identified each of these geographically proximate
locations on two maps. T. 25 April 2005 pp. 11-28, 32; T. 26 April 2006 pp. 19, 27-28, 46; Ntabakuze Defence
Exhibit 90 (Map of Kigali identified by Witness DH-90); Ntabakuze Defence Exhibit 91 (Map of Nyamirambo
identified by Witness DH-90).
1062
T. 28 April 2005 pp. 50-51, 57, 79; T. 29 April 2005 pp. 40-41; Ntabakuze Defence Exhibit 92 (personal
identification sheet). Witness DH-91 had reviewed and annotated the English translation of his diary
(Prosecution Exhibit 334) and found that it was generally correct. T. 29 April 2005 pp. 37-38.
1063
T. 28 April 2005 pp. 77-78; T. 29 April 2005 pp. 37-39; Prosecution Exhibit 334 (Diary of Witness DH-91),
p. 1.
1064
During cross-examination, Witness DBJ acknowledged a mistake in his statement to Tribunal investigators
where he said he observed the rape of the student at the centre from the floor of the room where it occurred.
During his testimony, he noted that he was under a nearby pear tree. The Chamber does not find this
discrepancy significant. See T. 25 November 2003 pp. 21-22; Bagosora Defence Exhibit 48 (statement of 28
July 1999).
1065
Witness DH-90 was specifically asked about whether he had heard about the rape and dismemberment of
three Tutsi girls at the Saint Josephite center on 8 April. The witness responded that he had not heard about the
incident. See T. 26 April 2005 pp. 31-32. This exchange is too limited to suggest that the witness had not heard
about an attack on the centre.
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engaged in attacks at the nearby Saint Charles Lwanga Church on that date.1066 As discussed
below (III.4.1.14), on 7 and 8 June 1994, military personnel and Interahamwe also attacked
refugees at both the Saint Josephite Centre and the Saint Charles Lwanga Church within one
day time-frame. Furthermore, the diary of Witness DH-91 alludes to an attack at the Saint
Josephite Centre.1067 The entry for 11 April referring to the dead and wounded at the Centre
does not specify when the attack occurred. Accordingly, the Chamber considers that Witness
DBJ’s account of the attack on the Centre is credible.
938. Based on Witness DBJ’s testimony, the Chamber finds beyond reasonable doubt that,
on 8 April, soldiers wearing black berets and militiamen attacked and killed a number of
Tutsi refuges at the Saint Josephite Centre. Many female victims were forced to undress
before being killed. During the course of the attack, at least one Tutsi woman was raped by a
soldier. The Chamber, however, is not satisfied that the witness’s testimony convincingly
demonstrates that the soldiers were members of the Presidential Guard as opposed to another
unit of the army. The witness did not know if there was any difference between the uniform
of the Presidential Guard and other units.1068
939. The Chamber has found that Bagosora had authority over the Rwandan army at the
time of the attack (IV.1.2). There is no evidence directly showing that Bagosora was aware of
the specific attack at the mosque. However, given the widespread killing throughout Kigali
perpetrated by or with the assistance of soldiers, the Chamber is convinced that Bagosora was
aware that soldiers under his authority were participating in killings. The Chamber has not
heard sufficient evidence directly implicating Kabiligi or Ntabakuze in this crime.
3.5.6
Augustin Maharangari, 8 April
Introduction
940. The Bagosora Indictment alleges that, on 8 April 1994, Bagosora communicated by
radio with the prefect of Kigali-Ville, Tharcisse Renzaho, in order to ensure that the Manager
of the Banque Rwandaise de Développement (BRD), Augustin Maharangari, had been
“liquidated”. Renzaho replied in the affirmative. Joseph Nzirorera, the MRND secretarygeneral, allegedly interrupted the conversation to seek confirmation of the news. The
Prosecution relies primarily on Witnesses AL, BJ and ZF.1069
941. The Bagosora Defence questions whether Witness BJ would have been able to
overhear such a radio transmission, as well as her ability to identify Bagosora. Reference is
made to Witnesses A-4, A-8, LM-1 and ALL-42.1070
1066
The Prosecution does not appear to be pursuing the attacks on 8 April 1994 at the Saint Charles Lwanga
Church.
1067
Prosecution Exhibit 334 (Diary of Witness DH-91: “Monday, 11 April 1994 … The Brothers of Joseph,
along with their refugees are seriously endangered. They had 17 dead – Munyambaraga’s son Seminarest also
died. More than 10 wounded were finally taken away by the Red Cross along with the dead.”), p. 1.
1068
T. 24 November 2003 p. 46.
1069
Bagosora Indictment, para. 6.49; Prosecution Closing Brief, paras. 112, 1366-1369, 1392-1395, p. 767.
1070
Bagosora Closing Brief, paras. 1230-1249, 1756, 1766, 1770-1772. The other Defence Closing Briefs do not
address this event.
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Evidence
Prosecution Witness AL
942. Witness AL, a Hutu, was present at Maharangari’s house between 6 and 12 April
1994. On 7 April, the witness escorted the wife and children to a neighbouring convent, due
to growing security concerns. Maharangari and his son sought refuge there later that day. The
next morning, four armed soldiers brought Maharangari back to his home. Three of them
wore camouflage uniforms and black berets. The fourth wore instead a camouflage-coloured
cloth on his head. The witness recognised him as a former member of the Presidential Guard
and a driver at the BRD. Two of the soldiers pushed Maharangari into the house, while the
witness and the cook were forced to remain with the other two soldiers outside the gate. The
witness heard three gunshots. At around 8.00 a.m., the soldiers exited the compound, carrying
the handbag of Maharangari’s wife and a small metallic trunk.1071
943. Two other soldiers arrived soon after. One of them had a pistol and a handheld radio
and was wearing an epaulette with stripe and stars and a red beret. The second soldier, who
was carrying a rifle, went inside the house and asked Witness AL and the cook to look for
Maharangari. He was found lying on the floor of the children’s washroom, having been killed
by three bullets. The soldier requested the witness and the cook to move the body. He also
asked why they had not intervened to prevent the killing. The witness explained that they
were unarmed and thus powerless to do so. The soldiers then went to the convent to inform
Maharangari’s wife of her husband’s death and to offer their condolences. After the soldiers
left, a Red Cross vehicle arrived to collect his body.1072
944. Later that day, two other soldiers, also wearing camouflage uniforms and black berets,
arrived in a jeep. They parked at the house of a neighbour, who directed some young men to
accompany the soldiers. The soldiers entered the convent, after which Witness AL heard
gunshots. Immediately after the soldiers had left, the nuns called the witness to say that the
entire Maharangari family had been exterminated. The witness went to the convent, where he
helped load their bodies onto the Red Cross vehicle. All were dead, except for one of the
children, who had been seriously wounded, and who is not believed to have survived.1073
Prosecution Witness BJ
945. Witness BJ, a Hutu, was employed by an international organisation. For security
reasons, she was unable to leave her home in Kigali between 6 April and her evacuation on
10 April 1994. As the telephone system had ceased to work, she used a Motorola handheld
radio issued by her employer to scan numerous radio frequencies in order to glean
information about the unfolding situation. In the afternoon of either 8 or 9 April, she heard
some conversations in Kinyarwanda on a couple of unidentifiable frequencies. One such
conversation was an exchange in Kinyarwanda between Bagosora, Tharcisse Renzaho and
Joseph Nzirorera, which she described as follows:
I heard a conversation between three people and I was able to recognise some voices.
It was somebody asking: “… “Have you finished to kill the director of the Rwandan
1071
T. 29 April 2004 pp. 52, 57-63, 74-75; Prosecution Exhibit 217 (personal identification sheet).
Id. 63-65, 77-78.
1073
Id. 65-68, 74-81.
1072
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Development Bank”; and the second voice replied, “Yes, my colonel”. And the third
voice said, “Are you sure?” And another voice -- the same voice replied, “Very much
so”. And I was able to identify three of the voices.1074
946. The witness identified the voice of the first speaker as Bagosora’s, the second speaker
was Renzaho, and the third voice belonged to Nzirorera. She described Bagosora’s voice as
“a strong voice with a northern accent and authoritarian”. The witness had heard his voice in
an interview on national radio prior to 1994, and when he gave a speech at a naming
ceremony for the child of one of his relatives in 1993. Shocked at what she had heard,
Witness BJ switched frequencies and did not return to that frequency.1075
947. Maharangari was a friend of Witness BJ. He was a Tutsi and member of the PSD
party. She was later informed by one of his relatives that he had been killed on or around 8
April 1994. Maharangari had taken refuge in a convent near to his home, where he was found
by soldiers, beaten and killed, along with his wife and children.1076
Prosecution Witness ZF
948. Witness ZF, a Hutu, gave evidence about the existence of the so-called “Zero
Network”, an unofficial and secret radio communication system used by a group of
individuals wishing to shield their activities and communications from the government or
army. According to the witness, the members included Bagosora, Renzaho and Nzirorera.1077
Nsengiyumva Defence Witness LM-1
949. Witness LM-1, a Hutu, stated that Maharangari was his Tutsi neighbour in the Kiyovu
neighbourhood of Kigali, where he lived with his wife and children. The witness learned that
Maharangari was murdered at home around 9 April 1994, and that his body was found there.
The identity of the perpetrators was unknown to the witness. He also heard that
Maharangari’s wife and children had been killed at a nearby convent. The witness denied that
the soldiers who had killed Maharangari’s wife and children had parked their vehicle in his
compound, as suggested by Witness AL.1078
Kabiligi Defence Witness ALL-42
950. Witness ALL-42, a Hutu member of the RPF from 1989 until the end of 1993,
testified regarding the RPF’s ideology, structure, methods and military strategy. He said that
the RPF goals were to infiltrate the administration in Rwanda. An infiltration campaign
aimed at destabilising Rwandan institutions was led by Augustin Maharangari. According to
the witness, Maharangari was the RPF’s agent in the PSD, which was in opposition to the
government.1079
Bagosora Defence Witness A-8
951. Witness A-8, a Hutu, who worked at the Ministry of Defence, explained that during
1993, the public relations division of the Ministry of Defence prepared news bulletins that
1074
T. 15 April 2004 pp. 7-8; Prosecution Exhibit 209 (personal identification sheet).
T. 15 April 2004 pp. 3-7, 12, 26-29, 33-37, 50-55.
1076
Id. 13-15, 18-19, 40.
1077
T. 27 November 2002 pp. 13, 34, 37, 63, 66; T. 28 November 2002 p. 23; T. 3 December 2002 pp. 62-64; T.
4 December 2002 pp. 59-61, 94-99; T. 5 December 2002 p. 5. Witness ZF’s father was a Hutu, but the witness
was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
1078
T. 1 March 2006 pp. 54-57; Nsengiyumva Defence Exhibit 144 (personal identification sheet).
1079
T. 8 November 2006 pp. 33-38; Kabiligi Defence Exhibit 106 (personal identification sheet).
1075
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were broadcast by Radio Rwanda. He was not aware of any interviews involving Bagosora
being broadcast on national radio during 1993 until April 1994.1080
Bagosora Defence Witness A-4
952. Witness A-4, a Hutu, testified about the communications systems and various types of
radios used by the Rwandan army. He was asked to comment on whether Witness BJ, whilst
scanning a Motorola handheld radio issued by an international organisation, could have
overheard a military radio transmission between Bagosora and two other persons. Witness A4 stated that the army and international organisations were assigned different and separate
radio frequencies by a government agency called MINITRANSCO. The frequencies assigned
to a civilian would not have been able to tune into military transmissions. Witness BJ would
therefore have lacked the capability to listen to a military radio transmission using a legallyissued, standard Motorola hand-set.1081
Deliberations
953. It is undisputed that Maharangari was killed at his residence on 8 April 1994. Witness
AL, who was present during the attack at his home, gave reliable evidence about this, which
was confirmed by the indirect evidence of Witnesses BJ and LM-1.1082
954. The Chamber also accepts that Maharangari was shot by soldiers of the Rwandan
army. Witness AL testified that three of the four soldiers arriving at Maharangari’s house
were wearing camouflage uniform and black berets. The fourth, who had a special
camouflage coloured cloth on the head, was a previous soldier. Other soldiers killed
Maharangari’s family later on the same day. Witness AL’s description of the perpetrators was
coherent and credible. The Chamber does not have a sufficient basis for identifying the units
of the soldiers who were involved in this event.
955. The Prosecution submits that Bagosora was involved in the killing by seeking
assurances through radio communication that Maharangari had in fact been killed. Only
Witness BJ overheard the purported exchange between Bagosora, Renzaho and Nzirorera. In
order to do so, she must have had a Motorola that could access frequencies utilised by
Rwandan military and civilian officials, and a network of communication would have existed
between the three identified officials themselves. It is undisputed that Bagosora possessed
two Motorola handheld radios in April 1994. According to him, he used one of them to
communicate with the Presidential Guard duty station at Camp Kimihurura, and the other to
communicate with senior officials at the Ministry of Defence (III.3.5.9).
956. Witness BJ could not identify the frequency on which she heard this alleged
conversation. Witness A-4, who had knowledge in this area, testified that an ordinary civilian
operating a normal handheld Motorola radio would not have been able to access the radio
frequencies of the Rwandan military. He also stated that it would have been very difficult for
persons using military networks to have deviated from pre-determined frequencies. In the
1080
T. 9 May 2005 pp. 53, 61-62; T. 10 May 2005 p. 32; Bagosora Defence Exhibit 163 (personal identification
sheet).
1081
T. 25 July 2005 pp. 15-23; Bagosora Defence Exhibit 182 (personal identification sheet).
1082
Because both testimonies were based on hearsay, it is not significant that Witness BJ testified that
Maharangari was killed with his family by soldiers at the convent on 8 April 1994 (T. 15 April 2004 pp. 18-19,
40), whereas Witness LM-1 stated that the killing took place, by unknown persons, on or around 9 April 1994
(T. 1 March 2006 pp. 55-56).
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Chamber’s view, this does not exclude that Witness BJ could have overheard Bagosora using
one of his Motorola hand-held radios.
957. Turning to the question whether Bagosora, Nzirorera and Renzaho could
communicate over the same network, Witness A-4 questioned this possibility, given their
different institutional affiliations. In the Chamber’s view, this is not entirely convincing, as it
cannot be excluded that these three persons may have had hand-held radios in addition to
institutional communication networks. At the same time, the Chamber is reticent to accept
Witness ZF’s testimony as corroboration of Witness BJ’s evidence. He said that all three
were members of the “Zero Network”, a secret organisation which allegedly operated a
clandestine radio network. The Chamber has determined that his testimony about the secret
radio network carries limited weight (III.2.7). It would also be surprising if a secret radio
network could be so easily and inadvertently overheard by a civilian operating a Motorola
hand-held radio.
958. Leaving aside the technical radio transmission aspects, where the evidentiary situation
is unclear, the Chamber will now turn to Witness BJ’s ability to recognise Bagosora’s voice.
The conversation she overheard was brief, without any greetings, introductions or call signs.
She only heard the person requesting confirmation of the killing of Maharangari utter four
words.1083 This speaker was purportedly addressed as “My Colonel”, had a northern accent
and an authoritarian tone. The description indicates that the person could have been
Bagosora, bearing in mind also his central position during the events of April 1994. However,
the witness’s basis for recognising Bagosora’s voice was limited. She had previously heard
him speak over the radio in an interview prior to 1994, but was not able to specify the name
of the radio station or the programme that had aired this broadcast. Witness A-8, who had
knowledge about the content of military programmes on radio stations in Rwanda, testified
that to the best of his knowledge, Bagosora never took part in radio broadcasts during this
period.
959. Witness BJ further claimed to have heard Bagosora give a speech at a naming
ceremony for his brother’s baby at the end of 1993 or the beginning of 1994.1084 She
explained that she had not been invited to the party, but had gone to see a friend who was
there.1085 The Defence put to her the passport of Bagosora’s sister-in-law, which indicated
that Bagosora’s brother had only two children who were born in 1986 and 1989, and
therefore would not have been hosting such a party at this time.1086 In view of this evidence,
there is also some doubt as to whether Witness BJ heard Bagosora speak on this second
occasion.
960. Having considered the totality of the evidence, the Chamber has doubts about Witness
BJ’s ability to recognise Bagosora’s voice, in particular because of the brevity of the
conversation, the few words spoken by the person asking about the killing of Maharangari,
and her limited basis for recognising Bagosora’s voice. Under these circumstances, it is not
1083
T. 15 April 2004 pp. 38, 50. Witness BJ was asked to write down the words Bagosora uttered in
Kinyarwanda, corresponding to the sentence “Have you finished to kill the director of the Rwandan
Development Bank”. See Prosecution Exhibit 210: “Cya BRD mwakirangije sha?”
1084
T. 15 April 2004 pp. 50-56. The witness identified the name of Bagosora’s brother in Bagosora Defence
Exhibit 94 (Name of person hosting the party).
1085
Bagosora Defence Exhibit 94, according to which she went to the party to fetch keys from a person who had
been invited. The Chamber notes that this is an unusual way to attend a naming celebration.
1086
T. 15 April 2004 pp. 52-56; Bagosora Defence Exhibit 199 (Passport of Bagsora’s sister-in-law).
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necessary to consider the significance of her previous written statements about the radio
interception.1087
961. The Chamber finds that Maharangari, the Director of the Rwandan Bank of
Development, was killed by soldiers of the Rwandan military, on or around 8 April 1994. His
family members were also killed. The unit to which these soldiers belonged to is not clear. It
has not been proven beyond reasonable doubt that Witness BJ heard Bagosora’s voice on her
Motorola radio around 8 or 9 April 1994, requesting confirmation that Maharangari had been
killed.
962. The Chamber has found that Bagosora had authority over the Rwandan army at the
time of the attack (IV.1.2). There is no credible evidence directly showing that Bagosora was
aware of the murder of Maharangari. However, given the widespread killing throughout
Kigali perpetrated by or with the assistance of military personnel, including the targeted
killings on the morning of 7 April (III.3.3; III.3.5.2), the Chamber is satisfied that Bagosora
was aware that personnel under his authority were participating in killings.
3.5.7
Karama Hill and Kibagabaga Catholic Church, 8 - 9 April
Introduction
963. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment allege that, from
7 April 1994, elements of the Rwandan army, gendarmerie and Interahamwe perpetrated
massacres of the civilian population. In support of these general allegations, the Prosecution
points to Witness DW concerning the role of military personnel and Interahamwe in the
killing of Tutsi civilians at the Karama hill in Rubungo commune on 8 April, and then at the
Kibagabaga Catholic Church in Remera, on 9 April.1088 The Bagosora Defence argues that
Witness DW’s testimony lacks credibility.1089
Evidence
Prosecution Witness DW
964. Witness DW, a Tutsi, testified that, around 8.00 a.m. on 8 April 1994, between 100
and 200 refugees fled shooting in the Remera area of Kigali and passed through the
Kibagabaga neighbourhood on their way to a school on Karama hill in Rubungo commune.
The witness and several members of her family joined the group, which eventually numbered
around 500 persons. On the way, around 10.00 a.m., the group encountered a roadblock at the
foot of Karama hill near the junction between Kimironko and Muzindiro, manned by military
personnel wearing camouflage uniforms and a mix of black berets, red berets and helmets.
1087
In particular, Witness BJ gave a statement to an international non-governmental organisation in June 1994
(Bagosora Defence Exhibit 96), shortly after the events. According to one of her handwritten responses, she also
recognised the voice of Laurent Semanza, thereby indicating that four persons participated in the conversation.
When this was put to her during cross-examination, she explained that she had been confused at the time she
had given the statement. She listed Semanza as a participant, because his name had always been associated with
the other three at the time of the genocide. T. 15 April 2004 pp. 20-21.
1088
Bagosora Indictment, para. 6.50; Kabiligi and Ntabakuze Indictment, para. 6.36; Prosecution Closing Brief,
paras. 218-219, 243-244, 1090-1093, pp. 764-765, 767, 772, 774, 835-836.
1089
Bagosora Closing Brief, paras. 1676-1680. The other Defence teams do not address the allegations made by
the Witness DW.
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The witness recognised four soldiers from her area with black berets, who were from Kami
Camp. On the basis of identity cards and physical features, the soldiers separated around 100
Tutsis, including the witness, from the group and took them to a nearby building. One of the
soldiers threw a grenade at the refugees. The witness and 20 others managed to escape to
Karama school, where they joined the other refugees. She continued to hear the sounds of
grenades in the distance.1090
965. When Witness DW arrived at the school, she decided to hide in the nearby woods.
The military personnel, mostly wearing black berets, followed the refugees, who escaped to
the school. They began pushing some of the Tutsi refugees in latrine pits before throwing in
grenades. The soldiers forced others to dig their own graves before killing them. The attacks
began around 10.30 a.m. and continued throughout the night as more soldiers arrived at the
school. At one point, soldiers found the witness in the woods, but she was able to escape. She
avoided being selected from amongst the refugees by the soldiers because she hid her face
and then spent the night in the woods. The witness returned to the Kibagabaga area on the
morning on 9 April, where she sought safety with around 100 other Hutu, Tutsi and Twa
refugees at the Catholic church around 8.00 a.m.1091
966. Around noon on 9 April, Witness DW saw about 50 military personnel, wearing black
berets, red berets and helmets, dig trenches near Kibagabaga Church. Around 2.00 p.m., a
high ranking soldier arrived and told another soldier, Rwamanywa, that the refugees had to
die. The witness was standing about five metres away. After this, the soldiers gave firearms
and grenades to a group of Interahamwe who were already armed with traditional weapons.
The Interahamwe then began to attack the church, demanding the refugees to show their
identity cards, and killing the Tutsis. The attack continued until the next morning. The
military personnel watched and laughed as the attack was ongoing. The Interahamwe never
asked the witness to produce her identity card, and she was not aware of how many Tutsi
refugees were killed.1092
967. An Interahamwe named Muvoma, who lived nearby, told Witness DW and her sister
that he would hide them if they paid him money. Early on 10 April, the witness and some of
her family members went to his house. Other Interahamwe came and killed her mother and
her sister there. The witness then fled from the back of the house when no one was guarding
it and stayed in a sorghum field for around 15 days until the RPF rescued her.1093
Deliberations
968. Only Witness DW testified about the events at Karama hill. She was also the sole
witness to give direct evidence on the attack at the Kibagabaga Catholic Church. Her account
is therefore largely uncorroborated. The Bagosora Defence argues that her testimony is
implausible in view of the number of times she evaded death after being selected by soldiers
or harboured by Interahamwe.
1090
T. 4 September 2003 pp. 60-67, 86-90; T. 5 September 2003 pp. 1-4; Prosecution Exhibit 92 (personal
identification sheet). Witness DW suggested that the soldiers wearing black berets were regular army soldiers
and that the ones wearing helmets were from the Presidential Guard.
1091
T. 4 September 2003 pp. 67-74, 84-85; T. 5 September 2003 pp. 5-11, 27.
1092
T. 4 September 2003 pp. 74-80, 85; T. 5 September 2003 pp. 12-19.
1093
T. 4 September 2003 pp. 80-83, 85; T. 5 September 2003 pp. 18, 20-21, 23-25.
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969. The Chamber has noted some differences between Witness DW’s testimony and her
statement to Tribunal investigators. For example, the witness testified that she hid in the
sorghum field for 15 days until the end of April. However, according to her statement she
remained there for two months until June. She explained that there was a mistake in her
statement.1094 In addition, her testimony reflects that she evaded capture by assailants on
several occasions, whereas her statement reflects only one.1095 When challenged on crossexamination, she maintained the version in her testimony. In the Chamber’s view, these
differences can be explained by the passage of time, the traumatic nature of the circumstances
and communication problems during her interview.
970. In view of these variances and the nature of the events, the Chamber approaches the
particular details of her evidence with caution. Nevertheless, it accepts the main features of
her account, in particular that she witnessed the killing of Tutsi civilians at the roadblock near
Karama hill, at Karama school and the Kibagabaga Church. In particular with respect to the
last location, there is some corroboration from Witness HU about the attack, as he alluded to
killings at the church (III.3.5.3). Furthermore, the events at the church mirror how the attack
unfolded at the nearby mosque.1096
971. The Chamber therefore finds beyond reasonable doubt that military personnel killed
Tutsi civilians at the roadblock and school near Karama hill around 8 April 1994. Around 9
April, they supervised the killing of Tutsi civilians at the Kibagabaga Catholic Church, after
distributing weapons to Interahamwe.
972. The Chamber has found that Bagosora had authority over the Rwandan army at the
time of the attack (IV.1.2). There is no evidence directly showing that Bagosora was aware of
these specific attacks. However, given the widespread killing throughout Kigali perpetrated
by or with the assistance of soldiers, the Chamber is satisfied that Bagosora was aware that
soldiers under his authority were participating in killings. The Chamber has not heard
evidence implicating Kabiligi and Ntabakuze in this crime.
3.5.8
Gikondo Parish, 9 April
Introduction
973. Each of the Indictments alleges that military and political authorities herded Tutsi
civilians to places of traditional refuge such as churches, where they were killed by
Interahamwe acting in coordination with military personnel. Some of these killings were
allegedly perpetrated pursuant to pre-established lists. Sexual assaults also allegedly formed
part of these attacks. In support of these general allegations, the Prosecution points to
evidence where the Rwandan army, gendarmerie and Interahamwe participated in an attack
on 9 April at Gikondo Parish in Kigali. The Prosecution particularly emphasises the
outrageous and inhumane nature of the killings and other crimes, such as sexual assault,
perpetrated there. Reference is made to Witnesses Brent Beardsley, UT and XAI as well as
Expert Witness Alison Des Forges. The Defence do not address the allegations concerning
1094
T. 4 September 2003 p. 85. Witness DW’s statement to Tribunal investigators was not tendered as an
exhibit.
1095
T. 5 September 2003 p. 5.
1096
T. 4 September 2003 p. 49.
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the attack on Gikondo Parish. The Ntabakuze Defence objects, however, to the positioning of
the Para Commando Battalion near the parish as alleged by Witness XAI.1097
Evidence
Prosecution Witness Brent Beardsley
974. Major Beardsley, the personal staff officer to General Dallaire in UNAMIR, testified
that, around 12.00 p.m. on 9 April 1994, two Polish officers received a faint radio message at
UNAMIR headquarters from two Polish military observers living at Gikondo Parish in
Kigali. The message said: “Come fast; they're killing here.” With Dallaire’s authorisation,
Beardsley and the two Polish officers travelled to the parish in an armoured personal carrier,
operated by Bangladeshi peacekeepers. The journey took around 30 minutes, requiring them
to cross the frontline between the RPF and the Rwandan army and then several checkpoints
manned respectively by members of the Para Commando Battalion, other Rwandan soldiers,
the gendarmerie and militiamen.1098
975. When they arrived at Gikondo Parish, a large number of dead bodies were strewn in
the streets. Two of the peacekeepers went to the priests’ residence to look for the Polish
military observers, while Beardsley and other peacekeepers walked towards the church. The
corpses of children, hacked with machetes, filled the alleyway alongside the building. Inside
the church, Beardsley found around 150 dead bodies in civilian attire. A priest was trying to
assist the 15 survivors, who were badly injured. After surveying the scene, Beardsley spoke
with the two Polish military observers who were at the priests’ residence. They explained to
Beardsley, through one of the Polish officers who acted as an interpreter, what had just
happened there.1099
976. According to the military observers, the Rwandan army blocked off access to the area
that morning, and then gendarmes, carrying lists, moved methodically through it escorting or
sending Tutsis to the church. Other Tutsis also fled to the church. The priests and military
observers, who were at the residence, heard screams from the church and walked over to
investigate. The gendarmes seized them and held them against the wall with gun barrels
pressed to their throats. The gendarmes compared identity cards of the Tutsi refugees to the
lists that they were carrying. The identity cards were then burned as the Interahamwe entered
the church and began killing the refugees over the course of the next several hours. Beardsley
recounted the crimes in detail:
Pregnant women had their stomachs slashed open, foetuses on the floor. Even a foetus
was smashed. I remember -- just from the time I was there, I remember looking down, a
woman obviously had tried to protect her baby. Somebody had rolled her off the baby.
The baby was still alive and trying to feed on her breasts. She'd been -- her clothes had
been ripped off. The killing that was done was not done, in their opinion, to kill the
people immediately; it had been done to kill them slowly. Women's breasts, women
vaginas had been cut with machetes; men's scrotum areas cut with machetes. Men had
been hamstrung behind their Achilles’ tendons so that they couldn't walk, but they would
1097
Bagosora Indictment, paras. 5.40, 5.44-5.45; Kabiligi and Ntabakuze Indictment, paras. 5.31, 5.35-5.36;
Nsengiyumva Indictment, paras. 5.29, 5.31; Prosecution Closing Brief, paras. 204, 214, 246, 422, 594, 1251(c),
1260-1261, 1455, 1456(a-c), 1457, pp. 737, 815, 870; Ntabakuze Closing Brief, para. 1427.
1098
T. 3 February 2004 pp. 41-43.
1099
Id. pp. 43-45.
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have to watch what was happening to their families. There was rape that had taken place
in addition to the killings, and the murder. The priests and military observers were forced
to watch, and the gendarmes beat them with rifle butts if they averted their eyes from the
killing. After a few hours, the gendarmes and militiamen became tired of the killing and
left.1100
977. Around 3.30 p.m., Beardsley decided that the peacekeepers had to return to UNAMIR
headquarters. There was no room in the armoured personnel carrier to evacuate all the
wounded. The priests decided to stay with them until the next morning when additional
vehicles could be organised to evacuate them. The peacekeepers gave the priests their first
aid kits, water and food. The next morning the priests contacted UNAMIR by radio and
informed Beardsley that the militiamen had returned to kill the survivors. According to
Beardsley, the military observers were fairly traumatised by the experience and left the
mission shortly after the events.1101
Prosecution Witness UT
978. The written statement of Witness UT, a Tutsi, who lived in Gikondo in 1994, was
admitted pursuant to Rule 92 bis. She was cross-examined by the Bagosora and Kabiligi
Defence. Early on the morning of 9 April 1994, she and her husband sought refuge at
Gikondo Parish. Around 7.00 a.m., during mass, she heard gunshots from outside and
screams to open the door. When the priest opened the church door, she saw 10 soldiers,
wearing black berets. Three of them entered the church and ordered everyone to come outside
and produce their identity cards. The soldiers allowed Hutus to leave and told the Tutsis to go
back into the church. An officer passed by in a military jeep and told the soldiers not to waste
their ammunition since the Interahamwe would be arriving shortly.1102
979. The Interahamwe arrived at 11.00 a.m. The assailants were armed with guns,
grenades and traditional weapons and were blowing whistles and beating drums. The
refugees were again ordered out of church and killed as they left the building. The
Interahamwe then entered the church and began killing the refugees who resisted over the
next several hours. Shortly after the attack began, the witness was struck behind the left
shoulder as she exited the church and other refugees fell on top of her. The witness regained
consciousness that evening and saw people in Red Cross who took her to a nearby medical
centre.1103
Prosecution Witness XAI
980. Prosecution Witness XAI was a Hutu soldier of the 17th Battalion and at Camp
Kanombe hospital in April 1994. He stated that, on the night of 6 April, Ntabakuze
dispatched members of the Para Commando Battalion to positions in the Gikondo area of
Kigali. The witness also said that, between 15 and 20 April, he passed through the area and
saw members of the Para Commando Battalion at three roadblocks in the area.1104
1100
Id. pp. 44-45.
Id. 45-46.
1102
T. 9 June 2004 pp. 27-28; Prosecution Exhibit 258 (personal identification sheet); Prosecution Exhibit 259
(statement of 20 October 1998).
1103
T. 9 June 2004 pp. 28-30; Prosecution Exhibit 259 (statement of 20 October 1998).
1104
T. 8 September 2003 pp. 14-18, 42; Prosecution Exhibit 94 (personal identification sheet).
1101
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Prosecution Expert Alison Des Forges
981. Alison Des Forges, an expert in Rwandan history, testified that Gikondo was one of
the first dramatic massacres of the genocide. It occurred on the morning of 9 April 1994
when civilians who had taken refuge in that church were slaughtered by members of
Rwandan armed forces and militia groups.1105
Deliberations
982. It is not disputed that more than 150 Tutsi refugees were killed at Gikondo Parish on
the morning of 9 April 1994. The main question for the Chamber is to identify the assailants
and to ascertain the nature of the operation. The Prosecution presented two witnesses who
provided direct testimony on the attack or its aftermath: Major Beardsley and Witness UT. It
then points to Witness XAI to demonstrate that members of the Para Commando Battalion
were operating in the area. Finally, Des Forges presented general corroboration.
983. Beardsley provided a convincing and detailed first-hand account of the aftermath of
the attack. He also recounted what the Polish military observers had directly seen during the
course of the massacre, which they were forced to watch at gunpoint. Even though the
account of the military observers is hearsay, the Chamber still considers this part of
Beardsley’s testimony credible and reliable. The men were trained observers who conveyed
what they had seen to Beardsley a short time after the events occurred. In addition, Beardsley
was at the parish and was in a position to verify the atrocious nature of the killings.
984. Witness UT offered the only eye-witness account of how the attack unfolded at the
parish. Several features of her testimony corroborate Beardsley’s version of the events. For
example, she placed the attack in the same time-frame on the morning of 9 April. She
referred to military personnel examining the refugees identity cards and indicated that the
Interahamwe played the main role in killing the Tutsi refugees. Other aspects, however, are
different. In particular, she characterised the military personnel involved in the separation as
soldiers rather than gendarmes. She also said that they found the refugees at the church,
rather than congregating them there. Finally, the witness mentioned the survivors being
assisted by Red Cross personnel whereas Beardsley left the surviving victims in the company
of priests at the parish, where it was reported that all the survivors were finished off.
985. Even though Beardsley’s account of the attack was in part second-hand, the Chamber
prefers it as the main basis of its findings on these events. Key aspects of his testimony were
based on the first-hand report of military observers who would have been familiar with the
different units in the Rwandan military and in a position, by virtue of their training as soldiers
and function as military observers, to recount in detail such events. Moreover, the military
observers were also forced to watch the entire attack. In contrast, Witness UT, a primary
target of the attack, was physically injured by the Interahamwe, and lost consciousness
shortly after it started. This may have impacted on her recollection. In addition, the Chamber
notes the contradiction between her testimony where she stated that the soldiers wore black
berets and her statement to Tribunal investigators in which she said “I do not recall if they
had any headgear”.1106 Nevertheless, the Chamber is of the view that she endeavoured to tell
the truth, and thus relies on her testimony insofar as it corroborates Beardsley’s account.
1105
1106
T. 16 September 2002 pp. 90-91.
See T. 9 June 2004 p. 27; Prosecution Exhibit 259 (statement of 20 October 1998).
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986. Based primarily on the testimony of Beardsley, the Chamber finds that, on the
morning of 9 April, the Rwandan army sealed off the Gikondo area and that gendarmes
moved systematically through the neighbourhood with lists, sending Tutsis to Gikondo
Parish. The gendarmes checked the identity cards of the Tutsis at the parish against their lists
and then burned the identity cards. The Interahamwe then proceeded to kill the more than 150
Tutsi refugees in the atrocious manner described by Beardsley above, as the parish priests
and UNAMIR military observers were forced to watch at gunpoint. The Interahamwe
returned later that night to kill most of the survivors.
987. There is no specific evidence of the unit of soldiers that were involved in the attack.
Witness XAI testified that members of the Para Commando Battalion were stationed in the
area. The Ntabakuze Defence contests Witness XAI’s credibility in general as well as his
specific evidence that members of the Para Commando were stationed near Gikondo Parish.
Leaving aside issues of Witness XAI’s general credibility, which are assessed elsewhere, his
testimony, even if true, does not show that members of the battalion participated in the attack.
The Chamber notes that Beardsley passed through a checkpoint manned by the Para
Commando Battalion while travelling from UNAMIR headquarters to Gikondo Parish. This
was at the frontline with the RPF, and Beardsley passed through several subsequent
roadblocks manned respectively by regular soldiers, gendarmes and then militiamen.
Beardsley’s evidence shows that the battalion was not the only unit operating in the area and
was the farthest from the parish. Consequently, the Chamber is not satisfied that the evidence
demonstrates that members of the Para Commando Battalion were involved in the attack.
988. The Chamber finds beyond reasonable doubt that the Rwandan army, gendarmerie
and Interahamwe conducted a joint operation to seal off the Gikondo area, to identify specific
Tutsis there and to kill them along with all other Tutsi at the parish, a traditional place of
refuge. Lists were used in ensuring that specific Tutsis were killed. The perpetrators also
engaged in sexual assault and rape during the attack.
989. The Chamber has found that Bagosora had authority over the Rwandan army at the
time of the attack (IV.1.2). There is no evidence directly showing that Bagosora was aware of
the attack on the parish. However, given the widespread killing throughout Kigali perpetrated
by or with the assistance of military personnel, the Chamber is satisfied that Bagosora was
aware that personnel under his authority were participating in killings. The Chamber,
however, has not heard sufficient evidence directly implicating Kabiligi, Ntabakuze or
Nsengiyumva in this crime.
3.5.9
Separate Radio Network
Introduction
990. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege that
Bagosora sometimes communicated with the commanders of the Presidential Guard, Para
Commando Battalion and Reconnaissance Battalion via a “separate radio network”. The
Prosecution points to Witnesses BJ and DA, who illustrated his alleged use of a separate
radio network, and to Expert Witnesses Alison Des Forges and Filip Reyntjens, who gave
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general evidence about Bagosora’s ability to communicate with military units via a handheld
radio.1107
991. The Bagosora and Ntabakuze Defence submit that the Prosecution did not produce
any evidence to support the allegation that Bagosora was in communication with
commanders of military units via a separate radio network. Reference is also made to the
evidence of Filip Reyntjens, who testified that this network was not a secret. The Kabiligi
Defence argues that the testimony of Witness DA is contradictory.1108
Evidence
Prosecution Expert Witness Alison Des Forges
992. Alison Des Forges stated that Bagosora was in possession of two handheld Motorola
radios, one connected to the Ministry of Defence and the other providing a direct link to the
Presidential Guard. It was highly unusual for the second in command at the Ministry of
Defence to have a radio link directly to the Presidential Guard. This unit had its own
commanding officer, Colonel Sagatwa.1109
Prosecution Expert Witness Filip Reyntjens
993. Filip Reyntjens testified that Bagosora had informed him that he was in possession of
two Motorola radios which he used to stay in touch with the guard post of the Presidential
Guard at Camp Kimihurura and the Ministry of Defence. This information was confirmed by
other army officers whom Reyntjens interviewed. Such equipment would have enabled
Bagosora to contact military units independently. It was not unusual for senior members of
the military to have mobile communications equipment.1110
Prosecution Witness DA
994. Witness DA, a Hutu, was a member of the Reconnaissance Battalion, whose duties
included monitoring radio transmissions and delivering these messages to their intended
recipients. He testified that operators receiving messages noted the time, date, origin, and the
numbered code name for the person sending the transmission. Between 8.00 and 8.30 p.m. on
6 April 1994, he saw and filed a written radio transmission at the Reconnaissance Battalion
offices in Camp Kigali. The originating code of the sender indicated that it was sent from the
1107
Paragraph 6.28 of the Kabiligi and Ntabakuze Indictment expressly refers to communication between
Bagosora and the Presidential Guard, Para Commando Battalion and Reconnaissance Battalion. Paraagraph 6.40
of the Bagosora Indictment uses the more general term “commanders of these units”, which, in the Chamber’s
view, includes the units mentioned in the preceding paragraphs of it (as paragraphs 6.28, 6.30, 6.31, 6.33, 6.34,
6.36-6.39 refer to the Presidential Guard, Para Commando Battalion, Reconnaissance Battalion and the
commander of the Gisenyi Operational sector); Prosecution Closing Brief, paras. 1164, 1367, 1368, pp. 761,
832.
1108
Bagosora Closing Brief, para. 952; Ntabakuze Closing Brief, para. 2393; Kabiligi Closing Brief, paras. 775780.
1109
T. 18 September 2002 p. 52.
1110
T. 15 September 2004 p. 28; T. 21 September 2004 p. 29. In his book Reyntjens states that Bagosora had a
radio network parallel to the Army and Gendarmerie and could thus communicate directly with the Para
Commando and Reconnaissance Battalions. This was based on interviews with Bagosora from autumn 1994.
Bagosora Defence Exhibit 9 (Filip Reyntjens: Rwanda: Trois jours qui ont fait basculer l’histoire (1995)), p. 57.
He reiterated this in a statement to Belgian authorities in 1995, adding that Bagosora could also communicate
directly with the Presidential Guard; Bagosora Defence Exhibit 135 (Pro Justitia statement of 31 July 1995),
p. 2.
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“secretary-general” of the Ministry of Defence, a post that Bagosora held at the time. The
transmission was addressed to all military units and ordered them to go on stand-by and to
reinforce roadblocks in collaboration with local officials to prevent infiltration. The witness
later specified that the radio transmission was from the Ministry of Defence and not a specific
individual.1111
Prosecution Witness BJ
995. Witness BJ, a Hutu, testified that on 8 April 1994, she overheard Bagosora, Tharcisse
Renzaho and Joseph Nzirorera discussing the murder of the director of the Rwandan
Development Bank, Augustin Maharangari, as she was scanning her own handheld Motorola
radio. The witness recognised Bagosora’s voice as she had previously heard him give
interviews on the national radio stations. She did not tune into this radio channel again after
overhearing this incident.1112
Prosecution Witness Roméo Dallaire
996. General Dallaire recalled attending a meeting with Bagosora, General Bizimungu and
the High Commissioner for Human Rights, José Ayalo Lasso, at the Hôtel des Diplomates in
May 1994. Dallaire confirmed that he saw a handheld Motorola radio on the table at the
meeting room. He did not know who the radio belonged to but confirmed that it did not
belong to Lasso or to him.1113
Prosecution Witness ZF
997. Witness ZF, a Hutu, testified that there was a clandestine radio network, called “Zero
Network”, associated to various secret groups (III.2.7). The Accused were allegedly part of
this secret radio network, as well as other prominent military and civilian individuals. The
witness heard that the Zero Network had a main station in Kigali and regional transmission
centres located throughout the country. He was told that the station for Gisenyi prefecture
was located in Nsengiyumva’s residence.1114
Bagosora
998. Bagosora said that he had two Motorola radios. One was used to communicate
internally with cabinet officials, and the duty officer at the Ministry of Defence. Bagosora
was unable to use this radio for external communications. It was typical for senior ministry
officials to have a personal radio. The other Motorola was issued to him when he moved to
Kimihurura in January 1994 to enable him to communicate with his official escort who were
relocated with him from Camp Kigali to the Presidential Guard at Camp Kimihurura. The
reason was that the phone lines were frequently down in this area. He used this radio to talk
directly with the duty office at the camp, and could not use it to communicate with the
1111
T. 17 November 2003 pp. 8-9, 12-14, 21-22; T. 5 December 2003 pp. 1-2; T. 8 December 2003 pp. 54-56,
75-89; Prosecution Exhibit 129 (personal identification sheet).
1112
T. 15 April 2004 pp. 7, 9, 13, 50-54; Prosecution Exhibit 209 (personal identification sheet). The allegation
relating to the killing of Augustin Maharangari is dealt with in section III.3.5.6.
1113
T. 19 January 2004 pp. 56-57; Prosecution Exhibit 166 (Collection of seven still image extracts). The photos
are taken from a video entered into evidence as Prosecution Exhibit 167. It shows General Dallaire sitting with
Colonel Bizimungu and Bagosora at a meeting held at the Hôtel des Diplomates in Kigali.
1114
T. 26 November 2002 pp. 94-95; T. 27 November 2002 pp. 7-13, 34-37, 62-66; T. 28 November 2002 pp.
23-24; T. 4 December 2002 pp. 59-61, 94-99; T. 5 December 2002 pp. 3-9. Witness ZF’s father was a Hutu, but
the witness was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
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Reconnaissance or Para Commando Battalions. Anybody who tuned onto the same frequency
could listen to Bagosora’s conversations.1115
999. According to Bagosora, his Motorola handset had 12 frequencies. The commander of
the Presidential Guard gave him a frequency which allowed him to be heard by army
headquarters, without being heard by the units below. It was a breach of army regulations to
scan frequencies other than those assigned specifically. Such breaches were punishable.1116
Deliberations
1000. The Indictments allege that Bagosora communicated with military units using a
“separate radio network”. To the extent that this means a radio network separate from any
other and using its own equipment, the only evidence of that character came from Witness
ZF. He testified that Bagosora was a member of the Zero Network, which was a clandestine
radio communications network used by various secret groups. The Chamber considered this
allegation in III.2.7 and did not find it established beyond reasonable doubt that the Accused
were involved in a secret radio network. Further, the evidence relating to the Zero Network
was adduced to prove a conspiracy around 1992-1993, relating to paragraphs 1.13-1.16 of the
Bagosora Indictment. The Chamber cannot exclude that such a network, if it existed, could
have operated also in 1994, but Witness ZF did not testify about this, and there is no evidence
to that effect.
1001. Turning to communication with military units in April 1994, Bagosora did not deny
that at this time he had, at his disposal, two Motorola handheld radio handsets and could use
them to communicate with the Ministry of Defence and the duty station at Camp Kimihurura.
He disputed that there was anything unusual or illegal about this arrangement and denied that
he communicated directly with military units via a separate radio network.
1002. Des Forges and Reyntjens both stated that Bagosora had two Motorola handsets.
Reyntjens learned this directly from Bagosora. One handheld radio was used to communicate
with the duty office of the Presidential Guard at Camp Kimihurura. Both witnesses agreed
that this allowed Bagosora direct contact with this unit. In his book, Reyntjens added that
Bagosora also had the ability to independently contact the Reconnaissance and Para
Commando Battalion, but he did not point to any evidence for this assertion. The Chamber
has found similar information in a Pro Justitia statement to Rwandan authorities in 1996 but
the witness was not called.1117
1003. Witness BJ testified that she overheard Bagosora speaking to Nzirorera and Renzaho
whilst scanning different frequencies on her Motorola handset. The Chamber, however, is not
satisfied about the witness’s ability to identify Bagosora’s voice with accuracy during a
fleeting transmission (III.3.5.6). At any rate, her testimony did not provide any information as
to whether Bagosora was using a radio network separate to those normally used by the
military at the time of the alleged transmission.
1115
T. 2 November 2005 pp. 66-68.
Id. pp. 68-71.
1117
See Bagosora Defence Exhibit 256 (Pro Justitia statement of 16 June 1996 to the Rwandan Ministry of
Justice, where Marcel Gatsinzi states: “Nous avons appris par après que Bagosora avait un réseau radio à lui,
parallèle au réseau militaire normal. Dans ce réseau il avait le contact direct avec la GP [Garde
Presidentielle], le batallion para-commando et le baillon de reconnaissance. ... “. He also mentions the name of
a colonel who could confirm this but that officer was not called as a witness.
1116
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1004. Witness DA was the only witness testifying that Bagosora sent a message from the
Ministry of Defence. The witness first said that he heard, and then later that he had seen, a
radio transmission addressed to all units on the 6 April from the “secretary-general” at that
Ministry.1118 During cross-examination, he clarified that the written radio transmission came
from the transmission centre in the Ministry of Defence, and that he could not identify the
specific sender.1119 This evidence does not show that Bagosora communicated separately with
military units. Witness DA’s testified that there was a transmission centre in Bagosora’s
office but this evidence was unclear and uncorroborated.1120
1005. For the above reasons, the Chamber considers that the Prosecution has not proven
beyond reasonable doubt the allegations relating to the use of a “separate” radio network.
1006. This said, Bagosora could, of course, communicate with military units through
general networks. It is undisputed that he had two Motorola radios, and Witness DA testified
that there was a transmission centre in the Ministry of Defence. The Chamber cannot rule out
that such general means of communication could be used to convey sensitive messages from
April to July 1994.
1118
T. 17 November 2003 p. 22 (“The message came from the secretary-general of the ministry of defence … I
knew that because there were specific figures which were known, which were used. That is the codified message
which enabled us to know where the message came from.”).
1119
T. 8 December 2003 pp. 55-59, 65, 75-77, in particular p. 77 (“Judge Reddy: So you really don’t know who
the message came from? Is that what you are saying? Witness: The message came from MINADEF, but as for
the sender, I won’t be able to mention the person who did send the message.”); Bagosora Defence Exhibit 32
(Reglément de transmission); Bagosora Defence Exhibit 51 (Blank Message completed by Witness DA). The
witness was also asked to comment on an extract of the testimony from Prosecution Witness DBY, a radio
operator in the Rwandan Army, according to which standard procedure dictated that radio messages could not
go directly from MINADEF to military units, without first going through the general staff. The witness’s
explanation for the deviation in this procedure on 6 April was vague and lacked detail. See T. 8 December 2003
pp. 71-72.
1120
T. 8 December 2003 p. 75.
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3.6
3.6.1
Gisenyi Prefecture
Military Camp and Gisenyi Town, 6 - 7 April
Introduction
1007. According to the Nsengiyumva and Bagosora Indictments, on the night of 6 to 7 April
1994, Nsengiyumva summoned local leaders and militiamen to the Gisenyi military camp
and ordered them to kill all RPF accomplices and Tutsis. He had received orders to start the
massacres. Weapons were distributed, and the military and militiamen commenced the
killings. Reference is made to Witnesses ZF, DO, Serushago and OAF.1121
1008. The Nsengiyumva Defence asserts that there is no notice for the specific killings. It
also argues that the Prosecution’s evidence is unreliable, as shown by Witnesses LUXX,
LSK-1, ZDR-1, ZDR-2, ZR, HQ-1, CF-1, CF-2, CF-4, FN-1, TRA-2, BZ-3, XEN-1, Willy
Biot and Aouili Tchemi-Tchambi. The Bagosora Defence disputes the credibility of the
Prosecution evidence and asserts that the allegations related to Gisenyi prefecture do not
implicate him.1122
Evidence
Prosecution Witness ZF
1009. Witness ZF, a Hutu working at Butotori military camp, and Major Habimana, the
commander of the 42nd Battalion, went to Gisenyi military camp at 9.00 or 10.00 p.m. on 6
April 1994. On arrival, Lieutenant Rwasa told the witness, who was sitting with a group of
officers, that Nsengiyumva was on the telephone with Bagosora. Lieutenant Bizumuremyi
entered the room and told the group that President Habyarimana’s plane had been shot down.
Nsengiyumva joined the gathering, confirmed the President’s death and told Bizumuremyi to
begin the work of finishing off the Inyenzi.1123
1010. Nsengiyumva and Bizumuremyi went to the Accused’s office. Bizumuremyi returned
and spoke with a few officers, who went to the camp’s tarmac. The commanders gathered
their companies and deployed their soldiers to defensive positions. Barnabé Samvura, the
head of the Gisenyi militia, arrived and stayed with Nsengiyumva for a period before going
outside the camp. In the meantime, almost 200 militiamen had gathered in front of it.
1121
Nsengiyumva Indictment, paras. 6.11, 6.13-6.16, 6.36; Bagosora Indictment, paras. 6.58, 6.59; Prosecution
Closing Brief, paras. 48, 81-84, 87, 89, 435-436, 439-440, 442-447, 452-458, 464, 1001(d, e), 1004, 1017,
1019(c), 1033, 1034(a-d), 1040(b), 1042, 1043(a, b), 1044(a, b), 1045-1048, pp. 770, 877-881. See T. 28 May
2007 pp. 15-16.
1122
Nsengiyumva Closing Brief, paras. 27, 151-155, 183, 624-634, 637, 686-710, 1055-1060, 1065, 1075, 11401163, 1242, 1302-1303, 1466, 1484-1546, 1550-1580, 1586-1605, 1613-1649, 2145-2146, 2150-2153, 21572160, 2167-2169, 2173-2175, 2178-2179, 2180-2185, 2188, 2190-2194, 2198-2200, 2277-2278, 2280, 22872288, 2301-2302, 2305, 2310-2313, 2331-2334, 2337-2341, 2343-2351, 2361-2362, 2370, 2380-2381, 2389,
2396-2398, 2661, 2718, 2953-2954, 2958, 2967-2969, 2971, 2977, 2982-2984; Bagosora Closing Brief, paras.
943-948, 1623-1625, 1667-1673, 1885-1888, 2355, pp. 382-383. See T. 31 May 2007 pp. 20-23, 68-69, 77; T. 1
June 2007 pp. 12, 15, 17. Reference is also made to Witness LK-2. See Nsengiyumva Closing Brief, paras.
2428, 2441. The Chamber has considered his evidence below (III.3.6.2).
1123
T. 26 November 2002 pp. 94-95; T. 27 November 2002 p. 13; T. 28 November 2002 pp. 38-40, 64-65; T. 3
December 2003 pp. 56-57; T. 4 December 2004 pp. 81-84. Witness ZF’s father was a Hutu, but the witness was
raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
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Bizumuremyi addressed this group, stating: “[t]he soldiers have gone to do their work, their
normal work. As for you, you are going to also begin your work. Go everywhere, spare no
one, even – not even babies. Do it quickly so that in the morning, we will have finished.”
After this speech those who had gathered left towards the city, and Bizumuremyi
subsequently followed.1124
1011. After the militia left, Nsengiyumva spoke with Witness ZF about the evilness of
Tutsis. Bagosora called Nsengiyumva three times that night. During the first call around 2.30
a.m., the witness heard Nsengiyumva say that the apocalypse was unfolding. At
approximately 4.00 a.m., Bizumuremyi returned and said that the Rubavu operations were
complete and that the work would continue in the rural areas. A short while later,
Nsengiyumva passed this information onto Bagosora during their second call. After speaking
for a third time around 6.00 a.m., Nsengiyumva told Bizumuremyi that Bagosora wanted to
arrest Alphonse Kabiligi, who worked with the economic community for the Great Lakes.
Bizumuremyi and the witness left.1125
1012. Witness ZF returned to Gisenyi military camp around 7.30 a.m. with a message for
Nsengiyumva. He then drove with Nsengiyumva around town to the Quartier Belge, the
airport, the stadium. During the trip, Nsengiyumva asked Interahamwe and Impuzamugambi
at roadblocks how they were getting along with their “work”. The witness accompanied
Nsengiyumva on at least two additional occasions that day before noon to the airport, the
military operational command camp and past the stadium and the Commune Rouge.1126
Prosecution Witness DO
1013. Witness DO, a Hutu who lived near the Gisenyi military camp, left for work around
5.00 a.m. on 7 April 1994. When approaching the bus station in town, three soldiers informed
him about the death of the President and told him to return home. He did so and after about
30 minutes, Lieutenant Bizumuremyi and four uniformed soldiers arrived at the witness’s
compound with Thomas, Fiacre and Mabuye, who were important members of the Gisenyi
Interahamwe. Between 7.00 and 8.30 a.m., Bizumuremyi ordered the witness to drive
Thomas’s Hiace minibus.1127
1014. According to Witness DO, he accompanied Bizumuremyi and the others to Rue de
l’Umuganda where 50 to 60 Interahamwe were gathered. A Daihatsu was commandeered and
given to the witness to drive. Bizumuremyi informed him that Nsengiyumva had given
1124
T. 28 November 2002 pp. 39-42; T. 3 December 2002 pp. 57-62.
T. 28 November 2002 pp. 42-46, 65-67; T. 2 December 2002 pp. 2-3, 52-53; T. 4 December 2002 pp. 84-91;
T. 5 December 2002 p. 81. The Chamber has excluded evidence of this 6.00 a.m. phone call to the extent it
relates to Bagosora. See Decision on Bagosora Motion for the Exclusion of Evidence Outside the Scope of the
Indictment (TC), 11 May 2007, para. 73, and more generally section III.6.5.
1126
T. 28 November 2002 pp. 46-48; T. 2 December 2002 pp. 6-14, 18-21, 48-52; T. 5 December 2002 pp. 2324, 42-51, 56-59, 79; Nsengiyumva Defence Exhibit 13 (Testimony of Witness ZF in relation to the Brugière
investigation). Witness ZF also testified that he and Nsengiyumva stopped at the Tegeli compound, where they
found dead bodies. The Chamber has previously precluded evidence of the Tegeli murders. See Decision on
Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September
2006, paras. 68-69.
1127
T. 30 June 2003 pp. 3, 15-18, 67-69; T. 1 July 2003 pp. 7-11, 21-25; T. 2 July 2003 pp. 3, 26-27, 30-32; T.
14 October 2005 pp. 16, 18-21, 37-39; T. 17 October 2005 p. 33; Prosecution Exhibit 61 (personal identification
sheet). Witness DO referred to Bizumuremyi as a “captain”. On 8 April 1994, Bernard Munyagishari and other
Interahamwe told him that a meeting had been held at Gisenyi military camp on the night of 6 to 7 April, where
it was decided to kill Tutsis.
1125
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instructions to collect more Interahamwe and bring them to Gisenyi military camp. The
witness first stopped at a roadblock mounted by Conseiller Fazile near Kagemana’s place.1128
He collected members of the Interahamwe and headed to Gisenyi military camp, arriving
around 8.00 or 8.30 a.m. Over 30 individuals had gathered there to attend a meeting.
Nsengiyumva stood outside his office with approximately five soldiers. He led the
Interahamwe, Bizumuremyi and some soldiers into his office near the camp’s entrance
between 8.30 and 8.40 a.m. The witness remained outside with the three other drivers.11291130
1015. Thirty to 40 minutes later, the Interahamwe, Nsengiyumva and soldiers reappeared.
Nsengiyumva ordered the soldiers to distribute weapons, which Witness DO believed came
from the nearby armoury. At Bizumuremyi’s direction, the soldiers gave approximately 15
guns as well as grenades to the Interahamwe leaders, including Thomas, Mabuye, Famal,
Munyagishari and Fiacre. Nsengiyumva told Faziri Hakizimana that the roadblocks in the
area needed to be reinforced and to warn his Muslim friends not to hide Tutsis. He told
everyone that the Tutsis would be exterminated because they had just killed President
Habyarimana. The meeting ended after the weapons had been distributed.11311132
1016. The Interahamwe were divided into 10 groups. Witness DO drove 15 to 20 assailants
led by Fiacre and three soldiers from the camp. The soldiers were wearing civilian attire so
that they would not be recognised. They picked up another 15 persons along the way to
Bugoyi cellule. Between 9.00 a.m. and 9.00 pm. on 7 April, the group attacked several
residential compounds in Gisenyi town, primarily near the military camp. Their victims
included a Tutsi man, who taught in Nyundo, and his daughter; Daniel Rwabijongo, a Hutu,
whose Tutsi wife had been killed earlier in the day by another group of Interahamwe;
Assoumani Kajanja, a Hutu, who had tried to stop the attackers from killing his Tutsi wife;
Gilbert, a Tutsi, and another Tutsi who was with him; a Tutsi woman named Mukabutare and
her daughter; and a Hutu named Muvunyi, suspected of harbouring Inkotanyi. The witness’s
only role was to drive the assailants, and he did not personally kill anyone.1133
1017. After the attack on Gilbert’s compound around 3.00 p.m., Bizumuremyi ordered the
assailants to return to Gisenyi military camp. There, they attended a meeting in the courtyard,
where 20 Interahamwe leaders, such as Bernard Munyagishari and Omar Serushago, were
present. Nsengiyumva admonished Conseiller Faziri and Conseiller Sibomana of Byahi that
measures had to be taken to prevent Tutsi refugees escaping to Zaire and that they would be
held accountable. He also informed the group that steps needed to be taken to identify the
1128
It appears clear that Fazile was “Faziri”, the conseiller. During cross-examination, Witness DO testified that
he made stops at Hassan Ngeze’s house, Hussein Ndimubanzie’s house, and a man named Joseph’s house in
attempt to pick up Interahamwe before arriving at Kagemana’s roadblock. The witness only retrieved
Ndimubanzie during these prior stops. See T. 1 July 2003 pp. 25-27; T. 2 July 2003 pp. 28-29.
1129
T. 30 June 2003 pp. 16, 18-20, 70; T. 1 July 2003 pp. 12-15, 26; T. 2 July 2003 pp. 3, 27-28; T. 14 October
2005 pp. 23-30. When recalled, Witness DO testified that he believed that they arrived at the military camp
between 9.00 and 10.00 a.m. See T. 14 October 2005 pp. 18-19.
1130
T. 30 June 2003 pp. 16, 19-21; T. 1 July 2003 pp. 13-19, 28-29; T. 2 July 2003 pp. 1-2, 29; T. 17 October
2005 p. 34.
1131
T. 30 June 2003 pp. 16, 19-20, 22, 28, 81; T. 1 July 2003 pp. 29-34; T. 2 July 2003 pp. 10-11, 32-35.
1132
T. 30 June 2003 pp. 20, 23-24, 70; T. 1 July 2003 pp. 34-35.
1133
T. 30 June 2003 pp. 16, 24-36, 41-45, 48-50, 60-61, 84; T. 1 July 2003 pp. 35-38, 47-51, 63-65, 79; T. 2
July 2003 pp. 3, 9-10, 12-17, 36-37, 54-56; T. 17 October 2005 pp. 6, 9-10, 14-16, 18-19, 29-33. See Decision
on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September
2006, paras. 22-25 fn. 47 (admitting Witness DO’s testimony at T. 30 June 2003 p. 42).
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enemy, or Tutsis, at roadblocks. The group left after approximately 15 minutes and continued
the killings mentioned above.1134
1018. At approximately 9.00 p.m., Witness DO drove his group to an area near the
gendarmerie brigade where they met Nsengiyumva and the head of the gendarmerie.
Nsengiyumva congratulated the Interahamwe on their good work and told them to go home.
He informed the soldiers that they had to continue. The witness drove the Interahamwe home
and took the three soldiers to the military camp.1135
Prosecution Witness Omar Serushago
1019. Omar Serushago, a Hutu and Interahamwe leader in Gisenyi town, testified that
Lieutenant Eustache Dusabeyezu, a soldier at Gisenyi military camp, and Thomas
Mugiraneza, a member of the Interahamwe, stopped by Serushago’s house around 5.00 a.m.
on 7 April 1994 and informed him that President Habyarimana had died. They told the
witness about a meeting held the previous night at Gisenyi military camp in which
Nsengiyumva had ordered the massacring of Tutsis. Dusabeyezu stated that killings had
begun that night after Nsengiyumva’s orders. Dusabeyezu and Mugiraneza informed
Serushago that they were in a hurry to begin massacres and asked Serushago to “deal with”
his neighbours, the Musonera family. Instead, Serushago hid them in his house because they
were close friends.1136
1020. Between 7.30 and 8.30 a.m., a group of Interahamwe from Bigogwe sector in Kinama
commune stopped briefly at Serushago’s home. Around 8.00 or 8.30 a.m., he left his home
with Colonel Bonaventure Buregeya to bury Buregeya’s nephew, who had been killed. Along
the way, Serushago observed “a lot” of dead bodies, some riddled with bullets in the head and
others that had been cut by machetes. He returned home after burying the child and did not go
anywhere else on 7 April.1137
1021. Lieutenant Bizumuremyi and Nsengiyumva also passed by Serushago’s house that
day around 10.00 a.m. They told the witness that he could be killed if he did not participate in
the massacres, which had already started. Around 2.00 p.m., Nsengiyumva came again and
asked Serushago: “Why haven’t you yet started killing? Because your friend, your colleagues
have already started killing. What are you doing here?” Serushago told Nsengiyumva that he
needed time because he had to take his pregnant wife to Zaire for the delivery.1138
Prosecution Witness OAF
1022. Witness OAF, a Hutu businessman living in Gisenyi near the military camp in 1994,
testified that, on 7 April 1994 between 6.30 and 7.00 a.m., his wife told him that she had
heard over the radio that the President’s plane had been shot down. The witness walked
outside of his house to see if anything was happening. He encountered two men, Gahutu and
Nyaribogi, who were walking in the direction of the military camp. Approximately 15 to 20
1134
T. 30 June 2003 pp. 36, 38-39. T. 2 July 2003 p. 18. Bizumuremyi drove himself around town as the
massacres occurred, and Witness DO recalled passing him on Umuganda Street and close to the prosecutor’s
office in the city centre. T. 1 July 2003 pp. 52-54.
1135
T. 30 June 2003 pp. 61-63; T. 1 July 2003 pp. 41-44, 76-78; T. 2 July 2003 pp. 12, 17.
1136
T. 18 June 2003 pp. 3, 5-6, 16-18, 88-90, 92; T. 19 June 2003 pp. 33-35, 56-58, 62-63; Prosecution Exhibit
54 (personal identification sheet). Serushago was living in Colonel Bonaventure Buregeya’s compound, which
contained apartments and a house. See T. 18 June 2003 pp. 74-76.
1137
T. 18 June 2003 pp. 17-18, 90-91; T. 19 June 2003 pp. 67-68.
1138
T. 18 June 2003 pp. 18-19, 90-92; T. 19 June 2003 pp. 36, 62-63.
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minutes later, the two returned carrying two guns and grenades and informed him that they
were going to start “working”.1139
Nsengiyumva
1023. On 6 April 1994 at between 8.30 and 9.00 p.m., one of Nsengiyumva’s children in
Kigali called him and said that President Habyarimana had died. Nsengiyumva immediately
went to the military camp and spoke on the telephone with Major Gérard Ntamagezo of the
army general staff. Ntamagezo said that the chief of staff had also died and that the G-2, G-3
and G-4 were not available. Ntamagezo called back around 10.00 to 11.00 p.m. and told
Nsengiyumva that he had been informed that there was a meeting and that they were awaiting
instructions. Nsengiyumva also spoke with Major Biganiro, the gendarmerie commander in
Gisenyi and Sub-prefect Andre Banyurwabuke, who was the acting prefect.1140
1024. Nsengiyumva asked Lance Corporal Moderne to fetch Witness ZF, who arrived
around 9.30 p.m. Nsengiyumva instructed him to go to his position to monitor RPF radio
communications and to immediately report any information related to the attack.
Nsengiyumva did not discuss anything or receive any phone call in Witness ZF’s presence.
Witness ZF left within five minutes and returned sometime between 11.00 p.m. and midnight,
informing Nsengiyumva that he had not heard any communications regarding the incident.
He also reported that the RPF had closed their network and that it would not open until 6.00
a.m. Nsengiyumva instructed Witness ZF to go home and report back at his position at 6.00
a.m. in order to track RPF radio communications the following day. Nsengiyumva did not
receive any phone calls during their brief conversation.1141
1025. At around 10.00 p.m., Nsengiyumva held a meeting in his office for about an hour
with the non-commissioned officers of the sector command, headquarters company, and 42nd
Battalion to brief them about the situation. Nsengiyumva instructed the officers to tell their
soldiers to be vigilant. At 2.00 a.m., he left for home, which was approximately 100 to 150
metres away. At the time, he had not received any instructions from Kigali and the reports
from his officers indicated that Gisenyi town remained calm. Nsengiyumva did not speak to
Bagosora or conduct any meetings with civilians that evening.1142
1026. Corporal Moderne called Nsenigyumva between 5.00 and 6.00 a.m. on 7 April to
inform him that, according to a telegram, Nsengiyumva was invited to a meeting at 10.00
a.m. in Kigali and that he would be collected by helicopter. The helicopter never arrived, and
Nsengiyumva remained in Gisenyi. On his way to the camp, he drove around town, which
was calm. Nsengiyumva held a meeting at 7.00 a.m. with his officers. Thirty minutes later, he
told 50 to 70 soldiers from the Headquarters Company assembled on the tarmac to remain
disciplined and vigilant. At 9.00 a.m., he met briefly with Witness ZF and then went home
for a short period around 11.00 a.m. Sometime between 11.00 a.m. and 12.00 p.m., the
1139
T. 23 June 2003 pp. 2, 8-10, 31, 37, 45-49; Prosecution Exhibit 56 (personal identification sheet).
T. 4 October 2006 pp. 49-52; T. 12 October 2006 pp. 53-55.
1141
T. 4 October 2006 pp. 52-54; T. 6 October 2006 pp. 15-16; T. 11 October 2006 pp. 7-8.
1142
T. 4 October 2006 pp. 54-57; T. 6 October 2006 pp. 16-17, 43-44; T. 12 October 2006 p. 55. The noncommissioned officers present were Major François Xavier Uwimana, who was his S-2/3 and Nsenigyumva’s
second in command, Captain Faustin Habimana, commanding officer of the 42nd Battalion, Second Lieutenant
Abel Rwasa, commanding officer of Headquarters Company, Lieutenant Anastase Bizumuremyi, an S-2/3,
Lieutenant Iyamuremye, an S2-S3 of the 42nd Battalion, and Lieutenant Fidèle Udahemuka, Fighter Commando
leader. Chief Warrant Officer Butera, a commissioned officer in charge of logistics, including weapons and
ammunition, was also in attendance. T. 4 October 2006 pp. 54-55.
1140
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gendarmerie commander, Major Biganiro, contacted Nsengiyumva reporting “suspicious
movements of youngsters”, risks of attacks and looting. Nsengiyumva sent two platoons,
consisting of 60 to 70 men, who were placed under Biganiro’s command. Nsengiyumva did
not meet with civilians or distribute weapons to Interahamwe and did not receive any
messages to commence the massacres.1143
1027. Nsengiyumva stayed at the camp until about 1.00 p.m., when he returned to his house
to eat lunch, returning to camp around 2.00 p.m. He attended a meeting at the prefect’s office
from 4.00 to 6.00 p.m. The prefect informed the attendants that houses had been burned in
Mutura, that people had been killed in Karago commune, and that he was receiving
information regarding tension in Giciye and Kayove communes. The gendarmerie
commander informed them of the killing of Gaudiose Semucyo, whose body was found in
Munakoro. Nsengiyumva was instructed to remain vigilant in anticipation of an RPF attack.
He returned to the camp after the meeting, not seeing a single killing or dead body that
day.1144
1028. Nsengiyumva did not know or learn about the deaths of Rwabijongo, Kajanja and
Muvunyi and was never informed of soldiers being involved in killings in April 1994. He
also testified that a witness statement turned over by the Prosecution suggested that Gilbert
was killed between 11 and 14 April rather than 7 April. Nsengiyumva knew that Mukabutare
was killed in April 1994.1145
Nsengiyumva Defence Witness LUXX
1029. Witness LUXX, a Hutu student, testified that on the evening of 6 April 1994, she was
in Nsengiyumva’s home. Early that evening, Nsengiyumva brought his wife and their three
children to the Hôtel Méridien. At approximately 9.00 p.m., the witness received a call in
Nsengiyumva’s house from his daughter in Kiyovu, who said that she could hear gunshots
and had been told that the President’s plane had been shot down. Nsengiyumva’s wife and
children returned 30 minutes later without him. His wife said that Nsengiyumva had gone to
the military camp.1146
1030. Nsengiyumva called around 11.00 p.m., stating that he would send protection. He
returned home between 1.00 and 2.00 a.m. Around 6.00 or 6.30 a.m., he left without
breakfast and returned around 11.00 a.m. He said that he was waiting for a helicopter to
Kigali and that he was sending a vehicle for the children in Kigali. Nsengiyumva left for the
office, returned between 1.00 and 2.00 p.m. for lunch and then went back to the military
camp immediately thereafter.1147
1143
T. 4 October 2006 pp. 46-47, 57-58; T. 5 October 2006 p. 5; T. 6 October 2006 pp. 12-13, 44, 48; T. 11
October 2006 p. 8; T. 12 October 2006 pp. 55-58, 61, 64-67.
1144
T. 4 October 2006 pp. 58-64, 66-67; T. 6 October 2006 pp. 17-18, 48-52; T. 11 October 2006 pp. 25-26; T.
12 October 2006 pp. 66-72. Until 13 April, when the Belgians evacuated and left vehicles, Nsengiyumva drove
around in a beige-coloured Pajero. See T. 4 October 2006 pp. 63-64; T. 9 October 2006 p. 14. See also Witness
STAR-2, T. 28 February 2006 p. 28 (confirming that Nsengiyumva drove his Pajero before the Belgians soldiers
left in mid-April and a pick-up that belonged to the Belgians afterwards).
1145
T. 6 October 2006 pp. 48-52. Nsengiyumva accepted that Kajanja and Rwabijongo, Hutus considered to be
accomplices, were among the first to be killed. T. 11 October 2006 pp. 24-25; T. 12 October 2006 p. 27.
1146
T. 6 September 2006 pp. 58, 60-61; Nsengiyumva Defence Exhibit 206 (personal identification sheet).
1147
T. 6 September 2006 pp. 61-62.
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Nsengiyumva Defence Witness LSK-1
1031. Witness LSK-1, a Hutu, was a trader and a neighbour of Witness DO in 1994. On the
morning of 7 April 1994, Witness DO came to his house and informed him of the death of the
President. Witness DO stated that he had tried to go to town but was turned back. Both men
stood by the roadside to observe what was happening for approximately three hours. They
were joined by several of their neighbours. At about 12.00 p.m., Kidumu, an Interahamwe,
told Witness DO to follow them into town. No mention was made of going to Gisenyi
military camp. According to Witness LSK-1, it was impossible for Witness DO to have
attended a meeting at Gisenyi military camp on the morning of 7 April 1994, as he was in his
company at this time.1148
1032. Furthermore, Witness DO never mentioned attending a meeting at the military camp
on the morning of 7 April during his criminal proceedings in Rwanda or to him. Witness
LSK-1 questioned the likelihood of Witness DO having close links to Bizumuremyi as his
status and rank would have prevented this kind of association.1149
Nsengiyumva Defence Witness ZDR-1
1033. Witness ZDR-1, a Hutu, was a soldier based at Gisenyi military camp. At
approximately 10.00 p.m. on 6 April 1994, a platoon leader, who had attended a meeting
convened by Nsengiyumva, informed the witness that the President’s plane had been shot
down. From 6.00 a.m. to 6.00 p.m. on 7 April, the witness was on guard duty near the camp’s
entrance. Nsengiyumva entered the camp in a vehicle coming from the direction of his
residence at 6.00 a.m., left at 11.00 a.m. in the direction of his residence, and returned
approximately 30 minutes later. He left again around 2.00 p.m. and did not return prior to
Witness ZDR-1 leaving his post. There was no movement of soldiers on that day. He did not
observe soldiers from his platoon leaving the camp around 11.00 a.m. From his post, the
witness also observed Nsengiyumva address soldiers at the camp on the morning of 7 April.
The witness did not see civilians enter the camp that day.1150
Nsengiyumva Defence Witness ZDR-2
1034. On 6 April 1994, Witness ZDR-2, a Hutu soldier at Gisenyi military camp, was on
guard duty behind the married soldiers’ accommodation from 10.00 p.m. until 6.00 a.m. the
following morning. Around 10.00 p.m. on 6 April, the witness’s platoon commander said that
the President’s plane had been shot down and asked members of the platoon to be vigilant.
The witness did not see a meeting of a large group of civilians during the time he was on
duty. He later attended a meeting on the tarmac around 7.30 a.m. on 7 April. From
approximately 8.00 to 8.15 a.m., Nsengiyumva and other officers who had been in another
meeting, arrived. Nsengiyumva confirmed that the President’s plane had been brought down.
After the meeting, Witness ZDR-2 returned to his barracks. At 11.00 a.m., members of his
1148
T. 19 June 2006 pp. 35-36, 42-43, 50-51; Nsengiyumva Defence Exhibit 189 (personal identification sheet).
T. 19 June 2006 pp. 43-45, 51-53, 57.
1150
T. 7 April 2006 pp. 3, 6-14; Nsengiyumva Defence Exhibit 175 (personal identification sheet). The officers
who had been attending the meeting with Nsengiyumva included 42nd Battalion commander Habimana, Second
Lieutenant Fidèle Udahemuka, Second Lieutenant Abel Rwasa, Chief Warrant Officer Butera and Major
Uwimana. T. 28 March 2006 p. 66.
1149
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platoon were given orders to accompany the platoon commander to provide security in
Gisenyi town.1151
Nsengiyumva Defence Witness ZR
1035. After learning about the President’s death, Witness ZR, a Hutu soldier, reported to
Gisenyi military camp around 7.30 a.m. on 7 April 1994. As Nsengiyumva was in a meeting,
he waited on the parade ground with at least 100 other rank-and-file officers. Nsengiyumva
arrived around 8.30 a.m. He confirmed the death of the President and told them to be vigilant
as the RPF were trying to take over. The witness, who had a clear view of the parade ground
from where he was posted that day, did not see any civilians at the camp.1152
Nsengiyumva Defence Witness HQ-1
1036. Witness HQ-1 was a Hutu soldier based at Gisenyi military camp. Between 9.00 and
9.30 p.m. on 6 April 1994, he was instructed by Nsengiyumva to pick up the Accused’s wife
and three children from the Hôtel Méridien and drive them to their residence. When he
returned from this assignment, he observed Nsengiyumva speaking with Witness ZF, who
subsequently left. Nsengiyumva then convened a meeting with officers, which ended around
2.00 a.m. Afterwards, Nsengiyumva remained in his office with Major Uwimana. The
witness accompanied Nsengiyumva to his residence and returned to the camp. He did not
observe any civilians that night.1153
1037. On 7 April, the witness returned to the camp with Nsengiyumva between 6.30 and
7.00 a.m. Nsengiyumva convened a meeting with officers that morning, where he announced
the death of the President and instructed them to remain disciplined. The witness
accompanied Nsengiyumva to a meeting at the prefect’s office at 8.00 a.m. Around 8.30 a.m.,
they went on a patrol, passing La Corniche, Lake Kivu, the market near Gacuba and near the
railway station. Witness ZF did not accompany them on patrols that day. Nsengiyumva went
home between midday and 1.00 p.m. and returned to the camp at 2.00 p.m. There was no
meeting with civilians at any time on 7 April.1154
Nsengiyumva Defence Witness CF-1
1038. Witness CF-1, a Hutu, lived in Gisenyi. Members of the community told the him that
Interahamwe had attacked Kajanja’s home, and that he had been killed by machetes while
trying to defend his wife on the evening of 7 April 1994 or the next morning. Omar
Serushago informed him that Mukabutare had been killed by Hassan Gitoki after being
forced to sign her property over to Gitoki. The witness learned about the deaths of Kajanja,
Mukabutare and Kabiligi on Friday 8 April.1155
Nsengiyumva Defence Witness CF-2
1039. Witness CF-2, a Hutu, was a CDR official in Gisenyi prefecture. He did not hear
gunshots or learn of killings occurring from 6 to 7 April 1994. He was also unaware of a
1151
T. 28 March 2006 pp. 62, 64-69; T. 30 March 2006 pp. 3-7, 21-22; Nsengiyumva Defence Exhibit 170
(personal identification sheet).
1152
T. 14 February 2006 pp. 3-5, 7-13, 17, 21; Nsengiyumva Defence Exhibit 134 (personal identification
sheet).
1153
T. 13 October 2006 pp. 51-53, 55; Nsengiyumva Defence Exhibit 226 (personal identification sheet).
1154
T. 13 October 2006 pp. 53-55.
1155
T. 29 November 2005 pp. 3, 5-6, 32-33, 35-37; Nsengiyumva Defence Exhibit 125 (personal identification
sheet).
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meeting attended by civilians at Gisenyi military camp at that time. Nsengiyumva would not
have had authority to convene such a meeting. As a member of the CDR, the witness would
have been informed of any meeting, particularly if Mabuye had attended, as the two knew
each other well.1156
Nsengiyumva Defence Witness CF-4
1040. Witness CF-4, a Hutu, was a member of the CDR party in Gisenyi. The situation
remained calm in Gisenyi on night of 6 to 7 April 1994. The witness was unaware of a
meeting of civilians at the military camp during that period.1157 Around noon on 7 April, he
heard that a Tutsi named Solange and another unidentified young Tutsi man were killed. He
also learned that a person named Semucyo, a teacher in Nyundo, was killed that morning.
Persons allegedly involved in the killing were “Saidi” Harelimana, also known as
“Fulgence”, Hassan Gitoki, Michel Kiguru and others.1158
1041. Witness CF-4 learned that Kajanja, Mukabutare and Ignace Tegeri, all Tutsis, were
killed by a group of Interahamwe, including “Bernard” and Saidi Harelimana. He did not
believe they were all killed at the same time. The witness heard of Mukabutare’s and Tegeri’s
killing four days after the President’s death. Nsengiyumva’s name was not mentioned in
relation to the killings, which, according to the witness, were carried out by bandits. The
witness was unaware of soldiers being involved in any of the killings in 1994 or
Nsengiyumva having authority over civilian militias.1159
Nsengiyumva Defence Witness FN-1
1042. Witness FN-1, a Hutu, worked near Gisenyi military camp. He did not observe any
movements of soldiers or large numbers of civilians while at work between 5.00 and 8.00
a.m. on 7 April 1994. He also did not see or hear about any meetings with civilians at the
camp. The witness was close to Mabuye and saw him around 5.00 p.m. on 7 April. Mabuye
did not mention receiving any orders from Nsengiyumva to kill. In fact, he considered
Nsengiyumva to be an accomplice. Mabuye never spoke to the witness about being involved
in killings.1160
Nsengiyumva Defence Witness TRA-2
1043. Witness TRA-2, a Hutu and member of the MRND and Interahamwe, was unaware of
any Interahamwe meeting at Gisenyi military camp on 6 April 1994 or the next morning.
Nsengiyumva did not distribute weapons to Interahamwe when he was a party member.1161
1156
Id. pp. 48, 58, 63-65; T. 30 November 2005 pp. 2-3; Nsengiyumva Defence Exhibit 127 (personal
identification sheet).
1157
T. 14 February 2006 pp. 61-65; T. 15 February 2006 p. 5; Nsengiyumva Defence Exhibit 135 (personal
identification sheet).
1158
T. 14 February 2006 pp. 65-68; T. 15 February 2006 p. 6. “Bernard”, the Interahamwe leader for the
prefecture, and Hassan Gitoki were identified as having led the attack against Solange and the other unidentified
Tutsi man.
1159
T. 14 February 2006 pp. 71-74; T. 15 February 2006 p. 6.
1160
T. 10 July 2006 pp. 38-40, 43-44, 47-49, 58-59; Nsengiyumva Defence Exhibit 204 (personal identification
sheet). Witness FN-1 first saw Mabuye with a pistol four to five days after the President’s death, which Mabuye
said he acquired from the Congo. See T. 10 July 2006 pp. 41-42.
1161
T. 21 June 2006 pp. 24-26; Nsengiyumva Defence Exhibit 192 (personal identification sheet).
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Nsengiyumva Defence Witness Willy Biot
1044. Major Biot was a Belgian technical adviser to the Rwandan army who worked at
Bigogwe commando training centre in Gisenyi prefecture. At approximately 12.30 a.m. on
the evening of 6 to 7 April 1994, Captain Philippe Seconde, his deputy, called and informed
him that President Habiyarimana was dead. Biot did not observe anything abnormal that
evening.1162
1045. On 7 April, Biot sent Seconde and Warrant Officer Beyens to speak with
Nsengiyumva in order to assess the situation. Seconde and Beyens left around 8.30 a.m. and
went to Gisenyi military camp. They spoke with the S-3 officer who informed them that the
operational commander was unavailable. Seconde and Beyens then went to Butotori camp
and returned around 10.00 to 10.30 a.m. They later reported to Biot that the situation in
Gisenyi town seemed relatively calm, but that Rwandan soldiers at roadblocks seemed edgy,
briefly arresting them and searching their vehicle. They did not report observing soldiers and
civilians meeting at the Gisenyi military camp, dead bodies or civilians manning
roadblocks.1163
Nsengiyumva Defence Witness Aouili Tchemi-Tchambi
1046. Colonel Tchemi-Tchambi, a Togolese UNAMIR military observer, arrived in Gisenyi
prefecture in early to mid-January 1994. He was a member of a six person unit sent to enforce
the implementation of the Arusha Accords. As part of his patrol activities, he would conduct
surprise inspections of Gisenyi military camp to ascertain that there were no stocks of
weapons or grenades. These visits by Tchemi-Tchambi and others within his unit revealed
that there were “neither weapons nor grenades” in the camp, and no other weapons caches
were discovered in Gisenyi prefecture generally.1164
1047. On the night of 6 to 7 April 1994, Tchemi-Tchambi remained at his home near the
Gisenyi airfield. The situation seemed calm that evening. The next morning, he noticed that
the streets were unusually empty. Nsengiyumva provided soldiers to escort the UNAMIR
officers to their office near the Hôtel Méridien. The soldiers arrived at approximately 7.00
a.m., and Tchemi-Tchambi’s group took the route past the Edelweiss Hotel, rather than the
market, to get to the office. His unit was told to remain in the office, which they did all day.
1162
T. 21 September 2006 pp. 74, 78; T. 22 September 2006 pp. 1-2, 7-8; Nsengiyumva Defence Exhibit 209
(personal identification sheet); Prosecution Exhibit 411 (“Journal de Campagne”), p. L0008323. Biot lived
approximately five to 10 minutes outside the centre of Gisenyi town towards Kigali. He evacuated on 13 April.
Between 7 and 13 April 1994, he remained in the immediate vicinity of his compound in Gisenyi. T. 21
September 2006 pp. 75, 82; T. 22 September 2006 pp. 31-32.
1163
T. 21 September 2006 pp. 76, 79-81; T. 22 September 2006 pp. 8-10; Prosecution Exhibit 411 (“Journal de
Campagne”), p. L0008325. But see T. 22 September 2006 pp. 11-14 (discussing entries from his Journal de
Campagne, pp. L0008325-L0008326). They reflect that around 10.30 a.m. on 7 April 1994, Seconde was
contacted by the Van Colen family who complained of “shooting in the immediate vicinity of his house, direct
threats to his home” and that “[a] gang of armed persons of more or less 15 persons in civilian attire, that which
threatened Van Colen, is moving about in Gisenyi in a red taxi and is intent on, in quotes, massacring – settling
of scores”. Biot explained that there were rumours going around at this time and that because the report had not
been verified he had reservations about it.
1164
T. 6 March 2006 pp. 33-35, 40-41; Nsengiyumva Defence Exhibit 149 (personal identification information).
Witness Tchemi-Tchambi noted that on one occasion, soldiers refused to allow the UNAMIR officers to inspect
a building. When Nsengiyumva arrived, however, he ordered the officers to open the building. T. 6 March 2006
p. 42.
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The witness did not receive any reports that members of the military distributed weapons to
civilians at Gisenyi military camp or Gisenyi market that day. Tchemi-Tchambi slept in the
office from 7 April to 10 April, before relocating to the Hôtel Méridien.1165
Nsengiyumva Defence Witness BZ-3 and XEN-1
1048. Witnesses BZ-3 and XEN-1, both Hutus, lived near Gisenyi town market and the
Saint Fidèle Institute, respectively, in 1994. Neither witness heard gunfire in their
neighbourhoods on the night of 6 April 1994.1166
Deliberations
1049. Both Prosecution and Defence evidence indicate that a number of Tutsi and Hutu
civilians were murdered in Gisenyi town after the death of President Habyarimana. The main
questions for the Chamber is whether Nsengiyumva and Bagosora participated in these
killings. This requires a review of the evidence related to the meetings Nsengiyumva
allegedly chaired at the Gisenyi military camp on the evening of 6 April 1994 and the
following morning as well as the ensuing killings.
(i) Meetings and Distribution of Weapons
1050. The Chamber accepts that Witness ZF held a sensitive position within the Gisenyi
operational structure, having direct access to Nsengiyumva and his deputies in 1994. Indeed,
Nsengiyumva, in part, confirms that Witness ZF was at the Gisenyi military camp on the
night of 6 to 7 April, although the two give different estimates of the length of time he spent
there. Witness ZF’s testimony that Nsengiyumva convened a meeting of company
commanders that evening is corroborated by Nsengiyumva and Witnesses ZDR-1 and HQ-1.
Thus, Witness ZF was, at least for certain periods during the night of 6 to 7 April, in a
position to observe Nsengiyumva as well as generally to follow the activity in the Gisenyi
military camp.
1051. Only Witness ZF testified that Nsengiyumva ordered Lieutenant Bizumuremyi to
begin operations to kill Tutsis, and that Bizumuremyi then passed the instructions to civilians
at the camp on the night of 6 to 7 April 1994. The Chamber has previously questioned
Witness ZF’s reliability as it relates to the Zero Network and the Amasasu, as he received his
information from others (III.2.7-8). However, in this instance, Witness ZF’s evidence is firsthand. In addition, the essence of his testimony regarding Nsengiyumva’s instructions to
Bizumuremyi and Bizumuremyi’s commands to civilians outside the military camp is
consistent with a prior account given to Tribunal investigators in June 1998. The witness
described Nsengiyumva stating to Bizumuremyi “to work immediately to finish with these
Inyenzi as soon as possible”.1167 He also said that Bizumuremyi exited “the camp to meet a
1165
T. 6 March 2006 pp. 35-37, 41-42, 44.
Witness BZ-3, T. 21 July 2005 pp. 52-57, 65-66; T. 22 July 2005 pp. 17-18; Nsengiyumva Defence Exhibit
95 (personal identification sheet). Witness XEN-1, T. 30 May 2006 pp. 3-4; Nsengiyumva Defence Exhibit 178
(personal identification sheet).
1167
The words “to work” and “finish” are left out of the translation of Nsengiyumva Defence Exhibit 14B
(statement signed 24 June 1998), p. 17. See Nsengiyumva Defence Exhibit 14A (statement signed 24 June
1998), p. 17, which reads “tu dois immédiament commencer le travail pour en finir avec ces Inyenzi dans les
plus brefs delai.” In his statement, Witness ZF explains that “[f]or several years the word ‘work’ had already
1166
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large number of militia who had gathered in front of the guardroom”. The account indicates
that Bizumuremyi addressed a gathering of “about two hundred people”.1168
1052. In the Chamber’s view, however, it is not entirely clear why Nsengiyumva, the area’s
operational commander, would spend the entire night in his office with Witness ZF, a radio
operator, in particular when the military was on high-alert. Moreover, according to Witness
ZF, the killing operation in Gisenyi town occurred on the night of 6 April. The militiamen
were dispatched sometime after 10.00 p.m. Bizumuremyi then reported around 4.00 a.m. that
the operation was complete and they were moving onto the rural areas. This stands in contrast
to the evidence of Witnesses BZ-3 and XEN-1, who testified that they did not hear gunfire or
unrest in Gisenyi on the night of 6 to 7 April, while others, such as Witness LK-2, TchemiTchambi and Biot described Gisenyi town as being calm that evening. Notably, TchembiTchambi and the officers Biot dispatched to the camp on the morning of 7 April passed
through Gisenyi town and saw no signs of the killings. Furthermore, the evidence of Witness
DO, discussed below, indicates that the killings occurred during the day on 7 April. In view
of these concerns, the Chamber has some doubt about Witness ZF’s presence at the camp
during the entire night of 6 to 7 April.
1053. There are also differences between the witness’s evidence and that of the Defence.
Witnesses ZDR-2, a soldier on guard at the camp, was not aware of the meeting, although he
conceded that he did not have a clear view of the camp’s entrance. Witnesses CF-2 and CF-4,
who were CDR party members, as well as Witness TRA-2, an Interahamwe, were also
unaware of the purported meeting. Nsengiyumva and Witnesses LUXX and ZDR-1 indicated
that Nsengiyumva did not spend the night at the Gisenyi military camp, thereby contradicting
Witness ZF’s assertion that the two were together there during that period.
1054. The Defence evidence is not conclusive given the witnesses’ relationship with
Nsengiyumva as well as the interest of the soldiers and political party members in distancing
themselves from the killings. Nevertheless, it raises further questions about the credibility of
Witness ZF’s uncorroborated account. Serushago and Witness DO heard about a meeting
held at Gisenyi military camp that evening, but offered only limited details. The Chamber is
not satisfied that their second-hand accounts are sufficient to corroborate Witness ZF’s
version. As a result, the Chamber accepts that Witness ZF was present at the military camp
for various periods from 6 to 7 April. However, it will not rely on his testimony concerning
the meeting with Interahamwe or Nsengiyumva’s various conversations with Bagosora,
which are closely linked to Witness ZF’s version of when the militia was dispatched.
1055. With respect to the alleged meeting on the morning of 7 April, Witness DO provided
the only first-hand account. He is currently incarcerated in Gisenyi, serving a life sentence
based on a genocide conviction for killings in Gisenyi that are equally at issue in this
proceeding.1169 As an alleged accomplice of Nsengiyumva, the Chamber views the witness’s
testimony with caution. Furthermore, it recalls that his testimony prompted motions from the
Defence to order perjury investigations. While the Chamber denied the requests, it concluded
come to mean ‘Kill the Tutsis’. There was no doubt about it in the minds of all Rwandans”. See Nsengiyumva
Defence Exhibit 14B (statement signed 24 June 1998), p. 17.
1168
Nsengiyumva Defence Exhibit 14B (statement signed 24 June 1998), pp. 17-18.
1169
T. 30 June 2003 pp. 4, 83-86; T. 1 July 2003 pp. 54-56, 59-61; Nsengiyumva Defence Exhibit 107
(Rwandan trial judgment). The witness testified that he was arrested in December 1996, pleaded guilty in 1998
and that his trial took place in 1999. T. 30 June 2003 p. 83; T. 1 July 2003 p. 54.
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in one instance that the witness did not provide a correct account, and in another that he had
provided contradictory testimony.1170
1056. There are certain differences between Witness DO’s account given to the Tribunal
and his Rwandan trial judgment. In testimony and statements to Tribunal investigators in July
1997, October 1997 and February 2003, Witness DO consistently indicated that
Bizumuremyi came to his compound and told him to drive, after which the witness picked up
and transported Interahamwe to Gisenyi military camp.1171 The statements reflect that
Nsengiyumva held a meeting with militia, which preceded attacks, and that weapons were
distributed. However, his judgment does not mention that he attended a meeting at the
military camp on the morning of 7 April 1994 and suggests that he started driving only
around 1.30 p.m. after being forced to do so by Bizumuremyi.1172 The witness reappeared for
further cross-examination on this discrepancy.1173
1057. Witness DO explained that he had told the truth before the Tribunal and had withheld
the information in his proceeding in Rwanda because he feared that, if he had talked about
the events in the morning, he would have had problems.1174 Later in his examination, he
stated that he mentioned the morning meeting in passing during his trial, but simply did not
provide all of the details for security reasons.1175 While the witness’s judgment may not
summarise all of the evidence he provided, it is difficult to accept that it would omit a key
event involving the area’s operational commander. His confession reflects that he did place
1170
Decision on Defence Request for an Investigation into Alleged False Testimony of Witness DO (TC), 3
October 2003. Specifically, the Ntabakuze Defence argued that Witness DO deliberately and consciously
provided false testimony when stating that he had not met with Prosecution counsel prior to testifying before the
Tribunal (paras. 1-2, 5). The Chamber found that he did not give a correct account, noting its “difficulty
accepting the witness’s explanation for denying” that the prior meeting occurred. However, the request for an
investigation was denied because it did not concern a matter material to the case against Nsengiyumva (paras.
10-11). The Nsengiyumva Defence, joined by the Bagosora and Kabiligi Defence, requested an investigation to
determine if the witness committed perjury when alleging that members of Nsengiyumva’s family had
threatened him (paras. 3-4, 6). The Chamber decided that he contradicted his testimony regarding threats (para.
13). It also concluded that the witness contemporaneously recognised that his statement was incorrect when
presented with irrefutable proof that it was wrong, indicating that the mental element for false testimony was not
present (para. 13).
1171
Nsengiyumva Defence Exhibit 26 (statement of 9 October 1997); Nsengiyumva Defence Exhibit 27
(statement of 30 July 1997); Nsengiyumva Defence Exhibit 29 (statement of 28 February 2003).
1172
Nsengiyumva Defence Exhibit 107B (Rwandan trial judgment, 17 August 1999), p. 7. Witness DO’s Pro
Justitia statement to Rwandan authorities in March 1997 also makes no reference to weapons being distributed
from the Gisenyi military camp that morning. Prosecution Exhibit 398 (statement of 25 March 1997).
1173
T. 14 October 2004 p. 23.
1174
T. 14 October 2005 p. 21 (“Mr. President: … Being motivated by fear and trying to avoid execution, why
was it important to say before the Rwandan court that you started driving from 1.30 and not from the morning?
The witness: Thank you, Mr. President. During the time of my trial, we were very hesitant. We were very
hesitant. And if I admitted that I started driving that vehicle in the morning and that I went to the military camp,
I believed I would have problems. And to avoid those problems, I told them just part of the truth and I told them
that I started driving that vehicle at 1.30 p.m. But the fact is that I had started driving the vehicle in the
morning.”).
1175
T. 14 October 2005 pp. 27-30. The Prosecution introduced a Pro Justitia statement to Rwandan authorities
given by Witness DO on 25 March 1997, wherein he indicates that Bizumuremyi came to his house around 7.30
a.m. with other Interahamwe and ordered him to drive them to Gisenyi military camp. Prosecution Exhibit 398
(Pro Justitia statement of 25 March 1997). This document was introduced to impeach Defence Witness LSK-1
(T. 19 June 2006 pp. 56-58) and was not put to Witness DO.
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responsibility on soldiers from the military camp for the crimes.1176 His apparent failure to
mention the earlier events occurring at the camp during his trial is noteworthy since it was the
triggering event for the attacks in his testimony before the Tribunal. This omission and his
explanation for it raise questions about this aspect of his evidence.
1058. There are also differences between Witness DO’s account of the meeting and other
evidence. For example, the witness described Serushago attending the meeting, but
Serushago claimed that he remained at home. In addition, Witnesses ZDR-1, ZR, HQ-1, CF2, CF-4, who were soldiers and political officials in Gisenyi, and Witness FN-1, who worked
in the immediate proximity of the camp, had no knowledge of this meeting. Similarly, Biot,
who had dispatched soldiers to speak with Nsengiyumva, did not report such a gathering.
Prosecution Witness ZF, who came to the camp at 7.30 a.m., also did not mention the
meeting and indicated that he accompanied Nsengiyumva on several tours of Gisenyi town
that morning. Furthermore, the testimony of Witness LSK-1 suggests that Witness DO
remained with him until 12.00 p.m. on 7 April and did not go to the camp during this period.
In the Chamber’s view, some of these witnesses have an interest in minimising their
involvement in this incident. However, their evidence, while not dispositive, raises some
further questions concerning Witness DO’s testimony about this event when considered in
light of the concerns noted above. The Chamber therefore declines to accept the witness’s
account of Nsengiyumva’s participation in meetings in the absence of corroboration.1177
1059. Witness OAF attested to seeing Gahutu and Nyaribogi returning from the direction of
the camp with weapons shortly after 7.00 a.m.1178 He observed only two people leaving by
foot from the direction of the military camp whereas Witness DO’s described numerous
groups of assailants that apparently left together. The Chamber is not satisfied that Witness
OAF provided adequate corroboration for Witness DO’s testimony.
1060. Accordingly, the Prosecution has not proven that beyond reasonable doubt that
Nsengiyumva addressed and distributed weapons to militiamen on 6 and 7 April.1179
1176
Nsengiyumva Defence Exhibit 107B (Rwandan trial judgment, 17 August 1999), p. 7, which directly
implicates Bizumuremyi in the crimes Witness DO was accused to have committed. In a statement to a
Rwandan Prosecutor, the witness mentioned that he attended a meeting at the military camp on the morning of 7
April and Nsengiyumva ordered the Interahamwe “to fetch” Mukabutore. See Prosecution Exhibit 398B (Pro
Justitia statement of 25 March 1997).
1177
According to Tchemi-Tchambi, the Gisenyi military camp did not appear to have a stockpile of weapons. In
the Chamber’s view, this raises some questions as to Nsengiyumva’s ability to distribute arms to militiamen
gathered at the Gisenyi military camp on 7 April from the camp’s armoury, as indicated by Witness DO. It does
not, however, generally raise doubt about the provision of weapons to militiamen given the extensive evidence
about the use of firearms and thus likelihood of secret caches (III.2.6).
1178
Witness OAF stated that in a previous statement to investigators he could not remember the names of the
two individuals he encountered when he exited his house, but testified that he provided them to a second team of
investigators who questioned him. T. 23 June 2003 pp. 45-46.
1179
The Chamber also questions the reliability of Serushago’s evidence regarding Bizumuremyi and
Nsengiyumva stopping by his house on 7 April. Serushago is an alleged accomplice of Nsengiyumva. The
Chamber has on several occasions expressed reservations about his credibility. It therefore views his evidence
with caution and declines to accept it without corroboration.
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(ii) Killings in Gisenyi Town on 7 April
1061. The Chamber will now consider evidence of killings on 7 April in Gisenyi town.
Witness DO provided the only first-hand evidence of this. The Chamber notes that Witness
DO’s testimony regarding his participation in the killings was, if not contradictory,
confusing.1180 His evidence also varied as to the timing of events. He noted, however, that he
could only provide estimates.1181 In particular, relying on Pro Justitia statements and letters
disclosed to him, Nsengiyumva argued that Witness DO’s accounts of the killings were
inconsistent with other evidence.1182 The Chamber accepts that these inconsistencies likely
resulted from a passage of time or an interest in distancing himself from the crimes. The
Chamber also accepts his first-hand account that the killings occurred on 7 April
notwithstanding the conflicting second-hand evidence from the Defence regarding the timing
of certain deaths.
1062. While the Chamber expressed concern about Witness DO’s credibility on matters
related to Nsengiyumva’s personal involvement in meetings on 7 April 1994, it has no doubt
that the witness was a direct observer of the killings. This also follows from his conviction in
Rwanda for the very incidents he mentioned during his testimony.
1063. Witness DO has consistently implicated soldiers in the attacks in his testimony,
statements to Tribunal investigators and his trial in Rwanda.1183 He is not alone in testifying
that soldiers in civilian clothes worked closely with militia groups in Gisenyi.1184 His
evidence also fits into a broader pattern of soldiers accompanying and assisting civilian
militiamen in attacks on Tutsi civilians and suspected accomplices in the days immediately
following President Habyarimana’s death. For example, in the killing of Alphonse Kabiligi
on the evening of 7 April, civilian assailants led the attack, first wounding Kabiligi with more
rudimentary weapons in a soldier’s presence before being shot (III.3.6.5). With respect to the
attack at Mudende University on 8 April, Witness HV credibly described soldiers assisting
civilian militia separate Hutus from Tutsis and break into classrooms so the militiamen could
1180
For example, Witness DO initially testified that he observed Mabuye shoot Gilbert three times in the chest.
During cross-examination he testified that he did not see the killing of Gilbert. Compare T. 30 June 2003 pp. 3536 and T. 17 October 2005 p. 16. The witness later confirmed that he was present when Mabuye shot Gilbert.
See T. 17 October 2005 pp. 31-32. The witness’s testimony with respect to Kajanja’s killing also was
inconsistent. He testified that he observed the “attack” and noted that Fiacre, whom he said was the leader of his
group of attackers, led Interahamwe in the attack. See T. 30 June 2003 p. 30. Later, he stated that he was not
involved in nor did he transport killers to Kajanja’s place and that he did not witness the killing. Subsequently,
he testified that he did observe it, but explained that he did not take part in it. T. 17 October 2005 pp. 19, 29-31.
1181
For example, at one point, he testified that the attack on Daniel Rwabijongo’s residence occurred at 10.00
a.m., but later suggested it took place at 2.00 p.m. See T. 30 June 2003 p. 31; T. 1 July 2003 p. 50; T. 2 July
2003 p. 13. The timing he provided for the Kajanja attack ranged from around 12.00 p.m. to 2.30 p.m. See T. 30
June 2003 pp. 30-31; T. 1 July 2003 p. 50.
1182
T. 15 January 2007 pp. 6-7; T. 18 January 2007 pp. 10-17. The Chamber allowed Nsengiyumva to testify
with respect to several documents that purportedly impeach Witness DO’s testimony but denied a request to
admit them as exhibits. See Decision on Nsengiyumva Motion to Admit Documents as Exhibits (TC), 26
February 2007, paras. 1, 9-13.
1183
Nsengiyumva Defence Exhibit 26 (statement of 9 October 1997); Nsengiyumva Defence Exhibit 27
(statement of 30 July 1997); Nsengiyumva Defence Exhibit 29 (statement of 28 February 2003); Nsengiyumva
Defence Exhibit 107B (Rwandan trial judgment, 17 August 1999), pp. 7, 10.
1184
See Witness ZF, T. 28 November 2002 pp. 10-16, 35-36 (testifying about soldiers in plain clothes training
civilians in 1993); Serushago, T. 18 June 2003 p. 7; T. 19 June 2003 p. 30 (identifying soldiers in civilian
clothes as being involved with Impuzamugambi and mentioning one who committed rapes in 1994).
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kill Tutsi refugees inside (III.3.6.7). In the Chamber’s view, this practice of soldiers
providing firepower to assist civilians, who were the primary attackers, provides
circumstantial corroboration of Witness DO’s testimony.1185
1064. When viewing the evidence in its totality, the Chamber is convinced that soldiers
accompanied Witness DO and other civilian attackers on 7 April 1994 as they conducted the
targeted attacks against Tutsis and suspected accomplices described in his testimony. The
soldiers provided material and substantial assistance to the attacks. This is evident
particularly in the killing of the Tutsi teacher and his daughter on 7 April 1994, where
soldiers participated directly.1186 The Chamber is in no doubt that the soldiers in the attacks
came from Gisenyi military camp given its proximity to the crimes. The witness has also
consistently implicated Bizumuremyi as playing a role in the events that day.1187
1065. Turning to Nsengiyumva’s responsibility, on the period covering 7 April, he was the
Gisenyi operational commander and had authority over soldiers assigned to Gisenyi (I.2.4;
IV.1.5). The Chamber has also determined that that under certain circumstances,
Nsengiyumva could have de facto authority over civilian militiamen (III.2.6.2). Witness
DO’s evidence shows coordination between soldiers and civilians, and the Chamber is
convinced beyond reasonable doubt that Nsengiyumva exercised authority over all the
attackers. Moreover, the systematic nature of attacks by civilians and soldiers, which
occurred in various areas in Gisenyi, almost immediately after President Habyarimana’s
death, leads to the only reasonable conclusion that they were ordered by the highest regional
authority, Nsengiyumva. The evidence also reflects that Nsengiyumva’s met with the military
commanders in his operational sector and was in communication with the general staff in
Kigali.
1185
The Chamber also notes that Witness XBG, a Hutu and member of the Impuzamugambi in Mutura
commune, described soldiers who accompanied groups of civilian attackers and played a supporting role as
Tutsis civilians were sought out and killed. See T. 8 July 2003 pp. 4-6, 36-43, 45-48, 88-92, 94; T. 9 July 2003
pp. 1-20, 78-79; Prosecution Exhibit 66 (personal identification sheet). The Chamber has previously questioned
certain aspects of Witness XBG’s testimony (III.3.6.7). However, like Witness DO, Witness XBG also
consistently implicated soldiers as participants in the killings that day in his own criminal proceedings. See
Prosecution Exhibit 71 (Letter from Witness XBG to the Rwandan Public Prosecutor); Prosecution Exhibit 72
(Pro Justitia statement of 10 March 1999 by Witness XBG); Prosecution Exhibit 73 (Pro Justitia statement 26
May 2000 by Witness XBG). The Prosecution did not specifically indicate in its motion to add Witness XBG
that he would give evidence concerning these attacks. The Chamber therefore has considered this evidence as
background. See Ntahobali and Nyiramasuhuko, Decision on the Appeals by Pauline Nyiramasuhuko and
Arsène Shalom Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of
Witness RV and QBZ Inadmissible” (AC), 2 July 2004, paras. 14-16.
1186
There is also evidence that soldiers participated in the attack against Muvunyi. The testimony came as a
surprise to the Prosecution and was not part of its case. T. 30 June 2003 pp. 45-59. The Muvunyi attack
therefore is only considered for context.
1187
See Nsengiyumva Defence Exhibit 26 (statement of 9 October 1997); Nsengiyumva Defence Exhibit 27
(statement of 30 July 1997); Nsengiyumva Defence Exhibit 29 (statement of 28 February 2003); Prosecution
Exhibit 398 (Pro Justitia statement of 25 March 1997 to Rwandan judicial authorities); Nsengiyumva Defence
Exhibit 107 (Rwandan trial judgment, 17 August 1999). The Pro Justitia statement, which was not put to
Witness DO, reads in relevant part: “On 7 April 1994 at 7.30 in the morning … Bizumuremyi, who was a
captain at Gisenyi military camp, came to my house with other Interahamwe … They ordered me to drive to the
military camp … they alighted from the vehicle and held meetings. After that, Colonel Anatole, who was then
commander of Gisenyi, gave Bizumuremyi, Thomas and Fiacre an order for us to go fetch a woman by the name
of Mukabutare.” Prosecution Exhibit 398 (statement of 25 March 1997).
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1066. The Chamber is also satisfied that the Indictment, when read in its totality and in
conjunction with the Pre-Trial Brief, provided adequate notice of Nsengiyumva’s role in the
crime, the identity of the assailants and the victims. The Indictment and Pre-Trial Brief refer
to Nsengiyumva ordering the crimes. The assailants are described as soldiers from Gisenyi
military camp, including Bizumuremyi as well as those in plain clothes, and Interahamwe,
some of whom are named in the summary of Witness DO’s testimony in the Pre-Trial Brief.
The victims are also referred to as Tutsis and moderate Hutus in different parts of Gisenyi
town.1188 While his evidence mentioned specific victims, the allegation concerns a mass
killing operation throughout the area, which would make it impractical to identify specific
individuals. In particular, Witness DO’s testimony indicated that 10 groups of assailants
participated in the operation.
1067. Bagosora has also been charged in relation to these killings. The Chamber does not
accept his argument that these allegations do not relate to him. The Prosecution’s Pre-Trial
Brief lists Witness DO as supporting the relevant paragraphs of his Indictment related to
Gisenyi.1189 Bagosora exercised the highest authority in the military on 7 April (IV.1.2).
Nsengiyumva as the operational commander of Gisenyi was therefore under his command.
Furthermore, when this event is considered in view of the centralised and hierarchical nature
of the army and together with other parallel killings in Gisenyi prefecture as well as in Kigali,
the only reasonable inference is that these military operations were ordered or authorised by
Bagosora.
1188
In particular, the summary of Witness DO’s anticipated testimony reads: “After the meeting [on 7 April, the
witness] heard Nsengiyumva order the distribution of arms to the Interahamwe leaders. [The witness] saw this
being done. Soldiers in civilian dress also got weapons. After weapons distribution, the Interahamwe and
civilians divided into groups, went to different parts of city and started killing Tutsis and moderate Hutus on a
mass scale.” See Prosecution Pre-Trial Brief (21 January 2002), Annex, p. 59; Prosecution Pre-Trial Brief (7
June 2002), pp. 16-17.
1189
Prosecution Pre-Trial Brief (7 June 2002), p. 8.
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3.6.2
Market Place and Bus Station, 7 April
Introduction
1068. The Nsengiyumva Indictment alleges that, on 7 April 1994, Nsengiyumva chaired
meetings where he ordered militiamen to start killing the Tutsis. He subsequently distributed
weapons to them. The Prosecution points to evidence of Nsengiyumva leading meetings on
that date in the vicinity of the Gisenyi market and a neighbouring bus station, where he urged
the local population to kill and also distributed weapons. Reference is made to Witnesses
OAB, OAF and Isaïe Sagahutu.1190
1069. The Nsengiyumva Defence maintains that these allegations fall outside the
Indictment. Alternatively, it argues that the Prosecution evidence is inconsistent and lacks
credibility. Reference is made to Witnesses CF-1, CF-2, CF-4, BZ-3, HQ-1, STAR-2, MNC1 and LK-2.1191
Evidence
Prosecution Witness OAF
1070. Witness OAF, a Hutu resident of Gisenyi town, testified that, around 8.00 or 8.30 a.m.
on 7 April 1994, he saw Nsengiyumva and approximately four soldiers near the car wash at
the Gisenyi town market. Between 15 and 30 civilians, including Hassan Gitoki, were also
there. The witness could not hear what Nsengiyumva was saying, but he could see soldiers
and civilians unloading three to four green wooden boxes from a vehicle. The boxes were
approximately 80 centimetres long and 60 centimetres high, being moved by two people at a
time. On 8 April, the witness met with Gitoki, who had a gun and grenades. Gitoki informed
him that the boxes contained guns and grenades, which had been distributed to him.1192
Prosecution Witness Isaïe Sagahutu
1071. Isaïe Sagahutu, a Tutsi secondary school teacher, stated that, on the afternoon of 7
April 1994, he spoke on the telephone with Augustin Ntagara, a priest at Gisenyi Parish.
Father Ntagara told him that Nsengiyumva had held a meeting sometime between 9.00 and
10.00 a.m. at a bus station in Gisenyi town. Nsengiyumva said to the crowd: “The father of
the nation has died, and he must be given a pillow. You must go and kill all the Tutsis. Use
all the means available to you. And if you need any reinforcement, I will provide you with
reinforcement.” Ntagara informed the witness that the killing of Tutsis commenced following
the rally. Godios Semucyo was one of the victims.1193
1190
Nsengiyumva Indictment, para. 6.16; Prosecution Closing Brief, paras. 81, 86, 88, 439, 447-448, 451, 10221023(a), 1028(c-f), 1029(a), 1388(d), pp. 879-881.
1191
Nsengiyumva Closing Brief, paras. 264-268, 270-272, 302-303, 635-644, 1197, 1423-1429, 1447-1452,
1467-1469, 1483, 1525-1527, 1529-1530, 2008-2013, 2186-2187, 2193, 2239-2242, 2245, 2248-2254, 22562257, 2269, 2275-2276, 2282-2285, 2295, 2303-2304, 2316, 2438, 2614, 2617, 2619-2620, 2639, 2641, 2954;
T. 31 May 2007 pp. 21-23, 49-51.
1192
T. 23 June 2003 pp. 2, 10-13, 49-50, 54, 71-72; Prosecution Exhibit 56 (personal identification sheet).
1193
T. 27 April 2004 pp. 58, 68, 86-87; T. 28 April 2004 pp. 17-18, 42-45; Prosecution Exhibit 215 (personal
identification sheet).
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Prosecution Witness OAB
1072. Witness OAB, a Hutu living in Gisenyi town, left his house around 7.30 a.m. on 7
April 1994 and arrived at the border leading to Goma around 8.00 a.m. On his way to Goma,
he passed the house of Bernard Munyagishari, the head of the Gisenyi Interahamwe. Without
stopping the vehicle, he observed between 500 and 1000 Interahamwe there. After
conducting some business in Goma, the witness returned home around 10.00 a.m., where he
remained until 2.00 p.m. He next went to prayers and then to his neighbour’s house. That
afternoon, the witness heard that Nsengiyumva had held a meeting at 9.00 a.m. at the bus
station and told everyone that the country had been attacked and that they had to establish
night patrols. Nsengiyumva also identified the enemy as the Tutsis.1194
1073. On the same afternoon, the witness heard an announcement over a megaphone, calling
local residents to a meeting at 4.00 p.m. at the bus station. Nsengiyumva and Bernard
Munyagishari led a meeting there, telling those assembled that the enemy had launched an
attack and needed to be identified.1195 Nsengiyumva urged those assembled to maintain
security and promised to provide weapons to Munyagishari for distribution to the local
population. The meeting concluded between 6.00 and 6.30 p.m. No weapons were distributed
at the meeting, but later that day he noticed that cartons of Chinese grenades were delivered
to every cellule by Lieutenant “Nsegumurenye”. Massacres started that evening.1196
1074. After the meeting, Witness OAB went home. He subsequently conducted night patrols
in his cellule and assisted in setting up roadblocks until approximately midnight. He also took
Hassan Gitoki to Gisenyi military camp after the meeting and observed that weapons were
distributed at Munyagishari’s house.1197
Nsengiyumva
1075. Nsengiyumva denied that he distributed weapons in the Gisenyi market on the
morning of 7 April 1994. He testified that there was conflicting evidence regarding the
meetings he allegedly was attending. Witness OAB’s allegations were fabricated and
uncorroborated, whereas his evidence regarding the meeting at the market on the morning of
7 April was second-hand. When the afternoon meeting purportedly took place, Nsengiyumva
was at the prefect’s office.1198
Nsengiyumva Defence Witness STAR-2
1076. Witness STAR-2, a Hutu who lived and worked near the La Corniche border
crossing in Gisenyi town, testified that she had no recollection of anyone crossing the border
into Zaire on 7 April 1994. There had been instructions for everyone to stay at home.
Nsengiyumva passed by La Corniche around 3.00 p.m. on 7 April. She attended a security
meeting at MULPOC with him around 4.00 p.m. It was attended by André Banyurwabuke,
the sub-prefect who represented the prefect, Bizimana, who was the commander of the
1194
T. 24 June 2003 pp. 41-42, 44-45, 47-48, 51-52; T. 25 June 2003 pp. 8-9, 14-15, 23, 86-88; Prosecution
Exhibit 58 (personal identification sheet).
1195
When asked to identify how many people attended, Witness OAB responded: “There were a lot of people;
virtually the entire population of Gisenyi. Gachupa 1, Gachupa 2 secteurs”. T. 24 June 2003 p. 51.
1196
T. 24 June 2003 pp. 46-48, 50-51; T. 25 June 2003 pp. 15, 23-24. Witness OAB identified Lieutenant
“Nsegumurenye” as “virtually the deputy of Anatole Nsengiyumva”. T. 24 June 2003 p. 49. The witness
probably referred to Lieutenant Bizumuremyi. See also Prosecution Closing Brief, para. 451.
1197
T. 24 June 2004 pp. 45, 50, 52-56; T. 25 June 2003 pp. 24-25, 28-29.
1198
T. 9 October 2006 pp. 34-39.
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gendarmerie, the prosecutor, the immigration service representative, and Nsengiyumva. They
discussed security concerns and Banyurwabuke gave orders to each in attendance. The
meeting lasted approximately two hours and Nsengiyumva remained until the end.1199
Nsengiyumva Defence Witness MNC-1
1077. Witness MNC-1, a Hutu who lived and worked near the La Corniche border crossing,
did not see Witness OAB cross the border into Goma on the morning or afternoon of 7 April
1994. The customs post was nearly closed that day.1200
Nsengiyumva Defence Witness HQ-1
1078. Witness HQ-1, a Hutu soldier in the Gisenyi military camp, accompanied
Nsengiyumva on 7 April 1994. He was unaware of any meeting where Nsengiyumva
addressed civilians at the Gisenyi marketplace that day.1201
Nsengiyumva Defence Witness LK-2
1079. Witness LK-2, a gendarme, was at the Gisenyi gendarmerie camp on 6 April 1994.
Around 9.00 p.m., Nsengiyumva informed the camp’s commanding officer that President
Habyarimana was dead. Gendarmes told the witness on the night of 6 to 7 April that the
situation was calm.1202
1080. The witness did not receive any reports of abnormal activity in the Gisenyi market or
other areas on the morning of 7 April but around midday there were reports of “young
people” or “gangs of thugs” assaulting others. This required the gendarmerie commander to
request reinforcements from Nsengiyumva. A military police and a fighter commando
platoon were each deployed as reinforcements.1203
Nsengiyumva Defence Witness CF-1
1081. Witness CF-1, a Hutu living in Gisenyi, stated that, around 8.10 a.m. on 7 April 1994,
he passed the Gisenyi market place and the bus station on his way to work. The streets were
unusually empty. No shops were open at the market, and there were no vehicles at the bus
station. People had been instructed to stay at home. He did not later learn of a meeting there
between 8.00 and 9.00 a.m. where weapons were distributed. The witness left work around
2.00 p.m. and arrived home at approximately 2.30 p.m. He did not hear any megaphone
announcement for a meeting, did not see a meeting taking place at the market between 4.00
and 6.00 p.m., and did not observe the distribution of grenades. Furthermore, he never
learned of this having taken place.1204
1082. The witness was a neighbour of Witnesses OAB and OAF. Witness OAB was in his
home when the witness left his own house around 8.00 a.m. Witness OAB could not have
attended a meeting at the bus station in the afternoon of 7 April, because the two were
1199
T. 28 February 2006 pp. 4, 6-7, 12-16, 34-35, 47-48, 53-54; Nsengiyumva Defence Exhibit 143 (personal
identification sheet). Witness STAR-2 admitted that it was possible that the meeting took place on 8 April rather
than 7 April 1994, as the lapse of time made it difficult to remember precise dates. T. 28 February 2006 p. 54.
MULPOC refers to Multinational Programming and Operational Centre of Economic Commission for Africa.
1200
T. 4 July 2006 pp. 3-6; Nsengiyumva Defence Exhibit 198 (personal identification sheet).
1201
T. 13 October 2006 pp. 51, 53-55; Nsengiyumva Defence Exhibit 226 (personal identification sheet).
1202
T. 19 April 2005 pp. 2, 9-10; Nsengiyumva Defence Exhibit 73 (personal identification sheet).
1203
T. 19 April 2005 pp. 10-11, 32-33.
1204
T. 29 November 2005 pp. 3, 6, 12-14, 29-30, 32, 40-41; Nsengiyumva Defence Exhibit 125 (personal
identification sheet).
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together from 2.30 p.m. to 7.30 p.m., attending prayer services at 3.30 p.m., shortly after 6.00
p.m. and around 7.00 p.m.1205
Nsengiyumva Defence Witness CF-2
1083. Witness CF-2, a Hutu member of the CDR party in Gisenyi, testified that shortly after
8.00 a.m. on 7 April 1994, he passed by the Gisenyi market and bus station on his way to
work. There were possibly five people in front of the market, but no vehicles there or at the
bus station. The witness did not observe Nsengiyumva, any soldiers, or a meeting at the
market. Neither did he hear of a meeting there between 8.00 and 9.00 a.m. or Nsengiyumva
distributing weapons.1206
1084. The witness left work to attend the mosque around 12.30 p.m., returning home at 1.00
p.m. He did not hear any public announcement urging people to attend a meeting around 4.00
p.m. Witness CF-2 had no knowledge of a meeting taking place around that time at Gisenyi
market where Nsengiyumva addressed a large portion of the Gisenyi population. He did not
hear about the distribution of weapons to cellules after such a meeting.1207
Nsengiyumva Defence Witness CF-4
1085. Witness CF-4, a Hutu who lived in Gisenyi town, was at home on 7 April 1994 and
did not see or hear of meetings being held at Gisenyi market place, either in the morning
between 9.00 and 10.00 a.m. or from 4.00 to 6.00 p.m. He also did not hear a loudspeaker
announcement calling for a meeting of Gisenyi residents in the afternoon on that day.1208
Nsengiyumva Defence Witness BZ-3
1086. Witness BZ-3, a Hutu, lived in Gisenyi town in the vicinity of the market and the bus
station. At approximately 8.00 a.m. on 7 April 1994, she heard on the radio that President
Habyarimana had died. Between 8.00 a.m. and noon, she was at neighbours’ houses to
discuss what happened.1209
1087. The witness did not observe a meeting at the Gisenyi market between 8.00 a.m. and
noon on 7 April. She stayed in the immediate vicinity of her house, visiting three neighbours.
The bus station was empty. She did not see Nsengiyumva there or any meeting involving
him, soldiers and civilians where weapons were distributed. There was no meeting at the bus
station between 4.00 and 6.00 p.m. She did not hear a megaphone announcement around 2.00
p.m. of a meeting being held at the bus station.1210
1205
T. 29 November 2005 pp. 4, 30-32, 41-43.
Id. pp. 48, 59-61; T. 30 November 2005 pp. 3-4, 15; Nsengiyumva Defence Exhibit 127 (personal
identification sheet). Witness CF-2 did not observe a meeting at the MRND office, which he passed on his way
to work, nor did he later hear that one took place there between 6.00 and 8.00 a.m and attended by Nsengiyumva
and many people. See T. 29 November 2005 p. 61.
1207
T. 29 November 2005 pp. 62-63.
1208
T. 14 February 2006 p. 61; T. 15 February 2006 p. 5; Nsengiyumva Defence Exhibit 135 (personal
identification sheet).
1209
T. 21 July 2005 pp. 53-57, 65-66; T. 22 July 2005 pp. 16-19, 24, 31-35; Nsengiyumva Defence Exhibit 95
(personal identification sheet); Nsengiyumva Defence Exhibit 97 (Sketch of Gisenyi town); Prosecution Exhibit
356 (Map of Gisenyi town).
1210
T. 21 July 2005 pp. 61, 67-70; T. 22 July 2005 pp. 8-12, 27. Witness BZ-3 explained that it was not possible
to see what was happening at the market or the bus station from outside the neighbours’ houses she visited. See
T. 22 July 2005 pp. 30-31.
1206
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Deliberations
1088. The Prosecution presented evidence of two meetings held in the area of the Gisenyi
market and bus station on the morning and afternoon of 7 April 1994. Witness OAF provided
the only first-hand account placing Nsengiyumva at the marketplace in the morning. He
allegedly observed him, in the company of four soldiers, off-loading boxes and later heard
from Hassan Gitoki that he had obtained a gun and grenades from these boxes. While the
witness observed Gitoki with a gun and grenades on 8 April, he did not see what was in or
done with the boxes the previous day, and his information as to their contents and what
occurred with them is second-hand.
1089. Witness OAB and Sagahutu did not attend the meeting or observe Nsengiyumva at
the marketplace on the morning of 7 April. Sagahutu learned from a priest that Nsengiyumva
held a rally where he urged Interahamwe to kill Tutsis and pledged to provide
reinforcements. It does not seem that Sagahutu’s source attended the rally.1211 Likewise,
Witness OAB only offered a second-hand account of a meeting during which Nsengiyumva
allegedly identified Tutsis as the enemy and called for night patrols. Neither of these two
witnesses appeared to have been informed that weapons were distributed during this event.
1090. Witness OAF’s account of what happened at the Gisenyi market, on the one hand, and
the testimonies of Witnesses OAB and Saguhutu, on the other, are different. In the
Chamber’s view, they are not mutually exclusive. However, the evidence in support of each
version is scant, and none of them are corroborated. Furthermore, it is the Prosecution case
that at roughly the same time in the morning as that rally, Nsengiyumva chaired two meetings
at the military camp (III.3.6.1) and Samvura’s residence (III.3.6.3), respectively. The
question arises whether Nsengiyumva could have been at each of these various locations.1212
Moreover, Witnesses CF-1, CF-2 and BZ-3 stated that the area was particularly empty at the
approximate time Witness OAF placed Nsengiyumva at the market. Nsengiyumva denied that
he chaired a meeting there. While the Defence evidence is inconclusive, the Prosecution
evidence fails to establish beyond a reasonable any that he participated in a meeting near the
Gisenyi market on the morning of 7 April 1994 where he distributed weapons and incited
those in attendance to kill Tutsis.
1091. The second meeting, held near the Gisenyi bus station in the afternoon of 7 April, was
only mentioned by Witness OAB. He was also the sole witness to testify that Lieutenant
“Nsegumurenye” delivered grenades to every cellule after the meeting. While his testimony
is first-hand, there are inconsistencies as to where he was, what he did, and what he observed
that day. For example, he stated on several occasions that while he passed Bernard
Munyagishari’s residence on his way to the border in the morning of 7 April, he never
1211
See T. 28 April 2004 p. 43 (“Q. … Now, did Mr. Ntagara tell you whether he, himself, attended this
meeting? A. I have told you that I did not ask him for clarification. I did not speak physically with Ntagara, and
we were on the phone together, so you can imagine what you can have in a telephone conversation at a time of
panic. You don’t ask for any of those details, and Ntagara was not an Interahamwe; he was a Tutsi priest who
was also being hunted down. He had parishioners and he had the information. …”).
1212
Also other aspects of the competing narratives – not necessarily proven beyond reasonable doubt – raise
questions. For example, Witness DO described Hassan Gitoki at the military camp that morning when weapons
were being distributed. Yet, Witness OAF suggests that Gitoki was with Nsengiyumva at the market around the
same time, receiving weapons.
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stopped there.1213 Yet he also said that he was present when Nsengiyumva distributed
weapons. The witness remarked that he would have been present because “he was one of the
leaders”, suggesting he was not simply passing by.1214 This incident is not reflected in his
prior statements to Tribunal investigators and is difficult to reconcile with other parts of his
evidence. He testified that he went directly to Goma, returned directly home, remained there
until 2.00 p.m., went to the mosque, and then continued to his neighbour’s house, to the
meeting near the Gisenyi town bus station between 4.00 and about 6.30 p.m., to his home to
eat, on night patrols, and finally to bed around midnight.1215
1092. The witness further provided three different estimates of when he brought Hassan
Gitoki to the Gisenyi military camp that day.1216 He explained that he had problems
remembering based on the lapse in time, and eventually suggested it occurred after the
afternoon meeting. Even though it is understandable that the witness may have had problems
recalling events from 1994, the Chamber notes that this explanation is inconsistent with his
testimony that he did nothing significant other than night patrols until he went to bed.1217
Moreover, in his statement to Tribunal investigators in January 2000, the first occasion the
witness describes driving Gitoki to the Gisenyi military camp is on 14 April, involving a
separate incident where Nsengiyumva allegedly distributed weapons to Gitoki.1218
1093. The Chambers certainly accepts that the passage of time may have impacted the
quality of Witness OAB’s testimony, but his inability to provide a coherent narrative of his
activities raises concerns about the reliability of his evidence absent corroboration. Witness
1213
See T. 24 June 2003 pp. 51-52 (“A. At Munyagishari’s house if I do recall, almost immediately after the
president’s death, there was a meeting. … I was just going by, I didn’t make a stop …”); T. 25 June 2003 p. 8
(“Q. So your testimony is, at 7:30 you got into your vehicle and drove direct to the border without stopping
anywhere? A. I did not stop.”); T. 25 June 2003 p. 15 (“Q. Witness, did you stop at Munyagishari’s house that
morning? A. No, I did not stop there. I was in a hurry, I was going, so I got my goods from the other side of the
border.”).
1214
T. 24 June 2003 pp. 52-55. The witness’s responses generally to questions regarding this event were at times
evasive and confusing. See, e.g., id. p. 52 (”Mr. President: The question was, who distributed the weapons? The
witness: Munyagishari was not a soldier. He merely received the weapons from the military commander on the
spot. Mr. President: The question relates to whether you saw anyone distribute weapons. The witness: Now,
let’s not dwell on this too long. Let me say that Hassan Gitoki told me to take him to the camp in the evening. I
went with Hassan to Nsengiyumva, Anatole, and Hassan Gitoki brought back four guns. So the ones that were
being distributed by Hassan Gitoki, where could he have gotten them from?”).
1215
T. 25 June 2003 pp. 8-9, 23-25. The witness also confirmed a prior statement to Tribunal investigators that
he observed Munyagishari kill Augustin Kalimunda on 7 April 1994 near the Edelweiss Hotel. T. 25 June 2003
p. 26; Nsengiyumva Defence Exhibit 22 (statement of 15 January 1999). This further confuses the testimony
about his activities on 7 April, as he was unable to place the event at a specific point in the day or reconcile it
with his other descriptions. See T. 25 June 2003 p. 26.
1216
T. 24 June 2003 p. 45 (“A. … Subsequently, Anatole Nsengiyumva organised another meeting at 5 p.m [on
7 April] and I attended the meeting and he repeated the same words. Shortly afterwards, Saad’s wife was
arrested with her husband. An Interahamwe member named Hassan Gitoki went to seek Anatole Nsegiyumva’s
assistance at the military camp. Since I had a vehicle, I drove Gitoki to the military camp and Anatole instructed
him to release the gentleman, but to do anything he wished to do to the woman.”) (emphasis added); T. 24 June
2003 pp. 55-56 (“Q. Sir, you spoke of an incident in which you drove Thomas and Gitoki to see Nsengiyumva;
is that correct? A. Yes, that is correct. Q. Do you recall when that was? A. That was on the day after the
president’s death. It was around 2.00 or 3.00 p.m.”) (emphasis added); T. 25 June 2003 p. 28 (“Q. Yesterday in
your testimony you told us that there’s a time that Saad’s wife was arrested, and you took Hassan Gitoki to the
military camp to see Anatole Nsengiyumva; is that correct? … A. Yes, I said so. Q. On 7th of April, is that
correct? A. Yes, in the morning.”) (emphasis added).
1217
T. 25 June 2003 pp. 25, 28-29.
1218
Nsengiyumva Defence Exhibit 23 (statement of 28 January 2000). See also T. 25 June 2003 pp. 30-31.
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CF-1, who testified that he spent the afternoon with Witness OAB, stated that Witness OAB
could not have attended a meeting at the bus station. Witnesses CF-2, CF-4 and BZ-3, who
were all within hundreds of metres from the bus station, denied hearing an announcement that
a meeting would be held that afternoon or that one occurred as alleged by Witness OAB.
Witness STAR-2 and Nsengiyumva suggested that the Accused was attending a meeting with
local officials in the relevant period. The Defence evidence is inconclusive. However, it
reinforces the Chamber’s doubt about Witness OAB’s uncorroborated evidence.1219
1094. The Chamber finds that it has not been proven beyond reasonable doubt that
Nsengiyumva held a meeting on the afternoon of 7 April 1994 where he incited those in
attendance to kill Tutsis, or that he was involved in the subsequent delivery of grenades
through a lieutenant.
1095. During the trial, the Chamber determined that Nsengiyumva had sufficient notice of
the allegations.1220 Based on the findings above, it will not revisit its prior finding.
3.6.3
Barnabé Samvura’s House, 7 April
Introduction
1096. The Nsengiyumva Indictment alleges that, on 7 April 1994, Nsengiyumva chaired
meetings where he ordered militiamen to kill the Tutsis. At one of them, he designated “a
specific location where a Tutsi family had sought refuge”. Referring to Witnesses ABQ, OQ
and DO, the Prosecution submits that on that morning, Nsengiyumva led a meeting at the
house of Barnabé Samvura, a senior official within the CDR party. There he allegedly
distributed weapons and singled out Tutsis, including the Gasake family and Mbungo, who
were subsequently killed by the Interahamwe.1221
1097. The Nsengiyumva Defence argues that the distribution of weapons and the killing of
the Gasake family are not pleaded in the Indictment. Furthermore, the Prosecution evidence
is inconsistent and unreliable. Reference is made to Witnesses ABC-1, WIN-1, CF-2 and CF4.1222
1219
Witness STAR-2 stated that the meeting occurred at MULPOC, while Nsengiyumva testified that he
attended a meeting at the prefecture office.
1220
Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 38-40, 60-62.
1221
Nsengiyumva Indictment para. 6.16; Prosecution Closing Brief, paras. 48, 85, 104-105, 439, 449-450,
1035(c), 1040(c), 1064-1067, 1513, 1514(a-c), pp. 879-881; T. 28 May 2007 pp. 15-16.
1222
Nsengiyumva Closing Brief, paras. 52(b), 234-245, 573, 660-661, 666, 676-678, 893-938, 1052, 1197, 1547,
1700-1750, 2007, 2077, 2086, 2089, 2281, 2289, 2297, 2306-2307, 2314, 2636, 2650, 2661, 2765-2786, 27902807; T. 31 May 2007 pp. 22-24. The Nsengiyumva Defence also points to evidence that he provided assistance
to members of the families he allegedly singled out for attack. See Witness RN-1, T. 13 February 2006 pp. 57,
75-77, 83 (Nsengiyumva discussed assisting Mbungo’s and Mukabutare’s daughters cross the border); Witness
STAR-2, T. 28 February 2006 pp. 31-34 (Nsengiyumva knew that the witness had provided refuge to
Mukabutare’s and Mbungo’s daughters; Nsengiyumva provided his vehicle to assist in their evacuation to
Zaire).
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Evidence
Prosecution Witness ABQ
1098. Witness ABQ, a Hutu visiting Gisenyi town in April 1994, testified that, on 7 April
1994 around 6.00 a.m., he heard on the radio that the President’s plane had been shot down.
One and a half to two hours later, he went to see Barnabé Samvura, the head of the CDR’s
Impuzamugambi in Rubavu commune, to gather more information. Sometime before noon,
the witness saw about 20 Interahamwe and CDR members gathered outside Samvura’s house
in Majengo cellule, including Bufenge from Byahi sector. Many had spears, machetes,
swords and clubs. Inside the compound was Nsengiyumva and approximately 10 others,
including Barnabé Samvura, Bernard Munyagishari, Hassan Sibomana, who was the Byahi
sector’s conseiller, and Hassan Gitoki, the leader of the Interahamwe in that cellule. The
witness stood approximately three metres from Nsengiyumva, who was wearing a military
uniform and had two military escorts with him. Three soldiers were also among the crowd.
Neither Faziri Hakizimana nor Hassan Ngeze attended the meeting.1223
1099. Addressing all who had gathered, Nsengiyumva said: “You know who has killed our
president. It is the Inyenzi, and they have many accomplices amongst us. In other words, each
Hutu must stand up and defend him or herself quickly, because if you lose time, they are
going to exterminate us in the same way as they killed the President of the Republic.”
Holding a small piece of paper in his hand, he continued: “There are important Inyenzi who
should not be spared” and he appeared to read names off the paper. Nsengiyumva listed
Mbungo, a Tutsi who lived behind Samvura’s residence, Segahinda, a Tutsi working at
Bralirwa, Modeste Tabaro, the leader of the PL party, Bwanafeza, a prominent Tutsi trader in
Gisenyi, Mukabutare, a prominent business woman in Gisenyi, and a man called Gasake, the
son of an Inkotanyi who was Samvura’s neighbour. The Interahamwe and Impuzamugambi
asked for weapons and Nsengiyumva pledged to provide them. After the meeting, he left the
compound in his car, a khaki-coloured Pajero, heading in the direction of Gisenyi town. The
witness, who arrived at the meeting as it was coming to a close, did not see him distribute any
weapons.1224
1100. Immediately after the meeting, the Interahamwe and Impuzamugambi organised
themselves into groups of at least three persons and commenced attacks. Witness ABQ first
observed an attack on the Mbungo compound. Some of the assailants were among those who
had assembled outside Samvura’s compound. The attackers forced open the gate and broke
through a metal door into the house. They were armed with machetes, clubs and spears, and
Bufenge was armed with a rifle. Remaining on the road, the witness heard gunshots and the
assailants saying that Mbungo had been hiding in the ceiling in his house, and that his wife
and children had fled. The attack lasted for about 20 minutes. Mbungo’s body was loaded
1223
T. 6 September 2004 pp. 3-6, 44-47; T. 7 September 2004 pp. 13-14, 20-21, 31-32; T. 8 September 2004 pp.
31-33, 52, 56-57; T. 9 September 2004 pp. 5, 7; Prosecution Exhibit 293 (personal identification sheet). Witness
ABQ stated that two of the soldiers were called “Jeff”, a commando instructor at Bigogwe, and “Regis”, a
soldier from Butotori. They were not in uniform. T. 6 September 2004 pp. 6, 47; T. 8 September 2004 pp. 3132. These soldiers did not participate in the attacks in the neighbourhood, but the witness believed that they
went into town and participated in other attacks. T. 6 September 2004 pp. 47-48.
1224
T. 6 September 2004 pp. 6-8, 47-48; T. 7 September 2004 pp. 13-20; T. 8 September 2004 p. 32.
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onto a vehicle headed to the Commune Rouge. No one who was inside Samvura’s compound
during the meeting participated in this attack.1225
1101. The attackers left for the Gasake house, while others remained to loot Mbungo’s
residence. Standing roadside, Witness ABQ observed Gasake’s son, Cyuma, a money
changer, be taken out of his house and beaten with sticks and the flat side of machetes. The
assailants led him away, saying that the bourgmestre wanted to speak with him at the
Commune Rouge. The witness did not see Cyuma again. Gasake’s daughter, who was
pregnant, and his son, Tutu, were also brought out of the house. Several assailants killed the
daughter in Gasake’s banana plantation behind the house, using machetes, spears and clubs.
After a small hole was dug in the plantation, her body was deposited in it and covered with
dirt. Tutu had been led out of the house shortly after his sister and killed. The witness could
not recall whether Tutu was killed instantly or later at the Commune Rouge. Again, no one
who had been inside Samvura’s compound during the meeting participated in this attack.1226
1102. Witness ABQ also saw an attack against the house of a teacher named Biruru in the
same cellule that day. He was stabbed with a spear and taken to the Commune Rouge in a
Toyota Hilux.1227
Prosecution Witness OQ
1103. On the morning of 7 April 1994, Witness OQ, a student living in Gisenyi, heard the
radio announcement that President Habyarimana was dead and that people should not move
around. The witness went outside and saw a number of persons, wearing the uniforms of
Interahamwe and Impuzamugambi, enter Barnabé Samvura’s compound at approximately
9.00 a.m. He recognised individuals from both groups. There were prominent members of the
Interahamwe present, but he did not know their names. Standing at the road across from
Samvura’s compound, the witness observed that those who had gathered inside the
compound were armed with machetes, clubs and hoes. Nsengiyumva arrived in a military
jeep, parking the vehicle inside the premises. The witness did not see any other soldiers than
Nsengiyumva.1228
1104. Through a barbed wire fence, the witness observed that the group convened outside
Samvura’s house. People unloaded grenades from Nsengiyumva’s vehicle and distributed
them to those who had gathered inside the compound. They were in a green military cloth
bag, and one grenade fell to the ground. Nsengiyumva, who was accompanied by Faziri, the
conseiller of Gisenyi, took out a piece of paper and said the Gasake family name.1229 Upon
1225
T. 6 September 2004 pp. 8-9; T. 7 September 2004 pp. 20-22, 25-27, 31.
T. 6 September 2004 pp. 9-11; T. 7 September 2004 pp. 26-31, 34-35.
1227
T. 6 September 2004 p. 8; T. 7 September 2004 pp. 35-36. The Chamber has also considered Witness
ABQ’s evidence concerning attacks on the house of a teacher called Mudenge, an attack against Caritas’s house,
an attack against the house of a man named Rukanya, and the killing of Samuel Bimenyimana, or “Bembe”, by
Thomas, as well as the alleged protection Nsengiyumva provided to Thomas. T. 6 September 2004 pp. 8, 19-20;
T. 7 September 2004 pp. 35-37; T. 8 September 2004 pp. 29-30, 54-55; Prosecution Closing Brief, para. 1514(j).
The evidence is insufficient to make a finding.
1228
T. 16 July 2003 pp. 4, 9-12, 14-15, 20-21, 36-37, 39, 41-44, 46-47; T. 18 July 2003 p. 5; Prosecution Exhibit
82 (personal identification sheet). When discussing the timing of his observations of the gathering, Witness OQ
stated that “all these events occurred between 9 and 10 a.m.” It appears that the word “events” referred to the
gathering at Samvura’s house and not necessarily the ensuing attack. See T. 16 July 2003 pp. 36-37, 39.
1229
Witness OQ originally testified that Nsengiyumva announced the names of three households who were
eventually massacred but later said he only heard Nsengiyumva say the Gasake family name. See T. 16 July
2003 p. 22; T. 18 July 2003 pp. 6-7, 12.
1226
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hearing this, the witness immediately ran to the Gasake family house to warn them about
what he had seen.1230
1105. Once the weapons had been distributed, Nsengiyumva drove close to the Gasake
house with Faziri and pointed in its direction. The Interahamwe and Impuzamugambi
whistled and ran towards it. Members of the Gasake family remained in their house, but
Witness OQ fled with a boy. The Interahamwe caught the boy and cut him with machetes.
The witness did not see this as he continued to run, nor did he observe the killing of the
Gasake family. He later learned that six of them had died.1231
Prosecution Witness DO
1106. Witness DO, a Hutu living in Gisenyi prefecture near the military camp, heard from
Kiguru and Agronome that around 7.00 a.m. on 7 April 1994, a meeting occurred at Barnabé
Samvura’s house in Majengo. The participants devised a strategy to avenge the death of
President Habyarimana, which they suspected had been killed by the Inkotanyi. The witness
had no knowledge of who attended this meeting other than Kiguru and Agronome.1232
Nsengiyumva
1107. Nsengiyumva denied allegations that he attended a meeting at Barnabé Samvura’s
house on the morning of 7 April. He said that he had never been there and questioned the
reliability of all the Prosecution evidence, suggesting that the testimonies of Witness ABQ
and OQ were fabricated. Given his position within the military in 1994, Nsengiyumva would
not have carried and distributed grenades. He said that grenades would not have been carried
loosely in a bag, given the obvious risks, but would be transported in boxes. Furthermore, he
would not have been alone at such a meeting but accompanied by bodyguards, and he would
not have been carrying grenades.1233
Nsengiyumva Defence Witness WIN-1
1108. Witness WIN-1, a Tutsi living in Gisenyi, testified that, on the morning of 7 April
1994, the Gasake family home was attacked by Interahamwe from Byahi using clubs,
machetes and sticks. The witness, who was standing outside during the attack, saw
Espérance, a member of the Gasake family, being killed outside her home. At a distance of
about 50 to 60 metres, she observed Espérance, who was pregnant, being clubbed over the
head and struck in her stomach with a machete. Fearing for her safety, the witness
immediately returned to her home. The attackers also pursued Espérance’s brother, Cyuma.
He sought refuge in a house close to the witness’s but was caught and led away to be killed.
The witness heard attacks going on inside the Gasake house and later learned that other
members of the family were killed. She did not hear guns or grenades during the attack. The
1230
T. 16 July 2003 pp. 10, 12-14, 22-24, 42; T. 18 July 2003 pp. 3-8. Witness OQ provided a sketch to
demonstrate his vantage point. Prosecution Exhibit 87 (Sketch of Samvura’s compound and surrounding area).
1231
T. 16 July 2003 pp. 14-15, 23-24, 27-28, 48; T. 18 July 2003 pp. 9, 12-13. Members of the Gasake family
that were killed included Ancille Mukamuganga, Domine Uwamariya, Espérance Nyiramanzi, Jean-Baptiste
Ruvuzacyuma, Tharcisse Semuhinzi, and Domine’s son Yves Iradukunda. Gasake family members that survived
were Tharcisse Gasake, Hussein Twagira, Jean-Claude Safari and two children of Domine, called Yvette
Uwamariya and Pauline Nsengiyumva. T. 16 July 2003 pp. 3-4; Prosecution Exhibit 83 (list of Gasake family
members).
1232
T. 30 June 2003 pp. 3-4, 67, 69, 79, 85; Prosecution Exhibit 61 (personal identification sheet).
1233
T. 9 October 2006 pp. 17-21; T. 18 January 2007 pp. 7-9.
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witness did not see Nsengiyumva, military personnel or a vehicle present during the
attack.1234
1109. The witness was not aware of a meeting at Barnabé Samvura’s house on the morning
of 7 April, nor did she learn of weapons, including grenades, being distributed to youth prior
to the attack on the Gasake residence. She was unaware of Nsengiyumva being present at
Samvura’s house that day. The witness confirmed that the fence surrounding Barnabé
Samvura’s house was made of barbed wire and bamboo. However, it would have been very
difficult for an observer to see into the compound from the roadside.1235
1110. Mbungo was killed by the same Interahamwe from Byahi one week after the genocide
began. On the day he was killed, she encountered one of her own house staff, who indicated
that Mbungo had been taken out of his house and killed in a ditch. Her servant was returning
with items looted from Mbungo’s residence after the killing.1236
Nsengiyumva Defence Witness ABC-1
1111. Witness ABC-1, a Hutu living in Gisenyi prefecture, was in Barnabé Samvura’s house
on the night of 6 to 7 April 1994. Samvura returned to his home around midnight, visibly
intoxicated. The witness informed him of the President’s death. Samvura appeared surprised,
but given his state he went to bed and did not leave his home that evening. The next morning,
Samvura left for work at 6.35 a.m. Because he was involved in production at the Bralirwa
brewery, he explained that he needed to keep up production in this state of crisis. He returned
around 3.30 p.m., without returning home in that period. No meeting involving
Nsengiyumva, CDR members, Interahamwe and other political leaders was held at
Samvura’s house on the morning of 7 April. She did not see Nsengiyumva reading out a list
of Tutsis to be killed and distribute grenades to CDR youth and Interahamwe.1237
1112. The witness was a neighbour of the Gasake family and learned that Mrs. Gasake and
her two daughters, Domina and Espérance, were killed by civilians from Byahi on 7 or 8
April. She did not observe the killings. During a recent Gacaca proceeding, which she
attended, a man called Jean Baptiste Ndimubanzi admitted to participating in the Gasake
attack and looting a cupboard from the residence. This man did not implicate Nsengiyumva
in the attack. Mbungo was killed after the Gasake family attack but not on the same day.1238
Nsengiyumva Defence Witness CF-2
1113. Witness CF-2, a member of the CDR in Gisenyi, attended all meetings held at the
prefectoral level at that time. He knew Barnabé Samvura, the vice-chairman of the CDR at
1234
T. 13 March 2006 pp. 24, 28-31, 33-34; T. 14 March 2006 pp. 36-40, 43-45; Nsengiyumva Defence Exhibit
154 (personal identification sheet). Witness WIN-1 identified Ancille, Uwamariya, Twagira, Espérance, Cyuma,
Kabiligi (or Mubiligi), and the children of Uwamariya as living in the Gasake house in April 1994. T. 13 March
2006 p. 28. She believed that “Tutu” was one of the grandchildren in the family. T. 14 March 2006 p. 45. The
son of Witness WIN-1’s husband pleaded guilty to having taken part in the Gasake household attack and
participating in the killing of Espérance. T. 13 March 2006 pp. 26, 29-30; T. 14 March 2006 p. 36;
Nsengiyumva Defence Exhibit 158 (Name of Mr. X, 14 March 2006).
1235
T. 13 March 2006 pp. 31-34.
1236
Id. pp. 32-33; T. 14 March 2006 pp. 42-43.
1237
T. 13 June 2006 pp. 4, 9-12, 16, 18-19, 22, 26-27; Nsengiyumva Defence Exhibit 185 (personal
identification sheet). Witness ABC-1 denied that Bernard Munyagishari, Sibomana, Raphael Bikumbi,
Conseiller Faziri Hakizimana, Hassan Ngeze, Nyabuhinda or Rwagafilita came to Samvura’s residence on 7
April. See T. 13 June 2006 pp. 13-14, 27.
1238
Id. pp. 12-13, 16-19.
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the prefectoral level and denied that any meeting took place at Samvura’s house on 7 April
1994 between 9.00 and 10.00 a.m. Samvura did not have the authority to convene such a
meeting without informing Witness CF-2. If such a meeting had occurred, the witness would
have known.1239
1114. A neighbour of the Gasake family told the witness that members of that family,
including the father, his daughter and son, were killed in an attack on the evening of 7 April.
It was carried out by “jobless civilians”, including individuals by the name of Selemani and
Safari. Nsengiyumva was not mentioned in connection with these killings.1240
Nsengiyumva Defence Witness CF-4
1115. Witness CF-4, a Hutu member of the CDR party, did not attend a meeting at Barnabé
Samvura’s house on the morning of 7 April 1994, noting that meetings were organised at the
CDR office. He denied that a meeting occurred where Nsengiyumva ordered CDR militia and
Interahamwe to kill Tutsi. Had a meeting been held, the witness would have been invited,
given his position in the party. Neither Nsengiyumva nor soldiers were affiliated with the
CDR. Nsengiyumva did not have a working relationship with the CDR, did not attend CDR
rallies and the witness never saw Samvura and Nsengiyumva together.1241
Deliberations
1116. There is no dispute that members of the Gasake family were attacked and killed on 7
April 1994, and that an additional attack was carried out against the Mbungo family. The
question is whether Nsengiyumva chaired any meeting at Barnabé Samvura’s residence
before these attacks, at which he instructed attendants to kill Inyenzi. It is also disputed
whether he distributed weapons.
1117. Witnesses ABQ and OQ described a meeting inside Samvura’s compound on the
morning of 7 April, involving Nsengiyumva, Interahamwe and Impuzamugambi.
Nsengiyumva, holding a piece of paper, appeared to read names from it, including Gasake’s,
which prompted attacks by the Interahamwe and Impuzamugambi in attendance immediately
after. The testimony of Witness DO regarding this meeting is hearsay and lacks significant
detail. It therefore fails to provide corroboration.
1118. No previous statements provided by Witness OQ were introduced. Witness ABQ’s
prior interview is generally consistent with his trial testimony. However, he was confronted
with his statement to Tribunal investigators in July 2003, according to which he could not
remember whether Gasake’s name was among those Nsengiyumva read from the list.1242 The
witness explained that he had forgotten but later remembered that the name had been
mentioned.1243 The Chamber accepts this explanation. According to the statement, the six
names mentioned by the witness were not comprehensive, as Nsengiyumva purportedly read
out more than 10. Furthermore, the document describes that the attack against Gasake’s
1239
T. 29 November 2005 pp. 48-49, 65, 75, 79; Nsengiyumva Defence Exhibit 127 (personal identification
sheet).
1240
T. 29 November 2005 pp. 65-67; T. 30 November 2005 p. 1.
1241
T. 14 February 2006 pp. 62, 74-75; Nsengiyumva Defence Exhibit 135 (personal identification sheet).
1242
T. 7 September 2004 pp. 15-16; Nsengiyumva Defence Exhibit 54B (statement of 17 July 2003), p. 5:
“Mbungo’s name appeared among the names on the list Nsengiyumva had at Barnabé’s house, but I do not
remember if he called Gasake’s name.”
1243
T. 7 September 2004 p. 16.
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house took place immediately after the meeting, which is materially consistent with his
testimony and bolsters his evidence in this trial that the Gasake family was identified prior to
the attack.1244
1119. Another discrepancy is that Witness ABQ testified that he was unsure if he observed
the killing of his friend, Tutu, or if he was taken to the Commune Rouge.1245 According to his
prior statement, he saw Tutu killed with machetes in the banana grove.1246 He explained that
the inconsistency arose because he provided the statement in French, which is not his first
language. He reiterated that he was not sure if he witnessed the killing.1247 Assuming that the
witness observed these events, the Chamber finds his explanation regarding the
mistranslation reasonable. The statement provides only a general description of what
happened to Tutu and his sister, and the error may have resulted from lack of further
clarification. Given the traumatic nature of the events, the witness’s inability to recall
whether he observed first-hand his friend’s killing is reasonable.
1120. There are, however, differences between the testimonies of Witnesses ABQ and OQ.
First, Witness ABQ testified that Nsengiyumva was accompanied by two military escorts and
that three other soldiers were amongst the gathering, while Witness OQ saw no soldiers other
than Nsengiyumva. Second, Witness OQ described grenades being off-loaded from
Nsengiyumva’s vehicle and distributed, while Witness ABQ denied observing Nsengiyumva
distribute grenades. Indeed, Witness ABQ testified that those in attendance asked for
weapons and that Nsengiyumva only pledged to provide them. Third, Witness ABQ’s
evidence shows a division among the congregants, with prominent political figures and local
government officials inside the compound and militiamen positioned outside. Witness OQ,
on the other hand, placed everyone, including the militiamen, inside Samvura’s compound
and questioned how anyone could receive instructions if they had been outside it. Fourth,
Witness ABQ denied that conseiller Faziri Hazikimana was in attendance, while Witness OQ
repeatedly mentioned him accompanying Nsengiyumva. Fifth, Witness ABQ testified that
Nsengiyumva departed after the meeting, heading towards Gisenyi town, whereas Witness
OQ described him driving towards the Gasake residence immediately prior to the attack on it.
Finally, Witness ABQ’s description suggests that attackers first went to the Mbungo
compound, while Witness OQ only describes an attack on the Gasake residence.
1121. Some, but not all, of these discrepancies could result from each witness’s distinct
positioning, the timing of their observations and the passage of time. Witness ABQ noted his
late arrival to the meeting, creating the possibility that he missed the weapons distribution.1248
Witness OQ’s observations could have been limited because he fled to the Gasake residence.
Their evidence that an attack occurred on the Gasake family residence on the morning of
7 April is corroborated by the first-hand account of Witnesses WIN-1 and ABC-1.1249
1122. The Defence argues that Witnesses ABQ and OQ did not observe this event.
Witnesses ABQ, WIN-1, ABC-1 and CF-2 testified that Witness OQ was not in Gisenyi in
1244
Nsengiyumva Defence Exhibit 54B (statement of 17 July 2003), pp. 4-5.
T. 6 September 2004 p. 10; T. 7 September 2004 pp. 29-30, 35.
1246
Nsengiyumva Defence Exhibit 54B (statement of 17 July 2003), p. 5.
1247
T. 7 September 2004 pp. 30-31.
1248
Id. pp. 20-21.
1249
Witness CF-2 also testified that he had heard that members of the Gasake family were killed on 7 April
1994, but he was told that the attack occurred in the evening.
1245
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April 1994.1250 Moreover, Witness ABQ’s alleged relationship with Samvura, which
presumably offered him the opportunity to be within Samvura’s compound that day, is
disputed by Witness ABC-1.1251 The Chamber notes that, notwithstanding his purported
relationship with Samvura, Witness ABQ did not know where Samvura was when he
testified.1252
1123. Nsengiyumva, members of the CDR party, such as Witnesses CF-2 and CF-4, and
Witness ABC-1, who was in Samvura’s residence that morning, denied that a meeting
occurred there. Witness ABC-1 testified that Samvura left for work at 6.30 a.m. and denied,
as did Nsengiyumva, that Nsengiyumva had ever been to that residence. Moreover, Witnesses
WIN-1 and ABC-1 testified that the Gasake family were killed by individuals who had come
from Byahi.1253 In the Chamber’s view, these testimonies carry limited weight as they had a
clear interest in denying that the meeting took place, given their party affiliations or
connections to the actors in the event.
1124. The Defence refers to two statements of a deceased witness, which were introduced
by Nsengiyumva.1254 They purportedly show that Colonel Rwagafilita was initially identified
as leading this meeting, whereas Nsengiyumva only was implicated after Rwagafilita died
and could not be prosecuted.1255 The Chamber finds little merit in this argument. The first
statement, a Pro Justitia declaration to Rwandan authorities in June 1995, focused on
Rwagafilita, who was simply described as one of “those engaged in the conversation” in
connection with a brief reference to the meeting at Samvura’s house. The second statement,
given to Tribunal investigators in June 1996, deals with Nsengiyumva and describes his role
and utterances urging attendants to kill.1256
1125. The meeting at Samvura’s house also formed part of the Nahimana et al. trial, where
Witness EB in that case testified against Hassan Ngeze. The Defence argues that
Nsengiyumva was not mentioned as being involved in the meeting during the proceedings in
that case.1257 In the Chamber’s view, this evidence possesses minimal probative value and
fails to raise reasonable doubt on its own.
1126. Nonetheless, the Chamber’s maintains its concerns regarding the reliability of the
Prosecution evidence. There is doubt as to the presence of Witnesses ABQ and OQ in the
vicinity of the meeting, which is amplified by various inconsistencies in relation to evidence
1250
See Witness ABQ, T. 7 September 2004 pp. 7-9; Witness WIN-1, T. 13 March 2006 p. 28; T. 14 March
2006 pp. 43-44; Witness ABC-1, T. 13 June 2006 p. 18; Witness CF-2, T. 29 November 2005 p. 67.
1251
Witness ABC-1, T. 13 June 2006 pp. 6-8.
1252
T. 9 September 2004 p. 5. Evidence in the record suggests that Samvura died in 1996. See Witness ABC-1,
T. 13 June 2006 p. 3.
1253
The Chamber notes that Witness ABQ mentioned that an Interahamwe from Byahi, called Bufenge,
participated at the meeting at Samvura’s house and the subsequent attacks. T. 6 September 2004 pp. 9, 47.
1254
The statements were taken by the Prosecution, who did not tender them because the witness had died. The
Prosecution did not object to their admission. T. 16 January 2007 pp. 12-14.
1255
T. 9 October 2006 p. 19; T. 18 January 2007 pp. 8-9.
1256
Nsengiyumva Defence Exhibit 261 (statement of Witness OE, 18 June 1996); Nsengiyumva Defence
Exhibit 262 (Pro Justitia statement of Witness OE, 12 June 1995).
1257
T. 9 October 2006 p. 18; T. 18 January 2007 p. 7; Nahimana et al. Trial Judgement, paras. 789-790, 812,
836 (summarising Witness EB’s evidence and findings related to a meeting at Samvura’s residence and attacks
on 7 April 1994). The Appeals Chamber subsequently rejected Witness EB’s trial testimony to the extent it was
not corroborated because evidence obtained after the trial suggested that he had recanted his trial testimony and
that “genocide survivors consider [Witness EB] ready to do anything for money”. See Nahimana et al. Appeal
Judgement, para. 466.
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that directly implicates Nsengiyumva in this event. Thus, the Chamber is not convinced
beyond reasonable doubt that Nsengiyumva chaired a meeting at Barnabé Samvura’s house,
where he identified victims from a list to be attacked and distributed weapons to attackers.
1127. The Defence reiterates its objection that the Indictment does not provide sufficient
notice about this incident. The Chamber has previously found that it was sufficiently
pleaded.1258 In view of its above finding, there is no need to revisit this issue.
3.6.4
Witness OC’s Husband, 7 April
Introduction
1128. The Nsengiyumva Indictment alleges that, on the afternoon of 7 April 1994,
Nsengiyumva ordered “a Tutsi man, his wife and their children” to get into the back of a
truck. When the man and his sons refused, militiamen accompanying Nsengiyumva killed the
man and seriously wounded his son with machetes while the Accused did nothing to prevent
or stop the attack. The Prosecution submits that the “Tutsi man” was the husband of Witness
OC, who explained that the event occurred in Gisenyi town and that the assailants included
both soldiers and militiamen.1259
1129. The Nsengiyumva Defence submits that this allegation in the Indictment is vague and
fails to give proper notice of the identity of the victims and the assailants and the time as well
as the location of the crime. It argues that Witness OC is not credible, particularly her
identification of Nsengiyumva. Her testimony is also contradicted by Witnesses Alphonsine
Rugwizangoga Uwase, DEF-1, DEF-2 and STAR-2.1260
Evidence
Prosecution Witness OC
1130. Witness OC, a Tutsi resident of Gisenyi town, testified that on 7 April 1994, around
5.00 p.m., a soldier wearing a khaki-coloured beret came to her home and asked to know who
had killed President Habyarimana. Her Tutsi husband fled the house with a Tutsi visitor,
called Rose. About 10 minutes later, more than five soldiers returned with her husband. They
took the witness, her husband, two sons and daughter to a location, which was 10 to 15
minutes walk away. Other soldiers, wearing khaki and black berets, were gathering Tutsi
civilians. One of the soldiers demanded money from the husband and another injured her
daughter with a bayonet. After receiving money, the soldiers said: “Go away; others will take
care of killing you.”1261
1131. The witness and her family began walking home. At around 6.00 p.m., they
encountered a Toyota pickup truck, at a place called Gikarani. The truck was carrying
1258
Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 22, 24-25, 38-40.
1259
Nsengiyumva Indictment, para. 6.17; Prosecution Closing Brief, paras. 106, 440, 459, 1459-1462, p. 881; T.
28 May 2007 pp. 15-16.
1260
Nsengiyumva Closing Brief, paras. 749-802, 1055, 1198, 1939, 2001-2004, 2124, 2129, 2222, 2838-2857;
T. 31 May 2007 pp. 54-55.
1261
T. 9 June 2004 pp. 51-54, 62-68; T. 10 June 2004 pp. 9-10, 18, 20, 22-23; Prosecution Exhibit 260 (personal
identification sheet). Witness OC stated that Rose was killed after the event on 7 April 1994, without elaborating
on the circumstances of her death. See T. 10 June 2004 p. 15. The names of Witness OC’s family members are
listed in Prosecution Exhibit 261.
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soldiers and Interahamwe. They were wearing dried banana leaves on their heads.
Nsengiyumva got out of the passenger seat and said: “These little people, where are they
coming from?” He then ordered the witness and her family into the truck. The witness and
her daughter did so, but her two sons fled. One of them escaped but the Interahamwe and
soldiers threw stones at her younger son and began hitting him with a machete. The husband
hesitated to enter the vehicle and was attacked with machetes. The assailants then told the
witness and her daughter to get out of the truck, and they ran home. Her younger son was
cared for by a guard, and he returned the next morning. The witness never saw her husband
again.1262
Nsengiyumva
1132. Nsengiyumva did not dispute that Witness OC’s husband was killed. However,
neither he nor his soldiers played any role in the attack. At the time when the witness claimed
he was killed, Nsengiyumva was attending a prefecture security council meeting between
approximately 4.00 and 6.00 p.m. He did not travel through the neighbourhood mentioned by
the witness because it was not on the way between the prefect’s office and the military camp.
The description of the assailants wearing banana leaves and using traditional weapons to
attack the husband clearly indicated that they were not soldiers. Nsengiyumva added that on
7 April 1994, he had a beige two-door Mitsubishi Pajero vehicle with official plates. He only
began driving a Toyota pickup truck after Belgian soldiers left it at Gisenyi airport on 13
April.1263
Nsengiyumva Defence Witness DEF-1
1133. Witness DEF-1, a Tutsi, was staying in Gisenyi town in April 1994 with his uncle,
who lived near Witness OC. Around 2.00 p.m. on 7 April, a group of more than 15
Interahamwe, armed mainly with traditional weapons, arrived in their neighbourhood and
forced everyone to come out of their houses and stand by the roadside. The witness saw
another group of 20 to 25 Interahamwe make Witness OC and her family leave their nearby
home. One of them shot Witness DEF-1’s aunt because she refused to have sex with him. The
Interahamwe then forced Witness DEF-1, Witness OC’s husband and six others onto their
Daihatsu pickup truck. They arrived at the Commune Rouge, a cemetery, between 3.30 and
4.00 p.m. The assailants took Witness OC’s husband off the truck first and killed him with
their machetes. Witness DEF-1 was saved by an Interahamwe who used to work for his
uncle.1264
Nsengiyumva Defence Witness DEF-2
1134. Witness DEF-2, a Hutu, lived in Gisenyi town near Witness OC and her family. On 7
April 1994, there were attacks in his area against persons “suspected of accommodating
accomplices”. On 8 April, he gave refuge to Witness OC and two of her children. The
children told him that their house had been attacked the previous day around midday but that
they could not identify the assailants. Witness OC said that her children were scattered
around and that she had hidden inside the house, under a mattress. Her husband had been
abducted by the attackers. During the eight days the family spent at Witness DEF-2’s house,
1262
T. 9 June 2004 pp. 52, 54-57; T. 10 June 2004 pp. 16, 23-25, 27, 29, 33. Her older son, who was able to
escape, returned in May 1994.
1263
T. 4 October 2006 pp. 62-66; T. 9 October 2006 pp. 12-15.
1264
T. 20 June 2006 pp. 34-45, 49-51; Nsengiyumva Defence Exhibit 191 (personal identification sheet).
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Witness OC did not mention that soldiers had been amongst the attackers, or that
Nsengiyumva had been present. Later he heard that the husband had been killed.1265
Nsengiyumva Defence Witness Uwase
1135. Alphonsine Rugawizangoga Uwase, a Hutu, was the secretary for the prefect of
Gisenyi in April 1994. Around 2.00 p.m. on 7 April, the prefect sent his driver for her so that
she could arrange a security council meeting that afternoon, at the prefectural offices. The
meeting commenced at approximately 4.00 p.m. and lasted until around 6.00 p.m. As her
office was outside the conference room, she saw Nsengiyumva enter it at the outset of the
meeting. The witness confirmed that no one left before the end of the meeting.1266
Nsengiyumva Defence Witness STAR-2
1136. Witness STAR-2 testified that she attended a prefectural security meeting on 7 April
1994 at the MULPOC offices. The meeting commenced at around 4.00 p.m. and lasted for
about two hours. Nsengiyumva attended the meeting and stayed until its end.1267
Deliberations
1137. It is not disputed that Witness OC’s husband, a Tutsi, was killed on 7 April 1994.
Witness OC, the only Prosecution witness, testified that her husband was attacked at a place
called Gikarani in the presence of Nsengiyumva around 6.00 p.m. by soldiers and
Interahamwe. In contrast, Witness DEF-1 stated that the Interahamwe killed him at the
Commune Rouge between 3.30 and 4.00 p.m. The main question is whether Nsengiyumva or
soldiers under his command were involved in this event.
1138. Witness OC’s testimony was first-hand and consistent. The Defence argues that it is
implausible that the witness and her daughter were allowed to escape the scene of the attack,
especially if Nsengiyumva’s intention had been the elimination of all Tutsis.1268 The
Chamber does not find it surprising that the assailants primarily targeted the husband. Tutsi
men could, irrespective of their position in society, possibly join the RPF.
1139. Witness OC’s previous statements to Tribunal investigators are generally in
conformity with her testimony. The Defence argues that there are contradictions as to
whether soldiers or Interahamwe attacked her husband and younger son. The Chamber notes
that in her statement of June 1996, reference was made to soldiers only.1269 Two weeks later,
in July 1996, she explained that there were also Interahamwe in Nsengiyumva's vehicle, and
that they, and “not soldiers”, chased her son and threw stones at him.1270 In her testimony, she
said that both soldiers and Interahamwe were involved in this incident.1271 In the Chamber's
view, this purported discrepancy has limited significance.
1265
T. 10 October 2006 pp. 3-8, 12, 15, 17-18; Nsengiyumva Defence Exhibit 211 (personal identification
sheet).
1266
T. 10 July 2006 pp. 11, 14-15, 25-26; Nsengiyumva Defence Exhibit 201 (personal identification sheet).
Uwase was previously referred to as Nsengiyumva Defence Witness OAU-1.
1267
T. 28 February 2006 pp. 13-15, 47-48, 53-54; Nsengiyumva Defence Exhibit 143 (personal identification
sheet). MULPOC refers to Multinational Programming and Operational Centre of Economic Commission for
Africa.
1268
Nsengiyumva Closing Brief, paras. 758-759.
1269
Nsengiyumva Defence Exhibit 45 (statement of 18 June 1996).
1270
Nsengiyumva Defence Exhibit 46 (statement of 2 July 1996).
1271
T. 9 June 2004 p. 56.
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1140. In relation to her husband, only soldiers are mentioned in the witness’s first statement,
whereas in the second statement “other Interahamwe“ than those pursuing her son attacked
her husband. According to her testimony, both soldiers and Interahamwe hit him. The
Chamber accepts her evidence that both groups participated in the attack but that the soldiers
were in charge.1272 Varying formulations concerning the exact role of those participating in
this traumatic event does not affect her credibility.
1141. Witness OC consistently referred to soldiers during the various sequences of the
events on 7 April which led to the killing of her husband. The Chamber accepts that she
would be able to recognise their uniforms and appearance. She lived close to Gisenyi military
camp and observed them frequently. A complicating factor, however, is her testimony that
not only the Interahamwe but also the soldiers in the vehicle were wearing banana leaves,
right down to their neck, so that she could not see their berets and most of their faces.1273
Accepting that the situation in Rwanda was extraordinary, and that the soldiers may have
wished to conceal their identity, the Chamber still finds that this would be a very unusual
thing for soldiers to do. Such head gear would be more normal for the Interahamwe in that
period.
1142. Witness OC said that she was certain that Nsengiyumva was present during the attack.
She recognised him because she had seen him approximately once every three weeks
inspecting soldiers near her home from the end of 1993, Nsengiyumva’s arrival date in
Gisenyi, until April 1994. The witness learned of his identity from her husband and stated
that everyone knew him in Gisenyi. During cross-examination, the Defence put the
statements to Tribunal investigators by two of Witness OC’s children to her.1274 None of
them mentioned Nsengiyumva’s presence at the site of the attack, and only one later heard
that he had been in the Hilux pick-up truck and had “led the killing expedition”. Given the
relatively young ages of Witness OC’s children at the time of the attack (15 and 11 years), the
Chamber does not consider that the lack of reference to Nsengiyumva in their statements
reduces the credibility of their mother’s testimony.
1143. This said, it is recalled that according to the Appeals Chamber, the Chamber must
always, in the interests of justice, proceed with extreme caution when assessing the
identification of an accused made under difficult circumstances.1275 In court, Witness OC
experienced serious visual problems and could not identify the Accused unless in close
1272
T. 10 June 2004 p. 27 ("Q. ... Are you in a position to explain that apparent contradiction? A. But the
soldiers were with Interahamwes. Q. But who exactly killed your husband? A. The soldiers, because they had
the power.").
1273
Id. p. 24. Not all assailants had their faces covered.
1274
Nsengiyumva Defence Exhibit 47 (statement by Witness OK-1 of 2 May 1997); Nsengiyumva Defence
Exhibit 48 (statement by Witness OH-1 of 24 April 1997). These statements generally support Witness OC’s
evidence about the soldiers in the Toyota Hilux truck, although one of them does not refer to the husband in that
context.
1275
Bagilishema Appeal Judgement, para. 75; Kupreskic et al., Appeal Judgement, para. 39; Bagilishema Trial
Judgement, para. 532.
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proximity to him.1276 However, she did make a poignant and positive identification of
him.1277 It is recalled that in-court identification has limited probative value.1278
1144. Witness DEF-1 indicated that the attack in Witness OC’s area was perpetrated by
Interahamwe. In particular, he was arrested by Interahamwe at the same time as Witness
OC’s husband. He saw her husband being taken from his home with his family. Witness
DEF-1 and the husband were then taken directly to the Commune Rouge where the witness
then saw him be killed. This occurred between 3.30 and 4.00 p.m., before the attack on the
roadside to which Witness OC testified. The two divergent accounts of Witness OC and
Witness DEF-1 cannot therefore be reconciled.
1145. In its Closing Brief, the Prosecution has not addressed the credibility of DEF-1.
During cross-examination, it suggested to the witness that he confused Witness OC’s
husband with someone else. While this is possible, the Chamber notes that Witness DEF-1
was familiar with the area, saw the man he believed to be Witness OC’s husband be forced
out of his house, and also travelled with him in the back of a pickup truck, before seeing him
be killed. The evidence does not therefore give any indication that he confused Witness OC’s
husband with another person. There is no other factor indicating that Witness DEF was
untruthful.1279
1146. Witness DEF-2 did not see the attack against Witness OC’s house but provided refuge
to her and two of the children on the following day. He said that Witness OC did not mention
to him that she had seen her husband being attacked at the roadside. She simply told him on 8
April that her home had been attacked the previous day by unidentified assailants, that she
had escaped the attackers by hiding inside her house, but that her husband had been abducted.
This version, and more generally Witness OC’s alleged stay at Witness DEF-1’s house, was
not put to Witness OC during cross-examination.1280 If this account is correct, there may have
been reasons why she chose to keep silent about some aspects of the events, such as trauma
and fear. This said, the Chamber notes that the children purportedly told Witness DEF-2 that
they had been chased from the house on 7 April around “midday”.1281
1147. Nsengiyumva and Alphonsine Rugawizangoga Uwase testified that Nsengiyumva was
attending a prefecture security council meeting between 4.00 and 6.00 p.m., around the same
time as the attack on the road. Both witnesses said that the meeting took place in the
prefectural office, whereas Witness STAR-2 stated that it was held in the MULPOC building.
Leaving this discrepancy aside, the Chamber is not persuaded that such a meeting would have
1276
T. 9 June 2004 pp. 33, 57-58; T. 10 June 2004 pp. 8-9. Witness OC had to walk past the Prosecution, the
Bench and the Defence at close distance. There is no information available whether she had similar sight
problems in 1994. The witness was born in 1944, and she was 50 years old in 1994 and 60 when she testified.
This lack of clarity is not decisive to the Chamber’s findings.
1277
Witness OC identified Nsengiyumva in court after some initial difficulty, first identifying another person. T.
9 June 2004 pp. 57-61, 68-70, particularly pp. 59 (“If I am not mistaken, it is this person … Ah, now I have seen
him. Oh, yeah, now I can see better. No, it’s this one. I have just seen him. It’s you. You don’t know me, but I
know you. I was nothing for you, I was nothing for you. It’s you. You actually trampled me.”).
1278
Kunarac et al., Appeal Judgement, para. 320.
1279
Witness DEF-1 presented himself as a Tutsi victim. It was put to him that he was a Hutu, which he denied,
and the Prosecution did not provide any basis for that proposition. See T. 20 June 2006 p. 45.
1280
However, Witness OC volunteered that she was in hiding after 7 April 1994, without providing further
details. T. 10 June 2004 p. 29.
1281
As mentioned above, the children were 15 and 11 years old at the time of the attack.
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prohibited Nsengiyumva’s presence at the scene of the attack, which according to Witness
OC occurred at approximately 6.00 p.m.
1148. Finally, Nsengiyumva testified that he was driving a two door Mitsubishi Pajero on 7
April. Prosecution Witness ZF saw Nsengiyumva use this vehicle in the morning of 7 April
and confirmed that it was his official vehicle at this time.1282 The Chamber has taken into
account the possibility that Nsengiyumva may have used a different vehicle in the afternoon.
This evidence, although not itself definitive, raises some additional doubt.
1149. Based on the totality of the evidence, the Chamber considers the evidentiary situation
unclear. Witness OC and Witness DEF-1 provided seemingly convincing first-hand accounts
of the attack, which cannot be reconciled. There are differences regarding the time of the
attack at Witness OC’s house as well as the whether the assailants there were soldiers or
Interahamwe. Only Witness OC testified about the attack involving assailants coming from
the Toyota Hilux. The Chamber considers it unusual for soldiers to wear banana leaves.
Consequently, the Prosecution has not proven beyond reasonable doubt that Nsengiyumva
ordered the killing of Witness OC’s husband in the afternoon of 7 April 1994.
1150. According to the Defence, the allegation, as articulated in the Indictment, was vague
and did not identify the victims or the assailants. In view of the Chamber’s finding, there is
no need to address this argument.
3.6.5
Alphonse Kabiligi, 7 April
Introduction
1151. The Nsengiyumva Indictment alleges that prior to events in April 1994, the authorities
and militia established lists of people to be executed. From April 1994, these lists were used
to identify people to be killed. Nsengiyumva had authority over soldiers and militiamen who
killed moderate Hutus after 6 April 1994. The Prosecution specifically asserts that Alphonse
Kabiligi, a Hutu civil servant and member of the PSD party, was placed on a list as early as
1991 and killed on 7 April in Gisenyi town by a soldier and other militiamen. Reference is
made primarily to Witnesses AS and ZF. The Bagosora Indictment further alleges that
military personnel and soldiers exterminated the civilian Tutsi population and its accomplices
on orders of Nsengiyumva.1283
1152. The Nsengiyumva Defence submits that the killing of Alphonse Kabiligi is not
pleaded in the Indictment and that Witness AS’s testimony does not link his killing to
Nsengiyumva. In fact, he assisted by evacuating the witness in connection with a prefectural
committee meeting. The Bagosora Defence argues that Witness ZF’s testimony lacks
credibility.1284
1282
Nsengiyumva Closing Brief, para. 1198. Witness ZF confirmed that in the morning of 7 April, Nsengiyumva
was driving a Pajero, which was his official vehicle. See T. 2 December 2002 p. 2, 8 (“Q. Now, can you tell us
more about this vehicle, Anatole’s vehicle? What kind of vehicle was it, which make? A. At the time Colonel
Anatole Nsengiyumva used a civilian vehicle, a Pajero, a small model, and I think at the time it was the vehicle
that was allocated to the commanders of the operational sectors.”).
1283
Bagosora Indictment, paras. 6.58, 6.59; Nsengiyumva Indictment, paras. 5.1, 5.25, 5.29, 6.36, 6.37;
Prosecution Closing Brief, paras. 208, 1001(e), 1007, 1068-1076.
1284
Bagosora Closing Brief, paras. 941-952; Nsengiyumva Closing Brief, paras. 963-969.
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Evidence
Prosecution Witness AS
1153. Witness AS testified that Alphonse Kabiligi was of mixed ethnicity and originally
from Butare prefecture. In April 1994, he was a member of the PSD party and a division head
at the Economic Community of Great Lakes Countries in Gisenyi town. The newspaper
Kangura denounced him in 1991 for his frequent cross-border trips by raising suspicion that
he was passing information to the RPF. Shortly after Kabiligi was named in Kangura, soldiers
searched his house and he began receiving death threats. He later told the witness that a
soldier informed him that a list of persons that were “not desired” was being prepared in
Gisenyi prefecture.1285
1154. On the morning of 7 April 1994, Witness AS was with Kabiligi at his home in
Gisenyi town when Interahamwe brought two close friends, called Chantal and Innocent, to
his house. One of the Interahamwe told Kabiligi that he was on a list of people to be killed.
Innocent informed him that people were being attacked in town. The witness tried to make a
reservation at the Hôtel Méridien for Kabiligi and the others, assuming it would be safer, but
the hotel manager refused. Kabiligi made several phone calls and learned of the death of
several of his acquaintances as well as the Prime Minister.1286
1155. Witness AS saw armed individuals driving through town in minibuses. Kabiligi
locked his gate, closed the windows and barricaded the doors. Around 8.00 p.m.,
Interahamwe broke down his gate and threatened to throw a grenade into the house if the
occupants did not allow them in. The witness saw one of the assailants waving a grenade and
opened the door. About 10 of them entered the house. The witness believed that one was a
soldier because he wore a khaki uniform and carried a gun. They assaulted the witness while
Kabiligi’s four year old daughter hid under the couch. His 12-year-old son was taken to the
kitchen and beaten. The Interahamwe stabbed Innocent in the eye with a spoke and poured
pepper into the wound as he screamed in pain.1287
1156. After looking at Kabiligi’s identity card, the soldier remarked that it was a bad thing
that he was from Butare prefecture. While the assailants were beating Kabiligi they asked
him to show them his RPF documents. He replied that he did not have any, and they cut off
his arm with a machete. Kabiligi told the Interahamwe that, if they wanted to kill him, they
should do it outside and not in front of his children. He was taken in front of his house and
shot. Innocent then tried to flee the house but was shot in the back. After the assailants left,
the witness hid in the garden with Kabiligi’s children where she found Chantal moaning in
pain as a result of a machete attack.1288
1157. The next morning, five or six soldiers in khaki uniform returned with a man named
Mathias, an active member of the CDR party, who had previously worked with the Economic
Community of Great Lakes Countries. He asked the soldiers to turn Kabiligi’s body over so
1285
T. 2 September 2003 pp. 14-17, 27-29, 31-34, 36, 40-41; T. 3 September 2003 p. 19; Prosecution Exhibit 88
(personal identification sheet). Witness AS indicated that Kabiligi told her about the conversation with the
soldier between 1991 and 1993.
1286
T. 2 September 2003 pp. 43-44; T. 3 September 2003 pp. 16, 19.
1287
T. 2 September 2003 pp. 44-45; T. 3 September 2003 pp. 6-7, 16-18, 22. Witness AS described the
assailants as “bandits” and noted that she later learned the term “Interahamwe”.
1288
T. 2 September 2003 pp. 45-48, 51.
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that he could identify him and said that they had done a good job. The soldiers loaded
Chantal and the bodies of Kabiligi and Innocent onto a truck.1289
Prosecution Witness ZF
1158. Witness ZF, a Hutu radio-operator in Gisenyi, testified that he spent the night of 6 to 7
April with Nsengiyumva in his office at the Gisenyi military camp (III.3.6.1). At
approximately 6.00 a.m., Nsengiyumva received a call from Bagosora. Nsengiyumva then
asked Lieutenant Bizumuremyi if he knew a man that worked for the Economic Community
for the Great Lakes. Bizumuremyi replied that he did, a man named Kabiligi. Nsengiyumva
stated that Bagosora had asked that he be arrested, and Bizumuremyi left.1290
Deliberations
1159. It is not disputed that Alphonse Kabiligi was killed on the evening of 7 April 1994.
Witness AS gave a credible first-hand account of the attack. The evidence also reflects that
the brutal attack was conducted in the presence of Kabiligi’s family, including his young
children. The main questions for the Chamber are whether Kabiligi was killed based on a preestablished list and whether the assailants acted under the authority of Nsengiyumva or
Bagosora.
1160. In early 1991, the newspaper Kangura accused Kabiligi of being an Inkotanyi
accomplice.1291 This newspaper was a private publication.1292 The fact that he is mentioned
there cannot be attributed to the two Accused or any other military and government officials,
in the absence of evidence connecting them to the publication. It does suggest, however,
along with searches of his home and harassment in 1991, that Kabiligi was popularly
perceived as an RPF supporter or sympathiser. The Chamber has elsewhere (III.2.5.3) found
that Kabiligi was on a list of suspected RPF accomplices found in 1993 in the vehicle of
1289
T. 2 September 2003 pp. 27, 48-51; T. 3 September 2003 pp. 16, 18-19. The soldiers then reluctantly drove
Witness AS and Kabiligi’s children to the home of the head of MOLPUC, an agency affiliated with the United
Nations concerned with regional development. The witness and a number of foreigners were evacuated to Goma
from MOLPUC on the night of 8 to 9 April, after receiving authorisation from Nsengiyumva, whom she saw
there.
1290
T. 28 November 2002 pp. 42-44, 46, 65-67; T. 2 December 2002 pp. 2-4, 52-53; T. 4 December 2002 pp.
84-86, 88-90; T. 5 December 2002 p. 81. Witness ZF’s father was a Hutu, but the witness was raised as a Tutsi
by his mother’s family. See T. 27 November 2002 p. 13.
1291
The article (in Kinyarwanda) about Alphonse Kabiligi is found in Prosecution Exhibit 89 (Kangura Issue
No. 9, January 1991) and was read into the record. See T. 2 September 2003 pp. 31-32 (“At this time when we
were being attacked by the Inyenzi, who called themselves the Inkotanyi, Kangura denounces some people to the
intelligence services and informs the intelligence agency that the towns of Gisenyi and Goma have become key
meeting points for the Inkotanyi and their accomplices … Uganda has opened a consulate in Goma, Zaire,
because of a plan conceived by the Inkotanyi, a plan which would allow weapons arriving from Kampala and
elsewhere, [to] be taken across the border in diplomatic pouches with the assistance of Rwandan nationals
working for BDGL, MULPOC, CEPGL and Bralirwa. We would like to mention, in particular, the following
persons: … Alphonse Kabiligi, CEPGL, Gisenyi, Rwanda ... Don’t close your investigation on CEPGL, without
considering the relations between Charles Kayihura and Alphonse Kabiligi, who both worked together. Consider
what they do during their lunch break which lasts 30 minutes, when people work in the Gong Unique, whereas
they … spend more than 30 minutes during their lunch break. They associate with the accomplices of the
Inkotanyi living in Goma.”).
1292
According to Tribunal case law, some articles in Kangura constituted incitement to commit genocide. See
Nahimana et al. Appeal and Trial Judgements.
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Déogratias Nsabimana, the army chief of staff, which was maintained by the Rwandan
army.1293 Witness AS also heard that Kabiligi was on a list on the morning of 7 April 1994.
1161. The above evidence strongly suggests that Kabiligi was previously identified as a
target for arrest or killing based on his alleged ties to the RPF. This is confirmed by the
manner in which the attack unfolded. The assailants broke down a locked gate, threatened to
throw grenades into the house to ensure their entry, and asked Kabiligi about RPF documents,
before mutilating and killing him.
1162. The next issue is who was responsible for the killing of Kabiligi. Witness AS’s
testimony appeared coherent and credible.1294 She described the assailants who attacked his
home on the night of 7 April as a group of Interahamwe or “bandits”, carrying traditional
weapons, accompanied by one “soldier”. She identified the soldier based on his khaki
uniform, military boots and gun. He was not, however, wearing a beret. Several “soldiers”
returned the next day to verify the killing. Again, the witness identified them as such by their
military-style uniform.1295 She testified that she could distinguish between gendarmes and
soldiers by the colour of their berets, red for gendarmes and black for soldiers, but that she
was not familiar with any other differences in their uniforms.1296
1163. In the Chamber’s view, the number of men in khaki military-style uniforms, present
both during the attack and the next morning, shows clearly that the assailants were not simply
civilians or “bandits”, but either soldiers or gendarmes. However, the testimony of Witness
AS does not show that they were soldiers under Nsengiyumva’s control, as they wore no
berets.1297
1164. The only direct evidence connecting Nsengiyumva to the crime comes from Witness
ZF, who allegedly overheard around 6.00 a.m. on 7 April Bagosora, ask Nsengiyumva to
arrest Kabiligi. This evidence was excluded with respect to Bagosora based on lack of
notice.1298 It was not challenged on these grounds by the Nsengiyumva Defence.1299 The
Chamber has previously expressed concern with the credibility of this aspect of Witness ZF’s
testimony and will not, in the present context, rely on it (III.3.6.1). In particular, it was not
clear to the Chamber why Nsengiyumva and Witness ZF would have been together when this
1293
Alphonse Kabiligi is number 247 on this list (III.2.5.3). See also Prosecution Exhibit 370 (Annex to André
Guichaoua: Les Crises Politiques au Burundi et au Rwanda (1995)).
1294
The Chamber is not persuaded by the Defence submissions concerning Witness AS’s previous statements to
Tribunal investigators, or its reference to the fact that she did not know any other key persons in Gisenyi than
Nsengiyumva. See Nsengiyumva Closing Brief, para. 969.
1295
Witness AS stated that these “soldiers” were wearing military-style boots and green khaki uniforms. She did
not specify whether they were wearing berets. See T. 3 September 2003 p. 16.
1296
T. 3 September 2003 p. 18.
1297
The Chamber has noted the following exchange during cross-examination: “Q. Witness, is it your opinion
that Anatole Nsengiyumva played a big role in the massacres in 1994? A. I do not have the least doubt. Q. What
is the basis of your opinion? A. On the situation prevailing in Gisenyi, the entire range of events there. … Q.
And you will agree with me then that the only time you had experience with Anatole, it was a positive
experience when he was saving your life; isn’t that true? A. I really need to think before answering that
question. I think he had no choice; massacre foreigners or UN people, he had no choice. If he did not allow us to
leave, that was going to trigger an international crisis. He had no choice.” See T. 3 September 2003 p. 22.
1298
See Decision on Bagosora Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
11 May 2007, para. 73 (excluding portions of Witness ZF’s evidence).
1299
The Nsengiyumva Defence did not object when the evidence was led. Its motion to exclude evidence did not
raise the issue. See Decision on Nsengiyumva Motion for Exclusion of Evidence Outside the Scope of the
Indictment (TC), 15 September 2006.
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purported conversation occurred. There is also conflicting other conflicting evidence
concerning the events at the military camp that night which raise questions about Witness
ZF’s presence there at the time.
1165. While the evidence of Witnesses ZF and AS is insufficient to establish the identity of
the uniformed assailant who accompanied Kabiligi’s killers, the nature of the attack as
described by Witness AS demonstrates military involvement when viewed in light of other
systematic murders in Gisenyi. In the days following President Habyarimana’s death, a
pattern emerged in Gisenyi of soldiers playing a largely supporting role to civilian attackers
who killed Tutsis and suspected accomplices. This is reflected in the evidence of Witnesses
DO and XBG, who discuss attacks in Gisenyi town and elsewhere on 7 April (III.3.6.1). It
also follows from the testimony of Witness HV, who described attacks on Central African
Adventist University in Mudende on 8 April (III.3.6.7.). The Chamber is further convinced
that a soldier participated in the operation against Kabiligi, and not a gendarme, even though
he did not wear a beret. There is evidence that at least immediately after the President’s
death, gendarmes appeared to protect civilians who had been singled out for attack (III.3.6.7).
While Kabiligi may have been viewed as an accomplice by local political and government
officials, the list in deceased General Déogratias Nsabimana’s vehicle also demonstrates that
the military had singled him out as having ties to the RPF.1300 Under the circumstances, the
Chamber is convinced that the uniformed “soldier” identified by Witness AS as
accompanying the civilian assailants as well as the five or six that returned the next day were
members of the Rwandan army.
1166. Turning to Nsengiyumva’s responsibility, the Chamber has found that on the period
covering 7 April, Nsengiyumva was the Gisenyi operational commander and had authority
over soldiers in that operational sector (IV.1.5). The Chamber also recalls its findings that
under certain circumstances, the Nsengiyumva could have de facto authority over civilian
militiamen (III.2.6.2). Witness AS’s evidence shows clear coordination between the soldier
and the civilian attackers. This is demonstrated by the arrival on the next day of another five
or six soldiers returning to remove the bodies. The Chamber is also satisfied that
Nsengiyumva had de jure and de facto authority over the soldier and civilian assailants given
that the killings took place in Gisenyi town (IV.1.5).1301 The speed with which this attack
occurred – one day after President Habyarimana’s death – and the fact it followed a pattern
consistent with other attacks taking place in the prefecture leads to the only reasonable
conclusion that the attacks were ordered by the highest operational authority in the prefecture,
Nsengiyumva.
1167. Bagosora has also been charged in relation to these killings. The Chamber does not
accept his argument that these allegations do not relate to him. The Prosecution’s Pre-Trial
1300
The Chamber also recalls that Nsengiyumva held the position of head of the bureau of intelligence (G-2) on
the army general staff when the list was discovered and would have been responsible for maintaining and
updating lists (III.2.5.3).
1301
The Chamber recalls that it was not satisfied beyond reasonable doubt that the Bigogwe and Butotori
training facilities themselves fell under the command of Nsengiyumva. Witness XBG’s evidence suggests that
soldiers from Bigogwe participated in some of the attacks on 7 April (III.3.6.1). In this instance, there is no
indication of the soldier coming from Bigogwe camp, which is nearly 25 kilometres away (see Nsengiyumva, T.
11 October 2006 p. 28; Serushago, T. 18 June 2003 p. 81) or from the Butotori camp in the neighbouring
Nyamyumba commune (Nsengiyumva, T. 13 October 2006 p. 21). In any event, the Chamber also determined
that such soldiers would be acting under Nsengiyumva’s authority to the extent that they were participating in
military operations in the Gisenyi operational sector.
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Brief lists Witness AS as supporting the relevant paragraphs of his Indictment related to
Gisenyi.1302 Bagosora exercised the highest authority in the military on 7 April (IV.1.2).
Nsengiyumva as the operational commander of Gisenyi was therefore under his command.
Furthermore, when this event is considered together with other parallel killings in Gisenyi
prefecture as well as in Kigali, the only reasonable inference is that these military operations
were ordered or authorised by Bagosora. In reaching this finding, the Chamber does not rely
on the evidence of Witness ZF.
3.6.6
Nyundo Parish, 7 - 9 April
Introduction
1168. The Nsengiyumva Indictment alleges that, between 8 April and June 1994,
Nsengiyumva ordered soldiers and militiamen to attack the mostly Tutsi refugees at Nyundo
Parish. It is further alleged that on 8 April these assailants, acting on Nsengiyumva’s orders,
arrested Bishop Wenceslas Kalibushi and brought him to a cemetery, known as the Commune
Rouge, to be executed. Nsengiyumva then spared Kalibushi on orders from “military
authorities” in Kigali. In particular, the Prosecution submits evidence related to a series of
attacks at the parish from 7 to 9 April as well as in May. Reference is made primarily to the
testimonies of Witnesses Isaïe Sagahutu, DO and ZF. The Bagosora Indictment alleges that
military personnel and militiamen exterminated the Tutsi civilian population and its
accomplices on Nsengiyumva’s orders.1303
1169. The Nsengiyumva Defence argues that the allegations pertaining to Nyundo Parish
are vague and that the Prosecution evidence exceeds the scope of the Indictment. In any
event, the Prosecution witnesses lack credibility and are contradicted by Witnesses LK-2,
RAS-4 and XX. The Bagosora Defence submits that these allegations do not implicate
Bagosora.1304
Evidence
Prosecution Witness Isaïe Sagahutu
1170. Isaïe Sagahutu, a Tutsi secondary school teacher at Nyundo Parish, testified that,
around 10.00 a.m. on 7 April 1994, he and his family sought refuge at the nearby Nyundo
seminary along with 80 to 100 other Tutsis in the area. That afternoon, Sagahutu spoke on the
telephone with Augustin Ntagara, a priest at Gisenyi Parish. Father Ntagara told the witness
that the killing of Tutsis had commenced following a rally held by Nsengiyumva at a bus
station in Gisenyi town. Around 5.00 p.m., about 200 Interahamwe, armed with traditional
weapons, attacked the seminary. At the time, the witness was in a room there with the rector
and other priests. One of the Tutsi priests, Adrien Nzanana, left the room and was killed in
1302
Prosecution Pre-Trial Brief (7 June 2002), p. 8.
Nsengiyumva Indictment, paras. 6.18-6.20; Bagosora Indictment, paras. 6.58-6.59; Prosecution Closing
Brief, paras. 132, 437, 452, 466-469, 488, 489, 1034(g), 1035(d), 1051(h), 1388(e), pp. 881-882. The bishop’s
name is spelled as both “Kalibushi” and “Karibushi”. For consistency, the Chamber has used “Kalibushi”, as in
the Nsengiyumva Indictment.
1304
Nsengiyumva Closing Brief, paras. 941-962; Bagosora Closing Brief, pp. 382-383.
1303
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the corridor by the assailants, who were shouting “[k]ill this animal; kill this cockroach; kill
them; finish them off and withdraw”.1305
1171. When this first attack had ended, gendarmes, promising security, urged the women
and children to gather in the seminary’s chapel. Sagahutu distrusted the gendarmes and
remained with the priests. Déo Twagirayezu, a Tutsi priest, said mass there. Then,
Interahamwe launched a second swift attack, killing or wounding many of the refugees there
as well as Father Twagirayezu. When the second attack started, the Hutu priests separated
themselves from the Tutsis. Sagahutu hid in the ceiling, but could hear children screaming
from the chapel. Sagahutu’s wife was injured during the attack, and his four children were
killed. After the second attack, the gendarmes, again promising security, evacuated the
surviving refugees to Nyundo Parish, located above the seminary on a hill, where they joined
600 to 700 other mostly Tutsi refugees. Sagahutu and his wife joined the priests in the
bishop’s residence, where his wife received some medical attention.1306
1172. Early on 8 April, a priest warned Sagahutu that the Interahamwe were coming, and
the witness, his wife and other refugees went to the cathedral. Bishop Kalibushi told the
refugees: “You have to die like men. Do not die like cowards. Take all you can find in the
form of weapons and defend yourselves, because there will be at least one survivor who is
going to tell the truth one day.” Around 10.30 to 11.00 a.m., Second Lieutenant Eustache
Dusabeyezu and a group of Interahamwe entered the cathedral, told the refugees to leave and
extorted money from them. Sagahutu recognised Dusabeyezu as a student at a local school
named Saint Fidèle. Other local authorities came as well to evacuate the expatriates and some
members of religious orders in order to take them to a local hotel. Dusabeyezu left the parish
compound with Bishop Kalibushi, who was taken to the Commune Rouge to be killed.1307
1173. As Dusabeyezu was leaving, he fired his rifle in the air, and the Interahamwe began
their attack. The refugees locked themselves in the cathedral and were able to fight off the
assailants, even managing to kill one of the Interahamwe. The attackers withdrew around
5.00 p.m. According to Sagahutu, none of the refugees were killed.1308
1174. On the morning of 9 April, the assailants returned with reinforcements and guns. They
again tried to gain entrance to the cathedral. The refugees, including Sagahutu, fought back
and managed to prevent them from entering the cathedral. The attackers killed many of the
refugees in the bishop’s residence and the wounded who were in the parish’s sacristy,
1305
T. 27 April 2004 pp. 58-59, 68, 83-87; T. 28 April 2004 pp. 10, 28, 42-45, 49, 65; Prosecution Exhibit 215
(personal identification sheet). The witness was previously referred to as Witness ON. He served as the
ambassador of Rwanda to Uganda from 1995 to 2000 and then as the deputy speaker of the Rwandan national
assembly from 2000 to 2003.
1306
T. 27 April 2004 pp. 84, 87-89; T. 28 April 2004 pp. 10, 17, 49-50, 52, 65.
1307
T. 27 April 2004 pp. 89-90; T. 28 April 2004 pp. 3, 10. Sagahutu said that many of the refugees at the
cathedral had been there for more than a year. Gendarmes had been guarding them since they first sought
refuge. During that period, the gendarmes told the refugees: “One day there will be trouble, and the day when
trouble will come, we shall no longer be here to guard you. The Interahamwe will come in and they will
exterminate you”. T. 29 April 2004 pp. 18-19.
1308
T. 27 April 2004 pp. 89-91; T. 28 April 2004 pp. 3, 10, 62, 65; T. 29 April 2004 p. 20. In addition, Sagahutu
also testified that the gendarmes, who were guarding the refugees, joined the Interahamwe and fired at the
cathedral, while the Interahamwe pelted it with stones. T. 27 April 2004 p. 91; T. 28 April 2004 p. 62. He later
clarified that the role of these gendarmes was not to kill but to gather people together. T. 28 April 2004 pp. 6265; Nsengiyumva Defence Exhibit 42 (undated statement of Sagahutu); Nsengiyumva Defence Exhibit 43
(statement of 23 May 1998); Nsengiyumva Defence Exhibit 44 (statement of 26 February 1996).
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including Sagahutu’s wife. Around 5.00 p.m., the bourgmestre of Kanama commune, as well
as Major Biganiro, the gendarmerie commander, stopped the attack and promised to assure
the security of the surviving refugees. The next day, 10 April, Major Biganiro and Lieutenant
Bizumuremyi returned to Nyundo Parish with a list of religious personnel to evacuate. A
priest persuaded a gendarme to allow Sagahutu to leave with them. At a roadblock on the
way to Gisenyi town, Interahamwe tried to prevent Sagahutu from accompanying the priests
because he was not on the list. However, a gendarme added his name to the list.1309
1175. Together with the other religious personnel, Sagahutu was taken to the Hôtel
Méridien where he found Bishop Kalibushi. They stayed there until 12 April when they
moved to a home owned by the Nyundo Diocese near the Palm Beach Hotel, where they were
protected by gendarmes. Nsengiyumva and the prefect visited with the bishop on occasion.
After receiving money, the gendarmes assisted Sagahutu and the other religious personnel in
the house to flee to Goma around 20 April. During this period, Kalibushi told the witness that
Nsengiyumva had come to the Commune Rouge just before Kalibushi was about to be killed
on 8 April and spared his life. Nsengiyumva brought Kalibushi to the Hôtel Méridien.
According to what Sagahutu heard, the bishop later asked Major Biganiro if the gendarmerie
could bring the surviving priests and other religious personnel to the hotel. Biganiro agreed,
and the bishop gave him the list of names, which was used to evacuate individuals on 10
April. The witness was told that the remaining refugees were killed in May.1310
Prosecution Witness DO
1176. Witness DO, a Hutu driver in Gisenyi, stated that, sometime in April 1994, he heard
from a member of the Interahamwe, named Kiguru, that Nsengiyumva, in the company of the
Interahamwe, had led an attack in Nyundo, massacring approximately 567 refugees. Kiguru
told the witness that he had taken part in the attack.1311
Prosecution Witness ZF
1177. Witness ZF, a Hutu radio operator at the Butotori military camp, said that, sometime
between 7-9 April, Nsengiyumva told Lieutenant Bizumuremyi that religious and other
personnel at Nyundo had to be evacuated so that soldiers could occupy that position. He did
not say how he obtained this information, but testified previously that he was quite close to
Bizumuremyi. The witness later learned from unidentified sources that military elements
killed refugees at Nyundo Parish and that Bishop Kalibushi had been arrested on 7 April and
1309
T. 27 April 2004 pp. 91-92; T. 28 April 2004 pp. 2-9, 11, 65; T. 29 April 2004 pp. 23-24.
T. 28 April 2004 pp. 2-6, 9, 11-12, 14-15, 23-26, 65-66; T. 29 April 2004 pp. 22-26. The witness noted that
Nsengiyumva came twice to the residence.
1311
T. 30 June 2003 pp. 19, 32, 75-76; Prosecution Exhibit 61 (personal identification sheet). Witness DO
testified that Kiguru was a member of the “death squads” (III.2.9). He described a death squad as “a group of
people which had been established by Colonel Anatole [Nsengiyumva]. Captain Bizimuremyi supervised the
group’s activities. The death squad was supported by the MRND and CDR…” The witness is currently serving a
life sentence for genocide in a Rwandan prison for acting as a driver for the Interahamwe and soldiers,
facilitating their crimes. He claimed never to have been a member of Interahamwe himself. T. 30 June 2003 pp.
4-5, 84-85.
1310
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subsequently released by Nsengiyumva at Bagosora’s request to avoid a diplomatic
incident.1312
Nsengiyumva
1178. Nsengiyumva denied having issued any order for Nyundo Parish to be attacked and
noted that no evidence placed him at the scene. There were gendarmes at the parish
protecting the refugees who had been there since the beginning of 1993, but they were not
under his command. He did not send soldiers to abduct the bishop.1313
1179. Around 11.00 a.m. on 8 April 1994, as Nsengiyumva was leaving his camp, a group
of gendarmes informed him that some people had just abducted Bishop Kalibushi and had
taken him towards Gisenyi town. Nsengiyumva’s soldiers manning the roadblock in front of
the hospital told him that a minibus had passed, heading towards the prefecture office at high
speed. Nsengiyumva pursued the minibus and found it at Gisenyi cemetery.1314
1180. When he arrived, the minibus had stopped, and the bishop was being pulled out near a
grave. Nsengiyumva fired his gun and took one of the bishop's arms while the assailants
pulled the other one. Nsengiyumva placed the bishop in his vehicle, left and immediately
called the gendarmerie to explain the situation and to ask what was going on in Nyundo.1315
1181. Nsengiyumva took the bishop to the Hôtel Méridien, where he secured
accommodation and arranged for someone to guard him. Later on the bishop was moved
from the hotel to a neighbouring house belonging to the diocese. Out of concern,
Nsengiyumva placed a guard there and requested the staff headquarters to authorise him to
take the bishop to Goma. When pressure later mounted because the people of Gisenyi wanted
to kill the bishop, he again sent a telegram requesting that the government authorise him to
take the bishop out of the country and was finally given authorisation in mid-June. He
accompanied him on his evacuation and was assisted by the Zairean military commander in
Goma, General Tembele.1316
1182. Nsengiyumva testified that on 2 May 1994 there was a meeting convened by the
prefect following the killings at Nyundo on 1 May to condemn those killings and to prevent
such killings from being committed in Gisenyi town. Nsengiyumva even spoke during the
rally (III.3.6.8).1317
Nsengiyumva Defence Witness LK-2
1183. According to Witness LK-2, a gendarme, there were approximately 300 Tutsi
refugees at the Nyundo Parish cathedral on 7 April 1994, many of whom had been there since
February 1993. He received reports of attacks against the cathedral from 7 to 9 April
undertaken by unidentified armed members of the local population who appeared to be
civilians. On the evening of 9 April, the witness was dispatched with other gendarmes to the
cathedral, where he remained for three nights. There were no further attacks until around
1312
T. 26 November 2002 pp. 94-95; T. 27 November 2002 p. 13; T. 28 November 2002 pp. 9-11, 54-57.
Witness ZF’s father was a Hutu, but the witness was raised as a Tutsi by his mother’s family. See T. 27
November 2002 p. 13.
1313
T. 6 October 2006 pp. 4, 31-32.
1314
T. 5 October 2006 pp. 6-7; T. 11 October 2006 p. 40.
1315
T. 5 October 2006 pp. 6-7; T. 11 October 2006 pp. 40-42, 50.
1316
T. 5 October 2006 pp. 6-8; T. 11 October 2006 pp. 43-44, 47-49, 64; T. 12 October 2006 p. 88.
1317
T. 9 October 2006 pp. 10, 51-52.
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1 May, when he saw reports of large scale attacks. From what he heard, the gendarmes
resisted the attackers, but ultimately retreated to call for reinforcements. When the gendarmes
returned, the remaining refugees at the parish had been killed or had fled. The witness did not
see or receive any reports about Nsengiyumva or soldiers playing a role in these events.1318
Nsengiyumva Defence Witness RAS-4
1184. Witness RAS-4, a Hutu, was tried in Rwanda and convicted of genocide in relation to
the killings at Nyundo Parish in Gisenyi prefecture and Nyange Parish in Kibuye prefecture.
He was sentenced to death but acquitted on appeal. Local civilians, armed with traditional
weapons, attacked the Nyundo seminary twice on 7 April 1994. During the first attack,
around 4.00 p.m., the assailants killed two Tutsi priests, Adrien Nzanana and Déo
Twagirayezu, and then withdrew. The assailants returned around 7.30 p.m. and killed at least
30 refugees in the seminary’s chapel. During the second attack, the witness hid in a false
ceiling along with Sagahutu, who he testified fell out of the ceiling and got a sprain. When
the witness came down from the ceiling, he saw dead bodies. He recalled that two or three of
Sagahutu’s children had been killed, and his wife had been injured. Around 10.00 p.m., a
priest and two gendarmes arrived and helped the witness evacuate Sagahutu’s wife to the
bishop’s residence at Nyundo Parish.1319
1185. On 8 April, civilian militiamen attacked Nyundo Parish throughout the day. During
the attack, the witness helped defend the entrance to the bishop’s residence with stones. No
one was killed on that day, but he heard that Bishop Kalibushi was abducted by a group of
attackers. The same civilian assailants and Interahamwes returned on 9 April and conducted a
large scale massacre. Gendarmes and a sub-prefect called André arrived in the afternoon, and
fired into the air to disperse the killers. The witness was allowed to escape after begging for
his life and bribing one attacker with money. At the end of 1994, the bishop told the witness
that he had been taken by Interahamwe and, the witness believed, one soldier, to a cemetery
known as Commune Rouge. Nsengiyumva had saved the bishop’s life and brought him to the
Hôtel Méridien. He then moved the bishop and other priests from Nyundo to a house
belonging to the diocese about 10 metres away from the hotel.1320
Nsengiyumva Defence Witness XX
1186. Witness XX, a Tutsi survivor of the Nyundo Parish massacre, testified that sometime
after 3.00 p.m. on 7 April 1994, Tutsis from the surrounding area, who had sought refuge at
the Nyundo seminary, were attacked and killed by Interahamwe armed with traditional
weapons. The witness was in a nearby convent at the time, but heard the assailants whistle
and beat metal containers during the attack. Afterwards, Bishop Kalibushi sent a priest and
two gendarmes to evacuate the witness, other religious personnel and the survivors to the
cathedral at Nyundo Parish, where they could be better protected. There they joined about
300 other refugees who had been staying at the cathedral for over a year.1321
1187. On 8 April, Interahamwe, wearing banana leaves and armed with traditional weapons,
attacked the cathedral, but the refugees were able to repel them without suffering any
1318
T. 19 April 2005 pp. 2, 11-19; Nsengiyumva Defence Exhibit 73 (personal identification sheet).
T. 5 December 2005 pp. 10-16, 21-26, 29, 31, 44-45, 48-49; Nsengiyumva Defence Exhibit 123 (personal
identification sheet).
1320
T. 5 December 2005 pp. 15-20, 34, 40-42, 45, 48.
1321
T. 17 November 2005 pp. 55-59; Nsengiyumva Defence Exhibit 118 (personal identification sheet).
1319
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casualties. Witness XX saw a soldier named Eustache Dusabeyezu in the cathedral,
threatening refugees. He was accompanied by Interahamwe, brandishing machetes.
Dusabeyezu left with Bishop Kalibushi. That evening, Jean Kashyengo, a priest, reassured
the witness that Kalibushi was not dead and that Nsengiyumva had saved him. In May or
June 1994, the witness met Bishop Kalibushi in Goma. He told her that Dusabeyezu took him
to the cemetery where assailants began stripping him and taking his rings. According to the
witness, Kalibushi said: “But God sent one Anatole Nsengiyumva who came and, in a deep
voice, talked to me. He said, ‘Bishop, let's go.’” The bishop said to the witness that
Nsengiyumva took him to a woman named Muyira, who had a residence near the Hôtel
Méridien and the Palm Beach hotel.1322
1188. On the morning of 9 April, a group of Interahamwe with traditional weapons attacked
the cathedral. They returned that afternoon with reinforcements and, according to Witness
XX, killed almost all of the refugees. During the attack, she ran towards the bishop’s
residence and lay on the ground where she was quickly covered with dead bodies. She
testified: “I was lying on my stomach, and they were cutting up babies and throwing the
bodies over me to such an extent that I was covered with blood. I pretended to be dead, and
they hacked my nephew into two pieces, who had his hand around me. And my sister-in-law
was also hacked with a machete, and she was next to me. So when the attackers left, I took
away the hand of my nephew and I remained quiet.”1323
1189. The witness knew Sagahutu and observed him at Nyundo Parish during the attacks on
7 and 8 April. She did not see him on 9 April because he had fallen from upstairs and injured
himself, so he was seated in a corner of the cathedral with a stick that he used to walk.
Sagahutu’s wife and children were killed in the attacks.1324
1190. The Interahamwe returned, searching through the victim’s pockets, and one of them
noticed Witness XX move. He demanded money from her. The assailant dragged the witness
over to the gendarmes, who were guarding the refugees, and left her there, saying he would
return for her. The gendarmes, however, refused to allow the attacker to take the witness
away. Around 5.30 p.m., Major Biganiro, accompanied by a sub-prefect of Gisenyi
prefecture, came to Nyundo Parish. Biganiro said that he could not protect the witness
because she risked being killed even at his home. She asked him to take her to
Nsengiyumva’s residence because she knew him from Kigali and thought well of his family.
She had also heard that he had saved the bishop. Biganiro agreed to take the witness and
another girl to the Gisenyi military camp, where he dropped them off at the gates.1325
1191. Nsengiyumva received Witness XX in his office where she recounted the attack
against Nyundo Parish. He took her to his residence and left her in the care of his wife and
children, so she could wash the blood off of her body and change into fresh clothes. She
remained at Nsengiyumva’s residence for one month, from 9 April until 7 May. The witness
noted that there were other people staying at the residence, and that about 15 to 20 other Hutu
and Tutsi refugees were there at any given point during that period. On 7 May, Nsengiyumva
1322
T. 17 November 2005 pp. 59-62; T. 18 November 2005 pp. 26-27.
T. 17 November 2005 p. 64; T. 18 November 2005 pp. 25-26.
1324
T. 18 November 2005 p. 7.
1325
T. 17 November 2005 pp. 65-68; T. 18 November 2005 pp. 1-2. Witness XX did not know the name of the
sub-prefect, who was also serving as the acting prefect. T. 18 November 2005 p. 18.
1323
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gave the witness a vehicle and some money to buy clothes. His wife gave her some clothes
and took her to the home of Nsengiyumva Defence Witness STAR-2, who helped her cross
the border into Goma.1326
Deliberations
1192. Isaïe Sagahutu provided a direct and continuous narrative of what transpired at
Nyundo Parish from 7 to 9 April 1994. He gave a detailed account of the repeated attacks
first on the seminary and then on the bishop’s residence and the cathedral at Nyundo Parish.
The Defence submits that he attempted to solicit false testimony against Nsengiyumva from
Witness XX, another survivor of the massacre.1327 However, this allegation should have been
put to him during cross-examination, or the Defence should have sought his recall.
1193. The Nsengiyumva Defence also points to incriminating statements in Rwandan
proceedings made by Sagahutu against Witness RAS-4 and another individual, who was a
Hutu priest. Both were convicted and sentenced to death at trial based on Sagahutu’s
evidence but were ultimately acquitted of any wrongdoing on appeal.1328 This argument,
however, carries limited weight since it relates to Sagahutu’s evidence in a separate
proceeding involving distinct evidence and a different accused than Nsengiyumva.1329
1194. There are other aspects of Sagahutu’s evidence which show that he has a negative
attitude to Nsengiyumva.1330 This may be understandable in view of what he experienced and
his view that Nsengiyumva is responsible for the death of his family members.
1195. The Chamber has considered the above issues in assessing Sagahutu’s overall
credibility. They merit some caution in approaching his testimony. Nevertheless, it is
satisfied that he provided a compelling first-hand account of how the attack unfolded at
Nyundo Parish. His testimony is corroborated in significant part by the largely convincing
evidence of Witnesses RAS-4 and XX, who were in a similar position to closely follow the
events there. Overall, these three witnesses provided a mostly consistent chronology of the
main features of the attack. There are certain problematic features of each of their
1326
T. 18 November 2005 pp. 2-4, 17-18. See also Witness STAR-2, T. 28 February 2006 pp. 4, 19-21.
Witness XX testified that in 1997, she stayed with Sagahutu in Uganda. She alleged that he tried to persuade
her to testify against Nsengiyumva to the effect that she knew that Nsengiyumva was an Interahamwe, that he
was organising meetings and distributing weapons. Sagahutu told the witness that, because she had stayed in
Nsengiyumva’s house, she would be believed on these points. The witness did not believe that the allegations
against Nsengiyumva were true. T. 18 November 2005 pp. 8-12, 16-17.
1328
According to Witness RAS-4, Isaïe Sagahutu accused him and another individual, who was a priest, of
genocide and of having killed members of Sagahutu’s family in the attacks at Nyundo Parish. The allegations
against these individuals were not considered founded by a Rwandan appeals court. See T. 5 December 2005 pp.
25-33. Reference is also made to certain exhibits tendered during Witness RAS-4’s closed session examination
confirming that the allegations against him and the other individual were overturned due to lack of evidence and
because the trial court did not properly consider exonerating evidence.
1329
See Rutaganda Review Decision, paras. 15, 20.
1330
See, e.g., T. 27 April 2004 p. 62 (“Physically, he’s a villain … from what I remember, he was big, strong,
stout, with a wicked or ugly-looking face.”). In referring to Bagosora, Sagahutu noted: “And he had a reputation
of being really bad, wicked, even in football. And his nickname was Kigatura, which means a sudden disease
which kills someone instantly.”
1327
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accounts.1331 However, in the Chamber’s view, their evidence is generally credible on the
repeated attacks at the parish, in particular where corroborated.
1196. Based on the evidence of Witnesses Sagahutu, RAS-4 and XX, the Chamber finds
that a number of mostly Tutsi civilians sought refuge at the Nyundo seminary on 7 April
1994, fearing violence after the death of President Habyarimana. At the time, several hundred
Tutsi refugees had already been staying for about a year, guarded by gendarmes, at the
nearby cathedral of Nyundo Parish, following earlier violence in the area. That afternoon, a
group of Interahamwe attacked the seminary killing two Tutsi priests.1332 A second attack in
the evening resulted in the death of a number of Tutsis in the chapel of the seminary. After
this attack, a priest and gendarmes arrived to evacuate the survivors, including the three
witnesses, to the bishop’s residence and cathedral at Nyundo Parish which was above the
seminary on a hill.
1197. Turning more specifically to Nsengiyumva’s involvement during the attacks at
Nyundo Parish, the Chamber observes first that the evidence is not clear as to whether or not
they were initiated by the alleged meeting between Nsengiyumva and the Interahamwe on the
morning of 7 April at the Gisenyi bus station. Sagahutu’s testimony about the meeting was
based on information received from Father Ntagara, who was probably not present at that
gathering (III.3.6.2). This evidence is therefore possibly double hearsay, and the Chamber is
reluctant to rely on it in the absence of corroboration. In any event, the evidence does not
clearly demonstrate that the individuals attending the alleged meeting were the ones who
attacked Nyundo Parish. The Chamber notes that Witness DO is the sole Prosecution witness
who places Nsengiyumva at the scene of the attack leading Interahamwe. As this evidence is
hearsay and uncorroborated, the Chamber will not make a finding that Nsengiyumva was
there.
1198. It follows from the evidence of Witnesses Sagahutu and XX that, on the morning of 8
April, Second Lieutenant Eustache Dusabeyezu, who was a student, and a group of
Interahamwe threatened refugees at the cathedral, extorted money from them and then
abducted Bishop Kalibushi from his residence.1333 Witness RAS-4 heard about the abduction
1331
The fact that Sagahutu testified against Witness RAS-4 in Rwanda may provide some motivation for the
latter to give testimony that detracts from the evidence of the former. Nsengiyumva’s assistance to Witness XX
may influence her to recall events in a light more favourable to him.
1332
Sagahutu initially testified that Fathers Adrien Nzanana and Déo Twagirayezu were killed during the first
attack. Witness RAS-4 also mentioned this. Sagahutu later stated that Déo Twagirayezu gave mass in the
seminary chapel, just before the second attack. See T. 27 April 2004 pp. 85-87. The Chamber does not find this
discrepancy material. It is clear that both priests were killed during the attacks. Furthermore, Sagahutu was not
present in the chapel.
1333
According to Sagahutu’s testimony, Dusabeyezu was a student at Saint Fidèle institute. Dusabeyezu’s
Rwandan judgment also refers to him as a student there. See Nsengiyumva Defence Exhibit 40 (Rwandan
judgment of Dusabayezu of 22 December 1998), p. 26. However, a list of postings of Rwandan officers as of 1
March 1994 indicates that he was a student at Mudende University. See Nsengiyumva Defence Exhibit 16
(Situation of officers in the Rwandan Army as of 1 March 1994). This difference is not material. Sagahutu also
referred to Lieutenant Dusabeyezu as “Eugene Hakizayezu” in his two prior statements to Tribunal
investigators. See Nsengiyumva Defence Exhibit 42 (undated statement of Sagahutu); Nsengiyumva Defence
Exhibit 43 (statement of 23 May 1998). However, Sagahutu correctly referred to Dusabeyezu in his statement to
Rwandan judicial officials. See Nsengiyumva Defence Exhibit 44 (statement of 26 February 1996). The
Chamber does not find this discrepancy significant, in particular as Dusabeyezu’s judgment shows that he was
indeed present at Nyundo Parish on 8 April 1994. See Nsengiyumva Defence Exhibit 40 (Rwandan judgment of
Dusabayezu of 22 December 1998).
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and mentioned the possible involvement of a soldier, which adds some limited corroboration.
As Dusabeyezu left with the bishop, he fired in the air, and the Interahamwe attacked the
parish. The refugees were able to fend off the assault without any casualty.
1199. While Sagahutu claims that Dusabeyezu’s shot signalled the beginning of the attack,
the Nsengiyumva Defence refers to his judgment in Rwanda, which concluded that he was
not the leader of the assailants and that the shot was not necessarily a signal to start the
attack. It also referred to his status as a student.1334 The view expressed by the Rwandan court
is not binding on the Chamber. However, its reasoning illustrates that Sagahutu’s evidence
does not compel the conclusion that Dusabeyezu’s actions started the attack. It is also unclear
what connection Dusabeyezu had to Nsengiyumva and where he fell into the military
structure, particularly as he appears to have been a student at the time.1335
1200. Witness ZF testified that, between 7 and 9 April, Nsengiyumva ordered the
evacuation of religious personnel and others from Nyundo Parish so that the military could
occupy it. The Chamber has already raised concern with the reliability of Witness ZF’s
indirect evidence (III.2.7-8). In the present contect, he did not specifically identify his basis
of knowledge for Nsengiyumva’s alleged order. The fact that the military did not occupy this
position, and that the refugees remained at the parish for several more weeks, also raises
some doubt as to the veracity of the order. Furthermore, the witness’s evidence concerning
the role of soldiers in the attack as well as the arrest of Bishop Kalibushi on 7 April is
second-hand and inconsistent with other reliable evidence. For example, Witnesses Sagahutu,
RAS-4 and XX explained that the assailants were Interahamwe and that Kalibushi was
arrested on 8 April. Consequently, the Chamber does not accept Witness ZF’s testimony
about the events at Nyundo Parish without corroboration.
1201. Based on the testimonies of Witnesses Sagahutu, RAS-4 and XX, the Chamber finds
that the Interahamwe, returned with reinforcements on the morning of 9 April and conducted
a large scale attack, killing many of the Tutsi refugees at the bishop’s residence and in the
sacristy of the cathedral. There is a discrepancy as to whether the assailants attacked with
guns or only with traditional weapons. The Chamber accepts Sagahutu’s first-hand credible
evidence about the use of firearms. The fact that Witnesses RAS-4 and XX did not recall the
assailants using guns likely results from the passage of time, their varying vantage points, as
well as the chaotic nature of the situation. The use of firearms in addition to reinforcements
further explains why the assailants were able to overpower the resistance of the refugees,
which had been successful the previous day.
1334
Nsengiyumva Defence Exhibit 40 (Rwandan judgment of Dusabayezu of 22 December 1998), pp. 29-30,
which reads : “Constate que l’infraction de participation criminelle dans les assassinats que l’Auditeur militaire
porte à charge du 2Lt [Dusabeyezu] n’est pas prouvée car il allègue tout simplement que l’accusé était sur les
lieux où les décisions étaient prises mais sans en rapporter de preuves tangibles, notamment sur l’endroit
précis; que l’autorité dont jouissait l’accusé et dont parle l’Auditeur militaire n’est pas une preuve de
participation criminelle surtout qu’il l’invoque en signalant l’acte louable qu’a posé l’accusé donnait
l’autorisation aux Interahamwe de commencer à tuer les gens qui avait trouvé refuge à Nyundo car aucun
témoin ne déclare connaître le signal qui a fait démarrer les massacres, surtout qu’ils ont débuté le lendemain
le 9 avril 1994; que par conséquent la participation criminelle du sous-lieutenant Eustache dans les massacres
de Nyundo reste douteuse; ...”. The Rwandan court further stated that Dusabayezu’s crimes did not make him an
offender of Category One crimes as stipulated in the Organic Law no. 08/96.
1335
Notably, Dusabayezu’s judgment also indicates that he had no command. Nsengiyumva Defence Exhibit 40,
p. 30 (Rwandan judgment of Dusabayezu of 22 December 1998).
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1202. The evidence reflects that the attack continued until mid-afternoon when Major
Biganiro, the gendarmerie commander, and a local official arrived and stopped the
massacre.1336 Witness XX survived in large part because a gendarme prevented an
Interahamwe from killing her. She was protected by Nsengiyumva until May 1994, when he
arranged for her to leave Rwanda for Goma. Sagahutu escaped on 10 April, when gendarmes
included him on a list of priests to be evacuated, which Bishop Kalibushi had provided the
previous day. Sagahutu eventually stayed with the bishop and other priests at a house near the
Hôtel Méridien, which was guarded by gendarmes. These gendarmes assisted Sagahutu and
the priests cross the border to Goma at the end of April. The Chamber has also heard secondhand evidence from Witnesses Sagahutu and LK-2 that the refugees at Nyundo Parish were
killed in May 1994. However, the Chamber does not have sufficient detail concerning this
attack to make any findings.1337
1203. There is no direct evidence that Nsengiyumva gave an order to attack Nyundo Parish.
Furthermore, it appears that the attacks between 7 and 9 April were perpetrated only by
militiamen. However, the Chamber has considered this attack in the context of the other
killings in Gisenyi at this time (III.3.6.1; III.3.6.5. III.3.6.7) as well as parallel attacks in
Kigali (III.3.5). It has also noted the manner in which the series of attacks at the parish
evolved from the initial targeted killings at the seminary on 7 April, an unsuccessful assault
on 8 April and finally the massacre on 9 April involving reinforcements and the increased
firepower of guns. The military clearly played a role in training and distributing weapons to
militia groups (III.2.6.2). The manner in which the attack unfolded reflects coordination.
Moreover, the repeated nature of the attack as well as its target, a major religious institution,
indicates that it was not merely sporadic violence. In the Chamber’s view, the only
reasonable conclusion is that it was an organised operation which must have been sanctioned
and ordered by the area’s military commander, Nsengiyumva.
1204. Bagosora has also been charged in relation to these killings. The Chamber does not
accept his argument that these allegations do not relate to him. The Prosecution’s Pre-Trial
Brief lists Sagahutu as supporting the relevant paragraphs of his Indictment related to
Gisenyi.1338 Bagosora exercised the highest authority in the military on 8 April (IV.1.2).
Nsengiyumva as the operational commander of Gisenyi was therefore under his command.
Furthermore, when this event is considered together with other parallel killings in Gisenyi
prefecture as well as in Kigali, the only reasonable inference is that these military operations
were ordered or authorised by Bagosora.
1336
Witnesses Sagahutu, RAS-4 and XX each describe the public official variably as the bourgmestre of
Kanama commune, the sub-prefect and the acting prefect. In the Chamber’s view, this discrepancy is not
significant. It follows from their evidence that it was a prominent local official.
1337
Prosecution Closing Brief, paras. 132, 489, 1051(e)(h). The Prosecution refers to the evidence of Witness
XBM who testified about a meeting on 24 May attended by Nsengiyumva where Bagosora thanked and
rewarded attackers who killed 430 Tutsis at “Nyundo cave”. T. 14 July 2003 pp. 24-29. According to the
witness, the killings at Nyundo cave occurred around 27 and 28 April 1994. No other witness mentioned this
incident, and no other evidence was offered in support of this assertion. The Prosecution does not indicate
whether Witness XBM’s account supports the allegations related to Nyundo Parish. The Chamber has already
expressed significant reservation about the witness’s credibility (III.3.6.7) and declines to accept it. Bagosora
has also presented a reasonable alibi for the period when the meeting occurred (III.6.1). The Chamber further
notes that Witness XEN-1, who lived and worked at the Hôtel Méridien in Gisenyi from early April until July
1994, testified that the meeting did not occur. T. 30 May 2006 pp. 4-5, 10, 15-16.
1338
Prosecution Pre-Trial Brief (7 June 2002), p. 8.
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1205. Having addressed the attacks, the Chamber will now consider the specific incident
involving Bishop Kalibushi. It is possible that Nsengiyumva, as the area’s operational
commander, specifically ordered the abduction of the bishop or that the action was taken
pursuant to a more general order from him to eliminate suspected accomplices. The Chamber
recalls that Kalibushi was a vocal critic of the government’s policy of arming and training
militiamen in the area (III.2.6.2). Nevertheless, the evidence does not clearly indicate the
connection between Dusabayezu and Nsengiyumva.
1206. Only Nsengiyumva provided direct evidence of what happened to the bishop at the
Commune Rouge. According to his testimony, he prevented the assailants from killing the
bishop and took him to safety at the Hôtel Méridien. This is corroborated by the second-hand
evidence of Witnesses Sagahutu, RAS-4 and XX, who each heard this later from the
bishop.1339 Nsengiyumva also arranged for Bishop Kalibushi’s evacuation in June, which was
done on the orders of the interim government.1340 Therefore, it is clear that Nsengiyumva
saved the bishop. This raises some doubt as to whether Nsengiyumva would have issued the
initial order to abduct Kalibushi.1341 The question remains why Nsengiyumva saved the
bishop. Kalibushi’s statement of July 1997 indicates that Nsengiyumva only saved him as a
result of pressure from his superiors.1342 This may be the case, but this statement was
tendered only in connection with assessing Nsengiyumva’s credibility. As there is no direct
evidence to this effect, the Chamber does not have a sufficient basis to conclude on this point.
1339
Nsengiyumva Defence Witness R-1, a former member of the military police, heard that the military police
saved Bishop Kalibushi. T. 26 July 2005 pp. 83-84; T. 28 July 205 pp. 16-18. In view of Nsengiyumva’s
testimony, Witness R-1’s testimony on this point is not credible. In addition, two statements to Tribunal
investigators given by Bishop Kalibushi were tendered into evidence during the cross-examination of
Nsengiyumva, which also confirm this fact. See Prosecution Exhibit 421 (statement of 18 and 19 June 1996);
Prosecution Exhibit 422 (statement of 29 July 1997).
1340
Nsengiyumva, T. 11 October 2006 pp. 49-50. Nsengiyumva stated that he was responsible for the
government taking the decision to evacuate the bishop. See also Prosecution Exhibit 420 (Excerpt of
Karemera’s agenda: “The issue of Bishop Kalibushi and his priests: The guard promised was not given. Supplies
did not follow; medical care. Though we were 19 only 9 remained; the top authorities got the others out secretly.
They, therefore, wished to leave for Goma. The Government decided that they should be allowed to leave with
an escort. The Ministry of Labour and Social Affiars is tasked with contacting the préfet and the Commander of
Operations in Gisenyi.”).
1341
The Prosecution also pointed to the testimony of Omar Serushago, an Interahamwe, concerning an alleged
order given by Nsengiyumva to kill Bishop Kalibushi in Mid-May to June which was later retracted at the order
of the government. See Prosecution Closing Brief, para. 1388(a); T. 18 June 2003 pp. 6, 51-57; T. 19 June 2003
pp. 23-30. This evidence is outside the scope of paragraph 6.19 of the Nsengiyumva Indictment. In any event,
the Chamber has concerns with the credibility of this uncorroborated evidence in view of Serushago’s status as
an alleged accomplice (See T. 18 June 2003 p. 3; Serushago Trial Judgement, 5 February 1999, para. 4, p. 15) as
well as the inconsistency between his testimony and his prior statements about who issued the orders. For
example, in his statement, he said that the order to kill Kalibushi came from Bernard Munyagishari. See T. June
2003 pp. 26-28 (quoting Serushago’s statement to Tribunal investigators of 13 February 1998). It was not
tendered into evidence.
1342
Prosecution Exhibit 422B (statement of 29 July 1997), p. 4 which reads: “As far as I can tell you about the
activities of Colonel Anatole Nsengiyumva during the genocide period, I will sum them up this way: - He was
the supreme leader of the ‘Esquadron de la mort’ (Death Squad) in Gisenyi Prefecture. – He could have saved
lives, but instead encouraged killings. – He supplied arms to the Interahamwe to kill members of the Tutsi
ethnic group. – He made speeches at the stadium encouraging the Interahamwe to ‘go ahead and finish the job’
meaning ‘go ahead and kill all Tutsis’. – Nsengiyumva did not save me. He was afraid of the higher authority,
he could have killed me. He had the power and means to do whatever he wanted to do during the genocide
period in Gisenyi. This man was a killer and supreme commander of death squads.”
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3.6.7
Mudende University and Busasamana Parish, 7 - 9 April
Introduction
1207. The Bagosora and Nsengiyumva Indictments allege that, from 7 April 1994, military
personnel and militiamen massacred Tutsis and “political opponents” in Gisenyi prefecture
on the orders of Nsengiyumva. The Prosecution contends that he ordered soldiers and
militiamen to massacre the Tutsi refugees at the Central African Adventist University in
Mudende. Reference is made primarily to Witnesses HV, XBM and XBG. The testimony of
Witness XBG also shows that, immediately after the attack at the university, the assailants
allegedly massacred Tutsis at Busasamana Parish in the presence of Nsengiyumva.1343
1208. The Nsengiyumva Defence argues that these attacks are not pleaded in the Indictment.
Furthermore, the testimonies lack credibility and are contradicted by Witnesses Willy Biot,
LK-2, LT-1, WY, MAR-1, BZ-1, HOP-1, YD-1, EAC-1 and KB-1. The Defence also refers
to Alphonsine Rugwizangoga Uwase to establish an alibi. The Bagosora Defence contends
that the evidence lacks credibility and does not implicate Bagosora in the attack.1344
Evidence
Prosecution Witness HV
1209. Witness HV, a Tutsi, was a student at Mudende University in April 1994. She
testified that around 400 mostly Tutsi civilians, fleeing violence in the surrounding areas,
sought refuge in the university’s classrooms on the morning of 7 April. That evening, five
soldiers addressed the students and told them: “You know what has happened. You know that
the head of state is dead. You know the circumstances in which he died. You know who his
killers are. We have come here to ensure your security and safety.” The witness knew they
were soldiers by their uniforms. She heard from others that a soldier killed the son of Frédéric
Nzamurambaho, the Chairman of the PSD party and Minister of Agriculture, in the school’s
dormitory during the night.1345
1210. Around 6.00 a.m. on 8 April, Dr. Manga, an American who was in charge of student
services, asked the students to go to the dormitories and locked them in. Witness HV and
other female students complied with the instructions, but many of the male students did not.
Two soldiers, and civilians armed with traditional weapons, attacked the campus around 9.00
a.m. and began killing the refugees there. The soldiers fired at the doors of the classrooms,
opening them so that the civilian assailants could kill the refugees hiding inside. The soldiers
stood passively by as the killing unfolded. Shortly after the attack began, the witness could
not bear to watch any more and lost consciousness.1346
1343
Bagosora Indictment, paras. 6.58, 6.59; Nsengiyumva Indictment, paras. 6.11, 6.22; Prosecution Closing
Brief, paras. 134-135, 461-465, 506, 629, 1043, 1051, 1061, 1531-1535.
1344
Nsengiyumva Brief, paras. 48, 52 (a), 711-723, 724-735, 1094, 1243-1247, 1248-1259, 1280-1336, 2016,
2019, 2213, 2223, 2235, 2236, 2436, 2439, 2452, 2861-2863, 2867-2901, 2902, 2905-2907, 2956; Bagosora
Closing Brief, paras. 1623-1625, 1667-1673, pp. 382-383; T. 31 May 2007 pp. 58-61, 69.
1345
T. 23 September 2004 pp. 21, 23-25; T. 24 September 2004 pp. 2-3, 7-10; Prosecution Exhibit 308 (personal
identification sheet).
1346
T. 23 September 2004 pp. 25-27; T. 24 September 2004 pp. 10-14. In the transcripts, the name “Dr. Manga”
is spelled phonetically. T. 24 September 2004 p. 2. It is not clear whether this is the same individual as Vice-
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1211. About two hours later, the two soldiers and the crowd of attackers forced open the
doors of the dormitory and ordered the students to come out. The soldiers separated the Tutsi
students from the non-Tutsis. Witness HV was told that the attackers killed two Tutsi
students. She was able to escape to the dining hall when it began raining during a lull in the
attack. Later that day, gendarmes arrived and promised to protect the refugees. Around 7.00
or 8.00 p.m., masked soldiers arrived and lined up the remaining refugees, checking their
identities and reading out names from lists. Each time a deceased person’s name was read,
they marked it off the list. The gendarmes prevented the soldiers from taking anyone away
and evacuated the surviving Tutsis to Gisenyi stadium the next evening. The students asked a
gendarme to assist them to flee, promising him money, but the gendarme refused, saying that
the military commander of the area knew the students were there.1347
Prosecution Witness XBM
1212. Witness XBM, a Hutu CDR party member, testified that, around 12.15 p.m. on 7
April 1994, he attended a meeting at the Mutura commune office. It included around 75
officials and members of the MRND and CDR parties, representing all sectors in the
commune. Jean-Damascène Ntamaherezo, the president of the MRND party, read a message
from Jean-Bosco Barayagwiza, the president of the CDR, that the Tutsis had to be
exterminated because they had killed President Habyarimana. Around 3.30 p.m.,
Ntamaherezo received a message and informed the gathering that there was a problem at
Mudende University.1348
1213. Around 4.00 p.m., the witness and the other participants went to the university, five to
six kilometres away, to investigate. They learned from Sergeant Rukara, a gendarme
guarding the campus, that Tutsi students were mocking Hutu students, who were in
mourning. Since it was evening, the witness spent the night nearby at a relative’s home.
Between 4.30 and 6.30 a.m. the next morning, he heard gunshots coming from the
university’s campus. The gendarmes at the campus assured the local population not to worry
about the gunfire, but the witness later learned that Tutsis had been killed. Before leaving
Mudende around 1.00 p.m. on 8 April, he saw many Tutsi refugees streaming to the
university from the surrounding area, seeking sanctuary from the violence.1349
1214. On the evening of 8 April, a conseiller told Witness XBM that the military wanted to
address the population at a meeting the following morning. Around 8.00 a.m. on 9 April, the
witness and approximately 200 others gathered at Kanyundo, a few hundred metres from the
Mutura commune office. Some members of the crowd were armed with traditional weapons,
and the witness had a stick. Second Lieutenant Nduwayezu, commander of the Kanyundo
military position, told the crowd to go to Mudende. Nduwayezu, 11 other soldiers, and the
crowd then went to the university. Sergeant Rukara informed Nduwayezu that the number of
rector Munger or Dr. Lienart, referred to below by Witnesses LK-2 and Biot, respectively. This possible
ambiguity, however, is not material to the Chamber’s findings.
1347
T. 23 September 2004 pp. 27-32; T. 24 September 2004 pp. 13-19, 31-32. Witness HV distinguished
between the soldiers and gendarmes by virtue of their uniforms and the colour of their berets. In particular, she
noted that gendarmes wore red berets and soldiers wore black berets. T. 23 September 2004 p. 35; T. 24
September 2004 p. 3.
1348
T. 14 July 2003 pp. 3-4, 39-41, 60-61; Prosecution Exhibit 80 (personal identification sheet).
1349
T. 14 July 2003 pp. 41-43, 62-63.
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refugees had increased to 2,000 and that he had tried to get reinforcements from the
commander of a military position near the Kabumba market, which had been refused.1350
1215. Lieutenant Nduwayezu then contacted the military position over the radio, seeking
reinforcements. He was told that authorisation from superiors was required. Around 11.00
a.m., an ONATRACOM bus full of armed soldiers arrived and surrounded the university.
Nsengiyumva arrived in a military jeep 20 minutes later and spoke with Nduwayezu and the
gendarme guarding the university. The witness did not hear what was said. Nsengiyumva
remained at the university for around an hour while Hutu students were evacuated. He then
ordered the unarmed civilians to withdraw from the university and left. The soldiers and
armed civilians began firing with guns and grenades at the Tutsi refugees. The killing lasted
until around 5.00 p.m. The next day, on 10 April, the witness returned to the university from
9.00 a.m. until around 1.00 p.m. and watched as armed civilians looted and killed the Tutsi
survivors.1351
Prosecution Witness XBG
1216. Witness XBG, a Hutu and CDR official, testified that, around 10.00 a.m. towards the
end of May 1994, Bourgmestre Jean Berchmans Bakiye called a meeting near Mudende
University of around 3,000 armed civilians. The witness attended as a representative of the
CDR party along with 100 Interahamwe under his command. Bakiye, who was accompanied
by Hassan Ngeze, told the crowd that Bagosora and Jean-Bosco Barayagwiza had visited him
the day before and told him to “get rid of all dirt”. Bakiye then pointed to the university
where Tutsi refugees were guarded by gendarmes. He said that after the attack on the
university they were to proceed to Busasamana Parish to reinforce the Interahamwe there.1352
1217. Around 11.00 a.m., approximately 20 soldiers arrived in a truck from the ISAR
Tamira military position. For the next hour, the armed civilians and gendarmes attacked and
killed some 600 Tutsi refugees at the university. The gendarmes fired at the doors of the
various buildings, which were surrounded by civilian attackers who killed anyone who
escaped. According to the witness, the soldiers did not actively participate in the attack since
the gendarmes were involved in the killings; they arrived simply as reinforcements. For his
part, the witness supervised the 100 attackers who accompanied him, but did not personally
kill anyone.1353
1218. After the massacre at the university, Witness XBG and many of the other assailants in
Mudende went to Busasamana Parish in Rewerere commune to assist other armed attackers
to kill Tutsis there. On arrival, the witness saw an ONATRACOM bus filled with
Interahamwe and Nsengiyumva’s Land Rover. When they saw Nsengiyumva, the assailants
1350
Id. pp. 44-46, 66; T. 15 July 2003 p. 51.
T. 14 July 2003 pp. 46-48, 67.
1352
T. 8 July 2003 pp. 49-50, 67, 71; T. 9 July 2003 pp. 20-24, 50, 66, 74; Prosecution Exhibit 66 (personal
identification sheet). The witness used the term “Interahamwe” generally to describe the militiamen who
accompanied him even though he was part of the CDR party, explaining: “There were Interahamwe who were
members of the MRND. The Impuzamugambi were members of the CDR. After Habyarimana’s death, all of us
were described as Interahamwe, because the Interahamwe and the Impuzamugambi united in order to avenge
Habyarimana’s death. There was no difference between MRND and CDR. All of us became Interahamwe.” T. 8
July 2003 p. 94; T. 9 July 2003 pp. 50-51 (“[After the death of Habyarimana,] [w]e were no longer Interahamwe
or Impuzamugambi separately, we were Hutus whose purpose was to kill the Tutsis”.).
1353
T. 8 July 2003 pp. 50, 55, 67, 69-70; T. 9 July 2003 pp. 23, 29, 33. Witness XBG stated that “ISAR”
referred to the “Institut de science agronomique du Rwanda” (Agricultural Science Institute of Rwanda).
1351
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danced and sang “exterminate these Inyenzi-Inkotanyi”. Acrobats also preformed. After the
singing and dancing, Hassan Ngeze introduced Nsengiyumva to the crowd. Nsengiyumva
spoke for 20 minutes and told them: “you’re going to attack a sacred place, so be careful.
You should not damage the church building”.1354
1219. Witness XBG also testified that, while in prison, he heard about an even larger
massacre of 2,000 Tutsis from the local area at the university which occurred in April 1994.
The massacre towards the end of May in Mudende involved Tutsis from other surrounding
communities.1355
Nsengiyumva
1220. Nsengiyumva denied that he or his soldiers were involved in the massacre at
Mudende University. On 8 April 1994, he rescued Bishop Kalibushi of Nyundo and held
meetings at the MULPOC offices. On 9 April, he participated in a meting with André
Banyurwabuke, the acting prefect of Gisenyi prefecture, at Umuganda Stadium from 11.00
a.m. to 2.00 p.m.1356
Nsengiyumva Defence Witness Willy Biot
1221. Major Biot, a Belgian military adviser to the Rwandan army, was stationed in the
commando training centre in Bigogwe, Gisenyi prefecture in April 1994. In testifying, he
relied in part on the campaign journal which he maintained during the relevant events that
contemporaneously summarised the main events. From 7 to 13 April, Biot assisted in the
evacuation of expatriates living in the prefecture. At 9.15 a.m. on 8 April, he received a
telephone call from a Mr. Lienart of the Central African Adventist University in Mudende
informing him that around 500 persons had been killed there. He also told Biot that a number
of expatriates wanted to be evacuated. Biot responded that he was not in a position to
organise the evacuation immediately, but that he would apprise the army of the situation at
the university.1357
1222. Biot then called the commander of the Bigogwe training centre, Lieutenant Colonel
Nzungize, to inform him about the situation at the university and requested an escort for the
evacuation. From Biot’s continued contacts with Mr. Lienart, the situation at the university
appeared to remain calm. Two members of Biot’s team participated in the evacuation which
occurred between 9 and 10 April. Biot did not receive any further confirmation about the
killings or who might have been responsible for them. He stated that Mr. Lienart’s reports of
the killings at the university might have been based on rumours.1358
Nsengiyumva Defence Witness LK-2
1223. Witness LK-2, a gendarme attached to the Gisenyi squadron, testified that, on 8 April
1994, vice-Rector Munger of the Central Adventist University in Mudende reported a large
number of Tutsi refugees at the university and requested assistance. Lieutenant Harelimana
was dispatched to Mudende and indicated that civilian assailants, who had since departed,
1354
T. 8 July 2003 pp. 70-71, 74, 79; T. 9 July 2003 pp. 31-33.
T. 9 July 2003 pp. 25-26, 28, 67-69.
1356
T. 4 October 2006 pp. 31-32; T. 5 October 2006 pp. 5-7, 15-18. MULPOC refers to Multinational
Programming and Operational Centre of Economic Commission for Africa.
1357
T. 21 September 2006 pp. 73-75, 82; T. 22 September 2006 pp. 4-6, 22-26, 36-37; Prosecution Exhibit 411
(Campaign Journal).
1358
T. 21 September 2006 pp. 75-76, 82; T. 22 September 2006 pp. 17, 24-26, 35-37.
1355
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had killed "a few tens or dozens" of refugees. The gendarmerie detachment remained at the
university until the following day when it escorted the students to Gisenyi town. The witness
was not aware of any other attacks on the university or reports of the involvement of soldiers
in the attack.1359
Nsengiyumva Defence Witness LT-1
1224. Witness LT-1, a Hutu, was a student at Mudende University. On 8 April 1994,
civilians armed with traditional weapons attacked the Tutsi refugees who had arrived at the
university the previous day. After the initial attack, the assailants checked identity cards of
the students, who were hiding in the dormitories, and told some of the refugees to go to the
dining hall while the others were told to stay. She later heard that some Tutsi students in the
dormitory were killed. That evening, civilian assailants returned and again began checking
the students’ identity papers. A group of three to five gendarmes dispersed these militiamen
and told the students that they were there to protect them. No other attack occurred, and the
university was evacuated the next day.1360
Nsengiyumva Defence Witness WY
1225. Witness WY, a Hutu, studied at Mudende University. Around midday on 7 April
1994, he learned that members of the local population had killed Edmond Nzamurambaho
because of his public display of happiness at the death of President Habyarimana. That day,
around 80 refugees arrived at the university. On the morning of 8 April, civilians armed with
traditional weapons attacked the campus, but were repelled. The assailants returned later with
reinforcements, but the fight ended around 10.00 a.m., when 10 gendarmes put an end to the
attack. The witness estimated that around 30 persons were killed on both sides. He was
evacuated the next day.1361
Nsengiyumva Defence Witness MAR-1
1226. Witness MAR-1, a Hutu, was a student at Mudende University. He learned from
others that Edmond Nzamurambaho was killed on the university’s campus by “vandals”
offended by his behaviour. On 8 April 1994, around 30 members of the local population
armed with traditional weapons attacked the refugees who had gathered at the university the
previous day. Gendarmes, who arrived between 10.00 and 11.00 a.m., stopped the attack. The
witness saw casualties on both sides. He did not hear any gunfire during the attack nor did he
see Nsengiyumva or other soldiers. The gendarmes evacuated the students from the
university between 9 and 10 April.1362
Nsengiyumva Defence Witness Alphonsine Rugwizangoga Uwase
1227. Alphonsine Uwase, a Hutu, worked at the prefecture office in Gisenyi in April 1994.
On 9 April, she saw Nsengiyumva in a meeting from 11.00 a.m. until between 1.00 and 2.00
p.m. with the prefect at Umuganda stadium.1363
1359
T. 19 April 2005 pp. 2, 22-26; Nsengiyumva Defence Exhibit 73 (personal identification sheet).
T. 26 April 2005 pp. 52, 54-55, 58-60; Nsengiyumva Defence Exhibit 74 (personal identification sheet).
1361
T. 31 May 2006 pp. 2-6, 12, 31; Nsengiyumva Defence Exhibit 179 (personal identification sheet).
1362
T. 29 May 2006 pp. 54, 57-64; Nsengiyumva Defence Exhibit 176 (personal identification sheet).
1363
T. 10 July 2006 pp. 3-4, 17-18, 20; Nsengiyumva Defence Exhibit 201 (personal identification sheet).
Uwase was formerly referred to as Nsengiyumva Defence Witness OAU-1.
1360
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Nsengiyumva Defence Witness BZ-1
1228. Witness BZ-1, a Hutu gendarme, testified that he was on leave in Gisenyi in April
1994. On 9 April, he heard about the massacre at Mudende University from someone who
participated in the attack. The individual told the witness that, on 8 April, civilian assailants
went to the university to kill the “Inyenzi” who had sought refuge at the campus. The witness
heard that Witnesses XBM and XBG were amongst the assailants. Witness BZ-1 was not
aware that soldiers were involved in the killings at Mudende on 8 April.1364
Nsengiyumva Defence Witness YD-1
1229. Witness YD-1, a Hutu, testified that a student from Mudende University told him
about the attack there, which occurred around 11.00 a.m. on 8 April 1994. The witness
learned that Witnesses XBM and XBG were among the leaders of the attack. He did not hear
about an attack on 9 April. The witness was also informed that the assailants killed
Faustin Ndabarinze, a former bourgmestre of Mutura commune, after the attack and
continued killing Tutsis in Kibavu and at Busasamana parish.1365
Nsengiyumva Defence Witness HOP-1
1230. Witness HOP-1, a Hutu, was arrested in December 1996, charged of with genocide
and acquitted in 2000. While in prison, he heard that a number of persons, including
Witnesses XBM and XBG, agreed to give false testimony against Nsengiyumva in exchange
for better treatment.1366
Nsengiyumva Defence Witness EAC-1
1231. Witness EAC-1, a Hutu, lived in the area around Busasamana Parish in 1994. After
attending mass there on the morning of 8 April 1994, he went to look for food for some of the
Tutsi refugees at the parish. When he returned around 11.00 or 11.30 a.m., a large group of
Interahamwe, who had arrived on foot, had surrounded the parish. They attacked at about
2.00 p.m. and killed many of the refugees. Four gendarmes arrived around 3.30 p.m. and fired
into the air to disperse the assailants. The gendarmes rescued the two priests at the parish.
The witness did not see Nsengiyumva or soldiers participating in the attack. He was also
unaware of an attack or any other refugees gathering at the parish in May 1994.1367
Nsengiyumva Defence Witness KB-1
1232. Witness KB-1, a Hutu, testified that, between 2.00 and 3.00 p.m. on 8 April 1994, he
was returning from Gisenyi town to his native area around Busasamana Parish. At Gasenyi,
he observed a vehicle carrying gendarmes and priests from the parish. From a nearby hill he
could see Interahamwe surrounding Busasamana Parish. When he walked by the parish, he
observed corpses and a few Interahamwe trying to loot. The witness did not hear about
Nsengiyumva participating in the killings or of any further attack on the parish in May or
June.1368
1364
22 February 2006 pp. 3-4, 7-8, 10; Nsengiyumva Defence Exhibit 138 (personal identification sheet).
T. 12 December 2005 pp. 38-39, 42-47; Nsengiyumva Defence Exhibit 131 (personal identification sheet).
1366
T. 20 June 2006 pp. 3-5, 17-27; Nsengiyumva Defence Exhibit 190 (personal identification sheet).
1367
T. 10 October 2006 pp. 70-74, 76, 85-89; Nsengiyumva Defence Exhibit 223 (personal identification sheet).
1368
T. 20 February 2006 pp. 8-14, 17-19; Nsengiyumva Defence Exhibit 136 (personal identification sheet).
1365
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Deliberations
1233. The Prosecution presented three witnesses concerning the attacks at Mudende
University. One of them also testified about an attack at the Busasamana Parish by the same
assailants. In view of the overlap in evidence, the Chamber considers these events together.
(i) Mudende University
1234. The Prosecution witnesses provided different accounts of the attack at Mudende
University, in particular with respect to the date on which it occurred, the identity of the
assailants, and the scope of the assault. Witness HV placed the attack on 8 April 1994 and
described the assailants primarily as civilians armed with traditional weapons, supported by
two soldiers. Witness XBM stated that the main assault occurred on 9 April and involved a
bus full of soldiers and other civilian attackers, armed with firearms. Witness XBG described
an attack at the university by soldiers and militiamen, armed with firearms, followed
immediately by an attack at the Busasamana Parish at the end of May 1994. The Prosecution
submits that the attack at the university described by Witness XBG occurred around 8 April
1994 and corroborates Witness HV’s testimony.1369 However, the detailed chronologies
provided by each witness for the events as well as their descriptions of how the attack
unfolded do not permit them to be easily reconciled.
1235. In assessing Nsengiyumva’s responsibility for the attacks the Chamber must first
consider which account is credible. In the Chamber’s view, Witness HV, a survivor of the
attack at Mudende University, provided the most reasonable version of what transpired.
Although her testimony is not without problems, it is corroborated to varying degrees by
several Defence witnesses who equally refer to an attack launched at the university primarily
by civilian assailants on the morning of 8 April 1994. In addition, it also follows from this
evidence that no significant violence occurred on 9 April, when the university was evacuated
by gendarmes that evening.
1236. Bearing in mind the evidence supporting the sequence of events described by Witness
HV, the Chamber finds it difficult to accept Witness XBM’s version, placing the major attack
one day later on the afternoon of 9 April. Witness XBM gave a comprehensive day by day
account of his daily visits to the university from 7 until 10 April, which precludes the
possibility that he was simply mistaken about the date of the attack. In addition, his
description of the assailants as a busload of armed soldiers who attacked with guns and
grenades radically differs from the account of Witness HV who only saw two soldiers playing
a more supporting role. While her evidence reflects that she was not in a position to follow
closely every aspect of the attack, the Chamber finds it difficult to believe that the presence
of a busload of armed soldiers killing refugees with firearms would have escaped her notice.
Witness XBM is also alone in describing the evacuation of Hutu students and placing
Nsengiyumva at the campus before the attack.
1237. Witness XBM pleaded guilty to genocide before the Rwandan judicial authorities for
failing to react when he witnessed the killing of a single individual on 8 April 1994.1370 In his
1369
Prosecution Closing Brief, para. 134.
Witness XBM described his involvement in the genocide as follows: “I killed no one, I played no role, I just
went to the scene where the massacres were carried out, to see, just to see.” With respect to his guilty plea, he
explained: “I witnessed the killing of someone, I did not react.” See T. 14 July 2003 pp. 5-6; Prosecution Exhibit
1370
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statement to Rwandan officials in January 2003, he did not mention his purported presence
during the repeated attacks at the university in Mudende. The witness explained that he was
not asked about the attack.1371 It may be the case that he was not questioned about whether he
participated in the attack on Mudende university. The Chamber finds it difficult to accept,
however, that the Rwandan officials did not ask him whether he was involved in any other
criminal conduct during the relevant period. It is also troubling that several days later, he
gave a much fuller account of his criminal activities, including the attack on the university, to
Tribunal investigators in a statement of 28 February 2003, which was the day he was released
from prison.1372
1238. The witness was asked to explain why he repeatedly walked the five kilometres to
Mudende armed with a traditional weapon to watch a massacre as an innocent bystander. He
replied that he was armed because “[it] was my right, an absolute right to carry a stick, and I
did not do anything with it”.1373 In justifying why he innocently returned a second day to
watch local civilians loot and kill survivors, he stated: “I told you that it was my absolute
right. I don't see why you should be dwelling on that.”1374 Ultimately, the witness explained
that he repeatedly went to Mudende because he had nothing better to do.1375 The Chamber is
not convinced that the witness was forthcoming about his own role in the attack, in particular
given that his presence at the university followed a meeting where prominent leaders in the
community, including the witness, were urged to kill Tutsis. In the Chamber’s view, the
witness’s responses as well as others throughout his cross-examination appeared evasive and
unpersuasive.1376
1239. Finally, the Chamber notes the discrepancy between Witness XBM’s testimony that
he was a member of the CDR party, and his statement to Tribunal investigators in February
2003, indicating that he was a local official of the MDR party.1377 This discrepancy is
significant because, throughout his testimony, the witness extensively discussed CDR party
activities. It was also the main reason why he attended the meeting on 7 April at the Mutura
commune office where CDR and other party officials allegedly told the select participants to
exterminate Tutsis in the area.
1240. When this discrepancy was put to him, the witness explained that he unwillingly
joined the CDR party in 1992 to ensure his personal security, but remained a clandestine
member of the MDR party. He also said that the investigators did not ask him whether he was
a member of the CDR party. It is evident, however, that the investigators asked him about his
political affiliation. Given the significance of his party membership to his testimony, the
81 (Guilty Plea of Witness XBM, dated 20 January 2003). The witness was released from prison on 28 January
2003, approximately six months before his testimony. See T. 14 July 2003 p. 5. He gave his first statement to
Tribunal investigators in February 2003. Bagosora Defence Exhibit 26 (statement of 28 February 2003).
1371
T. 14 July 2003 pp. 70-72.
1372
Bagosora Defence Exhibit 26 (statement of 28 February 2003).
1373
T. 14 July 2003 p. 66. Witness XBM later stated that the authorities required all members of the population
to carry a weapon. Id. p. 69.
1374
Id. p. 67.
1375
Id. p. 69 (“Q. … why go to the university day after day, massacres are being committed but you are just
standing there, watching; why? A. Mr. President, I thank you. I went there but many people also went there on
the 7th, 8th and 9th because trading had been banned and there was no activity in the school, so all people did
was to go around and that’s what I did too. That was the situation prevailing in the country.”).
1376
See, e.g., id. p. 75 (comment by the presiding judge to Witness XBM).
1377
Id. pp. 54-59; Bagosora Defence Exhibit 26 (statement of 28 February 2003).
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Chamber finds it surprising that the witness failed to mention this important fact, if true, in
his statement. This discrepancy raises further concerns about his credibility. In light of the
foregoing, the Chamber declines to accept Witness XBM’s evidence without adequate
corroboration.
1241. In the Chamber’s view, Witness XBG does not provide such corroboration.1378 The
Prosecution argues that his account of the attack at Mudende University at the end of May
1994 in fact occurred around 8 April and supports Witness HV’s version of events.1379 The
Chamber notes, however, that Witness XBG repeatedly insisted that the attack which he
described occurred at the end of May.1380
1242. Assuming that Witness XBG was referring to the attack of 8 April, differences remain
between his account and that of Witness HV. In particular, the military presence Witness
XBG described is significantly larger than that discussed by Witness HV. Moreover, Witness
XBG primarily implicates the gendarmes in actively supporting the killings by militiamen
whereas Witness HV’s evidence suggests that they protected the students and refugees.
1243. Other aspects of Witness XBG’s testimony raise concern about his general credibility.
The witness pleaded guilty in Rwanda to participating in the murder of four individuals on 7
April 1994.1381 He was released from prison two months before his testimony in this case.1382
In his confession, the witness acknowledged “the importance of pleading guilty without
hiding anything”.1383 In spite of stating that his confession was exhaustive, he did not mention
his prominent role in supervising 100 Interahamwe in the attacks at the university in
Mudende and at the Busasamana Parish. The witness explained that he would have been
sentenced to death if he had spoken about these events.1384 The Chamber is fully aware that
witnesses pleading guilty to Rwandan authorities may wish to minimise their own
involvement during the events in 1994. However, this discrepancy and Witness XBG’s
willingness to be less than forthcoming with judicial officials raise concerns about his
credibility.1385
1378
The Chamber notes that Witness XBG testified about two massacres at Mudende Univeristy, one in April
and one in May. The witness was not an eyewitness to the large scale attack in early April. This evidence came
from an unidentified second-hand source. It also lacks any significant detail, in particular with respect to the
identity of the perpetrators and as to how the attack unfolded. This hearsay testimony therefore would not
corroborate Witness XBM’s account.
1379
Prosecution Closing Brief, para. 134. While the Prosecution submits that Witness XBG’s evidence about the
attack on Mudende University supports Witness HV’s version of the events on 8 April, it nonetheless places the
attack on Busasamana Parish in May 1994. Id. para. 135. According to Witness XBG’s testimony, this followed
immediately after the attack on the university. In another part of its brief, the Prosecution places the massacre at
the university in Mudende described by Witness XBG in May 1994. Id. para. 1043.
1380
T. 9 July 2003 pp. 20, 25-26, 29, 66, 68-69, 73-74.
1381
The witness gave three statements acknowledging responsibility to Rwandan judicial officials. See
Prosecution Exhibit 71 (Letter from Witness XBG to the Rwandan Public Prosecutor); Prosecution Exhibit 72
(Pro Justitia statement of 10 March 1999 by Witness XBG); Prosecution Exhibit 73 (Pro Justitia statement 26
May 2000 by Witness XBG). His Rwandan judgment was admitted as Prosecution Exhibit 74 (Rwandan trial
judgment of Witness XBG, dated 26 October 2001).
1382
Witness XBG, who testified on 8 and 9 July 2003, was released on 5 May 2003. T. 8 July 2003 p. 8.
1383
T. 8 July 2003 pp. 86-87. See also Prosecution Exhibit 72 (Pro Justitia statement of 10 March 1999 by
Witness XBG). Witness XBG emphasised that he believed in this proposition “with all [his] heart”.
1384
T. 8 July 2003 p. 87 (“If I had talked about those events I would have gotten a death sentence”).
1385
In addition, the Chamber observes that the Rwandan court noted that certain aspects of Witness XBG’s
confession were less than forthcoming. In particular, it concluded that he directly participated in a killing which
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1244. The Chamber has also noted that Witness XBG only referred to gendarmes in his
statement to Tribunal investigators in August 2002, not to the presence of soldiers during the
attack at Mudende University.1386 The witness stated that, when questioned by investigators,
he referred to gendarmes because “gendarmes too are soldiers”. He added: “The fact that I
did not mention that there were soldiers there is not a problem. Whether the soldiers came or
not, that would not have prevented the massacres of people.”1387 In the Chamber’s view, the
witness’s response does not clarify his failure to mention the presence of Rwandan army
soldiers, who were allegedly supervising the attack. This is a significant omission in relation
to the criminal responsibility of Nsengiyumva. The witness’s explanation raises further
questions about the reliability of his account and his ability to accurately distinguish between
various military units. For the foregoing reasons, the Chamber is unwilling to accept Witness
XBG’s evidence concerning the attacks at Mudende University and Busasamana Parish
without corroboration.1388
1245. The Defence evidence is second-hand and far from definitive. The Chamber’s
concerns with Witnesses XBM and XBG’s testimony rest first and foremost on the reasons
explained above. Nevertheless, the evidence of Witnesses BZ-1, HOP-1 and YD-1 about the
prominent roles played by Witnesses XBM and XBG in the attack supports the Chamber’s
concerns about the credibility of their accounts. In view of the Chamber’s findings on the
credibility of Witnesses XBM and XBG, the Chamber does not need to discuss here whether
Nsengiyumva had an alibi on 8 and 9 April, as attested to by Nsengiyumva and Uwase.
1246. The Chamber finds it established that, on 7 April 1994, several hundred Tutsi
refugees arrived at Mudende University. This follows from the testimony of Witness HV as
corroborated in varying degrees by Witnesses LT-1, WY and MAR-1. The Chamber is not
convinced on the basis of Witness HV’s evidence alone that five soldiers came to the
university that evening and blamed the Tutsis for killing President Habyarimana. The witness
did not mention the presence of soldiers to Tribunal investigators and instead referred in her
statement only to gendarmes coming to the campus.1389 Otherwise in her statements and
during her testimony she had no problems in distinguishing between these two groups.1390
1247. Based on the evidence of Witness HV, as corroborated by Witnesses WY and MAR1, the Chamber finds that Edmond Nzamrambaho, the son of Frédéric Nzamrambaho, was
he only claimed to have observed. See Prosecution Exhibit 74 (Rwandan trial judgment of XBG, dated 26
October 2001)(“Constate que [Witness XBG] a fait recours à la procédure d’aveu de plaidoyer de culpabilité,
que néanmoins ses aveux ont été rejetés car il n’a pas bien explicité sa déclaration relative à la mort de […], là
où il affirme qu’il a seulement participé à son enterrement alors qu’on l’accuse de l’avoir sortie de la maison et
participé à son assassinat.”).
1386
Nsengiyumva Defence Exhibit 32 (statement of 29 August 2002).
1387
T. 9 July 2003 p. 23.
1388
There is also other hearsay evidence from Witness XBM who heard while in prison that there was another
attack at the university at the end of May. This is not sufficient to credibly corroborate Witness XBG’s account.
1389
T. 24 September 2004 pp. 6-7, 23, 26; Nsengiyumva Defence Exhibit 60 (statement of 28 November 1995).
Witness HV explained this discrepancy by noting that she was still traumatised when she gave her statement and
acknowledged difficulty in remember the events. In view of this omission in her statement, coupled with her
explanation, the Chamber has some doubt about her reliability on this point and is hesitant to accept the
witness’s account of the soldiers’ visit without corroboration.
1390
T. 23 September 2004 p. 35 (“Q. During your testimony, Madam Witness, you have spoken about soldiers
and you have spoken about gendarmes. How did you distinguish between those two groups? A. We had known
them before. Soldiers had their own uniform, the camouflage, while the gendarmes had khaki colour uniform.
Their berets were also of different colours. The gendarmes wore red berets.”).
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killed at some point around 7 April. The exact time of the killing and the identity of the
perpetrators is unclear since the three accounts of his death are second-hand and vary in these
respects.
1248. Turning to the attack of 8 April, the Chamber relies primarily on Witness HV. It
follows from her evidence that in the morning militiamen supported by at least two soldiers
attacked and killed the Tutsi refugees at the university. Witnesses LK-2, LT-1, WY, MAR-1
as well as Biot corroborate to varying degrees an attack that morning primarily by
militiamen. Witness HV is alone in placing soldiers at the scene. However, the Chamber
finds this testimony credible and reliable, notwithstanding the traumatic nature of the events,
since she was in a position to follow the attack for a brief period from her dormitory, heard
gunfire, and was later personally questioned by a soldier during the separation of Hutu and
Tutsi students.
1249. According to Witness HV’s testimony, the soldiers played a supporting role by firing
at the doors of classrooms, allowing the militiamen to kill refugees hiding inside. During the
attack, the assailants separated Hutu and Tutsi students, and some of the Tutsis were killed.
During a lull in the attack, after the separation, many of the students, including Witnesses HV
and WY, were able to seek safety in the university’s dining hall, where they were later
protected by gendarmes. In the evening, the gendarmes turned back masked assailants, who
were carrying lists and searching the survivors’ identity documents. The Chamber is not
entirely convinced that these assailants were soldiers, as opposed to militiamen, given the
assailants’ use of masks. Witness LT-1’s testimony that the assailants were civilians raises
some additional doubt. The gendarmes evacuated the remaining students and refugees on the
evening of 9 April.
1250. The accounts of Witnesses LK-2, LT-1, WY and MAR-1 suggest that the attack was
smaller in scale than reported by Witness HV. However, in the Chamber’s view, Witness
HV’s version of the events suggesting a larger attack is supported by the contemporaneous
report received by Major Biot on the morning of 8 April that 500 refugees had just been
killed at the university.1391
1251. The Chamber finds beyond reasonable doubt that militiamen supported by at least two
Rwandan army soldiers participated in an attack at the Central African Adventist University
in Mudende on the morning of 8 April 1994. There is no clear evidence that Nsengiyumva
was present at the scene of the attack.
1252. Turning to Nsengiyumva’s responsibility, the Chamber has found that, as the Gisenyi
operational commander, he had authority over soldiers in that operational sector (IV.1.5). The
Chamber also recalls its findings that under certain circumstances, Nsengiyumva could have
de facto authority over civilian militiamen (III.2.6.2). Witness HV’s evidence shows clear
coordination between the soldier and the civilian attackers. This is demonstrated in particular
by soldiers firing at the doors of classrooms to gain access so that militiamen could kill
refugees inside. The Chamber is also satisfied that Nsengiyumva had authority over the
soldiers and civilian assailants. The attack occurred in the Gisenyi operational sector, and its
tactical tempo, which targeted a major educational institution in the area, reflects that it was a
planned military operation (IV.1.5). The speed with which this attack occurred – two days
1391
In view of the evidence that an attack in fact occurred, the Chamber places no weight on Major Biot’s
speculation that the university official was only recounting rumours of killings.
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after President Habyarimana’s death – and the fact that it followed a pattern consistent with
other attacks taking place in the prefecture, leads to the only reasonable conclusion that the
attacks were ordered by the highest operational authority in the prefecture, Nsengiyumva.
1253. Bagosora has also been charged in relation to these killings. The Chamber does not
accept his argument that these allegations do not relate to him. The Prosecution’s Pre-Trial
Brief lists Witness HV as supporting the relevant paragraphs of his Indictment related to
Gisenyi.1392 Bagosora exercised the highest authority in the military on 8 April (IV.1.2).
Nsengiyumva as the operational commander of Gisenyi was therefore under his command.
Furthermore, when this event is considered together with other parallel killings in Gisenyi
prefecture as well as in Kigali, the only reasonable inference is that these military operations
were ordered or authorised by Bagosora.
(ii) Busasamana Parish
1254. There is no dispute that Tutsi refugees were killed at Busasamana Parish. The
Prosecution relies only on Witness XBG. He is the sole witness to place the massacre at the
end of May and to implicate Nsengiyumva in the killings. As discussed above, the Chamber
has concerns with the reliability of his testimony concerning the related attack at Mudende
University. The Chamber therefore declines to accept his testimony about Busasamana Parish
in the absence of corroboration. Furthermore, there are differences between his testimony
about the attack and the evidence of Witnesses YD-1, EAC-1 and KB-1, who indicate that the
attack occurred on 8 April and involved only Interahamwe, not Nsengiyumva or his soldiers.
These differences raise additional concerns about the reliability of Witness XBG’s
uncorroborated testimony.
(iii) Notice
1255. The Defence submits that it was not reasonably informed of the material facts
concerning Nsengiyumva’s role in the Mudende University attack.1393 Given the
contradictory nature of the evidence of Witnesses XBM, XBG and HV as to when the attack
at the university occurred, it was impossible to prepare Nsengiyumva’s defence.1394
1256. In considering these challenges during the course of the trial, the Chamber concluded
that the Prosecution’s motion to add Witnesses XBM and XBG as well as the summary of
Witness HV’s testimony annexed to the Pre-Trial Brief cured the Indictment’s failure to
specifically plead this attack.1395 This material provided the Defence with the following
approximate dates for when the attack occurred: 7-10 April (XBM), 8 April (HV) and May
(XBG).1396 In the Chamber’s view, this adequately informed Nsengiyumva of when the
1392
Prosecution Pre-Trial Brief (7 June 2002), p. 8.
In view of its findings on Busasamana Parish, the Chamber does not need to consider the challenges to this
incident.
1394
Nsengiyumva Defence Brief, para. 52(a).
1395
Decision on Nsengiyumva Motion for Exclusion of Evidence outside the Scope of the Indictment (TC), 15
September 2006, paras. 14, 50.
1396
In this respect, the Prosecution’s motion to add Witnesses XBM and XBG reflected that Witness XBM
would implicate Nsengiyumva in a massacre at the university between 7 and 10 April 1994, and that Witness
XBG would implicate Nsengiyumva in a massacre there in May. Confidential Prosecutor’s Motion for Leave to
Vary the Witness List, 13 June 2003, paras. 7, 9. Furthermore, the summary of Witness HV’s testimony annexed
to the Pre-Trial Brief places the attack on 8 April. See Prosecution Pre-Trial Brief (21 January 2002), Annex, p.
87.
1393
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incidents at the university occurred in order to prepare a defence. The difference between
these three testimonies does not go to notice, but credibility.
1257. The Defence further argues that the summary of Witness HV’s testimony in the PreTrial Brief does not indicate that her evidence supports any allegation against
Nsengiyumva.1397 The Prosecution Pre-Trial Brief, filed on 21 January 2002, reflected that
Witness HV’s anticipated testimony is listed as relevant to Bagosora, Ntabakuze and
Kabiligi, but not Nsengiyumva.1398 In May 2002, the Chamber ordered the Prosecution to file
a revision to the Pre-Trial Brief clearly indicating the specific allegation in each Indictment
that a given witness’s testimony would support.1399 The revision to the Pre-Trial Brief, filed
on 7 June 2002, clearly listed Witness HV as supporting relevant paragraphs of the
Nsengiyumva and Bagosora Indictments.1400 In view of the revision, which the Nsengiyumva
Defence did not challenge, the Chamber is satisfied that Nsengiyumva was aware that the
allegations contained in the summary of Witness HV’s anticipated testimony annexed to the
Pre-Trial Brief were relevant to his Indictment. This notice was provided more than two years
before Witness HV appeared to testify.
3.6.8
Umuganda Stadium Meetings, April - June
Introduction
1258. The Nsengiyumva Indictment alleges that, between April and June 1994,
Nsengiyumva engaged in direct and public incitement to commit genocide while chairing
meetings at Umuganda Stadium in Gisenyi prefecture with several hundred militiamen
present. Reference is made to Witnesses ZF, DO, XBH and Isaïe Sagahutu.1401
1259. The Nsengiyumva Defence submits that the Prosecution did not adduce any evidence
in support of the allegation, which is contradicted by Defence evidence. It refers to Witnesses
Alphonsine Rugwizangoga Uwase CF-1, LIG-2, LS-1, RO-5, BX-3, LN-1 and TN-1.1402
1397
Nsengiyumva Defence Brief, para. 52(a).
See Prosecution Pre-Trial Brief (21 January 2002), Annex, p. 87. In the annex, there is a list of each
Accused next to the summaries of anticipated testimony. An “x” is placed in a box next to the Accused’s name
if he is implicated by the allegation. There is no “x” next to Nsengiyumva’s name.
1399
Decision on Defence Motions of Nsengiyumva, Kabiligi, and Ntabakuze Challenging the Prosecutor’s PreTrial Brief and on the Prosecutor’s Counter Motion (TC), 23 May 2002, para. 13.
1400
Prosecution Pre-Trial Brief (7 June 2002), p. 17. The revision of the Pre-Trial Brief must be read in
conjunction with the initial filing because the revision is simply a list of which witnesses support a given
allegation in the Indictments. See Decision on Motion by Aloys Ntabakuze’s Defence for Execution of the Trial
Chamber’s Decision of 23 May 2002 on the Prosecutor’s Pre-Trial Brief, Dated 21 January 2002, and Another
Motion on a Related Matter (TC), 20 November 2002, paras. 5, 11, 12.
1401
Nsengiyumva Indictment, para. 6.30; Prosecution Closing Brief, paras. 76, 81, 90-94, 96, 470, 491, 1652,
p. 891; T. 28 May 2007 p. 16. On p. 891 of the Prosecution Closing Brief, only Witnesses ZF and DO are
mentioned in relation to para. 6.30 of the Indictment. However, Witnesses XBH and Sagahutu are included in
paras. 94 and 470 and appear to be relavant.
1402
Nsengiyumva Closing Brief, paras. 539-550, 600, 610-613, 645-647, 1337, 1359-1360, 1385-1387, 1920,
1949-1950, 2011, 2213, 2223, 2235-2236, 2264, 2328-2329, 2407, 2464, 2469-2471, 2560, 2568, 3034, 3046,
3148, 3205-3207, 3259; T. 31 May 2007 pp. 53-54; T. 1 June 2007 p. 13.
1398
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Evidence
Prosecution Witness ZF
1260. Witness ZF, a Hutu who lived in Gisenyi, testified that, in at some point in 1994,
following an attack on Mburabutura in Kigali, militiamen assembled at the Gisenyi stadium
and cases of weapons and ammunition were distributed to them. The militiamen were then
dispatched to Kigali on ONATRACOM buses to provide reinforcement to the city. The
witness heard about this from military officers with whom he worked.1403
Prosecution Witness DO
1261. Witness DO, a Hutu driver who lived in Gisenyi prefecture in 1994, mentioned that
Conseiller Faziri and Nsengiyumva presided over a meeting at Umuganda Stadium. He
offered no additional testimony about the date, speakers, attendees, or content of this
meeting.1404
Prosecution Witness Isaïe Sagahutu
1262. Isaïe Sagahutu, a Tutsi, lived in Nyundo near Gisenyi town where he was a teacher at
a high school in 1994. He testified that he heard from his friend, Jean-Baptiste Tuyishime,
that so-called “pacification” rallies were held regularly during the genocide. Nsengiyumva
and Charles Zilimwabagabo, the new prefect of Gisenyi, regularly convened such meetings
after 7 April 1994 as part of a policy of “false pacification” to convince Tutsis in hiding that
the killings were over and that they could resume their work. Both officials parlayed the same
message on local radio but the killings did not stop.1405
Prosecution Witness XBH
1263. Witness XBH, a Hutu, testified that he attended a meeting at Umuganda Stadium
around 11.00 a.m. on 8 April 1994. About 300 local Hutus attended. Conseiller Faziri of the
Gisenyi sector convened the meeting and addressed the crowd first, followed by Lieutenant
Bizumuremye. Both called on the youth in attendance to unite against the the Tutsis in order
to avenge the death of the President. The witness did not allege that Nsengiyumva was
present or spoke at this meeting.1406
Nsengiyumva
1264. Nsengiyumva attended five public meetings at Umuganda Stadium between April and
mid-June 1994, the first on 9 April. He said that this rally was agreed upon during a
prefecture security committee meeting and intended to stop killings of area residents and to
restore order. It began around 11.00 a.m. and ended about 2.00 p.m. Many inhabitants of
Gisenyi attended the public meeting, and the stadium was almost full. André Banyurwabuke,
acting as prefect, convened the meeting and explained to those who were present that if they
1403
T. 27 November 2002 p. 13; T. 28 November 2002 pp. 61-62. Witness ZF’s father was a Hutu, but the
witness was raised as a Tutsi by his mother’s family. See T. 27 November 2002 p. 13.
1404
T. 30 June 2003 pp. 3-4, 79; T. 1 July 2003 p. 34; Prosecution Exhibit 61 (personal identification sheet).
1405
T. 27 April 2004 pp. 58-59; T. 28 April 2004 pp. 19-21; Prosecution Exhibit 215 (personal identification
sheet). Sagahutu was originally referred to as Witness ON.
1406
T. 3 July 2003 pp. 31-32, 56-57; T. 7 July 2003 pp. 50-53; Prosecution Exhibit 63 (personal identification
sheet). Witness XBH was also referred to as PB-1 during these proceedings.
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started killing each other, it would make the RPF’s task easier. All speakers conveyed that the
killings had to stop. Representatives of six political parties also spoke to the crowd: Banzi
Wellars on behalf of the MRND, Barnabé Samvura for the CDR, Jean-Bosco Sibomana of
the PSD, and representatives of the MDR, PDC and PL parties. All six addressed their
respective party members and youth wings. The representative of the Impuzamugambi youth
wing did not come. Bernard Munyagishari, representing the Interahamwe youth wing of the
MRND, also directed them to stop the killings.1407
1265. Nsengiyumva attended in his capacity as a member of the prefecture security council.
He spoke to the audience for 20-25 minutes, saying that the killings and the settling of old
scores should cease. Those present should recognise that their enemies were not their
neighbours or an ethnic group, and that calm should be restored. According to Nsengiyumva,
killings became more sporadic, and the chaos subsided.1408
1266. Nsengiyumva also attended meetings at Umuganda Stadium around 23 April, on 2
May, around 23 May, and in mid-June 1994. They were meant to end killings and lootings.
The prefect convened the meeting on 2 May in order to condemn the previous day’s killings
at Nyundo. During this meeting, which started around 11.00 a.m. and lasted for about two
hours, Nsengiyumva publicly warned of killers who lured their victims to the Commune
Rouge, a local cemetery where people were killed, by tricking them into believing they were
going to a commune office. According to Nsengiyumva, no rally took place on 8 April
1994.1409
Nsengiyumva Defence Witness Alphonsine Rugwizangoga Uwase
1267. Alphonsine Uwase, a Hutu, worked as a secretary in the Gisenyi prefecture office in
April 1994. She testified that the prefecture security council met on 7 April and decided to
hold a pacification meeting at Umuganda Stadium two days later. This pacification meeting,
for which shops were closed and attendance was said to be compulsory, started at 11.00 a.m.
and lasted between two and three hours. Those invited to attend included heads of section,
bourgmestres from the prefecture, and the general population. Uwase attended this meeting
and recalled that the prefect and the bourgmestre of Rubavu commune urged the general
population to stop looting and remain calm. No speaker incited the population to kill Tutsis.
She added that the prefect convened another meeting at Umuganda Stadium in mid-May.1410
Nsengiyumva Defence Witness CF-1
1268. Witness CF-1, a Hutu who lived in Gisenyi town, attended a meeting at Umuganda
Stadium on 9 April 1994 after learning about it from a megaphone announcement that same
day. The prefect convened this meeting and appealed to the population to remain calm
despite the killings taking place in Gisenyi town. He also instructed members of the
1407
T. 4 October 2006 pp. 31-32, 34-35; T. 5 October 2006 pp. 17-18; T. 6 October 2006 pp. 5-6; T. 9 October
2006 p. 20; T. 11 October 2006 pp. 25, 36, 70-74, 76-77; T. 12 October 2006 p. 11.
1408
T. 4 October 2006 p. 35; T. 5 October 2006 p. 18; T. 6 October 2006 p. 5; T. 11 October 2006 pp. 25-26, 36,
70-72, 74-75, 77. Nsengiyumva agreed that a communiqué accurately reflected the topics discussed at
Umuganda Stadium on 9 April. The communiqué, which he believed was read on Radio Rwanda, characterised
the meeting as calling for “tolerance, peace and tranquillity”, for the population to “flush out” bandits and “the
enemy who can infiltrate”, and for the Gisenyi market to open the next Monday. See T. 5 October 2006 pp. 5860; T. 11 October 2006 pp. 73-74; Nsengiyumva Defence Exhibit 217 (Communiqué by the Gisenyi prefecture
security committee, dated 10 April 1994).
1409
T. 9 October 2006 p. 10; T. 11 October 2006 pp. 23, 36-37, 71, 75, 77; T. 13 October 2006 p. 3.
1410
T. 10 July 2006 pp. 3, 14-20, 25; Nsengiyumva Defence Exhibit 201 (personal identification sheet).
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population to schedule night patrols in their neighbourhoods, which the witness credited with
helping to restore security. The testimony contained no information that Nsengiyumva was
present at this meeting.1411
Nsengiyumva Defence Witness LIG-2
1269. Witness LIG-2, a Hutu who lived in Gisenyi Prefecture from 1993 until July 1994,
testified about a pacification meeting convened by Charles Zilimwabagabo, the new prefect,
at the Umuganda Stadium in mid-April 1994. The witness attended the meeting which started
at 10.00 a.m. after learning about it from his cellule leader. The stadium was nearly full with
persons from all political parties and ethnic groups, a few gendarmes stationed around the
stadium, Zilimwabagabo’s and Nsengiyumva’s bodyguard detail, and the communal police.
Marc Mpozembizi, the bourgmestre of Rubavu commune, and Commander Biganiro, the
head of the gendarmerie in Gisenyi, also attended the meeting.1412
1270. Mpozembizi was the first of four speakers. He stated that Gisenyi had become chaotic
before promptly introducing the next speaker, Zilimwabagabo, who explained that the
meeting had been organised to pacify the entire region because of looting, murders, extortion
and banditry. He urged the crowd to go about their daily business in peace and assured them
that the gendarmerie would take measures to re-establish peace. Biganiro spoke third,
stressing the message of peace and announcing a 9.00 p.m. curfew that had been agreed upon
by Nsengiyumva, Zilimwabagabo and all bourgmestres in Gisenyi. Nightly gendarmerie
patrols would be instituted and the court and prison systems would deal with those involved
in criminal activities. He asked everyone to return to their daily routines.1413
1271. Nsengiyumva, dressed in a camouflage uniform, then took the floor for about 15
minutes. He offered updates about the military situation in other prefectures, instructed the
inhabitants to make peace with their neighbours and to avoid looting and murdering. Their
enemy was not an ethnic group but those who had been waging war since 1990.
Nsengiyumva concluded by wishing the inhabitants a successful resumption of their daily
business.1414
1272. Witness LIG-2 testified that the civilian extremists at the meeting were not pleased
with the speakers’ message. During Nsengiyumva’s speech, the witness heard them describe
Nsengiyumva as an RPF agent whose house should be destroyed to oust the refugees hosted
there. Zilimwabagabo was also the subject of attack since he belonged to an opposition party,
the PL.1415
Nsengiyumva Defence Witness LS-1
1273. Witness LS-1, a Hutu, arrived in Gisenyi prefecture on 10 April 1994 to continue his
work with the national government. He attended a mid-April meeting at Umuganda Stadium.
Members of the population, invited by prefect Zilimwabagabo and their conseillers, filled the
stadium. Many officials were present at the meeting, including Zilimwabagabo, Mpozembizi,
the bourgmestres of neighbouring communes, Commander Biganiro of the gendarmerie,
1411
T. 29 November 2005 pp. 3, 29, 35-36; Nsengiyumva Defence Exhibit 125 (personal identification sheet).
T. 2 May 2005 pp. 14-17, 26-29, 51, 53; Nsengiyumva Defence Exhibit 75 (personal identification sheet).
1413
T. 2 May 2005 pp. 28-30, 51, 59.
1414
Id. pp. 30-31, 51-52, 59. Witness LIG-2 did not hear, throughout the month of May, an announcement for
another pacification meeting. Id. p. 55.
1415
Id. pp. 31-32, 52.
1412
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Nsengiyumva, and the president of the MRND party in Gisenyi, Banzi Wellars. The CDR
party president, Barnabé Samvura, may have been present but did not speak.1416
1274. Mpozembizi addressed the crowd first and was followed, in an order that Witness LS1 could not recall, by Zilimwabagabo, Biganiro, Wellars and Nsengiyumva. Nsengiyumva’s
speech was similar to the other interventions, asking the population not to be afraid and to
remain calm since there was still a government in place. The speakers identified the enemy as
the RPF and told the population not to kill Tutsis because of their ethnicity. After this
meeting, killings continued but with less “intensity”.1417
1275. Witness LS-1 also attended a meeting in May 1994 where Nsengiyumva spoke. The
witness believed that Zilimwabagabo, as prefect, had convened this meeting. The focus was
on welcoming the influx of refugees and on keeping Gisenyi town clean. The witness did not
mention where the meeting took place or what Nsengiyumva said. He also heard about, but
did not attend, other meetings in June and July.1418
Nsengiyumva Defence Witness RO-5
1276. Witness RO-5 was a Hutu student who fled Kigali and lived in Gisenyi prefecture
between the end of April and July 1994. Near the end of April or early May, he attended a
public rally at Umuganda Stadium that was meant to restore security in Gisenyi town.
Speakers included Prefect Zilimwabagabo, Nsengiyumva, a number of conseillers, and the
Minister of Planning, Ngirabatware. Nsengiyumva described the situation at the war front
before discussing the deteriorating security situation in Gisenyi. He castigated those involved
in banditry and killings, identifying two groups led by Serushago and Thomas, respectively,
as well as people such as Kiguru and Sinyora.1419
Nsengiyumva Defence Witness BX-3
1277. Witness BX-3, a Hutu who lived in Gisenyi town, attended a public meeting at
Umuganda Stadium in early or mid-May 1994. The prefect of Gisenyi convened the meeting
in order to discuss security issues with the population. The bourgmestre gave an introductory
address and then invited the prefect to speak. Afterwards, Nsengiyumva informed the crowd
that the job of ensuring security within the prefecture fell upon the security forces. He warned
those involved with killings that if they were caught, they would be dealt with severely. No
speaker at the meeting incited members of the population to commit acts of violence.1420
Nsengiyumva Defence Witness LN-1
1278. Witness LN-1, a Hutu, was a student in Gisenyi town. He was told about a
pacification meeting at Umuganda Stadium near the end of May 1994 where both the prefect
and Nsengiyumva spoke. He learned about it when Omar Serushago, Michel Kidumu and
their friends, who allegedly had committed some crimes in Gisenyi, expressed their anger
that the military commander had spoken about them at the public meeting.1421
1416
T. 13 July 2005 pp. 35, 39; T. 14 July 2005 pp. 12-14, 36-39; T. 15 July 2005 p. 4; Nsengiyumva Defence
Exhibit 88 (personal identification sheet).
1417
T. 14 July 2005 pp.12-14, 37, 46.
1418
Id. pp. 15, 39, 45-46; T. 15 July 2005 p. 4.
1419
T. 10 February 2006 pp. 4, 7, 9-10; Nsengiyumva Defence Exhibit 132 (personal identification sheet). The
Prosecution did not cross-examine the witness.
1420
T. 5 June 2006 pp. 4, 11-12; Nsengiyumva Defence Exhibit 181 (personal identification sheet).
1421
T. 7 July 2006 pp. 5-7, 14; Nsengiyumva Defence Exhibit 200 (personal identification sheet).
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Nsengiyumva Defence Witness TN-1
1279. Witness TN-1, a Hutu, moved to Gisenyi town in late May 1994 and attended a
meeting at Umuganda Stadium around 15 June. Zilimwabagabo convened the meeting which
was in the early afternoon and lasted for about two hours. About 10,000 people attended, and
the stadium was full. Zilimwabagabo instructed everyone to respect the law. Nsengiyumva
tried to calm the population by ensuring them that Gisenyi was protected by numerous
battalions. He also asked the gendarmerie to provide additional security and directed the
groups of youths engaged in looting and killing to stop these activities. When Nsengiyumva
told the crowd that the Tutsis were not synonymous with the RPF, members of the population
booed him and called him an accomplice. According to the witness, Nsengiyumva did not
incite the population against the Tutsis at the meeting.1422
Deliberations
1280. There is no dispute that Nsengiyumva spoke at numerous meetings at Umuganda
Stadium from April to June 1994. However, according to paragraph 6.30 of the Indictment,
he “chaired” meetings there and “incited and encouraged” the population to continue
massacring Tutsis. The Defence submits that there is no evidence to this effect.
1281. Nsengiyumva testified that he attended five meetings at Umuganda Stadium: on 9
April, 23 April, 2 May, around 23 May, and in mid-June. The first three meetings fall under
the first time reference in the Indictment, the fifth meeting under the second. The Chamber
observes that there is no evidence that Nsengiyumva chaired any of these meeting, and none
of the four Prosecution witnesses heard him actually incite the population at Umuganda
Stadium.
1282. Witness ZF did not testify about meetings there but gave hearsay evidence about the
distribution of weapons at Gisenyi stadium. Those parts of his evidence contained no explicit
reference to Nsengiyumva. According to Witness DO, Nsengiyumva was present during a
meeting at Umuganda Stadium. However, he was not questioned about the date, speakers, or
content of the speeches. Witness XBH testified about a meeting at the stadium on 8 April, but
did not claim to have seen or heard Nsengiyumva there.
1283. The Defence offered eight witnesses who corroborated Nsengiyumva’s testimony that
he delivered peaceful messages at these meetings. Alphonsine Rugwizangoga Uwase and
Witness CF-1 referred to a rally on 9 April at Umuganda Stadium. Witnesses LIG-2 and LS-1
agreed that Nsengiyumva’s mid-April message was peaceful, whereas Witnesses RO-5, BX3, LN-1 and TN-1 offered similar evidence about meetings between late April and mid-June.
The Prosecution alleges that the purpose of the meetings was to create a sense of security
which under the guise of false pacification was intended to lure out Tutsis that had gone into
hiding. It refers, in particular, to Witness Sagahutu who described Nsengiyumva’s false
pacification activities conducted with Prefect Zilimwabagabo.1423
1284. The Chamber recalls that Sagahutu’s evidence was indirect. He did not hear any of
Nsengiyumva’s speeches himself but was told by a friend that they formed part of false
pacification messages. There is evidence in the case that the killings continued in spite of the
1422
T. 2 March 2006 pp. 58, 63, 66-68, 76-77; Nsengiyumva Defence Exhibit 147 (personal identification
sheet).
1423
Prosecution Closing Brief, in particular paras. 93, 94, 96.
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meetings at Umuganda Stadium but no indication that people were killed after being lured out
by speeches given there. Consequently, the Prosecution has not shown that Nsengiyumva
“incited and encouraged” killings during these meetings.
1285. This said, the Chamber is not convinced that the Defence witnesses provided the full
picture of what happened during the meetings at Umuganda Stadium. There are certain
contradictions between their testimonies about the participants at the meetings and their
speeches, and some witnesses gave indications of bias.1424 The Chamber accepts the
Prosecution submission that it was part of the tactics in 1994 to preach peace in order to lure
persons out of hiding and then kill them. The aim was to conceal the violence from the
international community or to keep the killings within the proper channels. There were also
examples of double language, where formal or public orders to stop killings were not
enforced whereas the real message was that they should continue.1425 In this context, the
Chamber has noted the text of the communiqué issued by the Gisenyi prefecture security
committee, which, according to Nsengiyumva, correctly reflected what transpired at
Umuganda Stadium on 9 April. It contains not only the conclusion that the entire population
should live in “tolerance, peace and tranquillity” without disturbing other persons’ lives, but
also a statement to the effect that the population should “flush out the enemy who can
infiltrate [the population], especially now that the Inkontanyi have resumed hostilities”. One
possible interpretation of these two formulations is that they convey a double message: both
to stop and continue the killings. However, as the Chamber does not have sufficient reliable
evidence about the various meetings, it is precluded from entering a finding.
1424
For instance, Witness TN-1 denied ever hearing of killings that took place in Gisenyi town. T. 2 March 2006
pp. 77-78.
1425
Des Forges, T. 18 September 2002 pp. 82-84, 118; Prosecution Exhibit 2A (Expert Report by Alison Des
Forges), pp. 2, 55.
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3.7
Formation of Interim Government
Introduction
1286. The Bagosora Indictment alleges that Bagosora and the leaders of the MRND put in
place an interim government which would “aid and abet the continuation of the massacres”.
According to the Prosecution, Bagosora met with the MRND executive committee around
7.00 a.m. on 7 April 1994 to appoint a new President and arranged a meeting of political
officials on 8 April to form a new government. Bagosora allegedly introduced the members
of the new government, almost all members of the “Power” wings of their parties, to the
military Crisis Committee. Jean Kambanda was appointed Prime Minister of the interim
government, which was officially sworn in on 9 April 1994. Reference is made primarily to
Expert Witnesses Alison Des Forges and Filip Reyntjens as well as Witnesses Roméo
Dallaire and XXQ.1426
1287. The Bagosora Indictment further alleges that “numerous Cabinet members” of the
interim government then supported the existing plan of extermination and took the necessary
steps to execute it, such as inciting the local population, distributing weapons, and dismissing
local officials opposed to the killings. In support of these allegations, the Prosecution refers
primarily to Des Forges as well as Witnesses Brent Beardsley, A and BY.1427
1288. The Bagosora Defence does not dispute that Bagosora met with political officials to
discuss the selection of a new President and the formation of an interim government.
However, the Prosecution did not present any evidence concerning the content of the
discussions during those meetings. It submits that Bagosora’s role was logistical and limited
to conveying messages from Special Representative Booh-Booh and the military Crisis
Committee related to the importance of filling the existing institutional void. The purpose of
the interim government was limited to restoring security, negotiating with the RPF, and
alleviating famine. The Defence points primarily to Mathieu Ngirumpatse, Joseph Nzirorera
and Jean Kambanda.1428
1426
Bagosora Indictment, paras. 6.11-6.16; Prosecution Closing Brief, pp. 749-752. The Kabiligi and Ntabakuze
Indictment and the Nsengiyumva Indictment refer to the establishment of the Interim Government only as
historical context. See Kabiligi and Ntabakuze Indictment, paras. 1.25 and 1.28; Nsengiyumva Indictment,
paras. 1.25 and 1.28.
1427
Bagosora Indictment, para. 6.16; Prosecution Closing Brief, paras. 252, 261, 268, pp. 752-753. The
Prosecution also refers to the evidence of Witness AAA, a local official in Kigali, and Omar Serushago, an
Interahamwe leader in Gisenyi (p. 752). However, Witness AAA’s evidence focuses on activities at the local
government level and does not address the allegation in paragraph 6.16 concerning the activities of cabinet
ministers. See T. 14 June 2004 pp. 12-14, 17-21, 54-56, 66-70; T. 15 June 2004 pp. 37-45. Serushago heard
from his chief, Bernard Munyagishari about a meeting at the MRND headquarters at the Gisenyi prefecture
office in June 1994 where President Sindikubwabo, Nzirorera and Nsengiyumva promised weapons to kill Tutsi
remaining in the area. See T. 19 June 2003 pp. 47-48. This evidence is hearsay.
1428
Bagosora Closing Brief, paras. 991-997, 1127-1145, pp. 366-368. The Defence also points to the testimony
of Édouard Karemera, the former first vice-president of the MRND (para. 992), but he did not testify about the
formation of the interim government.
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Evidence
Prosecution Expert Witness Alison Des Forges
1289. According to Alison Des Forges, an expert in Rwandan history, Bagosora and his
supporters tried to take over power in the days immediately following the death of President
Habyarimana. It was only after failing to take over the country that Bagosora reluctantly
agreed to the creation of a new civilian government. Bagosora assumed control of the process
in order to establish a Hutu Power government. In addition to directing military affairs, he
facilitated the meetings of the politicians and afterwards presented a slate of candidates for
ministerial posts, agreed upon by the politicians, to the senior military leadership. Though
they may not have necessarily dissented publicly, some of the military leaders later disclosed
that they were disappointed with the composition of the government and that it was not what
they had envisaged when they sought to put one in place.1429
1290. Des Forges noted that in Gitarama and Butare prefectures as well as in some other
areas there was limited violence until the beginning of the weekend of 16 April 1994. The
interim government replaced the prefects of Gitarama and Butare prefecture, who were seen
as resisting the killings, and changed the army chief of staff from Marcel Gatsinzi to
Augustin Bizimungu, who was then promoted to general. On 19 April, President
Sindikubwabo made an “extremely threatening speech” in Butare prefecture which was
followed by similar speeches from Prime Minister Kambanda. In the following days, the
massacres began in Butare.1430
Prosecution Expert Witness Filip Reyntjens
1291. Filip Reyntjens, an expert in Rwandan history, testified that at 7.00 a.m. on 7 April
1994, Bagosora met with members of the MRND leadership, including Mathieu
Ngirumpatse, at the Ministry of Defence to discuss appointing a new president. Around 9.00
a.m. on 8 April, Bagosora summoned to the Ministry of Defence the leaders of the MRND
and the power wings of other political parties, which were opposed to the Arusha Peace
Accord. He asked them to select a new leader for Rwanda.1431
1292. Reyntjens stated that the first working session of the meeting started at 1.00 p.m. By
the time the meeting ended around 4.00 p.m., agreement had been reached to establish an
interim government composed of representatives of the extremist political parties present at
the meeting. Reyntjens observed that the RPF had not been invited to the meeting. In his
view, this constituted a violation of the letter and spirit of the Arusha Peace Accords, which
called for power sharing between all political parties, including the RPF. He also stated that
this was the first time since the period between 1990 and 1993 that all Tutsis were excluded
from the government. Around 5.30 p.m. on the same day, Bagosora presented the new
1429
T. 10 September 2002 pp. 33-35; T. 18 September 2002 pp. 43-44, 46-53; T. 25 September 2002 pp. 114118.
1430
T. 18 September 2002 pp. 114-117.
1431
T. 15 September 2004 pp. 11-15, 21; T. 16 September 2004 pp. 98-99; T. 17 September 2004 p. 33.
Reyntjens has studied the immediate 72-hours that followed the death of President Habyarimana which resulted
in his book: Rwanda: Trois jours qui ont fait basculer l’histoire (1995), which was entered into evidence as
Bagosora Defence Exhibit 9. As part of this, he interviewed over 100 persons, many of whom were highranking Rwandan military officers who were privy to the events. His research included questionnaires
responded to by Bagosora.
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government to the Military Crisis Committee in a meeting held at the ESM. The government
was sworn in around 10.00 a.m. on 9 April 1994.1432
1293. According to Reyntjens, Bagosora was a “central figure” that played a leading role in
the various meetings and events in the days immediately following the downing of President
Habyarimana’s plane. For example, when he was asked to organise the selection of an interim
government, Bagosora only invited extremist Hutu political leaders to the various meetings
that culminated in the installation of a new government. It was the Hutu Power government
whose selection Bagosora facilitated that subsequently “presided over the genocide”.1433
Prosecution Witness Roméo Dallaire
1294. General Dallaire, UNAMIR’s Force Commander, stated that, around 9.30 a.m. on 8
April 1994, he entered a conference room at the Ministry of Defence looking for Bagosora,
briefly interrupting a political meeting attended by representatives of the various political
parties. Bagosora was seated at the head of the table where the Minister of Defence would
usually sit. Upon Dallaire’s entrance, Bagosora immediately walked towards him and ushered
him to the door, explaining that this was a meeting convened to build the political body to
which he had previously said the military would transfer power. Dallaire did not recognise all
the participants, but did not see anyone from the moderate elements of the PL or the
MDR.1434
Prosecution Witness XXQ
1295. Witness XXQ, a Hutu army officer, heard from Major Kinyoni, the G-2 of the
gendarmerie, that the AMASASU put in power President Sindikubwabo, Prime Minister Jean
Kambanda and the rest of the interim government. On 8 April 1994, Bagosora organised a
meeting at ESM to select the interim government. General Ndindiliyimana proposed
Sindikubwabo as President. Bagosora then ordered Colonel Marcel Gatsinzi to arrange for
Sindikubwabo’s transport from Butare to Kigali on 9 April. The witness also heard that
Kambanda was given a list of ministers to appoint who would implement the plan to kill
Tutsis.1435
Prosecution Witness Brent Beardsley
1296. Major Beardsley, General Dallaire’s assistant, said that massacres in Butare prefecture
started only after Kambanda made a provocative speech there.1436
Prosecution Witness A
1297. Witness A, a Hutu and leading member of the Interahamwe, testified that, on 10 April
1994, he and other prominent Interahamwe met with Joseph Nzirorera, Edouard Karemera
and Justin Mugenzi at the Hôtel des Diplomates. Nzirorera told them to travel to various
sectors in the city and tell people to stop the killings and gather corpses to be removed
because of the international community. Soldiers then escorted the witness and others around
the city where the request to stop the killings was generally accepted. He returned to the hotel
and informed the officials about their activities and the many corpses along the road.
1432
T. 15 September 2004 pp. 21-23.
T. 16 September 2004 p. 16; T. 17 September 2004 pp. 66, 68.
1434
T. 19 January 2006 pp. 48-49.
1435
T. 13 October 2004 pp. 30, 33, 48-50; Prosecution Exhibit 316 (personal identification sheet).
1436
T. 5 February 2004 p. 89.
1433
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Karemera and Mugenzi appeared pleased by the news while Nzirorera was indifferent. The
witness added that, when the interim government moved from Kigali to Gitarama prefecture,
the massacres also spread there. The killings began in Butare prefecture on 19 April after the
President and Prime Minister visited the prefecture and replaced the Tutsi prefect.1437
Prosecution Witness BY
1298. Witness BY, a Hutu and leading member of the Interahamwe, testified that on 10
April 1994, senior officials of the MRND party, including Mathieu Ngirumpatse, Joseph
Nzirorera and Edouard Karemera as well as other members of the interim government, such
as Justin Mugenzi, summoned several Interahamwe leaders to the Hôtel des Diplomates.
Ngirumpatse chastised the Interahamwe leaders for lacking control over the militiamen who
were killing Tutsis at roadblocks and leaving their corpses exposed on the streets. He
emphasised that the international community placed blame for the killings on the government
and refused to recognise it. Ngirumpatse told the Interahamwe leaders to put an end to the
killings and to remove the corpses. Mugenzi also criticised the Interahamwe leaders, saying
that “instead of killing the major Tutsis, the important Tutsis, you go on killing the poor
people, whereas the real enemy is hiding at the Hôtel des Mille Collines”. Nzirorera added
that he would secure an escort of soldiers from Bagosora to carry out the pacification
assignment. On 11 and 12 April, three soldiers accompanied Witness BY and other
Interahamwe leaders as they visited roadblocks in Kigali and instructed those manning them
to immediately stop the killings and to remove the corpses.1438
Bagosora
1299. Bagosora testified that he arrived at the Ministry of Defence around 6.50 a.m. on 7
April 1994. There he met with General Ndindiliyimana and the members of the MRND
executive committee, including Mathieu Ngirumpatse, MRND chairman, Edouard Karemera,
MRND vice-chairman, and Joseph Nzirorera, national secretary of the MRND. Bagosora
updated them on the recent events and emphasised Special Representative Booh-Booh’s
recommendation that the MRND select a new President. Bagosora departed between 8.30 and
8.45 a.m. for a meeting scheduled at 9.00 a.m. at the residence of the United States
Ambassador in Kacyiru.1439
1300. Around 9.00 a.m. on 8 April, Bagosora again met with members of the MRND
executive committee at the Ministry of Defence about the designation of a president. The
MRND representatives discussed the legal basis for selecting a President and decided to
apply the 1991 Rwandan Constitution. They asked Bagosora to arrange for representatives of
other political parties to attend a meeting to form a new government. Bagosora provided
military escorts for the politicians. The MRND officials departed the Ministry of Defence to
consult with the president of the national assembly who lived nearby, returning to the
Ministry around 11.00 a.m. Bagosora recalled seeing Dallaire at the Ministry on the morning
1437
T. 1 June 2004 pp. 56-60, 62-67, 69-70, 80-81; T. 4 June 2004 pp. 22-23; Prosecution Exhibit 222 (personal
identification sheet).
1438
T. 2 July 2004 pp. 43-48; T. 5 July 2004 pp. 16-18, 48-50; Prosecution Exhibit 284 (personal identification
sheet).
1439
Bagosora testified that he called Ngirumpatse at around 2.30 a.m. on 7 April 1994 to invite him and the
other members of the MRND to a meeting at the Ministry of Defence. See T. 7 November 2005 p. 61.
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of 8 April. According to Bagosora, he was only meeting with a few of the representatives in
his office at the time and not a larger political meeting, as Dallaire suggested.1440
1301. Around noon that day, various party leaders from the MDR, PDC and PL met at the
Ministry of Defence. Bagosora did not attend the meeting, but he updated political officials
on recent events as they arrived there. Between 1.00 and 3.00 p.m., at the request of the
political officials, Bagosora personally arranged for three members of the PSD party, namely
a director of cabinet at the Ministry of Public Works named Rafiki, Emmanuel Ndindabahize,
and François Ndungutse, to participate in the ongoing discussions. Around 5.00 p.m.,
Ngirumpatse informed Bagosora that the political parties had concluded their discussions on
the new government. At 6.00 p.m., Bagosora introduced the interim government to the
military Crisis Committee at ESM. He testified that the RPF had not been consulted on the
interim government as a result of the resumed hostilities, adding that there was nothing
unusual about a government composed only of Hutus.1441
Bagosora Defence Witness Mathieu Ngirumpatse
1302. After midnight on the morning of 7 April 1994, Mathieu Ngirumpatse, the Hutu
president of the MRND, received a phone call from Bagosora to meet with MRND officials
later that morning at the Ministry of Defence. Around 7.00 a.m., he met at the Ministry with
Bagosora, General Ndindiliyimana, Edouard Karemera, who was the party’s first vicepresident, and Joseph Nzirorera, the party’s national secretary. Bagosora told the MRND
officials that Special Representative Booh-Booh had asked him to contact them about naming
a new President. The meeting focused on the selection process. Bagosora left at 8.30 a.m. for
his 9.00 a.m. meeting with the United States Ambassador.1442
1303. Around 9.00 a.m. on 8 April, the MRND officials met Bagosora at the Ministry of
Defence. Bagosora explained that the politicians needed to find a political solution to the
institutional vacuum that followed the death of the president. He agreed to facilitate a
meeting with politicians from the other parties. After that, Ngirumpatse, Nzirorera and
Karemera walked to the nearby home of the president of the national assembly, Théodore
Sindikubwabo, who in accord with the 1991 Rwandan Constitution, was in line to assume the
presidency. Around 11.00 a.m., the MRND officials returned to the Ministry and met with the
leaders from the other political parties. Around 2.00 or 3.00 p.m., the participants requested
Bagosora to facilitate the presence of the PSD party, which was not present. Each of the
parties presented their candidates for the ministerial positions, who were then accepted
without debate. After the meeting ended at 5.00 p.m., the representatives of the political
parties went to ESM, and Ngirumpatse briefed the military Crisis Committee on the earlier
meeting, which had just selected the new government 1443
1440
T. 8 November 2005 pp. 57-64, 70.
T. 8 November 2005 pp. 64-73.
1442
T. 5 July 2005 pp. 52-59; T. 6 July 2005 p. 59; Bagosora Defence Exhibit 177 (personal identification
sheet). Ngirumpatse is an accused before the Tribunal.
1443
T. 5 July 2005 pp. 59-73. According to Ngirumpatse, the group decided that the interim government’s threepronged mission was: (1) to restore security to persons and property; (2) to negotiate with the RPF within six
weeks; and (3) to alleviate famine among the approximately one million displaced people living around Kigali
at the time.
1441
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Nsengiyumva Defence Witness Joseph Nzirorera
1304. Joseph Nzirorera, a Hutu and national secretary of the MRND, stated that on 7 April
1994 around 1.00 a.m., Ngirumpatse called him and said that Bagosora had requested a
meeting with the executive committee of the MRND. Around 7.00 a.m., Bagosora met with
the committee at the Ministry of Defence and informed the members that Special
Representative Booh-Booh had asked that they designate a new President. Bagosora left the
meeting around 8.30 a.m. for a meeting with the United States Ambassador scheduled for
9.00 a.m.1444
1305. Around 9.00 a.m. on 8 April, Bagosora told the MRND executive committee at
another meeting at the Ministry that UNAMIR and the military Crisis Committee wanted the
political parties to establish an interim government to run Rwanda. Bagosora agreed to
contact representatives of the other political parties. The members of the MRND executive
committee then contacted the president of the national assembly, Thedore Sindikubwabo,
who lived nearby, and persuaded him to accept the post of president in accord with the 1991
Rwandan constitution. At 11.00 a.m., the MRND executive committee returned to the
Ministry of Defence and met with representatives of the MDR, PL and PDC parties to begin
work on an agreement for a new government. Representatives of the PSD party arrived later
in the afternoon. Bagosora did not participate in the meeting. Around 5.00 p.m., Nzirorera
and the other political representatives went to the ESM to meet with the military Crisis
Committee.1445
Bagosora Defence Witness Jean Kambanda
1306. Jean Kambanda, a Hutu Prime Minister of Rwanda and previously a founding
member of the MDR, explained that before 6 April 1994, he considered himself as a political
opponent of President Habyarimana. Around noon on 8 April, Froduald Karamira, vicechairman of the MDR party, informed him that Prime Minister Agathe Uwilingiyimana had
been killed and that their party had designated him as Prime Minister. Kambanda went to
ESM around 5.00 p.m. when the interim government was presented to the military Crisis
Committee. Kambanda saw Bagosora at the swearing in of the interim government on 9
April. Bagosora shook his hands, congratulated him and seemed pleased at the establishment
of the interim government. Kambanda testified that the military set up the interim
government, but that no soldier ever prevented it from running the country.1446
1307. Kambanda maintained that, while he did not personally perpetrate or order the
commission of any crimes, he accepted responsibility for what occurred in Rwanda from
April to July 1994. He acknowledged that his government had failed to protect all segments
of the Rwandan population, whether Tutsis, Hutus or Twas. He did not deny that genocide
was perpetrated against Tutsis in Rwanda but added that the RPF also launched a genocide
1444
T. 16 March 2006 pp. 69-71; Nsengiyumva Defence Exhibit 161 (personal identification sheet). Nzirorera is
an accused before the Tribunal.
1445
T. 16 March 2006 pp. 72-76.
1446
T. 11 July 2006 pp. 7, 17, 22-31; T. 12 July 2006 pp. 10, 67, 73; Bagosora Defence Exhibit 346 (personal
identification sheet). Kambanda added that he saw Bagosora only one other time after the installation of the
interim government during a chance encounter at the Ministry of Defence in Kigali. He also spoke about
Bagosora’s trip to Gitarama prefecture to lobby for his return to active military service so that he could be
considered for the chief of staff position. Kambanda did not personally see him on this occasion. T. 11 July
2006 pp. 31-36; T. 12 July 2006 pp. 7-8. Kambanda is serving a life sentence following a guilty plea before the
Tribunal. See Kambanda Trial Judgement, chapter IV; Kambanda Appeal Judgment, paras. 2, 126.
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against Hutus by attacking an otherwise peaceful country in the early 1990s and conducting a
war on the population. According to Kambanda, whoever downed President Habyarimana’s
plane is responsible for the genocide of the Tutsis.1447
Deliberations
1308. After the death of President Habyarimana, an all Hutu interim government headed by
Prime Minister Jean Kambanda was formed by representatives of various political parties,
including the MRND, MDR, PSD, PL and PCD. It is common ground that Bagosora had
some involvement in the formation of this government. As alleged in paragraph 6.13 of the
Bagosora Indictment, he acknowledged meeting with members of the MRND executive
committee around 7.00 a.m. on 7 April 1994 at the Ministry of Defence to discuss the
appointment of a new President. This is corroborated by Ngirumpatse and Nzirorera, both
members of the executive committee, who provided consistent first-hand accounts of their
meeting with Bagosora. The Chamber is mindful of their status as Bagosora’s alleged coconspirators as well as accused in related proceedings before the Tribunal. It is therefore
reluctant to rely on the specific details of their discussions without further corroboration.
However, the Chamber accepts the general features of their testimony that they met with
Bagosora around 7.00 a.m. on 7 April to discuss the appointment of a new President, which is
also consistent with the evidence of Reyntjens.1448
1309. Bagosora accepted that on 8 April he facilitated meetings of representatives from
various political parties which culminated in the appointment of the interim government,
which was officially sworn in the next day. In particular, he acknowledged meeting with the
MRND executive committee around 9.00 a.m., arranging escorts for representatives of other
political parties to meet at the Ministry of Defence around noon, updating these
representatives on the current situation and need to form an interim government, personally
escorting members of the PSD party to the meeting, and presenting the interim government to
the Crisis Committee. The testimonies of Des Forges, Reyntjens, Dallaire, Ngirumpatse,
Nzirorera and Kambanda also confirm Bagosora’s actions in this respect.1449 There is some
minor variation in the specific times offered by the witnesses in setting forth the chronology
of the day. The Chamber does not find this significant.
1310. The Bagosora Defence contends primarily that Bagosora’s participation in this
process was simply as a facilitator, providing logistical support and conveying information
between interested parties, at the request of representatives of the international community
and the Crisis Committee. It denies that Bagosora played the primary role in establishing the
government or that he selected the individual cabinet members, which fell within the
1447
T. 11 July 2006 pp. 15-20. Kambanda also alluded to statements he made over the radio emphasising that:
“Tutsis, Hutus, and Twas who are not RPF members are not our enemy. Therefore, we cannot look exclusively
at ethnic groups and say our enemy is someone from a different ethnic group or region.” He acknowledged
however that “even within the government – and here let me say it in all honesty – I was not convinced that
everybody was of this opinion that we had to stop the killings”. See T. 12 July 2006 pp. 11-12.
1448
Special Representative Booh-Booh requested Bagosora at an early morning meeting on 7 April to contact
members of the MRND in order to designate a new president (III.3.3.2).
1449
The Chamber notes the difference between the evidence of Dallaire and Bagosora concerning their brief
encounter on the morning of 8 April. Dallaire indicated that Bagosora was presiding over a political meeting,
whereas Bagosora stated that he was informally meeting in his office with a few people. The Chamber does not
find this discrepancy material. It remains undisputed that Bagosora and Dallaire briefly met on the morning of 8
April while Bagosora was assisting the political leaders setting up the interim government.
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province of the political parties. Bagosora’s position was supported by evidence from
Nzirorera, Ngirumpatse and Kambanda, which the Chamber views with caution. Witness
XXQ, as well as Reyntjens and Des Forges, depict Bagosora as the main force behind the
selection and installation of the interim government. Witness XXQ’s testimony is hearsay
and some of the details he heard about, including the location of Sindikubwabo at the time,
are at odds with other evidence. The witness’s lack of knowledge concerning the existence of
the Crisis Committee raises further concerns about the reliability of his knowledge
concerning what transpired in the immediate aftermath of the death of President
Habyarimana.1450 Reyntjens and Des Forges did not participate in the process and appeared as
expert witnesses to provide context. Therefore, the Chamber declines to rely on their
evidence alone to place primary responsibility on Bagosora for the establishment of the
interim government and selection of its members. Nevertheless, it is clear that he played a
significant role in forming the interim government.
1311. There is virtually no evidence about the internal deliberations at various meetings
between Bagosora and the representatives of the political parties. The only first-hand
testimonies about this comes from Bagosora, Nzirorera, Ngirumpatse and Kambanda,
indicating that the government was established in order to transfer power to civilian
authorities. The Chamber views their evidence with caution.
1312. It follows from Des Forges and Reyntjens that the government was composed of
individuals associated with the Hutu power factions of their parties. However, the Chamber
has not heard sufficient direct evidence in this case concerning the background of the various
members of the government as well as their activities before and after 8 April 1994 in order
to determine if the motivating factor for putting the government in place was to facilitate the
massacres. The fact remains, however, that massacres were perpetrated in Rwanda
throughout its tenure.1451
1313. It is clear that certain members of the government have been found guilty of genocide,
including Prime Minister Jean Kambanda, Minister of Finance Emmanuel Ndindabahizi,
Minister of Information Eliezer Niyitegeka and Minister of Higher Education and Scientific
Research Jean de Dieu Kamuhanda. Two Ministers have thus far been acquitted by the
Tribunal. The guilt or innocence of other members of the government will be decided in their
individual trials.1452
1450
See T. 13 October 2004 p. 50.
The evidence of Des Forges, Beardsley and Witness A indicate that the killings in Butare prefecture, for
example, were triggered in part by a speech given by Kambanda and President Sindikubwabo on 19 April 1994
as well as the dismissal of the prefect who opposed the killings. See section III.4.3. These facts also underpinned
Kambanda’s guilty plea. See Kambanda Trial Judgement, para. 39 (iii, viii).
1452
Notably, former Prime Minister Jean Kambanda, who appeared as a witness for Bagosora, pleaded guilty to
committing genocide, conspiracy to commit genocide, direct and public incitement to commit genocide as well
as murder and extermination as crimes against humanity. See Kambanda Trial Judgement, para. 40; Kambanda
Appeal Judgement, para. 2, p. 41. Kambanda rejected his guilty plea and disputed the fairness of the
proceedings leading to it. See T. 11 July 2006 pp. 6-15; T. 13 July 2006 pp. 3, 9. He unsuccessfully raised these
issues on appeal in his case. In any event, the fact remains that he affirms the statements which he gave to the
Prosecution, which ultimately formed the basis of his plea and convictions. See also Ndindabahazi Trial
Judgement, paras. 505, 508, 511; Niyitegeka Trial Judgement, paras. 499, 502; Kamuhanda, Trial Judgement,
paras. 6, 764, 770. André Rwamakuba, the Minister of Primary and Secondary Education, and André Ntagerura,
Minister of Transport and Communications, were acquitted. See Rwamakuba Trial Judgement, paras. 3, p. 86;
1451
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1314. In sum, it is clear that Bagosora played an important role in putting in place the
interim government. Some of its members did go on to participate in the genocide. There is
no doubt that he facilitated important meetings of political and military officials on
7 and 8 April 1994. While he was a central figure in this effort, the limited evidence is
inconclusive as to whether he played the decisive role in selecting its composition or in
steering its policies after formation.
Ntagerura et al. Trial Judgement, paras. 82, 804. The Chamber notes that the testimonies of Witnesses A and
BY about certain officials’ influence over activities at roadblocks relate to accused whose trials are ongoing.
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4.
EVENTS FROM 11 APRIL 1994
4.1
4.1.1
Kigali and Its Environs
Nyanza, 11 April
Introduction
1315. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege
that, on 11 April 1994, after the withdrawal of UNAMIR peacekeepers from École Technique
Officielle (“ETO”), Rwandan soldiers, including elements of the Presidential Guard, and
Interahamwe moved a group of Tutsi refugees from ETO to Nyanza and massacred them
there. Bagosora was allegedly present while the soldiers and Interahamwe forced the refugees
to walk the several kilometres to Nyanza. The Prosecution argues that Para Commando
soldiers under the command of Ntabakuze stopped these refugees at the Sonatube junction
and marched them to Nyanza hill where they were openly slaughtered in order to block the
road from Bugesera and to send a message to the advancing RPA army: “come any closer and
we will keep killing your people”. According to the Prosecution, the use of ammunition and
the specific location of the killings reflects planning, military organisation and intention.
Reference is made to Witnesses AR, AFJ, Jean-Bosco Kayiranga and XAB as well as Expert
Witness Alison Des Forges.1453
1316. The Kabiligi and Ntabakuze Defence argue that the Indictment fails to specifically
plead the roles of the respective Accused in the Nyanza massacre. The Kabiligi Defence also
highlights that Kabiligi was not in Rwanda at the time of the events and that he lacked
command over the operation. The Ntabakuze Defence disputes that Ntabakuze was involved
in any killings of refugees and emphasises that the evidence only places him at the Sonatube
intersection earlier that day. It refers to the testimony of Witnesses DK-11, DK-37, Joseph
Dewez and Ntabakuze. The Bagosora Defence accepts that Bagosora passed a column of
refugees on 11 April 1994, but it disputes that he played any role in the planning or
organisation of the Nyanza massacre. The evidence of Witnesses LMG, Isabelle
Uzanyinzoga, Gaudence Habimana Twibanire and Bagosora suggests that he was not driving
a Mercedes Benz vehicle, as claimed by Witness AR, on that date and that he was on his way
to Kiyovu to evacuate his family at the time of the attack.1454
Evidence
Prosecution Witness AR
1317. Witness AR, a Tutsi, sought refuge at ETO with his family on 8 April 1994, which
was then protected by UNAMIR peacekeepers. Around 1.30 p.m. on 11 April, the
1453
Bagosora Indictment, para. 6.51; Kabiligi and Ntabakuze Indictment, paras. 6.37, 6.47; Prosecution Closing
Brief, paras. 136, 147, 203, 217, 245, 330-360, 712-715, 828, 835-836, 1096 (f), 1112-1117, 1396-1403, 14331447, 1746-1747, 1750-1755, pp. 768, 837; T. 28 May 2007 pp. 19-20; T. 1 June 2007 p. 44.
1454
Kabiligi Closing Brief, paras. 212-213, 302, 312-335; Ntabakuze Closing Brief, paras. 190, 192-194, 503,
1318-1320, 1439, 1487, 1490, 1669-1760, 1932, 2215, 2217, 2239, 2243, 2257-2263, 2309; Bagosora Closing
Brief, paras. 1250-1267, 1989-1990, 1994, 1997, 2317, pp. 379-381, 471; T. 29 May 2007 pp. 8-11, 24
(Kabiligi); T. 30 May 2007 pp. 19-21 (Bagosora); T. 31 May 2007 pp. 3-7 (Ntabakuze); T. 1 June 2007 pp. 5657 (Kabiligi).
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peacekeepers withdrew and told the refugees that the Rwandan government forces had agreed
to assure their protection. After the UNAMIR forces departed, the witness and other refugees
fled ETO in an effort to reach safety at Amahoro stadium. Around 2.00 p.m., soldiers wearing
camouflage uniforms stopped the witness and his family. The soldiers took them to an
intersection near the Sonatube factory, where approximately 2,500 to 3,000 other refugees
who had fled ETO were seated on the ground, surrounded by armed soldiers and
Interahamwe. Some of the soldiers wore black berets, but those who appeared in charge wore
camouflage berets.1455
1318. One of the soldiers wearing a camouflage uniform and camouflage beret, who seemed
to be in command, moved about the area communicating on his radio and speaking with the
other soldiers at the intersection. Two UNAMIR vehicles also passed by without stopping.
After approximately 30 minutes, the commander ordered the refugees to stand and move
along the road back toward ETO. Around 20 of the soldiers and more than 100 Interahamwe
led the column of several thousand refugees past ETO toward Nyanza hill. Around 500
metres after ETO, Witness AR saw Bagosora sitting in the front seat of a Mercedes Benz
military jeep at a junction in the road coming from RWANDEX, waiting for the refugees to
pass. In the witness’s opinion, Bagosora was supervising the operation. A few minutes later, a
Toyota pickup truck with 15 to 20 soldiers mostly wearing camouflage uniforms and
camouflage berets overtook the refugees and continued on the road towards Nyanza hill and
Bugesera.1456
1319. Around 5.00 p.m., as the refugees reached the top of Nyanza hill, they found the
soldiers who had passed them in the Toyota pickup. The soldiers told the refugees to sit down
until all of them were assembled. Then, the soldiers and Interahamwe opened fire with guns
and grenades, slaughtering the refugees. The witness was hit early and fell under a pile of
bodies. The attackers fired for several hours. They ran out of ammunition during the attack,
and the witness heard one of the soldiers say: “Take a vehicle, go back to the Sonatube
position and bring some more ammunition so we can continue with our work.” They also
stopped firing at one point in order to allow any refugee with a Hutu identity card to leave.
The next morning, 12 April, the attackers returned between 4.00 and 5.00 a.m., in an attempt
to finish off the survivors. On 13 April, RPF soldiers arrived at Nyanza hill and moved the
survivors to Rebero hill. As Witness AR left Nyanza, he passed dead bodies on the road to
Bugesera. Nearly every member of his family was killed, including his infant son.1457
Prosecution Witness AFJ
1320. Witness AFJ, a member of the Para Commando Battalion, testified that he
accompanied Ntabakuze to the Sonatube intersection at some point during the day between 7
1455
T. 30 September 2003 pp. 89-90; T. 1 October 2003 pp. 5-12, 56, 75-77; Prosecution Exhibit 104 (personal
identification sheet). Witness AR identified the soldiers as Presidential Guards by their camouflage uniforms. T.
1 October 2003 pp. 75-77. As discussed below, the Chamber considers that the witness was mistaken in his
identification of the soldiers.
1456
T. 30 September 2003 pp. 90-91; T. 1 October 2003 pp. 7-9, 15-17, 22-25, 55-59, 62-65, 70. Witness AR
gave estimates of the number of refugees between 2,500 and 4,000. He recognised Bagosora because he had
seen him on more than 20 previous occasions, including at the airport or at football matches and because he was
familiar with Bagosora as a prominent official. T. 30 September 2003 pp. 85-87; T. 1 October 2003 pp. 7, 25,
58, 64-65.
1457
T. 30 September 2003 p. 91; T. 1 October 2003 pp. 25-27, 31-32, 36-37, 51, 57. Witness AR identified the
various locations of the incidents he described on a map of the relevant part of Kigali. See T. 1 October 2003 pp.
4-5; Prosecution Exhibit 106 (Map of Kigali marked by Witness AR).
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and 15 April 1994. They found Interahamwe armed with Kalashnikovs chasing Tutsi
refugees from ETO towards the Para Commando Battalion’s position at the junction.
Ntabakuze addressed the Interahamwe, asked them where they were taking the Tutsi civilians
and ordered his soldiers to have the Tutsis sit down while he found a “refuge” for them. The
witness noted that the members of the Para Commando Battalion were wearing camouflage
uniforms and camouflage berets.1458
1321. According to Witness AFJ, Ntabakuze and the commander of the troops stationed at
the Sonatube junction had radios. Ntabakuze contacted someone over the radio, speaking in
French, which the witness could not understand. He then ordered the Interahamwe to take the
Tutsi refugees sitting in the intersection to the school in Nyanza. A UNAMIR convoy
carrying refugees to the airport then reached the intersection, and Ntabakuze spoke with a
“white man” who alighted from one of the vehicles. After the conversation, Ntabakuze and
the witness followed the UNAMIR vehicles to the airport. As they left, the Interahamwe, but
not the soldiers, led the refugees towards Nyanza, along the main road to Bugesera. The
witness was told later that month that the Interahamwe had killed the refugees at the school in
Nyanza. He heard this from “those who passed by and even refugees who came from there”.
According to the witness, Ntabakuze did not order the Interahamwe to kill the refugees. The
witness never saw members of the Para Commando Battalion kill civilians.1459
Prosecution Witness Jean-Bosco Kayiranga
1322. Jean-Bosco Kayiranga, a Hutu soldier, stated that, on 11 April 1994, he was at his
home near Nyanza hill on medical leave. Around 4.00 or 5.00 p.m., soldiers and Interahamwe
led between 1,000 and 1,500 mostly Tutsi refugees past the witness’s home to the top of
Nyanza hill on the road to Bugesera. Kayiranga saw his brother-in-law’s children among the
refugees and followed the refugees, trying to secure the children’s release from Bosco, an
army reservist and Interahamwe, who described himself as the “boss”, and a second
lieutenant, who was assigned to the Light Anti-Aircraft Battalion. Bosco asked for persons
from Ruhengeri and Gisenyi to leave and then threw a grenade at the refugees as if to signal
the beginning of the attack. The attackers had formed a semi-circle at the top of the hill and
began firing on the refugees with guns and grenades for about one hour and a half. When the
attackers ran out of ammunition, Kayiranga was able to save some of the children. In his
view, Bosco led the attack.1460
Prosecution Witness XAB
1323. Witness XAB, a Tutsi member of the Para Commando Battalion, was told on 12 April
1994 by Corporal Camake, a member of the CRAP platoon, that members of his platoon had
participated in the massacre of Tutsis from ETO.1461
1458
T. 8 June 2004 pp. 77, 80-82, 84-85, 88, 91-94; Prosecution Exhibit 255 (personal identification sheet).
T. 8 June 2004 pp. 81-83, 87-90, 92-98, 101.
1460
T. 30 April 2004 pp. 15-24; Prosecution Exhibit 218 (personal identification sheet). Kayiranga was formerly
known as Witness DR.
1461
T. 6 April 2004 pp. 20, 38-39, 77; Prosecution Exhibit 200 (personal identification sheet). CRAP is an
abbreviation for “Commando de Recherche et Action en Profondeur”. See Witness DK-11, T. 19 July 2005
(French version) p. 12; T. 19 July 2005 (English version) p. 12 (“deep-seated research and action commando”).
Witness DK-11 was a former member of the CRAP platoon (see below).
1459
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Prosecution Expert Witness Alison Des Forges
1324. Alison Des Forges, an expert in Rwandan history, testified that, after UNAMIR
peacekeepers withdrew from ETO on 11 April 1994, militiamen attacked the 2,000 refugees
there forcing them to flee. The refugees were stopped by members of the Para Commando
Battalion at the Sonatube junction where they were held for approximately an hour before
being marched towards Nyanza. A Belgian officer recognised and greeted Ntabakuze at the
intersection. The officer was concerned for the refugees, but was unable to alert his superiors
over the radio network. Des Forges made reference to written records from the Belgian
peacekeeping contingent as part of the basis of her testimony.1462
1325. As the military and militiamen marched the refugees towards Nyanza, assailants
pulled women from the column and raped them, sometimes killing them in the bushes. The
refugees were stopped at the top of Nyanza hill, where they sat down for approximately 30
minutes. A truck carrying military personnel arrived, and the military fired at the refugees,
giving the signal to the militiamen to begin the attack. Des Forges did not specify which unit
of the military accompanied the refugees to Nyanza but said that the operation was carried
out “jointly through cooperation between paracommando, gendarme and militia”. The killing
continued throughout the night, and assailants returned the following day to loot and finish
off survivors. Nearly all the refugees were killed. According to Des Forges, they were killed
at Nyanza because it was “a place remote from observation, unlike the Sonatube intersection,
which would not be an appropriate place for a massacre”.1463
Ntabakuze
1326. According to Ntabakuze, the Para Commando Battalion’s Third Company and CRAP
Platoon were in a combat position at the Sonatube junction on 11 April 1994. He had
“reinforced [the Third Company] with the CRAP platoon”. At some point before 12.30 p.m.,
Lieutenant Nzeyimana, the commander of the Third Company, informed Ntabakuze by radio
that they had stopped around 250 refugees from ETO who were heading towards Amahoro
stadium at the Sonatube junction. At the time, Ntabakuze was at his command post at
Kanombe airport. Ntabakuze testified that he did not want the refugees to proceed towards
Amahoro since it would involve crossing a battle line. He asked Nzeyimana to secure the
refugees while he sought further instructions.1464
1327. Ntabakuze then attempted to contact Colonel Muberuka, the commander of the Kigali
operations sector, but his call was intercepted by Lt. Colonel Kanyandekwe, a member of the
G-3 staff, at army headquarters. Ntabakuze asked for instructions on what to do with the
refugees at the Sonatube junction. Kanyandekwe consulted with Colonel Gatsinzi, the army
chief of staff, and then instructed Ntabakuze to contact the gendarmerie brigade at Kicukiro
in order to escort the refugees back to ETO. Ntabakuze contacted Nzeyimana and Captain
Munyabarenzi of the Kicukiro brigade and relayed the instructions from headquarters.
Ntabakuze received confirmation a short time later that the refugees had been returned to
1462
T. 18 September 2002 pp. 53-54; T. 25 November 2002 pp. 97-98.
T. 18 September 2002 pp. 53-55, 58.
1464
T. 21 September 2006 pp. 8-9, 11, 13-14; T. 25 September 2006 pp. 52-54, 57. Ntabakuze could not recall
the exact time of the communications involving the 250 refugees, but placed it before the incident involving the
UNAMIR convoy discussed below. T. 21 September 2006 pp. 13-14; T. 25 September 2006 p. 53.
1463
Judgement and Sentence
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18 December 2008
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ETO. He explained that at the time he was not aware that the Belgian contingent would
withdraw from ETO.1465
1328. Around 12.30 p.m., Nzeyimana contacted Ntabakuze after stopping five vehicles in a
UNAMIR convoy carrying refugees towards the airport.1466 At the time, Ntabakuze was
between his command post at Kanombe airport and a Para Commando position at Giporoso.
Ntabakuze went to the Sonatube junction to facilitate the convoy’s passage. While at that
junction, he spoke briefly on his radio with Colonel Dewez from the Belgian contingent of
UNAMIR, explaining that the convoy was stopped because the army had not been previously
informed about it. Since the convoy was overcrowded, Ntabakuze took several of the
refugees in his own vehicle and followed the UNAMIR convoy to the Kanombe airport,
where his command post was located.1467
1329. Ntabakuze stated that he did not hear until the end of 1994 about any further refugee
movement that day or the massacre at Nyanza, noting that the RPF took control of the area on
12 April. He confirmed that Witness AFJ accompanied him to Sonatube on 11 April, but he
disputed that he gave any orders to the Interahamwe concerning refugees assembled there. In
Ntabakuze’s view, Witness AFJ confused the radio communications about the 250 refugees
with the incident involving the UNAMIR convoy.1468
Ntabakuze Defence Witness DK-11
1330. Witness DK-11, a Hutu member of the CRAP Platoon, explained that, on 9 April
1994, elements of his platoon as well as the third company of the Para Commando Battalion
were stationed at the Sonatube intersection. The CRAP Platoon was commanded by
Lieutenant Kanyamikenke. It was administratively assigned to the Para Commando Battalion,
but operated independently, outside of Ntabakuze’s command, and reported directly to the
chief of staff and the G-3 of the army’s staff.1469
1331. On 11 April, the soldiers stationed at the Sonatube junction stopped around 100
refugees from ETO at the intersection. The refugees were in danger of being caught in the
cross-fire with the RPF. Witness DK-11 heard from Kanyamikenke, the platoon leader, that
he had received an order to prevent the refugees’ further movement until gendarmes arrived
to escort them back to ETO. The witness thought the order came from the G-3 office of the
general staff. A short time later, a squad of nine to 11 gendarmes escorted the refugees back
towards ETO. The witness heard no further information about the refugees. He was not aware
of an incident involving UNAMIR peacekeepers at the junction.1470
1465
T. 21 September 2006 pp. 11-14; T. 25 September 2006 pp. 53-57, 59-60.
According to Colonel Dewez, the refugees in the convoy included expatriates and some Rwandan nationals
(see below).
1467
T. 21 September 2006 pp. 8-10, 13; T. 25 September 2006 pp. 52-53. Ntabakuze stated that he could not
recall the exact time of the incident involving the UNAMIR convoy. He specified the time by reference to the
KIBAT chronique, a report prepared by the Belgian contingent of UNAMIR (Prosecution Exhibit 149), which
indicates that the incident occurred at 12.29 p.m. T. 21 September 2006 p. 13.
1468
T. 21 September 2006 pp. 10, 14-15; T. 25 September 2006 pp. 56-58.
1469
T. 19 July 2005 pp. 7, 17-18, 20, 53, 61; Ntabakuze Defence Exhibit 144 (personal identification sheet).
1470
T. 19 July 2005 pp. 60-66. Witness DK-11 identified his position as well as the frontline on a sketch
admitted as Ntabakuze Defence Exhibit 149 (sketch of the Sonatube junction).
1466
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335
18 December 2008
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Ntabakuze Defence Witness DK-37
1332. Witness DK-37, a Hutu gendarme, stated that, on 11 or 12 April 1994, he was
stationed with the Kicukiro brigade at his post around 300 to 400 metres away from the
Sonatube junction. Between 11.00 a.m. and midday, he saw a group of refugees walking
along the road from Bugesera towards the Sonatube junction. The commander of the
gendarmerie brigade then ordered a section of gendarmes from the witness’s position to go to
the Sonatube junction to provide security for the refugees. After 30 to 40 minutes, the witness
watched as the gendarmes escorted a group of approximately 150 to 200 refugees past his
position towards Bugesera. About an hour and a half later, the gendarmes returned and
reported that they were unsuccessful in fending off an armed attack against the refugees by a
large number of militiamen which forced the refugees to disperse.1471
Ntabakuze Defence Witness Joseph Dewez
1333. Colonel Dewez served in Rwanda from 15 March until 19 April 1994 as part of the
Belgian contingent of UNAMIR. He was the commander of the Kigali Battalion (“KIBAT”),
which was composed of Belgium’s Second Para Commando Battalion. On 11 April, he
dispatched a convoy of 50 vehicles in order to evacuate expatriates and some Rwandan
nationals from the Méridien Hotel to the airport. During his testimony, Dewez referred to the
KIBAT Chronique, a daily record of the activities of the Belgian UNAMIR contingent from 6
to 19 April 1994.1472 He planned the convoy’s route in order to avoid the frontline between
the Rwandan army and RPF. The itinerary crossed several checkpoints including one at the
Sonatube junction, which was close to the frontline. Dewez tasked Lieutenant Decuyper with
leading the convoy and maintained periodic radio contact with him during the evacuation.1473
1334. At 12.05 p.m., Decuyper crossed the checkpoint at the Sonatube junction with the first
part of the convoy. When he reached a subsequent roadblock, he learned that a portion of the
convoy had been stopped at the Sonatube junction. He dispatched the first part of the convoy
to the airport and returned to the Sonatube junction. Once there, he spoke with a Rwandan
lieutenant in charge of the checkpoint who informed him that no vehicles could pass.
Decuyper did not let anyone leave the vehicle, but asked the section to locate their automatic
weapons. The Rwandan lieutenant then ordered his men to point their weapons at Decuyper.
Additional tension resulted from mortar fire, falling some 50 metres from the intersection.1474
1471
T. 26 July 2005 pp. 55, 62-71, 77; Ntabakuze Defence Exhibit 152 (personal identification sheet). Witness
DK-37 identified his position on a sketch admitted as Ntabakuze Defence Exhibit 154.
1472
The KIBAT Chronique (Prosecution Exhibit 149) was prepared in September 1995 based on field journals
(journal de campagne) as well as interviews of battalion members, and thus was limited to these sources.
Lieutenant Decuyper, who led the convoy, prepared the portion relating to this event, but that Dewez was
ultimately responsible for the final editing and fact checking of the KIBAT Chronique. See T. 24 June 2005 pp.
18-24; Prosecution Exhibit 149 (KIBAT Chronique), paras. 3 (b), 48 (j). The introduction to the KIBAT
Chronique also explains how it was assembled.
1473
T. 23 June 2005 pp. 14-15, 27-28, 30, 54-60; T. 24 June 2005 p. 25; Prosecution Exhibit 149 (KIBAT
Chronique), para. 48 (j). Dewez referred to the Sonatube junction in his testimomy as “N12”. While Dewez was
not familiar with its exact name, his description of it, as well as his identification of it on a map, are consistent
with the location of the Sonatube junction. See T. 23 June 2005 pp. 57-58; Ntabakuze Defence Exhibit 130 (map
marked by Dewez). The KIBAT Chronique uses radio call signs for the peacekeepers. S6 refers to Dewez, and
S2 refers to Lieutenant Decuyper. T. 23 June 2005 p. 60; T. 24 June 2005 pp. 19-20, 25, 27; Prosecution Exhibit
149 (KIBAT Chronique), para. 3 (b).
1474
T. 23 June 2005 pp. 59-60; T. 24 June 2005 pp. 25-26; Prosecution Exhibit 149 (KIBAT Chronique), para.
48 (j)(4, 7).
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18 December 2008
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1335. The Rwandan lieutenant asked Decuyper to accompany him to see his commander.
Decuyper refused to leave the convoy and told the Rwandan lieutenant that the commander
should come to the checkpoint. As a result, the Rwandan lieutenant called his commander,
and then Ntabakuze arrived. As Ntabakuze stated that he knew Colonel Dewez, Decuyper put
them in contact over the radio at 12.29 p.m. Ntabakuze assured Dewez that the stop was only
a routine check and that everything would be fine. As the KIBAT Chronique indicates, a few
minutes later, Decuyper proceeded to the airport with the convoy, which was accompanied by
Ntabakuze. Dewez did not know whether Ntabakuze followed the convoy all the way to the
airport. Dewez also confirmed that the Belgian peacekeepers stationed at ETO withdrew later
that day around 1.45 p.m. 1475
Bagosora
1336. Bagosora testified that, around 1.00 p.m. on 11 April 1994, he travelled to Camp
Kanombe, where his family was staying. He brought them to the residence of Dr. Akigeneye
in the Kiyovu neighbourhood of Kigali around 4.00 to 4.30 p.m. in order to prepare for their
evacuation to Gisenyi prefecture. Bagosora acknowledged seeing many refugees in the
Kicukiro area, which is near ETO. He stated that he travelled with his family in a Land
Cruiser jeep and a double cabin pickup truck, which he had requisitioned from OCIR-Thé,
since he had asked his driver that morning to take his Mercedes Benz vehicle to Gitarama
prefecture with a family of eight Tutsis. At 10.00 a.m. on 12 April, Bagosora took his family
and others in a military convoy as far as Gitarama prefecture, before they continued without
him to Gisenyi.1476
Bagosora Defence Witness LMG
1337. According to Witness LMG, a Hutu soldier, Bagosora most frequently used a military
green Mercedes Benz jeep. The witness stated that on 8 April 1994, he saw Bagosora’s
family at Dr. Akigeneye’s residence in Kiyovu. On 10 April, Bagosora asked the witness to
drive a group of about eight Tutsis to Gitarama in his Mercedes Benz jeep. Bagosora filled in
a travel voucher, which mentioned that the individuals were members of his family, to
facilitate their movement through roadblocks. On 11 April, the witness drove Bagosora’s
family from Kigali to Gisenyi in the Mercedes Benz jeep. Bagosora, who was driving a
pickup truck, accompanied his family until the Kanzenze bridge, on Nyabarongo river.1477
Bagosora Defence Witness Isabelle Uzanyinzoga
1338. Isabelle Uzanyinzoga, Bagosora’s wife, stated that, on 7 April 1994, Bagosora took
his family to Camp Kanombe in an official Mercedes Benz military jeep and a Renault 21.
They stayed there until 11 April. On that date, Bagosora arrived at Camp Kanombe between
noon and 1.00 p.m. to take the family to Dr. Akigeneye’s residence in Kiyovu. Bagosora did
not have his usual Mercedes Benz vehicle and told her that he had allowed his driver to take
some Tutsis, who were fleeing, to Gitarama. Around 4.00 p.m., they left in a Land Cruiser
and in a double cabin pickup, driven by a soldier. They went towards Kicukiro and arrived at
1475
T. 23 June 2005 pp. 59-60; T. 24 June 2005 pp. 27-28, 30; Prosecution Exhibit 149 (KIBAT Chronique),
paras. 48 (j)(7-9), 50 (c)(2).
1476
T. 8 November 2005 pp. 78-81; T. 9 November 2005 pp. 1-7. Bagosora testified that Dr. Akingenye died in
the plane crash along with President Habyarimana.
1477
T. 18 July 2005 pp. 7-8, 15-16, 19-22; Bagosora Defence Exhibit 181 (personal identification sheet).
Witness LMG explained that a travel voucher allowed a driver to be in a vehicle without the person who was
supposed to be driven. See T. 18 July 2005 p. 21.
Judgement and Sentence
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Dr. Akingeneye’s residence in Kiyovu around 5.00 p.m. The next morning, on 12 April,
between 9.00 and 9.30 a.m., Bagosora’s family and many others travelled in a convoy to
Gisenyi. This convoy included Bagosora’s driver and his Mercedes Benz vehicle. Bagosora
accompanied the convoy until Kamonyi in Runda commune.1478
Bagosora Defence Witness Gaudence Twibanire
1339. Gaudence Habimana Twibanire, Bagosora’s daughter, testified that, on 7 April 1994,
Bagosora evacuated his family to Camp Kanombe. On 11 April, he returned around 1.30 or
2.00 p.m. to move the family to Dr. Akingeneye’s residence in the Kiyovu neighbourhood of
Kigali. According to Twibanire, they left in a four-wheel drive vehicle, driven by Bagosora,
and a double-cabin pickup truck, driven by a soldier who was not Bagosora’s usual driver.
They arrived at Dr. Akingeneye’s residence early in the evening. The next day, on 12 April,
Bagosora’s family and many others left Kigali in a large convoy to Gisenyi prefecture.
Bagosora accompanied the convoy until Kamonyi parish after they crossed Nyabarongo
bridge into Gitarama prefecture.1479
Deliberations
1340. More than 1,000 mostly Tutsi refugees fleeing ETO were killed at Nyanza hill on 11
April.1480 Several other facts concerning this massacre are also not disputed. In particular,
elements of the Para Commando Battalion were stationed in a combat position at the
Sonatube junction along the front line with the RPF. Ntabakuze was at the Sonatube junction
around 12.30 p.m. assisting part of a UNAMIR convoy cross the military checkpoint there.
At 1.45 p.m., a Belgian peacekeeping contingent, which had been guarding the large group of
mostly Tutsi refugees at ETO, withdrew. Shortly thereafter, the refugees fled ETO, but were
stopped at the Sonatube junction and marched towards Nyanza where they were killed.
Bagosora observed the column of refugees move toward Nyanza.
1341. The principal issues for the Chamber to consider are whether Ntabakuze and elements
of the Para Commando Battalion were involved in the attack at Nyanza hill; the significance
of Bagosora’s observation of the refugees moving towards the hill; and whether Kabiligi
played any role in the massacre.
1342. Three Prosecution eye-witnesses testified about the events. Witness AR, a Tutsi
survivor, was the only witness appearing before the Chamber to provide a continuous firsthand narrative of what transpired at ETO, the Sonatube junction and Nyanza hill. He did not
see Ntabakuze but noticed Bagosora observing the moving refugees. Witness AFJ, a member
of the Para Commando Battalion, testified about what happened at the Sonatube junction. He
placed Ntabakuze at the scene ordering the Interahamwe to take refugees at the junction to
Nyanza school. Kayiranga, a soldier, saw the column of refugees move towards Nyanza hill
and watched as soldiers and Interahamwe massacred them. He also did not see Ntabakuze.
None of these three witness provided evidence about Kabiligi.
1478
T. 1 December 2005 pp. 22-23, 25-33, 55; Bagosora Defence Exhibit 293 (personal identification sheet).
The witness was formerly known as Bagosora Defence Witness L-2.
1479
T. 12 December 2005 pp. 2, 12-20; Bagosora Defence Exhibit 299 (personal identification sheet). The
witness was formerly known as Bagosora Defence Witness L-4.
1480
See Prosecution Exhibit 109 (video footage of Nyanza); Prosecution Exhibit 110 (still pictures from video
footage of the corpses at Nyanza); Prosecution Exhibit 111 (photograph of the genocide memorial at Nyanza).
Witness AR identified the footage and recognised some of the victims. T. 1 October 2003 pp. 31-37.
Judgement and Sentence
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18 December 2008
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1343. The Chamber considers that Witness AR gave a mostly consistent and convincing
account of the events. From 7 April 1994, a large number of mostly Tutsi civilians sought
refuge at ETO where they were guarded by a contingent of Belgian peacekeepers. The
Belgian contingent withdrew from ETO around 1.45 p.m. on 11 April, as confirmed by the
evidence of Colonel Dewez, referring to the KIBAT Chronique. Many of the refugees,
fearing attack, fled in an attempt to reach the Amahoro Stadium. This, however, would have
required them to cross the frontline with the RPF, as highlighted by Ntabakuze and also
Dewez, who by virtue of his role in UNAMIR at the time, was familiar with the various
positions of the opposing forces.
1344. According to Witness AR, these refugees were stopped at the Sonatube junction by
soldiers primarily wearing camouflage uniforms as well as camouflage berets. The witness
surmised that these soldiers were members of the Presidential Guard based on information he
had heard about their uniforms.1481 The Chamber, however, is not satisfied that the witness
had a sufficient basis of knowledge about military uniforms to adequately distinguish
between various units. In this respect, other more reliable evidence on this point from
Rwandan soldiers indicates that members of the Presidential Guard as well as other members
of the Rwanda army wore black berets.1482
1345. With respect to the identity of the soldiers at the Sonatube junction, it is not disputed
that members of the Para Commando Battalion’s Third Company as well as its CRAP
Platoon were stationed in a combat position there. This follows from the evidence of
Witnesses AFJ, XAB, Ntabakuze, DK-11 and Dewez.1483 In addition, Ntabakuze testified that
members of the Para Commando Battalion wore camouflage berets.1484 Ntabakuze further
explained that three other units in the Rwandan army wore camouflage berets, namely the
commando battalion of Huye, the commando battalion of Ruhengeri and the commando
training centre of Bigogwe.1485 There has been no suggestion that these units were operating
in the immediate area around the Sonatube junction. In view of this as well as the position of
the Para Commando Battalion at that junction, the Chamber has no doubt that the soldiers
1481
Witness AR’s information came from a soldier who used to visit the witness’s younger brother. His
explanation equally suggests that he might have confused members of the Presidential Guard and Para
Commando Battalion. See T. 1 October 2003 p. 77 (“In other words, members of the presidential guards were
selected and they wore camouflage uniform. They were commandos … because they were better trained than
other soldiers. In other words, they would select people from those commandos and the presidential guards
received a superior training. So that soldier told my younger brother that most presidential guard members were
selected from among members of the paracommando battalion who were based in Kanombe.”).
1482
Witness RO-6, T. 26 April 2005 p. 86; T. 27 April 2005 pp. 13-14; Witness XAI, T. 10 September 2003 pp.
26-27. See also section III.1.2
1483
Other witnesses also attested to the presence of Para Commandos at the Sonatube intersection at that time,
for example, Witness XAI, T. 8 September 2003 pp. 16-18.
1484
T. 18 September 2006 pp. 16-17. Several other witnesses stated that the Para Commando Battalion used
camouflage berets (III.1.2). See also Witness AFJ, T. 8 June 2004 p. 80; Witness XAI, T. 10 September 2003
pp. 26-27; Witness DBN, T. 31 March 2004 p. 80; Witness DBQ, T. 29 September 2003 pp. 46-47; Witness
DK-32, T. 28 June 2005 p. 6; Witness LE-1, T. 21 October 2005 pp. 53-54; Witness RO-6, T. 27 April 2005 pp.
13-14.
1485
T. 18 September 2006 pp. 16-17. See also Ntabakuze Defence Exhibit 235, p. 47 (The Army and the Para
Commando Background: “The uniforms of the FAR personnel were generally identical except the beret. There
were red beret, black beret, blue beret and camouflage beret. The gendarmes were wearing a red beret. Normal
infantry units had a black beret. The aviation squadron had a blue beret. Then the following commando units
had camouflage beret: Para Cdo Bn, Ruhengeri Commando Bn, Huye Commando Bn and Commando Training
Centre of Bigogwe (CECDO).”). This exhibit was prepared by Ntabakuze.
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who stopped the large group of refugees were primarily members of the Para Commando
Battalion.
1346. Based on this and the testimony of Witness AR, the Chamber finds that primarily
members of the Para Commando Battalion as well as Interahamwe surrounded the large
number of mostly Tutsi refugees at the Sonatube junction. After around 30 minutes, the
commander of the troops, who had been communicating by radio, ordered about 20 soldiers
and around 100 Interahamwe to escort the refugees toward Nyanza hill. At the time, Witness
AR was unable to recognise the commander at the junction, and the witness could not
identify Ntabakuze in court.1486 The question is whether the testimony of Witness AFJ, who
said that Ntabakuze requested the Interahamwe to take refugees to Nyanza school shows that
it was in fact Ntabakuze who sent the group of refugees, including Witness AR, to Nyanza
hill.
1347. A significant feature of Witness AFJ’s account is Ntabakuze’s interaction with a
UNAMIR convoy at the Sonatube junction. The witness testified that a small group of
refugees from ETO arrived at the junction before this convoy. Reliable evidence from
Colonel Dewez and the KIBAT Chronique indicates that part of the UNAMIR convoy was
stopped at the Sonatube junction at 12.05 p.m., and that Ntabakuze arrived around 12.30
p.m., facilitating the convoy’s movement through the junction a few moments later.1487
Therefore, the refugees observed by Witness AFJ would have arrived around this time. In
contrast, Witness AR indicated that the refugees arrived at the Sonatube junction around 2.15
p.m., specifically 30 minutes after the withdrawal of the Belgian peacekeepers from ETO at
1.45 p.m.1488 In addition, while Witness AR recalled seeing two UN vehicles pass, he did not
see a UNAMIR convoy stopped at the junction. Therefore, in the Chamber’s view, Witness
AFJ’s testimony does not corroborate Witness AR’s evidence because they were referring to
different incidents around two hours apart.1489
1348. Des Forges stated that a Belgian officer recognised Ntabakuze at the Sonatube
junction. However, she was called as an expert, in order to provide background and context,
and not as a factual witness. Her basis of knowledge concerning Ntabakuze’s involvement in
the attack appears to come from UNAMIR records, such as the KIBAT Chronique or
material used in its preparation.1490 As discussed above, the KIBAT Chronique, coupled with
Dewez’s testimony, indicates that Ntabakuze was at the Sonatube junction around 12.30 p.m.,
1486
T. 1 October 2003 p. 23 (“And after Bagosora, you have Nsengiyumva, Anatole; then there is also Kabiligi,
but I don’t recognise the person after Kabiligi, but I know the three people whom I have identified”).
1487
T. 23 June 2003 p. 59; Prosecution Exhibit 149 (KIBAT Chronique), para. 48 (j).
1488
Witness AR testified that the Belgian peacekeepers left around 1.30 p.m. and that the refugees arrived
around 2.00 p.m. The Chamber, however, relies more on the KIBAT Chronique which provides a more precise
time of 1.45 p.m. for the withdrawal of the Belgian peacekeepers.
1489
The Prosecution also appears to acknowledge this possibility. See Prosecution Closing Brief, para. 1442.
1490
Des Forges initially referred to “written testimony” of Belgian peacekeepers as the basis of her testimony on
Ntabakuze’s involvement in the massacre, but later corrected it to written records. She explained that in
connection with research on another case, she came across a reference to Ntabakuze in the “carnet de veille” and
the “carnet de campagne”, which were created by Belgian peacekeepers at the time. When reviewing the
documents, which were in the possession of Belgian military authorities, she made notes since she did not have
authority to copy the document. T. 18 September 2002 pp. 53-54; T. 25 November 2002 pp. 97-98.
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but it does not itself demonstrate that he was present during the incident involving the large
group of refugees who were later killed.1491
1349. Therefore, the Chamber is not convinced beyond reasonable doubt that Ntabakuze
was present at the Sonatube junction around 2.00 p.m. and ordered more than 1,000 refugees,
including Witness AR, to be taken to Nyanza hill.1492
1350. The next question is whether Ntabakuze around 12.00 p.m. dispatched the smaller
group of refugees to their death at the hands of the Interahamwe. Witness AFJ was the only
first-hand witness attesting to this. Ntabakuze stated that he was not actually at the Sonatube
junction when this group of refugees arrived but that he arranged for their return to ETO
through various radio exchanges from his headquarters at Kanombe airport. The Chamber
observes that the KIBAT Chronique indicates that Ntabakuze arrived at the junction around
12.30 after the UNAMIR convoy arrived and suggests that he departed with it. This runs
counter to Witness AFJ’s suggestion that Ntabakuze was already at the intersection dealing
with the refugees when the UNAMIR convoy arrived. The KIBAT Chronique also makes no
reference to a group of refugees or Interahamwe at the intersection.1493
1351. In addition, Witnesses DK-11 and DK-37 as well as Ntabakuze refer to gendarmes,
not Interahamwe, escorting the refugees back to ETO in order to prevent them from crossing
the frontline. This Defence evidence is far from conclusive on this point.1494 However,
collectively, it raises some concern about Witness AFJ’s claims, in the absence of
corroboration, that Ntabakuze was present at Sonatube junction when the smaller group of
refugees was there, issuing orders to the Interahamwe to take them to Nyanza. In any event,
even if Witness AFJ’s testimony on this point were accepted, there is no direct evidence that
this smaller group of refugees was killed at this time.1495
1352. The Chamber will now consider the event at Nyanza hill. Witness AR gave credible
evidence of the arrival and killing of the large group of Tutsi refugees there, which is
1491
Prosecution Expert Witness Reyntjens made a similar claim to that of Des Forges about Ntabakuze’s
presence, but it also appears to be based on the KIBAT Chronique or material used in its preparation. This point
was not developed during his testimony. See T. 22 September 2004 p. 49.
1492
The Chamber recalls that Georges Ruggiu attested to a conversation that he had with Ntabakuze at the
United Nations Detention Facility in August or September 1997 related to the incident at the Sonatube junction.
In particular, Ruggiu stated: “Aloys Ntabakuze told me that when the Belgian soldiers evacuated the Kacyiru
ETO, he was there with his own soldiers at the Sonatube intersection. He told me that those who sought refuge
at ETO came right up to his place, and he sent them all back. That’s all he said to me. He also told to me he
could not allow those people to go across the front line because it was not safe. That’s all.” See T. 16 June 2003
pp. 61-63. The Chamber is not persuaded that this brief account of a six-year-old conversation between
Ntabakuze and Ruggiu demonstrates beyond reasonable doubt that Ntabakuze was present when the large group
of refugees arrived at the Sonatube junction.
1493
The absence of information in the KIBAT Chronique does not necessarily mean that an incident did not
happen. However, the Chamber also notes the following testimony from Dewez: “[i]f the facts are not contained
in that chronique, that means that those facts were not in the field diary or perhaps they were not reported by the
troops of the battalion … Logically, all that is found in the field diary and which represents something
interesting or important was reflected”. T. 24 June 2005 pp. 20-21.
1494
In particular, Ntabakuze as well as Witnesses DK-11 and DK-37 diverge on the fate of this group of
refugees. According to Witness DK-11, the gendarmes escorted the refugees back towards ETO. Witness DK37, however, heard that Interahamwe attacked the column of refugees forcing them to disperse. Witnesses DK11 and DK-37 do not mention the second larger group of refugees. However, they were not specifically asked
about this.
1495
Witness AFJ only heard about the killings later. He also insisted that Ntabakuze did not order the
Interahamwe to kill the refugees.
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corroborated by Kayiranga. In particular, Kayiranga accompanied the refugees up the hill and
was present when the assailants fired on them. The Defence does not dispute Kayiranga’s
account, and the Chamber also finds his testimony generally credible and reliable.
1353. There is some variance in the details of the accounts of Witnesses AR and Kayiranga,
such as the estimated number of refugees, the duration of the attack, the separation of Hutus
from Tutsis versus the separation of persons from Gisenyi and Ruhengeri, as well as the
presence of a Toyota pickup. The Chamber does not consider these differences significant;
they can be explained by the passage of time, the varying vantage points of the witnesses, and
the traumatic and chaotic nature of the event. Instead, the Chamber has focused on the
common aspects of their accounts. Notably, both witnesses alluded to a large number of
mostly Tutsi refugees who were killed by soldiers and Interahamwe with guns and grenades
from late afternoon until nightfall. In addition, they noted a lull in the attack when the
assailants ran out of ammunition and the removal of some refugees before the slaughter of
Tutsis continued.
1354. Based primarily on the evidence of Witness AR, the Chamber finds that the column of
refugees arrived at Nyanza hill around 5.00 p.m. where they were met by 15 to 20 soldiers,
most of whom were wearing camouflage berets, which had passed them on their way in a
Toyota pickup truck. The Chamber is satisfied that the soldiers escorting the refugees and in
the pickup truck were primarily members of the Para Commando Battalion since, as
discussed above, they left from the Para Commando position at the Sonatube junction and
because of their camouflage uniforms and camouflage berets. Des Forges mentioned that
some of the refugees were raped as they were marched to Nyanza. She was not specifically
questioned by the parties on this point, her evidence does not indicate the identity of the
perpetrators, and there was no corroboration by direct evidence in the present case.
1355. When all of the refugees had arrived, the soldiers and Interahamwe formed a semicircle around them and opened fire. The soldiers sought additional ammunition from the Para
Commando position at the Sonatube junction. During a lull in the attack, the attackers
allowed Hutu refugees to leave. The killing continued until nightfall, and Interahamwe
returned in the early morning on 12 April, intending to loot and kill any survivors. By 13
April, the armed forces of RPF moved into the area and rescued those remaining alive,
including Witness AR. As considered above, the evidence of Kayiranga broadly corroborates
significant portions of Witness AR’s evidence. The fact that Kayiranga possibly identified
one of the assailants at the scene as a member of the Light Anti-Aircraft Battalion does not
undermine the clear evidence discussed above that the soldiers participating in the attack
included members of the Para Commando Battalion.1496 In addition, Witness XAB also
provided some hearsay evidence that members of the CRAP Platoon participated in the
killings. This evidence is not dispositive, but provides some additional corroboration.1497
1496
See Witness AR, T. 1 October 2003 p. 24 (“The soldiers who overtook us in the pickup vehicle were
wearing the same attire as those of the soldiers who were with us at Sonatubes, but it would appear there were
some other soldiers who were wearing black berets. However, most of the soldiers were wearing camouflage
uniforms and camouflage berets.”).
1497
The Chamber has concluded that this unit was part of the Para Commando Battalion. Consequently, the
Chamber does not accept Witness DK-11’s evidence that the CRAP Platoon was outside Ntabakuze’s command
(IV.1.4).
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1356. In view of how the events unfolded, the Chamber can only find that the killing of
these refugees resulted from prior planning. In this respect, the Chamber notes the role played
by the Para Commando Battalion, an elite unit of the Rwandan army, in the movement of
refugees and the attack. Furthermore, as the column moved from the Sonatube junction
towards Nyanza, a Toyota pickup truck with 15 to 20 armed members of the Para Commando
Battalion passed the refugees, and the soldiers then waited for the refugees at Nyanza. These
facts clearly demonstrate organisation. The organised manner of the killing also follows from
the corralling of the refugees at the Sonatube junction and again at Nyanza hill just before the
assault. Moreover, additional ammunition during the attack was sought from the military
position of the Para Commando Battalion at the Sonatube junction. Accordingly, the
Chamber finds that the Prosecution has proven beyond reasonable doubt the allegations that
members of the Para Commando Battalion were amongst the soldiers who were involved in
the massacre of Tutsi refugees from ETO at Nyanza hill.
1357. The Chamber has doubt about the Prosecution argument that the precise location of
the killings at Nyanza was selected primarily to send a message to the RPF not to advance
further. Although this submission appears plausible,1498 Des Forges testified that Nyanza was
selected because it was more “remote” than the Sonatube junction. In any event, the Chamber
lacks sufficient evidence concerning other possible motivations behind the operation than
killing the refugees, as well as information on the RPF’s troop positions and movements to
reach the conclusion suggested by the Prosecution.
1358. The crucial question remains whether Ntabakuze played any role in the attack at
Nyanza hill. In view of the extensive radio communications between the Para Commando
position at the Sonatube junction, Ntabakuze and Rwandan army headquarters concerning the
relatively small group of refugees earlier in the day, the Chamber cannot accept that
Ntabakuze would not have been informed about the significantly larger group a few hours
later. In light of his command and control over members of the Para Commando Battalion,
discussed in section IV.1.4,1499 as well as the manner in which the military operation was
executed, the Chamber considers that it could only have been carried out with the knowledge
and approval of Ntabakuze. It is unthinkable that members of the Para Commando Battalion,
who were particularly disciplined, would have carried out such an extensive operation
without the approval of their commander, Ntabakuze. Furthermore, the evidence also reflects
a high degree of coordination between members of the Para Commando Battalion and
civilian militiamen. The Interahamwe were clearly acting as a complementary force to the
Para Commando Battalion during the attack. The Chamber has determined that under such
circumstances, civilian militamen will be considered as acting under the authority of the army
(III.2.6.3).
1359. Turning to Bagosora, the only direct evidence of his involvement in the attack at
Nyanza hill comes from Witness AR. He testified that he saw Bagosora in a military style
Mercedes Benz jeep along the route to Nyanza, supervising, in the witness’s opinion, the
implementation of his order to kill the Tutsis at ETO. Bagosora concedes that he observed the
column of refugees that day, but in the context of evacuating his family from Camp Kanombe
1498
See, e.g., Witness AR, T. 1 October 2003 p. 27 (noting that the RPF at the time was positioned on nearby
Rebero hill advancing towards Nyanza).
1499
Several former members of the Para Commando Battalion attested to the fierce discipline and respect for
Ntabakuze’s authority within the unit (IV.1.4). See also Witness DK-120, T. 5 July 2005 p. 18; Witness DK110, T. 12 July 2005 pp. 57-58; T. 13 July 2005 pp. 4-6.
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to the Kiyovu neighbourhood of Kigali in a Toyota Landcruiser and a Hilux pickup truck.
The Chamber observes that, regardless of whether Bagosora was in a Mercedes Benz or a
different vehicle, the import remains the same: he had full knowledge of the movement of a
mass of refugees toward Nyanza hill.1500
1360. Bagosora claims that there was nothing unusual about the movement of refugees at
the time. While this may be true, the Chamber has determined that this particular column of
more than 1,000 mostly Tutsi refugees was flanked by at least 100 Interahamwe and elite
Rwandan troops in a combat zone. Therefore, this was no ordinary occurrence. However, it is
not clear what the full scope of his authority was on 11 April (IV.1.2). Bearing in mind the
prevailing circumstances at the time, the Chamber is convinced that Bagosora was aware that
these refugees were going to be killed. The Chamber adds that, in view of his position in the
context of the events, it has some reservations about the incidental nature of Bagosora’s
presence while personally escorting his family.1501 However, it does not have a sufficient
basis to conclude that he ordered or supervised the operation.
1361. With respect to Kabiligi, the Chamber notes that the Prosecution presented no
witnesses or other evidence directly connecting him to the Nyanza massacre. Ntabakuze,
however, testified that he spoke over the radio with Lt. Colonel Kanyandekwe, who was
sitting in for Kabiligi in the G-3 office at army headquarters, with respect to the first group of
refugees. Other hearsay evidence from Witness DK-11 also suggests that the G-3 office was
consulted. However, there is no indication that Kabiligi was aware of this communication, in
particular considering the lack of evidence concerning his whereabouts at the time (III.6.2).
Therefore, the Chamber does not find it established that Kabiligi played a role in this attack.
1362. Finally, the Chamber will address the Ntabakuze Defence assertion that it was not
reasonably informed of the material facts concerning Ntabakuze’s role in the Nyanza
massacre. It submits that the description found in paragraph 6.37 of the Kabiligi and
Ntabakuze Indictment does not include either Ntabakuze or anyone under his command, nor
does it place any part of this event at the location of the Sonatube intersection.1502
1363. The issue of notice for this event has been the subject of litigation throughout the trial.
In connection with the testimony of Ruggiu on 16 June 2003, the Chamber held that the
Prosecution could present evidence related to the role of Ntabakuze and the Para Commando
Battalion in moving Tutsi refugees from the Sonatube Junction back to ETO, even though it
was not specifically mentioned in the Pre-Trial Brief or the Indictment. The Chamber ruled
1500
Witness AR’s testimony about Bagosora is uncorroborated. The Chamber notes that the witness testified that
the distance between himself and Bagosora was about six metres, whereas in a previous statement he thought it
was no more than 30 metres. See Bagosora Defence Exhibit 38 (Prosecution Memorandum of 3 March 1997).
There is also a question whether the witness would be able to accurately identify Bagosora inside a vehicle after
briefly passing it during the traumatic circumstances. Finally, the Chamber cannot exclude the point made by
the Bagosora Defence that Mercedes Benz jeeps were in common use by the Rwandan army. In view of
Bagosora’s testimony that he was present when the refugees passed by, there is no need for the Chamber to
address the significance of these elements, as they do not affect the overall credibility of Witness AR.
1501
Moreover, there are several discrepancies between Witness LMG’s account and those of Bagosora and his
family. In particular, Witness LMG saw Bagosora’s family at Dr. Akingeneye’s residence in Kiyovu on 8 April,
undermining the evidence that they were at Camp Kanombe. Also, he refers to travelling to Gitarama with the
Tutsi family on 10 April and evacuating Bagosora’s family from Kigali on 11 April. Bagosora and his family, in
contrast, place these events on 11 and 12 April, respectively.
1502
Ntabakuze Closing Brief, paras. 1682-1689.
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that it would assess any prejudice to the Accused in reaching final judgement.1503 In its
written decision of 29 June 2006, the Chamber rejected the Ntabakuze Defence request to
exclude the evidence of Alison Des Forges, Ruggiu and Witnesses AR and AFJ concerning
the incident at the Sonatube junction, in particular the testimony implicating Ntabakuze and
the Para Commando Battalion.1504 On 17 April 2007, the Chamber reconsidered this decision
and reached the same conclusion.1505
1364. It follows from the factual findings above that the Prosecution has not proven beyond
reasonable doubt that Ntabakuze was present at the Sonatube junction, issuing orders there to
Interahamwe or soldiers to take refugees to Nyanza and kill them. Therefore, the Chamber
does not find it necessary to consider whether there was adequate notice for this particular
allegation by the Prosecution. From the Chamber’s findings, above, his role in the event is
based on his command of the Para Commando Battalion and the Interahamwe involved in the
attack, which is clearly pleaded in paragraphs 4.8 and 6.31 of the Kabiligi and Ntabakuze
Indictment.1506
1365. The Chamber is also satisfied that Ntabakuze received sufficient notice of the
participation of the Para Commando Battalion and militiamen in the Nyanza massacre.
Paragraph 6.37 of the Kabiligi and Ntabakuze Indictment states that that “soldiers, including
elements of the Presidential Guard, and Interahamwe rounded up a group of refugees [from
ETO] and moved them to Nyanza” where the “soldiers” massacred them. Although there is
no explicit reference to the Para Commando Battalion, the general reference to “soldiers”
includes members of that battalion when read in context. The Appeals Chamber has held that
“in order to determine whether an accused was adequately put on notice of the nature and
cause of the charges against him the indictment must be considered as a whole.”1507 In
particular, paragraph 6.31 by way of introducing the specific massacres, including Nyanza,
which are attributed to Ntabakuze, indicates that soldiers under his authority participated in
them.1508 Moreover, paragraph 6.44 of the Indictment provides that “most of the massacres
were perpetrated with the participation, aid and instigation of military personnel … Certain
units of the Para-Commando, Reconnaissance and Presidential Guard battalions were the
most implicated in these crimes in the capital … often acting in concert with the militiamen”.
1503
T. 16 June 2003 pp. 58-59.
See Decision on Ntabakuze Motion on Exclusion of Evidence (TC), 29 June 2006, paras. 36-38.
1505
Decision Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April 2007,
paras. 14-18. In its decision of 29 June 2006, the Chamber had held that Ntabakuze had the burden to prove that
he was prejudiced by any claims of lack of notice because he failed to make contemporaneous objections. The
Chamber found in its April 2007 decision that the Ntabakuze Defence had made timely objections and thus
shifted the burden to the Prosecution.
1506
Paragraph 4.8 of the Kabiligi and Ntabakuze Indictment reads: “In his capacity as Commander of the ParaCommando Battalion of the Rwandan Army, Aloys Ntabakuze exercised authority over the units of this
Battalion.” Paragraphs 3.3 and 6.34 refer to the “elite’ nature of the battalion. Paragraph 6.31 states: “From
April to July 1994, … Major Aloys Ntabakuze, exercised authority over … militiamen.” Paragraph 6.37
indicates that soldiers and Interahamwe worked together in rounding up the refugees from ETO.
1507
See Simba Appeal Judgement, para. 72, fn. 158, citing Gacumbitsi Appeal Judgement, para. 123.
1508
Paragraph 6.31 of the Kabiligi and Ntabakuze Indictment reads: “From April to July 1994, [by] their
statements, the orders they gave and their acts, Brigadier General Gratien Kabiligi and Major Aloys Ntabakuze,
exercised authority over members of the Forces Armées Rwandaises, their officers and militiamen. The military
and militiamen, as from 6 April 1994, committed massacres of the Tutsi population and of moderate Hutu which
extended throughout Rwandan territory with the knowledge of Brigadier General Gratien Kabiligi and Major
Aloys Ntabakuze.” As mentioned above, paragraph 4.8 of that Indictment further specifies that Ntabakuze’s
subordinates were units of the Para Commando Battalion.
1504
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The Chamber has previously held that other paragraphs in the Indictment also provided
notice when read in context with paragraph 6.37.1509 Accordingly, the Chamber considers that
the Indictment is not vague and that it reasonably informed Ntabakuze that members of the
Para Commando Battalion acting in conjunction with militiamen were involved in the crimes
committed at Nyanza.
1366. In any event, if there were any ambiguity as to whether the Indictment sufficiently
pleaded the involvement of Ntabakuze and the Para Commando Battalion in the massacre, the
Chamber considers that it was cured by timely, clear and consistent notice. The summary of
Witness XAB’s anticipated testimony annexed to the Prosecution’s Pre-Trial Brief, filed on
21 January 2002, specifically mentions the role of the CRAP Platoon, one of the battalion’s
units, in the massacre.1510 Furthermore, in an oral ruling on 16 June 2003, the Chamber stated
that it would consider evidence related to the role of Ntabakuze and the Para Commando
Battalion in moving Tutsi refugees from the Sonatube junction towards Nyanza and assess
any unfairness at the end of the case.1511 Therefore, Ntabakuze was again informed that he
had to face the allegation that both he and members of the Para Commando Battalion were
implicated in the events at Nyanza.1512 The notice provided by the Pre-Trial Brief and the
Chamber’s oral ruling was given sufficiently in advance to allow for adequate preparation of
the testimony about Nyanza by Witnesses AR at the end of September 2003, Kayringa and
XAB in April 2004, and AFJ in June 2004.1513
1367. The Ntabakuze Defence received additional notice implicating Ntabakuze and the
Para Commando Battalion in the Nyanza massacre from the summary of Witness AFJ’s
anticipated testimony in a Prosecution motion in March 2004 to add witnesses as well as the
witness’s annexed statement to Tribunal investigators.1514 This notice was consistent with
earlier disclosure of Witness AFJ’s statement on 20 August 2003 which further mentioned
the Prosecution’s intention to call him as a witness.1515 The Chamber granted the
1509
Reference was made to paragraphs 6.19 and 6.34 of the Kabiligi and Ntabakuze Indictment. See Decision
Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April 2007, paras. 17-18;
Decision on Ntabakuze Motion on Exclusion of Evidence (TC), 29 June 2006, paras. 37-38.
1510
See Decision Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April
2007, paras. 17-18; Decision on Ntabakuze Motion on Exclusion of Evidence (TC), 29 June 2006, para. 38;
Prosecution Pre-Trial Brief (21 January 2002), Annex, p. 138 (“Witness will state that on the 12th April 1994 he
was told by elements of C.R.A.P. that they had taken part in massacres at the Ecole Technique Officielle in
Kicukiro.”). The Pre-Trial Brief further indicates that Witness XAB’s testimony is relevant to the charge of
genocide in the Kabiligi and Ntabakuze Indictment.
1511
T. 16 June 2003 pp. 58-59.
1512
See Simba Appeal Judgement, para. 79 (viewing notice provided to the defence against a backdrop of
chamber decisions).
1513
Witness AR testified on 30 September and 1 October 2003, Kayiranga on 30 April 2004, Witness XAB on 6
April 2004 and Witness AFJ on 8 June 2004.
1514
Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73 bis (E) of the Rules of
Procedure and Evidence, 24 March 2004, paras. 22-27, in particular para. 25 (“This evidence establishes the
involvement of the soldiers of the Para-Commando Battalion in gathering, movement and final execution of the
Tutsi refugees, who had originally escaped from ETO, were then stopped at the SONATUBE intersection and
finally exterminated at the NYANZA hill.”).
1515
See Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73 bis (E) of the Rules of
Procedure and Evidence, 24 March 2004, para. 22. The Chamber does not consider that this disclosure in and of
itself provided notice to Ntabakuze. See Niyitegeka Appeal Judgement, paras. 197, 221.
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Prosecution’s request to add Witness AFJ on 21 May 2004, noting that his prospective
evidence was material to the Prosecution’s case concerning the Nyanza massacre.1516
1368. The Chamber acknowledges that the evidence concerning the rounding up of the
refugees at the Sonatube junction is important to its findings. However, the location of the
crime charged in the Indictment is not the junction but Nyanza, which is specifically pleaded
in paragraph 6.37. The fact that the refugees were originally stopped at the Sonatube junction
and that the Para Commando Battalion was positioned there does not make the location a
material fact that the Prosecution was required to plead to put Ntabakuze on notice of the
charges against him. Rather, this evidence was simply relevant to proving the allegations
pleaded in the Indictment. The Chamber recalls that, as noted above, the Ntabakuze Defence
received reasonable notice that evidence would be led related to this location in order to
prepare its defence.
1369. In sum, the Kabiligi and Ntabakuze Indictment, when read in its totality, put
Ntabakuze on notice that the perpetrators of the Nyanza massacre included militiamen and
members of the Para Commando Battalion, and that he could be held accountable based on
his role as their commander. Any possible ambiguity in the Indictment was eliminated by
subsequent notice given well before the appearance of witnesses relied on by the Trial
Chamber in making its factual findings on this event. The Chamber therefore cannot identify
any prejudice to the Ntabakuze Defence.
1370. In view of its findings on Kabiligi, the Chamber need not consider his challenges to
the pleading of his role in the crime.
4.1.2
Islamic Cultural Centre (Kadhafi Mosque), 13 April
Introduction
1371. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege that
soldiers and Interahamwe participated in a massacre that took place close to the Islamic
Cultural Centre (also known as Kadhafi mosque) in Nyamirambo, in the Kigali-Ville
prefecture, on 13 April 1994. The Prosecution also submits that Bagosora was subsequently
observed in the area in uniform and issuing instructions to soldiers there. Reference is made
to Witness FW.1517
1372. The Bagosora Defence argues that it did not recieve sufficient notice regarding certain
aspects of Witness FW’s testimony and challenges his credibility. Bagosora also did not have
any connection to military operations after his recall to active service on 21 May 1994.
1516
Decision on Prosecutor’s Motion for Leave to Vary the Witness List Pursuant to Rule 73 bis (E) (TC), 21
May 2004, paras. 20-22. Notably, the Ntabakuze Defence’s objections to the addition of Witness AFJ did not
focus on notice or relevance to the Indictment, but rather the cumulative nature of the evidence and the delay in
seeking to add him as a witness. See Ntabakuze Defence Response to the “Prosecutor’s Motion for Leave to
Vary the Witness List Pursuant to Rule 73 bis (E) of the Rules of Procedure and Evidence” of 24 March 2004, 5
April 2004, para. 20.
1517
Bagosora Indictment, para. 6.27, 6.50; Kabiligi and Ntabakuze Indictments, para. 6.36; Prosecution Closing
Brief, paras. 1123-1126, pp. 757, 767, 836. Witnesses DH-90 and DH-91 also provided evidence about the
attack.
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According to the Ntabakuze Defence, members of the Para Commando Battalion were not
involved in the massacre.1518
Evidence
Prosecution Witness FW
1373. Witness FW, a Tutsi, sought refuge at the Islamic Cultural Centre in the Nyamirambo
area of Kigali on the afternoon of 12 April 1994, where he found around 400 to 500 other
unarmed Tutsi refugees. Later that day, he heard an RTLM broadcast announcing that there
were Inyenzi with firearms at the Centre and that the army should be aware of this. On 13
April at approximately 9.00 a.m., at least 15 soldiers, armed with firearms and grenades, and
more than 15 Interahamwe with traditional weapons and grenades, arrived at the Centre. The
soldiers wore camouflage uniforms with black or camouflage coloured berets containing an
insignia of a blue bird. The Interahamwe were dressed in MRND uniforms, CDR uniforms or
civilian clothes.1519
1374. The witness hid under an abandoned vehicle but could clearly observe the soldiers
surround the dormitory facilities where the Tutsi refugees were located. The leader of the
soldiers instructed the Interahamwe to bring the refugees out and kill them. The Interahamwe
broke into the dormitory while the soldiers continued to stand outside with their weapons
ready. The witness overheard the solders telling the Interahamwe to take the Tutsis away and
ensure that none of them escaped. The refugees were brought out of the Centre, and the
soldiers were the last to leave the compound. A few minutes later, the witness heard multiple
powerful explosions. On 14 April, he discovered six injured Tutsis who had been taken away,
but had managed to return to the dormitories. They told him that the soldiers and
Interahamwe had taken them to a nearby neighbourhood called Kivugiza, locked them in
several houses, and lobbed grenades inside.1520
1375. In May 1994, while still hiding at the Centre, Witness FW observed Bagosora exit a
vehicle and speak with the soldiers he was with, telling them that it was important to be
vigilant so as to prevent civilians and infiltrators from gaining access to the Centre and also
because the Inyenzis could attack that place at any time. The witness was hiding in a building
approximately 10 to 15 metres from Bagosora and the other soldiers. Bagosora was wearing
the same uniform that the soldiers had been wearing on 13 April, including the black beret
with an insignia of a blue bird, but he was not wearing the stripes on his uniform that denoted
rank.1521
Ntabakuze Defence Witnesses DH-90 and DH-91
1376. Witness DH-90, who lived approximately 600 to 700 metres from the Islamic Cultural
Centre during the relevant time period, heard that there were some serious “events” that took
1518
Bagosora Closing Brief, paras. 1179-1186; Ntabakuze Closing Brief, para. 2112. The Kabiligi Closing Brief
does not address this incident, but Kabiligi has raised an alibi for this period (III.6.2).
1519
T. 3 November 2003 pp. 4-12, 47-49; T. 4 November 2003 pp. 5-13; Prosecution Exhibit 116 (personal
identification sheet).
1520
T. 3 November 2003 pp. 13-21, 37, 43; T. 4 November 2003 pp. 5-6, 8-18.
1521
T. 3 November 2003 pp. 29-31, 33-37, 39-43; T. 4 November 2003 pp. 21-23. Witness FW had previously
been a friend of Bagosora’s son-in-law and met Bagosora during a wedding “some time” before the incident at
the Islamic Cultural Centre. On other occasions, he observed Bagosora in a moving vehicle and on television.
See T. 3 November 2003 pp. 27-29, 33-36.
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18 December 2008
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place on 13 April 1994 at Saint André and the Islamic Cultural Centre. In his opinion,
soldiers were not responsible for the event, but he also said that he did not know if there were
soldiers among the Interahamwe who perpetrated the massacre. Witness DH-91, who lived in
Nyamirambo during the relevant events, was told that there were refugees at the Islamic
Cultural Centre and that it was attacked. He later spoke with a woman who had survived the
attack under a pile of dead bodies.1522
Bagosora
1377. Bagosora stated that he did not have any command authority over combat troops in
general and specifically disputed that he was at the Centre in May 1994 directing troops.1523
Deliberations
1378. Witness FW is the only witness to provide direct testimony regarding the attack on the
Islamic Cultural Centre on 13 April 1994.1524 He provided very specific details regarding
important components of the event, including the uniforms worn by the soldiers and
Interahamwe involved, the weapons they carried, and the geography of the Centre. His
evidence is largely convincing and mostly consistent with his prior statements to Tribunal
investigators in November 1995 and July 2000, which were put to him during crossexamination.1525
1379. One difference between his testimony and his statements concerns the number of
soldiers present. According to his November 1995 statement, only three soldiers participated
in the attack whereas he testified that there were at least 15. The witness explained that his
1995 statement was a “summary of the situation”.1526 His testimony also reflects that soldiers
arrived at the Centre in two groups, one of which arrived slightly ahead of the other and
contained three soldiers.1527 The Chamber accepts his explanation.
1380. Witnesses DH-90 and DH-91, who were both present in the general vicinity of the
Centre and who had extensive dealings with other refugees during the relevant time period
(III.4.1.14), also attested to the attack on the Centre.1528 While Witness DH-90 suggested that
soldiers were not responsible for the massacre, he acknowledged that he did not know if
soldiers were present with Interahamwe during the attack. Based on Witness FW’s testimony,
the Chamber finds that soldiers accompanied by Interahamwe killed a large number of Tutsi
refugees at the Islamic Cultural Centre in Nyamirambo on 13 April 1994.
1381. Turning to whether Ntabakuze bears any responsibility for the attack, the Chamber
notes that Witness FW identified soldiers wearing camouflage berets, which are typically
1522
Witness DH-90, T. 25 April 2005 pp. 9, 38, 44-45; Witness DH-91, T. 29 April 2005 pp. 40, 50-51.
T. 9 November 2005 pp. 38-39.
1524
According to Prosecution Closing Brief, para. 1126, Witnesses AAA and DBQ corroborate Witness FW’s
testimony. The Chamber notes, however, that both witnesses testified regarding an incident that occurred at the
end of May 1994 involving the killing of Tutsi refugees from Saint André College and the Islamic Cultural
Centre (III.4.1.14).
1525
T. 3 November 2003 pp. 40-41; T. 4 November 2003 pp. 10-11, 13. The statements were not tendered into
evidence.
1526
T. 4 November 2003 p. 10.
1527
T. 3 November 2003 pp. 11-13.
1528
There is also a brief reference to the April attack on the Khadafi mosque in Prosecution Exhibit 3A (Alison
Des Forges, Leave None to Tell the Story (1999)), p. 210.
1523
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worn by members of the Para Commando Battalion as well as three other commando units of
the Rwandan army, the Ruhengeri Commando Battalion, the Huye Battalion and the
Commando Training Center of Bigogwe (III.1.2). The witness did not specifically identify
the soldiers as members of the Para Commando Battalion. At the time of the incident, the
Para Commando Battalion was stationed in combat positions along a front line with the RPF
between Remera and Sonatube (III.4.1.13-14). There is also some evidence from Witness
XXJ suggesting that members of the Huye Battalion were operating in the Nyamirambo
area.1529 Therefore, the Chamber is not convinced that members of the Para Commando
Battalion were the soldiers wearing camouflage berets at the mosque.
1382. As to Kabiligi, the Prosecution has not eliminated the reasonable possibility that he
was not in Rwanda at the time the attack occurred (III.6.2). Furthermore, it has not proven
that he had command over Rwandan soldiers (IV.1.3).
1383. With respect to Bagosora, the Prosecution has not proven as a general matter that he
exercised command authority over the Rwandan army after 9 April 1994 (IV.1.2). The
evidence related to this event also does not show that he exercised any specific command
over the assailants involved in the attack. While Witness FW claimed that he saw Bagosora in
May wearing a similar uniform to the assailants on 13 April, this fact, even if true, does not
demonstrate that Bagosora was present or had command over the assailants at the time of the
attack.
1384. The Chamber has some doubts about Witness FW’s identification of Bagosora in
May. His prior knowledge of Bagosora came from seeing him occasionally pass by in a
moving vehicle. There is no information about when he saw him on television. He also met
Bagosora at a wedding, but could not recall the approximate date other than noting it was
before 1994 and “some time” prior to the relevant events. This is not a particularly strong
basis of knowledge for identifying Bagosora under traumatic circumstances. At the time of
the alleged sighting at the end of May, the witness was hiding in a building 10 to 15 metres
away. Soldiers of the same unit, who had participated in the massacre the witness had
survived in April, were receiving instructions to prevent civilian infiltrators from gaining
access to the area where he was taking refuge.1530
1385. Furthermore, Witness FW did not mention Bagosora’s presence in his previous
statements to Tribunal investigators in November 1995 and July 2000. The witness explained
that he only answered the questions that were put to him, which did not focus on
Bagosora.1531 The Chamber accepts that this may be true, but it is nonetheless surprising that
he would not volunteer such information, given his apparent familiarity with Bagosora and
his overall significance during the events. In view of these concerns, the Chamber declines to
accept the witness’s account of Bagosora’s presence in the absence of corroboration.
1529
T. 16 April 2004 pp. 10-11.
See, e.g., T. 3 November 2003 p. 42 (“Q. … You told us that you saw Bagosora in the month of May. Was
it, could you be more specific, at the beginning or at the end of the month of May? A. Well, Counsel, I really am
sorry. I am going to answer, but you yourself, as a reasonable human being, I mean, put yourself in my position.
I was in a situation where at any point in time I could be killed. I could be killed by the soldiers who were in
charge of guaranteeing security and peace. I’ve given you the dates that I could remember.”).
1531
T. 3 November 2003 pp. 40-41.
1530
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1386. The Chamber determined during the course of the trial that Bagosora had notice of his
alleged presence in Nyamirambo in May 1994.1532 In view of its findings, it is not necessary
to revisit the Defence arguments concerning the notice provided for that allegation.
4.1.3
Centre Hospitalier de Kigali, April - May
Introduction
1387. The Bagosora Indictment alleges that, once the killings in Kigali had started, soldiers
who were supposed to be guarding the Centre Hospitalier de Kigali (CHK) drew up lists of
Tutsi patients and hospital staff to be targeted and then killed them. Each morning, the officer
in charge reported to the Ministry of Defence. The Prosecution relies on the testimony of
Witnesses ZA, XAI, DCB and UT.1533
1388. The Bagosora Defence argues that the Prosecution has failed to show that Bagosora
had authority over the perpetrators. It further submits that the testimony of Witness ZA lacks
credibility.1534
Evidence
Prosecution Witness ZA
1389. Witness ZA, a Tutsi, worked at the CHK in April 1994. On 10 April, she went to the
hospital, accompanied by her two sisters, one of whom was pregnant and required medical
treatment at the maternity ward. At the entrance to CHK there was a roadblock manned by a
large number of soldiers, with additional soldiers nearby. The soldiers wore green coloured
berets as well as dark green uniforms and had firearms. They were checking the identity cards
of people before allowing them to pass. The witness noted that it was unusual to see military
soldiers, as opposed to gendarmes, present in this area. There were also at least four civilians
that had been brought from the hospital by soldiers and were placed on a pick-up truck. After
explaining that she worked at the CHK, the witness and her sisters were allowed to enter.
There were also several soldiers inside the hospital wearing the same uniforms as the soldiers
at the roadblock outside.1535
1390. The soldiers entered the wards and, after asking patients to show their identity card,
recorded some of their names and hospital bed numbers. In the evening, the patients whose
names had been recorded were taken by the soldiers to an area in the hospital, where the trash
was dumped, and killed. The witness could hear the victims screaming and was told by other
patients that the persons being killed were Tutsis. She tried to assist some patients whose
names had been placed on the lists by hiding them in a hospital lavatory. One of her
colleagues reported her for this, and she was cautioned for her action. The witness and the
1532
Decision on Bagosora Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC), 11
May 2007, paras. 40-41.
1533
Bagosora Indictment, para. 6.52; Prosecution Closing Brief, paras. 423-424, 595, 1272, 1274 (b) and (c),
1275-1276, 1454, 1456(d), 1458, p. 768. This event is not mentioned in the Indictments of the other Accused.
1534
Bagosora Closing Brief, paras. 1694-1698, pp. 380-381.
1535
T. 12 February 2004 pp. 11, 17-18, 20-22, 51-52, 59-60, 76-77; Prosecution Exhibit 180 (personal
identification sheet). Witness ZA identified the CHK, the roadblocks she passed on her way there, as well as
Camp Kigali on a map of Kigali entered as Prosecution Exhibit 181. See T. 12 February 2004 pp. 45-46.
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threatened patients left the maternity ward by escaping through a window. She remained at
the hospital but did not return to this ward.1536
1391. In mid-April, a radio communiqué issued by Prefect Renzaho requested that all dead
bodies be removed from Kigali. After this message, trucks loaded with corpses arrived at the
CHK, and the bodies were dumped in the same area of the hospital where the night killings
occurred. According to the witness, the victims were Tutsis. Some of them were still alive,
although seriously injured, and were treated at the hospital upon arrival. Soldiers abducted
these injured patients at night and killed them with clubs at the same location where the other
killings had occurred.1537
1392. In mid-May, a soldier showed Witness ZA a handwritten list of names that included
her name and told her that she and the others on the list were going to die that night. She went
to seek advice from a patient at the hospital, the chaplain of the Kacyiru gendarmerie, who
hid her in his room because it was guarded by gendarmes. In the middle of the night, the
officer in charge at the CHK, accompanied by two additional soldiers, searched the
chaplain’s room and removed the witness and one of her sisters. After pleading with a soldier
to be shot rather than killed with a club, the witness was locked in an operating theatre, where
she remained for the rest of the night. The next morning, a soldier sent to kill the witness told
her that he would save her life by escorting her out of the hospital and then telling the officer
in charge that he had in fact killed her. This plan worked, and Witness ZA was able to
escape.1538
1393. The commanding officer present at the CHK, Lieutenant Pierre Nsanzimana, and the
soldier that discovered her hiding in the chaplain’s room were from the 33rd Battalion. The
witness learned this from the two gendarmes guarding the chaplain. She was told by the
soldier that subsequently escorted her to safety that Nsanzimana reported to the Ministry of
Defence each morning about the killings that had occurred at the hospital the previous night.
Nsanzimana wore a green uniform and a green beret like the other soldiers present at the
hospital.1539
Prosecution Witness XAI
1394. Witness XAI, a Hutu, was a member of the 17th Battalion, who was injured in 1993
and hospitalised at Kanombe military hospital. Between 15 and 20 April 1994, he was
transferred, along with 80 to 120 other soldiers, to the CHK. It was located 50 metres from
Camp Kigali and the surrounding area was controlled by government forces, although
citizens were allowed access to the hospital. The witness remained at the CHK until the end
of April or early May. While there, he saw several Tutsis taken away to be beaten and killed.
A number of soldiers at the hospital had deserted their positions at the front and sought refuge
there but did not commit any acts of violence.1540
1536
T. 12 February 2004 pp. 23-24.
Id. pp. 26-28, 32-33.
1538
Id. pp. 26, 33-36, 75, 78-79. Witness ZA became acquainted with the soldier who saved her while working
at the hospital.
1539
Id. pp. 23-26, 53-58, 60-62, 75-76, 78.
1540
T. 8 September 2003 pp. 7-9, 18; T. 9 September 2003 pp. 1-3, 24, 36-39; T. 10 September 2003 pp. 2-3,
22-24; T. 11 September 2003 pp. 13-15; T. 12 September 2003 pp. 11-12, 14; Prosecution Exhibit 94 (personal
identification sheet). Witness XAI did not identify the assailants.
1537
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Prosecution Witness DCB
1395. Witness DCB, a Hutu, was a medical officer with the Presidential Guard at Camp
Kimihurura. His duties included treating soldiers inside the camp and taking wounded
soldiers for treatment at various hospitals. He went to the CHK often in April 1994 and
recalled seeing several dead bodies there as well as soldiers from Camp Kigali.1541
Prosecution Witness UT
1396. The written statement of Witness UT, a Tutsi, who lived in Gikondo in 1994, was
admitted pursuant to Rule 92 bis. She was cross-examined by the Bagosora and Kabiligi
Defence. The witness was injured in an attack at Gikondo Parish (III.3.5.8). On 10 April
1994, she and other wounded persons were transferred to the CHK by the Red Cross. The
patients were both soldiers and civilians. The witness observed soldiers beating patients,
saying that the civilians were responsible for their injuries. As a result of these acts, she and
others were evacuated to Kabgayi in Gitarama prefecture.1542
Deliberations
1397. There is no dispute that killings were perpetrated at the CHK.1543 The Defence,
however, does contest the credibility of the Prosecution’s main witness for the event, Witness
ZA, as well as the evidence connecting Bagosora to the crimes perpetrated there.
1398. Witness ZA provided first-hand evidence that soldiers killed Tutsi civilians at the
hospital between mid-April and mid-May. Her testimony reflects that this happened at times
after soldiers questioned the patients on their identity and drew up lists. It follows from her
account that soldiers at a roadblock in front of the hospital also checked identity cards.
1399. She described the soldiers as wearing dark green uniforms and green berets. The
Chamber notes, however, that members of the Rwandan army for the most part wore black
berets or camouflage berets if they were part of elite commando units such as the Para
Commando Battalion or Huye Battalion (III.1.2). This difference does not undermine her
identification of the assailants at the CHK as soldiers in view of its close proximity to Camp
Kigali as well as the evidence of Witnesses XAI, DCB and UT that soldiers were present at
the hospital. In particular, Witnesses XAI and DCB were members of the Rwandan army and
therefore able to distinguish between various military units. Witness ZA’s description of the
colour of the beret as green probably follows from her lack of familiarity with military dress,
fading memory or the nature of the difficult circumstances surrounding the events. It is likely
that the berets she saw were in fact either black or possibly camouflage since they appeared
to match the soldiers’ uniforms.
1400. Witnesses XAI, DCB and UT generally corroborated Witness ZA’s assertion that
Tutsis at the hospital were targeted. They were not questioned extensively on the events at the
hospital, and their accounts are therefore less detailed.
1541
T. 6 February 2004 pp. 25, 32; Prosecution Exhibit 175 (personal identification sheet).
Prosecution Exhibit 259 (statement of 20 October 1998); Prosecution Exhibit 258 (personal identification
sheet); T. 9 June 2004 p. 24. Witness UT was not cross-examined on the portion of her statement relating to the
events at the CHK.
1543
Bagosora Closing Brief, pp. 380-381.
1542
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1401. The Defence disputed Witness ZA’s credibility primarily with respect to her
identification of Lieutenant Nsanizimana’s unit and his reporting relationship to the Ministry
of Defence. In particular, it notes that there was no 33rd Battalion in the Rwandan army.1544
Also, there were only two officers in the Rwandan army named Nsanzimana, one assigned to
the Rulindo operational sector 40 kilometres away in Kigali-Rural prefecture, and the other
who was assigned to the G-1 bureau on the army general staff.1545 In an effort to suggest that
Nzanzimana was assigned possibly to the general staff, rather than the Ministry of Defence,
the Defence referred to the statement of Witness BK, Witness ZA’s sister, which indicated
that Nsanzimana was attending a meeting at army headquarters.1546
1402. When confronted with these points, Witness ZA said that she was only recounting
what she heard from the gendarmes at the hospital. She also emphasised that she was not
familiar with the organisation of the military.1547 In the Chamber’s view, this explanation as
well as the evidence suggesting that Nsanzimana was not assigned to the Ministry of Defence
raise doubt about her hearsay evidence relating to the identity of the soldiers’ unit and their
reporting structure. It does not, however, undermine her overall credibility with respect to the
events at the CHK. Her testimony remained consistent that soldiers were at the hospital under
the command of Nsanzimana. The fact that one of the two officers with that name in the
Rwandan army was assigned to the army general staff, which was located nearby at Camp
Kigali, corroborates some aspects of her account.1548
1403. The Chamber considers that Witness ZA offered a mostly consistent and convincing
account of targeted attacks by soldiers against Tutsi civilians, from mid-April to mid-May, at
the CHK. She did not have an adequate basis of knowledge to identify their unit, although it
appears likely that the commanding officer was part of the G-1 bureau at army headquarters
at Camp Kigali. Her evidence also does not reliably implicate Bagosora in the crimes
committed at the CHK.
1544
T. 12 February 2004 pp. 56-57. See also Nsengiyumva Defence Exhibit 16 (Situation of officers in the
Rwandan Army as of 1 March 1994).
1545
T. 12 February 2004 pp. 57-58. See also Nsengiyumva Defence Exhibit 16 (Situation of officers in the
Rwandan Army as of 1 March 1994).
1546
Bagosora Closing Brief, para. 1695; T. 12 February 2004 p. 60; Bagosora Defence Exhibit 79A (Witness
BX’s statement of 9 November 1997), p. 6, which reads: “Around 10 p.m., on 20 April, another bomb landed
near the Pediatric Unit. Dr. Cyridion, who was passing by the maternity ward, was surprised to see me still
alive. He said something to the effect that he would settle my case with [Lieutenant Pierre Nsanzimana], who at
that moment was in a meeting at the Army Headquarters.” The Prosecution originally listed Witness BK as a
potential witness but did not ultimately call her.
1547
T. 12 February 2004 pp. 54-56.
1548
The Defence suggests that Witness ZA lacks credibility because she spoke about a UNAMIR vehicle which
was attacked by grenades during the evacuation of refugees from the Hôtel des Milles Collines. It notes that
neither General Dallaire nor Major Beardsley corroborates this aspect of her testimony even though they
testified extensively about the movement of refugees. See Bagosora Closing Brief, para. 1697. In the Chamber’s
view, this argument does not undermine her testimony since the witness was simply recounting what someone
else told her. See T. 12 February 2004 p. 72.
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.1.4
IAMSEA, Mid-April
Introduction
1404. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege
that, starting on 7 April, elements of the Rwandan army and Interahamwe perpetrated
massacres of the civilian Tutsi population in places where they had sought refuge for their
safety. As part of this general allegation, the Prosecution contends that, around 15 April 1994,
members of the Para Commando Battalion and Interahamwe, under the authority of
Ntabakuze, killed Tutsi civilians who had sought refuge at the L’Institut Africain et
Mauricien de Statistiques et d’Economie (“IAMSEA”) in the Remera area of Kigali.
Reference is made to Witnesses WB, DBQ and DP.1549
1405. The Ntabakuze Defence maintains that it lacked sufficient notice of these allegations.
It also disputes the credibility of the Prosecution’s evidence, including the testimony that
Ntabakuze was present at IAMSEA. The Defence points to Witnesses Dewez, L-22, DK-120,
DH-51, DK-37 and DK-14.1550
Evidence
Prosecution Witness WB
1406. Witness WB, a Tutsi civil servant, testified that, at approximately 6.00 a.m. on 9 April
1994, two soldiers wearing camouflage berets forcibly entered his house. They forced the
witness and his family to lie down and told them that “the time of the Tutsis was over and
since Tutsis had killed Habyarimana, they, too, should be killed”. Different soldiers passed
by the witness’s house during the day, some wearing helmets. A few of them drank his beer
and spoke with him. A soldier from the same prefecture as the witness informed him that they
were members of the Para Commando Battalion. Around 9.00 or 10.00 a.m., Interahamwe
arrived and began looting. They also insulted and beat the witness and his family throughout
the day. That evening, fearing for their safety, the witness asked some soldiers who were
carrying out patrols in the area to escort the family and two house servants to IAMSEA,
which is situated in the Remera area of Kigali. The soldiers accompanied them there on foot,
where they joined around 150 staff, students and other refugees.1551
1407. Before noon on 11 or 12 April, Witness WB saw an army major speaking in English
with about six UNAMIR peacekeepers as they evacuated 30 expatriates from IAMSEA. The
witness knew the army officer’s military rank because of the style of his epaulettes – a star
and stripe of gold or silver metallic colouring. The major also wore a camouflage coloured
uniform and camouflage beret. The peacekeepers wore insignia indicating that they were
from Ghana or Nigeria. The expatriates showed their passports as they were evacuated.
Around 70 persons remained at IAMSEA. On the evening of 13 April, about 10 members of
the Para Commando Battalion, wearing “camouflage, khaki-coloured” uniforms and “khakicoloured” berets, as well as 20 to 30 Interahamwe, armed with traditional weapons and
1549
Bagosora Indictment, para. 6.50; Kabiligi and Ntabakuze Indictment, para. 6.36; Prosecution Closing Brief,
paras. 133, 151, 167, 426, 1109(f), 1120(f), 1156-1160, 1631, 1713.
1550
Ntabakuze Closing Brief, paras. 1445-1446, 1450-1455, 1822-1907, 2214, 2216, 2218, 2227, 2273, 2298,
2301, 2450, 2535, 2553, 2562, 2570. The other Closing Briefs do not address this event.
1551
T. 12 November 2003 pp. 18, 26, 29, 33-38; Prosecution Exhibit 125 (personal identification sheet).
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grenades, arrived. They moved the witness and his family out of IAMSEA and took them to
houses some 250 metres away where they spent the night. The soldiers locked the refugees in
one place and the IAMSEA students and lecturers in another. One of the soldiers, Pierre
Canisius Karasanyi, brought the refugees food later that evening.1552
1408. Around 10.00 a.m. on 14 April, Karasanyi allowed the refugees out of the houses and
into a courtyard where Witness WB saw the major who had been present at IAMSEA during
the evacuation of expatriates. Around 10 Interahamwe were asking the major to send the
refugees back to their homes, and the refugees in turn begged to go back to IAMSEA because
they felt it would be safer. There were about 10 other soldiers in the vicinity. The major
asked the soldiers to escort the refugees back to IAMSEA. The witness heard the major say:
“Leave them, let them go back at the IAMSEA. We will look at their own case, later on.” In
1995, Karasanyi, who was present at IAMSEA in April 1994, informed the witness that the
major was Ntabakuze, explaining that he was in charge of all military activities in the Remera
area. The witness identified Ntabakuze in court.1553
1409. On 15 April at 4.00 p.m., approximately 30 or 40 Interahamwe and about eight
soldiers came to IAMSEA. The soldiers were wearing “khaki” uniforms and “khaki” berets.
They lined up the refugees inside IAMSEA. Paulin, the leader of the Interahamwe group, and
a soldier checked their identity cards and separated Hutus from Tutsis. The assailants took
more than 60 Tutsis to an area about 600 metres from IAMSEA, where a yellow pickup truck
with soldiers was waiting. As the Tutsis were being taken away, the soldier from the same
prefecture as Witness WB, with whom he had spoken on 9 April, pulled the witness out of
the line. He permitted the witness to escape with three of his eight children. His wife and the
other children were not allowed to leave with him. As the witness walked toward IAMSEA,
he heard gunfire that lasted 30 to 45 minutes, which he believed to be the execution of all
those who had been in the line. A soldier confirmed their execution after returning from the
site. The witness never saw the other members of his family again. Three years later, the
witness identified the bodies of his wife and two of his children by their clothes when their
corpses were exhumed.1554
Prosecution Witness DBQ
1410. Witness DBQ, a purported Hutu member of the First Company of the Para
Commando Battalion, stated that his company invaded the IAMSEA complex towards the
end of April 1994. He participated in the attack, leading a section of soldiers, along with
other members of the company. Before the attack, Ntabakuze spoke with Lt. Muhawenimana,
the commander of the First Company. Ntabakuze remained in radio contact during the
operation from his command post at the Giporoso junction. At one point, the witness
overheard a radio transmission where Ntabakuze instructed Lieutenant Muhawenimana to
identify and kill “Inyenzi”. The soldiers forced approximately 600 refugees, who had been
1552
T. 12 November 2003 pp. 39-44; T. 13 November 2003 pp. 14, 17, 32. Witness WB made a sketch of the
insignia of the major. It was admitted as Prosecution Exhibit 128. The witness stated that he knew that the
soldiers who moved them to the houses were members of the Para Commando Battalion because one of the
soldiers, named Pierre Canisius Karasanyi, subsequently gave him that information. Karasanyi was the soldier
who locked them in the house. T. 12 November 2003 p. 43.
1553
T. 12 November 2003 pp. 44-47, 53-54; T. 13 November 2003 pp. 4, 6, 12, 16-18, 27-28, 32-33.
1554
T. 12 November 2003 pp. 43, 47-54; T. 13 November 2003 p. 28. Witness WB could not remember whether
the berets were the same colour as the berets of the soldiers who came to his house on 9 April. T. 12 November
2003 p. 54.
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hiding in various buildings, into a courtyard, and separated more than 100 Tutsis from the
Hutus. The soldiers, including members of the witness’s section, then killed the Tutsis at
IAMSEA with the exception of about 30 Tutsi women. The witness claimed that he did not
participate in the killings and that he instructed his men not to do so as well. The RPF, which
was positioned nearby at the Amahoro stadium, then attacked the First Company, forcing
them to retreat. The soldiers withdrew to their position with the Tutsi women and put them in
a nearby house. They repeatedly raped these women over the course of the next three weeks
until they withdrew from the area at the end of May. The witness said that the soldiers did not
think it was a crime to rape women during war.1555
Prosecution Witness DP
1411. According to Witness DP, a Hutu member of the Para Commando Battalion, elements
of the battalion were based in the Remera area near IAMSEA from 8 April until 21 May
1994. The witness saw Ntabakuze once when Ntabakuze was coming from the Para
Commando position at IAMSEA after 13 April, but did not elaborate on the nature or context
of the encounter.1556
Ntabakuze
1412. Ntabakuze said that he was never at IAMSEA during April and May 1994, and that
soldiers under his command were not involved in the killing of refugees. He denied that rapes
occurred there, stating that he received no information about incidents at IAMSEA.
Ntabakuze also contested Witness WB’s identification of him at IAMSEA based on the
epaulettes of the “major” he saw there, stating that his epaulette was markedly different from
the one the witness described.1557
Ntabakuze Defence Witness Joseph Dewez
1413. Colonel Dewez, a member of the Belgian contingent of UNAMIR, testified that
Ntabakuze’s epaulettes had an additional emblem representing the United States Staff
College which they both attended in 1987.1558
Ntabakuze Defence Witness L-22
1414. Witness L-22, a Hutu, was a student and resident at IAMSEA from November 1990
until the end of April 1994. He did not witness any killings or rapes by army soldiers during
the month of April nor did he see army soldiers or Ntabakuze at IAMSEA during that period.
According to the witness, refugees were living at IAMSEA for a long time prior to April
1994. Their number increased after 6 April, when the gunfire made it very dangerous in the
surrounding area. At midday on 7 April, the witness heard gunshots nearby. This intensified
over the next days.1559
1415. At approximately 9.00 a.m. on 14 April, French-speaking Senegalese UNAMIR
soldiers evacuated some non-Rwandan students and the director of the school from IAMSEA.
1555
T. 25 February 2004 pp. 14-20, 22-24, 28-29, 54; T. 29 March 2004 pp. 6-8, 12, 19-22, 26-32, 41-44;
Prosecution Exhibit 99 (personal identification sheet).
1556
T. 2 October 2003 pp. 8, 17-19; Prosecution Exhibit 112 (personal identification sheet).
1557
T. 21 September 2006 pp. 1-3; T. 25 September 2006 pp. 2, 13-14.
1558
T. 23 June 2005 pp. 15-17, 23-27. See Ntabakuze Defence Exhibits 124 (Diploma of Aloys Ntabakuze),
125A (Diploma of Aloys Ntabakuze), 125B (Image of the insignia on Ntabakuze’s epaulettes in 1994). The
exhibits were tendered during Colonel Dewez’s testimony on 23 June 2005.
1559
T. 2 March 2006 pp. 19-20, 25, 30-33, 43; Ntabakuze Defence Exhibit 209 (personal identification sheet).
Judgement and Sentence
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Those leaving were asked to show their identification documents. The UNAMIR soldiers
took the witness and three others to meet with a Rwandan army captain, who told them to
return to the school. The officer gave the students a telephone number to call if they
encountered any problems. The witness did not see any army soldiers in the area between
IAMSEA and where the UN took him to meet with the captain. Two days later, a refugee
informed the others at IAMSEA that advancing RPF soldiers were dispersing young people,
suspected of engaging in killings at the school, and that it had just set fire to a house with 10
people inside.1560
1416. On 18 or 19 April, at around 3.00 p.m., a man named Paulin and his gang of young
men, armed with Kalashnikovs and traditional weapons, separated the persons at IAMSEA.
Using IAMSEA identity cards, they divided the people into two groups: one group of
students and another composed of teachers, cooks and refugees. The assailants took away the
second group, which included Hutus and Tutsis as well as Witness L-22’s Hutu brother. He
never learned of the fate of either his brother or anyone else in the group. According to the
witness, Rwandan army soldiers were never at IAMSEA.1561
Ntabakuze Defence Witness DK-120
1417. Witness DK-120, a Hutu soldier in the Para Commando Battalion, stated that the
battalion attacked the RPF positions at IAMSEA on 8 April and again between 11 and 13
April 1994. The witness did not see or hear of any refugees or any refugee evacuations by
UNAMIR. He also testified that he did not think soldiers who were being fired at constantly
and who could not receive supplies because of the intense fighting could be capable of
committing rape.1562
Ntabakuze Defence Witness DH-51
1418. Witness DH-51, a Hutu member of the Para Commando Battalion, said that he never
observed the battalion engaged in killing or raping civilians, and that he was not aware of
Ntabakuze giving orders to his soldiers to carry out such acts. The Para Commando Battalion
never controlled the IAMSEA area but were deployed in its vicinity. The witness had not
heard that rapes or killings had taken place in that area. He also stated that the Para
Commando Battalion never collaborated with the Interahamwe.1563
Ntabakuze Defence Witnesses DK-37 and DK-14
1419. Witness DK-37, a Hutu gendarme with the Remera brigade, testified that, between
9.00 and 10.00 a.m. on 7 April 1994, civilians who had fled from IAMSEA arrived, seeking
refuge at the gendarmerie post. The refugees told the gendarmes that they were fleeing from
an RPF attack on civilians at IAMSEA. A section of gendarmes left for IAMSEA to carry out
reconnaissance, but was ambushed by RPF soldiers. Three gendarmes died during the
fighting. A mortar shell fell on the brigade from the direction of IAMSEA. Following that,
the gendarmes exchanged fire with the RPF for one and a half to two hours. Between noon
1560
T. 2 March 2006 pp. 23, 32-39; T. 6 March 2006 pp. 24-25.
T. 2 March 2006 pp. 39-43; T. 6 March 2006 pp. 26-27. Witness L-22 stated that the incident with Paulin
occurred four or five days after UNAMIR arrived.
1562
T. 4 July 2005 pp. 64-65, 76-77; T. 5 July 2005 pp. 4-6, 28-31; Ntabakuze Defence Exhibit 141 (personal
identification sheet).
1563
T. 6 December 2005 pp. 22-25, 51-52, 54-55; Ntabakuze Defence Exhibit 199 (personal identification
sheet).
1561
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and 1.00 p.m., the Remera brigade retreated to the Kicukiro brigade post.1564 According to
Witness DK-14, a Hutu member of the Para Commando Battalion, the IAMSEA area was
controlled by the RPF from 9 April.1565
Deliberations
1420. After the death of President Habyarimana, many Hutus and Tutsis fleeing violence in
the Remera area of Kigali sought refuge along with the students and staff at IAMSEA. This
follows from the testimony of Witness WB, a Tutsi refugee, and Witness L-22, who was a
student there. Members of the Para Commando Battalion were stationed nearby as part of a
line of combat positions stretching from the Giporoso junction in Remera to the Sonatube
junction in Kicukiro, and the RPF was operating in relatively close proximity at the Amahoro
stadium east of IAMSEA.1566 There is also consistent evidence from both the Prosecution and
Defence that, in mid-April, armed civilian assailants under the direction of Paulin separated
people at IAMSEA and led one of the groups away, never to be seen again. The principal
question for the Chamber is whether members of the Para Commando Battalion were
involved in the killing or rape of Tutsi refugees at IAMSEA in April 1994.
1421. The two main Prosecution eye-witnesses to this event are Witness WB, a survivor of
the attack on IAMSEA, and Witness DBQ, who purportedly participated in it. The
Prosecution submits that their accounts corroborate each other.1567 The Chamber considers
that Witness WB provided a first-hand, consistent and detailed narrative of the events, which
the Chamber accepts, except as discussed below. In other contexts, the Chamber has had
doubts about the credibility of Witness DBQ (III.2.5.1; III.3.5.1; III.4.1.14). There are
differences between his and Witness WB’s versions related to the date of the attack, the place
of the killings, the abduction and rape of Tutsi women, and the role of the Interahamwe.
1564
T. 26 July 2005 pp. 55-63; Ntabakuze Defence Exhibit 152 (personal identification sheet); Ntabakuze
Defence Exhibit 153 (Sketch of the Remera area).
1565
T. 14 March 2006 pp. 24, 31-32; T. 16 March 2006 pp. 3-5; Ntabakuze Defence Exhibit 218 (personal
identification sheet).
1566
See, e.g., Ntabakuze, T. 21 September 2006 p. 7; Ntabakuze Defence Exhibit 228 (map of Kigali marked by
Ntabakuze). In addition, multiple witnesses testified to the position of Para Commando, army and RPF soldiers
in the Remera area during this period. Witnesses DP, DK-120, DH-51, DK-37 and DK-14 all testified that Para
Commandos were in the area after 8 April 1994. The latter four stated that the IAMSEA location was controlled
by the RPF and inaccessible to army soldiers. In his testimony, Witness DP placed IAMSEA just within the RPF
frontline. See Prosecution Exhibit 115 (Map of Remera). A UNAMIR Situation Report from the 9 to 10 April
reads as follows: “RPF controls the vicinity of CND, the Meridien roundabout and the Amahoro vicinity. Also
three hundred meters from Amahoro complex towards airport. The junction with RPF units of the north is yet to
be effective.” See Ntabakuze Defence Exhibit 39 (Situation Report of 9 to 10 April). A UNAMIR situation
report of 24 to 25 April states that Rwandan army “troops observed about 300m east of Amahoro Stadium.” See
Ntabakuze Defence Exhibit 40 (Situation Report of 24 to 25 April). Witness DK-37 testified that his brigade
moved from their location just east of the Amahoro Stadium, westward away from IAMSEA, after fighting
began on 7 April. See Ntabakuze Defence Exhibit 153 (Sketch of the Remera brigade movements). The evidence
makes it clear that the RPF had control of the Amahoro Stadium as early as 9 April. IAMSEA, however, was at
the frontline of the battle but not clearly under RPF control, with the Para Commando Battalion and
gendarmerie stationed in the vicinity.
1567
Prosecution Closing Brief, para. 1159. The Chamber notes that at one point during the cross-examination of
Witness DBQ, the Prosecution seemed to suggest that they referred to different events. See T. 29 March 2004 p.
20.
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1422. Witness WB, as corroborated by Witness L-22, placed the the round-up and killing of
refugees in mid-April.1568 In contrast, Witness DBQ suggested that it occurred at the end of
April, rejecting the proposition that it happened in mid-April.1569 He also insisted that the
killings occurred at IAMSEA and disagreed with the proposition based on Witness WB’s
evidence, corroborated by Witness L-22, that the refugees were killed elsewhere.1570 Witness
WB, who survived, made no mention of the abduction of women. Witness DBQ’s evidence
on this point as well as their subsequent rape is not corroborated. Witness WB also did not
testify about the attack by the RPF which, according to Witness DBQ, forced the First
Company to withdraw. Moreover, Witness WB indicated that the majority of assailants
separating the Tutsis from Hutus were Interahamwe led by Paulin. Witness L-22 also referred
to the role played by Paulin and armed civilians in the attack. Witness DBQ only identified
soldiers as the assailants, not the Interahamwe.1571 These differences raise further questions
about Witness DBQ’s credibility.1572 The Chamber therefore does not rely on his evidence
with respect to the events at IAMSEA or the abduction and rape of Tutsi women from there.
1423. As mentioned above, the Chamber finds Witness WB’s narrative of the events
credible. His account is corroborated in a number of respects by Witness L-22. Both
witnesses attested to the presence of refugees at IAMSEA, the evacuation of expatriates by
UNAMIR and the separation of refugees by armed civilians led by Paulin. This said, there are
differences between their accounts.1573
1424. One of them is whether soldiers participated in the events at IAMSEA. The Chamber
considers the testimony of Witness WB more credible than that of Witness L-22, who denied
1568
Witness WB specified the date of the attack as 15 April. Witness L-22 suggested that it was four or five days
after the UNAMIR evacuation, which places the incident around 18 to 19 April, but he provided only estimates.
1569
T. 29 March 2004 p. 22. Witness DBQ’s testimony that his unit retreated from its position three weeks later
at the end of May suggests that the event could even have occurred at the beginning of May.
1570
T. 29 March 2004 p. 21 (“Q. Witness, if I were to say to you that this Witness WB did not speak of any
attacks against the IAMSEA, what would you say to that? A. I have told you that I don’t know this witness. I
have told you what I have seen because I was there. I don’t know this witness … Q. Witness, if I were to tell
you that a witness, Witness DQ, in his statement, said that people were not killed at the IAMSEA, but along the
way as they were on their way to Kabuga, what would you say to that, Witness? A. I will tell you that these
people were killed at the IAMSEA. I cannot change my testimony. I was there; I was present.”).
1571
Witness WB’s estimation of the number of refugees, around 150 before the evacuation of expatriates, is also
significantly lower that the 600 mentioned by Witness DBQ. Witness DBQ also rejected the suggestion that
Pierre Canisius Karasanyi was stationed in the IAMSEA area. According to Witness WB, this soldier assisted
him during the event.
1572
Other aspects of Witness DBQ’s evidence on this event are equally troubling. For example, his explanation
for leading a section of soldiers during the attack, but then not participating in the killing is not convincing, as
his testimony does not suggest any other reasonable purpose for going to IAMSEA. At times, he appeared
evasive and refused to answer questions. See, e.g., T. 29 March 2004 p. 59 (“Q. What was the name of your
platoon commander at IAMSEA and at the Christus centre? A. You can find that information in my statements,
Counsel. Q. Witness, we cannot find this piece of information in any of your statements, and that is why I am
putting the question to you. A. I cannot answer your question immediately, but I believe perhaps we could leave
this matter aside. I remember that in my first statement I gave you the name of the platoon commander. Q. And
today you do not recall the name of your platoon commander? A. I don’t think that information is going to be of
any use to you, Counsel. Mr. Tremblay: Mr. President, I checked the witness’s statement over the weekend, and
I just want to draw your attention to the fact, and you will make a final determination based on his testimony
and his statements, you can see that he is unable to provide us with the name of his section commander during
the war. The witness: I can give you his name, if you wish. That would not (sic) Warrant Officer Habiyambere. I
just don’t think that that information can assist you in any way.”).
1573
The Chamber does not consider material the varying descriptions of the identity of the peacekeepers.
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such involvement. Witness WB personally interacted with some of the soldiers during the
events, and one in particular saved his life on 15 April, as other refugees were being led
away. He consistently described their uniforms and berets as khaki or camouflage. The
witness’s testimony reflects that he considered khaki and camouflage as essentially the same.
The Chamber recalls that members of the Para Commando Battalion wore camouflage berets
(III.1.2; III.4.1.1). Given the nearby position of the Para Commando Battalion, the Chamber
is convinced that the soldiers who came to IAMSEA from 9 to 15 April were members of that
unit. This is in conformity with the evidence of Witness WB who was informed a few days
earlier by one of the soldiers present during the attack that he was a member of the Para
Commando Battalion. There is no suggestion that the other commando units who wore this
type of berets were operating in the area.
1425. The Chamber also observes that even Defence Witness DK-120 indicated that
members of the Para Commando Battalion attacked RPF positions at IAMSEA. Furthermore,
the evidence of Witnesses DK-120, DH-51, DK-37 and DK-14 concerning the RPF control of
IAMSEA and lack of involvement of members of the Para Commando Battalion have limited
weight given their interest to absolve their battalion of any responsibility for the event.
Witness DK-120’s account that he was at IAMSEA, but did not see any refugees, is
somewhat implausible in view of the evidence of Witnesses WB and L-22 that there were a
number of refugees there. Witness DH-51’s general testimony that he did not hear about any
crimes committed at IAMSEA has limited probative value. Finally, the evidence of Witnesses
DK-37 and DK-14 about the activities of the RPF simply shows that it was active in the area,
which is not disputed. It does not undermine Witness WB’s account that members of the Para
Commando Battalion were present at IAMSEA in mid-April.
1426. The reliability of Witness WB’s evidence about Ntabakuze’s presence at IAMSEA
before 15 April is a different matter. He observed an officer with the epaulettes normally
worn by a Rwandan army major and learned after the events that Ntabakuze was supervising
soldiers in the area. He then identified Ntabakuze in court.1574 The Chamber is not satisfied
that the witness’s brief sighting of the officer’s epaulettes as well as information learned after
the events is sufficient to demonstrate that the officer in question was Ntabakuze, in
particular in view of the traumatic nature of the events.1575 Witness WB’s testimony is
uncorroborated, and the Chamber is therefore not convinced that Ntabakuze was present at
IAMSEA or in the surrounding area before the attack in mid-April.1576
1427. Based on Witness WB’s testimony, the Chamber finds that, in mid-April 1994,
Interahamwe, led by Paulin, and a member of the Para Commando Battalion separated Hutu
and Tutsi refugees into two groups at IAMSEA. It is possible that some Hutus, such as
Witness L-22’s brother, were also part of the Tutsi group. However, this does not change that
1574
Witness WB also identified Ntabakuze during a photo lineup in Kigali on 1 August 2003. The Chamber
decided that the Prosecution should use the normal process of identification in court. It added that if he was able
to identify the Accused, the question of the admission of the previous photo line-up as evidence would not arise.
See T. 13 November 2003 pp. 1-3.
1575
The evidence of Ntabakuze, as corroborated by Dewez, that he wore a different style epaulette than a
traditional Rwandan army major raises additional questions. Compare Prosecution Exhibit 128 (sketch of
major’s epaulettes by Witness WB) with Ntabakuze Defence Exhibit 227 (photo of Ntabakuze in camouflage
uniform). However, in the Chamber’s view, this evidence alone is not definitive since it is not clear whether
Ntabakuze wore the special insignia he received from the United States Staff College on a daily basis.
1576
The testimony of Witness DP, who saw Ntabakuze around 13 April 1994 coming from the Para Commando
position near IAMSEA, is too general to confirm that the officer Witness WB saw was in fact Ntabakuze.
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the separation was based mainly on ethnicity, as explained by Witness WB, who along with
his family were part of the Tutsi group.
1428. The Interahamwe and around 10 members of the Para Commando Battalion led a
group of approximately 60 Tutsis to an area 600 meters away. Other soldiers from the Para
Commando Battalion were waiting for the refugees in a yellow pickup truck. A member of
the Para Commando Battalion allowed Witness WB and three of his children to escape
unharmed. A few minutes later, he heard sustained gunfire. He did not see the refugees again,
and later saw the bodies of some members of his family which were exhumed from a mass
grave. The Chamber is convinced that Interahamwe and members of the Para Commando
Battalion killed the refugees. The joint participation of Interahamwe and soldiers, the
separation of Hutus and Tutsis, and the presence of the pickup truck with additional soldiers
at the killing site indicates organisation and prior planning.
1429. In light of his command and control over members of the Para Commando Battalion
(IV.1.4), as well as the organisation of the crime, the Chamber considers that the operation
could only have been carried out with the knowledge and approval of Ntabakuze. The
Chamber has no evidence connecting Bagosora or Kabiligi to this specific attack.
1430. Finally, the Chamber will address the Ntabakuze Defence assertion that it was not
reasonably informed of the material facts concerning Ntabakuze’s role in the killing of Tutsi
refugees at IAMSEA. The issue of notice for this event has been the subject of previous
litigation during the trial. In June 2006, the Chamber decided that paragraph 6.36 of the
Kabiligi and Ntabakuze Indictment was vague in relation to this specific allegation but found
that this defect in the Indictment was cured by timely, clear and consistent information,
notably by the summary of anticipated testimony of Witness WB in the Prosecution’s PreTrial Brief, filed on 21 January 2002.1577 This notice came more than 11 months before the
appearance of the witness, whose testimony underpins the Chamber’s factual findings on this
event. It follows from the Chamber’s findings above that Ntabakuze’s role in the event is
based on his command of the Para Commando Battalion, which is clearly pleaded in
paragraph 4.8 of the Kabiligi and Ntabakuze Indictment.1578 The Ntabakuze Defence does not
raise any additional arguments in its Closing Brief which warrant the reconsideration of the
Chamber’s finding that he had adequate notice.
1577
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 32-35. See also
Prosecution Pre-Trial Brief (21 January 2002), p. 134 (“[Witness WB] will testify on selective killings at
IAMSEA in Kigali … On the 15th April 1994 FAR soldiers and Interahamwe invaded the institute and took the
Tutsis to an execution site about 600 meters away … Witness found out after the genocide that the Major who
ordered the selection of the Tutsi and who was in charge of the FAR would have been Ntabakuze”). In addition,
the revision of the Prosecution Pre-Trial Brief, filed in June 2002, specifically references Witness WB’s
summary in the January 2002 Pre-Trial Brief to paragraph 6.36 of the Kabiligi and Ntabakuze Indictment. See
Prosecution Pre-Trial Brief (7 June 2002), p. 13. In view of the Chamber’s findings above, the Ntabakuze
Defence objections to the notice provided concerning the allegation of rape, advanced by Witness DBQ, are no
longer relevant.
1578
Paragraph 4.8 of the Kabiligi and Ntabakuze Indictment reads: “In his capacity as Commander of the ParaCommando Battalion of the Rwandan Army, Aloys Ntabakuze exercised authority over the units of this
Battalion.” Paragraphs 3.3 and 6.34 refer to the “elite” nature of the battalion.
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.1.5
Ruhanga Church, 14 - 17 April
Introduction
1431. The Kabiligi and Ntabakuze Indictment alleges that, starting on 7 April 1994,
elements of the Rwandan army and Interahamwe perpetrated massacres of the civilian Tutsi
population in places where they had sought refuge for their safety. Referring to Witness
DCH, the Prosecution submits that Ntabakuze and the Para Commando Battalion participated
in a massacre at Ruhanga church in Gikoro commune between 14 and 17 April 1994.1579
1432. The Ntabakuze Defence maintains earlier submissions that there was insufficient
notice about this incident. It disputes the credibility of Witness DCH and emphasises that the
Para Commando Battalion was never deployed to the Ruhanga area. Reference is made to
Witness DI-43.1580
Evidence
Prosecution Witness DCH
1433. Witness DCH, a Hutu Interahamwe, testified that, on 14 April 1994, Laurent
Semanza, the former bourgmestre of Bicumbi, came to Kabuga sector to seek reinforcements
for an attack on Ruhanga church in Gikoro commune. The local conseiller gathered
assailants, including Interahamwe and gendarmes from the Kabuga brigade. Ntabakuze
arrived from Camp Kanombe with two companies of the Para Commando Battalion, each
comprised of 80 to 100 soldiers.1581
1434. The assailants, including Witness DCH, left Kabuga sector for Ruhanga church.
Ntabakuze and the conseiller travelled in a Mazda pickup that Ntabakuze had previously
appropriated from a person killed at a roadblock. Between 14 and 17 April, the witness
participated in three attacks at Ruhanga church. On the first day, the attackers, including the
soldiers, killed Tutsi refugees until the evening. The next afternoon, Ntabakuze and members
of the Para Commando Battalion again attacked the church, after picking up Interahamwe at
Kabuga. On the third occasion, he and his soldiers as well as the Interahamwe returned to the
church to kill the survivors and bury the corpses. The witness noted that a genocide memorial
indicates that there were 500 victims there.1582
1435. Witness DCH had seen Ntabakuze on two or three previous occasions between 7 and
14 April, once at roadblock in the Kabuga area and again when he accompanied Laurent
Semanza to Camp Kanombe for travel documents and weapons. These weapons were used
during the attack on Ruhanga church.1583
1579
Ntabakuze and Kabiligi Indictment para. 6.36; Prosecution Closing Brief, paras. 1477-1478, 1488, pp. 836837.
1580
Ntabakuze Closing Brief, paras. 150, 284-292, 1797-1821.
1581
T. 22 June 2004 pp. 93-95; T. 29 June 2004 pp. 59-60; T. 30 June 2004 pp. 40-45, 48; Prosecution Exhibit
275 (personal identification sheet).
1582
T. 22 June 2004 pp. 95-96; T. 24 June 2004 p. 65. The transcripts are not entirely clear as to which days,
within the range of 14 to 17 April 1994, these three attacks took place.
1583
Id. pp. 84-90; T. 30 June 2004 pp. 40-41.
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Ntabakuze
1436. Ntabakuze testified that he established a command post at Kanombe airport on the
evening of 7 April 1994 and therefore was not frequently at Camp Kanombe. He denied
going to Kabuga and Ruhanga after the death of President Habyarimana, emphasising that the
primary function of the Para Commando Battalion at the time was to defend the airport.1584
Ntabakuze Defence Witness DI-43
1437. Witness DI-43, a Hutu who lived in the Kabuga area, heard that people from Bicumbi
commune killed mostly Tutsi refugees at Ruhanga church around 9 April 1994. He did not
hear that soldiers participated in the attack and noted that the Kabuga gendarmerie had only a
skeletal staff at the time. The witness was told that soldiers from unspecified units were in the
Ruhanga area around 14 or 15 April in order to check the RPF advance. However, the Tutsi
refugees there had already been killed.1585
Deliberations
1438. Tutsi refugees were killed at Ruhanga church in April 1994. The main points of
contention are when this event unfolded and whether Ntabakuze and the Para Commando
Battalion participated in it. Witness DCH was the only witness to implicate them in the
killings at the church and to refer to multiple attacks between 14 and 17 April. He admitted
that he had been amongst the attackers. In Rwanda, the witness pleaded guilty and was in
2000 convicted to seven years’ imprisonment for crimes committed in the Kabuga area in
April 1994.1586 The Chamber considers his testimony with caution.
1439. Witness DCH’s evidence contains few details concerning the attack at Ruhanga
church except for the assertion that Interahamwe and soldiers killed Tutsis there. The
Chamber also observes that unlike his testimony, his statement and subsequent conviction in
Rwanda do not mention his involvement in that massacre. Questioned by Rwandan officials
in 1999, the witness confessed to having committed several crimes but did not include the
attacks against Ruhanga church. When the officials asked him about these attacks, he only
referred to another person who sought reinforcements from the Kabuga area for the attack
and added that he did not know anything else about the massacre. At the end of his statement,
he said that he had told the entire truth.1587
1440. When this discrepancy between his testimony and his statement was put to him during
cross-examination, Witness DCH explained that he was no longer under investigation for
crimes in Rwanda at the time he appeared before the Tribunal.1588 The Chamber is well aware
1584
T. 21 September 2006 pp. 16-17.
T. 27 February 2006 p. 78; T. 3 March 2006 pp. 5-9; Ntabakuze Defence Exhibit 203 (personal
identification sheet).
1586
Ntabakuze Defence Exhibit 70 (Rwandan judgment, dated 8 December 2000).
1587
Ntabakuze Defence Exhibit 68 C (statement given to Rwandan authorities of 25 May 1999), in particular p.
20 (“Q. Is it true that Ruhanga was attacked by people from Kabuga? A. One of the children from Gasagara who
lived in Kabuga, called Shafi, said that he had come from his home in search for reinforcement, in the person of
Gasongo, for the situation was explosive. I don’t know anything else.”) and p. 27 (concluding his statement by
saying “… what I have stated is true. I have hidden nothing from you”).
1588
T. 29 June 2004 p. 60 (“What I am telling you is that when I was answering the prosecutor’s questions at the
time, I was an accused, and today I am not an accused. At that time I was on trial before a court, and I explained
the situation. And I’ve come here to explain the situation.”).
1585
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that suspects may try to reduce their own role during the genocide by confessing to only some
of the acts they committed. This said, the witness’s explanation does indicate a willingness to
mislead judicial officials and raises some concerns about his credibility.
1441. Witness DCH’s conviction in December 2000 was based on his confessions.1589 It is
noteworthy that one of his co-accused was accused of killing persons at Ruhanga church.1590
Therefore, even though this event formed part of the trial the witness continued to keep silent
about his own involvement in it. Similarly, in his first statement to Tribunal investigators in
February 2000, before the delivery of the Rwandan judgment, he omitted the attacks against
the church and only mentioned Ntabakuze in connection with the delivery of weapons to a
roadblock in the Kabuga area three to four days after the death of the President. This means
that Ntabakuze would have been there around 10 April.1591 In subsequent statements to
Tribunal investigators in 2001 and 2004, however, the witness implicated Ntabakuze and
members of the Para Commando Battalion in the attacks against the church between 15 (not
14, as in his testimony) and 17 April, but referred only to their participation during the first
day.1592
1442. Witness DI-43, the only other witness who testified about attacks in Ruhanga, heard
that many Tutsi refugees were killed there around 9 April. The Chamber has taken into
account that he only provided hearsay evidence, and that he stated that there were soldiers in
Ruhanga around the 14 or 15 April. It cannot be excluded that there were attacks in that area
both around 10 April and between 14 and 17 April. However, it is worth noting that Witness
DI-43’s version is in conformity with the findings of the Trial Chamber in the Semanza case,
which placed the attack against Ruhanga church on 10 April in accordance with the
indictment in that case.1593
1443. Witness DCH’s account is uncorroborated. Having considered the totality of the
evidence, the Chamber finds that his testimony alone is insufficient to prove beyond
reasonable doubt that Ntabakuze and the Para Commando Battalion participated in attacks at
Ruhanga church between 14 and 17 April 1994. These concerns apply equally to allegations
that Ntabakuze provided weapons to Witness DCH and other attackers in the Kabuga area.
1444. The Chamber has previously decided that Ntabakuze had adequate notice of these
allegations. It does not see the need to revisit the Ntabakuze Defence submissions concerning
the pleading of these incidents in the Indictment.1594
1589
Ntabakuze Defence Exhibit 70 C (Rwandan judgment, dated 8 December 2000), pp. 2-3, 14, 23-24, 31.
Witness DCH’s co-accused was specifically charged with involvement in the attack on the Ruhanga church
with members of the Presidential Guard (not the Para Commandos) together with Bicumbi communal police.
See Ntabakuze Defence Exhibit 70 C (Rwandan judgment, dated 8 December 2000), pp. 4, 40.
1591
Kabiligi Defence Exhibit 63 (statement of 23 February 2000). The first part of the statement covers the
general situation in Kabuga and specifically addresses Ntabakuze’s alleged interaction with the witness before
turning to Jerôme Bicamumpaka, which is the focus of the statement.
1592
Witness DCH gave several statements, of which three are of significance here: Nsengiyumva Defence
Exhibit 50 (statement of 20 September 2001); Kabiligi Defence Exhibit 64 (statement of 29 October 2001);
Kabiligi Defence Exhibit 67 (statement of 6 March 2004).
1593
Witness DCH appeared for the Prosecution in the Semanza case to rebut the alibi defence. The Trial
Chamber noted that his evidence (multiple attacks in Ruhanga from 14 through 17 April) substantially departed
from the Prosecution’s evidence in its case-in-chief (a single attack at Ruhanga church on 10 April). See
Semanza Trial Judgement, paras. 159-161. The Appeals Chamber did not find the Trial Chamber’s conclusion
unreasonable. See Semanza Appeal Judgment, para. 214.
1594
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006. paras. 39-41.
1590
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.1.6
Masaka Hill, Mid-April
Introduction
1445. The Kabiligi and Ntabakuze Indictment alleges that in Kigali, starting on 7 April
1994, elements of the Rwandan army and Interahamwe perpetrated massacres of the civilian
Tutsi population in places where they had sought refuge for their safety. The Nsengiyumva
Indictment alleges that, between 8 April and mid-July 1994, Nsengiyumva ordered
militiamen and soldiers to exterminate the civilian Tutsi population and its accomplices. As
part of these general allegations, the Prosecution seeks to hold Ntabakuze and Nsengiyumva
responsible for an incident in mid-April 1994 where Nsengiyumva was authorised by
Ntabakuze to take 30 members of the Para Commando Battalion from Camp Kanombe to
Masaka hill in order to kill Tutsi civilians. Reference is made to Witness DBN.1595
1446. The Ntabakuze and Nsengiyumva Defence repeat earlier challenges that this incident
is insufficiently pleaded in their respective Indictments. Witness DBN’s testimony
concerning the meeting at Camp Kanombe and Nsengiyumva’s presence there is implausible
and his evidence of the attack is uncorroborated hearsay. It is also contradicted by Witnesses
OME-1, ICC-1, DH-51 and DM-23.1596
Evidence
Prosecution Witness DBN
1447. Witness DBN, a Tutsi member of the Para Commando Battalion, testified that,
between 8.00 and 8.30 a.m. at some point between 10 and 15 April, Ntabakuze held a
meeting at Joli Bois in Camp Kanombe. It was attended by more than 100 of the
approximately 150 members of the Para Commando Battalion remaining there. The purpose
of the meeting was to discuss the evacuation of the camp to the École Technique Officielle,
due to the Inyenzi being near. None of the battalion’s company or platoon commanders
attended the meeting since they were deployed in combat positions. The meeting lasted less
than one hour and ended perhaps around 9.20 a.m. About 10 minutes after the meeting began,
Nsengiyumva arrived at the camp driving a military jeep, accompanied by four or five armed
soldiers in the back, and parked about 15 metres from the witness. He spoke with Ntabakuze
for about five minutes, requesting to take a platoon of soldiers to Masaka hill where
“Inkotanyi” were hiding. The witness was four metres away from Ntabakuze and
Nsengiyumva while they spoke. He had seen Nsengiyumva on several occasions at Camp
Kanombe in 1993 and met him once in Gisenyi prefecture.1597
1448. Ntabakuze asked the assembled soldiers for volunteers to accompany Nsengiyumva.
A few minutes later, around 8.50 or perhaps 9.00 a.m., a platoon of 30 soldiers, but no
officers, left on board a truck bound for Masaka hill, which was eight kilometres away. They
1595
Kabiligi and Ntabakuze Indictment, para. 6.36; Nsengiyumva Indictment, paras. 6.22, 6.33, 6.36;
Prosecution Closing Brief, paras. 427, 1324 (a), 1329, pp. 837, 884-886, 892, 896.
1596
Ntabakuze Closing Brief, paras. 1919-1949; Nsengiyumva Closing Brief, paras. 2025-2026, 2595-2600,
3054-3058, 3059-3063; T. 31 May 2007 pp. 61-62. The Bagosora Defence and the Kabiligi Defence do not
address these allegations.
1597
T. 1 April 2004 pp. 54-57; T. 5 April 2004 pp. 110-120; T. 6 April 2004 pp. 1, 4, 10; Prosecution Exhibit
198 (personal identification sheet). The witness identified the location of Joli Bois where the meeting occurred
on a sketch of Camp Kanombe. Ntabakuze Defence Exhibit 53 (Sketch of Camp Kanombe).
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
were armed with guns and grenades. Witness DBN could not name any of the soldiers, except
for Rwanyamera, the driver. According to the witness, it would take 15 to 20 minutes to
cover the distance if driving fast. Around 40 minutes later, the soldiers returned just as the
meeting concluded. The witness heard from two members of the Para Commando Battalion,
who were not members of his company and who had accompanied Nsengiyumva, that they
had been misled when they were told that there were “Inkotanyi” at Masaka hill. In reality,
Tutsi refugees were hiding in the coffee plantations and houses there. The soldiers threw
grenades at them. There was no fighting. Rwanyamera confirmed this.1598
Ntabakuze
1449. Ntabakuze stated that the meeting described by Witness DBN at Jolis Bois in midApril 1994 never occurred. Nsengiyumva was not in his chain of command, and thus not in a
position to request his troops.1599
Nsengiyumva
1450. Nsengiyumva denied that he visited Camp Kanombe or Masaka hill during the
relevant events in 1994. From 9 April 1994, the Kigali-Kanombe road was not passable due
to fighting. It would therefore have been impossible for him to travel there from Gisenyi
prefecture. Neither he or any of his family members had a residence at Masaka.1600
Nsengiyumva Defence Witness ICC-1
1451. Witness ICC-1, a Hutu who lived near Masaka hill in April 1994, heard that a group
of assailants known as the “Zulus” killed Tutsis in the area between 7 and 21 April 1994. The
witness did not hear about Nsengiyumva’s participation in the killings.1601
Nsengiyumva Defence Witness OME-1
1452. Witness OME-1, a Hutu soldier stationed at Camp Kanombe, was related to
Nsengiyumva. He testified that he did not see Nsengiyumva at Camp Kanombe in April
1994. By mid-April, Ntabakuze and the Para Commando Battalion had been deployed at the
war front with the RPF and were no longer based at Camp Kanombe. In the witness’s view, it
would have been extraordinary for Nsengiyumva to conduct a military operation outside his
operational sector. Nsengiyumva’s private residence was in Ndera, Rubungo commune, and
not in Masaka.1602
Nsengiyumva Defence Witness LE-1
1453. Witness LE-1, a Hutu senior army officer, stated that operational sector commanders,
such as Nsengiyumva, were under the direct authority of the army chief of staff and could not
conduct operations outside their sector without approval.1603
1598
T. 1 April 2004 pp. 56-57; T. 5 April 2004 pp. 120-121; T. 6 April 2004 pp. 1-9.
T. 21 September 2006 pp. 18-19, 70.
1600
T. 9 October 2006 pp. 55-56.
1601
T. 10 October 2006 pp. 60, 62-64, 65, 67; Ntabakuze Defence Exhibit 222 (personal identification sheet).
1602
T. 7 June 2006 pp. 41-44; Nsengiyumva Defence Exhibit 184 (personal identification sheet). The witness is
also referred to as Ntabakuze Defence Witness DI-37.
1603
T. 19 October 2005 pp. 56-57; Nsengiyumva Defence Exhibit 112 (personal identification sheet).
1599
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Nsengiyumva Defence Witness DM-23
1454. Witness DM-23, a Hutu who was assigned to army headquarters, said that he was
unaware of any visit by Nsengiyumva to Camp Kanombe in April 1994. According to the
witness, Nsengiyumva did not have a home in Masaka, Kigali, but did have one in Ndera
which was 10 kilometres away. He did not know whether Nsengiyumva had sought
permission to go to Masaka in April, or had gone there without permission.1604
Ntabakuze Defence Witness DH-51
1455. Witness DH-51, a Hutu member of the Para Commando Battalion, who was stationed
at Camp Kanombe, said that no meeting was held at the Joli Bois in mid-April 1994. He
never heard that Nsengiyumva visited Camp Kanombe around that time.1605
Nsengiyumva Defence Witness LIQ-1
1456. Witness LIQ-1, a Hutu who lived in Gisenyi prefecture, testified that, on 14 April
1994, Nsengiyumva delivered the body of President Habyarimana to a cold room at Bralirwa,
the brewery in Gisenyi prefecture. He saw Nsengiyumva visit there again on 15 April.1606
Deliberations
1457. Only Witness DBN testified about this meeting of members of the Para Commando
Battalion at Camp Kanombe in mid-April, where Nsengiyumva asked Ntabakuze for soldiers
to go to Masaka hill. It is not disputed that the witness was a member of the Para Commando
Battalion. He would have some knowledge concerning the activities of his unit.
1458. The Chamber does not have sufficient evidence to substantiate Nsengiyumva’s claim
that the road from Gisenyi to Kigali was impassable. Similarly, Witness LIQ-1’s estimate that
Nsengiyumva was in Gisenyi on 14 and 15 April 1994 does not exclude that he may have
been at Masaka hill between 10 and 15 April.
1459. A more troubling aspect is why Nsengiyumva, given his position as the Gisenyi
operational commander, would be more than 200 kilometres away, at Masaka hill in KigaliRural prefecture, and conduct a military operation with volunteer members of an elite unit,
which was not under his command. Witness DBN stated that the subdivisions of operational
sectors were no longer respected during the massacres. Even though Masaka was far away,
people could come for meetings or travelled there because they had houses in the Masaka
area. It was considered positive to ask for reinforcements to kill Tutsis.1607 On the other hand,
Ntabakuze, Nsengiyumva, as well as Witnesses OME-1, LE-1, DM-23, LIQ-1 and DH-51
testified that such an operation would not have been possible given the prevailing command
structure.
1460. The Chamber does not exclude that formal military structures and procedures were
not always followed during the genocide. This said, Nsengiyumva’s presence and request for
soldiers appear unusual, even in the context of Rwanda in 1994. It is recalled that the
hostilities between the RPF and the Rwandan army had resumed only days before, and the
situation was unstable following the death of the President. It is not clear why Nsengiyumva
1604
T. 23 February 2006 p. 24; Ntabakuze Defence Exhibit 199 (personal identification sheet).
T. 6 December 2004 pp. 23, 28-29; Nsengiyumva Exhibit 188 (personal identification sheet).
1606
T. 19 June 2006 pp. 17, 25, 26.
1607
T. 6 April 2004 p. 12.
1605
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would leave his troops in this tense situation. Witness DBN’s indication that some persons
had houses in the area appeared speculative. There is no indication that Nsengiyumva had a
house there, and this was rejected by Witnesses OME-1 and DM-23.1608 Neither is there any
information that Nsengiyumva had to attend a meeting in Kigali-Rural, which was the other
possible explanation suggested by Witness DBN.1609
1461. According to Witness DBN, the entire operation at Masaka hill, from the soldiers’
departure until their return, took only 40 minutes, and in any event less than one hour. The
soldiers returned to the same meeting at the Joli Bois before it had ended. This would have
given limited time for the operation, in view of his testimony that it would take 15-20
minutes to travel the distance to Masaka hill, driving at a fast speed. The Chamber has taken
into account that it would not require much time to throw grenades at refugees in a coffee
field but still considers it noteworthy that the operation was purportedly so brief.1610
1462. Witness DBN was unable to name a single soldier who allegedly participated in the
operation, except for the driver. His evidence about the involvement of soldiers in the killings
at Masaka hill is uncorroborated hearsay. No-one actually observed Nsengiyumva or the
operation at Masaka hill. This said, Witness ICC-1 testimony that he did not hear of
Nsengiyumva’s involvement in the attack carries limited weight. The witness did not see the
event itself but heard that Interahamwe, called the “Zulus”, had carried out the killings.
1463. Having assessed the totality of the evidence, and in particular the lack of
corroboration of Witness DBN’s testimony, the Chamber finds that the Prosecution has not
proven beyond reasonable doubt that Ntabakuze provided Nsengiyumva with 30 members of
the Para Commando Battalion to kill Tutsi civilians at Masaka hill.
1464. The Chamber has previously held that Ntabakuze and Nsengiyumva had adequate
notice of this allegation. In view of its finding it does not deem it necessary to reconsider the
Defence submissions about lack of notice for this allegation.1611
4.1.7
Kiyovu Roadblock, April - June
Introduction
1465. The Bagosora Indictment alleges that, from the night of 6 to 7 April 1994, soldiers,
including the Presidential Guard, set up roadblocks where militiamen joined them, or
established their own where Tutsis were killed. The Nsengiyumva Indictment states that,
between 8 April and mid-July 1994, Nsengiyumva ordered militiamen to eliminate Tutsis. It
is also alleged that crimes of sexual violence were perpetrated at roadblocks. In support of
1608
The Chamber has taken into account that Witness OME-1 was related to Nsengiyumva.
It is also unusual that Ntabakuze would convene a meeting of significance, relating to the evacuation of the
camp, without any of his company or platoon commanders present (who, according to the witness, was in
combat positions). It is recalled that in the final event, Camp Kanombe did not fall until May 1994. See T. 6
April 2004 p. 1.
1610
Witness DBN first said that the meeting ended around 9.20 a.m. He also indicated that the operation at
Masaka hill lasted for 40 minutes from 8.50 or perhaps 9.00 a.m. and that the attackers came back just as the
meeting concluded. The Chamber does not consider this discrepancy material, as the witness clearly gave
estimates.
1611
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 39-41; Decision on
Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September
2006, paras. 26-28.
1609
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these general allegations, the Prosecution argues that Bagosora and Nsengiyumva visited a
roadblock in the Kiyovu area of Kigali several times between April and July 1994. Reference
is made to Witnesses DAS and XXC.1612
1466. The Bagosora and Nsengiyumva Defence argue that the evidence presented is outside
the scope of the Indictment. Furthermore, the testimonies are not credible, in part because the
Accused were elsewhere when alleged to have been at roadblocks. Reference is made to
Witnesses VO-5, CO-3, LE-1, LIQ-1 and LMG.1613
Evidence
Prosecution Witness DAS
1467. Witness DAS, a Tutsi, worked as a watchman in the Kiyovu area in Kigali in 1994. At
6.00 a.m. on 8 April 1994, Corporal Irandemba, who was a guard of the residence of Protais
Zigiranyirazo, the brother-in-law of President Habyarimana, came to the witness’s place of
work and ordered him and other watchmen in the area to stand guard at Zigiranyirazo’s
home. The witness, who knew Irandemba well, remained stationed there for three months. In
total, there were eight guards posted outside Zigiranyirazo’s home, including three soldiers
from the Presidential Guard. There were also Interahamwe present at the gate.1614
1468. Between 6.00 and 7.30 a.m. on the morning of 12 April, approximately 40
Interahamwe, some armed with guns, others with machetes, clubs or axes, arrived at
Zigiranyirazo’s house. They erected a roadblock with the witness and the other guards after
Zigiranyirazo asked why they had not started to do what others were doing. Corporal
Irandemba took command of the roadblock and headed it until it was dismantled on 4 July
1994. Throughout that period, seven to eight Tutsi watchmen, including the witness,
participated in manning the roadblock with soldiers and Interahamwe. At no point were there
two roadblocks in front of Zigiranyirazo’s house. The witness’s duties included stopping and
searching vehicles and checking the identity of persons attempting to pass through the
roadblock, and eventually collecting bodies. Starting on 12 April, those identified as Tutsis
were killed, including children, elderly and women. Hutus without identity cards were
accused of being accomplices and were killed as well.1615
1469. After Zigiranyirazo left around 15 or 16 April, and without his knowledge, the
Interahamwe and soldiers, including Corporal Irandemba, would take away young Hutu and
Tutsi women and rape them at a property located in front of Zigiranyirazo’s residence,
referred to as the “Chinese house”. Rapes also occurred inside Zigiranyirazo’s plot. Women
were locked inside the Chinese house property, fed by Interahamwe and prevented from
1612
Bagosora Indictment, paras. 5.45, 6.28, 6.31, 6.62, 6.63, 6.65; Nsengiyumva Indictment, paras. 5.32, 6.22,
6.34; Prosecution Closing Brief, paras. 171, 180, 1103(e, f), 1104, 1128-1129, 1133-1139, pp. 738-742, 758759, 772-775, 776-779, 871-874, 892-896. The Chamber discusses crimes committed at roadblocks throughout
Kigali in a separate section (III.5.1).
1613
Bagosora Closing Brief, paras. 1284-1308, 1334-1338, 1495, 1774, 2244, 2328; Nsengiyumva Closing
Brief, paras. 306-328, 1095, 1198-2000, 2600, 3070, 3147.
1614
T. 4 November 2003 pp. 45, 59-60; T. 6 November 2003 pp. 18-21, 25; T. 7 November 2003 pp. 17-19;
Prosecution Exhibit 119 (personal identification sheet).
1615
T. 5 November 2003 pp. 7, 11-19, 21, 48; T. 6 November 2003 pp. 6, 13, 18-22, 38, 51-52, 55-56; T. 7
November 2003 pp. 8, 17-19. Witness DAS identified a series of photographs of the Kiyovu area in the vicinity
of the roadblock. See T. 6 November 2003 pp. 1-9; Prosecution Exhibit 120 A-D (photographs of Kiyovu area).
Judgement and Sentence
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escaping. The witness mentioned five such women who were later rescued by the RPF:
Goretti, Mutesi from the post office, Epiphany at Electrogaz, Immaculate, a businesswoman,
and Davita.1616
1470. According to Witness DAS, there were other roadblocks in the Kiyovu area, generally
manned by three or four persons, at which vehicles were not stopped. No roadblocks were
erected before the foreigners fled the neighbourhood on 8 and 9 April. Witness XXC manned
a roadblock in the vicinity of the European Union office and the Presbyterian Church. The
witness did not go to this roadblock, but Witness XXC and other watchmen who were there
sometimes came to Witness DAS’s roadblock. He saw Witness XXC with a gun and had
heard gunfire from the direction of his roadblock.1617
1471. Witness DAS saw Bagosora, Nsengiyumva and Lieutenant-Colonel Ephrem Setako
four times at his roadblock. They were in the same military Mercedes-Benz jeep,
accompanied by two soldiers, a driver and a bodyguard. The first occasion was around 14
April 1994 at about 11.00 a.m. When they arrived, approximately 50 dead bodies lay on the
ground near the roadblock. Soldiers and Interahamwe were killing civilian men, women and
children identified as Tutsis or without identification cards. The witness overheard Setako
say: “Kill them, kill them. Why did they kill Habyarimana? Because they are Tutsis.” He also
heard Bagosora congratulate the soldiers and Interahamwe for working “in an active
manner”, which the witness understood to mean killing the Tutsis. Bagosora and
Nsengiyumva did not tell the soldiers to stop the executions, nor did they take any
disciplinary action against them.1618
1472. Bagosora, Nsengiyumva and Setako also visited the roadblock around 2 May 1994.
While they were there, a group of more than 20 Zairian refugees were stopped because their
Rwandan wives were Tutsis. When the women were arrested, the Zairian men begged
Bagosora to let them pass with their wives. The witness heard Bagosora refuse and say “[t]he
time of the Tutsi men and women is all over”. The Zairians were allowed through the
roadblock. The Interahamwe took four of the wives to the Chinese property and killed the
others. The witness heard Nsengiyumva tell the Interahamwe to investigate whether Tutsis
were hiding in the Presbyterian Church and to take their livestock because “all that is in the
country belongs to the Hutus”. In total, about 15 to 20 people were killed at the roadblock
while Bagosora and Nsengiyumva were present.1619
1473. The third visit, in mid-June 1994, lasted for about 20 minutes and only Setako got out
of the vehicle. A watchman named Vianney begged him to save his life. Setako replied that “I
am not the one who told you to kill Habyarimana”. The watchman was immediately shot to
death by an Interahamwe named Kamango. Bagosora and Nsengiyumva stayed in the vehicle
and did not intervene. While the three officers were present, Tutsi and Hutu civilians without
identity cards were being killed at the roadblock.1620
1616
T. 5 November 2003 pp. 21, 44-47.
T. 6 November 2003 pp. 25, 32-34; T. 7 November 2003 pp. 18-19; Prosecution Exhibit 98 (sketch of
roadblocks in the Kiyovu area).
1618
T. 5 November 2003 pp. 19-22; T. 6 November 2003 pp. 36, 56-58; T. 7 November 2003 pp. 4-6, 8-10, 2022.
1619
T. 5 November 2003 pp. 22, 41-44; T. 6 November 2003 pp. 36, 58-59; T. 7 November 2003 pp. 4-6, 10,
22-23.
1620
T. 5 November 2003 p. 48; T. 6 November 2003 pp. 36-37, 60; T. 7 November 2003 pp. 4-5, 9-10.
1617
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1474. The fourth visit took place around 27 June 1994. Bagosora, Nsengiyumva and Setako
arrived at around 11.00 a.m. with Gabriel Mbyaliyehe, the conseiller of Nyarugenge sector,
and stayed for about half an hour. Bagosora was approximately five meters away from the
location where killings were perpetrated. The witness heard Setako encourage the militiamen
to continue the killing. Mbyaliyehe addressed the soldiers and Interahamwe manning the
roadblock and asked them to inform other local watchmen that there was an “extraordinary”
meeting at the Hotel Kiyovu courtyard at 2.00 p.m. At the meeting, Mbyaliyehe, who was
accompanied by Bagosora, Nsengiyumva and Setako, told the area residents to stop the
killings because the international community was watching them. After Mbyaliyehe left,
Bagosora countermanded his instructions. He told the crowd to select the Tutsis amongst
them, take some of them to the prefecture office, and to kill the rest nearby it. The soldiers
and Interahamwe checked identification cards, and the soldiers brought approximately 40
Tutsis and Hutus without identification cards to the Kigali-Ville prefecture office. Another
group of persons was taken near the Hotel Kiyovu, where they were killed with clubs. The
witness managed to leave the meeting because he was not asked to present his identity card.
Among the victims were Gahigi at the Rural Water Supply project, Rukundo, Jean Karega,
who worked for someone at the German ministry, and Jean-Marie Vianny, who was
employed at the Kigali central hospital. The witness was a distance away but could see what
was happening and heard screams and gun shots.1621
Prosecution Witness XXC
1475. Witness XXC, a Hutu, worked as a residential watchman in the Kiyovu quarter from
1990 to 1994. From the morning of 7 April 1994, he observed soldiers mounting roadblocks
and saw dead bodies on the road in Kiyovu. The first roadblock was erected in front of
Captain Simbikangwa’s house on 7 April around noon. It was manned by four Presidential
Guard soldiers, wearing camouflage uniforms and black berets. They had grenades and were
initially armed with Kalashnikovs and later with R-4 firearms. He recognised them because
he lived close to the Presidential Guard camp and knew some soldiers who guarded officials
in the area.1622
1476. Two additional roadblocks were set up in front of the house of Protais Zigiranyirazo.
One was established by soldiers on 7 April. Six soldiers, wearing the same uniform as those
in front of Simbikangwa’s house, manned it with several Interahamwe amongst them. The
soldiers initially had Kalashnikov rifles and later R-4 firearms, as well as mortars. The other
roadblock was erected on 10 April and staffed by Interahamwe and civilians. The witness
recalled an Interahamwe called Kamango who received a Kalashnikov from Bagosora around
20 April.1623
1477. There were two roadblocks near the Péage, which used to be a toll booth. The first
was on a large avenue leading to the city centre. It was manned by 10 or 12, sometimes more,
soldiers who the witness could not identify. The second roadblock was staffed by
Interahamwe and positioned closer to the traffic lights. It was not less than 100 metres away
from the other roadblock, but the two were in view of each other and individuals at one
1621
T. 5 November 2003 pp. 48-55; T. 6 November 2003 pp. 29-31, 38-40, 43, 45-46, 52-53; T. 7 November
2003 pp. 1-5, 9, 21-24.
1622
T. 17 September 2003 pp. 11-12, 15-17, 40-41; T. 18 September 2003 pp. 31, 57; T. 19 September 2003 pp.
47, 55, 57, Prosecution Exhibit 96 (personal identification sheet); Prosecution Exhibit 98 (sketch of roadblocks).
1623
T. 17 September 2003 pp. 15-17, 22, 40-41; T. 18 September 2003 p. 59; T. 19 September 2003 pp. 55-56.
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
would visit the other. The Interahamwe wore uniforms of kitenge material, civilian attire,
military uniforms, or a mix between military and civilian attire. Interahamwe that had
received weapons training had a variety of firearms, including Kalashnikovs and R-4
guns.1624
1478. Anyone who went by a roadblock had to display his or her identity card. Hutus were
allowed to pass. Tutsis and Hutus who looked like Tutsis, would not. Many people were
killed at these roadblocks. Interahamwe killed a Tutsi, Pierre Butoya, around 15 April at the
roadblock in front of Simbikangwa’s residence. A native of Gikongoro coming from Sainte
Famille was taken to that roadblock, transferred to the roadblock at Zigiranyirazo’s residence,
and then taken to another place called le village Swiss, where he was killed. The witness
knew that Tutsi watchmen worked in the area but was not aware if any of them had been
asked to go to roadblocks and bury bodies.1625
1479. Witness XXC heard that the Interahamwe received their firearms from their national
leaders, who had weapons that had previously been collected from soldiers. Some
Interahamwe told him that Bagosora provided them with weapons from his house. As
examples, the witness heard that around 20 April, Bagosora distributed an Uzi and a
Kalashnikov to Furaha, who was positioned in Kiyovu, and a Kalashnikov to Kamango, the
Interahamwe at the roadblock near Zigiranyirazo’s house.1626
Bagosora
1480. Bagosora rejected Witness DAS’s allegations. He left Kigali on the morning of 14
April 1994 with an official of the Banque Nationale du Rwanda to visit Gitarama and only
returned to Kigali at 5.00 p.m. Setako was on official mission to Kinshasa, Zaire, on 14 April
and could not have been at the roadblock, and Nsengiyumva was in Gisenyi. Furthermore,
between 25 and 30 April 1994, Bagosora travelled between Gitarama and Kigali and even
frequently left Rwanda on official business during the months of May and June 1994
(III.6.1). He questioned why the Prosecution would allege that he, a colonel, would be on the
ground visiting Interahamwe instead of giving orders to subordinates.1627
Nsengiyumva
1481. Nsengiyumva denied meeting with Bagosora, Setako or Zigiranyirazo in Kiyovu on
14 April, 2 May and anytime in June 1994. As operational commander of Gisenyi, he could
not travel outside his region, for official or private reasons, without receiving prior
authorisation from the chief of staff of the army. On 14 April, he was in Gisenyi receiving the
remains of President Habyarimana. He only saw Setako on 12 April before Setako’s mission
to Zaire. On 2 May, Nsengiyumva was speaking at a prefecture rally at Umuganda Stadium
condemning the murders of Tutsis killed at Nyundo the previous day. He did not visit
roadblocks in Kiyovu or any other neighbourhood of Kigali town.1628
1624
T. 17 September pp. 15-19; T. 18 September 2003 p. 59.
T. 17 September 2003 pp. 16, 23-24; T. 19 September 2003 p. 47.
1626
T. 17 September 2003 pp. 19-23; T. 19 September 2003 pp. 7, 48-51. The Interahamwe leadership kept the
weapons received from soldiers at the Amgar Garage.
1627
T. 9 November 2005 pp. 25-31; T. 14 November 2005 pp. 12-14. As Bagosora stated: “Neither Hitler,
Himmler nor [Göring] ever went running around in Berlin to flush out Jews to be killed. They would call their
subordinates and juniors, give them instructions, and those instructions would be acted upon.” See T. 9
November 2005 p. 26.
1628
T. 9 October 2006 pp. 9-12; T. 11 October 2006 pp. 10-11.
1625
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373
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bagosora and Nsengiymva Defence Witness VO-5
1482. Witness VO-5, a Hutu, served in the Rwandan diplomatic service and was based in
Kinsasha, Zaire, in April 1994. He testified that on 13 April, Setako and Casimir Bizimungu
arrived in Kinshasa on an official mission to see President Mobutu Sese Seko. After three to
five days, Setako and Bizimungu left Kinsasha for Gbadolite in northern Zaire. They returned
to Kinsasha the next day and left for Rwanda three days later.1629
1483. The witness said he saw Bagosora in Kinshasa twice during the second half of April
1994, on 23-24 May and on 20 June on official trips to purchase weapons for Rwanda.
Bagosora also visited sometime in July 1994.1630
Nsengiyumva Defence Witness LE-1
1484. Witness LE-1, a Hutu senior army officer, stated that operational sector commanders
were under the direct authority of the army chief of staff. They could not conduct operations
outside their sector without approval.1631
Nsengiyumva Defence Witness LIQ-1
1485. Witness LIQ-1, a Hutu who lived in Gisenyi prefecture, said that, on 14 April 1994,
Nsengiyumva delivered the body of President Habyarimana to a cold room at Bralirwa, at the
brewery in Gisenyi prefecture. He saw Nsengiyumva visit the body again on 15 April.1632
Bagosora Defence Witness CO-3
1486. Witness CO-3, a Hutu, worked for the Banque Nationale du Rwanda. He testified
that, between 4.30 and 5.00 p.m. on 13 April 1994, Bagosora delivered to him at his house a
copy of a presidential order and a letter from the Minister of Finance of the interim
government ordering a transfer of government funds to Gitarama prefecture where the
government had relocated due to insecurity in Kigali. Bagosora expressed concerns about
security, and the two went to Witness CO-3’s office where Bagosora called Colonel Marcel
Gatsinzi, the Interim Chief of Staff, to request an emergency military escort which was made
available the next morning.1633
1487. Around 9.00 a.m. on 14 April, Bagosora and the escorts of two jeeps and an armoured
vehicle collected the witness and they proceeded to Gitarama prefecture. They returned to
Kigali around 5.00 p.m. after having arranged the logistics for the transfer of funds, which
took place from the next day until about 23 or 24 April. According to the witness, Bagosora
monitored the teams working on this until about 19 or 20 April 1994.1634
1629
T. 12 October 2005 pp. 10-15, 24, 36; T. 13 October 2005 pp. 49-50; Bagosora Defence Exhibit 194
(personal identification sheet).
1630
T. 12 October 2005 pp. 15-19, 36, 46-47, 57-60; T. 13 October 2005 p. 47.
1631
T. 19 October 2005 pp. 56-57; Nsengiyumva Defence Exhibit 112 (personal identification sheet).
1632
T. 19 June 2006 pp. 17, 25, 26; Nsengiyumva Defence Exhibit 188 (personal identification sheet).
1633
T. 13 February 2006 pp. 5, 9-13, 23, 25-26; Bagosora Defence Exhibit 304 (personal identification sheet);
Bagosora Defence Exhibit 268 (Presidential Order No. 03/01 of 13 April 1994); Bagosora Defence Exhibit 269
(Letter from the Minister of Finance of 13 April 1994).
1634
T. 13 February 2006 pp. 13-18, 26-30, 35-37, 40-43.
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bagosora Defence Witness LMG
1488. Witness LMG, a Hutu soldier, stated that he did not accompany Bagosora to the home
of Protais Zigiranyirazo during the massacres. He was frequently with Bagosora from April
to July 1994 and never observed him speak to those manning roadblocks.1635
Deliberations
1489. The main question for the Chamber is whether Bagosora or Nsengiyumva visited a
roadblock in Kiyovu between mid-April and the end of June 1994 and encouraged the crimes
committed there. Witness DAS provided the only first-hand account to this effect. The
Chamber accepts that he lived and worked in Kiyovu in 1994 and therefore would have been
familiar with the events in the area, including the killing and rape of persons apprehended at
the roadblock. Witness XXC confirmed the existence of the roadblock as well as the crimes
committed there between April and June 1994 but did not see Bagosora or Nsengiyumva.1636
1490. Witness DAS’s basis for recognising Bagosora and Nsengiyumva was that at some
point they both lived in the Kiyovu area. He indicated that it “was a long time ago, prior to
the war, in the 1980s; 1980, 1982, even slightly before that, 1979”. The witness heard
Bagosora mentioned on the radio and knew that he was a military senior officer but did not
know his exact position. With respect to Nsengiyumva, the witness would see him pass by in
a vehicle or open President Habyarimana’s car door while acting as the president’s aide-decamp in the mid-1970s.1637 The witness did not provide any other compelling details in
connection with the relevant events in 1994 that would suggest a greater basis of knowledge
for accurately identifying the two Accused. In the Chamber’s view, his basis for recognising
them was neither particularly recent nor strong.
1491. There are differences between Witness DAS’s testimony and his first statement to
Tribunal investigators in October 1998 and July 1999.1638 He testified that Bagosora and
Nsengiyumva attended a meeting at Hotel Kiyovu after their fourth visit to the roadblock at
the end of June 1994, whereas the statement indicates that it took place after a visit in April
1994.1639 It makes no reference to Bagosora or Nsengiyumva attending the meeting. Instead,
the statement indicates that the conseiller arrived alone and was the only one to speak to the
gathering. This is a significant discrepancy, in particular in view of the witness’s testimony
that Bagosora told those assembled to continue killing Tutsis. According to his statement,
only area watchmen attended the meeting whereas he testified that the entire population of
Kiyovu was present. Finally, it follows from his testimony that the conseiller announced the
meeting, whereas in the statement it is Bagosora.
1635
T. 15 July 2005 pp. 19-20, 22-23; T. 18 July 2005 pp. 13-14; Bagosora Defence Exhibit 181 (personal
identification sheet).
1636
The Chamber notes that Witness XXC testified that he never saw Bagosora and Simbikangwa, who lived in
the area, together. T. 19 September 2003 p. 50.
1637
T. 4 November 2003 pp. 47-48. The Nsengiyumva Defence takes issue with Witness DAS’s testimony that
Nsengiyumva acted as President Habyarimana’s aide-de-camp in 1973. Nsengiyumva Closing Brief, paras. 322.
Nsengiyumva served in this position from 1974 to 1976 (I.2.4). The Chamber does not consider this discrepancy
to be significant.
1638
Bagosora Defence Exhibit 41 (statement of 13 July 1999). The statement was based on two interviews
conducted on 26 October 1998 and 13 July 1999.
1639
Witness DAS thought that Bagosora had been at the roadblock “at least twice” before, but it is clear from
the context that this visit was around 15 April.
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1492. When these discrepancies were put to him, the witness explained that he did not agree
with the statement, that he told the investigators that there were mistakes that needed to be
corrected, and that those corrections were made in subsequent statements to Tribunal
investigators.1640 The Chamber does not find this convincing. The witness first repeatedly
disputed that the statement was read back to him, claiming that he was in a hurry when he
met with the investigators to sign the statement.1641 When asked how he would have been
aware that there were mistakes if the statement was not read out to him, he altered his
position and conceded that this was done.1642 However, he indicated that it was read back in
French, which he did not understand.1643 The Chamber considers that the witness’s evolving
explanations raise some questions about his credibility, in particular since both he and the
interpreter signed the statement indicating that it had been interpreted to the witness in
Kinyarwanda. It is also surprising that, if the investigators were informed of errors in the
statements, they would not simply correct them at that point rather than have the witness sign
the statement.1644
1493. The purported mistakes in the first statement were not corrected for three years
despite two additional intervening interviews with Tribunal investigators. In particular
Witness DAS gave a second statement to Tribunal investigators in August 1999, one month
after he signed the first statement. He did not take the opportunity to make any corrections in
his first statement. The reason may be that the second statement focused on another accused,
Eliézer Nyitegeka. Nevertheless, like the first statement, it still concerned events at the
roadblock.1645
1494. Of greater significance is the fact that the witness’s third statement to Tribunal
investigators in August 2001 was expressly taken to “complete” the witness’s first
statement.1646 In spite of this, none of the purported errors were corrected. It was not until the
witness’s fourth statement in July 2002 that he corrected the sequence of events placing
Bagosora and Nsengiyumva’s presence at the alleged meeting at Hotel Kiyovu in June
instead of April.1647 In that statement, Witness DAS acknowledged that he “erroneously
implied” in his first statement that the meeting at Hotel Kiyovu occurred in April, which
undermines to some extent his testimony that the investigators erred.1648 These discrepancies
and the witness’s explanations for them raise some doubt about his credibility on matters
related to the Accused’s presence at the roadblock.
1640
T. 6 November 2003 pp. 47-57.
Id. pp. 47-48 (“Q. … Your statement was read out to you in Kinyarwanda, and you agreed with it and signed
it; is that the way that matters proceeded? A. My statement was not reread to me. I was in a hurry, and my
statement was not reread to me. In any case, I knew my statement by heart, all I did was to append my signature
to it, I didn’t wait for the statement to be reread to me. … Q. … I want to understand what you explained to us
today. You are saying -- now, first of all, was this document translated into Kinyarwanda for you before you
signed it? A. No. I signed without waiting for it to be read out to me.”).
1642
Id. p. 48 (“Q. So how were you then able to tell the investigators that there were mistakes in the statement if
it wasn’t read out to you in Kinyarwanda? A. They reread the statement, but I told them that there were
mistakes.”).
1643
Id. pp. 49-50.
1644
The statement was taken over the course of two interviews separated by nearly 10 months at the Tribunal’s
office in Kigali and could seemingly have been easily corrected.
1645
Bagosora Defence Exhibit 42 (statement of 13 August 1999).
1646
Bagosora Defence Exhibit 43 (statement of 24 August 2001).
1647
Bagosora Defence Exhibit 44 (statement of 15 July 2002).
1648
Bagosora Defence Exhibit 44A (statement of 15 July 2002), p. 5.
1641
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1495. The Prosecution also relies on Witness XXC concerning the events at the Kiyovu
roadblock. However, on the most significant aspects of Witness DAS’s testimony, namely the
presence of Bagosora and Nsengiyumva at the roadblock, there are important differences in
their accounts. Witness XXC did not mention that the two Accused visited the area and
incited crimes there. Given their varying vantage points, it does not in itself contradict
Witness DAS’s testimony that Witness XCC did not see them. However, in light of the
prominence of the Accused as well as the number and significance of their alleged visits it is
surprising that Witness XXC did not even hear about this, given the regular contact between
persons manning the two roadblocks.1649
1496. The Defence has presented evidence about Bagosora, Nsengiyumva and Setako’s
whereabouts on occasions when Witness DAS testified that they were at the roadblock. With
respect to 14 April 1994, Bagosora said that he was moving funds from the national bank in
Kigali to Gitarama prefecture. This was confirmed by Witness CO-3. Nsengiyumva said that
he was receiving the body of President Habyarimana in Gisenyi prefecture, and Witness LIQ1 provided corroboration.1650 Furthermore, Witness VO-5 attested to seeing Setako on a
diplomatic mission in Kinshasa, Zaire, from 13 April. In relation to Bagosora’s presence at
the roadblock in mid-June, the Chamber recalls his evidence that he was not in Rwanda from
23 May until 22 June 1994 (III.6.1). Witness LMG also testified that he frequently
accompanied Bagosora during this period and never went with him to Zigiranyirazo’s house
or observed Bagosora speak or give orders to people at roadblocks.
1497. The Chamber is mindful that Witness DAS mentioned the presence of the Accused at
the roadblock in four of his five previous statements to Tribunal investigators, and that he
provided only approximate dates for their presence. It is also aware of the connections that
the Defence witnesses have to Bagosora and Nsengiyumva, which may result in favourable
testimony to the Accused. Nevertheless, the totality of the Defence evidence raises some
doubt about Witness DAS’s testimony concerning Bagosora and Nsengiyumva’s presence, in
particular when viewed in the context of the other credibility concerns noted above. The
Chamber therefore declines to accept the specific aspects of his testimony concerning the
Accused’s alleged conduct there in the absence of corroboration.1651
1498. Turning to the allegations that Bagosora distributed weapons to Interahamwe
manning roadblocks in the area, the Chamber notes that only Witness XXC testified about
this. He saw Interahamwe with firearms and heard that they had received them from
Bagosora. His knowledge about these distributions is second-hand and lacks precision. The
Chamber declines to make a finding against Bagosora on this basis without corroboration.
1499. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond
reasonable doubt that Bagosora and Nsengiyumva were present on four occasions at a
roadblock erected in the Kiyuvo area of Kigali and that Bagosora distributed weapons to
Interahamwe at those roadblocks around 20 April.
1649
Witness XXC heard that Bagosora allegedly distributed weapons to some of the Interahamwe stationed at
the roadblocks. In view of this, it is surprising that he would also not have heard about the repeated visits of the
Accused and in particular the well-attended meeting at the Kiyovu hotel which was followed by killings.
1650
Furthermore, Witness LIQ-1 suggested that it would be unusual for Nsengiyumva to leave his operational
sector without authorisation from the army chief of staff. This alone does not show that Nsengiyumva remained
in Gisenyi at the relevant times.
1651
When considering the totality of the evidence, the Chamber has taken into account that Bagosora’s
purported visits at the roadblock around 2 May and 27 June 1994 fall outside of Bagosora’s alibi.
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1500. More generally, the Chamber is satisfied, on the basis of the testimonies of Witnesses
DAS and XXC, that soldiers and Interahamwe manned roadblocks in the Kiyovu area shortly
after President Habyarimana’s death. There are certain differences between their testimonies
with respect to when the roadblocks were established, their number and their location.
Witness DAS stated that the Presidential Guard arrived on 8 April, and that only one
roadblock was erected in front of Zigiranyirazo’s residence on 12 April when a number of
Interahamwe arrived.1652 According to Witness XXC, soldiers wearing Presidential Guard
uniforms mounted a roadblock in that location on 7 April, followed by a second roadblock
nearby, set up by the Interahamwe on 10 April. Furthermore, Witness DAS denied that a
roadblock was situated in front of Sindikangwa’s residence, placing it closer to the European
Union office, and appeared to deny that any roadblocks were erected prior to 8 or 9 April.
The Chamber finds these inconsistencies insignificant, likely arising from the passage of time
and different observations.
1501. The Chamber has no doubt that both witnesses were in the area at the time. It accepts
Witness DAS’s explanations why he and other Tutsis were stationed at the roadblock and
survived. In particular, he explained that they removed the corpses and would have been
killed as well if they had not manned it. The Tutsi watchmen were also under the protection
of Corporal Irandemba because the witness’s employer provided food and medicine to the
soldiers and Interahamwe operating the roadblock.1653 While Witness XXC was unaware if
Tutsi watchmen had been asked to go to roadblocks and collect bodies, the Chamber does not
consider that this undermines Witness DAS’s testimony that he was present.1654 Witness DAS
testified that he saw Witness XXC in the area and that he believed Witness XXC did not
know his name.1655 This evidence appears credible given Witness DAS’s knowledge of where
Witness XXC worked and his corroborated observation that Witness XXC was carrying a
gun at the time.1656
1502. Each of the witnesses provided coherent and largely consistent first-hand accounts of
Presidential Guards positioning themselves in the vicinity of Protais Zigiranyirazo’s house,
joined by Interahamwe. They also testified that other roadblocks were erected in the
neighbourhood. It appears logical that Presidential Guard soldiers would be placed in the
area, which was close to the residence of the deceased President’s brother-in-law as well as
the residence of Sindikangwa, the brother-in-law of Colonel Sagatwa, who had been the
President’s head of security. In light of other evidence on the record suggesting that
Presidential Guards began to mount roadblocks as early as the evening of 6 to 7 April, the
Chamber also accepts that Presidential Guards took up positions as early as 7 April in
Kiyovu. The witnesses’ testimonies about coordination between soldiers and Interahamwe
1652
Witness DAS gave statements to Tribunal investigators suggesting that the roadblock in front
Zigiranyirazo’s residence was set up as early as 7 or 8 April, not 12 April. See Bagosora Defence Exhibit 41B
(statement of 13 July 1999), p. 5; Bagosora Defence Exhibit 42B (statement of 13 August 1999), p. 3. Again, the
witness suggested these were errors based on an improper recording of his statement. See T. 6 November 2003
pp. 51-52. In the Chamber’s view, this discrepancy is not material. While Witness DAS testified that no physical
barrier was erected in front of Zigiranyirazo’s house prior to 12 April, his testimony reflects that as early as 8
April, several people, including watchmen, soldiers and Interahamwe were gathered there, likely giving the
impression that a roadblock existed. T. 4 November 2003 pp. 59-60; T. 5 November 2003 p. 7.
1653
T. 6 November 2003 pp. 20-22, 27-29.
1654
T. 19 September 2003 p. 47.
1655
T. 6 November 2003 pp. 23-25.
1656
Witness DAS, T. 6 November 2003 p. 25; Witness XXC, T. 17 September 2003 pp. 12, 21-22; T. 19
September 2003 p. 51.
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around the roadblocks and the singling out and killing of Tutsis days after President
Habyarimana’s death is also consistent with evidence elsewhere in the record (III.5.1).
1503. Witness XXC reported seeing dead bodies in the road as early as 7 April and testified
that many killings occurred at roadblocks. The first precise example of a killing he observed
at a roadblock was the murder of Pierre Butoya around 15 April. Witness DAS testified that
killings began at these roadblocks on 12 April. The Chamber considers that killings may have
occurred at roadblocks manned by soldiers or Interahamwe in the Kiyovu area prior to 12
April, particularly in light of other evidence demonstrating killings at roadblocks elsewhere
in Kigali prior to this date (III.5.1). However, the limited evidence in the record fails to
demonstrate this beyond reasonable doubt.
1504. The Chamber also accepts Witness DAS’s testimony that, after 15 or 16 April,
Interahamwe and soldiers at the roadblock would take young Hutu and Tutsi women and
house them nearby. The assailants would then rape them. The witness was present at the
roadblock when this happened and it further is consistent with the pattern of sexual violence,
which occurred in connection with roadblocks (III.5.1).
1505. In sum, the Chamber is satisfied that roadblocks were established by soldiers and
civilians in the Kiyovu neighbourhood between 7 and 9 April 1994. At least from 12 April,
the assailants at them killed Tutsi civilians. From 15 or 16 April, young women were stopped
at them and raped nearby. The evidence reflects active coordination between the military and
civilian assailants. The Prosecution, however, has not proven beyond reasonable doubt that
Bagosora and Nsengiyumva were present at the roadblocks or that Bagosora distributed
weapons at them.
1506. The Chamber has previously rejected the Defence submissions that they received
insufficient notice about the allegations concerning the presence of Nsengiyumva and
Bagosora at roadblocks in Kiyovu.1657 In view of the finding above, the Chamber does not
see any need to revisit the Defence arguments.
4.1.8
Lieutenant Desiré Mudenge, 21 April
Introduction
1507. The Kabiligi and Ntabakuze Indictment alleges that, in mid-April 1994, Kabiligi
ordered the murders of an unnamed Tutsi soldier, who was a member of the Rwandan Army,
as well as his family. The Prosecution refers to Witness DY who testified about Kabiligi’s
role in the killing of Lieutenant Desiré Mudenge around 21 April.1658
1508. The Kabiligi Defence disputes the reliability of Witness DY’s testimony. The Defence
evidence shows that Mudenge was killed at the beginning of April and that Kabiligi was in
Nairobi, Kenya between 14 and 23 April 1994 (III.6.2). As Mudenge was a Hutu, his killing
1657
Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 20-21; Decision on Bagosora Motion for the Exclusion of Evidence Outside the
Scope of the Indictment (TC), 11 May 2007, paras. 26-27.
1658
Kabiligi and Ntabakuze Indictment, para. 6.30; Prosecution Closing Brief, paras. 110, 1281-1285, pp. 832833; T. 28 May 2007 p. 19; T. 1 June 2007 p. 45.
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
was not pleaded in the Indictment and cannot support a conviction for genocide. Reference is
made to Witnesses DK-11, ZDR-2, FC-77, LX-65 and Pierre Canisius Hitimana.1659
Evidence
Prosecution Witness DY
1509. Witness DY, a Tutsi and a member of the Reconnaissance Battalion, testified that he
was assigned as an escort to Kabiligi from around 20 April until the end of June 1994.
Around 2.00 to 3.00 p.m. on the day after his initial assignment, he overheard from the radio
in his light armoured vehicle an exchange between Captain Jean Morgan Hategekimana and
Kabiligi. Hategekimana told Kabiligi: “We have just apprehended an Inyenzi, and he's
Second Lieutenant Mudenge, and he is in with other Inyenzis.” Kabiligi replied from his
office using his Motorola radio: “What are you waiting for? Why are you waiting?” The
witness then saw Kabiligi standing at the door of his office and heard him say, “I’m
coming.”1660
1510. The witness accompanied Kabiligi to the ONATRACOM office, a five-minute drive
away, where Lieutenant Mudenge had been apprehended. Captain Hategekimana was with
two armed soldiers and approximately 30 armed Interahamwe. Hategekimana saluted
Kabiligi and said: “Here are the Inyenzis.” Kabiligi responded by saying: “Congratulations,
this is how we should go after the Inyenzis.” The dead bodies of Mudenge and nine other
persons were only a few metres away. Mudenge was in uniform and bleeding from wounds
on his chest and waist. There was a pool of blood around the other bodies, which were in
civilian clothes.1661
1511. Witness DY recognised Mudenge because he had heard that he had been jailed as a
suspected accomplice of the “Inkotanyi” in 1990. The witness had also seen him after his
reinstatement on some occasions around Camp Kigali in 1992. Given Mudenge’s arrest, the
witness and others assumed he was Tutsi.1662
Kabiligi Defence Witness FC-77
1512. Witness FC-77, a Hutu military officer, said that he attended ESM with Mudenge.
The witness knew him and his family well and believed that Mudenge was Hutu. On 14 or 15
April 1994, the witness heard from his cousin, who was one of Mudenge’s escorts, that
Interahamwe had killed him at a roadblock near Gitega on 8 or 9 April. The cousin explained
that Mudenge had returned to Kigali to search for his family. Mudenge and the cousin had
managed to cross a roadblock near ONATRACOM, but then exchanged fire with
Interahamwe at the next roadblock, where Mudenge was killed. Around that time, the witness
1659
Kabiligi Closing Brief, paras. 795-797, 801-803, 814-820, 832, 1228, 1578-1582, 1629-1633, pp. 391, 399,
402, 430, 600, 615; T. 28 May 2007 pp. 26, 46-49; T. 29 May 2007 pp. 21-23; T. 1 June 2007 pp. 54-55.
1660
T. 16 February 2004 pp. 3-4, 19-20, 23-28, 41, 66, 77-80; T. 17 February 2004 pp. 5-6, 11. Witness DY
explained that Captain Hategekimana and Kabiligi both gave their radio call signs, which were posted in his
vehicle, during the radio exchange. T. 16 February 2004 pp. 24, 78-79; T. 17 February 2004 pp. 3-4.
1661
T. 16 February 2004 pp. 28-32, 35, 76-77. Witness DY recognised Captain Hategekimana because they had
met during the course of communal labour in 1990. T. 16 February 2004 pp. 28-32.
1662
T. 16 February 2004 pp. 32-33, 41, 72. The Kabiligi Defence put to Witness DY that Mudenge was arrested
and convicted for criminal acts. The witness could not confirm this, and the Defence did not substantiate its
claim.
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heard that a telegram was sent from the general staff informing Mudenge’s unit about his
death.1663
Kabiligi Defence Witnesses LX-65 and Hitimana
1513. Witness LX-65, a gendarmerie officer, testified that he saw a telegram on 9 April
1994 while at ESM, which stated that Mudenge had been killed somewhere between Gitega
and Biryogo.1664 Similarly, Pierre Canisius Hitimana, a Hutu army officer, who recruited
Mudenge into the army and therefore knew him well, stated that he heard about Mudenge’s
death between 7 and 15 April.1665
Kabiligi Defence Witnesses DK-11 and Nsengiyumva Defence Witness ZDR-2
1514. Witnesses DK-11 and ZDR-2, two Hutu soldiers who worked with Kabiligi, provided
separate lists of his escorts and drivers from May to July 1994. None of the lists mention
Witness DY. Both witnesses acknowledged that they might not be able to recall every
member of Kabiligi’s personal entourage.1666
Deliberations
1515. Witness DY was the only witness who testified about Kabiligi’s alleged role in the
killing of Mudenge around 21 April 1994. He provided a coherent first-hand account of
Kabiligi’s exchange with Hategekimana over the radio shortly after Mudenge’s arrest and
about Kabiligi’s congratulations to the killers at the roadblock. Given the purported
assignment to escort Kabiligi, the witness would have been able to follow the events as they
transpired. However, a close review of the testimony raises some questions.
1516. Initially, it is noteworthy that Witness DY, a Tutsi, would be assigned to headquarters
to escort Kabiligi from late April until June 1994 in the context of the events which were
unfolding in Rwanda at the time. Furthermore, the witness continued to serve Kabiligi after
his order to kill Mudenge based on his Tutsi ethnicity. The witness explained that he did not
know whether Kabiligi knew his ethnicity, that he never faced discrimination or threats from
him, but that he felt uncomfortable being a Tutsi in the Rwandan army, especially in 1994.1667
1517. The evidence of Witnesses DK-11 and ZDR-2, who were familiar with Kabiligi’s
escort detail during this period, does not corroborate Witness DY’s purported assignment to
Kabiligi. Although their evidence on this point is far from conclusive and possibly biased, the
question arises whether Witness DY was in fact assigned to Kabiligi during this period.
1518. There is a discrepancy between Witness DY’s testimony and his prior written
statements concerning the date of Mudenge’s killing. The witness testified that he was only
1663
T. 7 September 2006 pp. 69, 79-82; T. 8 September 2006 p. 16; Kabiligi Defence Exhibit 92 (personal
identification sheet).
1664
T. 26 September 2006 pp. 3, 6, 20-21; Kabiligi Defence Exhibit 97 (personal identification sheet). Witness
LX-65’s ethnicity was not indicated.
1665
Id. pp. 79, 84; Kabiligi Defence Exhibit 100 (personal identification sheet). Hitimana was originally a
protected witness with pseudonym KP-22.
1666
Witness DK-11, T. 19 July 2005 p. 61; T. 20 July 2004 pp. 3-4, 38, 41-42, 44, 46, 49-51; Ntabakuze
Defence Exhibit 11 (personal identification sheet); Witness ZDR-2, T. 30 March 2006 pp. 9, 11-12, 14, 16, 1920; Nsengiyumva Defence Exhibit 170 (personal identification sheet). See also Prosecution Exhibits 354
(Witness DK-11’s list of Kabiligi’s escorts and drivers) and 386 (Witness ZDR-2’s list of Kabiligi’s escorts and
drivers).
1667
T. 16 February 2004 p. 71; T. 17 February 2004 pp. 33, 40.
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
assigned to escort Kabiligi “towards” 20 April after an assignment guarding officials at Hôtel
Diplomates, and he was certain that the killing of Mudenge occurred after 20 April.1668
However, in his statement in September 1997 to a Rwandan judicial official, the witness
stated that the killing occurred between 15 and 20 April 1994.1669 The witness explained that
his statement was not properly recorded by the Rwandan official. Instead, he said that he told
the official that he could not recall the exact date of the murder but that, if he had to give an
approximate date, it would be beyond 15 April towards 20 April.1670
1519. The witness’s more detailed statement in October 1997 to Tribunal investigators
indicates that he was assigned to Hôtel Diplomates on 7 April for “approximately one week”
to guard government ministers. He was assigned to Kabiligi two days later, and the killing of
Mudenge occurred the following day.1671 This would place the killing around 17 April 1994,
which is within the range indicated in his statement given one month earlier.1672 And in a
statement given in January 2004 to Tribunal investigators, one month before his testimony,
with a view to amending or supplementing his earlier statements, there are no corrections of
the dates of his assignment to Kabiligi or the killing of Mudenge.1673
1520. The difference between Witness DY’s testimony and two previous statements creates
lack of clarity as to when Mudenge was killed. This is compounded by the evidence of
Witnesses FC-77, LX-65 and Hitimana, who testified that the event occurred earlier in April.
Without accepting the specific details of the hearsay accounts of these three Defence
witnesses, their evidence adds to the uncertainty and suggests that Mudenge may have died
earlier in April.1674
1521. The Chamber concludes that there are some doubts about Witness DY’s
uncorroborated testimony.1675 In other parts of the judgement, the Chamber has also
1668
T. 16 February 2004 pp. 15, 19, 23, 66; T. 17 February 2004 p. 11 (“Q. So whatever the case, that killing
took place after the 20th of April; is that correct? A. Correct.”).
1669
Kabiligi Defence Exhibit 29 (Pro Justitia statement of 18 September 1997): “Q. Do you remember when
that happened? A. It was between 15 and 20 April 1994.” The statement does not specify when the witness was
assigned to escort Kabiligi.
1670
Witness DY, T. 16 February 2004 p. 78. The Chamber notes that the English version of the transcript (“I
told him I did recall the exact date”) is apparently incorrect, whereas the French version appears more accurate:
T. 16 February 2004 p. 80 (“je lui ai dit que je ne me rappelais pas la date exacte”, emphasis added).
1671
Kabiligi Defence Exhibit 28 (statement of 2 October 1997). Witness DY participated in fighting in the
Kimihurura area the day before he was assigned to Kabiligi.
1672
The witness did not refer to the evacuation of the government from Kigali to Gitarama on 12 April. If this is
used as a point of departure, the killing of Mudenge would seem to have occurred on 15 April, which is still
within the range in the statement.
1673
Kabiligi Defence Exhibit 31 (statement of 14 January 2004). Another statement to Tribunal investigators
deals with other events. See Kabiligi Defence Exhibit 30 (statement of 10 October 2001).
1674
The Chamber also recalls that Prosecution Witness DN’s statement of 7 October 1997 to Tribunal
Investigators (Kabiligi Defence Exhibit 32) was put to Witness DY during cross-examination. See T. 17
February 2004 pp. 9-11. Witness DN, who did not testify, was a member of Witness DY’s battalion. He arrived
at the roadblock “just after” Mudenge was shot and did not see Hategekimana or Kabiligi there. The Chamber
notes that the statement does not indicate the date of the incident or for how long Witness DN was at the
roadblock.
1675
There are other discrepancies between Witness DY’s testimony and prior statements. First, according to the
Pro Justitia statement of 18 September 1997 (Kabiligi Defence Exhibit 29), Kabiligi “came out of the armoured
vehicle in which we were”, whereas the witness testified that he came out of his office before they drove to the
place where Mudenge had been killed. Second, the same statement refers to Morgan “Hakizimana”, whereas the
Kabiligi Defence Exhibit 28 (statement of 2 October 1997) and the testimony refer to “Hategekimana”. The
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
expressed reservations about his credibility (III.4.1.9; III.4.4.2). Moreover, the Prosecution
has not eliminated the reasonable possibility that Kabiligi was in Nairobi between 14 and 23
April (III.6.2). This further calls into question the witness’s evidence about Kabiligi’s role in
Mudenge’s death. Consequently, the Chamber is not convinced beyond reasonable doubt that
Kabiligi ordered the killing of Lieutenant Desiré Mudenge. Under these circumstances, it is
not necessary to address the Kabiligi Defence’s other arguments relating to this event.
4.1.9
Kabiligi’s Presence at Roadblocks, 21 - 30 April
Introduction
1522. The Indictment alleges that Kabiligi encouraged and supported militiamen who were
murdering Tutsi civilians and that he ordered his men to use the Interahamwe at the
roadblocks. The Prosecution argues that, from about 10 April to 31 May 1994, he passed
roadblocks, manned by Interahamwe and soldiers, which were surrounded by the bodies of
civilians. On one occasion, he allegedly saw a woman being killed at a roadblock in Gitega
sector by Interahamwe, but did not assist her. Reference is made to Witness DY.1676
1523. The Defence argues that these allegations were not pleaded in the Indictment. Witness
DY was not credible and not part of Kabiligi’s escort, as indicated by Witnesses DK-11 and
ZDR-2. At any rate, Kabiligi did not have any obligation to intervene and his conduct during
the period was not criminal. Furthermore, he has an alibi from the end of March to 23 April
1994 (III.6.2).1677
Evidence
Prosecution Witness DY
1524. Witness DY, a Tutsi, testified that he was part of Kabiligi’s escort from 20 April to
end of June 1994. On 20 April, around 8.30 a.m., he escorted Kabiligi in a light armoured
vehicle from the Presidential Guard camp at Kimihurura in the direction of Kimicanga. They
passed the Sopecya station where they saw a roadblock manned by several Interahamwe
armed with machetes, clubs and grenades as well as a soldier belonging to an unidentified
unit. The witness observed several dead civilians, including men, women and children. The
vehicle did not stop at the roadblock, and Kabiligi did not make any comment.1678
1525. On 21 April, Witness DY accompanied Kabiligi to Nyamirambo. They passed
through several roadblocks at places such as Chez Mutwe, Nyamirambo brigade,
Petrorwanda, at the ERP station and at two others known as Terminus and Cosmos. The
witness saw soldiers and Interahamwe at the Terminus roadblock and Interahamwe at the
others. The Interahamwe carried machetes, clubs, spears and guns. There were dead bodies at
all the roadblocks, except at the Cosmos location. Most of them were men of varying ages,
dressed in civilian attire. Kabiligi did not make any comment. The vehicle stopped at the
Chamber accepts that these two discrepancies may be explained as mistakes made by the Rwandan judicial
officer who took down the statement.
1676
Kabiligi and Ntabakuze Indictment, para. 6.30; Prosecution Closing Brief, para. 1283 (b, d), pp. 832-833.
1677
Kabiligi Closing Brief, paras. 419-450, 514, 520, 523, 795-797, 799-800, 804, 809-813, 821-823, 832, 16751679, pp. 615-616; T. 28 May 2007 pp. 46-49; T. 29 May 2007 pp. 21-23; T. 1 June 2007 pp. 54-56.
1678
T. 16 February 2004 pp. 19-23, 71; T. 17 February 2004 p. 11; Prosecution Exhibit 188 (personal
identification sheet).
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Terminus roadblock, and Kabiligi asked the Interahamwe, who the soldiers at the roadblock
were. The Interahamwe responded that the soldiers were from Mount Kigali.1679
1526. Towards the end of April, the witness accompanied Kabiligi and his driver in the light
armoured vehicle coming from Nyamirambo. When crossing a roadblock at the Gitega sector
and nearing the postal school, the witness saw Interahamwe who were manning a roadblock
metres away, shoving a lady wearing only her shorts, as well as striking her with clubs and
hacking her with machetes. The witness’s vehicle, which was approximately six metres away,
did not stop and continued to Camp Kigali. He saw the woman’s body at that location for
three consecutive days after this event, and her arms and legs continued to move.1680
Ntabakuze Defence Witness DK-11 and Nsengiyumva Defence Witness ZDR-2
1527. Witnesses DK-11 and ZDR-2, two Hutu soldiers who worked with Kabiligi, each
provided a list of persons escorting him between May and July 1994. Neither of them
contained the name of Witness DY. Both witnesses acknowledged that they might not be able
to recall every member of Kabiligi’s personal entourage.1681
Deliberations
1528. The Prosecution relies only on Witness DY to establish that Kabiligi failed to
intervene when he passed several roadblocks with dead civilians in and around Kigali around
20 and 21 April 1994 and on another occasion in late April. As mentioned elsewhere
(III.4.1.8 and III.4.4.2), it may be asked whether the witness, a Tutsi, would be assigned to
headquarters to escort Kabiligi from late April until June 1994 in the context of the events
which were unfolding in Rwanda at the time. Witnesses DK-11 and ZDR-2, who were part of
Kabiligi’s security detail during the same period, did not mention Witness DY’s name when
listing their colleagues that served in Kabiligi’s escort team. Even though they admitted that
they might not be able to recall all their colleagues, their testimony, combined with Witness
DY’s ethnicity, create a certain doubt as to whether he actually was Kabiligi’s escort.
1529. The Chamber observes that there are differences between Witness DY’s testimony
and his Pro Justitia statement to Rwandan judicial authorities in September 1997. In the
statement, he referred to a woman lying on the ground for days, dying, whereas in his
testimony he suggested that Kabiligi was present when Interahamwe assaulted her.1682 In
another statement to Tribunal investigators in October 1997, the witness did mention that
Kabiligi observed the attack against the woman, as in the testimony.1683 Witness DY’s
evolving descriptions of Kabiligi’s actual presence during attacks raise concerns about his
credibility. The Chamber notes that there was also an evolving description of Kabiligi’s role
in connection with the incident at the Musambira roadblock (III.4.4.2). The Chamber’s doubt
is strengthened by the fact that the two incidents on 20 and 21 April, where Kabiligi allegedly
passed through roadblocks (above), fall within the period until 23 April, where he has an alibi
(III.6.2).
1679
T. 16 February 2004 pp. 23, 36-38.
Id. pp. 38-41; T. 17 February 2004 pp. 11-14.
1681
Witness DK-11, T. 19 July 2005 p. 61; T. 20 July 2004 pp. 3-4, 38, 41-42, 44, 46, 49-51; Defence Exhibit
144 (personal identification sheet). Witness ZDR-2, T. 30 March 2006 pp. 9, 11, 16, 19-20; Defence Exhibit 170
(personal identification sheet). See also Prosecution Exhibits 354 (Witness DK-11’s list of Kabiligi’s escorts and
drivers) and 386 (Witness ZDR-2’s list of Kabiligi’s escorts and drivers).
1682
T. 17 February 2004 pp. 13-14; Kabiligi Defence Exhibit 29 (statement of 18 September 1997).
1683
Kabiligi Defence Exhibit 28B (statement of 2 October 1997), p. 6.
1680
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1530. In view of the elements mentioned above, the Chamber declines to accept Witness
DY’s testimony in the absence of corroboration. Accordingly, the Prosecution has not proven
beyond reasonable doubt that Kabiligi travelled through roadblocks with dead bodies on 20
and 21 April or observed the killing of a woman at a roadblock in Gitega sector around the
end of April. In light of these findings, the Chamber does not need to address the Kabiligi
Defence’s other submissions.
4.1.10 Meeting at Hôtel des Diplomates, 24 April
Introduction
1531. The Bagosora Indictment alleges that, from April to July 1994, Bagosora exercised
authority over militiamen who committed massacres. The Prosecution contends that, around
24 April 1994, Bagosora arranged a meeting at the Hôtel des Diplomates between
Interahamwe officials and General Roméo Dallaire to discuss the safe passage of refugees.
However, before the meeting with Dallaire, Bagosora allegedly thanked the Interahamwe for
their work and asked them to work closely with soldiers. Reference is made to Witnesses A
and BY.1684
1532. The Bagosora Defence submits that these two witnesses lack credibility and are
contradicted by each other as well as General Dallaire.1685
Evidence
Prosecution Witness A
1533. Witness A, a Hutu Interahamwe official, testified that, around 24 April 1994 at 10.30
a.m., he attended a meeting at the Hôtel des Diplomates in Kigali with Bagosora and senior
Interahamwe officials. The witness identified as present six national Interahamwe leaders and
three sector leaders from Gikondo, Kimicanga and Kicukiro. They then met with General
Dallaire immediately afterwards. Bernard Maniragaba, one of the officials, informed the
witness that the meeting with Dallaire was convened because the Interahamwe had prevented
Dallaire from crossing a roadblock in Kigali while he tried to evacuate refugees from the
Hôtel des Milles Collines to the Kanombe airport.1686
1534. Bagosora thanked the Interahamwe sector leaders for their work before Dallaire
arrived. He also encouraged them to be vigilant and to cooperate with soldiers. The Gikondo
sector leader asked him for assistance with the RPF, and Bagosora responded that he would
ensure that the Interahamwe in Gikondo were reinforced with soldiers and gendarmerie. This
meeting lasted no more than one hour and ended when a soldier entered the meeting room to
1684
Bagosora Indictment, paras. 6.43, 6.70; Prosecution Closing Brief, paras. 1425 (k), 1504 (h), pp. 761-762,
781.
1685
Bagosora Closing Brief, paras. 800-807, 818-819, 824-830, 837-839, 1356-1378.
1686
T. 1 June 2004 pp. 71, 73; T. 2 June 2004 pp. 84-85; T. 3 June 2004 pp. 92-93; Prosecution Exhibit 222
(personal identification sheet). Witness A said that this was the first time he met Bagosora, although he had
previously heard about him. He identified Bagosora in court. See T. 1 June 2004 p. 24; T. 2 June 2004 pp. 2425, 84.
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inform Bagosora of Dallaire’s arrival. When Bagosora left the meeting room, the
Interahamwe leaders discussed what to say to Dallaire.1687
1535. Witness A said that Bagosora returned with Dallaire and two UNAMIR soldiers,
Major Plante and a Senegalese captain. Bagosora introduced Dallaire and left the meeting.
Dallaire inquired into evacuating refugees from the Hôtel des Milles Collines. The
Interahamwe officials told him that he could evacuate them, but that the RPF had confined
people at Remera stadium. Dallaire agreed to investigate this matter and the meeting
concluded.1688
Prosecution Witness BY
1536. Witness BY, a Hutu Interahamwe official, attended a meeting convened by Bagosora
on 23 or 24 April 1994 at the Hôtel des Dipomates along with several national Interahamwe
officials. Around 40 to 50 neighbourhood Interahamwe leaders also participated. The
meeting commenced around 11.30 a.m., and Bagosora informed them of the international
community’s request that roadblocks be dismantled. However, according to the witness,
Bagosora did not order their removal. Instead, he told people to continue to be vigilant and
then left after about 30 minutes.1689
1537. When Bagosora returned, he introduced General Dallaire and excused himself from
the meeting. After exchanging introductions, Dallaire discussed UNAMIR’s neutrality and
requested safe passage for UNAMIR agents involved in humanitarian missions. The
Interahamwe promised to comply with this request, and asked Dallaire to secure the release
of Hutus being held by the RPF at the Amahoro stadium. He promised to investigate this
issue.1690
Prosecution Witness Roméo Dallaire
1538. General Dallaire, the force commander of UNAMIR, testified that the first meeting he
attended with Interahamwe leaders was at the Hôtel des Diplomates in early May 1994.
General Augustin Bizimungu arranged the meeting so that UNAMIR could establish links
with the militia to ensure its convoys’ freedom of movement. Upon arriving at the Hôtel des
Diplomates, Dallaire saw Bagosora in a room near the lobby. The meeting consisted of
Dallaire, Bizimungu, and the national president, secretary-general and another leader of the
Interahamwe. Dallaire did not recall any additional participants, though he stated that
Bagosora was not at the meeting and that Bizimungu was the individual who left early.1691
1687
T. 1 June 2004 pp. 71-73; T. 2 June 2004 pp. 85-86; T. 3 June 2004 pp. 63-64, 92. Witness A first stated that
the term “work” meant the killing of Tutsis. He later said that Bagosora could have been referring to the
Interahamwe’s participation in the war effort. See T. 1 June 2004 p. 73; T. 3 June 2004 pp. 63-64.
1688
T. 1 June 2004 p. 72; T. 2 June 2004 pp. 46-47, 49, 86-87; T. 3 June 2004 pp. 92-93.
1689
T. 5 July 2004 pp. 27-32, 35; T. 8 July 2004 p. 44; T. 9 July 2004 pp. 10-13; Prosecution Exhibit 284
(personal identification sheet).
1690
T. 5 July 2004 pp. 34-35; T. 9 July 2004 pp. 12-13, 18, 21.
1691
T. 19 January 2004 pp. 51-54; T. 23 January 2004 pp. 1-2. In Dallaire’s book, he described Bagosora as
being present along with General Bizimungu at the meeting in early May with Interahamwe leaders. See
Ntabakuze Defence Exhibit 33A (Roméo Dallaire, Shake Hands With the Devil (2003)), pp. 345-346. However,
he clarified during his testimony that Bagosora had not been present and only Bizimungu was there. See T. 23
January 2004 pp. 1-2.
Judgement and Sentence
386
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bagosora
1539. Bagosora stated that he never arranged a meeting between Dallaire and the
Interahamwe, and he denied attending such a meeting in late April 1994.1692
Deliberations
1540. It is clear that General Dallaire met with Interahamwe leaders at the Hôtel des
Diplomates, but the evidence is conflicting as to exactly when it occurred, who convened the
meeting and who was present.
1541. Dallaire placed the date of the meeting in early May 1994, more than week later than
the estimates given by Witnesses A and BY. The Chamber considers that Dallaire provided a
credible first-hand account of the incident. It also notes that there is a difference between
Witness BY’s testimony and his statement to Tribunal investigators in July 1998. He testified
that the meeting occurred on 23 or 24 April, whereas, according to his statement, it took place
on 13 or 14 April.1693 The witness explained this discrepancy by noting that his prior
interviews “contained contradictions, half truths” and other omissions and errors meant to
shield himself from accusations.1694 This explanation does not account for the error in the
date and indicates the witness’s willingness to mislead Tribunal officials when he perceives it
to be in his best interest.
1542. Witnesses A and BY testified that Bagosora convened the meeting. He also
introduced Dallaire upon his arrival, but left afterwards. Dallaire stated that it was
Bizimungu, not Bagosora, who arranged and attended this meeting. There are also differences
between Witness A’s testimony and a prior statement to Tribunal investigators in June 1997.
His testimony ascribes a prominent role to Bagosora in organising and speaking at the
meeting. According to the statement, however, Bagosora did not come to the meeting.1695
This is consistent with the evidence of both Dallaire and Bagosora. The witness explained
that he never reviewed the transcripts of his interivew for corrections and that his 1997
statements did not differ from his testimony.1696 The Chamber does not find this explanation
convincing, in particular since it was transcribed from an audio-cassette.
1543. There are also differences with respect to the individuals who attended the meeting.
According to Witness A, there were nine, whereas Witness BY estimated that over 40 were
present. Dallaire identified only three members of the Interahamwe in attendance.
1692
T. 9 November 2005 p. 59; T. 10 November 2005 p. 5; T. 15 November 2005 p. 40. Bagosora testified about
meeting with Kigali area Interahamwe leaders in mid-May in connection with an evacuation of orphans
(III.5.1). The meeting did not involve Dallaire.
1693
Bagosora Defence Exhibit 116 (Interviews with Prosecution Witness BY, 3 July 1998), Cassette K7#12139
p. 31: “MD: … la distribution a été terminée le 11? … Quand avez-vous rencontré Bagosora … la fois
suivante? T: La fois suivante … j’ai rencontré Bagosora … quand on avait convoqué les Interahamwe … avec
le représentant de la MINUAR … à l’hôtel des Diplomates. MD: Quelle date? T: C’était deux ou trois jours plus
tard.”
1694
T. 9 July 2004 pp. 3, 10, 13-14. At the time of his testimony, Witness BY had been arrested for crimes he
allegedly committed in Rwanda and faced charges in a national jurisdiction. See T. 6 July 2006 pp. 38-39, 5759.
1695
See Prosecution Exhibit 227 (Interviews with Prosecution Witness A, 4 June 1997:), Cassette no. 23, p. 4:
“Bagosora did not come on that day.” The parties have not pointed to a subsequent statement where he placed
Bagosora at the meeting.
1696
T. 2 June 2004 pp. 47-51; T. 3 June 2004 p. 92.
Judgement and Sentence
387
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1544. Dallaire’s testimony as well as the above contradictions, raises questions about the
credibility of the evidence of Witnesses A and BY concerning this meeting and in particular
Bagosora’s role in it. The Chamber further observes that Witnesses A and BY, as senior
Interahamwe leaders, have an interest in minimising their own involvement and shifting
blame to senior authorities, such as Bagosora.1697
1545. Accordingly, the Prosecution has not proven beyond reasonable doubt that Bagosora
met with prominent Interahamwe leaders at the Hôtel des Diplomates around 24 April 1994.
4.1.11 Kigali Prefecture Security Meeting, End of April
Introduction
1546. The Kabiligi and Ntabakuze Indictment alleges that, from April to July 1994, Kabiligi
encouraged and helped militiamen to massacre the Tutsi population and its accomplices. In
particular, the Prosecution alleges that, in April 1994, Kabiligi participated in a Kigali
prefecture security council meeting where he promised to supply weapons to the local militia.
Kabiligi kept this promise. Reference is made to Witness AAA.1698
1547. The Kabiligi Defence reiterates that this event was not pleaded properly in the
Indictment. It also submits that Witness AAA lacks credibility and is contradicted by
Witnesses Luc Marchal and YC-3.1699
Evidence
Prosecution Witness AAA
1548. Witness AAA, a Hutu local official in Kigali, testified that, between mid and late
April 1994, he attended a meeting of the Kigali prefecture security council. Prefect Tharcisse
Renzaho, a sub-prefect, the police commander of the prefecture, the bourgmestres of
Kicukiro, Nyarugenge and Kacyiru, and the conseillers of various sectors in Kigali were
present. Kabiligi participated as a military representative. Colonel Luc Marchal of UNAMIR
and General Gatsinzi of the Rwandan army were also there. The witness did not know who
Marchal was, but he heard Renzaho introduce Marchal by name and nationality at the
beginning of the meeting. He also observed Kabiligi and Renzaho interpreting for Marchal
what was being said in Kinyarwanda.1700
1549. Renzaho, who had convened the meeting, first spoke about the security situation
during the war. The participants then raised matters pertaining to security in the sectors and
1697
Witness BY was in criminal proceedings at the time of his testimony. He also admitted to appropriating over
$300,000 from his employer in Rwanda. See T. 6 July 2004 pp. 62-67. The Prosecution provided Witness A
with a letter at his request stating it had insufficient evidence to open an investigation against him. See T. 2 June
2004 pp. 33-35, 45-46. See also Prosecution Exhibit 226 (Letter of 5 February 2002). In the Chamber’s view, as
a senior Interahamwe leader, the witness still has an interest in minimising his role in the events. See also
Prosecution Closing Brief, para. 1428.
1698
Kabiligi and Ntabakuze Indictment, paras. 5.1, 5.20, 6.30-6.32, 6.35-6.36, 6.45-6.46, 6.51; Prosecution
Closing Brief paras. 673, 1468, 1469 (d), 1471. pp. 833, 836, 840-841; T. 28 May 2007 pp. 18-19.
1699
Kabiligi Closing Brief, paras. 98, 102-104, 252-254, 380-382, 519, 966-967, 971, 976, 1122-1123, 1168,
1172; pp. 578-579, 589-590, 603, 617; T. 28 May 2007 pp. 31-32.
1700
T. 14 June 2004 pp. 12-13, 17-20, 26-27; T. 15 June 2004 pp. 2, 84-85, 87-89; Prosecution Exhibit 263
(personal identification sheet).
Judgement and Sentence
388
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
asked for equipment and weapons to be given to the 10 households (nyumba kumi) and the
responsables. Their questions were directed to the representative of the military authorities,
Kabiligi, who promised that weapons would be distributed. He said that requests should be
directed to Renzaho. He would in turn pass them on to the general staff of the army, which
would then furnish the equipment. The meeting lasted for 15 minutes. The witness said that
weapons were distributed, on a sectorial basis, at the end of April.1701
Kabiligi Defence Witness Luc Marchal
1550. Colonel Luc Marchal was the Kigali Sector Commander of UNAMIR until he left
Rwanda on 19 April 1994. He testified that he did not see Kabiligi between 6 April and his
departure.1702
Kabiligi Defence Witness YC-3
1551. Witness YC-3 was a Hutu officer in the Rwandan army and had periodic contacts
with UNAMIR in 1994. He was unaware of a meeting in Kigali involving Kabiligi, Gatsinzi,
Marchal, Renzaho, the bourgmestres and conseillers between 27 and 30 April 1994.
According to the witness, Gatsinzi could not have attended this meeting because he had
already left Kigali. By these dates, Marchal had already left the country with the rest of the
Belgian contingent.1703
Deliberations
1552. Witness AAA was the only Prosecution witness to testify about the prefecture security
council meeting in April 1994 and Kabiligi’s presence there. At the time of his testimony, he
was awaiting trial in Rwanda.1704 The Chamber considers his testimony with caution.
1553. The witness was not certain about the date of the meeting. He first said that it took
place around mid-April 1994 but then indicated the end of the month, between 27 and 30
April.1705 The Chamber accepts that the witness had problems remembering the date and
notes that the last estimate is in conformity with a statement he gave to Tribunal investigators
in October 2002, according to which the meeting occurred in “late April” 1994.1706
1554. Witness AAA’s evidence was contradicted by other testimonies. In particular,
Marchal testified that he was not in Rwanda at the end of April when the alleged meeting
occurred. Furthermore, he did not see Kabiligi in the month of April. The Chamber finds
Marchal’s testimony to be credible and accepts that he was not present, irrespective of the
1701
T. 14 June 2004 pp. 18, 20-21; T. 15 June 2004 pp. 86, 89.
T. 30 November 2006 pp. 4, 20-21; Kabiligi Defence Exhibit 122 (personal identification sheet).
1703
T. 9 November 2006 pp. 32-33, 40, 52, 54-58; Kabiligi Defence Exhibit 107 (personal identification sheet).
1704
Ntabakuze Defence Exhibit 62 (Judicial Dossier of Witness AAA). The witness was detained in Kigali
prison while awaiting trial. T. 14 June 2004 pp. 24-25; T. 17 June 2004 pp. 57-65.
1705
T. 14 June 2004 p. 19 (“The witness: It was during the month of April but I do not remember the date. Judge
Egorov: Was it the first or second part of April? The witness: It was in mid-April”); T. 15 June 2004 p. 85 (“I
cannot recall the dates. It was the end of April, so it’s between 27th and the 30th of April. But these are not
specific dates. … I am giving you an approximation”).
1706
Kabiligi Defence Exhibit 55 (statement of 16 October 2002). Neither this document nor his statement of
June 2003 mentions that Kabiligi answered questions about security and promised to provide weapons. See
Kabiligi Defence Exhibit 56 (statement of 18 June 2003). This evidence was first indicated about one week
before his testimony. See Kabiligi Defence Exhibit 58 (Will-say statement of 9 June 2004).
1702
Judgement and Sentence
389
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
exact date in April that it was actually held. His evidence is corroborated by Witness YC-3
who was unaware of the meeting but said that Marchal and Gatsinzi had left the country
when it allegedly took place.
1555. One possible explanation could be that Witness AAA was mistaken as to the identity
of the person he believed was Marchal. However, the witness gave a detailed description of
how Marchal was introduced to the participants and the subsequent interpretation by Renzaho
and Kabiligi in order to follow the discussion.1707 When it was suggested to him that Marchal
was out of the country at the time, he reaffirmed Marchal’s presence.1708 This reduces his
credibility. Moreover, the Chamber has elsewhere expressed doubts about other aspects of
Witness AAA’s testimony (III.4.1.12-13). In the absence of corroboration, the Chamber
declines to accept his evidence that Kabiligi was present.1709
1556. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond
reasonable doubt that Kabiligi participated in a prefecture security council meeting in Kigali
at the end of April 1994 and supplied weapons to the local militia.
1557. The Chamber has previously found that there was sufficient notice to admit the
evidence of Witness AAA about this incident.1710 In view of the finding above, there is no
need to revisit this issue.
4.1.12 Meeting at Mount Kigali, Late April or Early May
Introduction
1558. The Kabiligi and Ntabakuze Indictment alleges that, from April to July 1994, Kabiligi
ordered soldiers and civilians to massacre the Tutsi population and its accomplices. In
particular, the Prosecution submits that, in late April or early May 1994, he travelled to the
Huye Battalion military base on Mount Kigali and ordered a soldier and Kigali officials to
murder all remaining Inkotanyi in Kigali town. Reference is made to Witnesses AAA and
DK-11.1711
1559. The Kabiligi Defence reiterates that this incident is insufficiently pleaded in the
Indictment. It also argues that Witness AAA lacks credibility and is contradicted in part by
Witness STAR-1.1712
1707
T. 15 June 2004 p. 85 (“When Colonel Renzaho spoke, Kabiligi would translate for Colonel Marchal; and
when Kabiligi was speaking, then Renzaho worked as an interpreter”).
1708
T. 15 June 2004 p. 88 (“This is not a name I just pulled out of a hat. This is a name that was mentioned
during the meeting. I saw a white man; the white man was introduced. … They said his name was Colonel
Marchal and that he was Belgian …”).
1709
The Chamber does not find it necessary to consider Witness YC-3’s comment that General Marcel Gatsinzi
was no longer in Kigali, or that he was in Zaire in connection with a cease fire agreement, dated 23 April 1994.
See Witness YC, T. 9 November 2006 p. 40; Ntagerura, T. 28 November 2006 pp. 8-9, 11-12; Kabiligi Defence
Exhibit 120 (Declaration de Cessez le Feu, 23 avril 1994).
1710
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, paras.
17-18.
1711
Kabiligi and Ntabakuze Indictment, paras. 5.1, 5.35, 6.31-6.32; Prosecution Closing Brief, paras. 169, 173,
1468, 1469 (e), 1766.
1712
Kabiligi Closing Brief, paras. 110, 252-254, 966, 968, 972, 976, pp. 578-579, 589-590.
Judgement and Sentence
390
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Evidence
Prosecution Witness AAA
1560. Witness AAA, a Hutu local official in Kigali, testified that, towards the end of April
or beginning of May 1994, he was invited by Witness STAR-1, an officer within the Huye
Battalion, to its base located on Mount Kigali to attend a meeting with other Kigali officials.
The purpose of the meeting was to discuss security matters. At the time, the RPF were only
15 kilometres away from the base.1713
1561. Witness AAA and other officials were gathered in Witness STAR-1’s tent. Kabiligi
arrived in a truck with six to eight soldiers. Witness STAR-1 stood up, saluted Kabiligi, and
informed him that a meeting was being held to discuss security matters in the different
sectors. Each of the participants also introduced themselves to Kabiligi. He seemed angry and
replied that they were all idiots for allowing the Tutsis to move around Kigali freely and
communicate with the RPF over radio devices. Kabiligi also said that the remaining Tutsis in
each sector had to be eliminated. After Kabiligi had left with his escorts, Witness STAR-1
dismissed Witness AAA and the other officials and told them to go and search for
accomplices with radios in the different sectors.1714
Nsengiyumva Defence Witness STAR-1
1562. Witness STAR-1 was a Hutu officer in the Huye Battalion in 1994 and was stationed
at its military base on Mount Kigali from early May until the end of June. He denied that
Kabiligi attended a meeting there, or that Kabiligi or Witness AAA visited the base. The only
occasion that Witness STAR-1 met with Kabiligi during the conflict was later in June at the
Nyamirambo stadium. The witness denied ever meeting or even knowing Witness AAA.1715
Ntabakuze Defence Witness DK-11
1563. Witness DK-11 was a Hutu soldier in the Rwandan army in 1994. He testified that on
12 May 1994, he was appointed to be a member of Kabiligi’s personal escort. The witness
held this position from mid-May until mid-July 1994, when he and Kabiligi fled Rwanda.
During this period, the witness accompanied Kabiligi on four trips outside Kigali, to Camp
Kanombe, the Presidential Guard camp, Mount Kigali and Runda. At Mount Kigali, Kabiligi
met with the commanding officer of the battalion stationed there, Major Ntilikina.1716
Deliberations
1564. Witness AAA was the only Prosecution witness who described Kabiligi visiting Huye
Battalion officers at Mount Kigali towards the end of April or early May. When the witness
1713
T. 14 June 2004 pp. 12-13, 17; T. 15 June 2004 pp. 2-3, 89-91, 93; Prosecution Exhibit 263 (personal
identification sheet). Witness AAA had been detained since July 1997. See T. 14 July 2004 pp. 24-25; T. 17
June 2004 pp. 57-65.
1714
T. 15 June 2004 pp. 2-4, 81-82, 90, 94-97.
1715
T. 23 February 2006 pp. 4, 61-62, 65-67; T. 24 February 2006 pp. 28, 35-37; Nsengiyumva Defence Exhibit
140 (personal identification sheet).
1716
T. 19 July 2005 p. 61; T. 20 July 2005 pp. 38, 43-45, 49; T. 21 July 2005 p. 24; Ntabakuze Defence Exhibit
144 (personal identification sheet). Witness DK-11 had doubts about the name of the commander and of the
name of the battalion (T. 20 July 2005 p. 45).
Judgement and Sentence
391
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
testified in June 2004, he was awaiting trial in Rwanda for crimes committed in 1994.1717 He
had been detained since July 1997. The Chamber views his evidence with caution.
1565. The witness had previously given five statements to Tribunal investigators. One of
them, recorded in June 2003, gives an account of the purported meeting and describes
Kabiligi’s utterances and mood in similar terms as the witness used in the courtroom.1718
Witness STAR-1, who was allegedly present during the meeting, denied that it occurred and
that Witness AAA and Kabiligi ever visited the base. The Chamber considers Witness STAR1’s evidence in light of his possible interest to distance himself from the order to kill Tutsis.
1566. Witness DK-11 said that he accompanied Kabiligi to a meeting with Witness STAR-1
at Mount Kigali at some point between mid-May and the mid-July. This is after the period
– late April or beginning of May – indicated by Witness AAA. Furthermore, Witness DK11’s evidence was very limited and did not contain any information about the meeting or
Kabiligi’s words or mood.
1567. The Chamber has elsewhere expressed concerns about other aspects of Witness
AAA’s testimony (III.4.1.11; III.4.1.13). In the absence of any corroboration, the Chamber
declines to accept his testimony about this incident.1719 Accordingly, the Chamber is not
satisfied that the Prosecution has proven beyond reasonable doubt that Kabiligi attended a
meeting with local officials at the Huye Battalion base at Mount Kigali and ordered those
present to kill remaining Tutsis in the area. The Chamber decided during the trial that
Kabiligi had notice of this allegation.1720 In view of its finding, it sees no need to revisit this
issue.
4.1.13 Nykabanda Sector, 22 - 25 May
Introduction
1568. The Kabiligi and Ntabakuze Indictment alleges that, starting on 7 April 1994,
elements of the Rwandan army and Interahamwe perpetrated massacres of the civilian Tutsi
population in places where they had sought refuge for their safety. As part of these general
allegations, the Prosecution seeks to hold Ntabakuze responsible for the murder and rape of
Tutsi civilians in Nyakabanda sector of Kigali while the Para Commando Battalion was
stationed there at the Iwacu centre in Kabusunzu. In support of these allegations, reference is
made to Witnesses DBN and AAA.1721
1569. The Ntabakuze Defence repeats earlier challenges to the pleading of these crimes in
the Indictment. It does not dispute that the Para Commando Battalion was stationed at the
1717
Ntabakuze Defence Exhibit 62 (Judicial dossier of Witness AAA). The witness was detained in Kigali
prison while awaiting trial. See T. 14 June 2004 pp. 24-25; T. 17 June 2004 pp. 57-65.
1718
Kabiligi Defence Exhibit 56 A (statement of 18 June 2003), p. 7, contains Kabiligi’s words, written in upper
case by the investigators. It also contains formulation such as “[Kabiligi] angrily said at the top of his voice” and
“The meeting ended abruptly and General Kabiligi left the scene in an angry mood”.
1719
The Prosecution indicates that Witness AAA is not “worthy of being described as a wholly believable
witness”, but it invites the Chamber to accept certain aspects of his evidence. See Prosecution Closing Brief,
para. 1471.
1720
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, paras.
17-18.
1721
Kabiligi and Ntabakuze Indictment, para. 6.36; Prosecution Closing Brief, paras. 428, 432-433, 1324(a),
1328, 1469 (f-g), 1470, 1743, 1744 (a-d), 1745, 1822, pp. 836-837.
Judgement and Sentence
392
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Iwacu centre in Kabusunzu at the end of May 1994, but it submits that the Prosecution
evidence lacks credibility. It also points to contradictory evidence from Witnesses XAB, DH13, DH-67, DH-68, DK-110 and DK-120.1722
Evidence
Prosecution Witness AAA
1570. Witness AAA, a Hutu local official in Kigali, testified that, at the end of May 1994,
the Para Commando Battalion established a camp at the Iwacu Centre in Nyakabanda sector.
After the battalion’s arrival, he received reports of an increase in killings, rape and looting in
the area. Most of the Tutsis and Hutus who opposed the regime had been killed or had fled
from the area by May, and crimes were being committed indiscriminately, even against the
Hutu residents who remained. The witness described several instances of rape and murder
against Hutus and Tutsis perpetrated by soldiers or Interahamwe accompanied by soldiers.
This prompted the witness to go to the Iwacu Centre to speak with Ntabakuze about the
violence. In particular, the witness mentioned a Tutsi, who was killed by Interahamwe and
soldiers in May, named Jean Karwanyi. The soldiers involved in these crimes came from
Camp Kigali, the Huye Camp and the Para Commando Battalion. When Witness AAA tried
to speak with Ntabakuze at the Iwacu Centre about the increasing violence, Ntabakuze spoke
unkindly to him and did not provide any assistance. The witness recognised some of the
soldiers circulating in his sector as member of the Para Commando Battalion by their
camouflage berets. That battalion continued committing crimes in the area with the
Interahamwe until mid-June.1723
Prosecution Witness DBN
1571. Witness DBN, a Tutsi member of the Para Commando Battalion, stated that the
battalion evacuated Camp Kanombe at night at the end of April 1994, staying two nights at
the École Technique Officielle (ETO) before relocating to the Iwacu Centre in Kabusunzu.
After leaving ETO, the witness spent one night at Camp Kigali before proceeding to
Kabusunzu. About 300 members of the battalion had already set up temporary camp there the
night before. On arrival at the Iwacu Centre, he saw about 20 members of the battalion
loading about 15 bodies onto a truck. The bodies had bullet wounds and were in civilian
attire. Ntabakuze was standing 10 metres away. The witness was not aware how these
individuals had died, but a friend told him later that evening that there were gunshots in the
vicinity the previous night.1724
1722
Ntabakuze Closing Brief, paras. 329-335, 385-397, 2012-2092.
T. 14 June 2004 p. 12; T. 15 June 2004 pp. 7-23, 25-27, 29-30; T. 16 June 2004 pp. 76-77, 90-91, 95-100; T.
17 June 2004 pp. 5-10, 12-18; T. 18 June 2004 p. 10; Prosecution Exhibit 263 (personal identification sheet).
Witness AAA stated that the driver referred to as “John” in his statement was the same person as Jean
Karwanyi. See T. 17 June 2004 pp. 11-12, 17-18. He also mentioned the killing of a Hutu named Bideri before
20 April. See T. 16 June 2004 p. 91. The witness further noted that he only saw Ntabakuze once when he met
him at the Centre. A soldier at the gate identified the officer with whom the witness spoke as Ntabakuze. The
witness identified Ntabakuze in court. See T. 15 June 2004 pp. 7, 9.
1724
T. 1 April 2004 pp. 64-68; T. 5 April 2004 pp. 58-59, 61-62, 65; Prosecution Exhibit 198 (personal
identification sheet). Witness DBN did not know that the place was called the Iwacu centre since it was his first
time there. The Chamber considers that he was referring to the Iwacu centre in view of the other evidence
related to this deployment.
1723
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393
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1572. The next morning, Witness DBN saw five members of the local population present
three other individuals to Ntabakuze, explaining that they were Inyenzi, who were hiding in
the area. Ntabakuze responded that “the dirt should be taken away and killed”. Two soldiers
named Uwimana and Bashimiraho took these three persons, who looked starved, behind the
building, and the witness heard five gunshots. Later that day, he and other members of the
Para Commando Battalion left for Gitarama prefecture, where they stayed for a week at the
local military camp and in a nearby school. The rest of the battalion went to Butare
prefecture. After a week in Gitarama prefecture, the battalion withdrew to Gisenyi prefecture
and then to Goma, Zaire.1725
Prosecution Witness XAB
1573. According to Witness XAB, a Tutsi member of the Third Company of the Para
Commando Battalion, his unit retreated from its position in Remera around 23 May 1994 and
spent one night at the Iwacu Centre in Kabusunzu. The next day, it went to Muyira commune
in Butare prefecture for less than two days before going to Gitarama prefecture. The witness
never saw members of the Para Commando Battalion engage in the killing of civilians,
including at Kabusunzu. There was only one soldier in the battalion named Bashimiraho. He
lost his leg in 1992.1726
Ntabakuze
1574. Ntabakuze explained that, on the night of 21 May 1994, the Para Commando
Battalion broke through the RPF lines which had encircled the battalion’s position. The
battalion then stayed briefly at the Iwacu Centre in Kabusunzu before deploying to Muyira
commune in Butare prefecture on 25 May. He denied that his soldiers participated in the
killing of Tutsi civilians in Kabusunzu at the end of May.1727
Ntabakuze Defence Witnesses DK-110 and DK-120
1575. Witnesses DK-110 and DK-120, Hutu members of the Para Commando Battalion,
said that, around 21 May 1994, the battalion participated in a military operation to break
through RPF lines surrounding their position near the ETO. After the operation, the Para
Commando Battalion set up a camp at the Iwacu Centre in Kabusunzu for about two days so
that the soldiers could rest. They saw Ntabakuze there. Only a few civilians were at the
Centre when they arrived. The members of the Para Commando Battalion did not leave the
Centre and did not commit any crimes there. The battalion then redeployed to Muyira
commune, Butare prefecture.1728
Ntabakuze Defence Witness DH-13
1576. Witness DH-13, a Hutu trader who lived in Nykabanda sector in 1994, stated that
members of the Interahamwe killed a Hutu named Bideri, John, who was a Tutsi driver, and a
1725
T. 1 April 2004 pp. 68-69; T. 5 April 2004 pp. 61-62, 64. Witness DBN stated that Uwimana was a member
of the CRAP Platoon.
1726
T. 6 April 2004 pp. 20, 50-51, 56-57, 75; T. 7 April 2004 pp. 17-18; Prosecution Exhibit 200 (personal
identification sheet).
1727
T. 20 September 2006 pp. 7-11, 13-18; T. 21 September 2006 pp. 18, 21-22; Ntabakuze Defence Exhibit
228 (Map of Kigali identifying Para Commando positions).
1728
Witness DK-110, T. 12 July 2005 pp. 63-66; T. 13 July 2005 pp. 6-13, 26-28; Ntabakuze Defence Exhibit
143 (personal identification sheet); Witness DK-120, T. 5 July 2005 pp. 6-10, 31-33; Ntabakuze Defence
Exhibit 141 (personal identification sheet).
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Tutsi called Jean Karwanyi in early April 1994. On 7 April, he saw Witness AAA standing
next to Karwanyi’s dead body at a roadblock. Around 11 April, he heard about the death of
Bideri and Karwanyi. The witness also stated that he never saw any soldiers in Nyakabanda
sector in May 1994.1729
Ntabakuze Defence Witness DH-67
1577. Witness DH-67, a Hutu, lived in close proximity to the Iwacu Centre in April and
May. Around 20 May, she observed between 300 and 500 members of the Para Commando
Battalion establish a temporary camp at the Centre for about three days. During that time, the
witness did not see or hear about any killings by soldiers at the Centre or in the Kabusunzu
area.1730
Ntabakuze Defence Witness DH-68
1578. Witness DH-68, a Hutu member of the medical company, testified that there was only
one member of the Para Commando battalion named Bashimiraho. The witness noted that
Bashimiraho joined the medical company in 1992 after his leg was amputated as a result of a
war injury. Bashimiraho was evacuated to Butare prefecture along with the Camp Kanombe
hospital at the end of April 1994 and was not in Kabusunzu at the end of May 1994.1731
Deliberations
1579. Ntabakuze and the Para Commando Battalion established a temporary camp at the
Iwacu Centre in the Kabusunzu area of Nyakabanda sector from around 22 until 25 May
1994. Witnesses AAA and DBN implicated the battalion in various incidents of violence at
the Centre and in the surrounding area. They did not, however, refer to the same events.
Witness AAA spoke about a general increase in rape and murder in the area after the arrival
of the battalion, mentioning several crimes perpetrated at the hands of the Interahamwe
accompanied by soldiers, in particular a Tutsi named Jean Karwanyi. The witness then
allegedly spoke with Ntabakuze. Witness DBN attested to two events, occurring at the Iwacu
Centre, namely the loading of 15 bodies by soldiers onto a truck and Ntabakuze’s alleged
order to two soldiers to kill three Tutsi civilians, who were brought to the Centre by local
assailants. The Chamber addresses each of the allegations in turn.
1580. Witness AAA did not provide direct testimony about crimes committed by members
of the Para Commando Battalion. His evidence is based on seeing soldiers wearing
camouflage berets in the area and reports of criminal conduct given to him by local officials
and people within the community. He also explained that from 14 April, soldiers from other
nearby camps, other than the Para Commando Battalion, operated in the area, including the
Huye Battalion.1732 The Huye Battalion, which was a commando unit, also wore camouflage
1729
T. 14 February 2006 pp. 25, 30-32, 34-39, 49, 54-55, 57. During Witness DH-13’s testimony, he read an
excerpt into the record from the Rwandan newspaper Le Messager, dated 24 November 1994, which stated that
Bideri died on 9 April 1994. See also Ntabakuze Defence Exhibit 202 (excerpt of Le Messager, dated 24
November 1994).
1730
T. 20 April 2005 pp. 4-5, 15-18, 29; Ntabakuze Defence Exhibit 87 (personal identification sheet).
1731
T. 29 June 2005 pp. 100-101; T. 30 June 2005 pp. 2, 4, 6; Ntabakuze Defence Exhibit 83 (personal
identification sheet).
1732
T. 15 June 2004 p. 26 (“In the event that I have described, there were soldiers from Huye who would come
down from their camps and work in the Nyakabanda cellule which – cellules, which are not far from their camp
… So they were operating in the cellules that were near Nyakabanda cellule. The soldiers of Huye camp
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395
18 December 2008
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berets like the Para Commando Battalion.1733 The witness also stated that the Para
Commando Battalion was stationed at the Iwacu Centre and committed crimes in the area
until mid-June. This testimony is contradicted by convincing and corroborated evidence from
both Prosecution and Defence witnesses that the Para Commando Battalion stayed only
temporarily at the Centre from around 22 to 25 May before redeploying. It also follows from
the evidence of Witness DH-13 that the killing of Jean Karwanyi, which Witness AAA
claimed occurred after the Para Commando Battalion arrived, likely happened in the initial
days after the death of President Habyarimana – before the battalion set up temporary camp
in the area.1734
1581. In addition to these doubts about Witness AAA’s evidence, the Chamber notes that at
the time of his testimony, he was imprisoned in Rwanda awaiting trial for crimes committed
in Nykabanda sector.1735 He therefore had an interest in minimising his own responsibility for
crimes committed in the area and shifting blame to Ntabakuze. The Chamber has also raised
question about other aspects of his testimony elsewhere in the judgement (III.4.1.11-12). For
the foregoing reasons, the Chamber declines to accept his account concerning the activities of
the Para Commando Battalion in Nykabanda sector without corroboration.
1582. Turning to Witness DBN, he indicated that the Para Commando Battalion established
its temporary camp at the Iwacu Centre at the end of April, a full month ahead of when it was
actually deployed there. This discrepancy alone is not sufficient to reject Witness DBN’s
account, but it does raise some concerns about the reliability of his testimony. It follows from
other aspects of his testimony, such as the battalion’s subsequent deployments to Butare and
Gitarama prefectures, which is consistent with chronology of the deployments provided by
other members of the battalion, that he was probably referring to events occurring at the end
of May.
1583. There are differences between Witness DBN’s testimony about crimes committed at
the Iwacu Centre in Kabusunzu and his previous statements to Tribunal investigators. For
example, he did not mention the killings at Iwacu Centre in his first statement in August
1999.1736 In his second statement in February 2000, the witness said that he heard that the
Para Commando Battalion was involved in killings in Kabusunzu.1737 He did not mention
seeing the loading of bodies onto a truck or personally observing Ntabakuze give orders to
kill three Tutsi civilians. The allegation about Ntabakuze’s order to kill three Tutsi civilians
only surfaced in a will-say statement, disclosed in December 2003, less than four months
before the witness’s testimony.1738 Witness DBN explained that the omissions in his
therefore operated in Kabugura or Rwazamenyo. As to the gendarmes, they were involved in the event that took
place in Rwazamenyo cellule, and the gendarmes were deployed throughout the secteurs. As to the other
soldiers, they were in Nyakabanda cellule. And the soldiers from Kigali camp would come to Nyakabanda and
Rwazamenyo. And it was as if the Nyakabanda camp was between several military camps, and so the military
camps acted in collaboration with the Interahamwe to perpetrate the acts that I have referred to.”).
1733
Witness AAA stated that members of the Huye Battalion wore black berets. See T. 17 June 2004 p. 9. The
Chamber has determined that the Huye Battalion, which was a commando unit, wore camouflage berets
(III.1.2).
1734
It follows from Witness DH-13’s evidence that John, the driver, and Jean Karwanyi are two different
persons. Witness AAA suggested that they were the same person.
1735
See Ntabakuze Defence Exhibit 62 (Judicial dossier of Witness AAA).
1736
Ntabakuze Defence Exhibit 49 (statement of 20 August 1999).
1737
Ntabakuze Defence Exhibit 50 (statement of 25 February 2000).
1738
Ntabakuze Defence Exhibit 51 (Will-say statement of 13 December 2003).
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396
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statements resulted from the questions put to him by the investigators.1739 This explanation,
however, is not entirely convincing. Witness DBN’s statements of 1999 and 2000 focused
specifically on Ntabakuze and the Para Commando Battalion and mentioned the temporary
deployment at the Iwacu Centre at Kabusunzu. In the Chamber’s view, it is noteworthy that
such a serious allegation as Ntabakuze’s order to kill three Tutsis was not included in those
statements and only surfaced in the will-say statement.
1584. Witness DBN stated that one of the soldiers, whom Ntabakuze allegedly ordered to
kill the three Tutsi civilians, was called Bashimiraho. The evidence of Witnesses DH-68
indicates that Bashimiraho was evacuated to Butare prefecture on 27 April 1994 together
with the hospital at Camp Kanombe. Both Witnesses DH-68 and XAB testified that there was
only one soldier in the battalion named Bashimiraho, who had lost his leg in 1992.
1585. It remains possible that Witness DBN was mistaken about the identity of the killers.
However, other evidence from both the Prosecution and Defence suggests that no crimes
occurred while the battalion was stationed at the Iwacu Centre. In particular, Prosecution
Witness XAB, a Tutsi, testified that he did not see or hear about any killings by members of
the battalion after 11 April at Nyanza hill (III.4.1.1). Defence Witnesses DK-110 and DK120, who were also stationed at the Centre, and Witness DH-67, who lived nearby,
corroborate Witness XAB’s testimony with respect to the activities of the Para Commando
Battalion in the area. The Chamber views the evidence of these battalion members with
caution since they may have reason to distance themselves from crimes committed in the
area. These concerns, however, do not necessarily apply to Witness XAB, a Tutsi, who
implicated Ntabakuze and members of the battalion in connection with the massacre at
Nyanza hill (III.4.1.1). The evidence of these Prosecution and Defence witnesses, when
considered together, raises further doubt about the claims made by Witness DBN that
members of the Para Commando Battalion killed civilians at the Iwacu Centre.1740 This
reasoning applies with equal force to Witness AAA’s allegations, discussed above,
concerning the battalion’s alleged activities in the surrounding areas.
1586. In sum, the Prosecution has not proven beyond reasonable doubt that Ntabakuze and
members of the Para Commando Battalion participated in crimes in Nykabanda sector while
the battalion was deployed at the Iwacu Centre in Kabusunzu.
1587. The Chamber held during the trial that Ntabakuze had adequate notice of the
allegations related to Nyakabanda sector.1741 In view of the finding on this event, it is not
necessary to revisit the notice provided for these allegations.
1739
T. 5 April 2004 pp. 59-60 (“I met several investigators, and my answers were based on questions put to me;
for example – if I was asked if I was at such-and-such a place, and if I answered yes, then the following question
would concern the place [where] we went to and I would answer accordingly, but some investigators would ask
me, ‘You were at such-and-such a place.’ If I said yes, then they would ask me, for example, what I did there, so
the investigators had different questions, and that is why the contents of the statement could be different,
depending on what the investigators asked. In some instances the second investigator did not ask what the first
investigators had asked me.”).
1740
The Chamber has also raised questions about other aspects of Witness DBN’s testimony (III.4.1.6).
1741
See Decision Reconsidering Exclusion of Evidence Following Appeals Chamber Decision (TC), 17 April
2007, paras. 19-21; Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 42-43.
Judgement and Sentence
397
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.1.14 Saint André College, May - June
Introduction
1588. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege
that, from May to June 1994, soldiers under the orders of Kabiligi identified Tutsis who had
sought refuge in a house near Saint André College in Kigali and killed them on 8 June 1994.
The Prosecution refers primarily to the evidence of Witness DBQ that, at the end of May,
General Bizimungu, Ntabakuze and Kabiligi directed Interahamwe and soldiers, including
members of the Para Commando Battalion, to take Tutsi refugees away to be killed in the
nearby Rwampara sector. Furthermore, it points to Witness DBJ, involving attacks from 7 to
10 June 1994 on the Saint Josephite Centre and Saint Charles Lwanga Church, which are near
Saint André College. Reference is also made to Witness XXJ in connection with the killing of
orphans near Saint André.1742
1589. The Bagosora Defence submits that the Prosecution’s evidence does not connect him
to the alleged killings or any possible role played by Kabiligi therein. The Kabiligi and
Ntabakuze Defence teams submit that they did not recieve proper notice of the allegations.
The Kabiligi Defence argues that Kabiligi lacked authority over soldiers in the area (IV.1.3).
All three Defence teams contend that the Prosecution evidence lacks credibility. They refer to
Witnesses DH-90 and DH-91.1743
Evidence
Prosecution Witness DBQ
1590. Witness DBQ, a Hutu and purported member of the Para Commando Battalion,
testified that, towards the end of May 1994, portions of his battalion relocated to Camp
Kigali, the Saint André College and the Iwacu Kabusunzu Centre. A few days later, the
witness, who was posted at Camp Kigali, drove a pregnant Tutsi friend to a house near
Nyamirambo stadium, passing Saint André College where he spent 20 to 30 minutes waiting
to get through a roadblock. He recalled seeing about 100 members of the Interahamwe at the
roadblock near Saint André College. There were also between 100 and 300 Tutsi civilians
coming out of the buildings of Saint André College, as well as the nearby Islamic Centre.1744
1591. While at the roadblock, Witness DBQ saw Ntabakuze and General Bizimungu
standing in front of the Saint André College. They were at a distance of five metres from his
car. The witness overheard Ntabakuze tell Bizimungu that the Tutsis should be taken to
“Kinihira”, a term used in military circles at the beginning of the genocide to indicate when
people had to be killed. According to the witness, Ntabakuze and Bizimungu used hand
gestures to the soldiers and Interahamwe present to indicate that the Tutsi civilians should be
taken away. They also said to the soldiers that the Tutsis should be killed at a location called
1742
Bagosora Indictment, para. 6.53; Kabiligi and Ntabakuze Indictment, para. 6.38; Prosecution Closing Brief,
paras. 429-431, 1109 (e), 1193 (d-f), 1363, pp. 164-166, 506, 768-769, 837.
1743
Bagosora Closing Brief, p. 381; Kabiligi Closing Brief, paras. 99, 110, 194, 214, 902-905, 1406, pp. 611612, 620; Ntabakuze Closing Brief, paras. 139-144, 245-250, 2093-2125. The Kabiligi Defence notes the
absence of evidence about this event from Defence Witnesses DK-11 and ZDR-2, who frequently accompanied
Kabiligi during this period, as well as Prosecution Witness DY, who claimed that he was often with Kabiligi at
this time.
1744
T. 25 February 2004 pp. 9-11, 13, 54-57; Prosecution Exhibit 99 (personal identification sheet).
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Rwampara. While the witness was waiting at the roadblock, he saw Kabiligi arrive in an
armoured personnel carrier and speak to Bizimungu and Ntabakuze.1745
1592. Witness DBQ then continued on to Nyamirambo Stadium. On his return to Saint
André College from the stadium, he passed Kabiligi going towards Mount Kigali in his
armoured personnel carrier. The witness asked several soldiers from the Para Commando
Battalion at the Saint André College roadblock about the fate of the Tutsi civilians who had
been taken away. They responded that the Tutsis had already been killed in Rwampara sector,
around 200 to 300 metres away. None of those soldiers was punished for the killings.1746
Prosecution Witness DBJ
1593. Witness DBJ, a Tutsi, sought refuge along with other Tutsis at the Saint Josephite
Centre near Saint André College in Nyamirambo from April to June 1994. On the morning of
7 June, he heard Tharcisse Renzaho on RTLM, saying that “Inyenzi” who had been forgotten
were hiding in the ceiling of the Centre. That afternoon, a number of soldiers armed with
guns arrived, stating that they had been sent by the administration because of the RPF
presence at the Centre. The soldiers examined the identity cards of the refugees, led a group
of around 100 Tutsis – who were mainly women, youth, and religious personnel – out of the
compound, lined them up, and shot them to death. A soldier, wearing a “clean military
uniform”, searched the witness’s room, but he was spared, probably because he did not look
like a Tutsi. He acknowledged that it was difficult to tell the difference between Interahamwe
and soldiers at this time, as some Interahamwe wore military uniforms.1747
1594. After the killings, nine survivors walked around 200 metres to the neighbouring Saint
Charles Lwanga Church. An Interahamwe leader named Kigingi, who manned a roadblock
near the church, stopped them and stabbed a pregnant women to death. The refugees
continued to the church and passed by Saint André College, which was across the road,
where soldiers were engaged in domestic tasks. Around 3.00 p.m. on 9 April, Kigingi led his
Interahamwe in an attack on the 50 to 60 mostly Tutsi refugees at Charles Lwanga Church.
They fired tear gas into the church and then herded the refugees onto two trucks. The witness
believed that they were later killed at Mount Kigali. Gendarmes arrived at some point and
watched the loading operation, but did nothing to prevent the Tutsi refugees from being taken
away. In the witness’s view, they were not strong enough to stop the Interahamwe.1748
1595. While they were boarding the refugees onto the vehicles, an army major named
Ndamage convinced Kigingi to spare a Tutsi lecturer in the faculty of science education
named Jean Damascene Ndayabaje, arguing that he made an important contribution to
Rwanda. Kigingi relented and Ndayabaje was placed in a vehicle along with the witness and
a few other religious personnel bound for Saint Paul Centre and ultimately the Saint Famille
1745
T. 25 February 2004 pp. 10-13, 56-57.
Id. pp. 10-14.
1747
T. 24 November 2003 pp. 1-3, 13-18, 38, 41, 47; T. 25 November 2003 pp. 6-7, 10, 15-17, 32; Prosecution
Exhibit 136 (personal identification sheet). The witness also referred to an earlier attack on the Saint Josephite
Centre on 8 April 1994, where soldiers killed many of the Tutsi refugees. See T. 24 November 2003 pp. 4-10.
He said that there were no killings between 8 April and 7 June 1994. See T. 25 November 2005 p. 6.
1748
T. 24 November 2003 pp. 18-22, 37-38, 48; T. 25 November 2003 pp. 3-4, 11, 16-17. The witness identified
the gendarmes by their red berets. T. 24 November 2003 pp. 48-49.
1746
Judgement and Sentence
399
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Church. Major Ndamage then assisted these survivors cross Kigingi’s roadblock on the
way.1749
Prosecution Witness XXJ
1596. Witness XXJ, a Hutu lieutenant in the Rwandan army, stated that, from his position
on Mount Kigali, he could see Saint André College at a distance of one or two kilometres.
During his time on Mount Kigali from mid-May to mid-June 1994, he observed fierce
fighting between the Rwandan government forces and units of the RPF in the vicinity of
Saint André College. On one occasion, while he was conducting operations led by Kabiligi,
the witness noticed gunshots near the Saint André College. Over the radio, he heard Kabiligi
ask soldiers who were deployed in the area from which direction the shots were coming. The
witness stated that he knew Kabiligi’s voice and had just been talking over the radio with him
before Kabiligi asked the soldiers his question. A soldier responded that the fire had been
directed at a military vehicle and that shots were coming from the direction of where the
orphans were located. Kabiligi then issued orders for his soldiers to conduct a search of that
area. Witness XXJ stated that, much later, he was informed that orphans had been killed in
Nyamirambo. He did not know whether the search had ever been conducted or whether the
orphans he had heard were killed were the same ones referred to near Saint André
College.1750
Ntabakuze
1597. Ntabakuze explained that, on the night of 21 May 1994, the Para Commando
Battalion broke through the RPF lines, which had encircled its position. The battalion then
stayed briefly at the Iwacu Centre in Kabusunzu before deploying to Muyira commune in
Butare prefecture on 25 May. He denied that his soldiers were stationed at Saint André
College or that they participated in the killing of Tutsi civilians in Rwampara sector at the
end of May.1751
Ntabakuze Defence Witness DK-32
1598. Witness DK-32, a Hutu officer in the Rwandan army, testified that, in early May
1994, army headquarters divided the Kigali military operation sector into two and named
Colonel Nkuriyekubona as head of the Kigali-East sector. The witness served in that sector.
The Para Commando Battalion was placed under the command of Nkuriyekubona in the
Kigali-East sector from the beginning of May until around 21 May after it completed an
operation to break through RPF lines. The witness did not hear about any crimes committed
by them during this period.1752
1599. Around 23 May, the Kigali-East sector established a command post at Saint André
College. There were no refugees there, and the witness did not recall any incidents involving
soldiers and refugees in the area. He did not see Ntabakuze in Nyamirambo. After the army
established a position at the college, there was heaving shelling and fighting in the area. The
1749
T. 24 November 2003 pp. 22-26; T. 25 November 2005 pp. 12, 14.
T. 14 April 2004 pp. 48-50; T. 16 April 2004 pp. 9-15, 23-24; Prosecution Exhibit 208 (personal
identification sheet).
1751
T. 20 September 2006 pp. 7-11, 13-18; T. 21 September 2006 pp. 18, 22; Ntabakuze Defence Exhibit 228
(Map of Kigali identifying Para Commando positions).
1752
T. 27 June 2005 pp. 43, 60-63; T. 28 June 2005 p. 54; Ntabakuze Defence Exhibit 136 (personal
identification sheet).
1750
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400
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witness agreed that there was a meeting between Nkuriyekubona and representatives from a
nearby church concerning the evacuation of the refugees, but he could not recall it in detail.
The witness evacuated after being wounded by a shell on 1 June.1753
Ntabakuze Defence Witnesses DK-110 and DK-120
1600. Witnesses DK-110 and DK-120, Hutu members of the Para Commando Battalion,
said that, around 21 May 1994, the battalion participated in a military operation to break
through RPF lines surrounding its position near the École technique officielle (ETO). After
the operation, the Para Commando Battalion set up a camp at the Iwacu Centre in Kabusunzu
for about two days so that the soldiers could rest. They saw Ntabakuze there. Only a few
civilians were at the Centre when they arrived. The members of the Para Commando
Battalion did not leave it. The battalion then redeployed to Muyira commune, Butare
prefecture.1754
Ntabakuze Defence Witness DH-90
1601. Witness DH-90, who lived in Nyamirambo during the relevant events, testified that,
by May 1994, around 140 mostly Tutsi refugees were at the Saint Charles Lwanga Church,
which was adjacent to the Saint André College. Other Tutsi refugees were at the nearby Saint
Josephite Centre, the Beneberika Convent and the Carmelite Convent. The witness was
certain that no refugees remained at Saint André College, which had been attacked on 13
April. In view of this, as well as the witness’s familiarity with what happened in the area, he
considered it unlikely that soldiers killed several hundred refugees from the college or the
nearby Islamic Cultural Centre at the end of May.1755 The witness, who was at Saint Charles
Lwanga Church from March until June 1994, identified each of these geographically
proximate locations as well as prominent area roadblocks, which were manned by civilians,
on two maps and a series of photographs.1756
1602. Around 23 or 25 May, the Rwandan army established a military position at Saint
André College. The witness speculated that it might have been the Gisaka Battalion, and he
recalled two officers stationed there who might have been named Nkuriyekubona and
Hakizimana. The witness never heard the name Ntabakuze or about the presence of members
of the Para Commando Battalion in connection with the military position at the college.
However, he emphasised that he could be mistaken with respect to the exact identity of the
unit or the officers. After the Rwandan army arrived in Nyamirambo, the RPF began shelling
the army’s position. This caused a great deal of insecurity at the nearby church. In particular,
throughout the day on 30 May, the church was effected by a bombardment from the RPF
1753
T. 27 June 2005 pp. 64-65, 69; T. 28 June 2005 pp. 15-17. Witness DK-32 was not certain about the exact
date when the command post was set up at Saint André College.
1754
Witness DK-110, T. 12 July 2005 pp. 63-66; T. 13 July 2005 pp. 6-13, 26-28; Ntabakuze Defence Exhibit
143 (personal identification sheet); Witness DK-120, T. 5 July 2005 pp. 6-10, 31-33; Ntabakuze Defence
Exhibit 141 (personal identification sheet).
1755
T. 25 April 2005 pp. 6-7, 9, 32-33, 36-38, 54; T. 26 April 2005 pp. 15, 25-26. In recalling the chronology of
events, the witness relied on handwritten notes, which he prepared after arriving in Arusha. T. 26 April 2005 pp.
7-8. He had reviewed Witness DH-91’s diary in preparation of his testimony, describing it as a
contemporaneous and good account of the events. He noted slight differences due to their different experiences.
T. 26 April 2005 pp. 8, 10.
1756
T. 25 April 2005 pp. 11-28, 32; T. 26 April 2006 pp. 19, 27-28, 46; Ntabakuze Defence Exhibit 90 (Map of
Kigali identified by Witness DH-90); Ntabakuze Defence Exhibit 91 (Map of Nyamirambo identified by
Witness DH-90); Ntabakuze Defence Exhibit 89 (Photographs identified by Witness DH-90).
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position on Mount Rebero, which targeted the Rwandan army position, including one shell
which killed around 50 refugees.1757
1603. The bombardment continued the next day, 31 May, and the refugees at the Saint
Charles Lwanga Church fled to the nearby Ntwari school, where they joined others from the
Beneberika convent. Two Rwandan priests tried to negotiate in vain with local prefecture
officials for a military escort to take the refugees to Hôtel des Mille Collines or the Saint Paul
Centre in Kigali, where protection was being provided by gendarmes. They succeeded only in
obtaining a military escort for members of the Carmelite religious order, many of whom were
Tutsis. The refugees returned that evening to the Saint Charles Lwanga Church, making their
way across two roadblocks, after a gendarmerie captain prohibited them from staying the
night at the school. On their return, they found that other refugees had arrived from the
nearby Carmelite convent.1758
1604. On 3 or 4 June, Witness DH-90 met with the battalion commander at Saint André,
whom he “trusted”, and raised concerns about the safety of the refugees at the church during
the bombardment. The battalion commander agreed that it was dangerous and asked the
witness to accompany him to the prefecture office to discuss a possible evacuation with the
local authorities. After meeting privately with local officials, the commander told the witness
that the evacuation was not possible and that the refugees would have to wait for an exchange
between the government and the RPF.1759
1605. On 7 June, the Rwandan army engaged the RPF in the Kivugiza area, not far from the
church. Witness DH-90 heard shooting that evening and then met eight members of the
Josephite religious order, including Jean Damascene Ndayambaje, who said that around 80
refugees had been shot at the Saint Josephite Centre. The witness speculated that
Interahamwe perpetrated the attacks, but was not certain. On 8 June, Kigingi led an attack by
Interahamwe on the Saint Charles Lwanga Church. At the time, the witness was meeting with
a journalist, a representative of Pharmacists without Borders, and officers from UNAMIR and
the Rwandan gendarmerie. The witness suffered minor injuries from a gunshot, and the
journalist was injured. The gendarmerie officer chased away the assailants. On 9 June,
soldiers evacuated the refugees at the nearby Beneberika convent to the Saint Charles
Lwanga Church. The witness also met with a group of around 10 women who had been raped
by unknown assailants.1760
1606. Between 2.30 and 3.00 p.m. on 10 June, Kigingi returned with a small truck saying he
was going to evacuate the refugees to the Saint Paul Centre. Another person at the Saint
Charles Lwanga Church, Witness DH-91, contacted Colonel Ngirabatware of the
gendarmerie, who promised to send Captain Jean Chrysostome Ntirugirimbe. Kigingi’s group
attacked the church, trying without success to break open the doors with its guns and
traditional weapons. The assailants fired teargas into the church. The Interahamwe entered
and began killing the refugees with guns and grenades as soon as the doors were opened to
allow the smoke to escape and people to flee. A contingent of 12 gendarmes arrived, but
1757
T. 25 April 2005 pp. 33-34, 39-40; T. 26 April 2005 pp. 21, 33-34, 44-45.
T. 25 April 2005 pp. 38-39, 48-49; T. 26 April 2005 pp. 18, 45.
1759
T. 25 April 2005 pp. 38-40.
1760
T. 25 April 2005 pp. 50-51; T. 26 April 2005 pp. 6, 14, 29-31.
1758
Judgement and Sentence
402
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Captain Ntirugirimbe was overwhelmed and asked the witness to call Colonel Ngirabatware
for reinforcements.1761
1607. Witnesses DH-90 and DH-91 each went to see the commander at the Saint André
College position for help, but they were stopped by a sentry. According to Witness DH-90,
the commanders were engaged in battle with the RPF, so the witnesses could do nothing but
wait. A shell then struck the church injuring both witnesses with shrapnel. Witness DH-90,
who suffered only light injuries, tried to take Witness DH-91, who was hit in the chest and
losing blood, to the hospital in Kigali for treatment. On the way, Witness DH-90 passed the
truck brought by Kigingi and saw the assailants killing the refugees from the church,
throwing the corpses off the vehicle. The witness turned and took another route to the
hospital through a roadblock where the Interahamwe fired at them and immobilised their
vehicle. A local official tried to calm down the assailants and assisted the witness to reach the
hospital. Around 80 to 85 of the refugees at the church during this period survived.1762
Ntabakuze Defence Witness DH-91
1608. Witness DH-91 testified that he was in a position to closely follow the events in the
area surrounding the Saint Charles Lwanga Church, where he stayed from April to June 1994,
as well as the nearby Saint André College. The witness testified with the assistance of his
diary, which he recorded daily during the relevant events. A number of Hutu and Tutsi
civilians first sought refuge at Saint Charles Lwanga Church on 31 March 1994, fleeing
violence in Biryogo commune, following the death of a prominent CDR party member. After
the death of President Habyarimana, hundreds more arrived at the various religious
institutions in Nyamirambo area, including Saint André College, the Saint Josephite Centre,
the Beneberika Convent, and the Carmelite Convent. Numerous women, who sought refuge
at the Saint Charles Lwanga Church during this period, had been victims of rape.1763
1609. According to Witness DH-91, only two refugees remained at Saint André College
after 14 or 15 April 1994, following an RPF operation to remove the refugees, as well as an
attack by soldiers and militiamen. The priests from Saint André College informed the witness
about these events. As a result, he was certain that there was no incident at the end of May
where hundreds of refugees were taken from Saint André College, as well as the nearby
Islamic Cultural Centre, and killed by soldiers in Rwampara sector, even after the military
established a position in the area. Given the close proximity of the college and Rwampara to
the church as well as his active involvement with the situations facing refugees in the area, he
would have seen or heard about such an operation. He acknowledged that he remained in his
room with the curtains drawn on 30 May.1764
1610. On 22 May, Rwandan army soldiers took up a military position at Saint André
College, and the RPF began shelling the area. The witness was not certain which unit was
located at Saint André College, but he never heard references to either Ntabakuze or the Para
1761
T. 25 April 2005 pp. 51-52. Witness DH-90 referred to the gendarmerie captain as Jean Chrysostome
Uwimana. Witness DH-91 identified this officer as Jean Chrysostome Ntirugirimbe, but also noted that there
was a priest named Jean Chrysostome Uwimana. See T. 29 April 2005 pp. 3, 23. It appears that Witness DH-90
confused the two names. The Chamber uses Ntirugirimbe for the sake of consistency.
1762
Id. pp. 52-53; T. 26 April 2005 pp. 27, 29, 50.
1763
T. 28 April 2005 pp. 50-51, 57, 75-76, 79, 82-83; T. 29 April 2005 pp. 37-38, 40-41, 53. Witness DH-91
identified several photographs of the Saint Charles Lwanga Church and Saint André College, attesting to their
close geographic proximity. T. 28 April 2005 pp. 52-55.
1764
T. 28 April 2005 pp. 57-58, 78-79, 83-84; T. 29 April 2005 pp. 23-24, 67.
Judgement and Sentence
403
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Commando Battalion. On 25 May, Witness DH-90, another person at the church, spoke with
an officer at Saint André College named Nkuriyekubona, who agreed in view of the shelling
to evacuate the refugees at the Saint Charles Lwanga Church to the Saint Paul Centre. The
evacuation did not occur because authorisation was not forthcoming from officials at the
prefecture.1765
1611. On 31 May, the refugees from Saint Charles Lwanga Church went to the nearby
Ntawari school where they met other refugees from the Beneberika Convent. Prefect
Renzaho gave his verbal permission to evacuate the refugees to Saint Paul Centre, but they
never received written authorisation. That night a gendarme ordered the refugees to return
home and threatened them if they did not leave the school. However, Witness DH-91 was
able to negotiate the refugees’ return to the church through roadblocks manned by machetewielding assailants.1766
1612. Witness DH-91 testified that, between 3 and 5 June, Witness DH-90 sought the
assistance of General Gatsinzi, Colonel Hakizimana and prefecture officials on behalf of the
women and children as well as the Josphite Brothers who were being visited by militiamen.
Witness DH-91 received reports from the Josephite Centre that Interahamwe and soldiers
were checking their identification documents and mistreating the refugees there.1767
1613. On the afternoon of 7 June, assailants attacked the Saint Josephite Centre where
around 80 refugees were gunned down. Several surviving members of the Josephite religious
order, including Jean Damascene Ndayambaje, sought refuge at the Saint Charles Lwanga
Church, informing the witness what happened. On 8 April, two UNAMIR peacekeepers,
representatives from Pharmacists without Borders, a journalist as well as a local sub-prefect
visited the church. During the visit, a local Interahamwe leader named Kigingi and other
attackers surrounded the church around 2.00 or 3.00 p.m. and fired shots in the air. One of the
shots wounded the journalist. Soldiers accompanying the group quickly evacuated him. On 9
June, two senior gendarmerie officers named Ngirabatware and Munyakazi visited the church
and introduced Captain Jean Chrysostome Ntirugirimbe, the new gendarme responsible for
the area’s security. Witness DH-91 expressed the refugees concern over the increasing
shelling in the area. In the witness’s view, the gendarmes were very understanding and in
favour of evacuation.1768
1614. On 10 June, Kigingi, accompanied by other armed militiamen, arrived with a Mazda
pickup truck and offered to evacuate the women and children. The refugees then locked the
church door, and Kigingi tried to break it open with an ax and gunfire. When Kigingi could
not open the door, he threw teargas into the church, which killed a newborn baby. Witness
DH-91 slipped out and ran to Saint André College to seek help from the soldiers there. A
sentry told him that the officers were not available. The soldier added: “You have nothing to
do here. This is a military camp.” Several gendarmes arrived, including Ngirabatware,
Munyakazi and Ntirugirimbe, and evacuated some of the wounded religious personnel.1769
1765
T. 28 April 2005 pp. 77, 83-85; T. 29 April 2005 pp. 41, 55-57.
T. 28 April 2005 p. 85; T. 29 April 2005 pp. 3-4.
1767
T. 29 April 2005 pp. 4-6, 62.
1768
Id. pp. 8-11, 43. The witness indicated that he could distinguish gendarmes and soldiers by the colour of
their berets. Id. p. 24.
1769
Id. pp. 12-14, 44-46.
1766
Judgement and Sentence
404
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1615. At one point during the attack, a shell exploded severely wounding Witness DH-91.
Witness DH-90 tried to take him to the Red Cross hospital for treatment. As the witnesses
fled in a vehicle, they refused orders to stop near the market, and the assailants there shot at
their vehicle. A local official and a communal policeman arrived and successfully negotiated
with the assailants, who then pulled away the corpses on the road allowing them to pass.
Witness DH-91 saw the Saint Charles Lwanga Church’s pickup truck filled with corpses of
refugees from the church. He later reported to UNAMIR officials that, of the around 260
mostly Tutsi refugees at the church, only about 40 survived.1770
Deliberations
1616. The Prosecution has presented evidence of three different attacks near Saint André
College in the Nyamirambo area. The first involves the alleged killing of refugees from the
college and the IWACU Centre at the end of May 1994. The second and third attacks relate to
the Saint Josephite Centre and Saint Charles Lwanga Church from 7 to 10 June 1994.
(i) Killing of Refugees from Saint André College and the Iwacu Centre
1617. Witness DBQ was the only Prosecution witness to provide first-hand testimony about
the alleged direct role played by Kabiligi, Ntabakuze and General Bizimungu in connection
with the killing of several hundred Tutsi refugees from Saint André College and the nearby
Islamic Centre at the end of May 1994.1771 The Chamber has expressed concerns about other
aspects of his credibility (III.2.5.1; III.3.5.1; III.4.1.4). In addition, the evidence of Witnesses
DH-90 and DH-91, which the Chamber considers generally credible and reliable, as well as
corroborating documentary evidence, in many respects contradicts Witness DBQ’s account of
presence of Tutsi refugees at Saint André College at the end of May.1772
1618. Witnesses DH-90 and DH-91 were in close proximity to Saint André College and
actively followed the welfare of the refugees in the area, which Witness DH-91 recorded in
his diary. In the Chamber’s view, these witnesses would have been aware if an attack of this
nature occurred at the end of May. They provided convincing and corroborated evidence and
have no interest in offering testimony favourable to the Accused. Though it remains possible
that the event described by Witness DBQ could have happened without their knowledge, this
contradiction raises concern about Witness DBQ’s credibility.
1619. The Chamber is not satisfied on the basis of Witness DBQ’s evidence alone that
members of the Para Commando Battalion were stationed at Saint André College. There is no
question that around 22 May the Rwandan army established a position at Saint André
1770
Id. pp. 14-15, 49.
It follows from the Prosecution’s submissions that the events in early June 1994 recounted by Witness DBJ,
refer to a separate incident than the one at the end of May described by Witness DBQ. See Prosecution Closing
Brief, paras. 430-431. Witness AAA heard about the killing of refugees from Saint André College and the
IWACU Centre at the end of May. See T. 12 July 2004 pp. 85-91, 98. The Prosecution does not refer to this
aspect of the witness’s testimony in its summary of his evidence nor connect him to Saint André in its list of
witnesses supporting the event. See Prosecution Closing Brief, paras. 1469-1470, pp. 768-769, 837. It also does
not list Witness AAA as corroborating Witness DBQ’s testimony. Id. para. 1110. In view of this, as well as
credibility concerns expressed in other sections of the judgement (III.4.1.11-13), the Chamber does not consider
that Witness AAA provides corroboration for Witness DBQ.
1772
See also Prosecution Exhibit 334 (Diary of Witness DH-91); Prosecution Witness DBJ, T. 25 November
2003 p. 6 (noting the absence of attacks between 8 April and 7 June at the nearby Saint Josephite Centre).
1771
Judgement and Sentence
405
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
College. However, Witness DH-90, who interacted with the commander of the position at
Saint André College, did not hear anyone mention the presence of the Para Commandos or
Ntabakuze. This evidence must be viewed with a measure of caution, notably, because he
acknowledged a lack of familiarity with various military units. However, given his frequent
interaction with the soldiers there, it is sufficient to raise further doubts about Witness DBQ’s
uncorroborated account, in particular when coupled with the evidence of Witnesses DK-32,
DK-110 and DK-120 on this point.
1620. It follows from the evidence of Ntabakuze as well as Witnesses DK-32, DK-110 and
DK-120 that the Para Commando Battalion set up camp on 22 May at the Iwacu Centre in
Kabusunzu before leaving the Kigali-East sector for Butare prefecture. According to Witness
DH-90, the Centre was only a few minutes away from Saint André College.1773 These
witnesses indicated that the battalion stayed only for a few days at the Centre. The
Prosecution has not presented any compelling evidence to counter this. In the Chamber’s
view, the fact that the battalion was briefly near the Saint André College is not sufficient to
corroborate Witness DBQ’s testimony of the alleged killings in Rwampara sector at the end
of May. Accordingly, for the above reasons, the Chamber cannot accept Witness DBQ’s
account of what happened at Saint André College, in the absence of corroboration by reliable
evidence.
1621. In the Chamber’s view, Witness XXJ’s evidence on the alleged killing of orphans
near Saint André College does not provide such corroboration. Initially, there is no clear
indication from his account that it refers to the same incident as described by Witness DBQ.
Moreover, the Chamber has concerns about the reliability of Witness XXJ’s testimony on this
point. His account of the alleged attack is entirely second-hand from an unidentified source
and acquired well after the event.1774 His testimony does not provide key details, such as
timing of the event or the identity of the assailants.1775 It has also not been proven beyond
reasonable doubt that Kabiligi had command authority (IV.1.3).
(ii) Saint Josephite Centre
1622. Based on the evidence of Witnesses DH-90 and DH-91, the Chamber finds that, from
22 May through 7 June 1994, there were several hundred mostly Tutsi refugees scattered at
various religious institutions near Saint André College, including the Saint Charles Lwanga
1773
T. 25 April 2005 p. 13.
T. 14 April 2004 p. 50 (“Q. And, sir, do you know if you did conduct a search where the orphans were? A. I
don’t know whether there was a search at that place, but what I was able to hear is when he told them to go and
conduct a check at the place from where the gunshots were coming, but I do not know whether they conducted a
search there or not. Q. Sir, do you know what happened to the orphans? A. I don't know what happened
immediately after that. But I subsequently heard people say that there were orphans who had been killed in
Nyamirambo, but that information came to me much later.”); T. 16 April 2004 p. 24 (“I listened to discussions
over the radio. I do not know whether these orphans were really there. I did not know whether people went to
this area to comb it, and later on, I received information about orphans had been killed at Nyamirambo. I do not
know that there is a link between these two events. I can’t give any specific issues.”).
1775
Furthermore, Witness XXJ’s testimony concerning Kabiligi’s discussions over the radio network is
uncorroborated. His testimony that Kabiligi did not use a code sign when operating on the network (T. 16 April
2004 p. 13), appears to be inconsistent with both the Rwandan army’s regulations on transmissions and the
general evidence from other witnesses concerning radio communication. See, e.g., Bagosora Defence Exhibit 32
(Règlement sur les Transmissions); Witness DA, T. 17 November 2003 pp. 12-13; Witness A-4, T. 22 July 2005
pp. 52-53, T. 25 July 2005 p. 22.
1774
Judgement and Sentence
406
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Church and the Saint Josephite Centre. After the Rwandan army established a military
position in the area, shelling and other combat operations further complicated the already
difficult living conditions of the refugees. On several occasions, Witness DH-90 made efforts
to secure the evacuation of the refugees, speaking with the army commander at Saint André
College, the gendarmerie and officials from the prefecture. The gendarmerie and the
commander at Saint André College seemed supportive of these efforts. However, prefecture
officials refused to give written authorisation for the movement. This is corroborated in part
by Witness DK-32.
1623. The Chamber considers that Witness DBJ provided a generally credible first-hand
account of the attack on 7 June at the Saint Josephite Centre, which is corroborated in certain
respects by Witnesses DH-90 and DH-91.1776 Based on his evidence, the Chamber finds that,
on the afternoon of 7 June, soldiers armed with guns checked the identity of the refugees at
the Saint Josephite Centre, leading around 100 Tutsis outside of the Centre’s compound. The
soldiers lined up the refugees and shot them to death. Witness DBJ and several religious
personnel then fled to Saint Charles Lwanga Church, where they recounted what had
transpired.
1624. The evidence of Witnesses DH-90 and DH-91, who heard about the attack from the
survivors, corroborates Witness DBJ’s account to some degree. In particular, Witness DH91’s diary, which was recorded contemporaneously with the events, contains the following
entry for 7 June: “Around 14.10 hours, attacks by soldiers and Interahamwe, as well as
thieves and thugs: we believe, that most of the eighty refugees are dead.”1777 Witness DBJ
and the diary of Witness DH-91 refer to the assailants as soldiers. Witness DH-90, however,
speculated that the assailants were Interahamwe. On this point, the Chamber prefers the firsthand evidence of Witness DBJ, who was searched and interrogated by a soldier in a “clean
military uniform” shortly before the assailants executed the refugees.
(iii) Saint Charles Lwanga Church
1625. Witnesses DBJ, DH-90 and DH-91 each testified about a series of attacks at Saint
Charles Lwanga Church by Interahamwe which followed the killings at the Saint Josephite
Centre. Their evidence is first-hand and largely consistent. The Chamber finds it generally
credible and reliable. It follows from their evidence that on 8 June 1994, Kigingi, a
militiaman, led a brief attack on the church, while representatives of UNAMIR, Pharmacists
Without Borders, the press, the gendarmerie and the prefecture were meeting with individuals
there. The gendarmerie pushed back the assailants.
1626. Witnesses DBJ, DH-90 and DH-91 also testified about a significant attack on the
church, which occurred on 10 June 1994. While Witness DBJ placed the attack on the
afternoon of 9 June, it is clear from his description of how it unfolded that each of the
witnesses were referring to the same attack. In view of the contemporaneous account of the
events recorded in Witness DH-91’s diary, the Chamber considers that his version of when
the attack occurred is more reliable. Based primarily on Witnesses DBJ, DH-90 and DH-91,
1776
For the most part, the Defence does not contest Witness DBJ’s evidence. The Bagosora Defence asserts that
his testimony is contradicted by Witnesses DH-90 and DH-91. See Bagosora Closing Brief, paras. 1684-1686.
As explained below, the Chamber considers that these Defence witnesses largely corroborate the main aspects
of Witness DBJ’s account. The other Defence teams do not address his testimony in their Closing Briefs.
1777
Prosecution Exhibit 334 (Diary of Witness DH-91), p. 18.
Judgement and Sentence
407
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
the Chamber finds that, around 3.00 p.m. on 10 June, Kigingi led a massive attack, firing tear
gas, guns and grenades at the refugees who had locked themselves in the church, after
refusing his offer to evacuate them.
1627. Witnesses DH-90 and DH-91 sought the assistance of the gendarmerie as well as the
soldiers positioned at Saint André College. An army sentry at the college rebuked their
attempts to speak with the officers at the camp. The gendarmes who arrived appeared
overwhelmed by the attack and only evacuated Witness DBJ and a selected group of religious
personnel.1778 Witnesses DH-90 and DH-91 were injured by an exploding shell and in their
flight from the church saw the corpses of refugees from the church.
(iv) Conclusions
1628. The Prosecution has not proven beyond reasonable doubt the allegation by Witness
DBQ that Kabiligi and Ntabakuze were present at Saint André College at the end of May
1994 and ordered the murder of Tutsi refugees from the college and the Iwacu Centre. It has
also not established that Kabiligi was involved in the killing of orphans in the Nyamirambo
area.
1629. The Prosecution has proven beyond reasonable doubt that, on 7 June 1994, soldiers
killed Tutsi refugees at the Saint Josephite Centre and that, on 10 June, Interahamwe attacked
and killed Tutsis at Saint Charles Langwa Church. The Chamber, however, is not satisfied
that there is sufficient reliable evidence to identify the unit of the soldiers who participated in
the attack at the Centre or to implicate the Accused in the attack at the Church. The evidence
reflects that Ntabakuze and the Para Commando Battalion were in Gitirama prefecture.
Furthermore, the Chamber has not found that Bagosora or Kabiligi had general command
authority over the Rwandan military at the time of the attacks (IV.1.2-3), and there is no
evidence that they were observed on the scene or otherwise were involved in the attack.
Bagosora also has an alibi for this period (III.6.1).
1630. Accordingly, the Chamber considers that the Prosecution has not proven beyond
reasonable doubt that Bagosora, Kabiligi or Ntabakuze participated in the killing of Tutsi
refugees in the area surrounding Saint André College.
1631. The Chamber has previously determined that the Defence had notice of these
allegations.1779 In view of its findings, there is no need to revisit these decisions.
1778
See also Ntabakuze Defence Exhibit 41 (United Nations Investigation Report of Nyamirambo Killings,
dated 17 June 1994), which referred to killings perpetrated by militiamen at Saint Charles Lwanga Church on 10
June and attempts by small gendarme force to intervene.
1779
Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, para. 45; Decision on
Admissibility of Evidence of Witness DBQ (TC), 18 November 2003, paras. 17, 21, 27.
Judgement and Sentence
408
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.2
4.2.1
Gisenyi Prefecture
Saint Peter’s Centre, 20 April
Introduction
1632. The Nsengiyumva Indictment alleges that, on 20 April 1994, Nsengiyumva ordered
Omar Serushago and Bernard Munyagishari to abduct around 20 Tutsi refugees from “a
house in Gisenyi” and to kill them at the Commune Rouge. The Prosecution submits that this
house is the Saint Peter’s Centre in Gisenyi town. It also contends that Nsengiyumva
protected Serushago and Thomas Mugiraneza, another assailant who participated in the
attack, from Colonel Nzungize, the commander of the Bigogwe training camp. His Hutu
sister Felicité Niyitegeka was killed after trying to protect the refugees. Reference is made to
Witnesses Omar Serushago and OAB.1780
1633. The Nsengiyumva Defence submits that the Prosecution’s evidence lacks credibility
and is contradictory. The evidence of Witnesses LK-2, ACL-1, CF-1, RO-1 and STAR-2
shows that Nsengiyumva did not play a role in these killings.1781
Evidence
Prosecution Witness Omar Serushago
1634. Omar Serushago, a Hutu and Interahamwe, was the head of the La Corniche
roadblock at the customs checkpoint in Gisenyi town in April 1994. Between 1.00 and 2.00
p.m. on 20 April, Nsengiyumva came to that roadblock and ordered Serushago and another
Interahamwe, Thomas Mugiraneza, to go to the Saint Peter’s Centre and kill the Tutsi
refugees there. Serushago then called Bernard Munyagishari, the head of the Interahamwe in
Gisenyi prefecture, who met them at the Centre. Serushago and Mugiraneza drove to the
Centre in a minibus belonging to the Jesuit order. They abducted 19 Tutsi refugees and a
Hutu named Felicité Niyitegeka, who tried to prevent the assailants from taking the refugees.
Niyitegeka was the sister of Colonel Nzungize, the commander of the Bigogwe training
camp.1782
1635. The assailants took Niyitegeka and the Tutsi refugees to the Commune Rouge, a
cemetery in Gisenyi town, and killed them there. Serushago personally shot three women and
one man during the attack, which ended around 3.00 p.m. The same evening, Serushago saw
Nsengiyumva at either the Palm Beach Hotel or Hôtel Méridien, at a meeting he was having
with Joseph Nzizorera, Jean-Bosco Barayagwiza and Juvenal Uwilingiyimana. Serushago
confirmed that the killings at the Saint Peter’s Centre had been completed and Nsengiyumva
1780
Nsengiyumva Indictment, para. 6.23; Prosecution Closing Brief, paras. 108-109, 441, 1018(a), 1020,
1028(h), p. 886; The “St. Peter Centre” is also referred to as “Bishop Bigirumwami’s place”, the “St. Pierre
Convent”, “St. Pierre Centre” or the “St. Peters Convent”. The Chamber uses “Saint Peter’s Centre”.
1781
Nsengiyumva Closing Brief, paras. 1453-1458, 1780-1792, 1979-1980, 2128, 2259, 2272, 2435, 2455-2456,
2632, 2642-2643, 2670-2685; T. 1 June 2007 pp. 5-6.
1782
T. 18 June 2003 pp. 3, 20, 26-29, 34-36; T. 19 June 2003 pp. 1-6; Prosecution Exhibit 54 (personal
identification sheet). On 5 February 1999, pursuant to a plea agreement, Omar Serushago was found guilty by
the Tribunal of genocide, murder, extermination and torture and was sentenced to 15 years imprisonment. See T.
18 June 2003 pp. 2-3, 41; Serushago Trial Judgement, p. 15. His appeal against this sentence was denied on 6
April 2000. See Serushago Appeal Judgement, p. 2.
Judgement and Sentence
409
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
congratulated the Interahamwe for carrying out a good job. He and the other officials were
not concerned about the death of Felicité Niyitegeka and told the Interahamwe to continue
with their work. Nsengiyumva later intervened when Colonel Nzungize sent soldiers from his
camp to avenge the death of his sister and kill Serushago. At some point in June,
Nsengiyumva allowed Serushago and Mugiraneza to seek refuge in the rooms of Nzizorera
and Uwilingiyimana at the Hôtel Méridien for their own protection.1783
Prosecution Witness OAB
1636. Witness OAB, a Hutu living in Gisenyi town, testified that, a few days after the
government moved to Gisenyi, he saw Serushago, Mugiraneza and Munyagishari taking
around 100 Tutsi refugees from the Saint Peter’s Centre and loading them onto two
minibuses belonging to a religious order. According to the witness, some of the refugees were
killed at the Centre while the others were taken to the Commune Rouge to be killed. The
witness saw one body at the Centre. One of the victims, a Hutu woman, who was trying to
protect the refugees, was the sister of Colonel Nzugize. The witness heard that, as a result of
her death, Nsengiyumva had to intervene to protect Serushago from Nzugize, who wanted to
avenge the death of his sister.1784
Nsengiyumva
1637. Nsengiyumva stated that he did not send Tutsi refugees to the Saint Peter’s Centre. He
did not have the authority to deploy soldiers to protect private residences, which was the
responsibility of the gendarmerie. Neither did he offer Serushago protection after the killings,
as the identity of the perpetrators remained unknown for some time afterwards. Colonel
Nzungize was a colleague and he had no involvement in the killing of his sister.1785
Nsengiyumva Defence Witness ACL-1
1638. Witness ACL-1, a Hutu priest, arrived at the Saint Peter’s Centre on 4 April 1994 to
take part in a spiritual retreat. On 7 April 1994, 10 Tutsi refugees arrived at the Centre
followed by a number of others in the following days. On 9 April, two gendarmes were
posted there after a request for protection was made to the prefecture administration. The
gendarmes stayed for approximately five or six days, and then they were deployed elsewhere.
By 15 or 16 April, most of the approximately 100 Tutsis who had sought refuge at the Centre
fled across the border into Zaire.1786
1639. Between 19 and 21 April, a group of young people armed with traditional weapons
attacked the Centre. Witness ACL-1 did not see Serushago among the attackers; their leader
was a man named Damas. The assailants forced the remaining refugees at the Centre to kneel
and began assaulting them. Felicité Niyitegeka, the spiritual leader of the Centre, tried to
intervene. She told the attackers that she was the sister of Colonel Nzungize. The assailants
decried Nzungize as an “Inyenzi”. They then loaded the witness and 20 to 30 persons at the
1783
T. 18 June 2003 pp. 27-29, 36; T. 19 June 2003 pp. 6-13.
T. 24 June 2003 pp. 41, 59-60; T. 25 June 2003 pp. 34-39, 42; Prosecution Exhibit 58 (personal
identification sheet). Witness OAB stated that the Tutsi refugees arrived at the Saint Peter’s Centre after
Nsengiyumva forced them to leave the Hôtel Méridien and then the local MRND office.
1785
T. 6 October 2006 pp. 19-21.
1786
T. 23 March 2006 pp. 6-9, 17, 36; Nsengiyumva Defence Exhibit 168 (personal identification sheet).
1784
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Centre into a minibus and drove them to the cemetery to be killed. The witness survived
because he was protected by one of the assailants.1787
Nsengiyumva Defence Witness LK-2
1640. Witness LK-2, a Hutu gendarme, said that two gendarmes were sent to the Saint
Peter’s Centre on 5 April 1994, but were subsequently assigned to other duties because there
were a number of other requests and the area seemed secure. At some later point,
Interahamwe attacked the Centre and abducted and killed the mostly young women who were
there.1788
Nsengiyumva Defence Witness CF-1
1641. Witness CF-1, a Hutu, lived in Gisenyi town. He was a friend of Serushago, who told
the witness that in late June 1994, he and Thomas Mugiraneza abducted and killed
approximately 30 mostly female refugees from the Saint Peter’s Centre. Among those killed
was Colonel Nzungize’s sister, a Hutu, who had been shot because she had intervened and
tried to prevent the killings. After this event, Colonel Nzungize arrived in Gisenyi town from
the Bigogwe training camp to avenge the death of his sister, and Serushago went into hiding
for a few days. Serushago did not mention to the witness that Nsengiyumva had been
involved in connection with the event at Saint Peter’s Centre.1789
Nsengiyumva Defence Witness STAR-2
1642. Witness STAR-2, a Hutu, lived and worked near the La Corniche roadblock in
Gisenyi town. After 9 April 1994, between 20 and 25 refugees arrived at the nearby Saint
Peter’s Centre, which was guarded at the time by two gendarmes. Around 20 April, the
refugees were murdered by Serushago and Thomas Mugiraneza at the Commune Rouge. She
learned this information from one of the survivors of the attack as well as Colonel Nzungize,
whose Hutu sister Felicité was killed in the attack. According to the witness, Nsengiyumva
gave Nzungize soldiers to assist in locating Felicité’s body. She did not see Serushago or
Mugiraneza after the attack.1790
Nsengiyumva Defence Witness RO-1
1643. Witness RO-1, a Hutu soldier at the Gisenyi military camp, testified that he heard
about an incident where a number of civilians were abducted and killed, including the sister
of Colonel Nzungize, the commander of the Bigogwe training camp. The witness did not hear
that any soldiers were involved in the attack.1791
Deliberations
1644. It is clear that Serushago played a prominent role in the abduction and killing of
approximately 20 mostly Tutsi refugees from the Saint Peter’s Centre in Gisenyi Town
around 20 April 1994. He pleaded guilty before the Tribunal to participating in the attack and
1787
T. 23 March 2006 pp. 9-13, 15, 19, 37-39.
T. 19 April 2005 pp. 2, 26-28; Nsengiyumva Defence Exhibit 73 (personal identification sheet).
1789
T. 29 November 2005 pp. 16-20, 26; Nsengiyumva Defence Exhibit 125 (personal identification sheet).
1790
T. 28 February 2006 pp. 4-5, 21-24, 44-47; Nsengiyumva Defence Exhibit 143 (personal identification
sheet).
1791
T. 27 July 2005 pp. 15-16; Nsengiyumva Defence Exhibit 98 (personal identification sheet).
1788
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in personally killing four of the refugees at the Commune Rouge.1792 Serushago also admitted
having committed this crime in the present trial.1793 His role in the killing is corroborated by
several witnesses. Most of them heard about it but Witness OAB personally saw him taking
the refugees away from the Centre in a mini-bus.1794 It also follows from Serushago’s
evidence that Felicité Niyitegeka, the Hutu sister of Colonel Nzungize, was among those
killed.
1645. The main issue for the Chamber is whether Nsengiyumva ordered Serushago to kill
the refugees. Only Serushago testified that Nsengiyumva came to the La Corniche roadblock
and ordered killings. He has also mentioned this in previous statements to the Tribunal.1795
Apparently, he did not include Nsengiyumva when he gave an account of this event to
Witness CF-2. As Serushago has been convicted of genocide and was a direct participant in
the attack the Chamber views his evidence with caution. It will therefore not accept his
testimony that Nsengiyumva ordered the killings without corroboration.1796
1646. Witness OAB provided some second-hand testimony, but only relating to
Nsengiyumva’s subsequent protection of Serushago. The witness suggested that the event
happened at some point after the government relocated to Gisenyi prefecture, which the
Chamber notes occurred in June and not in April as suggested by Serushago. Further, during
his testimony, Witness OAB stated that hundreds of women, children and elderly were
abducted from the Saint Peter’s Centre. This description differs from Serushago’s testimony.
It also contradicts the witness’s written statement given to Tribunal investigators signed in
January 2000, in which he stated that those abducted from the Centre were wealthy Tutsis,
who had been moved from the Hôtel Méridien.1797 Consequently, the Chamber does not
consider his evidence sufficiently reliable to adequately corroborate Serushago’s account.
1647. Accordingly, the Prosecution has not proven beyond reasonable doubt that on 20
April 1994, Nsengiyumva ordered Serushago to abduct the refugees from the Saint Peter’s
Centre and to kill them at the Commune Rouge.
4.2.2
Stanislas Sinibagiwe, May
Introduction
1648. The Nsengiyumva Indictment alleges that, from April to July 1994, Nsengiyumva
ordered soldiers and militiamen to exterminate the Tutsi population and its accomplices. In
particular, the Prosecution contends that he ordered the abduction and killing of the director
1792
Serushago Trial Judgement, para. 25 (ix).
T. 19 June 2003 p. 5.
1794
Witness CF-1 heard that the attack occurred in June. In the Chamber’s view, this evidence still provides
some corroboration.
1795
Serushago Trial Judgement, para. 25 (ix) mentions that the event took place “on the orders of Anatole
Nsengiyumva”. This also follows from Nsengiyumva Defence Exhibit 17 (undated statement by Omar
Serushago).
1796
The Chamber notes that a similar conclusion was reached in the Nahimana et al. case. See Nahimana et al.
Trial Judgement, para. 824.
1797
Nsengiyumva Defence Exhibit 23 (statement of 28 January 2000). The statement was based on two
interviews on 16 September 1999 and 28 January 2000.
1793
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of the school printing house, Stanislas Sinibagiwe. Reference is made to Witnesses OAB and
OAF.1798
1649. The Nsengiyumva Defence reiterates that the allegation is not pleaded in the
Indictment. It also argues that the Prosecution’s evidence lacks credibility and is contradicted
in part by Witnesses STAR-2 and TN-1.1799
Evidence
Prosecution Witness OAB
1650. Witness OAB, a Hutu driver who lived in Gisenyi town, testified that he saw Omar
Serushago stop the director of the school printing house at the La Corniche border crossing
between Gisenyi and Goma. He could not recall the date of this incident. The director was
accompanied by the prefect and the witness believed the prefect was trying to assist him
crossing the border. Upon arriving at the roadblock in front of Serushago’s house, a short
distance from the border, the director was taken out of his vehicle. Nsengiyumva was present
before his arrest, and Félicien Kabuga arrived afterwards. The director was placed in a
minibus to be taken to the Commune Rouge. Serushago later told the witness that
Nsengiyumva and Kabuga ordered the killing of the director.1800
Prosecution Witness OAF
1651. Witness OAF, a Hutu driver in 1994, frequently travelled with goods between Gisenyi
town and Goma, Zaire, several times a day. On one of those occasions, he saw a man, who
hailed from Byumba prefecture, be stopped at the roadblock near Omar Serushago’s house
and the border crossing. He could not recall the date of this incident. The roadblock was
manned by Interahamwe, such as Omar Serushago, Bernard Munyagishari, Hassan Gitoki
and Thomas. The individual who was stopped, had authorisation from Prefect Charles
Zilimwabago to cross the border and was even being driven by the prefect’s driver. Extensive
discussions followed between the Interahamwe and the immigration officials at the border
crossing and eventually Nsengiyumva and the prefect were summoned. After their arrival, the
witness heard Nsengiyumva tell Thomas to take the man away. According to the witness,
Thomas and his group were charged with taking people to the Commune Rouge. An
immigration official later told the witness that the man had been killed.1801
Nsengiyumva Defence Witness STAR-2
1652. Witness STAR-2, a Hutu, lived and worked near the La Corniche border crossing in
Gisenyi town in 1994. She knew Stanislas Sinibagiwe, a Hutu, who worked at the school
printing press. At the end of April, the witness assisted Sinibagiwe’s Tutsi wife, who felt
1798
Nsengiyumva Indictment, paras. 6.16, 6.22-6.23, 6.28; Prosecution Closing Brief, paras. 486, 1023 (b), 1028
(n); T. 28 May 2007 pp. 15-16. As explained below, the victim is sometimes called Stanis Simbizi.
1799
Nsengiyumva Closing Brief, paras. 291, 803-810, 1462-1465, 1480-1483, 2630, 3032-3033; T. 31 May
2007 pp. 62-63.
1800
T. 24 June 2003 pp. 41-42; T. 25 June 2003 pp. 40, 48-51; Prosecution Exhibit 58 (personal identification
sheet). Witness OAB did not mention the proper name of the director of the school printing house. The evidence
of this witness was solicited by the Defence during cross-examination, a couple of days after the testimony of
Witness OAF (see below). The Chamber recalls that the Commune Rouge is a cemetery located in Gisenyi town
where assailants brought people to be killed.
1801
T. 23 June 2003 pp. 20-21, 23-24, 29-32, 61-62; Prosecution Exhibit 56 (personal identification sheet).
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
threatened, to cross the border into Zaire after seeking approval from Nsengiyumva. The
witness learned from a friend, who, in turn, had heard from militiamen, that Interahamwe
killed Sinibagiwe in Gisenyi in early May. She did not hear that Nsengiyumva was
involved.1802
Nsengiyumva Defence Witness TN-1
1653. Witness TN-1, a Hutu government and political official, testified that Stanislas
Sinibagiwe, a Hutu from Byumba prefecture, was the director of the school printing press,
which was part of the Ministry of Education. Sinibagiwe was a well-known member of the
MDR party. At some point in early May 1994, the witness heard that Sinibagiwe was killed.
Later, when the witness arrived in Gisenyi prefecture, one of the employees of the school
printing press told him that Serushago and his militiamen killed Sinibagiwe after he went to
change money. Witness TN-1 stated that Sinibagiwe was killed for money, but noted that he
was also suspected of being an RPF accomplice. The witness did not hear that Nsengiyumva
played a role in the crime.1803
Deliberations
1654. The evidence shows that militiamen killed Stanislas Sinibagiwe, a Hutu printing press
director. Witnesses OAB and OAF both provided direct testimony about the events leading to
his death. Witness OAF did not identify the victim by name or occupation but the Chamber is
satisfied that he was referring to the printing press director given his description of the event
and his reference to the victim’s origins in Byumba prefecture. Both accounts describe an
individual arriving at the roadblock in the prefect’s vehicle and with his authorisation to cross
the border. The witnesses were unable to provide even an approximate date for the incident,
but the second-hand testimony of Witnesses STAR-1 and TN-1 suggest that it most likely
occurred in May 1994.
1655. The main question for the Chamber is whether Nsengiyumva was involved in the
crime. There are differences between the two testimonies. Witness OAB placed
Nsengiyumva at the roadblock prior to Sinibagiwe’s arrival, while Witness OAF stated that
the Accused was summoned afterwards. Furthermore, Witness OAB referred to Serushago
stopping Sinibagiwe, whereas Witness OAF did not describe Serushago’s role but simply
noted his frequent presence at the roadblock. In the Chamber’s view, these discrepancies do
not in themselves affect the witnesses’ credibility. Considerable time has elapsed since this
event and that they may have watched different sequences as the event unfolded.
1656. When considering each of these two testimonies, additional question arise. Witness
OAB did not hear Nsengiyumva give any order to take the director away but was told by
Serushago afterwards. Asked about Nsengiyumva’s presence, he answered that Nsengiyumva
was at the roadblock before and during the arrest but only after several questions.1804 In
contrast to this impression of evasiveness, he responded precisely and directly that Félicien
Kabuga was present. This is noteworthy in view of his statement in January 2000 to Tribunal
investigators, which focused on Kabuga and contained no reference to Nsengiyumva in
1802
T. 28 February 2006 pp. 4, 16-19; Nsengiyumva Defence Exhibit 143 (personal identification sheet).
T. 2 March 2006 pp. 53, 64-66; Nsengiyumva Defence Exhibit 147 (personal identification sheet).
1804
T. 25 June 2003 pp. 48-49.
1803
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
connection with the director’s killing.1805 Other parts of the statement did implicate
Nsengiyumva in alleged criminal conduct and it is therefore surprising that the witness did
not mention him if he was present during the event.
1657. Serushago, who purportedly told Witness OAB that Nsengiyumva ordered the killing,
testified generally about the Accused’s authority over the roadblock. The Prosecution did not
question him on the killing of the printing press director. The Chamber observes that in two
previous statements, Serushago made no mention of Nsengiyumva’s presence during the
incident at the roadblock. In an interview given in February 1998, he explained that the
director was recognised by Protais Zigiranyirazo. Serushago then arrested him and ordered an
Interahamwe to take him to the Commune Rouge.1806 His statement to Tribunal investigators
in June 2001 provided a similar version.1807 Also Serushago’s judgement is based on the
premise that the director was identified by Zigiranyirazo and that Serushago arrested him and
ordered him killed. There is no mention of Nsengiyumva being present during this event.1808
1658. Based on a detailed consideration of Witness OAB’s testimony and related evidence,
the Chamber is not persuaded by his account that Nsengiyumva was present at the roadblock
when the printing press director arrived.
1659. Turning to Witness OAF, the Chamber notes that his statement to Tribunal
investigators in April 1999 does not mention the printing press director.1809 Even though the
statement focuses on Bernard Munyagishari it extensively describes Nsengiyumva’s
interaction with the Interahamwe. When questioned about this discrepancy, the witness
insisted that he spoke about the incident on different occasions when he met a second time
with Tribunal investigators.1810 However, there is no evidence that such a statement exists.1811
1805
Nsengiyumva Defence Exhibit 23 (statement of 28 January 2000), which refers to Félicien Kabuga, Omar
Serushago, Munyagishari, Thomas and Prefect Zilimwagabo. When the statement was read out to him, Witness
OAB affirmed it but the way the Defence asked its questions may not have made it clear to him that the
underlying issue was the lack of reference to Nsengiyumva: “Q. … Is that your statement? A. Those statements
were made by me. Q. And the contents are true? A. All that is said here reflect the reality. Mr. Bw’omanwa: My
Lord, I rest my cross-examination. …”. See T. 25 June 2000 pp. 50-51.
1806
Nsengiyumva Defence Exhibit 17 (statement signed in Nairobi, Kenya on 3 February 1998): “About a week
later, radio RTLM made a description of Stanis Simbizi. When he arrived at the roadblock, he was recognised
by the President’s brother-in-law, Protais Zigiranyirazo alias “Z”. I arrested him and handed him over to
Thomas Mugiraneza, who took him to the cemetery …”).
1807
Nsengiyumva Defence Exhibit 17 (statement of 19 June 2001): “At that time, the RTLM … put out a
bulletin on Stanislas Simbisi, citing his name and information to facilitate his identification. … Mr. Simbizi, a
moderate Hutu, was the Director of the school printing press (IMPRISCO) in Kigali. He was accused of being
an RPF accomplice and he was wanted. … [T]he Préfet of Gisenyi, Dr. Charles Zilimwabagabo came to ask us
to remove the roadblock at the same time Stanislas was going through. I stopped him and almost
simultaneously, Protais Zigiranyirazo arrived and told us that the individual in question was Stanislas Simbizi.
He ordered us to take him away and kill him.” The statement also contains a remark to the effect that the prefect
was against the killings whereas the Interahamwe had to obey Anatole Nsengiyumva. This formulation is
general and not specifically related to the incident at the roadblock.
1808
Serushago Trial Judgement, para. 25 (xiii). It follows from the context, read together with Serushago’s
previous statements, that this section relates to the director. The Chamber notes that according to para. 25 (xii),
Nsengiyumva was one of several persons who at a meeting in May or June 1994 drew up a list of people to be
eliminated, including the director. However, the Prosecution evidence was that Nsengiyumva gave an order at
the roadblock, not that he singled out the director in advance.
1809
T. 23 June 2003 p. 22; Nsengiyumva Defence Exhibit 21 (statement of 19 April 1999).
1810
T. 23 June 2003 pp. 62-63, 73.
1811
Witness OAF gave a second statement to Tribunal investigators on 17 December 2003 as an “Additional
Note” (RP 10912) to his statement of April 1999, which was entered as Nsengiyumva Defence Exhibit 21. The
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In the Chamber’s view, it is doubtful that Tribunal investigators would fail to write down
information from a potential witness about Nsengiyumva allegedly ordering the Interahamwe
to ensure that a person is killed. This discrepancy between the testimony and the statement as
well as Witness OAF’s explanation for it raise questions about his credibility in relation to
this incident.1812
1660. For the above reasons, the Chamber declines to rely on the accounts of Witnesses
OAB and OAF concerning Nsengiyumva’s involvement without further corroboration.1813
Accordingly, the Prosecution has not proven beyond reasonable doubt that Nsengiyumva
ordered the killing of Stanislas Sinibagiwe, the director of a printing press, in May 1994.
1661. The Chamber held during the trial that Nsengiyumva had adequate notice of his
alleged role in this crime.1814 Given its findings, it is not necessary to revisit the decision.
4.2.3
Four Tutsi Women, La Corniche Roadblock, Early June
Introduction
1662. The Nsengiyumva Indictment alleges that, between April and July 1994,
Nsengiyumva supervised roadblocks in Gisenyi prefecture where Tutsis were identified and
killed either on the spot or at the Commune Rouge. Furthermore, between 8 April and midJuly 1994, Nsengiyumva ordered militiamen and solders to exterminate Tutsi civilians. The
Prosecution submits that at the La Corniche roadblock, Nsengiyumva searched buses
attempting to cross the border between Gisenyi town and Zaire and then ordered Simon
Bikindi and Enoch Kayondo to take several Tutsi women to the Commune Rouge. Reference
is made to Witness DCH.1815
Prosecution disclosed the statement to the Defence and to the Chamber in anticipation of Witness OAF’s
testimony. The statement does not mention Nsengiyumva and was not tendered as an exhibit.
1812
In addition, the Chamber notes an apparent internal inconsistency in his evidence. At several points during
his testimony, he insisted that he heard Nsengiyumva give the order to Thomas to take Sinibagiwe away. See T.
23 June 2003 p. 23 (“I heard Anatole tell Thomas to take those people away – that person, rather. He told him to
take away that person.”). In other parts of it, he suggests that he heard about this order second-hand from
customs officers. See id. pp. 31-32, 62 (“On my return, I asked the customs officers what had happened in
regard to that person, and they told me that Anatole had issued orders to Thomas to take away that person and
that he had been killed … I came back, and I asked them how things went, how did the situation evolve, and
they told me that that person was handed over by Anatole, who ordered Thomas to take the person away.”).
1813
In para. 1023(b), fn. 1706, of the Prosecution Closing Brief, reference is made to Prosecution Exhibit 327
(statement of 6 December 1997), which was given to Tribunal investigators by a deceased person, Witness AA,
and entered pursuant to Rule 92bis. See Decision on Admission of Statements of Deceased Witnesses (TC), 19
January 2005, paras. 5, 22. According to the statement, a man named “Stanislas”, a Hutu member of the MDR
party fleeing to Zaire, was arrested by “Omar” and taken to the “commune” by Thomas, who returned later,
stating he had finished him. The statement makes no reference to Nsengiyumva’s direct involvement in the
incident and therefore does not corroborate the testimonies of Witnesses OAF and OAB in that regard.
1814
Decision on Nsengiyumva Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 55-56. In its decision, the Chamber referred to a statement of Serushago who referred
to Stanislas Sinibagiwe as “Stanis Simbizi, the manager of the school print shop in Kigali”.
1815
Nsengiyumva Indictment, paras. 6.21-6.22; Prosecution Closing Brief, paras. 233, 481, 1489, pp. 884-885.
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1663. The Nsengiyumva Defence submits that this allegation was not sufficiently pleaded in
the Indictment. Moreover, Witness DCH’s uncorroborated evidence lacks credibility and is
contradicted by Witnesses Simon Bikindi, MNC-1 and STAR-2.1816
Evidence
Prosecution Witness DCH
1664. In late May or early June 1994, Witness DCH, a Hutu Interahamwe and bus driver,
drove one of about six buses transporting Zairian nationals and their family members,
including some Rwandans, from the Zairian Embassy and the Hôtel des Milles Collines in
Kigali to Goma, Zaire. Major Cyiza, a gendarme, supervised the convoy and travelled in a
separate vehicle. Between 3.00 and 4.00 p.m., the Interahamwe stopped the buses at the La
Corniche roadblock near the customs and immigration border control in Gisenyi prefecture.
The witness saw Simon Bikindi, Enoch Kayondo, Omar Serushago and other members of the
population wearing military or Interahamwe uniforms or in civilian clothing. The
Interahamwe at the roadblock insisted that the buses could not pass because they had
“Inyenzis” on board. Cyiza refused to allow any of the passengers to be taken off the buses
and said that he would seek assistance from the local military commander.1817
1665. A short time later, Nsengiyumva arrived in a Toyota Hilux double-cabin vehicle with
three uniformed soldiers in the back. Cyiza explained the situation, showing him the
convoy’s travel warrant. Others at the roadblock insisted that there were Inyenzis on board.
Nsengiyumva boarded Witness DCH’s bus and began checking identity cards. Nsengiyumva
escorted four Tutsi women, whose names the witness did not know, off the bus. He gave their
identity cards to Kayondo and Bikindi and ordered them to take the women to the Commune
Rouge. The civilians at the roadblocks agreed and said: “Yes, to the Commune Rouge, to the
Commune Rouge”; they also began singing “Tubatsembetsembe”.1818
1666. Kayondo, Bikindi, who had an Uzi pistol, and several others led the women behind
the “poste de commandement”, a small house where people drank beer, approximately 15
steps from the immigration office. Witness DCH heard sustained gunfire about three minutes
later. Kayondo, Bikindi and the group returned to the roadblock with the women’s personal
belongings. Bikindi and Kayondo spoke with Nsengiyumva, and the witness heard Kayondo
tell Nsengiyumva that Cyiza was an accomplice. The witness’s bus, which was the first in the
convoy, was permitted into Zaire. Nsengiyumva remained at the location. When the other
buses crossed the border, the convoy continued. Witness DCH did not discuss with the other
drivers whether persons had been led off their buses. Cyiza did not accompany the convoy as
he had been assigned to a mission in Cyangugu.1819
Nsengiyumva
1667. Nsengiyumva testified that, in early June 1994, three buses, escorted by Major Cyiza
and transporting Zairian nationals, were stopped at the border crossing between Gisenyi town
1816
Nsengiyumva Closing Brief, paras. 52 (d), 279, 290, 811-849, 1055-1056, 1058-1059, 1652-1688, 20202021, 2621-2622, 2633, 2644-2646, 2667-2669, 3302-3303; T. 31 May 2007 pp. 63-64.
1817
T. 22 June 2004 pp. 50-51, 54-55, 78-79; T. 24 June 2004 pp. 70-71, 74-75; T. 28 June 2004 pp. 1-5, 17, 28;
Prosecution Exhibit 275 (personal identification sheet).
1818
T. 22 June 2004 pp. 51-53. T. 28 June 2004 pp. 13-16, 18-20, 25-26. “Tubatsembetsembe” means “let us
exterminate them”.
1819
T. 22 June 2004 pp. 52, 54; T. 28 June 2004 pp. 4-5, 10-11, 17, 22, 26-30.
Judgement and Sentence
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and Goma. They were not allowed to pass because Cyiza was suspected of being an
Inkotanyi. An immigration official summoned Nsengiyumva to the border. Nsengiyumva
convinced the persons at the border crossing that Cyiza was not an Inkotanyi, and the buses
were allowed to cross. Cyiza then proceeded to Cyangugu prefecture. Nsengiyumva did not
see Bikindi during the incident and claimed that he had never met Enoch Kayondo. He denied
entering any of the buses to check the passenger’s identities. Nsengiyumva was not aware of
a place called the “poste de commandement”, but knew of a small kiosk where drinks were
sold about 20 metres from the customs post.1820
Nsengiyumva Defence Witness Simon Bikindi
1668. Simon Bikindi, a Hutu, was a singer, songwriter and dancer as well as a head of the
division of social-cultural affairs at the Ministry of Youth and Sports. He is also an accused
before the Tribunal. Bikindi denied having been an Interahamwe. He was never at a
roadblock and was not present or participated in the killing of Tutsi refugees taken from a
convoy of buses, travelling to Zaire, in May or June 1994. Enoch Kayondo was a football
referee, but Bikindi did not know him personally. The witness was aware that Major Cyiza
was a gendarme.1821
Nsengiyumva Defence Witness MNC-1
1669. Witness MNC-1, a Hutu, worked near the La Corniche customs post in 1994. In early
June, he saw that a convoy of three buses stopped at the border crossing around 2.00 or 3.00
p.m. People responsible for immigration and Interahamwe were preventing the buses from
passing because Major Cyiza, who accompanied the convoy, was suspected of being an RPF
accomplice and attempting to bring arms back into the country for the RPF. Around 20
minutes later, Nsengiyumva arrived and spoke privately with Cyiza. The witness believed
Cyiza had contacted Nsengiyumva through a military network. The buses, which had been
there for no longer than 30 minutes, were allowed to pass, and Cyiza left for Cyangugu
prefecture. Nsengiyumva did not search the buses, and no one was taken from them and
killed. The witness did not see Simon Bikindi or Enoch Kayonda near the border crossing.1822
Nsengiyumva Defence Witness STAR-2
1670. Witness STAR-2, a Hutu, lived and worked near the La Corniche border crossing in
Gisenyi town. She testified that, around 3.00 p.m. in early June, three buses carrying Tutsi
women married to Zairian nationals were stopped near the Bralirwa kiosk about 40 to 45
metres from the immigration office, where lemonade was sold. Around 25 to 30 Interahamwe
gathered and tried to prevent Major Cyiza from leaving the country because he was suspected
of being an RPF accomplice. A colleague of the witness called Nsengiyumva to resolve the
problem. Nsengiyumva arrived an hour later and took Cyiza away from the checkpoint. The
1820
T. 9 October 2006 pp. 49-51.
T. 22 June 2006 pp. 2-6, 9-11, 22-23; Nsengiyumva Defence Exhibit 193 (personal identification sheet).
During cross-examination, it was put to Bikindi that Enoch Kayondo was a fellow shareholder in RTLM.
Bikindi denied having any knowledge of this. When he testified, he was awaiting the commencement of his trial
at the Tribunal. On 2 December 2008, Bikindi was convicted to 15 year of imprisonment for direct and public
incitement to commit genocide. See Bikindi Trial Judgement, p. 112.
1822
T. 4 July 2006 pp. 3, 8-9, 11-13, 20-21; Nsengiyumva Defence Exhibit 198 (personal identification sheet).
The witness testified that Simon Bikindi was a well-known musician who worked with the Ministry of Youth
and Education. Enoch Kayondo was an employee of the Ministry of Finance but was also known as a football
referee in Gisenyi.
1821
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buses, which had been there for two hours, were then allowed to cross the border.
Nsengiyumva did not board the buses, check identity cards, order passengers to leave or
remove four Tutsi women. The witness did not see anyone being removed from buses or
killed, nor did she see Simon Bikindi in the area during this incident.1823
Deliberations
1671. The Chamber accepts that in early June 1994, several buses carrying Zairian refugees
were stopped at the La Corniche border crossing at some point. They were escorted by Major
Augustin Cyiza. Nsengiyumva was asked to intervene.1824 This follows from the four
witnesses who purportedly have first-hand knowledge of the event. The main question for the
Chamber is Nsengiyumva’s role during this incident and, in particular, whether he searched
for Tutsis onboard the buses and ordered Simon Bikindi and Enoch Kayonda to take four
women to the Commune Rouge who were then killed a short distance away while
Nsengiyumva was still there.
1672. Witness DCH is the only witness to attest to these aspects. In contrast, the three
Defence witnesses described a situation where Cyiza had problems because he was
considered an Inkontanyi, but that the convoy crossed the border without any problem once
Nsengiyumva had intervened. According to them, neither Bikindi nor Kayonda were present.
Also Bikindi denied having been present.
1673. Witness DCH pleaded guilty in Rwanda and was sentenced to seven years’
imprisonment for crimes committed primarily in the Kabuga area, which is in the vicinity of
Kigali.1825 The Chamber has elsewhere expressed some reservations about his credibility and
approaches his testimony about this incident with caution.1826 This said, it notes that the event
involving the four Tutsi women were mentioned by the witness in three statements to
Tribunal investigators, of which the first was taken while he was still imprisoned. The three
versions are generally consistent.1827
1674. The Chamber accords limited weight to the testimonies of Nsengiyumva and Bikindi,
who both have a clear interest to paint a different picture of what happened when the buses
arrived at the border post. It simply notes that Bikindi has not been convicted for acts relating
to this event.1828 Witnesses MNC-1 and STAR-2 testified that they were near the La Corniche
1823
T. 28 February 2006 pp. 4, 24-27, 54-56; Nsengiyumva Defence Exhibit 143 (personal identification sheet).
The witness was aware that Bikindi worked for the Ministry of Youth Affairs.
1824
Witness DCH was not certain whether this event occurred in late May or early June, whereas the three
Defence witnesses who testified that they were present stated that it was in early June.
1825
Ntabakuze Defence Exhibit 70 (Rwandan judgment of Witness DCH, dated 8 December 2000), pp. 23-24,
31.
1826
The Chamber found that other aspects of Witness DCH’s testimony lacked credibility, in part, based on his
apparent willingness to mislead judicial officials about the full scope of his culpability in the events (III.4.1.5).
1827
For instance, the Chamber considers it to be of limited significance whether Nsengiyumva allegedly ordered
Bikindi and Kayonda to kill the four Tutsi women by taking them behind the command post, as in Bagosora
Defence Exhibit 114 (statement of 9 July 2001), or by leading them to the Commune Rouge, which is the
version both in Kabiligi Defence Exhibit 65 (statement of 5 November 2003) and Kabiligi Defence Exhibit 67
(statement of 6 March 2004), as well as in the witness’s testimony. The Chamber notes that the last two exhibits
were tendered in court by the Nsengiyumva Defence but wrongly entered as Kabiligi exhibits.
1828
Paragraph 24 of the Bikindi Amended Indictment alleged that in June 1994, following orders from
Nsengiyumva, Bikindi ordered Interahamwe in his company to take a group of Tutsi women behind a kiosk
Judgement and Sentence
419
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
roadblock when the convoy of buses arrived. Both saw Nsengiyumva arrive but stated that he
was called to settle the question of whether Major Cyiza, a suspected RPF accomplice, should
be allowed to cross into Zaire, rather than to search for Tutsis on board the buses. They also
testified that Nsengiyumva did not enter these buses or remove civilians from them, and that
they did not see Bikindi or Kayonda there.
1675. The accounts of Witnesses MNC-1 and STAR-2 should be assessed in light of their
work in close proximity to the border post between April and June 1994. They may therefore
wish to distance themselves from the event and killings that purportedly occurred at this
location generally. Their evidence differed as to how long the buses were held back and who
contacted Nsengiyumva, although these discrepancies could be explained by different
observations as well as the passage of time. While the Defence evidence is inconclusive, the
Chamber has reservations about accepting Witness DCH’s testimony without corroboration
and finds the evidentiary situation unclear. Finally, it notes that the witness testified that
Omar Serushago was present in the area during the event.1829 Other evidence suggests that
Serushago controlled the La Corniche roadblock border crossing after the President’s death
(III.5.2). Although the Chamber has elsewhere expressed doubts about his credibility it still
notes that the Prosecution led no evidence through Serushago about this event.1830
1676. The Chamber finds that the Prosecution has not proven beyond reasonable doubt that
Nsengiyumva searched buses which were stopped at the La Corniche border crossing and
ordered Bikindi and Kayonda to kill four Tutsi women that were taken out of them.
1677. During the course of the trial, the Chamber concluded that Nsengiyumva had received
adequate notice of this allegation.1831 In view of the conclusion above, it sees no need to
revisit its previous finding.
4.2.4
Meeting at MRND Headquarters, Early June
Introduction
1678. Each of the Indictments alleges that the Accused prepared the genocide of the Tutsis
and their accomplices by stoking ethnic tension. In this context, the Prosecution points to a
meeting at MRND headquarters in Gisenyi prefecture in early June 1994 where Bagosora and
Nsengiyumva spoke. Reference is made to Witness XBM.1832
1679. The Bagosora Defence argues that Witness XBM’s testimony is unreliable and
uncorroborated. Furthermore, it presented an alibi that Bagosora was out of the country at the
called the “Command Post” and kill them. In the Bikindi judgement, the Prosecution conceded that it had not
presented any evidence on this event. See Bikindi Trial Judgement, para. 11.
1829
T. 22 June 2004 p. 51; T. 28 June 2004 p. 28.
1830
According to the Nsengiyumva Closing Brief, para. 811, it is surprising that the Prosecution “apparently
neither interviewed Major Cyiza nor called him to testify”, as he “was still living at all material times”.
However, it follows from Nsengiyumva Defence Exhibit 83 (Augustin Cyiza – Un homme libre au Rwanda
(2004)), p. 5 that he was abducted on 23 April 2003. At that point in time, the Prosecution had only called two
witnesses, Alison Des Forges and Witness ZF.
1831
Decision on Nsengiyumva Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
15 September 2006, paras. 29-30.
1832
Bagosora Indictment, paras. 5.9, 5.15, 6.27; Kabiligi and Ntabakuze Indictment, para. 5.9; Nsengiyumva
Indictment, para. 5.8; Prosecution Closing Brief, paras. 490-491, 1052, 1059.
Judgement and Sentence
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time of the alleged meeting. The Nsengiyumva Defence points to the Chamber’s prior
exclusion of Witness XBM’s testimony about this meeting in relation to Nsengiyumva.1833
Evidence
Prosecution Witness XBM
1680. Witness XBM, a Hutu CDR party member from 1992 to 1994, testified that he was in
Gisenyi town in early June 1994, when he saw and followed a large crowd walking towards
MRND headquarters. He learned that Bagosora had summoned the general population, and
especially MRND and CDR party members, to a meeting that lasted from 1.30 until 4.00 p.m.
The witness entered the headquarters and saw Bagosora waiting outside of the meeting hall.
When about 600 people had arrived, some of whom were military officers, Bagosora opened
the meeting and said that President Habyarimana died because he had disregarded Bagosora’s
advice not to trust the Tutsis. Bagosora was enraged and noted that the Hutus had not united
in assisting the army as they had in 1990. He asserted that those helping the Tutsis to hide or
escape, and those who pitied them, were to be considered enemies of Rwanda. At his request,
the attendees contributed a total of seven million Rwandan francs to help the front line
soldiers repel the enemy. The witness gave 3,000.1834
1681. Witness XBM also said that Nsengiyumva spoke briefly at this meeting, reporting that
Rwanda’s people and soldiers faced a dire situation. The witness got the impression that
Nsengiyumva was in a hurry.1835
Nsengiyumva
1682. Nsengiyumva testified that Witness XBM’s testimony of attending CDR and MRND
meetings lacked credibility because he was an MDR official in his sector. Additionally, the
Chamber had excluded his evidence regarding certain meetings.1836
Bagosora
1683. Bagosora denied that was at the MRND headquarters in June 1994 with
Nsengiyumva. He never attended a meeting where he said that Habyarimana died because he
trusted Tutsis, and he never claimed that people pitying or assisting Tutsis were the enemy.
Between 23 May and 19 June 1994, he travelled to Kinshasa, South Africa and the Seychelles
in order to acquire weapons (III.6.1).1837
Bagosora Defence Witness VO-5
1684. Witness VO-5, a Hutu and Rwandan diplomat in Kinshasa in 1994, stated that
Bagosora and Joseph Nzirorera arrived in Kinshasa on 23 May. He believed that Bagosora
1833
Bagosora Closing Brief, paras. 673, 676-686, 691, 1148-1168, 1429-1431, 1495, 1587, 1623-1625, 1627,
1774, 1843, 1885-1888; Nsengiyumva Closing Brief, paras. 594, 1245, 1260, 2017. The Kabiligi and Ntabakuze
Defence do not address this allegation.
1834
T. 14 July 2003 pp. 29-30; T. 15 July 2003 pp. 22-25; Prosecution Exhibit 80 (personal identification sheet).
1835
T. 14 July 2003 p. 30.
1836
T. 9 October 2006 pp. 46, 49.
1837
T. 9 November 2005 pp. 66-74; T. 10 November 2005 pp. 2-5, 75; T. 14 November 2005 p. 11; T. 16
November 2005 p. 70; T. 17 November 2005 pp. 21-22, 37-39.
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remained in Kinshasa for more than a week and left for South Africa in early June
(III.6.1).1838
Nsengiyumva Defence Joseph Nzirorera
1685. Joseph Nzirorera, the President of the National Assembly, travelled with Bagosora
from Goma to Kinshasa, Zaire, on 23 May 1994. From there he went to South Africa from 27
May to 9 June. Bagosora joined him there on 3 June to bring money in relations to a weapons
purchase. Bagosora left for the Seychelles the following day to inspect the materials to be
purchased (III.6.1).1839
Deliberations
1686. Witness XBM is the only witness to testify about Bagosora and Nsengiyumva’s
alleged participation in a meeting at the MRND headquarters in Gisenyi prefecture in early
June. This evidence has been excluded as it relates to Nsengiyumva, and it will be assessed
only to the extent it implicates other Accused.1840
1687. The Prosecution submits that Witness XBM’s testimony is corroborated by Alison
Des Forges, who testified about common themes in the writings of Bagosora and
Nsengiyumva. The Prosecution notes that the themes expressed during the meeting are
similar to their other writings.1841 In the Chamber’s view, however, any similarity does not
sufficiently substantiate that the meeting in fact occurred or that Bagosora was amongst the
participants.
1688. The Chamber has expressed reservations about Witness XBM’s credibility elsewhere
(III.2.4.2; III.2.4.5; III.2.10; III.3.6.7). As discussed in the section setting forth the alibi
evidence in detail (III.6.1), Bagosora has provided a reasonable explanation for his time
during the early part of June. There is corroborated testimonial and documentary evidence
showing that he was in Kinshasa, South Africa and Seychelles at this time. In view of the
credibility concerns with Witness XBM’s uncorroborated testimony, the Chamber is not
satisfied that the Prosecution has eliminated the reasonable possibility that Bagosora’s alibi is
true. Consequently, the Chamber declines to accept this aspect of Witness XBM’s testimony.
1689. The Chamber previously considered the admissibility of this evidence. In view of its
findings, it is unnecessary to revisit the decisions.1842
1838
T. 12 October 2005 pp. 10, 15-18, 36, 52-55, 57-61; T. 13 October 2005 pp. 44-48; Bagosora Defence
Exhibit 194 (personal identification sheet).
1839
T. 16 March 2006 pp. 66, 77-80; T. 17 March 2006 pp. 1-5; T. 12 June 2006 pp. 33-34, 44, 46;
Nsengiyumva Defence Exhibit 162 (personal identification sheet). Nzirorera referred to a stamp in his passport
that indicated he entered Goma on 23 May and a stamp indicating he arrived in South Africa on 27 May 1994.
See T. 17 March 2006 pp. 4-5; Bagosora Defence Exhibit 321 (Nzirorera’s passport).
1840
Decision on Nsengiyumva Motion For Exclusion of Evidence Outside the Scope of the Indictment (TC), 15
September 2006 p. 22, which declares as inadmissible “Witness XBM’s testimony about meetings in Gisenyi
préfecture, with the exception of a meeting at Méridien Hôtel in May 1994 which is admissible”.
1841
Prosecution Closing Brief, para. 1059.
1842
Decision on Nsengiyumva Motion For Exclusion of Evidence Outside the Scope of the Indictment (TC), 15
September 2006 p. 22; Decision on Bagosora Motion For the Exclusion of Evidence Outside the Scope of the
Indictment (TC), 11 May 2007, paras. 58-60.
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.2.5
Espérance Uwayirege (Longin’s Wife), June
Introduction
1690. The Nsengiyumva Indictment alleges that, between May and June 1994,
Nsengiyumva ordered Omar Serushago and his militiamen to abduct “a Tutsi woman” and
kill her at the Commune Rouge. The Prosecution submits that this woman was Espérance
Uwayirege, a Tutsi cashier at the Banque de Kigali in Gisenyi, who was married to Longin
Rudasingwa. It is also alleged that Bagosora was implicated in her killing because he, during
a meeting at the Hôtel Méridien in June 1994, asked Nsengiyumva to locate her. In support of
these allegations, reference is made to Witnesses Omar Serushago, OAB, ABQ and DO.1843
1691. The Bagosora and Nsengiyumva Defence contend that the allegation that their clients
attended a meeting at the Hôtel Méridien in June 1994 is not pleaded in their respective
Indictments. Furthermore, the Prosecution evidence lacks credibility. The Bagosora Defence
argues that Bagosora was out of Rwanda at the time. Reference is made primarily to
Witnesses USA-1, WHO-1, ANG-1, XEN-1, HCR-1, CF-1, CF-2, TN-1, CF-4, LIG-2,
Nzirorera as well as Nsengiyumva and Bagosora.1844
Evidence
Prosecution Witness Omar Serushago
1692. Omar Serushago, a Hutu and Interahamwe leader, testified that, at some point in June
1994, Juvénal Uwilingiyimana, the director of the Rwandan National Parks and MRND
committee member, called him from the home of Fabien Nsengiyumva. He asked Serushago
to come to that house and kill Longin Rudasingwa’s wife, who was hiding there. Fabien
headed a football team in Gisenyi prefecture, coached by Longin Rudasingwa. Apparently,
Longin’s wife, a Tutsi, felt safe in Fabien’s house because he had close ties to President
Habyarimana’s family. Serushago knew Longin’s wife as the cashier at the Banque de Kigali
in Gisenyi prefecture. There were rumours that she was cooperating with the RPF.
According to Serushago, Uwilingiyimana wanted her dead because she was an “Inyenzi”.1845
1693. Serushago and another Interahamwe, Thomas Mugiraneza, apprehended the woman
and they brought her to Nzirorera and Nsengiyumva as Serushago knew that they had wanted
to find her. They first went to the Hôtel Méridien where Joseph Nzirorera was staying and
then to the Palm Beach Hotel where Nsengiyumva was. Nsengiyumva commended them for
locating Longin’s wife and ordered them to kill her. Serushago and Mugiraneza immediately
took her to the Commune Rouge, a Gisenyi cemetery where people were executed. They
1843
Nsengiyumva Indictment, para. 6.29; Prosecution Closing Brief, paras. 107, 181, 361-379, 1018(b), 1028(i),
1514(d, e), pp. 890-891.
1844
Nsengiyumva Closing Brief, paras. 614-623, 877-892, 987-994, 1430-1436, 1459-1461, 1793-1798, 19811985, 2273, 2308, 2316, 2702-2703, 2715, 2725, 2755, 2761, 2808-2837; T. 31 May 2007 pp. 73-74; T. 1 June
2007 pp. 1-4; Bagosora Closing Brief, paras. 1148-1168, 1415-1428. The Bagosora Defence also points to other
alibi evidence (III.6.1).
1845
T. 18 June 2003 pp. 37-39, 51; T. 19 June 2003 pp. 36-38, 40, 69; Prosecution Exhibit 54 (personal
identification sheet). There does not appear to be any relationship between Fabien Nsengiyumva and the
Accused, Anatole Nsengiyumva. On 5 February 1999, pursuant to a plea agreement, Omar Serushago was found
guilty by the Tribunal of genocide, murder, extermination and torture for crimes he committed as an
Interahamwe in Gisenyi. He was sentenced to 15 years imprisonment. See T. 18 June 2003 pp. 2-3; Serushago
Trial Judgement, p. 15.
Judgement and Sentence
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18 December 2008
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handed her over to a lieutenant, who shot her in the head, killing her instantly. Serushago and
Mugiraneza returned to the Palm Beach Hotel, and Nsengiyumva praised them again for
finding the “Inyenzi”.1846
1694. When testifying about women who were raped and killed at the Commune Rouge,
Serushago said that he knew that Longin Rudasingwa’s mistress Thérèse, who worked at
Rwandex, was raped there. He did not provide any further details about the crime.1847
Prosecution Witness OAB
1695. Witness OAB, a Hutu driver in Gisenyi town, stated that, around 9 or 10 April 1994,
he was driving from Gisenyi to Goma and saw one of Longin’s two wives named Thérèse in
a minibus with Omar Serushago near a customs office at the La Corniche border post. Her
dress was torn, and the witness thought she had been raped. She had been abducted earlier
from Bralirwa, the brewery, and taken to Serushago’s house because the assailants wanted to
rape her. Several people, including Interahamwe leaders, were begging Serushago to let the
woman go because she was the wife of the local football coach. Serushago refused,
explaining that he had orders to kill her at the Commune Rouge. Anatole Nsengiyumva was
standing nearby and had previously spoken to Serushago, who was telling people on the
scene that Nsengiyumva had given him the authority to kill Thérèse. Serushago also spoke
individually to the witness about it.1848
1696. The witness also had heard that Nsengiyumva ordered Serushago to kill Longin’s
other wife at Rwandex, but he could not remember her name and did not give further details
about this killing.1849
Prosecution Witness ABQ
1697. Witness ABQ, a Hutu student, said that, at the beginning of June 1994, he
accompanied Barnabé Samvura, the head of the CDR militia, to a closed meeting at the Hôtel
Méridien of more than 30 persons, including prominent military, political and government
officials. The witness recognised Anatole Nsengiyumva, Bernard Munyagishari, the prefect
of Gisenyi and the manager of the Banque de Kigali. A speaker, whom the witness learned
afterwards was Bagosora, addressed the group and criticised the people of Gisenyi prefecture
for hiding “Inyenzi” and assisting them to cross the border to Zaire. Bagosora illustrated the
problem with the story of Fred Rwigema, who fled Rwanda as a child in 1959 and returned as
an adult to lead an invasion.1850
1846
T. 18 June 2003 pp. 29-31, 39; T. 19 June 2003 pp. 37, 39-41, 69.
T. 18 June 2003 p. 51. Serushago explained that Rwandex was a coffee factory. T. 18 June 2003 p. 32.
1848
T. 24 June 2003 pp. 41-43, 61; T. 25 June 2003 pp. 32, 43-47, 82-83; Prosecution Exhibit 58 (personal
identification sheet). Witness OAB could not recall the exact date of the event but it was three or four days after
the death of President Habyarimana. The Chamber notes that, according the witness, the Interahamwe received
the minibus in which he saw Longin’s wife a week after the death of the President. See T. 25 June 2003 p. 32
(French), which correctly reflects “Longin’s” as opposed to “Roger’s” wife.
1849
T. 24 June 2003 p. 61; T. 25 June 2003 pp. 46, 82.
1850
T. 6 September 2004 pp. 23-27; T. 9 September 2004 pp. 13-23; Prosecution Exhibit 293 (personal
identification sheet). Witness ABQ described Bagosora physically, said that he spoke Kinyarwanda with a
Bushiru accent, but stated that he would not be able to recognise him in court. T. 6 September 2004 p. 44. Fred
Rwigema led the RPF invasion in October 1990 and was killed during it. See Bagosora, T. 26 October 2005 pp.
32-33; T. 5 November 2005 p. 40; Nsengiyumva, T. 6 October 2006 p. 24.
1847
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1698. Bagosora also spoke about ways to raise money to buy weapons for the army and
noted that the manager of the Banque de Kigali had agreed to loan the government money.
He tasked Anatole Nsengiyumva with locating the bank’s cashier in order to open the cash
box. It was said that the cashier, a Tutsi, had gone into hiding. She was the wife of “Longe
Sherif”, the local football coach. Nsengiyumva agreed at the meeting to take on the
assignment. The witness later heard that she was killed.1851
Prosecution Witness DO
1699. Witness DO, a Hutu driver in Gisenyi town, heard from Interahamwe, and later from
Serushago, that, in April, Serushago killed Longin’s wife. She had worked at the Banque de
Kigali.1852
Nsengiyumva
1700. According to Anatole Nsengiyumva, Longin Rudasingwa’s wife Espérance and her
children were looking for safe accommodation around 10 April 1994. He asked one of his
assistants, Major Uwimana, to take them to the home of Fabien Nsengiyumva. On 12 April,
Casimir Bizimungu, the Minister of Health, called and asked him to locate Espérance, the
cashier of the Banque de Kigali, because she had the access codes to the bank’s cash box.
That day, Anatole Nsengiyumva took Espérance to the bank to open the cash box and then
returned her to Fabien Nsengiyumva’s home. No meeting occurred in June at the Hôtel
Méridien, as described by Witness ABQ. Bagosora and Nzirorera were travelling abroad in
June.1853
Nsengiyumva Defence Witness USA-1
1701. Witness USA-1, a Hutu, was staying at Fabien Nsengiyumva’s home in April 1994.
Fabien was an executive at the Bralirwa brewery and president of the local football team. He
and his wife were close friends with Longin Rudasingwa and Longin’s wife Espérance.
Longin was the team’s coach as well as a nurse at the Bralirwa dispensary. Around 9 April,
Espérance sought refuge at Fabien’s house because she was Tutsi and suspected by some to
be an “accomplice”.1854
1702. On 12 April, Anatole Nsengiyumva called Fabien’s house and said that he needed
Espérance to open the cash box at the Banque de Kigali so that government officials could be
paid their mission allowance. Later that day he came alone and took Espérance to the bank in
order to open the cash box, returning her to the house that evening. Around 21 April,
Serushago and Thomas abducted Espérance in a dark blue mini-bus while Juvénal
Uwilingiyimana, a family friend, and Jean Habyarimana, another friend, were at the house.
The witness did not know whether Uwilingiyimana had called Serushago and informed him
of Espérance’s hiding place or if anyone other than Nsengiyumva, Major Uwimana and her
family knew she was hiding there. The witness did not believe that Anatole Nsengiyumva, a
senior military official, would have any type of relationship with Serushago. After that
incident, Witness USA-1 took Espérance’s children to the Nyundo orphanage.1855
1851
T. 6 September 2004 pp. 27-28; T. 7 September 2004 p. 5; T. 9 September 2004 pp. 19-20.
T. 30 June 2003 pp. 3, 75-77; T. 2 July 2003 p. 11; Prosecution Exhibit 61 (personal identification sheet).
1853
T. 6 October 2006 pp. 22-23, 27-29.
1854
T. 2 October 2006 pp. 6-9, 50-51, 53; Nsengiyumva Defence Exhibit 210 (personal identification sheet).
1855
T. 2 October 2006 pp. 7, 9-13, 40-44, 49-55.
1852
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425
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Nsengiyumva Defence Witness WHO-1
1703. Witness WHO-1, a Hutu, lived near Longin Rudasingwa and his wife Espérance in an
area of homes reserved for Bralirwa employees. Longin was a medical assistant at Bralirwa.
After the death of President Habyarimana, Espérance went into hiding near her home. During
this period, the witness spoke with a friend who told the witness that Anatole Nsengiyumva
would be contacted to assist Espérance. Soldiers then retrieved Espérance and her children
from her house. Espérance was taken to Fabien Nsengiyumva’s house, while her children
were taken to the home of a Zairean named Patti. Witness WHO-1 stayed in contact with
Espérance for the first few days after she moved to Fabien’s home until the phone system
stopped working. The witness later heard from that friend that Omar and a group of assailants
surrounded the house and abducted Espérance in order to kill her.1856
Nsengiyumva Defence Witness ANG-1
1704. Witness ANG-1, a Hutu employee at the Hôtel Méridien in Gisenyi, knew Longin
Rudasingwa, a football coach and a medical assistant at the brewery, as well as his wife
Espérance, who worked at the Banque de Kigali. He heard that, at the end of June 1994,
Serushago and Thomas Mugiraneza abducted her because she was the cashier at the bank and
very beautiful. They killed her at the Byahi cemetery. The witness never saw them bring her
to the Hôtel Méridien and testified that had she been brought there he would have been
informed. The only meeting he could recall at the hotel between April and June was
convened by Félicien Kabuga and neither Bagosora nor Nsengiyumva had attended.1857
Nsengiyumva Defence Witness XEN-1
1705. Witness XEN-1, a Hutu employee at the Hôtel Méridien in Gisenyi, had known
Serushago since childhood. Serushago, a black market money changer, had a reputation for
being dishonest and cheating people. Towards the end of April or in May 1994, he heard that
Serushago and Thomas Mugiraneza killed Espérance, who worked at a Gisenyi bank. The
witness knew Espérance and did not see her or the assailants at the hotel during this period.
He recalled only one meeting being held at the Hôtel Méridien between April and June 1994.
It had been convened by Félicien Kabuga and Nsengiyumva was not present.1858
Nsengiyumva Defence Witness HCR-1
1706. Witness HCR-1, a Hutu employee at the Palm Beach Hotel in Gisenyi, heard that
Longin Rudasingwa’s wife was killed at some point between April and July 1994. He
testified that Longin was a doctor and that his wife worked at the local bank. The witness did
not see anyone bring her to the hotel. He only recalled Nsengiyumva coming to the hotel
twice. Both times were prior to April 1994. The witness worked at the hotel six days of every
week, and admitted that Nsengiyumva could have visited the hotel on his day off. However,
the witness would probably have heard about such a visit.1859
1856
T. 26 June 2006 pp. 25-26, 28-29; Nsengiyumva Defence Exhibit 196 (personal identification sheet).
T. 14 March 2006 pp. 3, 7, 12-17; T. 16 March 2006 pp. 26-28; Nsengiyumva Defence Exhibit 157
(personal identification sheet).
1858
T. 30 May 2006 pp. 4-7, 13, 16-17; Nsengiyumva Defence Exhibit 178 (personal identification sheet).
1859
T. 26 June 2006 pp. 3, 5-6, 10-15, 18, 20, 22; Nsengiyumva Defence Exhibit 195 (personal identification
sheet).
1857
Judgement and Sentence
426
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Nsengiyumva Defence Witness CF-1
1707. Witness CF-1, a Hutu, lived in Gisenyi town in April 1994. He was a friend of
Serushago. At the end of June 1994, Serushago informed him that he had killed Longin
Rudasingwa’s wife, Espérance, because she was “arrogant and had turned down his
advances”. She had been staying at the home of Fabien Nsengiyumva at the time of her death.
Serushago told the witness on the day of the killing and did not give any indication that he
had acted pursuant to orders. The witness was certain that this event had occurred in June
because he fled Gisenyi two to three weeks after hearing about it. Longin’s wife was among
the last victims in Gisenyi prefecture. The witness also stated that one of Rudasingwa’s two
mistresses had been killed sometime in April. The witness added that Serushago could not
have received a call ordering him to kill the woman because there were no functioning
telephone networks in Rwanda two weeks after the death of President Habyarimana.1860
Nsengiyumva Defence Witnesses CF-2 and TN-1
1708. Witness CF-2, a Hutu who lived in Gisenyi town, testified that, on 8 April 1994, he
heard about the killing of Longin’s wife.1861 Witness TN-1, a Hutu and government and
political official, was told that Longin’s wife was killed in Gisenyi town at some point in
June 1994.1862
Nsengiyumva Defence Witness CF-4
1709. Witness CF-4, a Hutu who lived in Gisenyi town, heard that Longin’s first wife
Thérèse was killed immediately after the death of the President on the premises of Rwandex.
His second wife was killed in June 1994 in the Nyundo area. The witness believed that an
Interahamwe named Omar Faizi killed both women. He did not hear about any involvement
by Nsengiyumva in the crime.1863
Nsengiyumva Defence Witness LIG-2
1710. Witness LIG-2, a Hutu businessman in Gisenyi, had known Omar Serushago since
childhood and noted that he was also known as “Faizi”. He knew Longin Rudasingwa since
primary school and testified that his wife, a Tutsi, was very beautiful and worked at a bank.
After the death of the President, she sought refuge at the home of a friend who was the
former president of the Gisenyi football team. The witness heard that Serushago and five
other Interahamwe went to the house and abducted the woman at gun point. Serushago then
raped and killed her.1864
Bagosora
1711. Bagosora denied that he attended a meeting at the Hôtel Méridien in June 1994 with
Nsengiyumva. He testified that he was travelling to Zaire, South Africa and Seychelles from
23 May until 22 June in an attempt to purchase weapons (III.6.1).1865
1860
T. 29 November 2005 pp. 3, 22-26, 39; Nsengiyumva Defence Exhibit 125 (personal identification sheet).
The telephone network was still operating on 10 April 1994. T. 29 November 2005 p. 23.
1861
T. 29 November 2005 pp. 49, 65; Nsengiyumva Defence Exhibit 127 (personal identification sheet).
1862
T. 2 March 2006 pp. 53, 59; Nsengiyumva Defence Exhibit 147 (personal identification sheet).
1863
T. 14 February 2006 p. 61; T. 15 February 2006 pp. 4-5; Nsengiyumva Defence Exhibit 135 (personal
identification sheet).
1864
T. 2 May 2005 pp. 15, 17, 58; Nsengiyumva Defence Exhibit 75 (personal identification sheet).
1865
T. 9 November 2005 pp. 67-68, 74; T. 10 November 2005 pp. 2, 75; T. 17 November 2005 p. 37.
Judgement and Sentence
427
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Nsengiyumva Defence Witness Joseph Nzirorera
1712. Joseph Nzirorera, the President of the National Assembly, denied meeting Serushago
at the Hôtel Méridien in June 1994, explaining that he met him for the first time in 1998 at
the United Nations Detention Facility in Arusha. Nzirorera travelled on 23 May with
Bagosora from Goma to Kinshasa, Zaire. From there he went to South Africa from 27 May to
9 June. Bagosora joined him in South Africa on 3 June before proceeding to the Seychelles
the next day (III.6.1). Nzirorera knew Longin, the coach of Gisenyi’s football team, by name
only and had no information with respect to his wife’s death.1866
Deliberations
1713. There is no dispute that Serushago played a prominent role in the abduction and
killing of Espérance Uwayirege, a Tutsi employee of the Gisenyi branch of the Banque de
Kigali, who was married to Longin Rudasingwa, a Hutu. Serushago pleaded guilty before the
Tribunal to abducting her and handing her over to an ex-soldier to be killed on the orders of
Nsengiyumva in June 1994.1867 In the present trial, he confirmed having committed this
crime.
1714. Serushago’s evidence as well as the testimonies of Witnesses USA-1, WHO-1, CF-1
and LIG-2 show that he abducted her from Fabien Nsengiyumva’s home. There is some
discrepancy in the accounts as to when she was abducted and killed. Some witnesses,
including Witness USA-1, who observed Serushago take Espérance, said April. Others,
largely referring to the rape and killing of Thérèse, who also seems to have been Longin’s
wife or possibly mistress, described a similar event occurring in April. The Chamber notes
that the relevant Indictment paragraph about the killing of “a Tutsi woman” indicates that this
event occurred “[b]etween May and June 1994”. The Prosecution primarily relies on
Serushago’s evidence that Nsengiyumva was involved in the killing of Espérance in June.1868
Thérèse’s rape and killing is not pleaded in the Indictment and cannot provide a basis for
conviction. The Chamber therefore considers evidence related to Thérèse because it offers
context to the Prosecution’s case concerning Espérance’s murder.1869
1715. The main question for the Chamber is whether Nsengiyumva ordered Serushago to
kill Espérance Uwayirege. Serushago is the only witness who gave direct testimony to this
effect. He suggested that before the killing, he brought Espérance to Nzirorera at the
Méridien Hôtel and then to Nsengiyumva at the Palm Beach Hotel. This is the primary
evidence that Nsengiyumva ordered the killing. However, Nzirorera denied Serushago’s
account and pointed to evidence that he was not in Rwanda from the 23 May to 15 June
1866
T. 16 March 2006 pp. 61-62, 64-66; T. 17 March 2006 pp. 1-5; T. 12 June 2006 pp. 33-38, 44, 46.
Serushago Trial Judgement, para. 25(xii), which reads: “Omar Serushago acknowledges that in June 1994,
in Gisenyi, on the orders of Anatole Nsengiyumva, Thomas Mugiraneza and himself, abducted a Tutsi woman
and brought her near the Commune Rouge to execute her. This person was in fact killed by Lt. Rabuhihi, an exsoldier of the 42nd Battalion, Force Armée Rwandaise (FAR).” Serushago also previously described
Nsengiyumva’s alleged order to kill Espérance. Nsengiyumva Defence Exhibit 17 (statement of 3 February
1998, signed in Nairobi).
1868
Nsengiyumva Indictment, para. 6.29.
1869
Evidence concerning the killing of Thérèse in April was elicited through Serushago as well as Witnesses
OAB and CF-4. Witness DO’s testimony that he learned that Longin’s wife had been killed on 7 April and
Witness and CF-2’s testimony that it occurred on 8 April 1994 suggest that they may also have been referring to
Thérèse’s killing rather than Espérance’s.
1867
Judgement and Sentence
428
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
(III.6.1). Witnesses XEN-1 and ANG-1, employees at the Hôtel Méridien, did not observe
Serushago or Espérance at the hotel. Nsengiyumva also denied Serushago’s allegations, and
Witness HCR-1, a Palm Beach Hotel employee, also did not see her.1870 While the Defence
evidence is inconclusive, Serushago is an alleged accomplice of Nsengiyumva. The Chamber
has expressed its scepticism about his credibility elsewhere, views his evidence with caution
and will not accept it without corroboration (III.3.6.1; III.4.2.1).
1716. The testimony of Witness OAB does not provide such corroboration. His evidence
primarily concerned Serushago’s rape and murder in April 1994 of Thérèse. He only briefly
mentioned that he had heard that Nsengiyumva ordered the killing of Espérance. This secondhand evidence lacks detail and his previous statements to Tribunal investigators do not
mention Espérance’s death in June 1994.1871
1717. Witness DO’s testimony that Serushago killed Longin’s wife, also fails to sufficiently
corroborate the Prosecution case regarding the killing of Espérance in June. His evidence is
second-hand, lacks precision and does not directly link Nsengiyumva to the crime.1872 His
account that Longin’s wife worked at the Banque of Kigali, suggests that he was referring to
Espérance. However, he described the killing as occurring in April, which would be more
consistent with evidence concerning Thérèse’s death. This ambiguity illustrates the limited
value of his evidence in support of the Prosecution case.
1718. The testimonies of Witness USA-1, apparently a friend of Fabien Nsengiyumva and
Espérance, and Witness WHO-1, indicate that Anatole Nsengiyumva had offered some
protection by assisting in delivering Espérance to Fabien Nsengiyumva’s house in April.
Witness USA-1’s first-hand account of Serushago and Thomas abducting Espérance does not
show any involvement by the Accused.1873 Likewise, Witness WHO-1’s second-hand
evidence only suggests that Serushago and other members of the Interahamwe were involved
in her kidnapping and eventual murder. Even assuming that the testimonies of Witnesses
USA-1 and WHO-1 were flawed, the evidentiary situation remains unclear.1874
1719. The Chamber next considers whether the alleged meeting at the Hôtel Méridien in the
“beginning of the month of June” corroborates the Prosecution case that Nsengiyumva was
involved in Espérance’s murder in June. Witness ABQ is the only witness to testify about this
1870
The Chamber accords some weight to the evidence of Witnesses ANG-1, XEN-1 and HCR-1 but is not
totally convinced, based on their respective functions in the hotels, that they would have known everything that
was going on there.
1871
Nsengiyumva Defence Exhibit 22 (statement of 15 January 1999); Nsengiyumva Defence Exhibit 23
(statement of 28 January 2000). Witness OAB is alone in linking Nsengiyumva to the killing of Thérèse in
April. However, his testimony differs from a statement given to Tribunal investigators in January 1999. The
statement refers to this April incident, describes the woman as “the wife of Longin” but makes no mention of
Nsengiyumva’s role in this killing. Nsengiyumva Defence Exhibit 22 (statement of 15 January 1999), p. 4. The
witness described Nsengiyumva’s general role during the genocide later in the statement (p. 5).
1872
See also Nsengiyumva Defence Exhibit 26A (statement of 7 October 1997 to Tribunal investigators), p. 4,
which reads: “Omari Faizi also killed the wife of one Longin who was a trainer of a soccer team in Gisenyi
called ‘Étincelle’. I got the story about these killings from one Interahamwe called Kiguru.” The statement
suggests that Witness DO overheard this being reported to Bizumuremyi as he was driving him around.
1873
The Chamber has taken into account the Prosecution suggestion to Witness USA-1 during crossexamination that Anatole Nsengiyumva, who had accompanied Espérance to the bank on 12 April, was one of
very few who knew where she was hiding. T. 2 October 2006 pp. 51-55. If the implication is that he informed
Serushago about her whereabouts there is no support for that conclusion in Serushago’s testimony.
1874
The two witnesses gave different evidence about what happened to Espérance’s children after her abduction.
The Prosecution did not cross-examine Witness WHO-1.
Judgement and Sentence
429
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
event. He attended the closed meeting of prominent personalities as Barnabé Samvura’s
escort but denied being a part of his militia. Evidence addressed elsewhere in the judgement
raises some question as to whether the witness had the relationship he claimed to have had
with Samvura (III.3.6.2). The witness was also not able to identify Bagosora at the meeting or
in court.1875 Bagosora presented alibi evidence that raises reasonable doubt about the
reliability of the witness’s evidence that Bagosora was in Gisenyi for a meeting at the
beginning of June (III.6.1). For the foregoing reasons, the Chamber is unwilling to accept
Witness ABQ’s account of this meeting without corroboration.
1720. Accordingly, the Prosecution has not proven beyond reasonable doubt that Bagosora
and Nsengiyumva attended a meeting at the Méridien Hôtel in the beginning of June or that
Nsengiyumva ordered Serushago to abduct Espérance Uwayirege and to kill her at the
Commune Rouge.
1721. The Chamber previously admitted Witness ABQ’s testimony in relation to the
meeting at the Méridien Hôtel.1876 In light of its findings, the Chamber does not find it
necessary to address the Bagosora and Nsengiyumva Defence notice challenges.
4.2.6
Sexual Violence
Introduction
1722. The Nsengiyumva Indictment alleges that, between April and July 1994, Bernard
Munyagishari, his group of militiamen and Omar Serushago’s group of militiamen abducted,
confined and sexually assaulted Tutsi women. The Prosecution alleges that, during this
period, soldiers and militiamen under Nsengiyumva’s control acted with his knowledge and
consent in committing numerous rapes and murders against the Tutsi population. Reference is
made primarily to Witnesses ZF and Omar Serushago.1877
1723. The Nsengiyumva Defence maintains that these allegations are not pleaded in the
Indictment. Furthermore, the Prosecution evidence, which lacks credibility, fails to establish
that Nsengiyumva committed rape or that he knew or should have known about sexual
assaults committed by his subordinates.1878
1875
T. 6 September 2004 p. 44 (“In fact, I am not sure that I would recognise him if I saw him today. I will not
be able to recognise him if I saw him.”).
1876
Decision on Bagosora Motion for Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May
2007, para. 17.
1877
Nsengiyumva Indictment, paras. 6.24, 6.34; Prosecution Closing Brief, paras. 165-166, 168, 178, 180-182,
480, pp. 887-888, 892-896. The Prosecution also refers to Witness OAB’s testimony related to the rape of
Longin’s wife Thérèse by Serushago (III.4.2.5). Additionally, it points to the testimony of Witness OAB,
according to which, on the night of 7 April 1994 at the Gisenyi military camp, Nsengiyumva said to an
Interahamwe concerning a certain Marie-Louise: “do what you want to do with that Tutsi woman”. See T. 24
June 2003 pp. 45, 50. The Chamber has not accepted Witness OAB’s uncorroborated testimony about the events
at the camp that night (III.3.6.2) and declines to do so also in this context. Finally, the Prosecution refers to
Witness OAB’s evidence to support allegations that rapes occurred in the houses of the Interahamwe in Gisenyi.
Prosecution Closing Brief, paras. 180, 1028(i). The Chamber excluded this evidence for lack of notice during
the witness’s testimony. T. 24 June 2003 pp. 61-64.
1878
Nsengiyumva Closing Brief, paras. 162, 168, 970-986, 995-1030, 1131, 1172-1181, 1986, 2012, 3185-3188,
3196-3197, 3212-3215, 3281-3286.
Judgement and Sentence
430
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Evidence
Prosecution Witness ZF
1724. Witness ZF, a Hutu based at Butotori military camp, knew Omar Serushago, Thomas
and Damas, and that they led small groups of Interahamwe militiamen in Gisenyi. Sometime
after 6 April 1994, Damas told the witness that he, Omar Serushago, Thomas, other
Interahamwe and Impuzamugambi had a house where they raped young Tutsi women before
executing them. Witness ZF and Lieutenant Bizumuremyi also visited this house. During the
visit, the witness noticed one young Tutsi girl there. Damas informed Bizumuremyi that the
house was used for raping women and girls before executing them. Bizumuremyi told Damas
that failure to execute these girls might lead them to flee abroad and join the RPF’s ranks. 1879
1725. At some point in April, Witness ZF accompanied Nsengiyumva to the Commune
Rouge, a cemetery in Gisenyi where people were executed. As their vehicle stopped briefly,
the witness saw a group of militiamen, led by Omar Serushago and armed with traditional
weapons and guns, who were standing near another group of naked civilians. Serushago
saluted Nsengiyumva. They continued on their way after Nsengiyumva spoke with the militia
leaders there, including Serushago.1880
Prosecution Witness Omar Serushago
1726. Omar Serushago, a Hutu Interahamwe leader in Gisenyi, testified that he was only
aware of rapes committed by Bernard Munyagishari, the head of the Interahamwe, and by
soldiers and militiamen at the Commune Rouge. Munyagishari told Serushago that he raped
women on the nights of 6 and 7 April 1994. Serushago also stated that soldiers participated in
raping women at the Commune Rouge. He gave the example of a reservist and intelligence
officer named Migendo who raped members of a religious order affiliated with the Gisenyi
parish. According to Serushago, Nsengiyumva never issued any orders to commit rape;
however, he was aware of these crimes because he was the operations commander, travelled
around the area and likely received reports.1881
Nsengiyumva
1727. Nsengiyumva stated that no soldier under his command committed rape. He never
received reports of rape from Witness ZF or Bizumuremyi, and denied knowledge of the rape
house described by Witness ZF. He had no knowledge of rapes committed anywhere in
Gisenyi by militiamen, including Bernard Munyagishari, Omar Serushago, Thomas and
Damas. Nsengiyumva further denied that Migendo was one of his soldiers or that he had ever
gone anywhere with Witness ZF.1882
1879
T. 26 November 2002 pp. 94-95; T. 27 November 2002 pp. 13, 31-32; T. 28 November 2002 pp. 30-32, 5961, 79-80; T. 5 December 2002 pp. 79-90. Witness ZF’s father was a Hutu, but the witness was raised as a Tutsi
by his mother’s family. See T. 27 November 2002 p. 13.
1880
T. 28 November 2002 pp. 58-59.
1881
T. 18 June 2003 pp. 2, 29, 51-52, 58-59; T. 19 June 2003 pp. 30-33; Prosecution Exhibit 54 (personal
identification sheet). On 5 February 1999, pursuant to a plea agreement, Omar Serushago was found guilty by
the Tribunal of genocide, murder, extermination and torture for crimes he committed as an Interahamwe in
Gisenyi. He was sentenced to 15 years imprisonment. See T. 18 June 2003 pp. 2-3, 41; Serushago Trial
Judgement, p. 15.
1882
T. 6 October 2006 pp. 34-35, 45-47; T. 9 October 2006 pp. 38, 60-61; T. 11 October 2006 p. 23; T. 12
October 2006 pp. 91-93, 95; T. 13 October 2006 p. 8.
Judgement and Sentence
431
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Deliberations
1728. It is well known that rape and other forms of sexual violence were widespread in
Rwanda during the events in 1994. This follows in part from Prosecution Expert Witness
Binaifer Nowrojee.1883 The Chamber has determined that these acts were committed open and
notoriously at Kigali area roadblocks (III.5.1; III.4.1.7), the Kabgayi religious centre
(III.4.4.1), and during the attacks at the Saint Josephite Centre (III.3.5.5) and Gikondo Parish
(III.3.5.8). Furthermore, the case law of this Tribunal has shown that sexual violence was
widespread.1884 The question here is whether Nsengiyumva is responsible for specific acts of
rape committed in Gisenyi prefecture as alleged by Witnesses ZF and Serushago.
1729. The Prosecution presented two main witnesses in order to prove allegations of rape or
other forms of sexual violence in Gisenyi prefecture during the relevant events. Witness ZF
provided the only testimony on the existence of the rape house allegedly used by militiamen
in Gisenyi. His testimony is largely second-hand, although he claims that he visited the house
with Lieutenant Bizumuremyi. It is also uncorroborated. Furthermore, he also did not witness
any specific crimes of sexual violence there. His testimony concerning Nsengiyumva’s
alleged visit to the Commune Rouge is similarly uncorroborated. The Prosecution did not
examine Serushago, who Witness ZF saw there, on this alleged incident. The Chamber has
elsewhere expressed concern about the credibility of other aspects of Witness ZF’s testimony
(III.2.7-9; III.3.6.1). The Chamber views his testimony concerning the rape house with
caution. The Chamber therefore declines to accept Witness ZF’s testimony on these points
without corroboration.
1730. Serushago testified generally about rape committed by militiamen and soldiers at the
Commune Rouge. He provided only one example of rape committed there, referring to a rape
involving an alleged military reservist named Migendo who was also an intelligence officer.
No detail was provided about this incident, and it is not clear whether Serushago has direct
knowledge of the incident. The Chamber notes the difference between his testimony and his
statement in February 1998 to Tribunal investigators where he said Migendo had left the
military.1885 Serushago claimed that his statement was not properly interpreted.1886 However,
this explanation is not entirely convincing, in particular since the investigator confirmed
Migendo’s status with Serushago during the interview.
1731. Serushago is the sole witness to testify about rapes committed by Munyagishari. His
evidence on this point is second-hand and lacking in any detail. Serushago is an alleged
1883
See, e.g., Prosecution Exhibit 291 (Expert Report of Binaifer Nowrojee), paras. 13-27, 48; Nowrejee, T. 12
July 2004 pp. 85-91, 98. The Chamber admitted Nowrejee as an expert in relation to her investigations of sexual
crimes in Rwanda based on her interviews and field investigations. It concluded that her evidence was relevant
to the pattern of sexual violence in 1994, including whether it was widespread, public, and the level of brutality
compared to other armed conflicts, and whether it appeared organised. T. 12 July 2004 pp. 72-73. She testified
about sexual violence in general during the conflict and did not provide specific evidence on Gisenyi prefecture.
1884
See, e.g., Muhimana Appeal Judgement, para. 53 (“The Appellant’s conviction for rape as a crime against
humanity, for which he was sentenced to life imprisonment, rests on his commission of or complicity in the
rapes of ten … individuals”); Gacumbitsi Appeal Judgement, para. 102 (“[T]he Trial Chamber reasonably
concluded that there was a widespread and systematic attack against Tutsis in Rusumo Commune. Its further
conclusion that the rapes formed part of this attack was also reasonable in light of the finding that ‘the victims of
rape were chosen because of their Tutsi ethnic origin, or because of their relationship with a person of the Tutsi
ethnic group’”.); Semanza Trial Judgement, para. 479; Akeyesu Trial Judgement, paras. 692-695.
1885
Nsengiyumva Defence Exhibit 18 (Excerpt of interviews from 11 to 13 February 1998).
1886
T. 19 June 2003 p. 32.
Judgement and Sentence
432
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
accomplice of Nsengiyumva, who has been convicted of genocide. The Chamber views his
evidence with caution. In view of these concerns, the Chamber declines to accept these parts
of his testimony without corroboration. The Nsengiyumva Defence also points to the
evidence of Witnesses CF-1 and NR-1, attesting to Serushago boasting about rapes he
committed, to attack his credibility.1887 In view of the Chamber’s findings, it is not necessary
to assess these second-hand allegations in detail.
1732. Accordingly, the Prosecution has not established beyond reasonable doubt the
allegations connecting Nsengiyumva to sexual violence in Gisenyi prefecture.1888
1733. The Chamber held during the trial that Nsengiyumva had adequate notice of his
alleged role in these crimes.1889 It is therefore not necessary to revisit the Defence’s
challenges to the notice provided for these incidents in the Indictment.
1887
Nsengiyumva Closing Brief, para. 998.
The Prosecution also refers to the testimony of Nsengiyumva Defence Witness RO-1 that women lived in
Nsengiyumva’s house as evidence supporting its claims against Nsengiyumva. See Prosecution Closing Brief,
para. 182. However, Witness RO-1 testified that he was informed by members of Nsengiyumva’s escort that
these women had sought “refuge” in Nsengiyumva’s home – not that they were being held against their will and
subjected to rape. Nothing in his testimony suggests otherwise. T. 27 July 2005 pp. 12-14; T. 28 July 2005 pp.
7-8. In the Chamber’s view, this evidence does not support the Prosecution’s contention that Nsengiyumva was
responsible for rapes.
1889
Decision on Nsengiyumva Motion For Exclusion of Evidence Outside the Scope of the Indictment (TC), 15
September 2006, paras. 64-67.
1888
Judgement and Sentence
433
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.3
Butare Prefecture
Introduction
1734. According to the Bagosora Indictment as well as the Kabiligi and Ntabakuze
Indictment, Rwanda’s civil and military leaders “took the necessary steps for Tutsis to be
eliminated” in Butare prefecture. In particular, on 20 April 1994, two military planes landed
in Butare with numerous Presidential Guard and Para Commando Battalion soldiers. It is
alleged that these soldiers in tandem with the Interahamwe of Butare and elsewhere, such as
Kigali, took part in murdering and massacring civilians. Reference is made primarily to
Witnesses A, LN, Brent Beardsley as well as Expert Witnesses Alison Des Forges and Filip
Reyntjens.1890
1735. The Bagosora Defence submits that Bagosora was not in Butare during the massacres,
and that he had no command or control over the army or the Interahamwe there. The Kabiligi
Defence argues that there is no link between Kabiligi and the alleged perpetrators of the
killings in Butare, and that he was outside of Rwanda between 6 and 23 April 1994 (III.6.2).
According to the Ntabakuze Defence, none of the allegations relate to Ntabakuze.
Furthermore, there is no evidence that military aircraft transported Presidential Guard and
Para Commando Battalion soldiers to Butare.1891
Evidence
Prosecution Witness A
1736. Witness A, a Hutu senior official in the Interahamwe, testified that he and his family
evacuated Kigali on 12 April 1994 after learning that the interim government also had fled
the capital. He travelled without difficulty to Butare prefecture, as roadblocks had not yet
been established outside Kigali. There were no signs of killings in Butare. However, after 12
April, Callixte Kalimanzira, a Butare native and the secretary-general of the Ministry of the
Interior, was encouraging civilians to man roadblocks. The witness crossed more than 50
roadblocks in Kigali, many of which were manned by armed Interahamwe, when he returned
there briefly around 24 April.1892
1737. The killings in Butare prefecture began on 19 April, shortly after the interim
government replaced Prefect Jean-Baptiste Habyilimana, a Tutsi member of the PL party,
with Sylvain Nsabimana, a Hutu member of the PSD party. On that date, President
Sindikubwabo, accompanied by Prime Minister Kambanda, delivered an inflammatory
speech in the area, provoking the local population to kill Tutsis by making statements such
as: “Don’t think that this is none of your business; it is your business and you have to do it.”
1890
Bagosora Indictment, paras. 6.56-6.57; Kabiligi and Ntabakuze Indictment, paras. 6.40-6.41; Prosecution
Closing Brief, paras. 380-397, pp. 769-770, 838-839. The killings in Butare prefecture are not mentioned in the
Nsengiyumva Indictment. The Indictments include the specific killing of Rosalie Gicanda, but the Prosecution
presented no evidence on this allegation. The Prosecution also refers to Witness DBN, a member of the Para
Commando Battalion, who heard RTLM broadcasts advocating the killing of Tutsis in Butare prefecture. See T.
31 March 2004 pp. 61, 63; T. 1 April 2004 p. 60.
1891
Bagosora Closing Brief, p. 382; Kabiligi Closing Brief, paras. 216, 301; Ntabakuze Closing Brief, paras.
2264, 2466.
1892
T. 1 June 2004 pp. 22, 62-64, 67-70, 79; T. 3 June 2004 pp. 97-98; T. 4 June 2004 p. 28; Prosecution Exhibit
222 (personal identification sheet).
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434
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Until that point, the local Hutus had resisted killing Tutsis because of a long history of intermarriage and peaceful co-existence with them.1893
1738. After the President’s speech on 19 April, soldiers and the local population started the
killings in Butare town. In particular, a group of Interahamwe from Kigali tried to kill
Witness A’s cousin that night but spared him after receiving 30,000 Rwandan francs. The
witness believed that soldiers under Captain Nizeyimana from the École des Sous-Officiers
(“ESO”), a local military school, were responsible for some of the area killings. He also heard
from some youths that, after the President’s speech, they drowned several Tutsis following a
request by the head of their cellule. The witness claimed that he did not see any of the
massacres. On two occasions, he was asked respectively by Bourgmestre Kanyabashi and
Colonel Muvunyi of ESO to prevent Interahamwe, who accompanied Robert Kajuga to
Butare, from looting in the area.1894
Prosecution Witness LN
1739. Witness LN, a Tutsi member of the Para Commando Battalion who joined the medical
company in 1994, stated that injured soldiers from the hospital at Camp Kanombe were
evacuated to Butare prefecture around 27 April 1994. He stayed at the ESO in Butare until 12
June 1994, when he was moved to Cyangugu prefecture. Around 11.00 a.m. at one point in
May, he saw an Interahamwe pull a girl who was no more than 13 years’ old from a crowd of
refugees gathered near a roadblock near the prefecture office. The Interahamwe openly raped
the girl while calling her an Inyenzi. Several soldiers passed but did nothing to stop the crime.
The Interahamwe then began to harass other women as the witness walked back to the ESO.
The witness did not observe any officers present. Other soldiers told him later that rape was
not an unusual occurrence. The witness had also seen bodies at roadblocks in town manned
by Interahamwe.1895
Prosecution Witness Brent Beardsley
1740. Major Beardsley, General Dallaire’s assistant in UNAMIR, said that the Butare region
was peaceful for two weeks after the death of President Habyarimana. In his opinion, this
peaceful period ended when units from the Presidential Guard went to Butare and began to
kill Tutsis. A speech made by Jean Kambanda around that time also provoked massacres.
Beardsley noted that an incident at a hospital was the catalyst for the departure of Médecins
Sans Frontière.1896
Prosecution Expert Witness Alison Des Forges
1741. Alison Des Forges, an expert in Rwandan history, testified that, until 16 to 17 April
1994, the massacres in Rwanda had not extended to Butare prefecture. This changed after the
interim government replaced the Tutsi prefect there. Moreover, on 19 April 1994, President
Sindikubwabo and Prime Minister Kambanda, both of whom were from Butare prefecture,
visited Butare town. As the new prefect was installed, President Sindikubwabo gave an
1893
T. 1 June 2004 pp. 62-63, 65; T. 3 June 2004 pp. 97-98; T. 4 June 2004 pp. 22-23.
T. 1 June 2004 pp. 63-64; T. 3 June 2004 pp. 49-51, 97-98; T. 4 June 2004 p. 25. Witness A also testified
that Interahamwe tried to kill his cousin but refrained upon learning of the witness’s position in the
Interahamwe.
1895
T. 30 March 2004 pp. 48-50, 78-88; T. 31 March 2004 pp. 1-2, 51-53; Prosecution Exhibit 197 (personal
identification sheet).
1896
T. 5 February 2004 p. 89.
1894
Judgement and Sentence
435
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
inflammatory speech flanked by several ministers, including Kambanda, and local officials.
Sindikubwabo’s message was that “we must all participate”. Afterwards, Kambanda gave a
similar speech.1897
1742. That afternoon, groups of soldiers and militia arrived in Butare prefecture by bus from
Kigali to reinforce the local military. In the following days, these assailants joined local
forces from the ESO, the Ngoma military camp and the police headquarters. They killed
Tutsis throughout the prefecture, in particular near a school called the Groupe Scolaire, the
university, the water reservoir, the health centre at Matyazo and the Ngoma church. Des
Forges highlighted the role of Lieutenant Hategekimana, from Ngoma military camp, who in
her view, played a prominent role in the killings.1898
Prosecution Witness Filip Reyntjens
1743. According to Filip Reyntjens, an expert in Rwandan history, soldiers from the Ngoma
military camp and the ESO were involved in killings in Butare prefecture. In his view, the
participation of soldiers was not simply the result of indiscipline, but rather orders from local
officers. However, the impetus for the killings came from lower-ranking officers, such as
lieutenants. Officers of a higher rank, including Colonel Muvunyi of the ESO, were
powerless to stop them. In Reyntjens’s opinion, the Presidential Guard and outside
Interahamwe groups played an important role in starting the massacres in Butare prefecture
on 19 and 20 April 1994 and in overcoming local resistance to participating in the killings.1899
Bagosora
1744. Bagosora conceded that massacres took place in Butare from 19 April 1994 but
denied responsibility for them. In his view, the massacres were a result of the desperation
arising from the war and the pressure from the RPF which had alarmed the people and driven
them to the interior of the country. The interim government, which was in flight, had no
credibility. In those chaotic circumstances, the population turned on each other. The fact that
the massacres in Butare and elsewhere in Rwanda occurred at different times in areas proved
that there was no coordinated plan to eliminate the Tutsis.1900
Deliberations
1745. There is no dispute that massacres and other crimes occurred in Butare prefecture
after President Sindikubwabo and Prime Minister Kambanda visited the region on 19 April
1994. In the present case, most of the evidence of crimes committed there, which the
Prosecution relies on, is general and largely second-hand.
1897
T. 10 September 2002 pp. 29-30; T. 18 September 2002 pp. 114-117. In particular, President Sindikubwabo
said: “We have come from far away; now we’ll wait to see your reaction … If you do not participate, you, too,
are an enemy.” She also quoted him as saying: “You, too, are involved. Even here in Butare, the furthest
possible point from the battlefront, you, too, must join in this campaign against the enemy, because you cannot
stand aside and pretend it does not touch you. You all are concerned.”
1898
T. 18 September 2002 pp. 115-117. Des Forges did not identify the unit of the soldiers who arrived in
Butare prefecture from Kigali.
1899
T. 16 September 2004 pp. 2-4; T. 21 September 2004 pp. 27-29. Reyntjens also noted the similiarities
between the attacks in Butare prefecture in mid-April 1994 and earlier massacres in the Bugesera region in
1992, notably the introduction of Presidential Guard and outside Interahamwe groups to start the killings.
1900
T. 7 November 2005 p. 52; T. 10 November 2005 pp. 16-17.
Judgement and Sentence
436
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1746. Witness A spoke about soldiers perpetrating crimes in Butare prefecture, but gave few
details about specific events other than an incident where local youths drowned Tutsis after
the President’s speech. He also claimed that he never saw any of the killings. Beardsley
briefly referred to an incident at the hospital in Butare prefecture but did not indicate his basis
of knowledge. Des Forges and Reyntjens were called as experts, mainly to provide
background and context, and not as factual witnesses. Their evidence therefore gave no
details on the specific attacks. Only Witness LN, who personally witnessed an Interahamwe
rape a young girl at a roadblock in May 1994, offered direct and specific evidence. The
Chamber considers this credible, but it does not directly implicate any of the Accused.
1747. The Prosecution did not present any evidence that members of the Para Commando
Battalion were dispatched to Butare prefecture on 20 April. Witness LN mentioned the
transfer of wounded soldiers there from the hospital at Camp Kanombe on 27 April, which
was precipitated by the impending fall of the camp to the RPF. This evidence refers to a
different set of circumstances than the reference in the Indictment to the infusion of soldiers
from Kigali on 20 April to participate in killings. Furthermore, Witness LN did not refer to
any particular crimes committed by these wounded soldiers.
1748. The evidence that members of the Presidential Guard arrived in Butare prefecture on
20 April to participate in attacks comes primarily from Beardsley and Reyntjens. Des Forges
mentioned the arrival of soldiers, but did not specify their unit. None of these witnesses had
first-hand knowledge of the alleged transfer of soldiers, and the basis of their knowledge is
unclear and general.1901 Even if the Chamber accepts this evidence, the Prosecution has still
not clearly shown that the killings resulted primarily from the the infusion of outside forces
from Kigali, the role played by Bagosora, Kabiligi or Ntabakuze in their transfer, or the exact
nature of the participation of the Presidential Guard in the killings.
1749. The Chamber has not found that Bagosora had general authority over the Rwandan
military after 9 April (IV.1.2). There is no specific evidence linking him to the events in
Butare. The Chamber has accepted Kabiligi’s alibi that he was in Nairobi around 20 April
(III.6.2). It has also not found that he had command over the army (IV.1.3). Other evidence
indicates that the Para Commando Battalion was stationed along the frontline with the RPF in
Kigali until 22 May when it retreated to Kabusunzu. The battalion then briefly was stationed
in Muyira commune, Butare prefecture from 25 to 27 May 1994 before relocating to
Gitarama prefecture (III.4.1.13-14; III.4.4.1). The Prosecution did not present any evidence
concerning crimes committed by members of the battalion while briefly in Butare prefecture.
1750. Accordingly, the Prosecution has not proven beyond reasonable doubt that the
Accused participated in the crimes committed in Butare prefecture.
1901
Beardsley’s brief testimony on this point occurred at the end of his cross-examination by the Defence, and
no further clarification was sought from the parties. Des Forges provided no explanation for the source of her
testimony. Reyntjens was not questioned on the basis of his knowledge concerning the deployment of the
Presidential Guard.
Judgement and Sentence
437
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.4
4.4.1
Gitarama Prefecture
Kabgayi Religious Centre, April - June
Introduction
1751. The Bagosora Indictment as well as the Kabiligi and Ntabakuze Indictment allege
that, on several occasions between April and June 1994, soldiers and Interahamwe militiamen
abducted and raped female Tutsi students and refugees at the nursing school in the Kabgayi
religious centre in Gitarama prefecture. The Minister of Defence and the General Staff of the
Rwandan Army were allegedly informed about these crimes and did nothing to stop them.
The Prosecution also contends that Ntabakuze allegedly ordered the killing of around 80
Tutsi refugees at the centre in April or May 1994. Reference is made to Witnesses XAI,
XXY, DAZ and UT as well as Expert Witness Alison Des Forges.1902
1752. The Ntabakuze and Kabiligi Defence teams reiterate that the specific allegations
concerning their role in the crimes committed at Kabgayi are not pleaded in their Indictment.
The Ntabakuze Defence submits that the Prosecution evidence placing Ntabakuze at Kabgayi
lacks credibility. The evidence from Witnesses DI-35, DH-133, DH-51 and DM-25
contradicts the Prosecution’s case. The Bagosora Defence argues that the perpetrators of the
attacks are not sufficiently identified and disputes the allegations against Bagosora.1903
Evidence
Prosecution Witness XAI
1753. Witness XAI, a Hutu soldier with the 17th Battalion in Byumba prefecture, testified
that he was being treated at the military hospital at Camp Kanombe at the beginning of April
1994. Between 15 and 20 April, he and 80 to 120 other wounded soldiers were transferred to
the Centre Hospitalier de Kigali (CHK). After staying there for two to three weeks, he was
moved again with 800 wounded soldiers to the hospital at the Kabgayi religious centre in
Gitarama prefecture around the end of April or beginning of May. He remained there for two
to three weeks until he was transferred to another hospital in Gisenyi prefecture. Witness XAI
explained that the wounded soldiers were relocated at each stage when their location was on
the verge of capture.1904
1754. About one and a half weeks after he arrived at Kabgayi, Witness XAI saw Ntabakuze
come to the hospital with a gendarmerie major called Anne-Marie Nyirahakizimana, in order
to boost the morale of the injured soldiers. At the time, a number of soldiers were forced to
sleep outside because there were not enough beds in the hospital. Ntabakuze walked around
the hospital as well as the surrounding area where there were around 80 to 120 Tutsi
1902
Bagosora Indictment, para. 6.60; Kabiligi and Ntabakuze Indictment para. 6.42; Prosecution Closing Brief,
paras. 398-416, 1096(c), 1456(e, f), 1457(c), 1464(c, g), 1473-1476, pp. 771, 839; T. 28 May 2007 p. 19.
1903
Ntabakuze Closing Brief, paras. 336-355, 370-384, 1950-2007, 2180-2181, 2232, 2265-2266, 2492-2495;
Kabiligi Closing Brief, paras. 217, 228; Bagosora Closing Brief, paras. 692-710, 1439-1445, 1726-1727. See
also T. 28 May 2007 p. 32 (Kabiligi); T. 30 May 2007 pp. 69, 77, 83 (Ntabakuze); T. 31 May 2007 pp. 9-10
(Ntabakuze).
1904
T. 8 September 2003 pp. 5-11, 13, 17-18, 52-54, 58-59; T. 9 September 2003 pp. 37-38; T. 11 September
2003 pp. 13-15; T. 12 September 2003 p. 12; Prosecution Exhibit 94 (personal identification sheet). Witness
XAI explained that the dates he provided were only estimates.
Judgement and Sentence
438
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
refugees. After decrying that “nothing has been done” in Gitarama, Ntabakuze approached a
group of soldiers near the witness and said: “Soldiers are there in broad daylight outside and
Tutsis are inside houses … If you cannot do anything, I am going to bring Interahamwe,
known as Zulus, from Mushubati.” Ntabakuze and Anne-Marie left, and 10 to 15 minutes
later a group of about 30 armed Interahamwe arrived. The assailants took about 80 Tutsi
refugees towards a nearby wooded area, and 20 minutes later Witness XAI heard explosions
and screams coming from there.1905
Prosecution Witness XXY
1755. Witness XXY, a Hutu, worked at the junior seminary in the Kabgayi religious centre
assisting one of the priests in distributing food to Tutsi refugees there. According to the
witness, the massacres in Gitarama prefecture began in the middle of May 1994. He heard
from Jean-Claude Uwiragiye, a member of the Para Commando Battalion, that the battalion
had been transferred to Mushubati in Gitarama in order to reinforce the local Interahamwe,
who were too weak. Uwiragiye told the witness that Ntabakuze dispatched his soldiers to
assist the Interahamwe kill Tutsis throughout Gitarama and Kibuye prefectures. Uwiragiye
also spoke about an incident, occurring sometime before 2 June, where Ntabakuze and two
wounded soldiers went to Kabgayi hospital and handed injured Tutsi refugees there to
Interahamwe at a nearby roadblock to be killed. Beginning at some point in May, the
“Zulus”, a local Interahamwe group killed around 500 to 1,000 Tutsi refugees at Kabgayi.1906
1756. With respect to other events in Gitarama prefecture, the witness also testified that,
after the interim government arrived, the witness saw Bagosora in his military Mercedes
Benz jeep in Gitarama town. Soldiers told him that Bagosora was travelling around the
country giving military instructions. After the fall of Gitarama to the RPF, the witness again
saw Bagosora at Bulinga, saying to Interhamwe: “You can see that Tutsis are causing you to
flee. Wherever you go, kill the Tutsis, right up to the babies.” Bagosora then drove towards
Kigali.1907
Prosecution Witness DAZ
1757. Witness DAZ, a Tutsi, was a refugee at the nursing school at the Kabgayi religious
centre in Gitarama prefecture from April until June 1994. Her written statement was admitted
pursuant to Rule 92 bis, and she was cross-examined by the Defence in relation to Kabgayi.
The witness estimated that approximately 3,000 refugees were at the centre during this
period. A group of two or three soldiers and 10 to 15 Interahamwe came to the school around
three times a week, usually between 10.00 and 11.00 a.m., to abduct young men and
intellectuals. Sometimes these assailants carried lists and searched for specific individuals.
1905
T. 8 September 2003 pp. 53-59; T. 12 September 2003 pp. 15-25, 34-38. Witness XAI referred to the other
officer allegedly with Ntabakuze as a major named Anne-Marie without indicating her last name. The Chamber
considers that this is a reference to Major Anne-Marie Nyirahakizimana, who was convicted in Rwanda of
crimes committed at the Kabgayi religious centre. See Ntabakuze Defence Exhibit 2 (Rwandan judgment of 3
June 1999).
1906
T. 11 June 2004 pp. 4, 15, 19, 24, 31-32; T. 30 June 2004 pp. 79-83, 98; Prosecution Exhibit 262 (personal
identification sheet). Witness XXY also testified about other killings as well as sexual violence committed by
Interahamwe in Gitarama prefecture at places including the Mu Biti roadblock and Nyabisindu.
1907
T. 11 June 2004 pp. 17-18; T. 1 July 2004 pp. 77-80, 83-89, 93-94. Witness XXY identified Bagosora in
court. T. 11 June 2004 p. 16. The witness did not specify when or how frequently he saw Bagosora in Gitarama
town.
Judgement and Sentence
439
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
The persons taken from the school were never seen again by the witness. The assailants also
abducted women in order to rape them. In addition, there were wounded soldiers at the school
who would rape the female refugees at night. The witness saw around four dead bodies every
morning.1908
1758. Two soldiers raped Witness DAZ on 26 May around 7.00 p.m. in one of the rooms at
the nursing school. The soldiers beat her with their guns as they took her to the room. When
they arrived, the soldiers asked her if she was Tutsi. After she said “yes”, a soldier raped her
while calling her an Inyenzi. The soldiers also said that they were raping her because she was
a Tutsi. Another soldier raped her in the same room on 28 May, calling her an Inyenzi and
telling her that she must suffer because of her kinsmen. The witness was able to identify the
perpetrators as soldiers because they wore uniforms. However, she acknowledged that she
could not distinguish between soldiers by their unit or rank and that she had never seen a
gendarme.1909
Prosecution Witness UT
1759. Witness UT, a Tutsi, was a refugee at the Kabgayi religious centre. Her statement was
admitted pursuant to Rule 92 bis. She was cross-examined by the Defence in connection with
the events at Gikondo Parish, but was not questioned on Kabgayi. The witness stated that
soldiers and Interahamwe abducted injured refugees, including her husband, and killed them.
Soldiers also came at night to take young women. The women would return the next morning
and speak about suffering repeated rapes by multiple soldiers. They wore camouflage
uniforms and various types of head gear. The witness stated that she could distinguish
between soldiers and gendarmes by the color of their berets, but was not able to identify a
particular unit.1910
Prosecution Expert Witness Alison Des Forges
1760. According to Des Forges, an expert in Rwandan history, the killings in Gitarama
prefecture began after 17 April 1994 when the government removed a prefect known for
resisting the killings. She also stated that thousands of Tutsis sought refuge at the Kabgayi
religious centre. Groups of Interahamwe and local officials would come there with lists of
individuals whom they were seeking.1911
Ntabakuze
1761. Ntabakuze testified that he did not visit the Kabgayi religious centre because he was
at the war front in Kigali until the end of May 1994. The Para Commando Battalion was
1908
Prosecution Exhibit 274 (statement of 28 April 1999); T. 16 June 2004 pp. 3, 6-8, 10.
Prosecution Exhibit 274 (statement of 28 April 1999); T. 16 June 2004 pp. 5-6, 9-11.
1910
T. 9 June 2004 p. 27; Prosecution Exhibit 259 (statement of 20 October 1998).
1911
T. 17 September 2002 pp. 61-62; T. 18 September 2002 p. 114. Des Forges’s book Leave None to Tell the
Story reflects that around 30,000 mostly Tutsi refugees gathered under the protection of the religious officials at
the Kabgayi religious centre. In many cases, local officials brought Tutsi refugees from the surrounding areas to
safeguard them, but some officials, in her opinion, did so as part of a genocidal plan. Military officials never
launched a major attack on the centre, but were planning to before the RPF seized the area on 2 June 1994. The
book notes that around 1,500 persons were taken in small groups during the course of the events and killed. It
also refers to harassment of refugees by wounded soldiers at the centre. See Prosecution Exhibit 3 (Alison Des
Forges, Leave None to Tell the Story (1999)), pp. 226, 241, 247, 278. With respect to other crimes in Gitarama,
her expert report refers without elaboration to attacks at Mugina, Musambira and Byimana. Prosecution Exhibit
2A (Expert Report of Alison Des Forges), p. 48.
1909
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440
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
deployed in various positions from the Giporoso junction to the Sonatube junction in Kigali
from 7 April until 22 May, when the battalion retreated to Kabusunzu for two to three days.
On 25 May, the battalion was transferred to Muyira commune in Butare prefecture to
reinforce the Bugesera operational sector. When the RPF captured Nyanza in Butare
prefecture on 29 May, the Para Commando Battalion was involved in delaying operations
along the Nyanza-Gitarama road until the capture of Kabgayi by the RPF on 2 June. After
that, the battalion was engaged in fighting in Gitarama town until its fall on 12 June. From 12
June until 17 July, the battalion was engaged in delaying operations along the GitaramaGisenyi road.1912
Ntabakuze Defence Witness DI-35
1762. Witness DI-35, a Hutu army officer, was stationed at the Gitarama military camp
from August 1993 until his transfer to Kigali on 4 May 1994. The camp consisted of around
150 convalescing soldiers who were not combat ready. The camp nonetheless maintained
several defensive positions in the area, including one at the Kabgayi religious centre and two
others nearby, in order to collect intelligence and defend against an RPF attack. The
gendarmerie ensured the area’s overall security and had a post at Mbare, two kilometres from
the Kabagayi religious centre.1913
1763. After the death of President Habyarimana, several thousand mostly Tutsi refugees
came to the centre, fleeing the resumption of hostilities and ethnic violence in the
surrounding areas, eventually numbering more than 20,000. Injured soldiers from the war
front arrived at the Kabgayi hospital shortly after the resumption of hostilities for emergency
treatment, but they were not forced to stay outside on the centre’s grounds. During his time in
Gitarama, Witness DI-35 did not hear about any crimes committed at the centre. He
explained that, given the military positions there and nearby, the officers at the camp would
have been notified if crimes had been committed. He also had not heard of an Interahamwe
group known as the “Zulus”. He added that Ntabakuze never visited the centre, noting that
the Para Commando Battalion was on the frontline in Kigali at the time.1914
Ntabakuze Defence Witness DH-133
1764. Witness DH-133, a Hutu student at the seminary in the Kabgayi religious centre,
testified that he was at the centre’s hospital caring for an injured relative from 15 April until 1
June 1994. He described Kabgayi religious centre as a large religious complex with several
buildings, including the largest hospital in Gitarama, surrounded by woods on top of a hill
covering around six hectares. While at Kabgayi during this period, he spent around 15 hours
a day at the hospital caring for the wounded, but at times also moved freely about the other
parts of the centre. Around 25,000 Hutu and Tutsi persons, cared for by CARITAS and the
1912
T. 18 September 2006 pp. 65-66; T. 20 September 2006 pp. 15-29; T. 21 September 2006 pp. 22-24;
Ntabakuze Defence Exhibit 235 (Para Commando Battalion background), p. 38. This exhibit was prepared by
Ntabakuze.
1913
T. 24 November 2005 pp. 22-24, 27, 29-35, 37-38, 42, 45-48; Ntabakuze Defence Exhibit 196 (personal
identification sheet). Witness DI-35 prepared two sketches of Gitarama town and the Kabgayi religious centre
and identified the various locations, which he described. See Ntabakuze Defence Exhibit 197 (Sketch of
Gitarama Town); Ntabakuze Defence Exhibit 198 (Sketch of Kabgayi Religious Centre). The witness noted that
the Kabgayi religious centre, which is situated just outside of Gitarama town, covered seven to 10 hectares and
was surrounded by a fence and eucalyptus trees. In addition to the buildings for religious services, there were
several schools, a seminary, a hospital and buildings for various religious communities.
1914
T. 24 November 2005 pp. 39-43, 47-52.
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441
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
dioceses, eventually sought refuge at Kabgayi, fleeing local ethnic violence as well as the
war. The witness noted that the distance from Kabgayi to Mushubati was around 10
kilometres. He also heard that Augustin Bizimana, the Minister of Defence came periodically
to the centre.1915
1765. The witness stated that there were soldiers guarding the centre from his arrival in
April and that wounded soldiers arrived around 15 May 1994, but possibly earlier. He
recounted an incident where unknown assailants abducted around 20 persons, including
religious personnel, with a minibus and killed them a few kilometres away in Mpanda, Butare
prefecture. He also noted that militiamen or possibly the RPF infiltrated the centre and
abducted and killed some of the refugees. However, the witness did not hear about 80 Tutsis
being removed from the hospital.1916
Ntabakuze Defence Witnesses DH-51 and DM-25
1766. Witness DH-51, a Hutu member of the Para Commando Battalion who frequently
accompanied Ntabakuze, testified that Ntabakuze never went to Kabgayi. He accepted the
Prosecution’s proposition that there were some wounded members of the Para Commando
Battalion at the Kabgayi religious centre.1917 Witness DM-25, a Hutu government official
who lived near Kabgayi, stated that he did not hear about Ntabakuze’s involvement in the
events at Kabgayi.1918
Deliberations
1767. There are a number of facts related to the events at the Kabgayi religious centre that
are not disputed. From 7 April to 2 June 1994, thousands of mostly Tutsi refugees gathered at
the centre, fleeing ethnic violence in surrounding areas as well as the resumed hostilities.
Several soldiers from the Gitarama military camp were stationed there or nearby. There was
also a gendarmerie post two kilometres away. During this period, wounded soldiers received
treatment at the Kabgayi hospital, including some members of the Para Commando Battalion.
In addition, some women, including Witness DAZ, were raped by individuals in military
uniform.1919
1915
T. 1 March 2006 pp. 75, 82-92; T. 10 March 2006 pp. 57, 59-60, 62-63, 69; Ntabakuze Defence Exhibit 206
(personal identification sheet). Witness DI-133 was shown a sketch made by Witness DI-35 of the Kabgayi
religious centre and agreed that it was accurate. See T. 1 March 2006 p. 84; Ntabakuze Defence Exhibit 198
(Sketch of Kabgayi religious centre). The witness also viewed a BBC video of what purported to be Kabgayi
centre (Prosecution Exhibit 382). He recognised that there were similarities with forests, buildings and
basketball equipment, but did not entirely recognise that it was Kabgayi. T. 10 March 2006 pp. 67-71, 75.
Kambanda, who frequented Kabgayi when the interim government was in Gitarama, was also shown the video.
He was not able to recognise the location in the video as Kabgayi. T. 12 July 2006 pp. 82-84.
1916
T. 1 March 2006 pp. 84, 86-87, 90-92; T. 2 March 2006 pp. 1, 12-14; T. 10 March 2006 pp. 61-65, 70, 7375. Witness DI-133 also attested to hearing about an attack by the RPF on the centre after the fall of Gitarama
on 2 June, resulting in the death of Bishop Thaddeé Nsengiyumva, Bishop Vincent Nsengiyumva, Bishop
Joseph Ruzidana as well as about 10 other religious personnel on 5 June 1994. T. 1 March 2006 p. 93; T. 2
March 2006 pp. 2, 8-12.
1917
T. 6 December 2005 pp. 7-8, 10, 25, 30-34, 36-37, 52; Ntabakuze Defence Exhibit 199 (personal
identification sheet).
1918
T. 11 April 2005 pp. 64-65; Ntabakuze Defence Exhibit 81 (personal identification sheet).
1919
After the close of the trial, the Ntabakuze Defence claimed that the Prosecution was in possession of
exculpatory material implicating the RPF in crimes committed at the Kabgayi religious centre. The Chamber
determined that the alleged incident referred to by the Defence was different from the crimes at issue in this case
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1768. There are two allegations directly implicating Ntabakuze in the killing of Tutsi
civilians at Kabgayi by Interahamwe.1920 The first comes from Witness XAI who testified
that, at the end of April or early May, Ntabakuze arrived at the centre with Major Anne-Marie
Nyirahakizimana, complained about the presence of Tutsis there and sent Interahamwe to kill
them in a nearby wooded area. The second comes from Witness XXY who heard that
Ntabakuze came to the centre around 2 June and handed Tutsis over to Interahamwe at
nearby roadblocks to be killed. The witness also testified generally that the Para Commando
Battalion was sent to Gitarama prefecture to reinforce the Interahamwe.
1769. Turning first to Witness XAI’s account, the Chamber notes that there are differences
between his testimony about Ntabakuze’s presence at the Kabagayi religious centre and his
statement to Tribunal investigators in April 2001. First, according to his examination-inchief, Ntabakuze came to the centre and complained about the presence of Tutsi refugees,
promising to send the Zulu Interahamwe group. He then left before the Interahamwe arrived
and killed about 80 Tutsi refugees near the centre. However, the witness’s statement indicates
that Ntabakuze, while at the centre, dispatched his military escorts to bring the Interahamwe
there. Ntabakuze then conferred with the Interahamwe at Kabgayi before the assailants took
80 Tutsis away to be killed.1921
1770. Witness XAI was confronted with the description of the attack that he gave in his
statement on multiple occasions during cross-examination and initially affirmed his
statement.1922 However, after continued questioning on this point, he changed his position
and again noted that Ntabakuze left before the Interahamwe arrived, which was consistent
with his prior position in his examination-in-chief. He also intimated that there might have
been interpretation problems when his statement was given.1923 Nevertheless, when asked
whether the investigators “altered” or “distorted” his statement, the witness replied: “The
investigators did their job. They recorded my statement the way it was done. I agree with all
they have said or written down in the statement.”1924
1771. The Chamber raised the discrepancy about Ntabakuze’s presence during the attack at
the conclusion of the witness’s examination. This time, the witness explained that the
and occurred after the Rwandan military had withdrawn from the area. See Decision on Ntabakuze Defence
Motions Concerning Disclosure of Exculpatory Evidence, 22 October 2008, para. 6.
1920
At one point in its Closing Brief, the Prosecution suggests that Witness XXY’s testimony corroborates
Witness XAI’s account. However, in another part of its brief, the Prosecution suggests that the two witnesses
described separate incidents. Compare Prosecution Closing Brief, para. 411 (“In one incident, a corporal in the
Paracommando Battalion told Witness XXY that the accused Ntabakuze went to the Kabgayi hospital, took
wounded Tutsis out of the hospital, and gave them to the Interahamwe at the nearby roadblock to be killed. The
accused Ntabakuze also came to the hospital in May 1994 and told witness XAI …”)(internal citations omitted),
with id. para. 1097 (“XAI’s testimony was corroborated in material respects by witnesses DBQ, XAQ, LN,
XAB and XXY”). The Chamber considers both scenarios.
1921
Kabiligi Defence Exhibit 25 (statement of 11 April 2001).
1922
T. 12 September 2003 pp. 15-16 (“Q. … And at the end the escort leaves in the Accused’s vehicle and
returned some ten minutes later with about 30 Interahamwe armed with rifles and grenades. And, finally, after
the Interahamwe conferred with the Accused, they abduct some 30 refugees whom they killed at the Kabgayi
forest. Q. So you stand by that statement; is that correct, Witness? A. Yes, I stand by that statement.”), pp. 24-25
(“Mr. President: So the sentence read out by Defence counsel, you maintain the substance of that sentence; it is
correct. The Witness: Yes, the sentence or that section that has just been read out by counsel is in conformity
with the statement I made, and it is the truth.”).
1923
T. 12 September 2003 p. 25.
1924
Id. p. 25.
Judgement and Sentence
443
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
description of the incident that was in his statement was not what he told the investigators.1925
In the Chamber’s view, the difference between his testimony and his statement concerning
whether Ntabakuze was present and conferred with the Interahamwe at the centre before the
attack is a significant discrepancy. Furthermore, the witness provided conflicting
explanations for it, initially affirming the version of events in his statement and then
repudiating it several times during the course of his cross-examination. The Chamber
considers that the witness did not adequately explain the discrepancy between his testimony
and his statement. In addition, his inconsistent explanations for the differences raise further
questions about his credibility.
1772. There are also differences between Witness XAI’s testimony and other evidence
concerning this incident. For example, the Prosecution appears to rely on the Rwandan
judgment of Major Nyirahakizimana to corroborate Witness XAI’s testimony.1926 However,
Nyirahakizimana’s crime, as described in the Rwandan judgment, involved Interahamwe
taking a group of Tutsi refugees by minibus to Gisenyi prefecture to be killed, not killing
them in a wooded area near the centre, as Witness XAI suggested. Moreover, neither the
description of the evidence nor the factual findings recounted in Nyirahakizimana’s judgment
mentions Ntabakuze.1927 Furthermore, the distance of 10 kilometres between Kabgayi centre
and Mushubati undermines Witness XAI’s claim that Interahamwe came within 10 to 15
minutes of Ntabakuze’s alleged departure. These issues raise additional concern with respect
to the reliability of the witness’s evidence.1928 Therefore, the Chamber declines to rely on
Witness XAI’s account in the absence of corroboration.
1773. The question remains whether Witness XXY’s testimony implicating Ntabakuze in
killings at the Kabgayi religious centre is reliable. The witness’s account is based on hearsay.
Moreover, even though he received this information from a purported member of the Para
Commando Battalion, he was not certain whether his source had first-hand knowledge of the
incident.1929 Therefore, the reliability of the witness’s evidence on this point is questionable.
For the same reasons, the Chamber is also not satisfied that his hearsay evidence shows that
Ntabakuze or the Para Commando Battalion were transferred to Gitarama prefecture to
reinforce the Interahamwe’s efforts to kill Tutsis. In addition, the Chamber has other
concerns with Witness XXY’s credibility. For example, his testimony, which suggests that
the “Zulus” killed between 500 and 1,000 Tutsis in an attack at Kabgayi, conflicts with the
evidence of Alison Des Forges, who noted that the “Military and militia never launched an
open assault on the extensive camps” there.1930 For these reasons, the Chamber also declines
to accept his other testimony, such as that related to Bagosora, without corroboration.
1925
Id. pp. 36-38.
Prosecution Closing Brief, para. 411.
1927
Ntabakuze Defence Exhibit 2 (Rwandan judgment of 3 June 1999).
1928
The fact that the Para Commando Battalion was engaged in combat operations in Kigali until the end of
May 1994 leaves the Chamber with further doubt that Ntabakuze would personally travel to the Kabgayi
religious centre for such a brief visit. This issue is not dispositive since it would be reasonable for Ntabakuze to
visit the wounded members of the Para Commando Battalion who were at Kabgayi religious centre. However,
the lack of detail about when wounded members of the Para Commando Battalion were at the centre as well as
their number prevents the Chamber from concluding that Ntabakuze visited the hospital at the centre as opposed
to commanding his troops who were engaged in active combat at the war front.
1929
T. 30 June 2004 p. 81 (“I’m simply narrating the information that he gave me, but I cannot say whether he
was an eyewitness or not. He could have gotten the information from someone else. I do not know.”).
1930
Prosecution Exhibit 3 (Alison Des Forges, Leave None to Tell the Story (1999)), p. 278.
1926
Judgement and Sentence
444
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1774. Accordingly, for the foregoing reasons, the Chamber is not satisfied that the
Prosecution has proven beyond reasonable doubt that Ntabakuze was present at the Kabgayi
religious centre and played a role in the killing of Tutsi civilians there.
1775. Turning to the evidence of other crimes at the Kabgayi religious centre, it follows
from the unchallenged evidence from Witnesses DAZ and UT that individuals in military
uniforms and Interahamwe repeatedly raped some Tutsi women at the complex. Some of
these assailants were wounded military personnel being treated at the Kabgayi hospital. In the
case of Witness DAZ, the assailants said that they were raping her because she was a Tutsi.
Their evidence also reflects that groups of assailants periodically abducted refugees,
sometimes using lists. While the evidence of Witness DI-35 suggests that there were no
crimes committed in the centre, this testimony is not convincing in light of the evidence of
Witnesses DAZ and UT. In addition, Witness DI-35’s evidence covers a limited period, given
his transfer to Kigali on 4 May. Therefore, he was not in a position to know what transpired
at the centre after that date. The Chamber notes, however, that there is little evidence
indicating whether the military personnel were part of the army or the gendarmerie and no
evidence as to their unit. The evidence of Witnesses DAZ, UT and Des Forges about the
individual crimes committed at the centre is too general for the Chamber to make any specific
findings on their scope.1931
1776. There is insufficient evidence demonstrating that Bagosora, Kabiligi and Ntabakuze
were aware of or otherwise connected to the specific crimes committed at Kabgayi or in
Gitarama prefecture in general. The Chamber has not found that Bagosora had authority over
the Rwandan military after 9 April when the Minister of Defence returned (IV.1.2). Similarly,
the Prosecution did not establish that Kabiligi exercised command over the army (IV.1.3).
The evidence also does not show that either of them were at Kabgayi during the relevant
events or had any specific involvement in the crimes committed there or elsewhere in the
prefecture. As discussed above, it was not proven that Ntabakuze came to the centre. While
there were some wounded members of the Para Commando Battalion at Kabgayi, there is not
a sufficient basis to determine that they were involved in the rape or killing of refugees there.
1777. During the course of the trial, the Chamber concluded that there was adequate notice
for these allegations.1932 In view of the findings on this event, it is not necessary to revisit its
previous decisions on notice.
1931
Witness DAZ stated that she could not identify rank or unit. She was not familiar with gendarmes. Witness
UT, who referred to “soldiers”, said that she could distinguish between soldiers and gendarmes by the colour of
their berets in the context of her cross-examination on Gikondo Parish. She was not cross-examined on the part
of her statement related to Kabgayi. Moreover, while there was a military camp in Gitarama and a few soldiers
stationed at the centre, there was also a nearby gendarmerie post, and Major Nyirahakizimana, who was
convicted in Rwanda of crimes at Kabgayi, was a gendarme. See Ntabakuze Defence Exhibit 2 (Rwandan
judgment of 3 June 1999).
1932
See Decision on Bagosora Motion for the Exclusion of Evidence Outside the Scope of the Indictment (TC),
11 May 2007, paras. 66, 68-69; Decision Reconsidering Exclusion of Evidence Following Appeals Chamber
Decision (TC), 17 April 2007, paras. 22-24; Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29
June 2006, paras. 46-49.
Judgement and Sentence
445
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.4.2
Musambira Roadblock, 10 June
Introduction
1778. The Kabiligi and Ntabakuze Indictment alleges that, from April to July 1994, Kabiligi
authorised soldiers and militiamen to massacre the Tutsi population. In particular, the
Prosecution claims that, around 10 June, he encouraged Interahamwe to murder more than 10
people at a roadblock at Musambira in Gitarama prefecture. Reference is made to Witnesses
DY and KJ.1933
1779. The Kabiligi Defence maintains that the evidence concerning the attack is not pleaded
in the Indictment. It argues that Witness DY lacks credibility and is contradicted in part by
Witnesses DK-11 and ZDR-2. The allegation, even if found true, is not criminal.1934
Evidence
Prosecution Witness DY
1780. Witness DY, a Tutsi and a member of the Reconnaissance Battalion, stated that he
served as Kabiligi’s escort from around 20 April until the end of June 1994. Around 10 June,
he travelled with Kabiligi as a gunner in a light armoured vehicle from Camp Kigali towards
Gitarama town. On the way, they noticed that a crowd had gathered near Musambira. Taking
the road headed towards the Musambira commune office, they stopped at a roadblock where
there were about 30 Interahamwe carrying firearms and traditional weapons. A group of more
than 10 people in civilian clothes were sitting about three metres from the road.1935
1781. Kabiligi exited the vehicle and, when a man armed with a rifle approached, Kabiligi
greeted him by saying, “Good day, Abdala.” Abdala, whom Witness DY identified as a
notorious Interahamwe also known as “Abdulhamani”, replied, “Good day, General,” then
told Kabiligi, “Here are the Inyenzis whom we have arrested.” Without any further comment
from Kabiligi, Abdala turned around and shot at the group, and the other Interahamwe
immediately shot and killed the group members in an attack that lasted about 60 seconds.
Kabiligi did nothing to stop this massacre. Afterwards Kabiligi told Abdala: “Be vigilant.
Make sure that no one infiltrates your ranks.”1936
1782. Kabiligi’s vehicle continued on the road towards the Musambira commune office. He
exited the vehicle at the Musambira market, and looked at the surrounding hills. Upon reentering the vehicle, Kabiligi informed headquarters that they would not go to Gitarama but
back to Kigali. On the way back, they passed the same roadblock. Witness DY saw that the
Interahamwe were still there with the dead bodies. The group returned to headquarters.
Kabiligi never commented on the killing.1937
1933
Kabiligi and Ntabakuze Indictment, paras. 5.1, 6.31; Prosecution Closing Brief, paras. 131, 194-195, 605606, 609, 620, 1281-1285, 1370, 1372, pp. 712-713, 716, 762-764, 766, 772-773, 776, 779, 782, 792-795, 815,
829, 832-834, 836, 839-841, 845-846.
1934
Kabiligi Closing Brief, paras. 110, 184, 192, 419-450, 795-797, 806, 809-813, 825-832, 1501, 1503-1504,
1507, 1509, 1615-1617, 1664-1669, pp. 600-601, 614-616; T. 28 May 2007 pp. 48-49; T. 1 June 2007 p. 55.
1935
T. 16 February 2004 pp. 6, 8, 19, 41, 53-55; T. 17 February 2004 pp. 11, 15, 19-21, 26-27; Prosecution
Exhibit 188 (personal identification sheet).
1936
T. 16 February 2004 pp. 53-56; T. 17 February 2004 pp. 21-23, 25-26.
1937
T. 16 February 2004 pp. 56-57; T. 17 February 2004 pp. 15, 23, 25-26, 39-40.
Judgement and Sentence
446
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Prosecution Witness KJ
1783. Witness KJ, a member of the gendarmerie in Kibuye in 1994, testified that he was
stopped by Interahamwe at a roadblock at Musambira, Gitarama prefecture around 14 or 15
April 1994, which was commanded by a man named Abdoulrahmani.1938
Ntabakuze Defence Witness DK-11 and Nsengiyumva Defence Witness ZDR-2
1784. Witnesses DK-11 and ZDR-2, two Hutu soldiers who worked with Kabiligi, each
provided a list of persons escorting him between May and July 1994. Witness DY’s name is
not included. Both witnesses acknowledged that they might not be able to recall every
member of Kabiligi’s personal entourage.1939
Deliberations
1785. The Prosecution relies on Witness DY to establish Kabiligi’s presence and
encouragement of the killing of about 10 Tutsi civilians by Interahamwe led by Abdala at a
roadblock in Musambira in Gitarama prefecture. It also points to Witness KJ, who testified
that Interahamwe led by this same person in coordination with the military, manned a
roadblock in Musambira in mid-April.
1786. As mentioned elsewhere (III.4.1.8-9), it may be asked whether the witness, a Tutsi,
would be assigned to headquarters to escort Kabiligi from late-April until June 1994 in the
context of the events which were unfolding in Rwanda at the time. Witnesses DK-11 and
ZDR-2, who were part of Kabiligi’s security detail during the same period, did not mention
Witness DY’s name when listing their colleagues that served in Kabiligi’s escort team. Even
though they admitted that they might not be able to recall all their colleagues, their testimony,
combined with Witness DY’s ethnicity, create a certain doubt as to whether Witness DY
actually was Kabiligi’s escort.
1787. Moreover, there are differences between Witness DY’s testimony and his previous
statements. In a Pro Justitia statement to Rwandan authorities in September 1997, the witness
placed the event in May, not June, and explained that Kabiligi only passed a group of
Interahamwe who had arrested 10 people. Later, when they passed again, the Interahamwe
had killed the individuals.1940 In a statement to Tribunal investigators in October 1997, the
witness gave a similar version but added that Kabiligi told the Interahamwe to remain
vigilant before the killing took place in his absence.1941 However, in a statement to
investigators in January 2004, one month before his testimony, the witness corrected his
1938
T. 19 April 2004 pp. 4, 8-11; T. 20 April 2004 pp. 27-28, 50-54, 60-61, 68-73, 75; T. 27 April 2004 p. 2, 912, 14; Prosecution Exhibit 212 (personal identification sheet).
1939
Witness DK-11, T. 19 July 2005 p. 61; T. 20 July 2004 pp. 3-4, 38, 41-42, 44, 46, 49-51; Defence Exhibit
144 (personal identification sheet). Witness ZDR-2, T. 30 March 2006 pp. 9, 11, 16, 19-20; Defence Exhibit 170
(personal identification sheet). See also Prosecution Exhibits 354 (Witness DK-11’s list of Kabiligi’s escorts and
drivers) and 386 (Witness ZDR-2’s list of Kabiligi’s escorts and drivers).
1940
Kabiligi Defence Exhibit 29 (Pro Justitia statement of 18 September 1997), stating that “… we noticed that
the Interahamwe had arrested about ten people that [they] were going to kill. We continued our journey to the
commune office. On our way back, we noticed that the Interahamwe had already killed those people”). Kabiligi
then stated that they should be vigilant.
1941
Kabiligi Defence Exhibit 28 (statement signed on 6 October 1997), according to which Kabiligi asked the
Interahamwe to be vigilant before he continued to the commune office and returned later to find that the killings
had taken place (“When we returned, the people had been killed by the Interahamwe and their bodies were still
at the roadblock.”).
Judgement and Sentence
447
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
previous statement to the effect that the persons at the roadblock “had been killed in the
presence of Kabiligi” before they continued.1942 This was also his testimony.
1788. When confronted with this discrepancy, Witness DY testified that the two first
statements had been recorded improperly. The Chamber finds this explanation surprising. It
appears unlikely that both a Rwandan judicial official and Tribunal investigators would have
overlooked such a highly incriminating element as Kabiligi’s presence during the killings. In
addition, both statements reflect that they were read back to the witness. He confirmed that
the Tribunal investigators did so. The wording of the first two statement is clear that Kabiligi
was not present during the killing. The witness could not provide any other explanation.1943 In
view of the evolving nature of the three statements, the Chamber cannot exclude that the
witness gradually has sought to implicate Kabiligi.
1789. Witness KJ’s evidence does not corroborate Witness DY’s version. It simply
confirmed that Interahamwe, led by Abdoulrahmani, manned a roadblock in Musambira in
mid-April. No reference was made to any massacre on or about 10 June in Kabiligi’s
presence. Having considered the totality of the evidence, and noting that Witness DY’s
testimony is uncorroborated, the Chamber finds that the Prosecution has not proven beyond
reasonable doubt that Kabiligi encouraged Interahamwe to kill more than 10 people at a
roadblock at Musambira in Gitarama prefecture around around 10 June 1994.
1790. In view of its finding, the Chamber need not revisit its previous determination that
Kabiligi had sufficient notice of these allegations.1944
1942
Kabiligi Defence Exhibit 31 (statement of 14 January 2004).
T. 17 February 2004 pp. 25-26, 37-39. Witness DY said that he corrected the time period to June (p. 26).
However, this is not reflected in any statement.
1944
Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, paras. 3234.
1943
Judgement and Sentence
448
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.5
4.5.1
Kibuye Prefecture
Bisesero, June
Introduction
1791. The Nsengiyumva Indictment alleges that, in June 1994, Edouard Karemera ordered
Nsengiyumva to send troops to the Bisesero area in Kibuye prefecture where Tutsi refugees
had gathered to flee massacres. From April to June 1994, Nsengiyumva purportedly chaired
meetings at the Umuganda Stadium in Gisenyi prefecture where he encouraged militiamen to
continue the massacres. According to the Bagosora Indictment, military authorities called on
militiamen to eliminate Tutsis throughout the country and provided them with logistical
support. Based on these allegations, the Prosecution contends that, in June 1994,
Nsengiyumva recruited and trained local youth at the stadium and then, along with Bagosora,
dispatched them to kill Tutsi civilians in Kibuye prefecture. Reference is made to Witnesses
Omar Serushago, ABQ, ZF and KJ as well as Expert Witness Alison Des Forges.1945
1792. The Nsengiyumva Defence argues that the Prosecution’s evidence is either hearsay or
circumstantial. Furthermore, the Nsengiyumva and Bagosora Defence contend that it lacks
credibility and is inconsistent with the testimonies of Edouard Karemera, Joseph Nzirorera,
Nsengiyumva and Bagosora.1946
Evidence
Prosecution Expert Witness Alison Des Forges
1793. Alison Des Forges, an expert in Rwandan history, testified that, from early April to
the end of June 1994, Tutsis sought sanctuary at the top of a hill in Bisesero. The authorities
launched joint militia and military operations, attacking these refugees repeatedly during this
period. The refugees used their superior positioning on the hill and rudimentary weapons,
such as sticks and stones, to fend off attacks. By June, they were starving and in tatters.
Nonetheless, their continued existence posed a serious threat to the government if the
international community, including the French soldiers participating in Opération Turquoise,
learned that the Rwandan government’s operations in the area were directed at eliminating
Tutsis rather than the RPF. By late June, the government was determined to eliminate the
surviving refugees on Bisesero hill. Des Forges referred to a letter sent from the Minister of
Interior, Edouard Karemera, asking Nsengiyumva to send soldiers from his command to
support gendarmes and the local population in a “clearing up” operation in Bisesero.1947
1945
Nsengiyumva Indictment, paras. 6.27, 6.30; Bagosora Indictment, paras. 6.44-6.45, 6.62-6.63. Prosecution
Closing Brief, paras. 563-564, 632, 931-942, 1016-1020, 1370, 1377, 1385-1386, 1512-1513, 1514 (f-i), 15151516, pp. 763, 765, 773, 775, 888-891. The Prosecution also points to evidence of a meeting at the Hôtel
Méridien where government officials attempted to raise money to buy weapons.
1946
Nsengiyumva Closing Brief, paras. 460-471, 572, 578-587, 1031-1044, 1190-1193, 1800-1809, 1822, 1922,
1956, 2357, 2371, 2519, 2693-2694, 2702, 2704, 3048-3053, 3200-3202, 3205-3207; Bagosora Closing Brief,
paras. 1415-1428.
1947
T. 10 September 2002 pp. 36-37; T. 18 September 2002 pp. 102-105; Prosecution Exhibit 50 (Edouard
Karemera’s letter to Nsengiyumva, undated). Karemera explained that he sent it on 18 June 1994 (see below).
The telegram uses the term “opération de ratissage”, which Des Forges translated as “clearing up”.
Judgement and Sentence
449
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Prosecution Witness Omar Serushago
1794. Serushago, a Hutu Interahamwe leader, stated that Bernard Munyagishari, the head of
the Interahamwe in Gisenyi prefecture, attended a meeting at the Hôtel Méridien in June
1994. According to Munyagishari, the purpose of the meeting was to raise money for
weapons and ammunition to fight Tutsis on Bisesero hill and Nyange in Kibuye prefecture.
Several prominent figures attended the meeting, including Emmanuel Ndindabahizi,
Augustin Ngirabatware, Joseph Nzirorera, Juvénal Uwilingiyimana and Nsengiyumva. Both
Ndindabahizi and Nzirorera spoke of the need for reinforcements and weapons to kill the
Tutsis who were resisting in Bisesero. Nsengiyumva said that ammunition and weapons were
available, and several persons in attendance contributed money. Serushago later gave 10,000
Rwandan francs.1948
1795. At some point in June, Serushago saw Nsengiyumva travelling at night from the
Goma airport to Gisenyi town with two trucks requisitioned from the local brewery. He told
Serushago that he was carrying weapons and asked him to inform the MRND and CDR youth
that the ammunition was now available. Nsengiyumva later summoned Serushago and other
Interahamwe to the military camp, requesting them to take a vehicle and call on the youth of
Gisenyi to provide reinforcements for an attack on Kibuye prefecture. Serushago and Rashid
Gahutu, another Interahamwe, drove Gahutu’s Toyota car around town asking youth to
participate in the attack. Local party militias then gathered at the Umuganda Stadium, where
they were given weapons and sent by bus to Bisesero and Nyange. Serushago sent
Interahamwe under his command to assist with the Bisesero attack but did not participate in
it.1949
Prosecution Witness ABQ
1796. Witness ABQ, a Hutu student, testified that around the middle or the end of June
1994, he heard megaphone announcements that Nsengiyumva was encouraging youth from
Gisenyi prefecture to join the army. The witness went to the Umuganda Stadium where he
participated in selection competitions. Between 100 and 400 individuals were selected and
received military training for seven days at the stadium. The witness, who was one of the
recruits, learned how to march and to handle firearms, such as Kalashinkovs and R-4 rifles.
The soldiers providing the training were from the Gisenyi military camp and the Bigogwe
training camp.1950
1797. On the last day of training, the recruits were informed that they would be departing on
their mission. Nsengiyumva came to the stadium around midnight. This was the first occasion
Witness ABQ saw him there. Nsengiyumva announced that he had purchased new
Kalashnikovs with rocket launcher mounts from South Africa, and that the recruits would be
1948
T. 18 June 2003 pp. 3, 5-7, 41-45; T. 19 June 2003 pp. 13-14, 69, 71-72; Prosecution Exhibit 54 (personal
identification sheet). After clarifying that he did not attend the meeting, Serushago specified that his
contribution was collected from him while he was at a customs check point. See T. 18 June 2003 pp. 48-50, 6970. On 5 February 1999, pursuant to a plea agreement, Omar Serushago was found guilty by the Tribunal of
genocide, murder, extermination and torture for crimes he committed as an Interahamwe in Gisenyi. He was
sentenced to 15 years imprisonment. See T. 18 June 2003 pp. 2-3; Serushago Trial Judgement, p. 15.
1949
T. 18 June 2003 pp. 44-46; T. 19 June 2003 pp. 13-15, 20-23, 69-70.
1950
T. 6 September 2004 pp. 3, 28-30, 34; T. 7 September 2004 pp. 37-43; T. 9 September 2004 pp. 23-24, 2829, 31; Prosecution Exhibit 293 (personal identification sheet).
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sent to Kigali to fight at Mburabuturo and Gisozi. He then introduced Bagosora, who said
that the Inyenzi were occupying these two locations and shelling Kigali town.1951
1798. A short time later, weapons were distributed to the recruits and they boarded four
ONATRACOM buses. At a junction in Nyundo, the buses passed the road to Kigali and
continued towards Kibuye prefecture instead. The witness knew that no Inkotanyi troops
were fighting there. He had also previously heard an announcement made over a megaphone
attached to a vehicle owned by Gahutu that Interahamwe were requesting reinforcements to
fight Inyenzi on a “major hill” in Bisesero. At a roadblock in Nyamyumba commune in
Gisenyi prefecture, Witness ABQ and six others got off the bus.1952
1799. In July 1994 in the Congo, a person who had been on the bus, informed Witness ABQ
that it went to the Bisesero hill. Military leaders led the recruits, instructing them to bring
Inyenzi down from the hill.1953
Prosecution Witness ZF
1800. Witness ZF, a Hutu radio operator at Butotori military camp, testified that, sometime
in 1994, groups of militia were assembled and trained in “Gisenyi stadium”. They were
eventually equipped with arms brought in from the Seychelles and transported through Goma
and sent as reinforcements to Mburabuturo on ONATRACOM buses. At the height of the
genocide, Hutu militiamen pursued Tutsis, forcing the latter to seek refuge on Bisesero hill in
Kibuye. As the civilian attackers could not overcome these Tutsis, military reinforcement was
sought from the Gisenyi high command. Lieutenant Bizumuremyi informed the witness that
Nsengiyumva ordered Bizumuremyi to organise the operation, with Bizurumemyi deploying
reinforcements to Bisesero on ONATRACOM buses.1954
Prosecution Witness KJ
1801. In June 1994, Witness KJ, a gendarme stationed in Kibuye prefecture, saw several
ONATRACOM buses at the prefecture office. They carried between 300 and 400
Interahamwe, armed with traditional weapons, who were singing: “Yea, let us exterminate
them. Yea, let us exterminate them in the forests. We are going to defeat them, and we are
going to win this war.” Several of the Interahamwe told the witness that they were from
Ramba, Giciye and Kayovo communes in Gisenyi prefecture and Bugarama commune in
Cyangugu prefecture. They had been sent to assist in eliminating the Tutsis resisting in
Bisesero. Those from Bugarama indicated that Yussuf Munyakazi, commander of the
Interahamwe, had sent them.1955
1802. After the buses had arrived, Eliézer Niyitegeka, Gérard Ntakirutimana, Alfred
Musema and others arrived. Niyitegeka addressed the crowd and thanked them for coming
1951
T. 6 September 2004 pp. 30-32, 34-35; T. 7 September 2004 p. 44; T. 9 September 2004 pp. 28-31.
T. 6 September 2004 pp. 32-34; T. 7 September 2004 pp. 43-46; T. 9 September 2004 pp. 25-26.
ONATRACOM stands for Office national des transports en commune. Witness ABQ did not see Omar
Serushago, whom he knew, at the Umuganda Stadium the night the buses left for Bisesero. See T. 7 September
2004 pp. 45-46.
1953
T. 6 September 2004 p. 34; T. 9 September 2004 p. 27.
1954
T. 26 November 2002 pp. 93-95; T. 27 November 2002 p. 13; T. 28 November 2002 pp. 61-62, 82-84.
Witness ZF’s father was a Hutu, but the witness was raised as a Tutsi by his mother’s family. See T. 27
November 2002 p. 13.
1955
T. 19 April 2004 pp. 4-7, 37-40; T. 20 April 2004 pp. 65-67; Prosecution Exhibit 212 (personal
identification sheet).
1952
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from “various corners of the prefecture”. He also thanked Musema for his efforts in fighting
Tutsis on Bisesero hill and Obed Ruzindana for his efforts to overcome the Tutsi enemy.
Niyitegeka stated that the Ministry of Defence and the Ministry of the Interior had invited all
those who had gathered so that they could continue exterminating Tutsis who were still
resisting around Bisesero. He said that Robert Kajuga was also sending about 100
Interahamwe reinforcements. Additional ONATRACOM buses from Kigali carrying the
singing Interahamwe sent by Kajuga arrived as Niyitegeka spoke.1956
1803. Witness KJ testified that the buses had left the following morning. He later learned
from those returning from Bisesero, including gendarmes, that the Tutsis there had been
attacked and those in hiding exterminated. This occurred near the end of the war, but the
witness was unaware whether it was the final attack. Generally, it was the Interahamwe who
carried out the attacks in Kibuye prefecture, but the gendarmes and army also provided
assistance. According to the witness, the Ministry of Defence and the general staff of the
gendarmerie provided necessary material, whereas the Minister of the Interior led groups
composed of civilians, gendarmes and soldiers in exterminating the Tutsis. He explained that
there were no military camps in the area, but soldiers escorted the assailants.1957
Nsengiyumva
1804. Nsengiyumva denied that he attended a meeting in June 1994 at the Hôtel Méridien to
raise money for an attack in Bisesero. He acknowledged, however, that on 19 June, he
received a telegram from Minister Edouard Karemera requesting him to send troops to
Bisesero to assist the gendarmerie and the population to “carry out a mopping-up operation in
Bisesero where there were RPF troops”. Nsengiyumva never sent any soldiers because he
took orders from the chief of staff, not from a governmental minister. Bisesero was not in his
area of operation, and he had no troops to spare. A day or two after Nsengiyumva received
the telegram, the chief of staff arrived in Gisenyi and spoke with Nsengiyumva, indicating
that he would sort out the issue.1958
1805. Nsengiyumva disputed Witness ABQ’s testimony about the training and recruitment
at the Umuganda Stadium, explaining that he had received instructions from the general staff
to recruit youth to replace soldiers injured in battle. The recruitment was done by local
authorities, such as the prefect and the bourgmestre. Starting approximately two weeks after
President Habyarimana’s death, approximately 400 recruits were taught tactics and how to
handle weapons at the Umuganda Stadium. Nsengiyumva oversaw the training and went there
on a few occasions. The training ended in June when the general staff requested that the
recruits should intervene in Kigali. Nsengiyumva informed them that they were headed to the
front in Kigali. The recruits left on ONATRACOM buses without weapons or uniforms as
Nsengiyumva had none of either for them. He did not receive confirmation that they arrived
in Kigali, but he overheard a radio communiqué that they fought at Mburabuturo.1959
1956
T. 19 April 2004 pp. 40-42; T. 22 April 2004 pp. 31-34.
T. 19 April 2004 pp. 42-43, 63-66. Witness KJ could not recall the names of the gendarmes that participated
in the attack. There were prior attacks in Bisesero, in particular led by Mika Muhimana. See T. 19 April 2004
pp. 35-36, 42-43.
1958
T. 5 October 2006 pp. 67-69; T. 6 October 2006 pp. 1-3, 29-31; T. 11 October 2006 p. 51; T. 12 October
2006 pp. 88-89; T. 13 October 2006 pp. 7-8.
1959
T. 5 October 2006 pp. 67-68; T. 9 October 2006 pp. 16-17; T. 11 October 2006 pp. 27, 32-36. Nsengiyumva
noted that the recruits were not trained in using Kalashnikovs or G3s. See T. 11 October 2006 pp. 35-36.
1957
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Bagosora
1806. Bagosora denied that he addressed a gathering of recruits at Umuganda Stadium in
June 1994 along with Nsengiyumva. He was in Kinshasa, South Africa and the Seychelles
between 23 May and 22 June arranging for the purchase of weapons (III.6.1).1960
Nsengiyumva Defence Witness Edouard Karemera
1807. Edouard Karemera was the Hutu vice-president of the MRND party in 1994 and
installed as Minister of the Interior on 25 May 1994. He testified that, around 12 June, the
prefect of Kibuye prefecture, Clément Kayishema, sent a telegram to the Ministry of Defence
regarding insecurity, particularly in the Bisesero area of Kibuye.1961
1808. On 17 June 1994, the Council of Ministers met in Muramba, Gisenyi prefecture, and
discussed Kayishema’s telegram. According to Karemera, Nsengiyumva co-chaired the
meeting with President Sindikubwabo. Karemera took notes during the meeting, which stated
that “[t]he government decided to intervene vigorously in Bisesero, if need be, with the
support of Gisenyi, by 20th June 1994 at the latest”.1962 Karemera testified that the Council of
Ministers decided that a letter would be sent to the Gisenyi operational commander,
Nsengiyumva, asking him to send support to Kibuye prefecture. On the instruction of Prime
Minister Jean Kambanda, Karemera sent a letter on 18 June 1994, directing Nsengiyumva to
send reinforcements to Bisesero in order to assist gendarmes and the population. The Minister
of Defence, who would normally have been the one to send the instruction, did not attend the
meeting.1963
1809. The 18 June 1994 letter had the heading “Opération de ratissage à Kibuye” and
directed Nsengiyumva to send reinforcements for an operation in the Bisesero area of the
Gishyita commune, “which has become a sanctuary for the RPF”. The term “ratissage” was
taken from the telegram sent by Kayishema, which Karemera understood to be a technical
military term used to describe activities such as searches to flush out and arrest criminals and
the seizing of stolen property. In this particular case, Kayishema wanted infiltrators
unmasked and the identification and seizure of weapons and ammunitions caches. The letter
gave a deadline of two days for the operation to be completed. Karemera explained that,
because this was the only support to be provided to the already mobilised Kibuye
gendarmerie and population, it was necessary to indicate the shortest possible time
necessary.1964
1810. According to Karemera, Nsengiyumva did not follow the order as he questioned the
legality of the procedure used to communicate it. The reason was that Karemera was not a
part of the military command structure. Karemera subsequently consulted with the Minister
of Defence, who informed him that what he had done was a “mistake”. The Minister took
1960
T. 9 November 2005 p. 74.
T. 16 June 2006 pp. 3-5, 7-8, 10-11; Nsengiyumva Defence Exhibit 186 (personal identification sheet);
Nsengiyumva Defence Exhibit 187 (Clément Kayishema’s telegram to the Ministry of Defence, dated 12 June
1994). Karemera noted that on 9 June 1994, Kayishema sent him a telegram on the topic of insecurity in
Bisesero, but he had not received it. Karemera is an accused before the Tribunal.
1962
Prosecution Exhibit 396 (Edouard Karemera’s hand-written notes from meeting on 17 June 1994).
1963
T. 16 June 2006 pp. 3-5, 7-9; T. 16-18, 22, 24-25, 29-30.
1964
T. 16 June 2006 pp. 3-4, 6-7. See also Prosecution Exhibit 50 (Edouard Karemera’s letter to Nsengiyumva,
undated).
1961
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“the necessary measures” and ultimately no reinforcements were sent to Bisesero. Karemera
acknowledged that he wrote a letter to Kayishema on 20 June 1994, confirming that
instructions had been sent to Gisenyi to send support to Kibuye. Specifically, the letter
informed Kayishema that the government requested the “commander of Gisenyi secteur [to]
support the Kibuye Gendarmerie” to “carry out the operation” and that “the Minister of
Defence [had] confirmed those instructions”.1965
Nsengiyumva Defence Witness Joseph Nzirorera
1811. Joseph Nzirorera, a Hutu and national secretary of the MRND, denied having attended
a meeting with Nsengiyumva, Ndindabahazi, Ngirabatware and Interahamwe around 22 June
1994 at the Hôtel Méridien to raise funds to assist in killing Tutsis in Bisesero. Nzirorera
knew Nsengiyumva who, as area commander in Gisenyi, had no association with the
Interahamwe. He acknowledged that the interim government had been set up in Gisenyi
around that time, that he was there and that it was possible that he encountered Ndindabahizi
or Ngirabatware in the Hôtel Méridien on that day.1966
Nsengiyumva Defence Witness LS-1
1812. Witness LS-1, a Hutu, moved to Gisenyi town a few days after the President’s plane
had been shot down. Approximately two weeks after the President’s death, the witness heard
over Radio Rwanda that the Ministry of Defence was recruiting youth to join the military. He
observed training at Umuganda Stadium. It lasted for two to three weeks, and the recruits
were sent to the war front at Mburabuturo in Kigali. The witness knew this because he was
later informed that a friend, who had participated in the training, was killed in
Mburabuturo.1967
Deliberations
1813. The main question for the Chamber is whether Nsengiyumva and Bagosora
dispatched civilian militiamen to Kibuye prefecture in June 1994 to participate in attacks
against Tutsi civilians in Bisesero on orders of the government. The Prosecution submits that
Nsengiyumva participated in a meeting to raise funds for the operation and imported weapons
in connection with it. He then allegedly supervised the recruitment, training and arming of
area youth, who were dispatched from Umuganda Stadium by Nsengiyumva and Bagosora.
1814. Only Serushago testified about the meeting at the Hôtel Méridien to raise funds,
which was contradicted by Joseph Nzirorera and Nsengiyumva. Serushago’s evidence is
hearsay and lacks corroboration. He is also the only witness to provide direct testimony about
1965
T. 16 June 2006 pp. 6-7, 35, 43-44; Prosecution Exhibit 394 (Edouard Karemera letter to the prefect of
Kibuye, dated 20 June 1994). During his cross-examination, Karemera also read a 24 June 1994 letter that
appeared to have been written by Ignace Bagilishema, the bourgmestre of Mabanza commune. See Prosecution
Exhibit 397 (Bagilishema’s letter to the prefect of Kibuye, dated 24 June 1994). This exhibit was admitted over
Nsengiyumva’s counsel objection that a proper foundation had not been established. T. 16 June 2006 p. 46. The
letter, which Karemera stated he did not receive in 1994, is addressed to the Kibuye prefect and discusses
attacks launched by “Interahamwe who had come from Gisenyi to reinforce attacks at Bisesero between 19 and
22 June”. T. 16 June 2006 pp. 9-11, 41-43, 46.
1966
T. 16 March 2006 pp. 67-68; T. 12 June 2006 pp. 41-44; Nsengiyumva Defence Exhibit 161 (personal
identification sheet). Nzirorera is an accused before the Tribunal.
1967
T. 13 July 2005 pp. 35-36, 39-40; T. 14 July 2005 pp. 19-21, 27; Nsengiyumva Defence Exhibit 88
(personal identification sheet).
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Nsengiyumva’s alleged discussions with him at the La Corniche roadblock about importing
weapons and the subsequent order at the military camp to recruit area youth. The Chamber
has raised questions about Serushago’s credibility elsewhere in the judgement (III.3.6.1;
III.4.2.1; III.4.2.5) and declines to accept these parts of his account without corroboration.
Witness ZF’s account about Nsengiyumva importing weapons is second-hand and lacks
detail as to the source of his information. Therefore, it does not provide sufficient
corroboration.
1815. There is considerable evidence regarding Bagosora’s attempts to obtain weapons in
the Seychelles in June 1994 (III.6.1). Indeed, a United Nations International Commission of
Inquiry suggests that Bagosora orchestrated two shipments of weapons from the Seychelles to
Goma between 16 and 19 June.1968 This evidence offers circumstantial corroboration that
weapons were brought into Rwanda around this time in June. However, it does not implicate
Nsengiyumva in the physical transfer of weapons over the border and is not itself sufficient to
corroborate Serushago or Witness ZF’s allegations. It is also unkown whether they were used
in the attack on Bisesero, as Witness KJ referred to the assailants carrying traditional
weapons.
1816. Bagosora denies that he ever spoke to the recruits at the Umuganda Stadium and
points to evidence that he was out of Rwanda at the relevant time (III.6.1). Witness ABQ was
the only witness to place Bagosora at the stadium in June. The Chamber rejected his
testimony with respect to Bagosora’s participation in a meeting around the same time, due to
concerns about his ability to identify the Accused as well as the evidence that Bagosora was
not in the country at the time (III.4.2.5). The Chamber declines to rely on Witness ABQ’s
testimony with respect to Bagosora’s presence at the stadium without further corroboration.
1817. The Chamber, however, accepts Serushago’s testimony that, at some point in June, he
and Gahutu drove a Toyota around in Gisenyi, calling on local residents to be trained at
Umuganda Stadium. This is corroborated by Witness ABQ, who saw the vehicle and
responded to the call for training. Nsengiyumva conceded that he oversaw the recruitment
and training at the stadium and periodically went there. Witness LS-1 also refers to training.
1818. The question remains whether Nsengiyumva dispatched the recruits, including
Witness ABQ, from Umuganda Stadium to Kibuye prefecture. Nsengiyumva disputes that
and asserts that he dispatched individuals to Kigali to fight the RPF, not to Kibuye prefecture.
There is support for Nsengiyumva’s proposition from a number of witnesses, including
Witnesses ZF and LS-1, who all refer to civilian recruits being sent to reinforce the army in
Mburabuturo in the Kigali area.1969 The Chamber therefore cannot exclude that at some point
Nsengiyumva sent locally recruited and trained youth to fight alongside the army in Kigali.
This alone is not a crime, but it does reflect close cooperation between Nsengiyumva, the
army and the recruitment and training of civilians.
1819. Leaving aside whether Nsengiyumva, on this particular occasion, sent the recruits to
Kigali, the totality of the evidence clearly indicates that he did dispatch militiamen to
1968
Prosecution Exhibit 364 (Final Report of 20 March 1996 of the United Nations International Commission of
Inquiry), paras. 29-33.
1969
Witnesses DY, DCH, DM-191, A-8, RX-6 and Ntabakuze also refer to involvement of Interahamwe in
Mburabuturo. Even Prosecution Witness ABQ recounted Nsengiyumva informing the recruits that they were
going to be sent there. It is of course possible that this was a deliberate strategy to conceal the true nature of the
operation.
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Bisesero in the second half of June to participate in attacks against Tutsi civilians there.
Witness ABQ testified that buses of recruits travelled toward Kibuye prefecture. He later
heard that they participated in attacks there. There is also other hearsay evidence from
Serushago and Witness ZF about Nsengiyumva sending militiamen to Bisesero. The
Chamber views these testimonies with caution since they are in part second-hand and it has
raised concerns about other aspects of the credibility of these witnesses elsewhere in the
judgement. However, when considered together with the first-hand account of Witness KJ
concerning the arrival of militiamen from Gisenyi prefecture, the Chamber is satisfied that
the core element of their testimonies, concerning Nsengiyumva’s role in dispatching
militiamen, is true, in particular in view of the available documentary evidence.
1820. Between 9 June and 20 June 1994, there was correspondence between government
and military officials concerning the provision of weapons and reinforcements from the
Gisenyi operational sector in order to assist with an “opération de ratissage”1970 in Kibuye
prefecture. On 9 June, Clément Kayishema, the prefect of Kibuye prefecture, sent a telegram
to Edouard Karemera, the Minister of the Interior, about the security situation in Kibuye
prefecture.1971 On 12 June, Kayishema wrote to the Minister of Defence, indicating that “the
people of the area are ready to undertake a clean-up operation in the interests of civil
defense” in Bisesero sector.1972 The telegram requested the Minister of Defense to give the
Kibuye commander a formal order to oversee an operation between 15 and 18 June and to
provide ammunition.
1821. On 17 June 1994, Government ministers discussed providing such assistance and
authorised a “vigorous intervention” in Bisesero with the assistance of the Gisenyi
operational sector.1973 This follows from Karemera’s testimony and his contemporaneous
notes taken at the meeting. After the meeting, Karemera asked Nsengiyumva to assist the
Kibuye Gendarmerie detachment, with the support of the population, to undertake a military
operation in Bisesero no later than 20 June.1974 Karemera’s letter notes that he had been
authorised to make the request on behalf of the government since the Minister of Defence
was travelling abroad.
1970
The various translations of this French phrase in the English versions of the correspondence related to the
operation in Bisesero use the phrase “sweep operation”, “cordon and search operation” and “clean-up
operation”. See Prosecution Exhibit 50B (Edouard Karemera letter to Nsengiyumva); Nsengiyumva Defence
Exhibit 187B (Clément Kayishema telegram to the Ministry of Defence, dated 12 June 1994). Des Forges also
used the term “clearing up”. See T. 18 September 2002 p. 102. The Chamber notes that the verb “rattiser” has a
specific military meaning: “Ratisser le terrain: fouiller méthodiquement une zone de terrain à l’aide d’éléments
très rapprochés les uns des autres”. See Le Petit Robert (2003), p. 2177.
1971
This telegram was not admitted into evidence. Karemera does not dispute that it was sent, but denies that he
ultimately received it. However, its existence and content is referenced in Kayishema’s subsequent telegram of
12 June 1994 to the Minister of Defence. See Nsengiyumva Defence Exhibit 187 (Clément Kayishema’s
telegram to the Ministry of Defence, dated 12 June 1994).
1972
See Nsengiyumva Defence Exhibit 187 (Clément Kayishema’s telegram to the Ministry of Defence, dated
12 June 1994).
1973
Prosecution Exhibit 396 (Edouard Karemera’s hand-written notes of meeting on 17 June 1994).
1974
Prosecution Exhibit 50A (Edouard Karemera letter to Nsengiyumva: “J’ai l’honneur de vous informer que
lors du Conseil des Ministres de ce vendredi 17 Juin 1994, le Gouvernement a décidé de demander au
Commandement du Secteur Opérationnel de Gisenyi d’appuyer le Groupement de la Gendarmerie à Kibuye
pour mener, avec l’appui de la population, l’operation de ratissage dans le secteur Bisesero de la Commune
Gishyita, qui est devenu un sanctuaire du FPR”). The letter is not dated, but Karemera explained that he sent it
on 18 June 1994.
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1822. Nsengiyumva acknowledged receipt of this letter, but denied that he ever sent
“soldiers” to assist in the operation, explaining that he only took his orders from the army’s
chief of staff. Karemera stated that Nsengiyumva refused to comply with the order and that
no reinforcements were sent. The Chamber is not convinced by their explanations. They have
a clear interest in distancing themselves from the Kibuye operation. Furthermore, their
evidence is plainly contradicted by a letter Karemera sent to Prefect Kayishema on 20 June,
informing him of the decision to send reinforcements to Kibuye and referring to a
correspondence from the Minister of Defence, also dated 20 June, confirming Karemera’s
previous instructions.1975 The letter asks Kayishema to closely monitor the operation, noting
that it included the assistance of the populations of Gishyita, Gisovu and Gitesi communes. In
the Chamber’s view, this correspondence demonstrate a coordinated effort between the
Rwandan government, the military and civilian militiamen in connection with a military
operation in Kibuye prefecture in the second half of June 1994.1976
1823. Witness KJ provided direct and convincing testimony about the arrival in Kibuye
prefecture of buses of Interahamwe militiamen from Gisenyi and Cyangugu prefectures
around the same time as the exchange of letters between the civilian and military
authorities.1977 He was informed by those arriving from Gisenyi that they came from Ramba,
Giciye and Kayove communes. The Chamber notes that these communes do not border
Rubavu commune, where the training took place. Nonetheless, Witness KJ’s testimony does
not purport to reflect the commune of origin of each militiaman coming from Gisenyi.
Witness ABQ testified that the recruitment efforts at Umuganda Stadium brought people
from each of the communes in Gisenyi and that the request for volunteers was announced as
having come from Nsengiyumva.1978 It follows from Witness KJ’s testimony that Eliézer
Niyitegeka, the Minister of Information, welcomed the assailants and emphasised that they
had been sent by the Ministries of the Interior and Defence. The witness later learned that the
assailants along with gendarmes had participated in attacks against Tutsis in Bisesero. In the
Chamber’s view, Witness KJ corroborates that militiamen were sent by Nsengiyumva
pursuant to the government’s instructions to Kibuye prefecture to participate in attacks in
Bisesero. There is no direct evidence of the exact nature of the crimes committed by the
1975
Prosecution Exhibit 394 (letter of 20 June 1994), which states: “I refer to your telegrams of 9 and 12 June
1994 and would like to inform you that with respect to the search operation in Bisesero secteur, the Cabinet
Meeting of 17 June 1994 has requested that the commander of Gisenyi secteur should support the Kibuye
Gendarmerie groupement to carry out the operation by 20 June 1994 latest. In his response to my letter of 18
June 1994 which was copied to you, the Minister of Defence confirmed those instructions in the telegram he
sent to the Army and Gendarmerie Headquarters on 20 June 1994. Therefore, it is your duty to closely monitor
this operation which requires the support of the inhabitants of Gishyita, Gisovu and Gitesi communes and to
give me a feedback before the end of this month, that is, June 1994.”
1976
The statement by Jean Kambanda, who explained in his interview with Tribunal prosecutors, that he
instructed Minister Karemera to contact Nsengiyumva to request intervention in Bisesero but that “[t]he colonel
never intervened in that region” would appear to corroborate Nsengiyumva’s claim. However, based on the
evidence discussed above, this statement does not raise any doubt about Nsengiyumva’s involvement. See
Nsengiyumva Defence Exhibit 220B (transcript of an interview of Jean Kambanda, dated 15 January 1998) at p.
K0155412.
1977
The testimony of Prosecution Witness LAI provides some corroboration that Interahamwe were dispatched
from Cyangugu to Kibuye prefecture. See T. 31 May 2004 pp. 33-36. The witness stated that the killings in
Bisesero occurred around 15 April 1994. The Chamber considers that the witness is mistaken about the date as
he also places this incident after most of the Tutsis had been killed in Cyangugu, which suggests a much later
time.
1978
T. 7 September 2004 pp. 38-42.
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militiamen from Gisenyi. However, the Chamber is satisfied that the presence of additional
reinforcements provided substantial assistance to the killings of Tutsi civilians on Bisesero
hill.
1824. Accordingly, the Chamber finds it established beyond reasonable doubt that, in the
second half of June, Nsengiyumva sent militiamen from Gisenyi prefecture to participate in
an operation in Bisesero to kill Tutsis in Kibuye prefecture on orders of the government. As
an operational commander of a neighbouring sector, he was aware that the RPF was not in
the area and that the attack was directed at civilians.
1825. The Chamber has not found that Bagosora had general authority over the Rwandan
military after 9 April (IV.1.2). The evidence also does not show that he directly participated
in the operation. Therefore the Prosecution has not proven beyond reasonable doubt that he
bears responsibility for the attack.
4.5.2
Prevention of Humanitarian Aid to Tutsis, July
Introduction
1826. The Kabiligi and Ntabakuze Indictment alleges that, from April to July 1994, Kabiligi
brought about the massacre of Tutsi refugees through his acts, orders or complicity. In
particular, the Prosecution claims that, during July 1994, Kabiligi intentionally prevented
Tutsis in Kibuye prefecture from receiving humanitarian supplies. Reference is made to
Witnesses XAI and XXY.1979
1827. The Kabiligi Defence maintains that it received insufficient notice of this allegation.
Furthermore, Witnesses XAI and XXY lack credibility and are contradicted by Witnesses
BB-15, SX-1, VIP-1, TT-2, DK-11 and ZDR-2.1980
Evidence
Prosecution Witness XAI
1828. Witness XAI, a Hutu soldier with the 17th Battalion in Byumba prefecture, testified
that from June to July 1994, he was admitted to Gisenyi hospital for a few days to receive
treatment for an injury. In early July, Kabiligi came to the hospital in a red Pajero and met
with Nsengiyumva, after which Kabiligi encouraged the wounded soldiers. The witness
overheard him say that he was going to Kibuye prefecture to ensure that the Tutsis still
located in Bisesero and Karongi were unable to receive supplies like food and weapons.
Kabiligi’s stated aim was to rid these areas of Tutsis before Opération Turquoise could arrive
from Kibuye town. The witness recognised Kabiligi’s driver, Masengesho, who confirmed
that they were going to Bisesero and Karongi in Kibuye prefecture because of recent reports
of Tutsi presence there.1981
1979
Kabiligi and Ntabakuze Indictment, para. 6.33; Prosecution Closing Brief, paras. 1096(d), 1464(a), 1626, p.
834.
1980
Kabiligi Closing Brief, paras. 110-116, 409, 745-751, 994-1005, 1012, 1174, 1176-1178, 1234-1235, 15831584, 1707, pp. 579-580, 590-591, 598.
1981
T. 9 September 2003 pp. 13-16, 40, 42-47; T. 10 September 2003 pp. 5-7, 32-34; Prosecution Exhibit 94
(personal identification sheet).
Judgement and Sentence
458
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1829. After Witness XAI fled to Goma in July 1994, he learned from a refugee named
Dusabimana, who had heard this from soldiers, that someone called Kabiligi was
commanding troops in Kibuye prefecture. Dusabimana also told the witness that “a certain
Kabiligi came and the hunt for Tutsis then started again”. At the time of this conversation, the
attacks in Karongi, Kibuye town and Bisesero had ended.1982
Prosecution Witness XXY
1830. Witness XXY, a Hutu secondary school student in 1994, took refuge in Kibuye
prefecture for three weeks in July after the fall of Gitarama to the RPF. He stated that French
soldiers gave him additional food in exchange for helping Opération Turquoise distribute
food throughout Kibuye prefecture. On one such occasion, he joined a Senegalese soldier on
an operation in Bisesero. Before their vehicle could reach Biserero, they came across a
roadblock at Mubuga manned by a member of the Para Commando Battalion and
Interahamwe. When the witness told him about their destination and purpose, the soldier
replied: “No, don’t go to Bisesero. The Tutsis in Bisesero are wicked.” He informed the
witness that Kabiligi had ordered them to prevent all vehicles from crossing the roadblock.
Eventually the Senegalese soldier alighted from the truck, and the Rwandan soldier told him,
with the witness acting as translator, that the truck could not pass, by order of the authorities.
The Senegalese soldier tried to drive through the roadblock, but stopped and turned around
when the Rwandan soldier loaded his rifle and pointed it at the truck.1983
Nsengiyumva
1831. Nsengiyumva received Kabiligi in Gisenyi on 23 April 1994, when he was returning
from a mission in Kenya. A helicopter then transported Kabiligi to Kigali. Nsengiyumva did
not see him after that date until they both arrived in Goma after 17 July. He never met with
Kabiligi at Gisenyi hospital on 4 July and did not visit injured soldiers in Gisenyi around that
date. Nsengiyumva said that Kabiligi would have left Kigali on 4 July when everyone else
was leaving the town.1984
Kabiligi Defence Witness BB-15
1832. Witness BB-15, a Hutu member of the Presidential Guard, said that Kabiligi was in
Kigali on 3 and 4 July 1994. He saw Kabiligi in Kigali on the evening of 3 July, and near the
Muhondo centre around 7.00 a.m. and 1.00 or 2.00 p.m. on the following day. The witness
also saw Kabiligi in Gisenyi from 16 to 18 July as the army was leaving for Goma.1985
Ntabakuze Defence Witness DK-11 and Nsengiyumva Defence Witness ZDR-2.
1833. Witnesses DK-11 and ZDR-2 were Hutu soldiers working with Kabiligi. They
testified that his headquarters remained in Camp Kigali until the night of 3 to 4 July 1994.1986
Prior to this departure, Kabiligi left Camp Kigali only to visit Camp Kanombe, the
Presidential Guard camp, and Mount Kigali, and there was also a failed attempt to visit
Runda in Gitarama prefecture on 3 July. Both witnesses stated that when Kabiligi travelled,
he would usually be in a caravan of three vehicles, and Witness DK-11 specified that Kabiligi
1982
T. 9 September 2003 p. 47; T. 10 September 2003 pp. 3-5.
T. 11 June 2004 pp. 2-4, 36-40; T. 30 June 2004 p. 100; T. 1 July 2004 pp. 12-29, 37, 39, 95; Prosecution
Exhibit 262 (personal identification sheet).
1984
T. 11 October 2006 pp. 5-6.
1985
T. 11 September 2006 pp. 5-8, 11-12, 18, 35-36; Kabiligi Defence Exhibit 93 (personal identification sheet).
1986
Ntabakuze Defence Exhibit 144 (personal identification sheet).
1983
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
would ride in a red Pajero. They mentioned that Masengesho was one of Kabiligi’s
drivers.1987
Kabiligi Defence Witness SX-1
1834. Witness SX-1, a French member of Opération Turquoise, testified that the mission
established its headquarters in Goma, Zaire, and operated in Rwanda from 22 June 1994. It
created three humanitarian security zones in the southwest of Rwanda in Kibuye, Cyangugu
and Gikongoro prefectures. Those were the locations of the largest refugee populations. Each
zone contained three military groups, which disarmed soldiers and militia, dismantled all
roadblocks and conducted patrols in their area of operation. After the first week, the mission
had total control of a good part of these areas. The Rwandan army avoided these zones since
they were disarmed upon entry. Therefore, the soldiers evacuating Kigali went via Ruhengeri
prefecture to Gisenyi prefecture, which were not part of the Opération Turquoise zone of
operation.1988
1835. Witness SX-1 heard no reports of Kabiligi entering a humanitarian safe zone in July
1994. He also considered it highly unlikely that Kabiligi would have given orders in Kibuye
to block access to refugees since the Rwandan military was not in a position to issue orders in
areas under the control of Opération Turquoise.
1836. Opération Turquoise troops distributed food from Kibuye town to refugees in
Bisesero. The witness was not aware that Rwandans were used in connection with such
distribution. Furthermore, Senegalese troops only became operational in Kibuye prefecture in
mid-July. The witness did not receive any reports that elements of the Rwandan military or
militiamen impeded the humanitarian activities of Opération Turquoise.1989
Kabiligi Defence Witness VIP-1
1837. Witness VIP-1, a French member of Opération Turquoise, stated that he worked in
Kibuye and Cyangugu prefectures from 23 to 30 June 1994. At the time, his unit was based in
Bukavu, Zaire. It entered Cyangugu prefecture on 23 June and took control of Kibuye town
on 24 June when a detachment was dispatched there by helicopter. Vehicles arrived from
Cyangugu prefecture on 26 June to allow the mission to move around. The detachment was
redeployed to Gikongoro prefecture following the arrival of another squad on 30 June. Also
on that day, he went to Bisesero after members of the mission discovered a massacre site
there. The men in his unit observed bodies and rescued the survivors. There were no elements
of the Rwandan military in the area when he arrived. The witness did not receive any reports
that members of the Rwandan military were obstructing the mission of Opération
Turquoise.1990
1838. To the witness’s knowledge, there was no roadblock erected at Mubuga, and the
mission would not have tolerated one. He did not exclude that a temporary one could have
been erected. His squad distributed food in Kibeho in Gikongoro prefecture. The witness was
1987
Witness DK-11, T. 19 July 2005 p. 61; T. 20 July 2005 pp. 3-4, 42-44, 49-51, Ntabakuze Defence Exhibit
144 (personal identification sheet); Witness ZDR-2, T. 30 March 2006 pp. 11-16; Nsengiyumva Defence
Exhibit 170 (personal identification sheet). See also Prosecution Exhibit 354 (Witness DK-11’s list of Kabiligi’s
escorts and drivers); Prosecution Exhibit 386 (Witness ZDR-2’s list of Kabiligi’s escorts and drivers).
1988
T. 16 January 2007 pp. 32, 34-35, 38-50; Kabiligi Defence Exhibit 131 (personal identification sheet).
1989
T. 16 January 2007 pp. 39-40.
1990
T. 16 January 2007 pp. 54-60, 83-84, 89-90; Kabiligi Defence Exhibit 132 (personal identification sheet).
Judgement and Sentence
460
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
not aware that food was distributed in Kibuye prefecture. However, he did not dispute that
this was done by another contingent of troops. The witness was not aware that Rwandans
were used in such efforts. Senegalese troops joined the squad in Kibuye in mid-July.1991
1839. Witness VIP-1 knew Kabiligi from a prior mission in Rwanda in 1992. He spoke with
Kabiligi in Cyangugu prefecture on 24 June 1994, for 15 to 30 minutes. Kabiligi had come
from Kigali to request French assistance. The witness informed him that the mission was
exclusively humanitarian. Around 15 July, Witness VIP-1 was in Gisenyi to meet General
Bizimungu, the Rwandan army’s chief of staff. Bizimungu informed him that Kabiligi was
retreating to Gisenyi with the last of the troops from Kigali through Ruhengeri prefecture.1992
Kabiligi Defence Witness TT-2
1840. Witness TT-2 was a French member of Opération Turquoise in July and August 1994,
based in Kibuye town. He visited Bisesero within days of his arrival and found a makeshift
camp with a number of refugees who recounted surviving a massacre. A Senegalese
contingent joined the mission at some point after the end of June. The mission used trucks to
provide food and other supplies to the survivors of the Bisesero massacre and to other
displaced persons in the area. The witness did not recall that Rwandans participated in this
effort, but did not exclude that it was possible.1993
1841. The witness did not receive any reports of Rwandan soldiers interfering with the
humanitarian mission in the area. Most of them left the area soon after the French soldiers
arrived. The Opération Turquoise troops assigned to Kibuye prefecture before the witness
arrived in July had already dismantled a number of roadblocks in the area. The witness’s
contingent dismantled the remaining ones. In particular, most disappeared after an
announcement was made during church services. There were regular patrols by members of
the mission near the Mubuga area. Witness TT-02 also received frequent reports concerning
the movement of convoys and other activities in the zone. He did not hear about Kabiligi
being in the area or about an incident involving a roadblock in Mubuga.1994
Deliberations
1842. Witness XAI provided a first-hand account of Kabiligi in early July telling wounded
soldiers in a Gisenyi hospital that he was going to Kibuye prefecture to prevent Tutsi
refugees there from receiving food before Opération Turquoise could assist them. The
witness later heard after the events that Kabiligi had in fact gone to Kibuye. As corroboration,
the Prosecution points to Witness XXY, who while assisting Opération Turquoise deliver
food to refugees at some point in the first part of July, was turned back at a roadblock in
Mubuga. The member of the Para Commando Battalion manning the roadblock told the
witness that Kabiligi had issued the order to prevent passage of relief supplies. Other secondhand evidence from Witness XXY suggests that Kabiligi expressed similar sentiments in
connection with refugees in Cyangugu prefecture (III.4.6.3).
1843. Witness XAI’s testimony about Kabiligi’s presence in Gisenyi prefecture in early July
is uncorroborated, and his testimony that Kabiligi went to Kibuye prefecture is hearsay.
1991
T. 16 January 2007 pp. 55-57, 66-68.
Id. pp. 69-72, 90.
1993
T. 18 January 2007 pp. 23-24, 31-33, 36, 49; Kabiligi Defence Exhibit 133 (personal identification sheet).
1994
T. 18 January 2007 pp. 24-25, 32, 38-39, 41, 43-46, 57-58.
1992
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
There is also conflicting evidence from Nsengiyumva, Witnesses DK-11, ZDR-2, BB-15 and
VIP-1, indicating that Kabiligi was in Kigali at the beginning of July with the last remnants
of the army. This evidence is not definitive. Notably, some of these witnesses may have an
interest in providing testimony favourable to Kabiligi in view of their status as Rwandan
soldiers. Furthermore, Witness VIP-1’s testimony is hearsay. It also cannot be excluded that
Kabiligi made a specific trip to Gisenyi or Kibuye prefecture during this period similar to his
brief trip to Cyangugu prefecture on 24 June 1994 to meet with Witness VIP-1. Nonetheless,
when the Defence evidence is taken together and weighed against Witness XAI’s
uncorroborated or second-hand accounts, the Chamber has some doubt about Kabiligi’s
presence in Gisenyi and Kibuye prefectures at this time.
1844. Furthermore, the Chamber is mindful that Opération Turquoise was operating in
Kibuye prefecture from 24 June 1994 and had already begun providing relief supplies to
refugees in Bisesero as early as 30 June. According to Witness SX-1, the French troops had
control of most of southwest Rwanda by this time. Consequently, it is difficult to understand
why, in early July, Kabiligi would be saying that he needed to prevent a humanitarian relief
effort before the French troops could provide such assistance, when in fact the operation was
already well underway. The Chamber has also expressed concern elsewhere in the judgement
with other aspects of Witness XAI’s testimony (III.3.5.1; III.4.4.1). Accordingly, the
Chamber declines to accept his testimony about this incident in the absence of corroboration.
1845. In the Chamber’s view, Witness XXY does not provide such corroboration. He is the
only witness to testify about an Opération Turquoise truck being prevented from delivering
food at a roadblock in Mubuga. It follows from Witnesses SX-1, VIP-1 and TT-2 that by July
nearly all roadblocks had been dismantled within the humanitarian safety zones and that the
French troops were in near total control of the area, with regular patrols around Mubuga.
Given the reporting structure of this force, it appears unlikely that such an incident would
have occurred without their notice. This evidence is not conclusive, but it does raise questions
about the credibility of Witness XXY’s account.
1846. Furthermore, the evidence of the three French witnesses suggests that the Senegalese
contingent did not arrive in Kibuye until mid-July, and that Rwandans did not assist in
distributing relief supplies. It remains possible that the purported mission occurred in the
second half of July. However, this would further undermine the proposition that Rwandan
forces were still mounting roadblocks since the French forces progressively dismantled them
over the course of their mandate. Furthermore, in view of the informal nature of Witness
XXY’s purported work for the mission, it is possible that the Defence witnesses were not
aware that he assisted in food deliveries. Nevertheless, these differences in the Prosecution
and Defence evidence cause additional concern. The Chamber has also raised questions about
other aspects of his testimony elsewhere in the judgement (III.4.4.1). It therefore declines to
accept his account of the event at the roadblock without adequate corroboration.
1847. Accordingly, the Prosecution has not proven beyond reasonable doubt that Kabiligi
attempted to prevent relief supplies from reaching refugees in Kibuye prefecture.
Judgement and Sentence
462
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1848. During the course of the trial, the Chamber determined that there was adequate notice
of these allegations.1995 As a result of the findings on this event, it is not necessary to revisit
the Kabiligi Defence arguments concerning the notice for these incidents.
1995
Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, paras. 911, 15-16; Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005,
para. 19.
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463
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.6
4.6.1
Cyangugu Prefecture
Meetings at MRND Headquarters and Cercle Sportif, 23 - 24 April
Introduction
1849. The Kabiligi and Ntabakuze Indictment alleges that, between 10 April and about 31
May 1994, Kabiligi encouraged and supported militiamen who were murdering Tutsis.
Specifically, the Prosecution submits that he attended a meeting at the MRND headquarters
in Cyangugu prefecture on 23 April 1994 as part of the delegation of President
Sindikubwabo. Kabiligi urged the civilian population to give money to support efforts to fight
the Tutsi enemy. On the following day, he allegedly collected funds during a meeting at the
Cercle Sportif nearby, the purpose being to purchase weapons, and donated one million
Rwandan francs himself. The Prosecution primarily relies on Witness XXH.1996
1850. The Defence submits that Kabiligi received insufficient notice of these allegations. It
also argues that Witness XXH lacks credibility and provided uncorroborated evidence. His
testimony was contradicted by Witnesses Emmanuel Bagambiki, André Ntagerura, RX-3,
TD-77 and the written statement of Witness SX-9. Furthermore, Kabiligi has an alibi for 23
April as he was returning to Kigali from Nairobi.1997
Evidence
Prosecution Witness XXH
1851. Witness XXH, a Hutu businessman in Cyangugu, testified that word was spread
around Kamembe town that a meeting would be held on 23 April 1994. Between 10.00 a.m.
and 1.00 p.m., he attended a meeting at the MRND headquarters at which the newly
appointed President Sindikubwabo addressed local businessmen.1998 Kabiligi as well as
Ministers Casimir Bizimungu and André Ntagerura formed part of the presidential
delegation. Among the 200 to 300 persons present were Prefect Emmanuel Bagambiki,
Lieutenant Samuel Imanishimwe, officials, businessmen as well as Interahamwe leaders
Yussuf Munyakazi, Christophe Niandui, Manase Mubumbyi and Édouard Bandiste.
Bagambiki spoke first. He introduced the new President and said that military assistance
would be given to assist in repelling the attack of the Tutsis, who he also referred to as the
enemy. President Sindikubwabo stated that he had acceded to the presidency in light of the
assassination of the President by the “Tutsi enemy”, that the new government should be
supported, and that all assistance should be provided to overcome the enemy.1999
1996
Kabiligi and Ntabakuze Indictment, paras. 6.30, 6.45; Prosecution Closing Brief, paras. 676-677, 14081412, in particular 1410 (b), 1422, p. 839.
1997
Kabiligi Closing Brief, paras. 110, 253, 383-395, 514, 521, 523, 913-915, 919-929, 939-940, 1088-1089,
1098-1099, 1102-1103, 1165-1167, 1270-1272, 1292, 1536, pp. 572-573; T. 28 May 2007 pp. 29-30, 38-39, 5355.
1998
Prosecution and Defence witnesses refer to this location as the MRND “headquarters”, “palace”, “house”,
“hall” or “Palais du MRND”. For consistency, the Chamber will refer to it as the “MRND headquarters”.
1999
T. 4 May 2004 pp. 35-36, 44-47, 75; T. 6 May 2004 pp. 4-6, 9, 15-16, 18-20, 62-63, 69; Prosecution Exhibit
220 (personal identification sheet). At the time of the testimony, the witness was detained in Cyangugu
prefecture, awaiting trial in Rwanda. He was arrested on 26 September 1994 and in 1998 charged with genocide.
T. 4 May 2004 pp. 64, 66.
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464
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1852. Bagambiki then introduced Kabiligi as being in charge of the army. Kabiligi stated
that the people of Cyangugu prefecture could overcome the enemy through continued funding
for the acquisition and distribution of weapons. The witness explained that by the term
“enemy” Kabiligi was referring to the Tutsis and the RPF. Munyakazi said that he would do
anything to avenge the death of President Habyarimana, who had been killed by the InyenziInkotanyi, and that he would send Interahamwe to Bisesero. Manase Mubumbyi and Édouard
Bandeste indicated that they were saddened by the President’s death and in favour of raising
money to assist the army.2000
1853. The following day, on 24 April between 9.00 and 11.00 a.m, Witness XXH attended a
meeting at the Cercle Sportif, a recreational centre, across from the Cyangugu prefecture
office. Kabiligi and government officials, such as Bagambiki, the prosecutor “Paul”, and first
deputy prosecutor Siméon Nchamihigo were present, as were Interahamwe such as
Munyakazi and Mubumbyi. The purpose of the meeting was to collect money from the
civilian population to assist the army. Approximately 100 to 200 persons attended. Kabiligi
urged them to contribute on the basis of their resources. He donated one million Rwandan
francs. The witness gave 20,000 francs. Around five million francs were collected in total and
provided to a committee for the purchase of weapons.2001
Kabiligi Defence Witness Emmanuel Bagambiki
1854. Emmanuel Bagambiki, a Hutu, was the prefect of Cyangugu prefecture in 1994, and
has been tried and acquitted by the Tribunal. He stated that, on 17 May 1994, he and
President Sindikubwabo attended a meeting at the MRND headquarters in Cyangugu
prefecture. The meeting lasted between 11.00 a.m. and 2.00 or 3.00 p.m. About 400 persons
were present. Bagambiki, as the prefect, spoke first, followed by the President, who urged
those gathered to give support to the interim government. André Ntagerura, Justin Mugenzi
and a member of the MDR steering committee, Donat Murego, were also present and spoke
afterwards.2002
1855. Neither Casimir Bizimungu nor Kabiligi were present at the 17 May meeting, and
Bagambiki had no recollection of Yussuf Munyakazi speaking at it. André Nambaje, a
representative of the information agency ORINFOR, was present and later gave a report
about the meeting on Radio Rwanda. This was Sindikubwabo’s first visit to Cyangugu
prefecture in his capacity as President. According to Bagambiki, Sindikubwabo was not in
Cyangugu prefecture on 23 or 24 April. No meetings were held at the MRND headquarters
on 23 April and at the Cercle Sportif on 24 April, or on 18 May, the day after
Sindikubwabo’s visit. Bagambiki did not see Kabiligi in Cyangugu prefecture between April
and July 1994.2003
1856. Bagambiki recalled chairing meetings with Cyangugu businessmen on 29 May and 5
June 1994 in response to their concerns regarding insecurity in the area and their express
desire to raise funds to contribute to the war effort. A bank account had previously been
2000
T. 4 May 2004 pp. 46-48; T. 6 May 2004 pp. 6-12, 18, 47, 62-63, 69-70.
T. 4 May 2004 pp. 47-49; T. 6 May 2004 pp. 13-16, 66.
2002
T. 15 September 2006 pp. 2-3; T. 28 September 2006 pp. 30-31, 35-36, 39, 41-43; Kabiligi Defence Exhibit
95 (personal identification sheet). See Ntagerura et al. Trial Judgement, para. 805; Ntagerura et al. Appeal
Judgement, para. 7. Bagambiki was previously identified in the proceedings as Kabiligi Defence Witness KC55.
2003
T. 15 September 2006 pp. 3-5; T. 28 September 2006 pp. 36-37, 67-68.
2001
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
opened in October 1990 in order to solicit money for security services in the business
districts. Bagambiki eventually was a co-signer of the account, but did not manage the funds.
He was unaware of how much money was collected or if anyone offered to deposit one
million Rwandan francs.2004
Kabiligi Defence Witness André Ntagerura
1857. André Ntagerura, a Hutu, was the Minister for Transport and Communications in
Rwanda in 1994. He has been acquitted by the Tribunal of crimes committed in Cyangugu
prefecture. On 23 April 1994, he crossed the border between Gisenyi town, Rwanda and
Goma, Zaire, to fly to Kinshasa. Around 3.00 p.m., he flew from Kinshasa to Gbadolite,
Zaire, where he headed a government and military delegation negotiating a cease fire
agreement with the RPF. Ntagerura authorised General Marcel Gatsinzi and Colonel Aloys
Ntiwiragabo to sign the agreement of 23 April 1994. He flew to Kinshasa on 24 April where
he met Casimir Bizimungu, the Minister of Health. On 12 May 1994, Ntagerura returned to
Rwanda, after travelling to Kenya and Tanzania. He produced a copy of the cease fire
agreement and his passport, the latter reflecting his exit from Rwanda on 23 April and his
return on 12 May.2005
1858. Ntagerura attended an assembly at the MRND party headquarters in Cyangugu
prefecture on 17 May 1994 where President Sindikubwabo introduced himself and sought to
bring a message of peace and pacification. Ntagerura addressed the participants along with
Prefect Bagambiki, Justin Mugenzi and Donat Murego. The meeting was covered by
ORINFOR in Cyangugu prefecture, and a report was broadcast on Radio Rwanda the next
day. Neither Kabiligi nor Casimir Bizimungu was present. Ntagerura was not aware of a
meeting held at the Cercle Sportif the day after Sindikubwabo’s visit, nor was he aware of
any meeting at that location wherein Kabiligi contributed one million Rwandan francs for the
purpose of purchasing weapons.2006
Kabiligi Defence Witness SX-9
1859. Witness SX-9, a prominent Rwandan government official, did not testify but the
Chamber admitted his written statement pursuant to Rule 92 bis. According to his evidence,
Casimir Bizimungu did not attend a meeting at the MRND headquarters in Cyangugu
prefecture on either 23 April or 17 May 1994. Bizimungu was in Kinshasha, Zaire, on 23 and
24 April, and his hotel bills were attached to the statement. Witness SX-9 also stated that on
17 May, Bizimungu was not in Rwanda.2007
Kabiligi Defence Witness RX-3
1860. Witness RX-3, a Hutu, was a government official who worked in Cyangugu
prefecture in 1994. He attended a meeting of approximately 300 or 400 people at MRND
2004
T. 28 September 2006 pp. 36-39, 41-42.
T. 28 November 2006 pp. 8-15, 18-21, 28-29; T. 29 November 2006 pp. 4-5, 24-25; Kabiligi Defence
Exhibit 119 (personal identification sheet). See Ntagerura et al. Trial Judgement, para. 804; Ntagerura et al.
Appeal Judgement, para. 7; Kabiligi Defence Exhibit 120 (Declaration de Cessez le Feu, 23 avril 1994);
Kabiligi Defence Exhibit 121 (Passport of André Ntagerura). Ntagerura was previously identified in the
proceedings as Kabiligi Defence Witness JRO-11.
2006
T. 28 November 2006 pp. 15-18; T. 29 November 2006 p. 10.
2007
T. 19 January 2007 p. 13; Kabiligi Defence Exhibit 135 (statement of 11 December 2006). The hotel bills
have a header that reads “Grand Hotel Kinshasa”. It is attributed to “Bizimungu, Casimir Dr., Ambassade du
Rwanda”, and the charges appear to cover dates from 13 April to 24 April 1994.
2005
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
headquarters in mid-May at which Prefect Bagambiki, President Sindikubwabo, André
Ntagerura and Justin Mugenzi addressed those assembled. Sindikubwabo introduced himself
and gave “messages of peace”. Samuel Imanishimwe, the local military commander, was also
present. The witness did not see Casimir Bizimungu or Kabiligi at this event, nor did he see
Kabiligi in the Cyangugu prefecture between April and July 1994. He was not aware of any
meeting on 23 April but did remember Sindikubwabo coming to Cyangugu a month after the
interim government was formed. Had Kabiligi been in Cyangugu prefecture, there would
only have been a five percent chance that the witness would not have been aware of his
presence.2008
Kabiligi Defence Witness TD-77
1861. Witness TD-77 was a Hutu trader living in Kamembe commune, Cyangugu prefecture
in 1994. He was present at a meeting on 17 May 1994 and recalled that it was attended by
President Sindikubwabo, the prefect and the bourgmestre of Kamembe. Kabiligi was not
there. Sindikubwabo only came to Kamembe commune on this occasion. There was no
meeting held on 23 April at the MRND headquarters attended by Sindikubwabo and Kabiligi.
The witness recalled that he was in the commune on 23, 24 and 25 April because of
mechanical problems with his vehicle and testified that had such a meeting occurred on 23
April he would have heard about it. The witness did not see or learn of Kabiligi visiting
Kamembe commune between the 6 April and 17 July 1994.2009
Deliberations
1862. Witness XXH testified that Kabiligi attended two meetings in Cyangugu prefecture at
the MRND headquarters and the Cercle Sportif, respectively, on 23 and 24 April 1994, where
he encouraged attendants to raise funds to acquire weapons. He was the only Prosecution
witness who provided evidence about these events. As he was incarcerated and awaiting trial
for genocide charges, the Chamber views his testimony with caution.
1863. The witness placed Ntagerura, Bagambiki, Bizimungu and Kabiligi with President
Sindikubwabo at the MRND headquarters on 23 April calling on the population to assist in
the fight against Tutsis. Four Defence witnesses testified that the meeting with Sindikubwabo
did not take place on 23 April 1994 but on 17 May 1994, and that Kabiligi and Bizimungu
were not present.2010 The Chamber is mindful that Ntagerura and Bagambiki would have a
clear interest in distancing themselves from the alleged meeting, as described by Witness
XXH, given its content and their alleged participation in it. Witness SX-9 could have a
similar interest. On the other hand, there is some documentary evidence aimed at
corroborating their testimonies.
1864. Ntagerura presented an international agreement and a passport indicating that he was
in Zaire on 23 April. Although these two document do not show that it would have been
impossible for him to be in Cyangugu, they provide some support to his testimony.2011
2008
T. 26 September 2006 pp. 42, 44-47, 51-55; Kabiligi Defence Exhibit 98 (personal identification sheet).
T. 6 September 2006 pp. 30-34, 42-44, 51; Kabiligi Defence Exhibit 90 (personal identification sheet).
2010
Witness XXH was in Cyangugu prefecture on 17 May but was unaware of any meeting on that day,
including one involving President Sindikubwabo, André Ntagerura, Justin Mugenzi and Donat Murengo. See T.
6 May 2004 pp. 20, 22-24.
2011
Kabiligi Defence Exhibit 120 (Declaration de Cessez le Feu, 23 avril 1994) does not in itself show that
Ntagerurua was in Zaire, as the cease fire agreement, signed on 23 April by two Rwandan military officials, is
2009
Judgement and Sentence
467
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bizimungu’s presence in Zaire on 23 and 24 April was corroborated in part by Ntagerura’s
testimony and by Bizumungu’s hotel bills submitted with Witness SX-9’s statement.2012
1865. Also Witnesses RX-3 and TD-77 stated that President Sindikubwabo did not address a
meeting in Cyangugu in April 1994 and that Kabiligi was not in the area at this time. The
Chamber views their testimonies with caution. Witness RX-3’s personal knowledge about
Kabiligi was limited. Some other issues relating to his credibility have also been
considered.2013 Witness TD-77 has been alleged to have committed genocide in Cyangugu
and he has withheld information about his names in previous proceedings before the
Tribunal.2014 This said, their testimonies point in the same direction as the other Defence
evidence.
1866. Furthermore, Kabiligi’s alibi (III.6.2) that he returned to Kigali from Nairobi on 23
April raises additional questions about the likelihood of his participation in a meeting on that
date in Cyangugu prefecture, even though the alibi is not necessarily inconsistent with the
Prosecution’s evidence.
1867. Witness XXH’s version is uncorroborated. For the reasons mentioned above, the
Chamber is not convinced that Kabiligi attended a meeting with President Sindikubwabo on
23 April in Cyangugu prefecture. There is no evidence that he attended the meeting on 17
May, described by the Defence witnesses.2015
1868. In view of the Chamber’s concerns with the reliability of Witness XXH relating to the
alleged meeting of 23 April it gives limited weight to his account that Kabiligi participated in
a meeting the next day, on 24 April, at the Cercle Sportif. Also this part of the witness’s
evidence is uncorroborated. The Chamber notes that, according to Bagambiki, a meeting was
held at the end of May to raise money from local businessmen to implement supplemental
security measures. There is no indication that Kabiligi attended that meeting.2016
not signed and authorised by Ntagerura on that day. Kabiligi Defence Exhibit 121 (Passport of André Ntagerura)
contains a stamp from the La Corniche border indicating that he entered Goma, Zaire on 23 April but does not
rule out that he did so in the evening, after the purported meeting with Sindukwabo in the morning of the same
day. The witness testified that he crossed the border in the morning of 23 April. T. 29 November 2006 p. 5.
2012
See Kabiligi Defence Exhibit 135 (statement 11 December 2006). The Chamber has taken into account that
there was no cross-examination of this witness concerning the hotel bills attesting to Bizimungu’s stay in
Kinshasa, Zaire.
2013
Witness RX-3 assisted individuals by providing them falsified documents in June and July 1994, including
some persons later indicted by the Tribunal. See T. 26 September 2006 pp. 62-66, 68-72; Kabiligi Defence
Exhibit 90 (Kabiligi’s passport). It is also noted that at some point the witness was a member of the prefectoral
security council. Id. pp. 59-60, 70.
2014
T. 6 September 2006 pp. 35-39, 50-51; Prosecution Exhibit 408 (Extract from Rwanda’s Official Gazette,
November 1996, showing the witness’s name on a list of Category One genocide suspects.); Prosecution Exhibit
406 (Excerpts from the Ntagerura et al. trial), in which he denied that he had been known by a name on the list
of suspects which now appears in Kabiligi Defence Exhibit 90 (personal identification sheet).
2015
The Chamber has also noted that the Defence put to Witness XXH that, on 3 June 1994, a journalist on
Radio Rwanda, André Nambaje, reported that President Sindikubwabo visited Cyangugu prefecture on 17 May
1994. See T. 6 May 2004 pp. 18-24. The transcripts of the radio transmission was not tendered as an exhibit in
the present trial, see T. 6 May 2004 pp. 70-71, but it was read into the record during Bagambiki’s reexamination. T. 28 September 2006 p. 68 (“Within the framework of the nation-wide tour of the president of the
republic, Dr. Sindikubwabo, to convey to Rwandans a pacification message, he visited Cyangugu prefecture on
the 17th of May.”).
2016
It is noteworthy that in the radio transmission mentioned in the preceding footnote, the journalist reported on
3 June 1994 that the previous Sunday, 29 May, a “businessman” pledged to donate one million Rwandan francs
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1869. Consequently, the Chamber finds that the Prosecution has not proven beyond
reasonable doubt that Kabiligi participated in meetings on 23 and 24 April, respectively, at
the MRND headquarters and the Cercle Sportif in Cyangugu prefecture.
1870. The Chamber determined at trial that Kabiligi had adequate notice of these
allegations. In view of its findings above, it does not deem it necessary to reconsider the
Defence submissions on this matter.2017
4.6.2
Roadblock Near Hôtel du Lac, Mid-May
Introduction
1871. According to the Ntabakuze and Kabiligi Indictment, senior military officials,
including Kabiligi, offered assistance and encouragement to the perpetrators of the massacres
of Tutsi civilians from 7 April until July 1994. He is alleged to have encouraged and
supported militiamen in murdering Tutsi civilians and having ordered his subordinates to
work in coordination with Interahamwe at roadblocks. In support of these general allegations,
the Prosecution submits that Kabiligi established a roadblock, manned by soldiers and
Interahamwe, near the Hôtel du Lac in May 1994 where over 100 civilians were killed.
Reference is made to Witness XXH.2018
1872. The Kabiligi Defence argues that this allegation was not specifically pleaded in the
Indictment. It further contends that Witness XXH’s uncorroborated testimony lacks
credibility and is contradicted by Witnesses Emmanuel Bagambiki, André Ntagerura, RX-3
and TD-77.2019
Evidence
Prosecution Witness XXH
1873. Witness XXH, a Hutu, worked in Cyangugu town in the vicinity of the Rusizi 1
border crossing in April and May 1994. He testified that, in the beginning of May, Kabiligi
arrived in Cyangugu and installed his family at the Hotel du Lac. The witness saw Kabiligi
there. Around mid-May, a roadblock was erected between that hotel and the border-post at
the Rusizi 1 bridge in Kibungo commune.2020 It was located about 25 to 30 metres from both
into an account to be managed by a prefectural committee so that arms could be purchased and distributed to the
population in support of civil defence. See T. 28 September 2006 pp. 36-39.
2017
See Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, pp.
11-12; Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, para.
37, fn. 53.
2018
Kabiligi and Ntabakuze Indictment, paras. 6.30, 6.43-6.48; Prosecution Closing Brief, paras. 1408-1412, in
particular 1410 (a), pp. 839-845. See also Pre-Trial Brief (21 January 2002), p. 149.
2019
Kabiligi Closing Brief, paras. 110, 916, 930-933, 939-940, 1088, 1098-1099, 1102-1103, pp. 572-573; T. 28
May 2007 pp. 29-30, 54-55.
2020
The transcripts contain two spellings, “Rusizi” and “Ruzizi”. For consistency, the Chamber has chosen to
use “Rusizi”. According to Witness XXH, the roadblock was established to provide increased security to the
families of senior Rwandan personnel staying at the hotel, such as the wives of André Ntagerura, Déogratias
Nsabimana as well as the families of Casimir Bizimungu and Kabiligi. See T. 4 May 2004 p. 41.
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
sites. The witness heard that Kabiligi had ordered the establishment of the roadblock, but
could not recall the source of his information.2021
1874. From April to July 1994, the Rusizi 1 roadblock was manned by Interahamwe and
soldiers from the Presidential Guard and Camp Karambo in Cyangugu prefecture. Witness
XXH could identify the soldiers by their distinctive insignia and black berets. They would
decide who could pass through the roadblock, and the Interahamwe would kill Tutsis and
those without identification papers. On one occasion, soldiers flushed out a man from the
Home Saint-François, a hotel. He was killed by Interahamwe at the Rusizi 1 roadblock
because he lacked identification. The witness estimated that between 100 and 150 persons
were killed there and near the river bank. Those executed at the roadblock were buried in
mass graves while those killed close to the river were thrown into the river and retrieved later
to be buried. The witness also observed bodies being transported in Red Cross vehicles.2022
Kabiligi Defence Witness Emmanuel Bagambiki
1875. Emmanuel Bagambiki, a Hutu, was the prefect of Cyangugu prefecture in 1994 and
has been acquitted by the Tribunal. Without specifying the date, he explained that gendarmes
established a roadblock near the Rusizi 1 border-post, about 200 to 300 metres from the
Rusizi river bridge. The roadblock was manned exclusively by gendarmes and not by soldiers
or civilians. Kabiligi never erected a roadblock anywhere in Cyangugu prefecture. Bagambiki
denied that around 100 people were killed at the Rusizi 1 border-post. He would have known
if corpses were thrown into the river because they would have interfered with the turbines of
a hydroelectric dam on it.2023
Kabiligi Defence Witness André Ntagerura
1876. André Ntagerura, a Hutu, was the Minister for Transport and Communications in
1994. He was acquitted by the Tribunal for crimes committed in Cyangugu prefecture.
Ntagerura stayed at the Home Saint-François in Cyangugu prefecture on the nights of 15 to
17 May 1994. At the time, he was part of a delegation negotiating in neighbouring Bukavu,
Zaire, about the importation of food. The Hôtel du Lac was a very short distance from the
Home Saint-François and could be seen from there. Ntagerura did not see a roadblock
2021
T. 4 May 2004 pp. 35, 41-44, 49, 76; T. 6 May 2004 pp. 3-4, 29-32, 46; Prosecution Exhibit 220 (personal
identification sheet). Witness XXH was detained in Cyangugu prefecture at the time of his testimony, awaiting
trial in Rwanda. He was arrested on 26 September 1994 and charged with committing the crime of genocide in
1998. See T. 4 May 2004 pp. 64, 66.
2022
T. 4 May 2004 pp. 36-37, 41-43; T. 6 May 2004 pp. 29-33, 35-40, 44-45. The soldiers from Camp Karambo
wore insignias on their berets, whereas the Presidential Guards had white spats mentioning they were part of the
Presidential Guard. See T. 6 May 2004 pp. 30-31. He also added that the Interahamwe were initially armed with
clubs, machetes and spears. However, in May, Lieutenant Jean-Claude Singirankabo, who was the commander
of the Karambo camp, and Lieutenant Samuel Imanishimwe led the distribution of weapons at roadblocks,
including guns. See T. 4 May 2004 pp. 41-43; T. 6 May 2004 p. 17. Imanishimwe was convicted by the
Tribunal. See Ntagerura et al. Trial Judgement, para. 806; Ntagerura et al. Appeal Judgement, paras. 7, 442444.
2023
T. 15 September 2006 pp. 6-7; T. 28 September 2006 pp. 30-31, 47-49; Kabiligi Defence Exhibit 95
(personal identification sheet). See Ntagerura et al. Trial Judgement, para. 805; Ntagerura et al. Appeal
Judgement, para. 7. Emmanuel Bagambiki was previously identified in the proceedings as Kabiligi Defence
Witness KC-55.
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
outside the Hôtel du Lac, but he saw one close to the bridge linking Bukavu in Zaire and
Cyangugu on the Rusizi river. It was manned by gendarmes,2024
Kabiligi Defence Witness RX-3
1877. Witness RX-3, a Hutu local official, worked in the area of the Rusizi 1 border-post in
1994. It was situated near a bridge linking Cyangugu to Bukavu. According to the witness,
who frequently visited the border-post, there was a permanent roadblock staffed by customs
personnel, who regulated traffic in and out of Zaire, and soldiers who provided security.
Another roadblock had been set up downhill from Hôtel des Chutes, about 400 metres from
the border-post, which was manned by Cyangugu gendarmes.2025
1878. The witness did not see Kabiligi at the Rusizi 1 border-post between April and July
1994. He visited the Hôtel du Lac on a daily basis between April and July 1994 and never
saw Kabiligi or learned of his presence there during that period. No roadblock was
established around 25 to 30 metres from, or anywhere near, the Hôtel du Lac between April
and July 1994. There were no killings near the Rusizi 1 border-post and no bodies were
thrown in the Rusizi river.2026
Kabiligi Defence Witness TD-77
1879. Witness TD-77, a Hutu trader who worked in Kamembe commune, Cyangugu
prefecture in 1994, testified that a permanent roadblock staffed by immigration officials
existed at the Rusizi 1 post on the Rwanda and Zaire border. After 6 April 1994, soldiers
started manning that roadblock. The witness estimated that he went to the roadblock about
twice per day. He never observed any murders or dead bodies there.2027
Deliberations
1880. Witness XXH is the only Prosecution witness to testify that Kabiligi ordered the
establishment of a roadblock between the Hôtel du Lac and the Rusizi 1 bridge border
crossing where over 100 people were allegedly murdered. At the time of his testimony, he
was a detainee awaiting trial in Rwanda. The Chamber views his evidence with caution.
1881. The witness did not observe Kabiligi order the establishment of the roadblock and he
could not recall who informed him that Kabiligi was responsible for it.2028 In a prior
statement to Tribunal investigators in August 2001, as well as during his examination-inchief, the witness stated that he personally observed over 100 people being killed by the
coordinated efforts of soldiers and Interahamwe at this roadblock.2029 On cross-examination,
2024
T. 28 November 2006 pp. 8, 15-16, 22-23, 28-29, 39; Kabiligi Defence Exhibit 119 (personal identification
sheet). See Ntagerura et al. Trial Judgement, para. 804; Ntagerura et al. Appeal Judgement, para. 7. André
Ntagerura was previously identified in the proceedings as Kabiligi Defence Witness JRO-11.
2025
T. 26 September 2006 pp. 42, 47-48, 56-57, 59-61; Kabiligi Defence Exhibit 98 (personal identification
sheet).
2026
T. 26 September 2006 pp. 46, 48-49.
2027
T. 6 September 2006 pp. 31, 34-35; Kabiligi Defence Exhibit 90 (personal identification sheet). The witness
did, however, observe dead bodies at a roadblock near Gatandara. According to other evidence, this roadblock
was close to the Hôtel des Chutes.
2028
See T. 4 May 2004 pp. 41-44; T. 6 May 2004 pp. 29-32.
2029
See Kabiligi Defence Exhibit 43 (statement of 15 August 2001: “The soldiers would detain the Tutsis and
others who they did not want to allow to proceed into Zaire. Such persons would be taken behind the ERP petrol
station and killed by soldiers and Interahamwe during the night. I personally saw over 100 people being killed in
that manner, but I think the total number of victims exceeded 150 … On several occasions I saw Kabiligi and
Judgement and Sentence
471
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
however, he testified that he only observed two killings at the roadblock. The witness did not
provide any explanation for this discrepancy, and instead asserted that there was none.2030 In
the Chamber’s view, this discrepancy and the witness’s explanation for it raises significant
concern about his credibility.2031
1882. None of the Defence witnesses observed Kabiligi, killings, or Interahamwe working
with soldiers in May at a roadblock near the Hôtel du Lac and in the vicinity of Rusizi 1
border-post.2032 The Chamber is aware that Bagambiki and Ntagerura might wish to distance
themselves from the events. Witness RX-3 answered the questions in a straight-forward way
but his personal knowledge about Kabiligi was limited. Some other issues relating to his
credibility has also been considered.2033 As regards Witness TD-77, it is noted that he has
been alleged to have committed genocide in Cyangugu and that he in previous proceedings
before the Tribunal withheld information about his names.2034
1883. Even though there are elements reducing the weight of the Defence evidence, Witness
XXH’s testimony about the establishment of the roadblock was indirect and uncorroborated,
and there were inconsistencies concerning Kabiligi’s alleged involvement in killings. Having
considered the totality of the evidence, the Chamber finds that the Prosecution has not proven
beyond reasonable doubt that Kabiligi established a roadblock between the Hôtel du Lac and
the Rusizi 1 bridge where over 100 people were killed by soldiers working in coordination
with Interahamwe.
the soldiers killings those people.”); T. 4 May 2004 p. 42 (testifying that he personally observed “more than 100
people killed at this roadblock” and that he observed people being killed “[w]henever [he] was passing by River
Rusizi”).
2030
T. 6 May 2004 pp. 36, 37 (“Personally, I saw two people being killed there”), 45, 46 (“Q. … In your
statement, you said that 150 persons were killed and you saw over 100 being killed. Between two and 100, there
is a large chasm. A. Thank you, Counsel. I am not – there’s no inconsistency there … Q. … So I would like you
to speak about the inconsistency when in one document you say that you saw 100 people being killed, with your
own eyes, and in the courtroom you said that two people – you saw two people killed, with your own eyes. A. I
have not contradicted [sic] up until now. I am testifying about the facts I witnessed. You have your version; I
have mine. The Trial Chamber will determine.”).
2031
Witness XXH’s description of having observed, on an unspecified date, a man killed by Interahamwe after
being flushed out of the Home Saint-François is also uncorroborated. In his previous statement, he asserted that
the man was killed in Kabiligi’s presence; Kabiligi Defence Exhibit 43 (statement of 15 August 2001). Witness
XXH made no such assertion when he testified. See T. 6 May 2004 pp. 40-41.
2032
Other discrepancies also emerge when comparing Witness XXH’s testimony as it relates to these allegations
with that of the Defence witnesses. See Bagambiki, T. 15 September 2006 p. 6; T. 28 September 2006 pp. 56-60
(denying that Kabiligi’s family stayed at the Hôtel du Lac when arriving in Cyangugu) and Witness XXH, T. 4
May 2004 p. 41; T. 6 May 2004 p. 31 (asserting that Kabiligi’s family stayed in the Hôtel du Lac).
2033
Witness RX-3 assisted individuals by providing them falsified documents in June and July 1994, including
some persons later indicted by the Tribunal. See T. 26 September 2006 pp. 62-66, 68-72; Kabiligi Defence
Exhibit 90 (Kabiligi’s passport). It is also noted that at some point the witness was a member of the prefectoral
security council. Id. pp. 59-60, 70.
2034
T. 6 September 2006 pp. 35-39, 50-51; Prosecution Exhibit 408 (Extract from the Rwanda Post, November
1996, showing the witness’s name on a list of Category One genocide suspects.); Prosecution Exhibit 406
(Excerpts from the Ntagerura et al. trial), in which he denied that he had been known by a name on the list of
suspects which now appears in Kabiligi Defence Exhibit 90 (personal identification sheet).
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1884. The Chamber determined at trial that Kabiligi had adequate notice of this
allegation.2035 In light of the above findings, the Chamber will not revisit its previous
decision.2036
4.6.3
Sighting of Kabiligi, August
Introduction
1885. The Kabiligi Indictment alleges that, between 7 April and July 1994, Tutsis and
moderate Hutus sought refuge in locations they thought to be safe, often on the
recommendation of the local government and military authorities, who were frequently
complicit in their abduction and massacres. In support of these general allegations, the
Prosecution points to evidence that in August 1994, Kabiligi reprimanded and attempted to
kill Corporal Jean-Claude Uwiragiye for failing to recruit local youths to launch an attack on
Tutsis in Mururu and Nyarushishi. Reference is made to Witness XXY.2037
1886. The Kabiligi Defence submits that this allegation was not properly pleaded in the
Indictment. The Prosecution evidence lacks credibility and is contradicted by Witnesses SX1, VIP-1, TT-2, BB-15, DK-11, ZDR-2 and Emmanuel Bagambiki. Kabiligi left Rwanda in
early July 1994 and could not have been in Cyangugu in August 1994.2038
Evidence
Prosecution Witness XXY
1887. Witness XXY, a Hutu, testified that he travelled to Cyangugu prefecture in early
August 1994. Shortly after his arrival, he met a member of the Para Commando battalion
named Corporal Jean-Claude Uwiragiye. The witness told Uwiragiye that he was working
with Opération Turquoise and distributing food to refugees. Uwiragiye replied that the
witness could lose his life if people found out what he was because “an order had been given
by General Kabiligi”.2039
2035
Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27 September 2005, paras.
8, 11-12; Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007, para.
37, fn. 53. The Chamber found that notice for these allegations had been given in paras. 6.43-6.48 of the
Kabiligi and Ntabakuze Indictment.
2036
Witness XXH also provided a first-hand account of Kabiligi killing a suspected deserter at the Rusizi 1
roadblock. See T. 4 May 2004 pp. 57-59; T. 6 May 2006 pp. 37, 40-42, 48, 54-55. The Chamber excluded this
evidence for lack of notice. See Decision on Kabiligi Motion for Exclusion of Evidence (TC), 4 September
2006, paras. 17-18. Furthermore, the witness testified with respect to other roadblocks in Cyangugu and killings
at them. See T. 4 May 2004 pp. 38-40, 44, 82-83; T. 6 May 2004 pp. 44, 47. None of these roadblocks are
identified in the Kabiligi and Ntabakuze Indictment. The Kabiligi Defence objected to Witness XXH’s
evidence, noting that the roadblocks were only identified in a will-say statement, but lacked other detail. See T.
4 May 2004 pp. 39-40. The Chamber notes that the summary of Witness XXH’s anticipated testimony annexed
to the Prosecution’s Pre-Trial Brief (21 January 2002), p. 149 refers only to the roadblock in the vicinity of
Rusizi 1 and has limited its considerations to the roadblock between the Hôtel du Lac and the Rusizi bridge.
2037
Kabiligi and Ntabakuze Indictment paras. 6.32, 6.33; Prosecution Closing Brief, paras. 1464 (b), 1098(d).
Witness XAI also provided relevant evidence.
2038
Kabiligi Closing Brief, paras. 110, 745-750, 991, 993-995, 1006-1012, 1094-1095, 1098-1099, 1165-1167,
1176-1177, p. 601.
2039
T. 10 June 2004 p. 37; T. 11 June 2004 pp. 2-4; T. 1 July 2004 pp. 10, 29-31; Prosecution Exhibit 262
(personal identification sheet).
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1888. Sometime around 20 August 1994 at about 10.00 a.m., the witness saw Kabiligi and
Uwirayige talking to each other close to the Rusizi River in Cyangugu prefecture, near the
Zairian border. The witness stood at a distance from the two men. When Kabiligi left,
Uwiragiye said that Kabiligi was angry with him because he had not implemented Kabiligi’s
order to recruit area youths to kill Tutsis at the Mururu and Nyarushishi refugee camps in
Cyangugu prefecture. These areas were controlled by Opération Turquoise. Later that day,
the witness crossed the border to go to Bukavu, Zaire. There he met Uwiragiye who informed
him that Kabiligi “had almost killed him” because the refugees at Nyarushishi had been
transferred to a RPF controlled area and could no longer be killed.2040
Prosecution Witness XAI
1889. Witness XAI, a Hutu soldier with the 17th Battalion in Byumba prefecture, testified
that he saw Kabiligi at a hospital in Gisenyi prefecture in July 1994 (III.4.5.2). At the time,
Kabiligi had a bodyguard named Uwiragiye.2041
Kabiligi Defence Witness Emmanuel Bagambiki
1890. Emmanuel Bagambiki, a Hutu, was prefect of Cyangugu in 1994. He testified that
most of the Rwandan army had fled the country by August 1994 and were situated in refugee
camps in Zaire. It was therefore unlikely that Kabiligi was in Cyangugu in August. Well
before the first arrival of refugees on 11 May, the Nyarushishi camp in Cyangugu prefecture
had been well guarded by approximately 50 to 60 gendarmes. The witness was unaware of an
attack against the camp. Furthermore, the French troops of Opération Turquoise had arrived
at Nyarushishi on 23 June and taken over the security of the camp.2042
1891. Bagambiki was also present at Nyarushishi camp on 30 June 1994 during the visit of
the French Minister of Defence, François Léotard. He confirmed that Daniel Kamatali, the
person in charge of Nyarushishi camp, had been interviewed by Léotard during the visit and
had confirmed that the camp was well protected. Kamatali had stated that the camp had come
under attack only once previously, but the assailants had been repelled by the gendarmes and
no one had been harmed.2043
Kabiligi Defence Witnesses SX-1, VIP-1, TT-2
1892. Witnesses SX-1, VIP-1 and TT-2 were French members of Opération Turquoise in
1994. They were not aware that the mission had Rwandan staff assisting in the distribution of
food to refugees. In addition, Witness VIP-1 met General Bizimungu on 15 July in Gisenyi
prefecture. Bizimungu informed him that Kabiligi was retreating to Gisenyi with the last of
the troops from Kigali through Ruhengeri prefecture.2044
2040
T. 11 June 2004 pp. 4-6; T. 30 June 2004 pp. 91, 95-96; T. 1 July 2004 pp. 7, 9, 31, 34-37.
T. 9 September 2003 pp. 13-14; Prosecution Exhibit 94 (personal identification sheet).
2042
T. 15 September 2006 pp. 2, 10-12; Defence Exhibit 95 (personal identification sheet).
2043
T. 15 September 2006 pp. 14-21. See also Kabiligi Defence Exhibit 96 (Video of French Defence Minister
visiting Nyarushishi refugee camp).
2044
Witness SX-1, T. 16 January 2007 pp. 32, 34, 39-40; Kabiligi Defence Exhibit 131 (personal identification
sheet); Witness VIP-1, T. 16 January 2007 pp. 54-55, 72; Kabiligi Defence Exhibit 132 (personal identification
sheet); Witness TT-2, T. 18 January 2007 pp. 23-24; Kabiligi Defence Exhibit 133 (personal identification
sheet).
2041
Judgement and Sentence
474
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Kabiligi Defence Witness BB-15
1893. Witness BB-15, a Hutu member of the Presidential Guard, said that Kabiligi was in
Kigali on 3 and 4 July 1994. He saw him at the Kigali crossroads on the evening of 3 July,
and near the Muhondo centre around 7.00 a.m. and 1.00 or 2.00 p.m. on the following day.
He also saw the Accused in Gisenyi from 16 to 18 July as the army was leaving for Goma.
During that operation, the witness observed Kabiligi once every day between 16 and 18 July
1994, including at a camp called Lac Vert on the banks of Lake Kivu as the Rwandan army
crossed the border from Gisenyi into Goma. Witness BB-15 entered Zaire on 18 July 1994.
After that date, he saw Kabiligi at the camp until October 1994, but did not specify how
frequently.2045
Kabiligi Defence Witnesses DK-11 and Nsengiyumva Defence Witness ZDR-2
1894. Witnesses DK-11 and ZDR-2, two Rwandan soldiers who worked with Kabiligi,
provided separate lists of his escorts and drivers from May to July 1994. None of the lists
mention Corporal Uwiragiye. Both witnesses acknowledged that they might not be able to
recall every member of Kabiligi’s personal entourage.2046
Deliberations
1895. Witness XXY was the only witness testifying about the incidents involving Kabiligi
in Cyangugu and Bukavu in August 1994. The Chamber will first consider Uwiragiye’s
warning that Witness XXY might be killed if it was found out he was delivering food to
Tutsis. The witness’s testimony about Kabiligi’s order is hearsay and lacks detail as to the
specific circumstances surrounding it or the nature of the instruction. Nevertheless, the
witness claimed that he heard a similar warning from a Rwandan soldier at a roadblock in
Mubuga when he was also delivering food with Opération Turquoise in Kibuye prefecture in
July (III.4.5.2). The Chamber raised questions concerning the credibility of Witness XXY in
connection with this event. In particular, it relied on the evidence of Witnesses SX-1, VIP-1
and TT-2 which cast a measure of doubt on whether the incident occurred, whether
humanitarian aid was blocked and whether the witness could have been employed by the
French mission. These concerns, while not conclusive, apply with equal force to this incident.
1896. With respect to the sighting of Kabiligi near the Rusizi river around 20 August 1994,
the Chamber notes that Witness XXY was the sole witness to this event. He was also not a
participant in the conversation between Kabiligi and Uwiragiye. His recounting of Kabiligi’s
anger over Uwiragiye’s failure to recruit area youths for an attack on two refugee camps is
therefore hearsay. Kabiligi’s threat to kill Uwiragiye over the failed attack, which the witness
learned about later that day is also second-hand.
1897. Furthermore, there is evidence from Witnesses BB-15, VIP-1 and Bagambiki which
suggest that there were no military officers in Cyangugu and that Kabiligi had evacuated
along with the army to Goma between 16 and 18 July 1994. This Defence evidence is
inconclusive. It remains possible that Kabiligi could have travelled to Bukavu, which was
right across the border from where the witness allegedly saw him, in particular bearing in
2045
T. 11 September 2006 pp. 3, 5-8, 11-12, 18, 35-36; Defence Exhibit 93 (personal identification sheet).
Witness DK-11, T. 19 July 2005 p. 61; T. 20 July 2004 pp. 3-4, 38, 41-42, 44, 46, 49-51; Witness ZDR-2, T.
30 March 2006 pp. 9, 11-12, 14, 16, 19-20; Prosecution Exhibit 354 (Witness DK-11’s list of Kabiligi’s escorts
and drivers); Prosecution Exhibit 386 (Witness ZDR-2’s list of Kabiligi’s escorts and drivers).
2046
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mind that Kabiligi was named commander of the Bukavu squad in the reorganised Rwandan
army (I.2.2). However, the testimony of Bagambiki reflected that the Nyarushishi refugee
camp was well guarded by Rwandan gendarmes and Opération Turquoise. The Chamber has
reviewed the video footage of the French Defence Minister’s visit to Nyarushishi camp on 29
June 1994. It corroborates Bagambiki’s evidence and shows images of the troops of
Opération Turquoise guarding the camp with heavy calibre machine guns.2047 Under such
circumstances, the Chamber questions whether Kabiligi would entrust a low-ranking soldier
to gather local youths to launch attacks on areas that would include sites heavily guarded by
French soldiers.2048
1898. In view of the mostly second-hand and uncorroborated nature of Witness XXY’s
testimony, the Defence evidence raises sufficient concerns about the credibility with respect
to Kabiligi’s alleged activities and statements in Cyangugu prefecture in August 1994. In
reaching this conclusion, the Chamber has also considered the account of Witness XAI, who
stated that Kabiligi was accompanied by Uwiragiye as a bodyguard in Gisenyi. The Chamber
has doubt as to whether Kabiligi was present in Gisenyi in early July (III.4.5.2). Furthermore,
the evidence of Witnesses DK-11 and ZDR-2 raise questions about whether Uwiragiye was
in fact assigned to Kabiligi.
1899. Accordingly, the Prosecution has not proven beyond reasonable doubt that Kabiligi
gave an order to kill those providing assistance to Opération Turquoise. It is also not
convinced that sometime in August 1994, Kabiligi reprimanded Corporal Uwiragiye for
failing to follow orders that he lead youth in Cyangugu to kill Tutsis in Mururu and
Nyarushishi in Cyangugu prefecture.
1900. During the course of the trial, the Chamber determined that Kabiligi had notice of
these allegations. In light of the findings, there is no need to revisit the Kabiligi Defence
arguments concerning notice.2049
2047
See Kabiligi Defence Exhibit 96 (Video of French Defence Minister visiting Nyarushishi refugee camp).
The Kabiligi Defence also points to the testimony of André Ntagerura concerning his presence at
Nyarushishi on 30 June 1994. See Kabiligi Closing Brief, para. 1010. However, Ntagerura was not questioned
about this.
2049
See Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi, 23 April 2007, paras. 1516.
2048
Judgement and Sentence
476
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
5.
5.1
ROADBLOCKS
Kigali
Introduction
1901. The Bagosora Indictment and the Kabiligi and Ntabakuze Indictment allege that, from
the night of 6 to 7 April 1994, elements of the Rwandan army set up roadblocks to control
movements in Kigali. Militiamen set up their own roadblocks or joined those manned by
members of the Presidential Guard, the Para Commando Battalion and the Reconnaissance
Battalion. At these places, people’s identity were checked and those identified as Tutsis were
summarily executed.2050
1902. The Bagosora Defence contends that those at roadblocks tended to be disenfranchised
poor. They had been displaced through years of RPF attacks pre-dating April 1994, and there
is evidence suggesting that the Rwandan army lacked control over the thousands that engaged
in killings. Furthermore, it would have been unable to stop this unless it confronted these
civilians directly, a strategy that was inconsistent with the Rwandan army’s need to engage
the RPF. The Ntabakuze Defence argues that the Indictment provides insufficient notice and
suggests that Prosecution evidence of criminality at roadblocks manned by members of the
Para Commando Battalion lacks credibility.2051
Evidence
(i) Military Checkpoints and Positions
1903. From the night of 6 April 1994, members of the Rwandan army, including the
Presidential Guard, were stationed at areas surrounding military camps and on key routes to
critical locations such as the Kigali airport.2052 On the afternoon of 7 April, members of the
Para Commando Battalion were deployed in a series of military positions forming the front
line with the RPF from the Remera area on the west to Sonatube in the east. The battalion
held these positions until it retreated to Kabasunzu on the night of 21 to 22 May 1994 after
the fall of the airport and Camp Kanombe.2053
1904. On several occasions UNAMIR encountered periodic difficulty in passing these
positions, at times requiring the intervention of senior military personnel. Around 1.00 a.m.
2050
Bagosora Indictment, para. 6.31; Kabiligi and Ntabakuze Indictment, 6.22; Prosecution Closing Brief, paras.
168, 605-622, 901-902, 1135(h, i, j), 1338, 1405(c, d), pp. 758-759, 830. Reference is made to the following
testimonies, which the Chamber has already assessed: Witnesses XXC and DAS (III.4.1.7); Witness DY
(III.4.1.8-9; III.4.4.2); Witness DCH (III.4.1.6); Witness DBQ (III.4.1.14).
2051
Bagosora Closing Brief, paras. 219, 404, 422-423, 653-659, 1227, 1314-1317, 1401, 1499 1501, 1694-1698,
1764-1765, pp. 373-374; Ntabakuze Closing Brief, paras. 1406-1407, 1409-1425. The Kabiligi Defence does
not address the Prosecution’s case concerning roadblocks in general. Its arguments on the specific allegations
made by Witness DY against Kabiligi at roadblocks are considered in sections III.4.1.8-9; III.4.4.2.
2052
See, e.g., Daillaire, T. 20 January 2004 pp. 26-30; Marchal, T. 30 November 2006 pp. 22-23; Apedo, T. 7
September 2006 pp. 29, 34-36, 49; Witness AH, T. 20 February 2004 pp. 29-30, 33, 37-38; Witness AE, T. 16
December 2003 pp. 34-37, 66-75; Hutsebaut, T. 2 December 2004 p. 49.
2053
The evidence concerning the deployment and movements of the Para Commando Battalion are discussed in
sections III.3.5.1; III.4.1.1; III.4.1.4; III.4.1.13-14. See also Ntabakuze Defence Exhibit 228 (Map of Kigali
identifying Para Commando positions).
Judgement and Sentence
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on 7 April, members of the Presidential Guard stopped General Dallaire’s vehicle in
Kimihurura as he and Bagosora were travelling to meet with Jacques-Roger Booh-Booh, the
Special Representative of the Secretary-general. Bagosora had to intervene in order to ensure
that they could pass through.2054 That same night, the Presidential Guard also prevented the
passage of UNAMIR patrols dispatched to the crash site and to UNDP.2055 Major Peter
Maggen, a Belgian officer working for UNAMIR in 1994, testified that around 10.15 to 10.30
a.m. on 7 April, Dallaire and Maggen were stopped by soldiers approximately 30 to 50
metres from a roadblock in the vicinity of the Hôtel des Mille Collines. Weapons were
pointed at them and Dallaire negotiated with those at the roadblock, who allowed them to
pass on foot.2056 Colonel Joseph Dewez, Commander of the UNAMIR’s Kigali Battalion in
1994, stated that Ntabakuze provided considerable assistance in facilitating the movement of
Dewez’s troops and had control over roadblocks manned by his battalion. For example, on 9
April, Ntabakuze escorted a platoon of Belgian peacekeepers to Rwandex. Moreover, on 11
April 1994, members of the Para Commando Battalion delayed a UNAMIR convoy carrying
refugees to the Kanombe airport. Ntabakuze was summoned and facilitated the convoys
passage (III.4.1.1).2057
1905. As a general matter, the evidence does not show that crimes were perpetrated in
connection with these exclusively military positions.2058 However, there are notable
exceptions. For example, there were killings in connection with the military roadblock near
Karama hill (III.3.5.7). On 11 April, members of the Para Commando Battalion detained a
large refugee movement at the Sonatube junction and participated in their murder several
kilometres away at Nyanza hill (III.4.1.1).
1906. The Chamber also received other evidence about crimes at such roadblocks. Witness
XAB, a Tutsi member of the Third Company of the Para Commando Battalion, heard from a
member of the First Company that its soldiers were raping Tutsi women along with
Interahamwe at Sobolirwa position.2059 Witness DBQ, a Hutu, who was purportedly a
member of the Para Commando Battalion, described Interahamwe and soldiers manning
roadblocks in the vicinity of Ntabakuze’s command post at the Giporoso junction in Remera.
2054
Dallaire, T. 19 January 2004 pp. 29-31, 34; T. 20 January 2004 p. 26; T. 22 January 2004 pp. 64-65;
Prosecution Exhibit 170 (Outgoing cable of 7 April 1994 from Dallaire to Baril), which reads: “At 2118 hours a
platoon of Presidential Guard established a roadblock at the Méridien traffic circle and blocked traffic. Several
shots were fired. No reported casualties. The guards appeared by UNAMIR observation to be nervous and
dangerous”. See also Prosecution Exhibit 5 (Final Report of 9 December 1994 of the Commission of Experts
established pursuant to Security Council Resolution 935), pp. 10-11, para. 66.
2055
Beardsley, T. 3 February 2004 p. 37; T. 4 February 2004 pp. 38-39; Dewez, T. 23 June 2005 p. 85; T. 24
June 2005 p. 31; Prosecution Exhibit 149B (KIBAT Chronique), pp. 16-17.
2056
Maggen, T. 13 March 2006 pp. 8, 18-19.
2057
T. 23 June 2005 pp. 28-29, 31, 54.
2058
Prosecution Witness BY, a high-ranking Interahamwe leader, distinguished between roadblocks established
by the population, including Interahamwe, and those manned by soldiers, testifying that on 8 and 9 April, he did
not see any dead bodies at roadblocks manned by soldiers. See T. 4 July 2003 p. 29 (“Q. In your statements you
seem to distinguish – you seem to make a clear distinction between roadblocks mounted by members of the
population, including Interahamwe and other youth wings, and roadblocks manned by soldiers. And more
specifically, you explain that during your various tours on the 8th and the 9th that there were no dead bodies at
the roadblocks manned by the soldiers. Can you confirm that or not? A. I’m confirming that, Counsel.”)
2059
Witness XAB, T. 6 April 2004 pp. 38-41, 52, 76; Prosecution Exhibit 200 (personal identification sheet);
Prosecution Exhibit 202 (name of soldier who told Witness XAB about rapes).
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He claimed that people were stopped at these roadblocks and taken away and killed.2060
Ntabakuze denied that members of his battalion manned roadblocks with Interahamwe or
committed rapes at their positions.2061
(ii) Civilian Roadblocks
1907. According to Major Brent Beardsley, the personal staff officer to General Dallaire in
UNAMIR, there was an extensive network of roadblocks throughout Kigali. Those
established by the Rwandan army were situated near the front line, each commanded by a
non-commissioned officer. Gendarmes staffed roadblocks normally less than 200 metres
behind the army positions. Then followed a series of additional roadblocks manned by
Interahamwe and other civilians, armed with machetes and clubs. Members of each of these
groups frequented the others’ roadblocks.2062
1908. Civilian roadblocks were usually run by a soldier, policeman, gendarme or a civilian
armed with a gun. The leader might also have grenades and, occasionally, a hand-held
Motorola radio.2063 The roadblocks manned by militia appeared to be the most dangerous, in
particular after 8 or 9 April 1994.2064 These locations were sites of open and notorious
slaughter and sexual assault. Several witnesses, including Dallaire and Beardsley, observed
dead men and women around roadblocks throughout Kigali, including children. The bodies of
the dead were frequently piled near the roadblocks and at times were collected by local
officials. Female victims were left lying on their back with their legs spread and stained with
semen. Dallaire saw objects crushed or implanted in vaginas, breasts cut off, stomachs
opened and the mutilated genitals of men. The only uniformed soldier among the dead whom
Dallaire observed at a roadblock was one of his military observers.2065
2060
Witness DBQ, T. 23 September 2003 pp. 3, 41-42; T. 30 September 2003 pp. 19-20, 24; T. 25 February
2004 p. 9; Prosecution Exhibit 99 (personal identification sheet).
2061
T. 21 September 2006 p. 6. See also T. 18 September 2006 pp. 71-72; T. 20 September 2006 p. 50
(discussing the merits of Witness XAB’s testimony regarding misconduct of Para Commandos around 12 April).
2062
Beardsley, T. 3 February 2004 pp. 49-50; Prosecution Exhibit 173 (personal identification sheet). Beardsley
testified that between January and April 1994, Interahamwe, militia and civilians would also establish
roadblocks to block movement throughout Kigali during periods of demonstrations, riots and killings. Major
Donald MacNeil, an officer in UNAMIR’s humanitarian cell, said that, around 20 April 1994, when he arrived
in Rwanda, there were a considerable number of roadblocks in Kigali, some manned by the military or other
uniformed personnel, others by civilians, militia or defence forces. See T. 23 November 2005 p. 47.
2063
Beardsley provided illustration of this organisation when discussing his evacuation of a convent on 10 or 11
April 1994. Specifically, his vehicle drove through a roadblock being set up by 15 or 20 males primarily in their
teens and twenties and a Rwandan soldier. When returning, the soldier, who seemed to be in charge because he
was armed while the others only had machetes or clubs, stated: “It’s good you’re not Belgian because if you
were, we would drink your blood and eat your flesh”. Beardsley, who had his pistol on his waist, told the man
that he would have a hard time doing that with a hole in his head. The soldier waved Beardsley’s vehicle
through. See T. 3 February 2004 p. 47.
2064
Id. pp. 49-50.
2065
Dallaire, T. 20 January 2004 pp. 29-32; T. 23 January 2004 p. 28; Beardsley, T. 3 February 2004 pp. 49-52;
Witness ZA, T. 12 February 2004 pp. 16-22, 45-46, 50-51, 76-77; Witness BY, T. 2 July 2004 pp. 17-18, 39,
42-43; T. 5 July 2004 pp. 9-10, 13; T. 6 July 2004 pp. 51-52, 76; T. 8 July 2004 p. 31; T. 9 July 2004 pp. 17-19,
72, 76; Witness A, T. 1 June 2004 pp. 48-49, 52-53; T. 2 June 2004 pp. 81-82; T. 3 June 2004 pp. 79-80;
Ruggiu, T. 16 June 2003 pp. 3, 5-6, 39-44; T. 17 June 2003 pp. 6-7, 14, 16, 44-47, 51-53; Witness AA,
Prosecution Exhibit 397 (Rule 92 bis statement of 6 December 1997); Witness AU, Prosecution Exhibit 398
(Rule 92 bis statement of 24 November 1997).
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1909. After a meeting of the Interim Government at the Hôtel des Diplomates on 10 April,
Witnesses A and BY, two high-ranking Hutu officials in the Interahamwe, were instructed by
government officials to go on a pacification tour to various roadblocks throughout the city
with Rwandan army escorts, allegedly provided by Bagosora, in order to instruct civilians to
gather bodies for removal and stop the killings or face sanctions. After the tour, Witness A
informed Joseph Nzirorera, Edouard Karemera and Justin Mugenzi about the killings and
Karemera and Mugenzi appeared pleased. Despite the pacification tour, there is evidence that
killings intensified after the departure of the government for Gitarama prefecture on 12 April
and as a result of RTLM broadcasts.2066
1910. Bagosora believed that each neighbourhood on the initiative of local authorities set up
roadblocks to prevent infiltration and that the population had been doing this since Inyenzi
attacks commenced in 1959. The Crisis Committee that met on 8 April did not appeal to the
public to set up roadblocks and those erected were not part of the civil defence program.
Those at roadblocks “made their own law” and Bagosora denied that the government was
aware of what was going on or that he gave money to Interahamwe, militiamen or young
people at roadblocks.2067
1911. According to Bagosora, the Rwandan army’s responsibility was to counter attacks by
the RPF, which it was failing to do. He noted that even some of the army’s soldiers were
being killed at roadblocks by the population because they were fleeing instead of fighting the
RPF.2068 Colonel Luc Marchal, the Belgian Commander of the Kigali Sector, was of the view
that the Rwandan army could not simultaneously cope with killings perpetrated by the
Interahamwe and attacks by the RPF since the army’s resources were fully devoted to the war
effort.2069
(iii) Facilitating Movement through Roadblocks
1912. UNAMIR held a series of meetings with military officials and Interahamwe leaders in
May 1994 in order to obtain safe passage through the Kigali roadblocks for its humanitarian
operations, such as the evacuation of refugees. Major Donald MacNeil, the Canadian
operations officer in UNAMIR’s humanitarian cell, testified that, on 3 May 1994, UNAMIR
attempted to evacuate 60 Rwandan refugees, holding foreign visas, from the Hôtel des Milles
Collines to the airport. It had previously secured agreement for the movement from General
Augustin Bizimungu, the army chief of staff. Militiamen at a roadblock stopped the
UNAMIR vehicle, and their leader refused to allow it to pass even after being informed of the
army’s agreement. They demanded to see a written paper giving permission to pass. Several
of the refugees were beaten and looted. They were permitted to return to the Hôtel des Milles
Collines after the intervention of Prefect Tharcisse Renzaho.2070
2066
Witness BY, T. 5 July 2004 pp. 7-14, 21-22, 31-33; T. 8 July 2004 pp. 45-49; T. 9 July 2004 pp. 48-49;
Witness A, T. 1 June 2004 pp. 54, 56-61; T. 2 June 2004 pp. 80-81.
2067
Bagosora, T. 10 November 2005 pp. 9, 21, 25.
2068
Id. p. 38.
2069
Marchal, T. 30 November 2006 p. 4; T. 1 December 2006 pp. 1-2. See also Ruzibiza, T. 9 March 2006 pp.
5-7, 46.
2070
MacNeil, T. 23 November 2005 pp. 45-51; Bagosora Defence Exhibit 287 (Daily Humanitarian Report No.
8 (3 May 1994)). Major MacNeil prepared the report and was present at the roadblock during the incident. The
failed evacuation was raised at a subsequent meeting on 15 May 1994, where it was noted that the Interahamwe
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1913. UNAMIR obtained written authorisations for safe passage in the movement of
refugees from the RPF and the Rwandan army on 5 and 7 May, respectively.2071 Afterwards,
up to 3,000 refugees were relocated across the frontline from mid-May to 20 June. UNAMIR
was generally successful in these efforts except when a ceasefire failed, and it was too
dangerous to move the evacuees. MacNeil was not aware of whether Bagosora was involved
in facilitating this.2072
1914. Bagosora did, however, play a role in the failed attempt to evacuate around 200 Tutsi
orphans. Around 13 May, he met with Bernard Kouchner, who was representing the French
government, and Dallaire concerning the evacuation.2073 On 14 May, Bagosora had a meeting
with the heads of the Interahamwe and “self-defence forces” as well as Colonel Clayton
Yaache, the Ghanaian head of the UNAMIR humanitarian cell, to discuss the feasibility of
granting the French government’s request to move the orphans. At the meeting, the
Interahamwe and self-defence forces agreed to support the plan.2074 On 15 May, Yaache and
MacNeil met with Lieutenant Colonel Paul Rwarakabiji, the head of the operations bureau
(G-3) on the general staff of the gendarmerie, to discuss security details for the convoy.
Yaache raised the failed evacuation attempt on 3 May from the Hôtel des Milles Collines and
asked if Bagosora could provide written authorisation for the convoy to pass. MacNeil was
not aware if Bagosora was ultimately involved in this.2075
1915. On 16 May, Yaache, MacNeil, Rwarakabiji and Colonel Aloys Ntiwiragabo, the head
of the intelligence bureau on the army general staff, met with a number of Interahamwe
leaders to discuss the plans for the operation. Yaache and Rwarakabiji opened the meeting by
noting the previous discussions and agreement of UNAMIR, the Rwandan government and
military as well as Interahamwe leaders to the proposed evacuation. After that, according to
MacNeil, the meeting “went downhill”. Several Interahamwe leaders, who had not
participated in earlier discussions, opposed the plan unless it was agreed that their members
could escort the convoy. They also expressed concern that the RPF was trying to empty
Kigali of Tutsis in advance of a major offensive, further noting that the orphans had not
previously been in danger. Yaache thought the condition of an Interahamwe escort would be
unacceptable to the RPF and that it would derail the operation. In MacNeil’s view at the time,
the dissent expressed by the Interahamwe reflected that the Rwandan military “lack[ed]
control of the militia groups and the will to marshal these groups in any positive way”.2076
1916. On 17 May, Bagosora met with Yaache and MacNeil to discuss the reasons why the
planned evacuation of orphans scheduled for that day had not occurred.2077 Yaache explained
demanded to see a document giving authorisation to pass. See Bagosora Defence Exhibit 289 (Report of meeting
on 15 May 1994), para. 12.
2071
MacNeil, T. 23 November 2005 pp. 50-51. Bagosora Defence Exhibits 288A-B (UNAMIR Agreements with
RGF and RPF for Safe Passage of Displaced Persons from UNAMIR Protected Camps).
2072
MacNeil, T. 23 November 2005 pp. 50-51.
2073
Dallaire, T. 19 January 2004 pp. 67-69, 73; Bagosora, T. 9 November 2005 pp. 40, 42-44.
2074
Bagosora, T. 9 November 2005 pp. 46-47. The meeting between Yaache, Bagosora and the Interahamwe
leaders was discussed at a meeting the following day and reflected in its report. See MacNeil, T. 23 November
2005 p. 54; Bagosora Defence Exhibit 289 (Report of meeting on 15 May 1994), para. 4.
2075
MacNeil, T. 23 November 2005 pp. 53-54; Bagosora Defence Exhibit 289 (Report of meeting on 15 May
1994).
2076
MacNeil, T. 23 November 2005 pp. 56-60; Bagosora Defence Exhibit 290 (Report of meeting on 16 May
1994).
2077
Bagosora, T. 9 November 2005 pp. 47-54; MacNeil, T. 23 November 2005 pp. 60-63; Prosecution Exhibit
44 (Copy of Video of an Interview Given by Colonel Bagosora to Colonel Yaache of UNAMIR); Bagosora
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that UNAMIR had cancelled the evacuation due to the concerns raised by the Interahamwe
leaders and his belief that the RPF would not agree to their condition of personally escorting
the orphans through RPF held territory to the airport. Bagosora agreed that this condition was
essential to the security of the mission and noted that only three or four members of the
Interahamwe would participate. He suggested that the RPF equally provide a joint escort.
Bagosora emphasised that the Rwandan government wanted the evacuation to occur and that
if it did not then it would be the fault of the RPF. Yaache agreed to pursue the matter with
Dallaire and the RPF. In the course of their discussions, Bagosora described the militia
leaders he spoke with at the meeting of 14 May as being in charge of the civil defence in
Kigali.2078
1917. In the opinion of MacNeil and Dallaire, Bagosora could influence the Interahamwe at
the roadblocks in particular with respect to the transfer of refugees. MacNeil testified that
Bagosora told him that he had control over them.2079
Deliberations
1918. There is no dispute that, after the death of President Habyarimana, soldiers and
gendarmes were stationed at checkpoints or at military positions at various locations in
Kigali. Many of these, in particular with respect to the Para Commando Battalion, formed the
front line against the RPF in the battle for Kigali. For the most part, the evidence does not
show that violent crime occurred at these exclusively military sites.2080 The Chamber does not
find anything criminal in itself in the military deploying forces after the death of the Head of
State to secure vital locations or to prevent an advance of opposing forces. Nevertheless, the
Defence Exhibit 291 (Report of meeting on 17 May 1994). A transcript of the video footage was played and
transcribed by the court reporters during the testimony of Alison Des Forges. See T. 18 September 2002 pp. 6162, 70-75. The evidence of Major MacNeil, as corroborated by the report prepared after the meeting, indicates
that the meeting occurred on 17 May 1994. See T. 23 November 2005 pp. 60-61; Bagosora Defence Exhibit 291
(Report of meeting on 17 May 1994).
2078
T. 18 September 2002 p. 61 (“We have summoned the different authorities of the youth movements in the
parties, who are in charge of the civil defence in Kigali, to talk about them about this problem – to talk with
them, rather, about this problem. So, personally, I was in charge of this meeting of the different leaders of the
youth movements. We agreed that to evacuate the orphans, there would be no problem.”) Bagosora addressed
the meeting in French. The French transcription of this portion of his statement reads: “Et nous avons convoqué
les différents responsables des jeunesses des partis qui font la défense civile dans Kigali pour leur parler de ce
problème. Alors, moi, personnellement, j’ai dirigé cette réunion des différents responsables des jeunesses des
partis, nous avons convenu que, pour l’évacuation des orphelins, qu’il n’y avait pas de problème.” See T. 18
September 2002 pp. 95-96 (French). Major MacNeil testified that he would have used the word “called” rather
than “summoned” in translating “convoqué”. T. 23 November 2005 p. 64. See also section IV.1.2.1.
2079
Dallaire, T. 19 January 2004 p. 71 (“… General Bizimungu and Colonel Bagosora [were] very much
involved in the interplay in regards to bringing the Interahamwe on line. I had raised the point about the
Interahamwe with the new mandate I had, that they absolutely had to be brought under control for all of the
different checkpoints in order to prevent my forces to do their work and we don’t end up with a confrontation
with the Interahamwe as we are deploying and conducting our operations. And at that time and previously,
Colonel Bagosora indicated that he could contact the Interahamwe and pass on instructions – information for
them to act upon.”); T. 23 January 2004 pp. 41-42; MacNeil, T. 23 November 2005 p. 67 (“Q. And based on the
meeting of 17 May, would you say that Bagosora had any control over the militia? A. The only thing I could say
on that is that he told us that he did and he had, as we understood it, met with them … to pass on his direction to
them as to what he wanted them to do for him as being the representative of the Rwandan government. That is –
that is all I could say. He felt that he did.”).
2080
There are notable exceptions, outlined above, with respect to Karama hill (III.3.5.7) and the Sonatube
junction (III.4.1.1).
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difficulties that UNAMIR encountered in travelling throughout the city, in particular in the
evacuation of refugees, is telling of the army’s attitude towards UNAMIR’s humanitarian
mission.
1919. Turning to other types of roadblocks, most of them were manned by a mix of civilians
and military personnel or only by civilians. The evidence shows that these installations
proliferated throughout Kigali beginning on 7 April 1994. The civilians were primarily
members of political party militias, for instance Interahamwe, or local inhabitants who
volunteered or were pressed into service at them as part of the “civil defence” efforts. The
roadblocks were used to check the identities of passers-by, and Tutsis, persons without
identification documents and Hutu members of opposition parties were singled out. Military
and government personnel had little difficulty passing through them. UNAMIR, however,
had frequent difficulties.
1920. The evidence clearly demonstrates that civilian roadblocks manned by militia were
sites of slaughter and sexual assault from 7 April. In view of the accounts, in particular of
UNAMIR personnel, the Chamber does not accept that anyone travelling in Kigali in the
early period of conflict would not have seen the crimes being committed at roadblocks. The
Chamber is mindful though of the testimony of Major MacNeil, an operations officer for
UNAMIR’s humanitarian cell, who stated that most of the bodies had been removed when he
arrived on 20 April.2081 There is evidence, in particular from MacNeil, that the RPF was daily
infiltrating behind the Rwandan government’s front line.2082 A roadblock is in principle
designed to combat such infiltration. However, the scope of the violence inflicted at these
installations, which included sexual assault and the killing of the elderly and children, cannot
be justified by the threat of infiltration.
1921. The main question for the Chamber is whether the Accused bear responsibility for the
crimes which occurred at these sites. The Chamber does not have direct evidence of an
explicit order emanating from the military or government to establish or man roadblocks.2083
There is Prosecution and Defence evidence that suggests that the roadblocks were erected
spontaneously and were under no one’s control. The Chamber does not exclude that some of
the roadblocks in Kigali at various places and points in time fell into this category.
1922. Nevertheless, the Chamber observes that there was an extensive network of
roadblocks throughout Kigali. They were mounted from 7 April at the same time that the
Rwandan military was publicly asking civilians to stay home (IV.1.2). Some of these were
manned by both civilian and military personnel.2084 Rwandan military and government
vehicles had little difficulty passing through them while UNAMIR and other civilians
frequently had difficulty, absent written authorisation from the Rwandan authorities.2085 High
ranking army officers, including Bagosora, served as points of contact to facilitate movement
2081
MacNeil, T. 23 November 2005 p. 47 (“Myself and another Canadian arrived on [20 April] … there were
still some dead bodies laying about on the road. The majority of them, though, that were in the city had already
been removed.”).
2082
Id. p. 47 (“So I would say that [the RPF was] infiltrating into the government lines on a daily basis.”).
2083
There is evidence of high-level discussions between civilian and military authorities at the end of March
1994 indicating that civil defence forces were to receive orders from area military commanders (III.2.6.2).
2084
In making this finding, the Chamber has been mindful of the evidence that some members of the
Interahamwe at roadblocks wore parts of military uniforms.
2085
See, e.g., Witness LMG, T. 15 July 2005 pp. 19-20, 22-23, 29-30 32-34; T. 18 July 2005 pp. 10-13, 15, 4952 (discussing his ability to pass through roadblocks with Bagosora and while in military uniform).
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through them. The Chamber also recalls that, during a meeting with UNAMIR on 17 May
1994, Bagosora referred to the civilians manning roadblocks as being responsible for the civil
defence of Kigali (III.2.6.2).
1923. Therefore, as a general matter, in view of this evidence as well as the strategic
importance of Kigali in the war against the RPF, the Chamber is satisfied that a majority of
the roadblocks in Kigali were established and operated at the behest of or with the blessing of
government or military authorities as part of its defensive effort (III.2.6.2). In view of this,
the Chamber does not accept the Defence submission that the army was unable to put an end
to the violence occurring at roadblocks. The evidence of Alison Des Forges that militia
groups acted increasingly on their own as the conflict progressed, 2086 as well as that of Major
MacNeil concerning the evacuation of orphans in mid-May, however, demonstrates that this
control was not always effective, even when high-ranking army and gendarmerie personnel
were involved. Nevertheless, there is no doubt that civilian and military authorities exercised
some degree of control or influence over them.
1924. As for Bagosora’s responsibility, the Chamber recalls that he was the main authority
in the Ministry of Defence from 6 to 9 April, with control over the Rwandan army and
gendarmerie (IV.1.2). It is inconceivable in view of the open and notorious slaughter at
roadblocks that he would be unaware of the crimes being committed at them or the presence
of military personnel at some of the primarily civilian ones, notwithstanding his denial to the
contrary.2087 In the Chamber’s view, Bagosora is responsible for the crimes committed at
roadblocks in the Kigali area during this period.2088 This does not mean that other authorities
are not also culpable for their role in establishing and operating them.
1925. With respect to Ntabakuze, there is no evidence that Ntabakuze participated in the
wider system of primarily civilian roadblocks throughout Kigali. In addition, it has not been
shown that members of the Para Commando Battalion were present at civilian roadblocks.2089
Witness XAB testified that he heard that members of the Para Commando Battalion were
raping women at a military check point at the Sobolirwa position and killing those who
resisted. His testimony is uncorroborated and second-hand, and the Chamber declines to
accept Witness XAB’s evidence on this point.2090
2086
T. 18 September 2002 p. 83 (“As one bourgmestre told me, himself, apparently involved in the genocide, he
said, ‘You know, it was a good thing that the RPF arrived when it did, because the thugs were about to take
over’, meaning those young people who had been given guns, whom the older more ‘respectable’ genocidal
leaders were having difficulty controlling.”). See also Prosecution Exhibit 457B (Report of the Rwandan Armed
Forces High Command (2-6 September 1994): “Many problems are being encountered in the supervision of the
Interahamwe and all civil defence recruits and serious incidents are reported every day. … Simply directing the
recruits and Interahamwe to civilian sites might create a climate of serious insecurity in the refugee camps”), p.
18.
2087
Bagosora, T. 8 November 2005 pp. 80-81.
2088
The Chamber accepts that Bagosora also had some influence at roadblocks after 9 April 1994. His statement
to Major MacNeil that he had “control” over the Interahamwe came in mid-May 1994. However, there is not
sufficient reliable evidence to show the scope of his influence over the Interahamwe. Furthermore, in spite of
what he said to MacNeil, the operation to evacuate the orphans, which was important for Bagosora, was not
ultimately successful in part due to difficulties with the Interahamwe.
2089
There was some evidence that a soldier wearing what appeared to be a uniform of the Para Commando
Battalion was at civilian roadblocks. See Beardsley T. 3 February 2004 p. 47. This is not sufficient to connect
Ntabakuze or the battalion to the wider system of roadblocks.
2090
The Chamber notes that Witness XAB’s source regarding these crimes, Prosecution Witness DP, appeared
in this trial, but the Prosecution led no evidence through that witness regarding these crimes.
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1926. Witness DBQ testified that he observed three roadblocks in the Remera-Giporoso
area, where the Para Commando Battalion was stationed. They were manned by Interahamwe
and soldiers. People were stopped and led elsewhere to be killed.2091 His testimony about
these incidents is not corroborated. The Chamber recalls that it has raised questions about
Witness DBQ’s credibility in general and in connection with a number of incidents elsewhere
in the judgement where he implicated members of the Para Commando Battalion in crimes
(III.2.5.1; III.3.5.1; III.4.1.4; III.4.1.14). It therefore declines to accept his testimony on this
point.
1927. Based on the foregoing, the Chamber is not convinced beyond reasonable doubt that
members of the Para Commando Battalion committed rapes at the Sobolirwa military
position or that members of that battalion and Interahamwe together committed killings at the
roadblocks in the Remera-Giporoso area.
1928. The Kabiligi Defence has presented an alibi that Kabiligi was outside of Rwanda until
23 April (III.6.2). Furthermore, the Chamber has not found that he had operative authority
over Rwandan army personnel (IV.1.3). The Prosecution has not proven beyond reasonable
doubt that Kabiligi bears responsibility for crimes committed at roadblocks.2092
5.2
Gisenyi
Introduction
1929. The Nsengiyumva Indictment alleges that militiamen set up roadblocks in Gisenyi
prefecture between April and July 1994 in order to identify accomplices and kill them on the
spot or at the Commune Rouge. Nsengiyumva is alleged to have supervised the roadblocks
and, from about 8 April to 31 July, to have ordered militiamen and soldiers to exterminate the
Tutsi population and its accomplices, and, specifically, to have ordered militiamen in a
continuous fashion to eliminate Tutsis at roadblocks. The Prosecution relies primarily on the
testimony of Omar Serushago, Isaïe Sagahutu and Witnesses OAF, DO and HV.2093
1930. The Nsengiyumva Defence submits that the Indictment lacks sufficient specificity and
that the Prosecution failed to give clear and consistent notice of evidence to be brought in
support of the allegations. It also argues that the evidence lacks credibility. Reference is made
to Willy Biot and Witnesses CF-1, CF-2, BZ-3, BX-3, R-5, RN-1, MNC-1 and STAR-2.2094
2091
Witness DBQ also testified that he observed seven individuals who were taken in Ntabakuze’s office and
interrogated. One of Ntabakuze’s bodyguards, Pakaniye, informed the witness that these were Inyenzis who
were going to be killed. Two, who clearly were not Inyenzi, were released while five men were taken to
Rushingwamwiza and killed. T. 23 September 2003 pp. 41-42. The witness’s knowledge of the killings is
second-hand. More generally, the Chamber has consistently expressed reservations about his credibility. In
allowing this particular evidence in over notice objections, the Chamber noted that the event “arguably changed
the nature of the criminal responsibility of the Accused.” See Decision on Admissibility of Evidence of Witness
DBQ (TC), 18 November 2003, para. 22. The Chamber does not accept Witness DBQ’s evidence on this point.
2092
There is some evidence in the period falling outside of his alibi that Kabiligi observed mistreatment at
roadblocks (III.4.1.8-9; III.4.4.2). The Chamber has not found these testimonies credible.
2093
Nsengiyumva Indictment, paras. 6.21, 6.22; Prosecution Closing Brief, paras. 483-488, 611, 619, 1018(e),
1023(b)-(c), 1034(f), 1388(f), pp. 883-886. The Prosecution points to excerpts of other evidence discussed
elsewhere in the judgement, including Witness OAF (III.4.5.2), Witness DO (III.3.6.1), Witness OAB (III.3.6.2;
III.4.2.3), Witness DBN (III.4.1.6), Witness DCH (III.4.2.3), Witnesses OQ and ABQ (III.3.6.3).
2094
Nsengiyumva Closing Brief, paras. 289-305, 328, 1520-1521, 1940, 2243-1244, 2247, 2249, 2255, 2269,
2286, 2290, 2293, 2298, 2613, 2625-2626, 2637, 2651, 2657-2659, 2955, 3041-3042, 3044.
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Evidence
1931. The evidence reflects that roadblocks were erected in Gisenyi prefecture after
President Habyarimana’s death, with two prominent roadblocks situated at La Corniche, near
the Goma-Gisenyi border crossing, and in front of Jean Kagemana’s residence in Gisenyi
town. Two Prosecution witnesses, Omar Serushago, a Hutu and an Interahamwe, and Isaïe
Sagahutu, a Tutsi high school teacher, testified about cooperation between civilians and either
the military or gendarmes in operating Gisenyi roadblocks, while all Defence witnesses were
uniform in stating that military and civilian personnel did not jointly man roadblocks.2095
Witness DO stated that he passed a roadblock set up by conseiller Faziri on the orders of
Nsengiyumva.2096 Nsengiyumva, although acknowledging the existence of both civilian and
military roadblocks in Gisenyi, denied that there were any jointly manned roadblocks or that
he ever ordered civilians to establish roadblocks.2097 In addition to the La Corniche and
Kagemana roadblocks discussed below, roadblocks were observed in Nyundo, Rugerero,
Gisa, the entrance of Gisenyi town,2098 on the way to Gisenyi stadium,2099 and at the Koko
bridge on the border of Kibuye and Gisenyi.2100
(i) La Corniche Roadblock
1932. Omar Serushago testified that he was the commander of a roadblock set up at La
Corniche. The purpose of the roadblock was the identification of Tutsis and Hutus opposed to
the Habyarimana regime, who were then taken to the Commune Rouge and killed.2101
Serushago had five Interahamwe or Impuzamugambi under his command, namely Abuba
Mukabu, Sibomana Rashid Gahutu, Dahati, Hamis Poku (alias Etranger) and Thomas
Mugiraneza. Around June 1994, he claimed that Vicky Bagosora, a son of Bagosora, and
Bernard Mbonabaryi, a son of Habyarimana’s uncle, arrived to reinforce them at the
roadblock as they screened an increased number of people in the Gisenyi area following the
interim government’s transfer there. The persons at the roadblock were armed with rifles and
grenades, which were allegedly provided by Bizimungu and Bagosora and the military camp
under Nsengiyumva’s command. Serushago testified to seeing Nsengiyumva at the La
2095
Serushago, T. 18 June 2003 p. 26; Sagahutu, T. 28 April 2004 pp. 3-9; T. 29 April 2004, pp. 23-24, 26.
Witness DO, T. 30 June 2003 p. 18; T. 2 July 2003 pp. 17-18.
2097
Nsengiyumva, T. 4 October 2006 pp. 66-67; T. 5 October 2006 pp. 3-4; T. 12 October 2006 pp. 22-23, 72;
Nsengiyumva Defence Exhibit 215 (Sketch of Gisenyi area drawn by Nsengiyumva). According to
Nsengiyumva, there were four military roadblocks established in Gisenyi, which sought to protect military
facilities and block intruders. Nsengiyumva acknowledged that he saw civilians at roadblocks, but asserted that
he could not make a distinction between militiamen and the rest of the population. See also Witness FN-1, T. 10
July 2006 pp. 47-48 (discussing a military roadblock approximately 200 yards from the Gisenyi military camp
that was established in 1990); Witness RN-1, T. 13 February 2006 pp. 50, 53-54 (confirming that there were
separate civilian and military roadblocks, with the latter situated near strategic areas in Gisenyi, such as the
military camp, the hospital, and the bishop’s residence, and manned by four to five uniformed soldiers with
Kalashnikovs); Witness DO, T. 30 June 2003 pp. 18, 70-72, 74 (testifying about a roadblock staffed by three
soldiers at Gisenyi military camp, which had existed since 1990). See also Prosecution Exhibit 62 (Map of
Gisenyi marked by Witness DO).
2098
T. 28 April 2004 pp. 2-9; T. 29 April 2004 pp. 23-23, 26. See also section III.3.6.6 (evidence related to
Nyundo Parish).
2099
Witness HV, T. 23 September 2004 p. 32.
2100
Witness RN-1, T. 13 February 2006 pp. 50, 73-75.
2101
Serushago, T. 18 June 2003 pp. 19-20. The roadblock was approximately 100 metres from Serushago’s
residence. T. 19 June 2003 p. 76.
2096
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Corniche roadblock several times throughout the genocide, including an occasion between 13
and 20 April when Nsengiyumva congratulated Serushago for being in charge of the
roadblock and told him that he needed to be conscientious in identifying Tutsis and sending
them to their death at the Commune Rouge.2102 No other witnesses mentioned to a military
presence at the La Corniche roadblock. While Serushago stated that he did not establish the
that roadblock until 13 April, a few witnesses said that it was functioning as early as 9
April.2103
1933. According to Prosecution Witness OAF, the La Corniche roadblock was manned by
Serushago and other Interahamwe, including Bernard Munyagishari, Hassan Gitoki, Thomas
and other young militiamen. They were armed with rifles, primarily Kalashnikovs, and
grenades. The witness did not see any dead bodies at this roadblock, which is consistent with
Serushago’s testimony that the victims were brought to the Commune Rouge to be killed.2104
Witness RN-1, a Hutu soldier present in Gisenyi for five days in early May 1994, and
Witness STAR-2, a Hutu working in Gisenyi, both confirmed the presence of between six
and eight civilians at the La Corniche roadblock, but testified that the individuals were armed
with traditional weapons and had no firearms or grenades.2105 Neither witness observed any
killings or dead bodies there, although Witness RN-1 testified that he had heard that killing
and looting occurred at La Corniche in April. The witness was told by the Interahamwe at the
roadblock that they were there to prevent Tutsis and RPF sympathisers from passing. He was
also informed by Serushago that he thought Nsengiyumva was working with the Tutsis.2106
(ii) Kagemana Roadblock
1934. A second notable roadblock was erected in front of Jean Kagemana’s residence in
Gisenyi town after the death of President Habyarimana. Witness OAF testified that Gakwara
and Kamwe, two members of the Interahamwe armed with Kalashnikovs, headed the
roadblock, with Interahamwe leaders Bernard Munyagishari and Hassan Gitoki supervising
it. Witness RN-1 thought there were five to six individuals at the location during the day,
with slightly more at night. According to Witness OAF, Tutsis identified at the roadblock
were killed on the spot or taken to the Commune Rouge. He saw approximately 100 dead
bodies there in total throughout the events. They were removed with vehicles.2107 Witness
2102
Serushago, T. 18 June 2003 p. 26.
Serushago, T. 18 June 2003 pp. 19-20, 22-25; Witness OAF, T. 23 June 2003 p. 20 (stating that the La
Corniche roadblock was established “three, four, or five days following President Habyarimana’s death”);
Witness MNC-1, T. 4 July 2006 pp. 13-14 (testifying that persons attempted to position the roadblock closer to a
government services center on 9 April 1994, but Prefect Charles Zilimwabagabo intervened and convinced them
to place it further away).
2104
Witness OAF, T. 23 June 2003 pp. 5, 9-10, 20, 58, 60.
2105
Witness RN-1, T. 13 February 2006 pp. 54-56; T. 28 February 2006 pp. 4-5, 8-11, 56-57.
2106
Witness RN-1, T. 13 February 2006 pp. 54-56; Witness STAR-2, T. 28 February 2006 pp. 8-11, 56-57.
Witness RN-1 had no knowledge of Nsengiyumva giving orders to civilian militia at roadblocks, and testified
that they, including Serushago and Damas, viewed him as a collaborator for his efforts to evacuate certain
people. T. 13 February 2006 pp. 58, 83-84. The witness also testified generally that some soldiers were not
following orders. T. 13 February 2006 p. 84.
2107
Witness OAF, T. 23 June 2003 pp. 16-20, 31, 57-60, 76, 79-80; Witness RN-1, T. 13 February 2006 pp. 5456.
2103
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DO, a Hutu resident of Gisenyi, also observed Interahamwe at the Kagemana roadblock and
thought that it was possibly erected on 7 April 1994.2108
1935. Nsenigyumva and Defence Witnesses CF-1, CF-2, BZ-3, RN-1 and BX-3 confirmed
the existence of the Kagemana roadblock, but denied observing any dead bodies at the
location and uniformly asserted that the roadblock was not erected until at least one to two
week’s after the President’s airplane crash.2109 Major Biot, a Belgian military adviser to the
Rwandan army, mentioned the existence of military roadblocks pre-dated 7 April, but did not
observe or receive any reports of civilian roadblocks in Gisenyi prefecture between 7 and 13
April when he left Rwanda.2110 Witnesses CF-2 and BZ-3 saw Interahamwe at the Kagemana
roadblock, with Witness BZ-3 stating that they were armed with machetes and sticks, but not
guns. BZ-3 did not observe identification being checked and testified that the purpose of the
roadblock was to protect a wealthy local businessman, an opinion shared by Witness RN-1
and echoed by BX-3.2111 No witnesses testified to the existence of the military at Kagemana
roadblock.
Deliberations
1936. It is common ground that civilian and military roadblocks were mounted in Gisenyi
prefecture in the days after the death of President Habyarimana. There is no evidence
showing that killings or other crimes occurred in connection with roadblocks manned
exclusively by soldiers or gendarmes. The two most prominent civilian roadblocks, referred
to in this case, were located at La Corniche at the border crossing between Gisenyi town and
Goma as well as in front of Jean Kagemana’s house. Both were manned by Interahamwe, and
Serushago was in charge of the La Corniche roadblock.
1937. With respect to La Corniche, the evidence demonstrates beyond reasonable doubt that
this roadblock was used to single out and kill Tutsis and suspected RPF sympathisers.2112
Indeed, Defence evidence generally confirms this.2113 The Chamber is also satisfied on the
basis of Witness OAF’s testimony that Tutsis were identified and killed at the Kagemana
roadblock. The Chamber is not persuaded by the Defence witness that no killings occurred at
2108
Witness DO, T. 30 June 2003 pp. 70-74.
Witness BZ-1, T. 21 July 2005 pp. 59, 62, 70-72; T. 22 July 2005 pp. 2-3; Witness CF-1, T. 29 November
2005 pp. 3, 13-14, 40-41; Witness CF-2, T. 29 November 2005 pp. 48, 51-53, 72-74; Witness RN-1, T. 13
February 2006 pp. 54-56; Witness BX-1, T. 5 June 2006 pp. 4, 6, 10-11, 16; Nsengiyumva, T. 4 October 2006
pp. 66-67; T. 12 October 2006 p. 72. Witness RN-1 did not know when the Kagemana roadblock was erected,
because he was not yet present in Gisenyi in April 1994.
2110
Biot, T. 21 September 2006 pp. 79-83; T. 22 September 2006 pp. 9, 13, 19-20.
2111
Witness BZ-1, T. 21 July 2005 pp. 70-72; T. 22 July 2005 pp. 6-7, 9-10, 24-25; Witness CF-2, T. 29
November 2005 pp. 72-73; Witness RN-1, T. 13 February 2006 pp. 54-56. Witness CF-2 recognized “Gakwara”
and “Kamwe” at the roadblock, two individuals identified as Interhamawe by Witness OAF (See T. 23 June
2003 p. 17). Witness BZ-3 admitted that she might not have passed through the checkpoint more than once. BX3 testified that the purpose of the Kagemana roadblock was to protect the businesses of a group of Gisenyi
traders.
2112
The Chamber has also found that Stanislas Sinibagiwe was killed in connection with the La Corniche
roadblock in May 1994. It did not conclude that Nsengiyumva was directly responsible for this death (III.4.2.2).
2113
STAR-2, T. 28 February 2006 pp. 9-11. The Chamber observes that Witness STAR-2 denied seeing dead
bodies or hearing about killings at La Corniche roadblock. However, this is not dispositive since a reasonable
inference can be drawn from her earlier evidence that this roadblock was used to locate “accomplices”. In
addition, the Chamber is convinced by the totality of the evidence regarding this incident that the Tutsis
identified at this roadblock were routinely sent to execution at the Commune Rouge.
2109
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these roadblocks simply because they did not observe it. While the Chamber has previously
raised questions with respect to the credibility of Witness OAF in connection with other
events (III.3.6.1-2; III.4.2.2), his testimony is first-hand. It is also corroborated generally by
the common agreement that the Interahamwe manning the roadblock were armed.
1938. The question remains whether Nsengiyumva bears responsibility for these sites. With
respect to the La Corniche roadblock, the evidence of Serushago suggests that Nsengiyumva
congratulated him on his appointment as head of this roadblock. This alone or other evidence
about their relationship does not suggest that the roadblock was under Nsengiyumva’s
control. The Chamber further recalls that it has expressed reservations about the credibility of
other aspects of Serushago’s evidence as it relates to the Accused (III.3.6.1; III.4.2.1;
III.4.2.5).
1939. The La Corniche roadblock was placed at a strategic location at the Rwandan border
with Zaire, a short distance away from the customs and immigration posts. Given the
sensitivity of this site, the Chamber is satisfied that it could only have been erected and
operated with the authorisation of the government. It is not entirely clear, however, whether
this would have fallen under the military’s authority or that of the prefecture administration,
similar to immigration and customs functions. There is also not sufficient credible evidence
concerning Nsengiyumva’s relationship with those manning the roadblock. Accordingly, it is
not the only reasonable conclusion that it fell under his authority. Nevertheless, there is
certainly evidence that Nsengiyumva was present at the crossing since he facilitated the
evacuation of several Tutsis2114 and was summoned to facilitate the passage of a convoy of
Zairean refugees (III.4.2.2). This does suggest that his role as the operational sector’s military
commander gave him some influence over it, but not necessarily effective control over those
operating it.
1940. Turning to the roadblock in front of Kagemana’s house, the Defence evidence
suggests that it was established to protect the home of a wealthy businessman. There does not
appear to be any strategic importance to the site, nor is there evidence suggesting that it
formed part of a widespread network of roadblocks within Gisenyi town. As a result, the
Chamber has some doubt that it would have fallen under Nsengiyumva’s command.
1941. Accordingly, the Prosecution has not proven beyond reasonable doubt that
Nsengiyumva was responsible for the killings at the roadblocks at La Corniche and in front
of Kagemana’s house.
2114
See, e.g., Witness STAR-2, T. 28 February 19-21, 30-34; Witness RN-1, T. 13 February 2006 pp. 56-58, 7577, 83.
Judgement and Sentence
489
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
6.
ALIBI
1942. Each of the Accused have advanced alibis in connection with some of the allegations
against them. In many cases, the Chamber has set forth and assessed such submissions in the
sections concerning the relevant events. This is generally the case where the alibi covers a
narrow time frame.2115 The Bagosora and Kabiligi Defence have also presented alibis,
respectively, that span a period of several weeks and multiple criminal incidents. In order to
preserve a coherent narrative of this evidence and to avoid repetition of details in specific
sections, it is recounted and assessed below.
1943. It is well settled that, in assessing an alibi, an accused need only produce evidence
likely to raise a reasonable doubt in the Prosecution’s case. The alibi does not carry a separate
burden. The burden of proving beyond reasonable doubt the facts charged remains squarely
on the shoulders of the Prosecution, which must establish beyond reasonable doubt that,
despite the alibi, the facts alleged are nevertheless true.2116
6.1
Bagosora, 23 May to 22 June 1994
Introduction
1944. As set forth elsewhere in the judgement, the Prosecution alleges that, from late May to
early June 1994, Bagosora participated in meetings in Gisenyi at the Hôtel Méridien on 24
May in connection with an attack on Nyundo Parish (III.3.6.6), in early June at MRND
headquarters (III.4.2.4), at the beginning of June at the Hôtel Méridien related to the killing
of Espérance Uwayirege (III.4.2.5), and mid to late June at Umuganda Stadium concerning
subsequent attacks in Bisesero (III.4.5.1). The Prosecution has also presented evidence that
Bagosora instigated killings at a roadblock in the Kiyovu area of Kigali in mid and late June
(III.4.1.7). It argues that an absence of documentation reflecting Bagosora’s departures from
and entries into Rwanda and Zaire in May and June 1994 undermines his alibi evidence.2117
1945. According to the Defence, Bagosora left Rwanda on 23 May 1994 to obtain weapons
and ammunition in Zaire, South Africa and the Seychelles, and he did not return to Rwanda
until 22 June. Reference is made to Joseph Nzirorera, Nsengiyumva, Witness VO-5 and
Isabelle Uzanyinzoga as well as Bagosora’s passport and an investigative report by the
Belgian judiciary on Rwanda’s attempts to purchase weapons. The Bagosora Defence filed its
notice of alibi for this period on 12 July 2004.2118
2115
For example, Bagosora has advanced an alibi in connection with his alleged participation in meetings on the
night of 6 April and the morning of 7 April at Camp Kanombe (III.3.5.1) as well as his presence in the Remera
area on 7 April 1994 (III.5.2). Kabiligi has presented alibi evidence related to his participation in meetings in
Cyangugu prefecture on 28 January (III.2.4.3) and in Ruhengeri prefecture on 15 February 1994 (III.2.4.4).
Ntabakuze argues that he has an alibi for his alleged presence in Kabeza on the morning of 8 April 1994
(III.3.5.4). Nsengiyumva has raised an alibi for his alleged role in killings at Masaka hill (III.4.1.6) and at the
Kiyovu roadblock (III.4.1.7). These submissions are discussed in connection with the specific events.
2116
Simba Appeal Judgement, para. 184, citing Simba Trial Judgement para. 303.
2117
Prosecution Closing Brief, paras. 653, 655-664.
2118
Bagosora Closing Brief, paras. 1148-1172; Bagosora et al., Notice d’Alibi # 1, 12 July 2004.
Judgement and Sentence
490
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Evidence
Bagosora
1946. Bagosora testified that he was not in Rwanda from 23 May to 22 June 1994. He
travelled with Joseph Nzirorera to Kinshasa, Zaire, on 23 May, where he remained
continuously until 3 June, to execute contracts for weapons. On 24 May, Bagosora signed a
contract that had been previously negotiated. On 24 May, Lieutenant Colonel Ruhorahoza
brought Bagosora travellers checks and unsigned purchase slips, which Bagosora signed in
Kinshasa on 25 May in order to finalise the transaction.2119 Bagosora also signed an
additional contract there on 30 May.2120
1947. On 3 June, Bagosora left Kinshasa for Johannesburg, South Africa to meet Joseph
Nzirorera, who had left Kinshasa on 27 May and successfully negotiated an additional
contract to acquire weapons. Bagosora delivered Nzirorera travellers checks that he had
acquired from Ruhorahoza in Kinshasa. On the following day, Bagosora accompanied a
South African broker to the Seychelles to oversee the loading of weapons and ammunition.
Once in the Seychelles, Bagosora was informed that the travellers checks that he had brought
to Nzirorera had been cancelled by the issuer. Nzirorera contacted the governor of the
national bank and orchestrated a funds transfer, which allowed Bagosora to load the weapons
and ammunition. Bagosora left the Seychelles on 19 June, travelling through Goma to
Kinshasa, Zaire. He went back to Kinshasa to settle outstanding accounts and remained there
until 22 June.2121
1948. According to Bagosora, the stamps in his passport and the stamps reflecting his
entries into and departures from South Africa and the Seychelles were genuine. He explained
that there was no marks in his passport regarding his entry to Zaire on 23 May and his exit
from it on 22 June because he travelled on a separate travel document for members of the
Economic Community of the Great Lakes (CEPGL). When he returned to Kinshasa via Goma
from the Seychelles on 19 June, he travelled on a plane under Zairean authority and bypassed
immigration procedures altogether.2122
Bagosora Defence Witness VO-5
1949. Witness VO-5, a Hutu who worked at the Rwandan Embassy in Zaire, testified that he
received Bagosora and Joseph Nzirorera in Kinshasa on 23 May 1994. The two visitors
stayed at the Intercontinental Hotel and Bagosora came to the Rwandan Embassy the
following day to sign contracts for weapons purchases. The witness was uncertain what other
days he saw Bagosora but did not believe that he left Kinshasa until early June when he went
to South Africa.2123
2119
Bagosora testified that it would have been impossible to have travelled to Kigali to acquire the travellers
checks as the RPF had already taken control of Kanombe airport prior to 25 May 1994. T. 9 November 2005 p.
71.
2120
T. 9 November 2005 pp. 67-72, 75; T. 10 November 2005 pp. 2, 75; T. 17 November 2005 pp. 37-39.
2121
T. 9 November 2005 pp. 68, 72-75; T. 10 November 2005 p. 2.
2122
T. 10 November 2005 p. 2; T. 16 November 2005 p. 70; T. 17 November 2005 pp. 21-22, 37-39; Bagosora
Defence Exhibit 227 (Bagosora’s Passport).
2123
T. 12 October 2005 pp. 10, 15-18, 36, 52-55, 57-61; T. 13 October 2005 pp. 44-48; Bagosora Defence
Exhibit 194 (personal identification sheet).
Judgement and Sentence
491
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1950. The next time the witness saw Bagosora was at the Intercontinental Hotel in Kinshasa
on 20 June. Bagosora said that he had just arrived from the Seychelles. The witness did not
know how long Bagosora remained in Kinshasa.2124
Nsengiyumva Defence Witness Joseph Nzirorera
1951. Joseph Nzirorera, the President of the National Assembly, travelled by air on 23 May
1994 with Lieutenant Colonel Jean-Bosco Ruhorahoza from Goma to Kinshasa, Zaire.
Nzirorera was on a mission for the Rwandan government to obtain weapons and ammunition.
Bagosora, on a separate mission to buy weapons, accompanied the two on the trip from
Goma. Between 23 and 26 May, they stayed at the Intercontinental Hotel and usually had
breakfast together. Nzirorera proceeded to South Africa on 27 May. In South Africa, he
found a weapons supplier and Bagosora joined him there on 3 June, bringing one million
dollars in travellers checks to finalise the transaction. The equipment they were purchasing,
however, was in the Seychelles and because Nzirorera had no expertise, Bagosora left the
following day to inspect the weapons and ammunition. On 4 June, Nzirorera signed a
$120,000 contract to requisition a plane to transport the materials. Bagosora confirmed from
the Seychelles that they had found the correct materials. However, the suppliers would not
extend them credit and on 9 June, Nzirorera executed a contract with the suppliers for around
$837,000. He contacted Bagosora and returned to Kinshasa that day. Bagosora subsequently
informed Nzirorera that the sellers had problems cashing the travellers checks and asked him
to assist. Nzirorera, working with the Rwandan ambassador in Kinshasa and a official from
the National Bank, Denis Ntirugirimbabazi, arranged a transfer of funds to pay for the order.
Nzirorera returned to Rwanda around 15 June.2125
Bagosora Defence Witness Isabelle Uzanyinzoga
1952. Isabelle Uzanyinzoga, Bagosora’s wife, moved from Kigali to Gisenyi town on 12
April 1994. She saw Bagosora briefly on 23 May as he was leaving Rwanda to go on a
mission to Kinshasa to buy weapons and ammunition. She recalled the specific date because
it was two days after the fall of Camp Kanombe to the RPF. While he was away, she learned
from Joseph Nzirorera that Bagosora had also gone to South Africa. When Bagosora returned
to Gisenyi on 22 June, he mentioned his trip to the Seychelles. She remembered the precise
date of Bagosora’s return because it was one day before Opération Turquoise arrived in
Rwanda.2126
Nsengiyumva
1953. Nsengiyumva stated that Bagosora left Gisenyi in May to go on mission to Zaire and
returned to Rwanda on 23 June 1994, which was one day after Opération Turquoise arrived
in Rwanda.2127
2124
T. 12 October 2005 pp. 18-20, 36-37, 45-47.
T. 16 March 2006 pp. 66, 77-80; T. 17 March 2006 pp. 1-5; T. 12 June 2006 pp. 33-34, 44, 46-49, 51;
Nsengiyumva Defence Exhibit 162 (personal identification sheet). Nzirorera referred to his passport, which
included stamps indicating that he entered Goma on 23 May and South Africa on 27 May 1994. See T. 17
March 2006 pp. 4-5; Bagosora Defence Exhibit 321 (Nzirorera’s passport). He explained that members of the
CEPGL could travel between the member countries on a travel document separate from a passport. See T. 17
March 2006 p. 4; T. 12 June 2006 pp. 35-38.
2126
T. 1 December 2005 pp. 2, 32, 36-39, 55; Bagosora Defence Witness 293 (personal identification sheet).
Uzanyinzoga was previously known as Witness LO-2.
2127
T. 11 October 2006 p. 9.
2125
Judgement and Sentence
492
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Deliberations
(i) Kinshasa, 23 May to 3 June 1994
1954. According to Bagosora, he remained continuously in Kinshasa, Zaire, from 23 May to
3 June 1994. Nzirorera and Witness VO-5 confirmed Bagosora’s evidence that he arrived in
Kinshasa on 23 May, and that he went to the Rwandan Embassy the following day to
negotiate arms purchases. Nzirorera asserted that he saw Bagosora in Kinshasa daily until 26
May and Witness VO-5 testified that he believed that Bagosora remained in Kinshasa until
early June.
1955. The Prosecution suggests that Bagosora’s evidence relating to his time in Zaire should
be rejected, because his passport does not reflect his entry into the country and his evidence
regarding alternative travel documents is unreliable.2128 Bagosora, Nzirorera and Witness
VO-5 consistently testified that Rwandan nationals, as members of the Economic Community
of the Great Lakes (CEPGL), could enter Zaire using a separate CEPGL travel document.2129
Moreover, a Belgian Pro Justitia statement of July 1995, containing an investigator’s report
about attempted arms purchases by the Rwandan government, supports Bagosora’s evidence
that he was in Kinshasa at least from 24 through 26 May and on 30 May.2130 This is also
reflected in the annexes to the report, which include contracts and purchase receipts signed by
Bagosora.2131
1956. The investigator’s report indicates that Bagosora signed a contract on 24 May 1994 in
Kinshasa. It also states that, on 25 May, he “purchased” travellers checks in Kigali and
provided them to a person in Kinshasa that same day.2132 The report concludes, however, that
it would have been materially impossible for Bagosora to have travelled to Kigali, bought
travellers checks and then return to Kinshasa the same day, in particular because the
Rwandan government likely took its resources to Gisenyi when they fled Kigali.2133 Bagosora
testified that the travellers checks had been brought to Kinshasa unsigned and undated and
were given to him there by Lieutenant Colonel Ruhorahoza on 24 May.2134
2128
Prosecution Closing Brief, paras. 657-664.
Bagosora, T. 16 November 2005 p. 70; Nzirorera, T. 17 March 2006 p. 4; T. 12 June 2004 pp. 34-38;
Witness VO-5, T. 12 October 2005 pp. 20, 36-37.
2130
Prosecution Exhibit 365 (Pro Justitia statement of 24 July 1995 by Olivier Bogaert and annex). The French
original and English translation of the report and annex are contained sequentially in the same exhibit. Each
version has a different page numbering convention. In addition, for some documents in the annex, such as
photocopies of receipts, the English translation refers to the French original. When it is necessary to make
references to specific pages of the report, the Chamber has identified the relevant version.
2131
T. 9 November 2005 pp. 70-71.
2132
Prosecution Exhibit 365 (Pro Justitia statement of 24 July 1995 by Olivier Bogaert and annex (English)), p.
4. Copies of the contract and purchase slip are annexed. Id. (French), pp. K0077168-K0077171. Bagosora
testified that the document contained his signature and that it was one of the contracts he had signed in
Kinshasa. T. 9 November 2005 pp. 68, 71.
2133
Prosecution Exhibit 365 (Pro Justitia statement of 24 July 1995 by Olivier Bogaert and annex (English)), p.
5. See also Witness VO-5, T. 12 October 2005 p. 60; T. 13 October 2005 pp. 47-48 (testifying that he did not
believe Bagosora could have gone to Kigali on 25 May and returned to Kinshasa the same day).
2134
T. 9 November 2005 pp. 68-69, 71.
2129
Judgement and Sentence
493
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
1957. The Belgian investigator’s report also references an attestation that is signed by
Bagosora and dated 26 May 1994.2135 The Chamber notes that it bears the insignia of the
Rwandan Embassy in Zaire and that Witness VO-5 believed that it was generated in the
Embassy.2136 The statement also includes a contract signed by an American businessman and
Bagosora, bearing the date 30 May. An attestation on Rwandan Embassy letterhead, signed
by Bagosora with the same date, is also annexed.2137 A purchase slip for travellers checks
from the Banque Commerciale du Rwanda, indicating that the transaction had occurred on 30
May, is enclosed. The slip is signed by Bagosora and the statement indicates that he gave the
travellers checks to the American in Kinshasa that day.2138
1958. The testimonial evidence supporting Bagosora’s alibi comes largely from himself, his
wife, other Accused before the Tribunal and another witness closely associated with the
former Rwandan government. The Chamber is mindful of the possible interest of these
individuals in distancing Bagosora or themselves from the crimes committed during this
period. However, this alone is not sufficient to invalidate their accounts. As discussed above,
much of their testimony is corroborated by documentary evidence.
1959. Furthermore, the Chamber is not satisfied that the Prosecution has eliminated the
reasonable possibility that Bagosora was in Zaire, rather than Gisenyi between 23 May and 3
June 1994. The evidence for this part of the alibi has been considered bearing in mind several
witnesses who claimed to have seen Bagosora in Gisenyi during this period, including
Witness XBM at the Hôtel Méridien on 24 May (III.3.6.6) and at the MRND headquarters in
“early June” (III.4.2.4) as well as Witness ABQ at the Hôtel Méridien in the “beginning of
June” (III.4.2.5). Each of these sightings is uncorroborated. The Chamber has already raised
doubts about the credibility of the two witnesses or their ability to identify Bagosora in
connection with the incidents. These concerns are largely independent of the alibi, but are
reinforced after consideration of the alibi evidence. An accumulation of uncorroborated
sightings of Bagosora in Gisenyi, which are of questionable reliability, may leave the
Chamber with a lingering suspicion that he may have been there at the time, but this is not a
substitute for proof beyond reasonable doubt.2139
1960. In particular, Witness XBM’s testimony about the alleged meeting on 24 May at the
Hôtel Méridien, is squarely rebutted by Bagosora, Nzirorera, Witness VO-5 as well as
2135
Prosecution Exhibit 365 (Pro Justitia statement of 24 July 1995 by Olivier Bogaert and annex (English)), p.
4. A copy of the attestation is annexed. Id. (French), p. K0077172.
2136
T. 12 October 2005 pp. 54-55.
2137
Prosecution Exhibit 365 (Pro Justitia statement of 24 July 1995 by Olivier Bogaert and annex (French)), pp.
K0077173-K0077175, K0077182.
2138
Id. (English), p. 5. As noted above, the Belgian investigator’s report suggests that it would have been
impossible for Bagosora to have gone to Kigali to purchase the checks and returned to Kinshasa the same day.
According to Frédériq Keller, an American businessman, “a smallish, stocky black man from Rwanda” had said
during prior negotiations that he needed five days to go to Rwanda and obtain the checks from the bank, which
had relocated to Gisenyi. This may be a reference to Bagosora, but if so, it does not show that Bagosora in fact
returned to Gisenyi.
2139
The Chamber has also taken into consideration that Bagosora, as a senior official in the Ministry of Defence,
might have had access to Rwandan military aircraft, in particular in view of the importance of his mission.
Bagosora testified that the Gazelle helicopters owned by the Rwandan army would not have been able to
transport him from Kinshasa to Goma given the need to refuel. T. 10 November 2005 pp. 3-5. The range of a
Gazelle helicopter is not dispositive since it could have been refueled or he might have used another longer
range aircraft. However, these possibilities still do not eliminate the reasonable possibility that his alibi is true
when considered with the totality of the Prosecution and Defence evidence of his activities during this period.
Judgement and Sentence
494
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
documentary evidence, introduced by the Prosecution, which suggest that Bagosora was in
Kinshasa on that day.
1961. With respect to Witnesses XBM and ABQ’s evidence that they saw Bagosora in
Gisenyi in “early” or the “beginning” of June, the Belgian investigator’s report reflects that
Bagosora signed a contract in Kinshasa on 30 May. Witness VO-5 testified that Bagosora
remained in Kinshasa until early June, and Bagosora said he left for South Africa on 3 June.
Documentary evidence supporting this appears in Bagosora’s passport, which includes a visa
stamp, dated 2 June, from the South African Embassy. Bagosora testified that this was the
embassy in Kinshasa.2140 The visa number begins with the letters “KIN”, lending further
credence to Bagosora’s claim.2141
(ii) South Africa, 3 to 4 June 1994
1962. Bagosora and Nzirorera testified that Bagosora arrived in Johannesburg, South Africa
on 3 June 1994, and left for the Seychelles the following day. Bagosora’s passport reflects
entry on 3 June into the South African international airport near Johannesburg and his
departure from there on 4 June.2142 The Prosecution presented no direct evidence suggesting
that Bagosora was in Rwanda on these dates, other than possibly the testimonies of Witnesses
ABQ and XBM, mentioned above, regarding meetings in Gisenyi in “early” or the
“beginning” of June. The Prosecution appears to accept that Bagosora’s was in South Africa
on these days.2143 Accordingly, in view of the evidence, the Prosecution has not eliminated
the reasonable possibility that Bagosora’s alibi for the second period is true.
(iii) The Seychelles, 4 to 19 June 1994
1963. Bagosora and Nzirorera each testified that Bagosora left South Africa on 4 June 1994
for the Seychelles. As just noted, Bagosora’s passport reflects his departure from South
Africa on that day. A stamp also records his entry to the Seychelles on 4 June.2144 The
Prosecution produced a report of the United Nations International Commission of Inquiry,
dated 20 March 1996, containing investigations into the sale of weapons to the Rwandan
government in violation of Security Council Resolutions. The report reflects that the
Commission uncovered Seychelles immigration documents indicating Bagosora’s entrance
2140
T. 10 November 2005 p. 2.
Bagosora Defence Exhibit 227 (Bagosora passport).
2142
Id.
2143
Prosecution Closing Brief para. 657, which notes that Bagosora’s exit stamp from Zaire on 3 June and his
entry and exit stamps from South Africa on 3 and 4 June 1994, respectively, on their face “have some
reliability”. See also T. 16 November 2005 p. 67 (“Mr. White: We accept that there are certain parts of the
passport that represent certain travels that are corroborated by other documents that have been produced, travel
vouchers, and that sort of thing. So it’s not the case that the Prosecution is saying that Colonel Bagosora was
never in any of the places that he says he was, but it is the case that the Prosecution is saying that where that
evidence differs from the Prosecution’s own evidence, that the Prosecution’s evidence is to be relied on and not
Colonel Bagosora’s … It’s not the case that the Prosecution will say that the passport in its entirety ought to be
ignored. The Prosecution will be in a position to accept much of the movements of Colonel Bagosora, but at the
same time the Prosecution will argue that, in fact, the movements do not amount to an alibi with respect to the
responsibility that is alleged to fall on his shoulders.”).
2144
Bagosora Defence Exhibit 227 (Bagosora passport).
2141
Judgement and Sentence
495
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
into the country on 4 June.2145 The Seychelles’s Minister of Defence, who was involved in
arms negotiations with Bagosora in June 1994, informed the Commission that Bagosora,
purporting to be a representative of the Zairean Ministry of Defence, arrived in the Seychelles
on 4 June accompanied by a South African national.2146
1964. The purpose of the Commission’s investigations was not to establish Bagosora’s
whereabouts. Nevertheless, its report provides further evidence of Bagosora’s continued
presence in the Seychelles. A certificate of 16 June 1994 from the Seychelles Peoples’
Defence Forces (SPDF) documents the provision of arms to Bagosora.2147 Moreover, an
attestation, bearing Bagosora’s signature and also dated 16 June, certifies that the civilian
aircraft chartered to transport the munitions was under the full responsibility of the Zairean
Ministry of Defence.2148 Finally, the report attaches another certificate of arms provisions
signed by Bagosora on 18 June 1994.2149
1965. Bagosora testified that he left Seychelles on 19 June 1994, travelled through Goma
and continued to Kinshasa, Zaire. His departure from the Seychelles is supported by a stamp
in his passport, and the Commission was informed that Bagosora accompanied a second
shipment of arms that left the Seychelles on 19 June for Goma.2150 Nothing in Bagosora’s
passport or documents recovered by the Commission suggests that Bagosora left the
Seychelles prior to 19 June.2151
1966. Therefore, the Chamber is not satisfied that the Prosecution has eliminated the
reasonable possibility that Bagosora was in Seychelles, rather than Gisenyi and Kigali
engaging in criminal conduct, between 4 and 19 June. The evidence for this part of the alibi
has been assessed bearing in mind the testimonies of Witnesses XBM and ABQ, mentioned
above, with respect to Bagosora’s presence at meetings in Gisenyi in “early” or the
“beginning” of June; Witness DAS, who claimed that Bagosora was at the Kiyovu roadblock
in mid-June (III.4.1.7); and Witness ABQ concerning Bagosora’s presence at Umuganda
stadium in the middle or end of June (III.4.5.1).
2145
Prosecution Exhibit 364 (Report of 20 March 1996 of the United Nations International Commission of
Inquiry), para. 37, p. L0003739. The relevant resolutions concerning the sale of weapons to the Rwandan
government in the Great Lakes region are Security Council Resolution 918 (1994), 997 (1995) and 1011 (1995).
2146
Id. para. 29. The Commission noted that the physical description it received of Bagosora corresponded with
the description provided by the Seychelles authorities. See Id. para. 38.
2147
The certificate was provided by Seychelles authorities and annexed to the Commission’s report. It is signed
by a Lieutenant Colonel of the SPDF, countersigned by Bagosora and dated 16 June 1994. Id. para. 33, p.
L0003734.
2148
Id. para. 13, p. L0003738.
2149
Id. p. L0003735.
2150
Bagosora referred to the exit stamp during his testimony. See T. 10 November 2005 p. 2; Bagosora Defence
Exhibit 227 (Bagosora passport); Prosecution Exhibit 364 (Report of 20 March 1996 of the United Nations
International Commission of Inquiry), para. 31 (“Following the departure of the second consignment of arms –
accompanied by Colonel Bagosora – on 19 June …”).
2151
Indeed, the Prosecution’s position appears to be that Bagosora is responsible for the crimes with which he
was charged, but not necessarily that he was not in South Africa and the Seychelles in June 1994. See
Prosecution Closing Brief, para. 657, which submits that the entry and exit stamps from the Seychelles in
Bagosora’s passport, on their face “have some reliability”. See also T. 16 November 2005 p. 69 (“Ms.
Mulvaney: I think, the passport, in and of itself, we haven’t taken a position on. We can substantiate his
movement through the arms documents. That’s why we know where he is, as he was violating the UN embargo
down in South Africa, buying weapons from the Seychelles; we have that documented.”).
Judgement and Sentence
496
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
(iv) Kinshasa, 19 to 22 June 1994
1967. According to Bagosora, he was in Kinshasa from 19 to 22 June 1994 in order to
“settle accounts”.2152 This part of his alibi is not supported by any documentary evidence. In
the Chamber’s view, his explanation for travelling to Kinshasa lacks clarity, but it cannot be
excluded that he may have had some remaining issues to deal with following his various arms
purchases. Bagosora’s version is corroborated by three witnesses. Witness VO-5 stated that
he saw Bagosora there on 20 June, and Bagosora’s wife and Nsengiyumva attested to his
return to Gisenyi around 22 June. As noted above, these witnesses may have an interest in
providing favourable testimony for Bagosora.
1968. However, the main evidence of Bagosora’s presence in Rwanda comes from
Witnesses DAS and ABQ who suggest that he was either at Umuganda Statdium in Gisenyi
or the Kiyouvu roadblock in Kigali in the middle or end of June. As noted above, there are
credibility problems with these aspects of their testimonies independent of the alibi. The
Prosecution therefore has not eliminated the reasonable possibility that Bagosora was in
Kinshasa between 19 and 22 June 1994. The Chamber emphasises that this part of
Bagosora’s alibi remains somewhat equivocal and would likely be overcome by reliable and
credible evidence placing him in Rwanda during this period.
6.2
Kabiligi, 28 March to 23 April 1994
Introduction
1969. As set forth elsewhere in this judgment, the Prosecution accuses Kabiligi of ordering
the murder of Lieutenant Desiré Mudenge around 21 April 1994 (III.4.1.8) and being present
at roadblocks in Kigali around on 20 and 21 April (III.4.1.9). More generally, the Prosecution
submits that Kabiligi’s position and authority coupled with his presence in Rwanda shortly
after the death of President Habyarimana implicate him in the planning and implementation
of the killings against Tutsi civilians and Hutu political opponents after 7 April.2153
1970. The Kabiligi Defence presented evidence of an alibi that Kabiligi was not in Rwanda
during the period immediately before and following the death of the President and that he
could not have played any role in the planning or execution of crimes committed during that
time. In particular, it claims that, from 28 March until 8 April “or thereabouts”, Kabiligi was
in Cairo, Egypt for military training. On 14 April, he arrived in Nairobi to negotiate a sales
contract for ammunition. The contract was signed on 15 April, but Kabiligi stayed in Nairobi
to settle the delivery date before returning to Rwanda on 23 April. In support of the alibi,
reference is made to Pierre Claver Kanyarushoki, STAR-1, DELTA, LAX-23, RO-6 and
2152
T. 9 November 2005 p. 73 (French) (“Q. Pourquoi vous ne retournez pas au Rwanda, alors que vous êtes
près du Rwanda, lorsque vous êtes à Goma? R. Mais l’avion... l’avion dans lequel j’étais, était l’avion d’un
Zaïrois. Nous avions à régler d’abord des comptes à Kinshasa, avant que je ne rentre. Q. Quels comptes que
vous aviez à régler ? Je ne comprends pas très bien. R. Ses remboursements à lui, parce qu’en cette période-là,
pour toutes les affaires, nous avions la plupart des autorités à Kinshasa à l’hôtel Intercontinental, et c’est
l’Ambassade du Rwanda qui s’occupait de tous ces problèmes-là.”).
2153
Prosecution Closing Brief, paras 665-694.
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Nsengiyumva as well as documentary evidence. The Defence did not give any notice of alibi
or lead any evidence on Kabiligi’s whereabouts between 9 and 13 April 1994.2154
Evidence
Kabiligi Defence Witness Kanyarushoki
1971. Pierre Claver Kanyarushoki, a Hutu who was Rwanda’s Ambassador to Uganda in
April 1994, spoke to Kabiligi on the telephone around 8 April. Kabiligi said that he was still
in Egypt. The witness spoke on the telephone again with Kabiligi a few days later when
Kabiligi was in Nairobi, Kenya. One of Kanyarushoki’s assistants, who had recently been
reassigned to the Rwandan embassy in Nairobi, Kenya due to safety concerns for his family
in Uganda, also informed him about Kabiligi’s presence in Kenya.2155
Kabiligi Defence Witness LAX-23
1972. Witness LAX-23, a Rwandan diplomat in Kenya, testified that Kabiligi arrived in
Nairobi on the morning of 14 April 1994 from Egypt. He came to Kenya to negotiate a
contract for weapons with Oriental Machineries, Inc., which was signed on 15 April. The
witness saw Kabiligi at the Rwandan embassy at least once a day until he managed to charter
a flight to Rwanda on 23 April. Antoine Nkezabera, the first secretary of the embassy, and
the witness accompanied Kabiligi to the airport on that date. The witness did not know where
Kabiligi was from 8 to 14 April 1994.2156
Kabiligi Defence Witnesses DELTA
1973. Witness DELTA, a Hutu Rwandan diplomat in Kenya, met Kabiligi at the Rwandan
embassy in Nairobi on 14 April 1994. The Rwandan ambassador to Kenya introduced
Kabiligi to Witness DELTA and informed him that the Accused had come from Cairo, Egypt
on his way to Rwanda. The witness saw Kabiligi several times at the embassy over the next
several days until 22 April. He was told by Antoine Nkezabera, who had accompanied
Kabiligi to the airport, that Kabiligi left on 23 April by chartered aircraft for Rwanda.2157
Nsengiyumva and Defence Witnesses RO-6 and STAR-1
1974. Nsengiyumva testified that Kabiligi arrived at Gisenyi Airport on 23 April 1994 in a
small plane and immediately departed for Kigali by helicopter. Kabiligi told Nsengiyumva
that he was coming from Nairobi.2158 Witness RO-6, a Hutu military police officer, saw a
helicopter carrying Kabiligi land at Camp Kigali sometime after 20 April.2159 Witness STAR-
2154
Kabiligi Closing Brief, paras. 473-523; Kabiligi Defence Exhibit 134 (alibi documents). This exhibit
contains Kabiligi’s notice of alibi of 6 October 2004 as well as several other key exhibits, such as Prosecution
Exhibit 232 (Egyptian Government letters), Kabiligi Defence Exhibit 23 (letters related to Nairobi weapons
contract) and KABRIGA-05 (Egyptian military academy documents).
2155
T. 17 November 2006 pp. 20, 36, 40, 61; Kabiligi Defence Exhibit 113 (personal identification sheet).
Kanyarushoki stated in his examination-in-chief that he spoke with Kabiligi around 10 April 1994, but accepted
during cross-examination that it was likely on 8 April when shown Prosecution Exhibit 232 (Egyptian
government letters), which states that Kabiligi departed Egypt at that time. The witness said that he was not
certain about dates.
2156
T. 21 November 2006 pp. 7-8, 10-15, 39-40; Kabiligi Defence Exhibit 116A (personal identification sheet).
2157
T. 22 November 2006 pp. 10, 12-15, 29; Kabiligi Defence Exhibit 117 (personal identification sheet).
2158
T. 11 October 2006 pp. 5-6.
2159
T. 27 April 2005 pp. 48-49; T. 28 April 2005 pp. 27-28, 32; Bagosora Defence Exhibit 154 (personal
identification sheet).
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1, a Hutu Rwandan army officer, testified that he saw Kabiligi arrive in Kigali between 20
and 25 April.2160
Deliberations
1975. Kabiligi’s alibi for the period of 28 March to 23 April 1994 can be divided into three
distinct parts. The first part includes the period that he was in Cairo, Egypt from 28 March
until his departure for Saudi Arabia on 8 April. The second part concerns the period from 9 to
13 April where the Kabiligi Defence has provided no indication as to Kabiligi’s whereabouts,
except to intimate that he remained outside of Rwanda. The third part relates to the period
from 14 to 23 April when Kabiligi was allegedly in Nairobi, Kenya.
(i)
28 March to 8 April 1994
1976. With respect to the first part of the alibi, the Prosecution accepts that Kabiligi was in
Cairo from 28 March until 8 April 1994 when he departed Egypt on a flight to Saudi
Arabia.2161 This is also confirmed by documentary evidence from the Egyptian government
as well as the military training academy Kabiligi attended there.2162 The Chamber notes that
the testimony of Kanyarushoki suggests that Kabiligi might have been in Cairo as late as 10
April. However, Kanyarushoki acknowledged that he was not certain about the dates in
particular when confronted with documentary evidence from the Egyptian government
confirming Kabiligi’s date of departure. In view of the evidence, the Chamber considers that
Kabiligi has established the first part of his alibi.
(ii)
9 to 13 April 1994
1977. The Kabiligi Defence provided no indication of Kabiligi’s whereabouts between 9
and 13 April 1994 in either its notice of alibi or its Closing Brief. Witnesses LAX-23 and
DELTA, who attested to Kabiligi’s arrival in Nairobi on 14 April, simply asserted that he was
coming from Cairo, only implying that he had not yet returned to Rwanda. However, Witness
LAX-23 clearly stated that he did not know where Kabiligi was in the days before arriving in
Nairobi. Taking into account the time needed for return travel, the Prosecution also considers
it “reasonable to conclude that Kabiligi first returned to Rwanda on or about [9 or 10
April]”.2163 The Chamber accepts that Kabiligi has a reasonable explanation of his activities
until this time. However, the Defence did not provide one for his time between 10 and 13
April.
1978. This said, the Prosecution evidence of Kabiligi’s activities in Rwanda during this
period is limited. It refers primarily to the evidence of Prosecution Witnesses CE and Ruggiu
who attested to Kabiligi’s arrival at Camp Kigali after the death of President
2160
T. 23 February 2006 pp. 3, 70-71 (“Mount Rebero fell on the 19th and Kabiligi arrived later. I believe it was
one or two days after the fall of Mount Rebero, but not after five days.”); Nsengiyumva Defence Exhibit 140
(personal identification sheet).
2161
Prosecution Closing Brief, paras. 665-666.
2162
See Kabiligi Defence Exhibit 134 (alibi documents), containing Prosecution Exhibit 232 (Egyptian
government letters) and KABRIGA-05 (Egyptian military academy documents).
2163
Prosecution Closing Brief, para. 687.
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Habyarimana.2164 Witness CE, a soldier, recalled seeing Kabiligi and hearing soldiers cheer
his arrival at Camp Kigali in a military jeep “a few days” after the death of the President.2165
Ruggiu, a journalist with the RTLM, recalled seeing Kabiligi arrive between 14 and 17 April
by helicopter near the officers mess at Camp Kigali.2166 Although the witnesses provided
different dates for Kabiligi’s arrival, the Prosecution contends in its Closing Brief that these
two witnesses “materially” corroborate one other.2167 There is, however, no convincing way
to explain the significant discrepancy between their testimonies about Kabiligi’s arrival, and
it appears that they are referring to separate incidents at different times.
1979. The Prosecution also submits that, given Kabiligi’s senior position in the G-3 office of
the army staff, it is unreasonable to assume that he would delay his return to Rwanda by
several weeks.2168 In light of Kabiligi’s authority over the aviation squadron as well as the
existence of helicopter flights as early 7 April, the Prosecution argues that Kabiligi could
have easily facilitated his return to Rwanda.2169 It suggests that Kabiligi may have returned
multiple times, implicitly arguing that Witness CE saw him during the second part of the alibi
and that Ruggiu was referring to a later arrival during the third part of the alibi.2170 These
submission are more consistent with the witnesses’ varying accounts of Kabiligi’s arrival.
1980. The Prosecution did not present any other evidence of Kabiligi’s presence in Rwanda
between 9 and 13 April, which is surprising given the resumed hostilities and his role as G-3
on the army’s general staff. Furthermore, the Chamber heard extensive evidence from a
number of soldiers stationed at Camp Kigali in connection with the killing of the Belgian
peacekeepers (III.3.4).2171 Indeed, the sheer contrast between the limited evidence related to
Kabiligi’s whereabouts during this period – only Witness CE’s testimony – and the
overwhelming evidence of the activities of Bagosora, Ntabakuze and Nsengiyumva,
discussed elsewhere in this judgement, is significant.2172 In the Chamber’s view, the
exceedingly limited nature of the evidence of Kabiligi’s presence in Rwanda between 9 and
13 April is important, in particular bearing in mind his rank and role in the army. It suggests
2164
Prosecution Closing Brief, paras. 668-672. As further corroboration, the Prosecution also suggests that
Witness AAA saw Kabiligi and Prefect Tharcisse Renzaho at a prefecture security council meeting in mid-April
1994 (III.4.1.11). See Prosecution Closing Brief, para. 673, citing T. 14 June 2004 pp. 17-21; T. 15 June 2004 p.
85. However, as the Kabiligi Defence notes, leaving aside other credibility concerns, Witness AAA conceded in
cross-examination that this meeting occurred after 25 April. See Kabiligi Closing Brief, paras. 519; T. 15 June
2004 p. 85 (“I cannot recall the dates. It was the end of April, so it’s between the 27th and the 30th of April. But
these are not specific dates. I would say that – I am giving you an approximation. I would say that it took place
towards the end of April. Q. In any case, you are saying at the end of April. Can we agree that the meeting took
place after the 25th of April? Would that be correct? A. Yes, we could agree on that. It was starting on the 25th
and perhaps in the days that followed.”).
2165
T. 13 April 2004 pp. 28-29; T. 14 April 2004 pp. 5, 7-8; Prosecution Exhibit 205 (personal identification
sheet).
2166
T. 16 June 2003 pp. 49-50; T 17 June 2003 pp. 30, 38-39.
2167
Prosecution Closing Brief, paras. 1012(a), 1359(c).
2168
Id. paras. 687 (m-n), 688.
2169
Id. paras. 687 (o-q, t), 690-691.
2170
Id. paras. 672, 686.
2171
For example, the Chamber heard from Prosecution Witnesses XAF, CE, AH, DA, KJ and XXJ as well as
Bagosora Defence Witnesses RO-3, RO-6 and RN-1, who were at Camp Kigali after the death of President
Habyarimana.
2172
Furthermore, there is evidence that Ntabakuze communicated with the G-3 office in connection with the
arrival of refugees at Sonatube junction on 11 April 1994. However, it is notable that the office’s deputy
Lieutenant Colonel Kanyandekwe was involved in the radio exchange, not Kabiligi (III.4.1.1).
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he may not have been in Rwanda. The Chamber therefore has some doubt about Witness
CE’s evidence placing Kabiligi in Rwanda. And even assuming that Witness CE’s evidence
were true, the Chamber still has no evidence of any of Kabiligi’s activities between 9 and 13
April.
(iii)
14 to 23 April 1994
1981. Turning to the third part of Kabiligi’s alibi from 14 until 23 April 1994, the
Prosecution accepts that Kabiligi may have briefly travelled to Nairobi, Kenya.2173 In this
respect, the Chamber finds that the evidence reliably shows that Kabiligi arrived in Nairobi
on 14 April and signed a weapons contract on 15 April with Oriental Machineries, Inc. This
follows from the testimonies of Witnesses LAX-23 and DELTA, which are corroborated by
documentary evidence, referring to Kabiligi signing the contract of 15 April 1994.2174 It is
less clear how long Kabiligi remained in Kenya.
1982. The Kabiligi Defence has explained that he remained there until 23 April, arranging
the delivery date for the contracted munitions as well as his chartered transport back to
Rwanda. This is supported mainly by Witnesses LAX-23 and DELTA, who regularly saw
him at the embassy and who took him to the airport. Witness LAX-23’s agenda,2175 reflecting
Kabiligi’s date of departure, provides corroboration, as do Nsengiyumva and Witnesses
STAR-1 and RO-6, who place Kabiligi’s arrival in Rwanda on or around 23 April. Witnesses
STAR-1 and RO-6 gave only approximate dates for his arrival around this time.
1983. To counter this evidence, the Prosecution appears to rely on Witnesses Ruggiu, DY
and XXH. As noted above, Ruggiu allegedly saw Kabiligi arrive at Camp Kigali at some
point between 14 and 17 April. Witness DY testified that he was assigned to escort Kabiligi
on 20 April (III.4.1.8-9). Witness XXH allegedly saw Kabiligi at a meeting with President
Sindikubwabo in Cyangugu prefecture on 23 April (III.4.1.6). The Chamber considers the
overall lack of evidence concerning Kabiligi’s activities in Rwanda between 14 and 23 April
to militate in favour of the reasonableness of the third part of his alibi.
1984. The Chamber has previously expressed concern with the credibility of Ruggiu and
thus views his evidence with caution. In this case, there are some discrepancies with respect
to when he stayed at Camp Kigali. According to his testimony, he was there from 14 to 16
April. However, in his plea agreement, he affirmed that he was at Camp Kigali significantly
earlier, between 12 and 14 April.2176 Furthermore, Witness CE, whom the Prosecution relies
on to corroborate Ruggiu’s presence at Camp Kigali, testified that he did not see Ruggiu there
2173
Prosecution Closing Brief, para. 687.
See Kabiligi Defence Exhibit 23. This exhibit contains one letter dated 30 August 1994 from Prime Minister
Kambanda, referring to the contract signed on 15 April by Kabiligi. It also contains two letters dated 13 and 15
September 1994 from Defence Minister Bizimana concerning the problems with the contract with Oriental
Machineries Inc., which was signed in April.
2175
Kabiligi Defence Exhibit 126B (Agenda of Witness LAX-23).
2176
See Bagosora Defence Exhibit 14, para. 159 (Ruggiu’s plea agreement: “Ruggiu admits that, between 12
and 14 April, the military authority provided lodging for him in the Kigali military camp”). Ruggiu’s prior
statement to Tribunal investigators also indicates that he arrived on 12 or 13 April 1994. See Kabiligi Defence
Exhibit 20B p. 24 (Undated Statement of Ruggiu: “That is why I would also say that around 12 or 13 April,
when I was put under the Kigali Barracks”). His prior testimony in the Nahimana et al. case, however, placed
his time at Camp Kigali in a range from 13 to 17 April. See Kabiligi Defence Exhibit 21B (Excerpts from
Nahimana et al. T. 5 March 2002 pp. 27-29).
2174
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until after the bombing of RTLM, around 17 to 19 April.2177 If true, this would then place
Ruggiu’s sighting of Kabiligi more in line with the Kabiligi Defence’s version of when the
Accused returned.2178 Witness CE’s account does not exclude that Ruggiu was at the camp
earlier, but given that Ruggiu was Belgian it is likely that his presence would have been
noticed. These differences reflect that there is a lack of clarity as to when Ruggiu was at the
camp. His evidence is uncorroborated, and the Chamber declines to rely on his account of
Kabiligi’s return.
1985. The Chamber has previously expressed concern with the credibility of uncorroborated
testimony of Witness DY (III.4.1.8-9; III.4.4.2). Concerning the evidence of Witness XXH,
which places Kabiligi in Cyangugu on 23 April (III.4.1.6), the Chamber notes that this
evidence does not strictly refute Kabiligi’s alibi since his Defence claims that he returned to
Rwanda on 23 April. Furthermore, André Ntagerura, Witness RX-3 and Emmanuel
Bagambiki disputed that there was a meeting in Cyangugu involving Kabiligi and the
President at this time. According to their testimony, they attended a meeting involving the
President around 17 May, and Kabiligi was not present. Considering this evidence, the
Chamber declines to accept Witness XXH’s evidence without further corroboration.
1986. The Chamber finds that the Defence has provided a reasonable explanation of
Kabiligi’s whereabouts during the third part of his alibi from 14 to 23 April 1994, supported
by first-hand corroborated evidence. The Chamber has taken into account the Prosecution’s
arguments concerning the credibility of these alibi witnesses, based primarily on their status
as alleged co-conspirators, their connections with the interim-government or possible efforts
after 1994 to overthrow the current government in Rwanda.2179 However, the Prosecution still
has not proven beyond reasonable doubt that Kabiligi returned from Nairobi before 23 April
1994 when its evidence is weighed individually and together with the alibi evidence.
2177
T. 13 April 2004 p. 28; T. 14 April 2004 pp. 5-6.
Furthermore, the itinerary offered by Ruggiu for Kabiligi’s return, which he learned second-hand, is
consistent with the Defence evidence placing Kabiligi’s arrival around 23 April 1994.
2179
Prosecution Closing Brief, paras. 678-685.
2178
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
7.
7.1
DEFENCE VIEWS ON THE CAUSES OF THE EVENTS IN 1994
Introduction
The Defence
1987. The Defence has offered alternative explanations during the course of trial and in their
Closing Briefs concerning the events which unfolded in Rwanda after the death of President
Habyarimana. In particular, it has stressed that there was no plan or conspiracy by the former
Rwandan government or military to harm civilians between April and July 1994. Instead,
according to the Defence, the wave of civilian killings that swept the country during this
period was triggered by a number of other factors.2180
1988. According to the Defence, the RPF’s invasion in October 1990, its repeated violations
of ceasefire agreements and strategy of guerrilla-war and infiltration were important causes of
the events. The RPF’s military strategy was not aimed at democratisation or the return of the
Tutsi refugees to Rwanda, but to restore Tutsi domination by seizing power by force. It was
this strategy, fully realised with the RPF’s victory in July 1994, that initially destabilised the
Habyarimana regime and then sparked the widespread and predicted reprisal killings of
civilians after 6 April 1994.2181
1989. In the Defence’s view, the failure of the Arusha Accords was also a significant factor.
The major barrier to the implementation of this agreement was RPF’s intransigence.
Although pretending to accept and abide by them, the RPF in reality sought absolute, rather
than shared, power. Throughout the peace negotiations, the RPF was already threatening war
and preparing a military build-up. In contrast, President Habyarimana and his entourage did
not oppose the Arusha Accord. The Rwandan military also took effective steps toward their
implementation and the integration of its forces with the RPF.2182
1990. Furthermore, the history of politically-motivated violence in Burundi in the two
decades prior to 1994 provided examples of massive killings of Hutu civilians by a Tutsidominated military, and thus established a precedent for mass-killings associated with
challenges to political power that were known to all people living in Rwanda. The
assassination in October 1993 of the first elected Hutu President, the massacres of tens of
thousands of civilians by the Burundian Tutsi-dominated army, and the resulting 350,000
refugees that entered Rwanda, created an atmosphere of fear and mistrust in the region that,
according to the Defence, made negotiated power-sharing impossible. The assassination of
the Hutu Presidents of Burundi and Rwanda on 6 April 1994 showed that the majority Hutu
population could not depend on the Tutsi minority to share power in a democratic process.2183
2180
See generally Bagosora Closing Brief, paras. 28-42, 68-88, 181-433; Kabiligi Closing Brief, paras. 524-660;
Ntabakuze Closing Brief, paras. 439-467, pp. 138-167; Nsengiyumva Closing Brief, paras. 86-128. The Defence
teams refer to a number of witnesses and exhibits. The Chamber has fully considered this material. In view of its
limited relevance to the case, as described in this section, it has not set this evidence out in detail.
2181
Bagosora Closing Brief, paras. 197-220, 346-354; Ntabakuze Closing Brief, paras. 441-443, 447-453;
Nsengiyumva Closing Brief, paras. 87-128.
2182
Bagosora Closing Brief, paras. 73-85, 240-257; Kabiligi Closing Brief, paras. 524-575; Ntabakuze Closing
Brief, para. 450; Nsengiyumva Closing Brief, para. 100.
2183
Bagosora Closing Brief, para. 227-239; Ntabakuze Closing Brief, paras. 444-446, 464.
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1991. The Defence argues that the RPF shot down President Habyarimana’s plane on 6
April 1994 with the aim of plunging the country into civil war. It thus created a pretext to
decisively seize power. The RPF knew that the resumption of war would lead to massive
civilian casualties, in view of the Burundian experience, warnings from the international
community, as well as the prevailing tension in the country resulting from its initial invasion
and military activities. The RPF and its superior military forces also prevented the Rwandan
government and military from quelling the massacres by diverting their resources to the war
effort. It also rejected ceasefires, ordered its forces not to intervene to save civilians and
blocked the intervention of an international force. All of this was part of the RPF’s war-plan
and ensured that civilian killings would continue unabated. Therefore, the Defence submits
that the RPF bears responsibility for planning and triggering the massacres which unfolded in
Rwanda, not so-called Hutu extremists.2184
1992. Finally, the Defence submits that crimes were committed by the RPF in areas
occupied by its forces or where combat was occurring.2185
The Prosecution
1993. The Prosecution rejects these arguments as mostly irrelevant and submits that they
serve primarily as a diversionary tactic. It further contends that the evidence underlying the
Defence’s alternative explanations, in particular the opinions of its experts, is based on
incomplete information, discredited sources and a questionable methodology. With respect to
the shooting down of the President’s plane, the Prosecution emphasises that this is not
charged as a crime in the present case. While it may have been a catalyst for the crimes
committed afterwards, it certainly was not the root cause. Furthermore, given the numerous
competing theories for who was responsible, as well as the conflicting information, the
Prosecution is not satisfied that such a case could be brought to trial. Finally, the
Prosecution’s charges relate to the Accused’s individual criminal responsibility for specific
offences. The question of whether the RPF also committed crimes or should have been
charged, therefore, has no bearing on the case against them.2186
7.2
Deliberations
1994. One of the main purposes of the Defence’s alternative explanations for the events is to
undermine the Prosecution’s theory that the Accused planned and conspired before April
1994 to commit the genocide which unfolded after the death of the President. The Chamber
has taken into account these arguments, as well as the evidence underlying them, in assessing
the allegations underpinning the Prosecution’s case for conspiracy. In particular, the
Prosecution has pointed to evidence of the Accused’s role in defining the enemy, their
participation and statements in various meetings, the preparation of lists, the creation of
civilian militias and the Accused’s purported role in clandestine organisations (III.2). As
discussed in that section and the legal findings on conspiracy (IV.2.1), the Prosecution has
not proven this charge beyond reasonable doubt.
2184
Ntabakuze Closing Brief, paras. 454-467; Bagosora Closing Brief, paras. 182, 211-213, 355-433; Kabiligi
Closing Brief, paras. 576-660; Nsengiyumva Closing Brief, paras. 94-96, 117-118.
2185
Ntabakuze Closing Brief, paras. 461-463; Bagosora Closing Brief, paras. 181, 371; Nsengiyumva Closing
Brief, paras. 88-91, 100-101, 111, 113.
2186
Prosecution Closing Brief, paras. 249-254, 1689-1696; T. 1 June 2007 pp. 41-42.
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1995. The existence of the armed conflict and the periodic resumption of hostilities between
October 1990 and April 1994 did provide a context for the Chamber’s assessment of the
preparation of lists and the creation of civilian militias, which raised some doubt as to
whether they were at their inception intended for genocidal purposes (III.2.5-6). However, in
all other respects, the alternative explanations had little relevance to the Prosecution’s
specific allegations that there was a conspiracy.
1996. Another aim of the Defence arguments is to show that the killings which occurred
after the death of the President were somehow spontaneous with primary responsibility lying
with the RPF which allegedly triggered the events. The Chamber does not exclude that there
were a certain amount of spontaneous reprisal killings by members of the population in
Rwanda. The evidence reflects that there was a prevailing climate of ethnic and political
tension and mistrust at the time. It is also perfectly possible that some killings reflected the
settling of old scores between certain individuals. However, the Accused are not being tried
for such crimes. Rather, the core of the charges against them is anything but spontaneous.
They are accused of a series of specific crimes perpetrated mostly by soldiers, including elite
units, often acting in conjunction with militiamen. The evidence shows that these were
organised military operations ordered at the highest levels. Therefore, a full consideration of
the evidence of the specific crimes charged against the Accused reflects that the Defence’s
alternative explanations have no or limited relevance to the Prosecution’s case.
1997. The attack on President Habyarimana’s plane is not charged as a crime in any of the
Indictments. There are multiple theories concerning who is responsible.2187 The Chamber has
permitted the Defence to adduce some evidence related to this event as background.2188 It
remains, however, a collateral issue in the case. The Defence has presented a body of
evidence suggesting that the RPF was responsible for the attack.2189 In view of the
2187
See, e.g., Prosecution Exhibit 3A (Alison Des Forges: Leave None to Tell the Story (1999)), pp. 181-185;
Bagosora Defence Exhibit 9 (Filip Reyntjens: Trois jours qui on fait basculer l’histoire (1995)); Bagosora
Defence Exhibit 135B (Pro Justitia Statement of 31 July 1995 of Filip Reynjtens to Belgian judicial authorities),
p. 4.
2188
Decision on Request for Subpoenas of United Nations Officials (TC), 6 October 2006, paras. 12-18 (“The
Indictment does not attribute responsibility for the attack on the Presidential airplane to any of the Accused or
their alleged co-conspirators. Paragraph 6.2 of the Indictment states neutrally that: ‘On 6 April 1994 at about
8:30 p.m., the plane carrying, among other passengers, the President of the Republic, Juvénal Habyarimana, was
shot down on its approach to Kigali Airport, Rwanda.’ This event is characterized as the trigger for the
massacres which ensued; but, unlike other paragraphs of the Indictment, no involvement of the Accused is
alleged. Nor did the Prosecution present evidence during its case-in-chief to prove any responsibility by the
Accused in the assassination. The only such suggestion was made during the cross-examination of the Accused
Bagosora, when the Prosecution put to Colonel Bagosora that he had been involved in the attack on the
Presidential airplane. The Prosecution has made clear, in responding to separate motion by the Bagosora
Defence, that this question was posed only for the purpose of challenging the witness’s credibility, as he had
himself discussed responsibility to the attack during his examination-in-chief. The Prosecution did not suggest,
and indeed specifically renounced, that it was seeking to hold the Accused criminally responsible for the
President’s assassination. … The conspiracy in which the Accused is alleged to have participated does not
include the attack on the Presidential airplane on 6 April 1994. … Evidence that persons other than the Accused
or his alleged co-conspirators were involved in shooting down the Presidential plane does not make any of these
allegations any less likely.”). See also Decision on Ntabakuze Motion for Disclosure of Prosecution Files (TC),
6 October 2006, para. 5; Decision on Request for Cooperation of the Government of France (TC), 6 October
2006, paras. 3-6; Decision on Disclosure of Defence Witness Statements in Possession of the Prosecution
Pursuant to Rule 68 (A) (TC), 8 March 2006, paras. 6-7.
2189
See, e.g., Bagosora Defence Exhibit 247 (Report of 1 August 1997 by Michael Hourigan), para. IV;
Bagosora Defence Exhibit 5 (testimony of 21 April 2000 given by Jean-Pierre Mugabe in Washington D.C.,
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Prosecution’s position with respect to the attack and its limited significance, this evidence has
not been adequately tested through cross-examination by an interested party or through
rebuttal evidence, and the Chamber therefore has no view on who the perpetrators may have
been. Even assuming that the RPF were responsible, it would not have any bearing on the
Accused’s criminal responsibility. The attacks for which they have been held responsible
were organised military operations directed at civilians. There can be no justification for this
even if the opposing military force commenced the hostilities.
1998. To the extent that the Defence’s alternative explanations aim to raise doubt about
whether a genocide occurred in Rwanda, the submissions are without merit. A review of the
evidence related to the crimes underpinning the charges amply demonstrates that the
perpetrators acted with genocidal intent (IV.2.2). Leaving aside the particular facts in this
case, it is clear that a genocide occurred. The Tribunal has convicted a high number of
individuals in completed cases for genocide committed in various parts of the country. The
Appeals Chamber has even concluded that the genocide in Rwanda in 1994 is a fact of
common knowledge which there is no reasonable basis to dispute.2190
1999. Finally, with respect to crimes committed by the RPF, a main concern for the Defence
is the apparent imbalance in the Prosecution strategy to date in failing to indict RPF members
allegedly responsible for humanitarian law violations in Rwanda during 1994. The Chamber
fails to see how this would exculpate the Accused for their own alleged crimes. Furthermore,
Article 15 (2) of the Statute reads: “The Prosecutor shall act independently as a separate
organ of the International Tribunal for Rwanda. He or she shall not seek or receive
instructions from any government or from any other source.” It is beyond the scope of
Chamber’s task to evaluate the Prosecutor’s overall strategy.
2000. Furthermore, the Defence has not pointed to any evidence with respect to the crimes
for which the Accused have been held accountable showing that the RPF may have
committed them.2191 Regarding the allegation that the RPF may have committed crimes in
Rwanda other than those charged in the Indictments during the same period,2192 the Appeals
Chamber has held that “it is well established in the jurisprudence of the Tribunal that
U.S.A.); Kabiligi Defence Exhibit 125 (International Arrest Warrant issued by Jean-Louis Bruguière on 17
November 2006); Ntabakuze Defence Exhibit 216 (Joshua Abdul Ruzibiza: Rwanda, l’histoire secrete (2005));
Nsengiyumva Defence Exhibit 81 (statement of 5 July 2004 by Lt. Aloys Ruyenzi), para. 23; Ruzibiza, T. 9
March 2006 pp. 20-22, 67; T. 10 March 2006 pp. 39-41), Witness BRA-1, T. 6 April 2005 pp. 67-68, 74; T. 29
May 2005 pp. 18-19, 23-25, 27, 30-32; Witness LX-1, T. 3 October 2006 pp. 59-60; T. 5 October 2006 p. 75;
Marchal, T. 30 November 2006 pp. 27-28; T. 4 December 2006 pp. 6-7, 51-53; T. 5 December 2006 p. 13;
Strizek, T. 11 May 2005 pp. 53-60; T. 12 May 2005 pp. 33, 64-65; Reyntjens, T. 15 September 2004 pp. 13-14,
25; T. 22 September 2004 p. 39; Kanyarushoki, T. 17 November 2006 p. 35.
2190
Karemera et al., Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (AC), 16
June 2006, para. 35. More specifically, the Appeals Chamber has characterised the events of 1994 as “a
campaign of mass killing intended to destroy, in whole or at least in very large part, Rwanda’s Tutsi
population”.
2191
The Defence refers to evidence that the RPF was allegedly involved in killings in Remera (III.3.5.2) and
Kabgayi in June 1994 (III.4.4.1). The Accused were not found responsible for these events.
2192
For example, the Defence points to evidence of the RPF allegedly committing crimes, such as the
assassinations of Félicien Gatabazi, the President of the PSD, in February 1994 and Emmanuel Gapyisi, an
MDR official, in May 1993 (III.2.9), Byumba and in eastern Rwanda in 1994 (see, e.g., Witness BRA-1, T. 6
April 2006 pp. 64-68; Witness ALL-42, T. 8 November 2006 pp. 41-43, T. 9 November 2006 pp. 13, 25, T. 17
November 2006 pp. 9-10; Ndagijimana, T. 16 November 2006 pp. 54-55, 63; Kabiligi Defence Exhibit 112
(Cable of 14 October 1994 from Shaharyar Khan to Kofi Annan), paras. 4-7).
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arguments based on reciprocity, including the tu quoque argument, are no defence to serious
violations of international humanitarian law”.2193
2001. In sum, the alternative explanations for the events have added relevant context to a
few allegations against the Accused. For the most part, however, they are irrelevant to the
core issues in this case, namely whether the Accused are responsible for the specific criminal
allegations charged against them.
2193
Martić Appeal Judgement, para. 111. See also Kupreškić et al. Appeal Judgement, para. 25. See also
Bagosora et al., Decision on Request for Subpoenas of United Nations Officials (TC), 6 October 2006, paras.
12-18 (“Descriptions of crimes committed by RPF forces against civilians in geographic areas physically distant
from combat between the opposing armed forces in 1994 would not suggest the innocence or mitigate the guilt
of the accused. The impact of such events on the criminal conduct with which the accused are charged is too
remote and indirect. The Defence submissions have not demonstrated that such information would assist in
disproving any element of the offences with which the Accused are charged, or how it could sustain a valid
excuse or justification for their alleged conduct.”).
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CHAPTER IV:
LEGAL FINDINGS
2002. The Prosecution has charged Bagosora, Kabiligi, Ntabakuze and Nsengiyumva with
conspiracy to commit genocide, genocide, complicity in genocide, crimes against humanity
(murder, extermination, rape, persecution and other inhumane acts) and serious violations of
Article 3 Common to the Geneva Conventions and of Additional Protocol II (violence to life
and outrages upon personal dignity). In addition, it charges Nsengiyumva with direct and
public incitement to commit genocide.
2003. In its factual findings, the Chamber found that Bagosora, Ntabakuze and
Nsengiyumva participated in the creation of the Definition of the Enemy in 1991 (III.2.2) and
that Ntabakuze used this definition in speaking with his soldiers in 1992 and 1993 (III.2.4.1).
Bagosora, Kabiligi and Nsengiyumva were involved in the creation, arming and training of
civilian militias between 1990 and 1994 (III.2.6.2). Nsengiyumva played a role in the
maintaining of lists (III.2.5.3). These findings are relevant to conspiracy (IV.2.1).
2004. With respect to the events after 6 April 1994, the Chamber found that Bagosora was
involved in the crimes committed against Agathe Uwilingiyimana, Joseph Kavaruganda,
Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza (III.3.3), Augustin
Maharangari (III.3.5.6), the 10 Belgian peacekeepers (III.3.4), Alphonse Kabiligi (III.3.6.5)
as well as those crimes committed from 6 to 9 April at roadblocks in the Kigali area (III.5.1),
Centre Christus (III.3.5.2), Kibagabaga Mosque (III.3.5.3), Kabeza (III.3.5.4), the Saint
Josephite Centre (III.3.5.5), Karama hill and Kibagabaga Catholic Church (III.3.5.7),
Gikondo Parish (III.3.5.8), Gisenyi town (III.3.6.1), Nyundo Parish (III.3.6.6) and Mudende
University (III.3.6.7). The Indictment charges Bagosora with the killing of Maharangari
under Article 6 (1) of the Statute. The killings at roadblocks are charged under Articles 6 (1)
and 6 (3). The remaining crimes are charged only under Article 6 (3).
2005. The Chamber has found that Aloys Ntabakuze was involved in the crimes at Kabeza
(III.3.5.4), Nyanza (III.4.1.1) and IAMSEA (III.4.1.4). These crimes are charged only under
Article 6 (3). Anatole Nsengiyumva was involved in the crimes committed in Gisenyi town
on 7 April (III.3.6.1), including Alphonse Kabiligi (III.3.6.5), as well as at Nyundo Parish
(III.3.6.6) and Mudende University (III.3.6.7), and in the Bisesero area of Kibuye prefecture
(III.4.5.1). These crimes are charged in Nsengiyumva’s Indictment under Articles 6 (1) and 6
(3). The Chamber did not find that Kabiligi was directly involved in any of the specific
criminal events alleged against him.
2006. In this chapter, the Chamber will address the legal consequences of the involvement
of the Accused in these events.
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1.
CRIMINAL RESPONSIBILITY
2007. The Indictments charge both direct responsibility under Article 6 (1) and superior
responsibility under Article 6 (3). The Prosecution in its Closing Brief has focused its legal
arguments exclusively on superior responsibility, even though it referred more generally to
each form of responsibility under Article 6 (1) in its closing arguments.2194 As mentioned
above, the Accused are mainly charged with superior responsibility. Below, the Chamber will
discuss whether they can be convicted on this basis for one of the substantive crimes,
enumerated in Articles 2 to 4, and whether they can be held responsible under Article 6 (1),
when this form of liability is alleged.
1.1
1.1.1
Legal Principles
Direct Responsibility under Article 6 (1)
2008. “Ordering” requires that a person in a position of authority instruct another person to
commit an offence. No formal superior-subordinate relationship between the accused and the
perpetrator is required. It is sufficient that there is proof of some position of authority on the
part of the accused that would compel another to commit a crime in following the accused’s
order. The authority creating the kind of relationship envisaged under Article 6 (1) of the
Statute for ordering may be informal or of a purely temporary nature.2195
2009. The Appeals Chamber has explained that an aider and abetter carries out acts
specifically directed to assist, encourage, or lend moral support to the perpetration of a certain
specific crime, which have a substantial effect on its commission.2196 The actus reus need not
serve as condition precedent for the crime and may occur before, during, or after the principal
crime has been perpetrated.2197 The Appeals Chamber has also determined that the actus reus
of aiding and abetting may be satisfied by a commander permitting the use of resources under
his or her control, including personnel, to facilitate the perpetration of a crime.2198 The
requisite mental element of aiding and abetting is knowledge that the acts performed assist
the commission of the specific crime of the principal perpetrator.2199 In cases of specific
intent crimes such as persecution or genocide, the aider and abetter must know of the
principal perpetrator’s specific intent.2200
2010. The Chamber will assess these forms where relevant in its legal findings.
2194
Id. paras. 2002-2038; T. 28 May 2007 p. 5 (“Our case is that they committed these offences, they prepared,
they planned, they ordered, they directed, they incited, they encouraged and they approved the killing of
innocent civilian Tutsi men, women and children, as well as other civilians who were considered their
accomplices.”).
2195
Semanza Appeal Judgement, paras. 361, 363.
2196
Blagojević and Jokić Appeal Judgement, para. 127. See also Simić Appeal Judgement, para. 85; Blaškić
Appeal Judgement, paras. 45-46; Vasiljević Appeal Judgement, para. 102; Ntagerura et al. Appeal Judgement,
para. 370.
2197
Blagojević and Jokić Appeal Judgement, para. 127. See also Blaškić Appeal Judgement, para. 48; Simić
Appeal Judgement, para. 85; Ntagerura et al. Appeal Judgement, para. 372.
2198
Blagojević and Jokić Appeal Judgement, para. 127. See also Krstić Appeal Judgment, paras. 137, 138, 144.
2199
Blagojević and Jokić Appeal Judgement, para. 127. See also Simić Appeal Judgement, para. 86; Vasiljević
Appeal Judgement, para. 102; Blaškić Appeal Judgement, para. 46; Ntagerura et al. Appeal Judgement, para.
370.
2200
Blagojević and Jokić Appeal Judgement, para. 127. See also Simić Appeal Judgement, para. 86; Krstić
Appeal Judgment, paras. 140, 141.
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1.1.2
Superior Responsibility under Article 6 (3)
2011. The following three elements must be proven to hold a civilian or a military superior
criminally responsible pursuant to Article 6 (3) of the Statute for crimes committed by
subordinates: (a) the existence of a superior-subordinate relationship; (b) the superior’s
knowledge or reason to know that the criminal acts were about to be or had been committed
by his subordinates; and (c) the superior’s failure to take necessary and reasonable measures
to prevent such criminal acts or to punish the perpetrator.2201
2012. A superior-subordinate relationship is established by showing a formal or informal
hierarchical relationship. The superior must have possessed the power or the authority, de
jure or de facto, to prevent or punish an offence committed by his subordinates. The superior
must have had effective control over the subordinates at the time the offence was committed.
Effective control means the material ability to prevent the commission of the offence or to
punish the principal offenders. This requirement is not satisfied by a showing of general
influence on the part of the accused.2202
2013. A superior will be found to have possessed or will be imputed with the requisite mens
rea sufficient to incur criminal responsibility provided that: (i) the superior had actual
knowledge, established through direct or circumstantial evidence, that his subordinates were
about to commit, were committing, or had committed, a crime under the statute; or (ii) the
superior possessed information providing notice of the risk of such offences by indicating the
need for additional investigations in order to ascertain whether such offences were about to
be committed, were being committed, or had been committed by subordinates.2203
2014. With respect to actual knowledge, relevant factors include: the number, type and
scope of illegal acts committed by the subordinates, the time during which the illegal acts
occurred, the number and types of troops and logistics involved, the geographical location,
whether the occurrence of the acts is widespread, the tactical tempo of operations, the modus
operandi of similar illegal acts, the officers and staff involved, and the location of the
superior at the time.2204
1.2
1.2.1
Bagosora’s Superior Responsibility
Authority – General Considerations
Introduction
2015. The Bagosora Indictment alleges that Bagosora exercised authority over the Rwandan
military, their officers and militiamen given his position as directeur de cabinet in the
Ministry of Defence, his military rank and the personal relations with the commanders of
2201
Orić Appeal Judgement, para. 18; Nahimana et al. Appeal Judgement, para. 484; Gacumbitsi Appeal
Judgement, para. 143; Ntagerura et al. Trial Judgement, para. 627; Semanza Trial Judgement, para. 400.
2202
Halilović Appeal Judgement, para. 59; Gacumbitsi Appeal Judgement, para. 143; Kajelijeli Appeal
Judgement, para. 85; Ntagerura et al. Appeal Judgement, paras. 341-342; Ntagerura et al. Trial Judgement,
para. 628; Semanza Trial Judgement, paras. 402, 415.
2203
Delalić et al. Appeal Judgement, para. 232. See also Hadžihasanović and Kubura Appeal Judgement, para.
28; Galić Appeal Judgement, para. 184; Bagilishema Appeal Judgement, paras. 37, 42; Ntagerura et al. Trial
Judgement, para. 629; Semanza Trial Judgement, para. 405.
2204
See, e.g., Delić Trial Judgement, para. 64; Strugar Trial Judgement, para. 68; Limaj et al. Trial Judgement,
para. 524.
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units most implicated in the killings. The Prosecution points to evidence of Bagosora’s active
role after the death of President Habyarimana, such as chairing meetings of the military
officers, meeting with UNAMIR and foreign officials, establishing the interim government
and meeting with Interahamwe leaders, to show his actual authority during this period.
Expert Witnesses Alison Des Forges and Filip Reyntjens depicted Bagosora as the main
authority in Rwanda in the three days following the death of President Habyarimana.2205
2016. Bagosora denied the significance of his position as well as his role. Prior to the
President’s death, he was somewhat marginalised, as evidenced by the delayed promotions
throughout his career as compared to other officers, and his retirement from active military
service between 21 September 1993 and 21 May 1994. There were also significant limitations
on his authority as directeur de cabinet. He lacked operational control and could not give
orders to chiefs of staff of the army and gendarmerie. Any seemingly prominent action he
took in that position was because of the requests of others, and as such he was mainly a
functionary. He gave illustrations to show that he was not the principal figure in the initial
period after the death of the President.2206
De Jure Authority
2017. Bagosora assumed the position of directeur de cabinet in the Ministry of Defence in
June 1992 (I.2.1). He retired from the army, as a full colonel, on 23 September 1993, but
continued in this post. Originally, he was to relinquish it when the Broad-Based Transitional
Government under the Arusha Accords was to take over and a civilian official named by the
MRND party was to take his place. However, as a consequence of the events, he remained
directeur de cabinet until he went into exile in July 1994.2207
2018. The Official Journal of the Rwandan government, issued in November 1992, listed the
various offices within the Ministry of Defence and their respective functions, and also
contains an organisational chart depicting the hierarchy and chain of command.2208 It follows
from the chart that the Minister of Defence was the direct superior in the chain of command
over the directeur de cabinet and the chiefs of staff of the army and gendarmerie. The
directeur de cabinet was part of a separate chain of command within the Ministry and was
not directly above the chiefs of staff in the hierarchy. A detailed analysis of the list of offices
within the Ministry as well as the organisational chart reflects that the post of directeur de
cabinet was the most senior one after that of the Minister in the Rwandan Ministry of
Defence. The directeur de cabinet was in charge of coordinating and supervising the day to
2205
Bagosora Indictment, paras. 4.2-4.4, 6.2, 6.43; Prosecution Closing Brief, paras. 253, 277, 1517-1530, 2018,
pp. 761-762; Des Forges, T. 10 September 2002 pp. 33-35; T. 18 September 2002 pp. 51-53; T. 25 September
48-49, 61-62, 67-68, 73-75, 80-82; Reyntjens, T. 15 September 2004 pp. 24-25, T. 16 September 2004 p. 116;
T. 17 September 2004 pp. 12-13, 66-67.
2206
Bagosora Closing Brief, paras. 506-532, 1169-1189, 1196-1229, 1783-1794, pp. 376-378; Bagosora, T. 25
October 2005 pp. 60-65, 75; T. 26 October 2005 pp. 2-3, 7; T. 27 October 2005 pp. 20, 22, 32-33; T. 7
November 2005 pp. 5, 61; T. 8 November 2005 pp. 58-59; T. 9 November 2005 p. 38. As illustrations that he
merely responded to requests, Bagosora mentioned that he was asked by Dallaire to meet with Booh-Booh,
Booh-Booh asked him to contact the political parties about selecting a new president, and Booh-Booh proposed
the meeting with the United States Ambassador.
2207
Bagosora, T. 26 October 2005 pp. 2-3, 7.
2208
Bagosora Defence Exhibit 4, pp. 1766-1769 (Journal Officiel la République Rwandaise (15 November
1992)).
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day work of the Ministry. He would replace the Minister in his absence.2209 This occurred in
April 1994 when Augustin Bizimana, the Minister of Defence, was on official mission in
Cameroon.
2019. A letter of 27 January 1993 from the then Minister of Defence, James Gasana, sought
to restrict the legal authority of the directeur de cabinet when the Minister was absent or
unavailable. It appears that this instruction was an attempt by Gasana to limit Bagosora’s
influence in the Ministry.2210 In particular, it obliged the directeur de cabinet to ensure the
proper functioning of the daily business (les affaires courantes) of the Ministry.2211 It
authorised him, among other things, to convoke and preside over meetings of the chiefs of
staff of the army and gendarmerie as well as the other directors of the Ministry.2212 After such
a meeting, the directeur de cabinet could issue operational orders to the chiefs of staff of the
army and gendarmerie if they were in writing and had also been previously approved by
those in attendance, in particular the concerned chief of staff. In all other respects, the
competence of the chiefs of staffs of the army and gendarmerie remained unaffected. Several
notable powers were not conferred by Gasana’s directive, such as the transfer or promotion of
officers and the taking of disciplinary measures.2213
2020. It is not clear whether the restrictions imposed by this letter remained in legal force
after Gasana, who was considered a moderate, fled Rwanda for security reasons in July 1993
and was replaced by Augustin Bizimana. Before Gasana left, he had also prepared an official
request to make Bagosora retire.2214 After Gasana left, Bagosora did retire from the army on
21 September 1993, but retained his post as directeur de cabinet (I.2.1).
2021. Even assuming that the limitations imposed by Gasana’s letter remained in force, the
directeur de cabinet still played an important role in presiding over joint meetings of the
2209
Id.. The relevant portion (p. 1766) of the journal reads: “Attributions propres au directeur de cabinet. Direction, coordination, animation, orientation et contrôle des activités des Conseillers, de l’Attaché de Presse
et des services d’appui relevant du Cabinet; - Distribution et suivi des affaires; - Elaboration de la politique
générale du département et suivi de la mise en œuvre des options et décisions gouvernementales dans les
domaines d’intervention du département; - Centralisation et vérification des dossiers et des actes à soumettre
au visa ou à la signature du ministère; - Supervision, en étroite collaboration avec le Directeur général, de la
programmation des activités du ministère à court et moyen termes et de l’élaboration du rapport annuel du
ministère; - Animation du Conseil du ministère; - Coordination des activités de coopération intéressant le
ministère; - Relations avec l’environnement socio-politique et les médias; - Remplacement du Ministre en cas
d’absence ou d’empêchement de ce dernier pour ce qui concerne les affaires courantes; - Toute autre tâche
confiée par le Ministre.”
2210
See Kabiligi Defence Exhibit 10 (James Gasana, La Violence Politique au Rwanda 1991-1993 (1998)), p.
14, fn. 13.
2211
Prosecution Exhibit 246 (letter of 27 January 1993 from the Minister of Defence to the directeur de
cabinet), para. 1. Copies for information were sent to the President and the Prime Minister and several other
institutions. Para. 2 defined the daily business (“Par affaires courantes, il faut entendre tous les actes
d’administration et de gestion du Ministère pour les affaires de la compétence du Ministre de la Défence non
déléguées aux Chefs d’Etats-Majors des Forces sous réserve des points suivants ... ”) and listed limitations of
authority.
2212
Prosecution Exhibit 246 (letter of 27 January 1993 from the Minister of Defence), para. 5. Minutes of such
meetings must be taken and approved by all participants.
2213
Id. para. 2 (a).
2214
See Kabiligi Defence Exhibit 10 (James Gasana, La Violence Politique au Rwanda 1991-1993 (1998)), p.
14, fn. 13 (“En plus, avant ma démission en juillet 93, j’ai déposé au Gouvernement un dossier de sa mise en
retraite. Cette mise en retraite fut décidée en août 1993. Cependant, pour des raisons qui ne sont pas claires,
mon successeur l’a maintenu comme Directeur de cabinet, et a réhabilité son influence au sein des FAR.”).
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chiefs of staff of the army and gendarmerie as well as other Ministry officials, which could
ultimately result in the issuance of operational orders to commands of these two military
forces.
De Facto Authority
2022. A careful review of Bagosora’s official activities in the first three days after the death
of President Habyarimana shows that on a number of occasions he in fact exceeded the limits
of Gasana’s letter of 27 January 1993. Ndindiliyimana convoked the first Crisis Committee
meeting on the evening of 6 April, but Bagosora was the one who ultimately chaired it and
played the dominant role.2215 It was of course consistent with his authority as directeur de
cabinet to preside over joint meetings of the army and gendarmerie chiefs of staff. However,
several of the actions taken during the meeting and afterwards were not. In particular, the
committee named Marcel Gatsinzi, the commanding officer of ESO in Butare prefecture, as
the acting army chief of staff. It was Bagosora who proposed naming an acting chief of staff
and personally signed the telegram making the appointment.2216 As noted above, the directive
from Gasana governing the role of the directeur de cabinet in the absence of the Minister
specifically excluded the authority to promote and transfer personnel without the express
authorisation of the Minister of Defence. Bagosora was clearly operating with greater
authority.
2023. On 7 April, Bagosora, on behalf of the Rwandan military, met with Jacques Roger
Booh-Booh, the Special Representative of the Secretary-General, around 1.00 a.m. (III.3.2.2)
and with the United States Ambassador at 9.00 a.m. (III.3.2.3). He claimed that he did not
initiate these meetings and, in the case of the meeting with the United States, noted that he
was accompanied by Ndindiliyimana. In the Chamber’s view, the question of whether he
initiated the meetings is besides the point: he was in fact representing the Rwandan military –
the main authority still operating in the country – to the international community and was
viewed by senior military officials as the most appropriate person to do so.
2024. In this same vein, Bagosora also became the face of the Rwandan authorities to his
own population since he signed the communiqués read over the radio at 6.30 a.m. on 7 April
and another one later that afternoon at 5.20 p.m.2217 The first communiqué was an
2215
See also Bagosora Defence Exhibit 66B (Minutes of meeting of 6-7 April 1994: “On the night of 6-7 April
1994, the directeur de cabinet of MINADEF chaired a meeting bringing together the Gendarmerie chief of staff,
MINADEF Officers [and] the Army and Gendarmerie Senior Staff.”), para. 1; Bagosora, T. 2 November 2005 p.
77 (“And in the course of the meeting, I found myself chairing the meeting at the invitation of General
Ndindiliyimana; but I should even point out that even if he had not requested me to do so, I would have chaired
the meeting. I was empowered to chair the meeting … But I was the most appropriate person, because General
Ndindiliyimana, being a gendarme, had no authority over the army, whereas in my capacity as director of
cabinet, sitting in for the minister, I could speak to the two armed forces or two forces by delegation … the
minister was absent. This was a serious crisis. If the minister would have been there, he would have done the
same thing. Since he was not present, I replaced him.”).
2216
Reyntjens, T. 17 September 2004 p. 30; Bagosora, T. 2 November 2005 pp. 79-80; T. 7 November 2005 p.
57. According to Bagosora, Colonel Mursampango, head of the administration bureau (G-1), was already
serving as the acting chief of staff on 6 April in the absence of Déogratias Nsabimana since he was the next
most senior member of the army staff. In the Chamber’s view, there was therefore no gap necessitating an
emergency appointment in the absence of the Minister of Defence.
2217
Reyntjens, T. 15 September 2004 p. 24; Bagosora, T. 7 November 2005 pp. 35, 44; T. 8 November 2005 pp.
32-34; Bagosora Defence Exhibit 103 (first communiqué of 7 April 1994); Bagosora Defence Exhibit 67
(second communiqué of 7 April 1994). Bagosora’s explanation for simply approving and issuing the second
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announcement from the Minister of Defence informing the country of the death of the
President. It also asked the armed forces to “remain vigilant, to ensure the security of the
people” and the population “to stay at home and await new orders”. The second communiqué
was issued on behalf of the armed forces. It informed the country of the army and
gendarmerie’s joint meeting at ESM earlier that day, the creation of the Crisis Committee, as
well as the their intention to ensure security, especially in Kigali, and support the country’s
political authorities.
2025. Bagosora chaired the meeting of senior military officers at ESM, which commenced
on 7 April at 10.15 a.m. (III.3.2.4). The purpose of the meeting was to gather operational
commanders of the army and gendarmerie, update them on the prevailing situation, and issue
instructions for the maintenance of order. In the Chamber’s view, this is again a much more
expansive role than simply chairing a joint meeting of chiefs of staff and Ministry officials, as
described in Gasana’s letter of 27 January 1993. Furthermore, Bagosora played the main role
at the meeting. When the participants ratified the idea of the Crisis Committee, which had
met the previous evening, Bagosora was the one who decided that Ndindiliyimana should
chair its subsequent meetings.
2026. The prominence and authority of Bagosora was also apparent in the fact that he was
the person Colonel Nubaha approached during the ESM meeting concerning the ongoing
attack against the 10 Belgian peacekeepers at Camp Kigali (III.3.2.4). He instructed Nubaha
to take care of the problem and then went to the camp to follow up on it (III.3.4). In the
Chamber’s view, Bagosora’s actions during the meeting and with respect to the attack on the
Belgian soldiers are more similar to that of a commander issuing orders and ensuring their
implementation than those of a civilian functionary.2218 After the death of the 10 Belgian
peacekeepers at Camp Kigali, Nubaha, the camp commander, was transferred at Bagosora’s
request to another post, which was ultimately more significant.2219
2027. Bagosora played a key role in facilitating the installation of the interim government
by meeting with political leaders on 7 and 8 April (III.3.7). Rusatira was resistant to
Bagosora, as a retired officer, participating in the Crisis Committee meeting on 8 April.2220
However, Bagosora ultimately performed the task of ensuring the formation of the new
government and presented it to the committee for its approval. Rusatira was ultimately
marginalised and the military Crisis Committee effectively ceased to exist after its meeting
on 8 April.2221 The interim government continued to wield authority for the duration of the
relevant events.
communiqué, rather than participate in its drafting is telling: “Well, in principle, the boss will ask the juniors
and subordinates to work. I was the chair of that meeting. I could not be attending to the drafting of the
communiqué. I had to review the draft with them afterwards to make sure it was okay.” See T. 8 November
2005 p. 8.
2218
Bagosora’s explanation for his apparent calm when confronted by General Dallaire with the death of the 10
Belgian peacekeepers is revealing: “[Dallaire] said that I was strangely calm. But even in Canadian schools it
must be the case that if you are an officer in command, you have to be calm.” T. 8 November 2005 p. 26.
2219
Id. p. 17. After learning of the death of the 10 Belgian peacekeepers on the afternoon of 7 April, Bagosora
telephoned Colonel Musampango, the G-1 for administration, and asked him to replace Colonel Nubaha as
commander of Camp Kigali. Nubaha became the commander of a base, which under normal circumstances,
according to Bagosora, would be considered a promotion since it was a more important post.
2220
Des Forges, T. 25 September 2002 pp. 110-111; Bagosora, T. 8 November 2005 pp. 58-59.
2221
Des Forges, T. 25 September 2002 p. 119; Reyntjens, T. 20 September 2004 p. 6; Bagosora, T. 9 November
2005 p. 36.
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2028. After the return of the Minister of Defence on the afternoon of 9 April and the
installation of the interim government that day, there is less evidence as to the scope of
Bagosora’s actual authority over the military. Nevertheless, it is clear that he continued to
play a prominent role and was tasked with important functions. For example, he was
responsible for ensuring the movement of the government’s money from Kigali to Gitarama
on 14 April.2222 In addition, he represented the Rwandan government on missions abroad to
purchase weapons in May and June 1994.2223 The Chamber agrees with Reyntjens that this
was a sensitive matter, involving a considerable sum of money, and thus required a person of
trust.2224
2029. Bagosora also remained an important liaison in Kigali between the Rwandan
government and the international community after 9 April.2225 He testified that Dallaire
would contact him when important personalities wanted to meet Rwandan officials. In the
first half of May, Bagosora met with Dallaire and the United Nations High Commissioner for
Human Rights at the Hôtel des Diplomates.2226 Around 13 May, Bagosora also met with
Bernard Kouchner to discuss the evacuation of orphans from certain sites in Kigali. Video
footage also depicts Bagosora giving Kouchner a tour of the Hôtel des Milles Collines to
inspect the refugees there. Around 14 May, he accompanied Kouchner to Murambi in
Gitarama prefecture, where the government was meeting, to put him in contact with Prime
Minister Kambanda.2227 Later that day, he met with Colonel Yaache, of the Ghanaian
contingent of UNAMIR, to discuss facilitating the evacuation of the orphans through
roadblocks in Kigali (III.5.1).2228 Officials abroad also continued to view Bagosora as a
prominent figure in Rwanda. Notably, Prudence Bushnell, the Deputy Assistant Secretary of
State for African Affairs of the United States Department of State, personally called Bagosora
on 28 April 1994 to ask him to put an end to the massacres.2229
2030. Finally, Bagosora was an experienced and well trained officer, fully capable of
command. He had participated in combat, worked in the field of intelligence and held
important positions, such as commander of Camp Kanombe, the most important camp, and
the Light Anti-Aircraft Battalion (I.2.1). He was viewed by others as ambitious and desirous
of more power than the post of directeur de cabinet allowed.2230 As his own testimony
reflects, he was sufficiently prominent to hold private audiences with President
Habyariamana to encourage him in 1991 to relinquish his position as chief of staff of the
army and then in 1993 to not seek re-election.2231 From the morning of 7 April, he was
2222
Bagosora, T. 9 November 2005 pp. 18-19.
Id. pp. 66-75; T. 10 November 2005 pp. 2-5. See also section III.6.1.
2224
T. 20 September 2004 pp. 8-9.
2225
The Bagosora Defence submits that these contacts were consistent with his position as directeur de cabinet
and occurred because the government was in Gitarama prefecture. He did not undertake these activities in his
personal capacity. See Bagosora Closing Brief, paras. 1224-1229. Even accepting this explanation, the Chamber
considers that these high-level contacts still indicate that he was a person of significance.
2226
Bagosora, T. 9 November 2005 pp. 40-41; Prosecution Exhibit 168 (video footage).
2227
Bagosora, T. 9 November 2005 pp. 40, 42-43; Prosecution Exhibit 168 (video footage).
2228
Bagosora, T. 9 November 2005 pp. 47-54; Prosecution Exhibit 44 (video footage). A transcript of the video
footage was played and transcribed by the court reporters during the testimony of Alison Des Forges. See T. 18
September 2002 pp. 61-62, 70-75. See also section III.2.6.2.
2229
Prosecution Exhibit 368 (telegram from 29 April 1994 from Prudence Bushnell, United States Department
of State, to United States Embassy confirming telephone conversation with Bagosora).
2230
Witness DM-25, T. 12 April 2005 pp. 32, 82; Bagosora, T. 27 October 2005 p. 20.
2231
Bagosora, T. 25 October 2005 pp. 70-76.
2223
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armed, in uniform and accompanied by a military escort, certainly not the public persona of a
simple civilian functionary. From that date, in spite of any possible formal limitations
stemming from his retirement from the army and his position as directeur de cabinet, he
projected military power and authority, consistent with his conduct, well before he was
officially recalled to active military service on 21 May 1994 (I.2.1).
Conclusion
2031. Based on the foregoing, the Chamber finds beyond reasonable doubt that, after the
death of President Habyarimana, Bagosora’s assumed the power of the highest authority in
the Ministry of Defence. He was in fact acting as the Minister of Defence. His conduct
reflects that he exercised control over the Rwandan Armed Forces, the most powerful entity
at the time in the Rwandan government, at least until the afternoon of 9 April when the
Minister of Defence returned and after the interim government was installed. His specific role
and authority over members of the military and militiamen after that time is less clear, but the
Chamber considers that he maintained influence and significance within the Rwandan
government and military for the duration of the relevant events.
1.2.2
Superior – Subordinate Relationship
2032. Many of the assailants in the attacks in the Kigali and Gisenyi area between 7 and 9
April were members of elite units, such as the Presidential Guard and the Para Commando
Battalion, as well as other soldiers and gendarmes, identified more particularly with
geographic and temporal details related to the events.
2033. In addition to the military perpetrators, civilian militiamen participated in a number of
the attacks and manned many of the roadblocks in the Kigali area. The Chamber has
determined that, in certain circumstances, civilian assailants could be considered as acting
under the authority of the Rwandan military (III.2.6.2). For the most part, these militiamen
were working in close coordination with military personnel during the attacks or at Kigali
roadblocks, where a soldier or gendarme was frequently at the head. The attack at Gikondo
Parish is illustrative. Soldiers sealed the area, gendarmes sheparded area residents to the
parish and then held the UNAMIR military observers and parish priests at gunpoint as the
militiamen brutally murdered the local inhabitants (III.3.5.8). It is clear that these civilian
militiamen were acting as an auxiliary or complementary force to the Rwandan military at
least at the time of the commission of the crimes.
2034. The pattern and frequency of the attacks against civilians, including prominent
personalities and opposition figures, the involvement of military personnel, including elite
units, in some of these attacks, as well as their close proximity to the death of President
Habyarimana and the resumption of hostilities between government forces and the RPF leave
as the only reasonable conclusion that they were organised military operations. In view of
this, as well as Bagosora’s role at the head of the Rwandan military, it follows that these
assailants were his subordinates and under his effective control.
2035. Many of the Kigali area roadblocks were exclusively manned by civilians, but they
were part of an extensive network in an area of strategic importance to the Rwandan army in
its battle for Kigali with the RPF (III.2.6.2). They were at times alongside military roadblocks
and positions or other barriers which had a soldier or gendarme at its head. These militiamen
were referred to as providing for the civil defence of Kigali. Their purpose was ostensibly to
identify enemy infiltrators. The Chamber recalls that as of 28 March 1994, a few days before
the roadblocks were erected, the ongoing discussions by high-ranking military and civilian
officials intended the civil defence efforts in Kigali to be directed by the area operational
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commander. The Chamber is mindful of its conclusion that militia groups became
increasingly uncontrollable as the conflict progressed. However, at least in their initial days,
these roadblocks could only have existed with the authorisation of the Rwandan military. The
Chamber therefore finds that those manning them from 7 to 9 April 1994 were Bagosora’s
subordinates. This does not mean that other civilian or military leaders did not also exercise
control over them.
2036. The attack at Nyundo Parish in Gisenyi prefecture appears to have been perpetrated
solely by civilian assailants (III.3.6.6). However, it mirrors other massacres of civilians,
which involved soldiers, and reflects a degree coordination and control given its
progressively increasing intensity from targeted assassinations on 7 April to wholesale
slaughter on 9 April, which featured the increased firepower of guns. The military clearly
played a role in training and distributing weapons to militia groups (III.2.6.2). This operation
must have been sanctioned by the area’s military commander, Nsengiyumva. The Chamber
therefore finds that these civilian assailants were acting under military control and were
equally subordinates of Bagosora.
2037. Finally, even if the civilian assailants could not be considered as subordinates of
Bagosora, the cooperation, presence and active involvement of military personnel alongside
their civilian counterparts rendered substantial assistance to the crimes perpetrated by the
militiamen. The soldiers and gendarmes present at the scenes of attacks or in their vicinity
would have clearly encouraged these operations with full knowledge of the crimes being
committed. Bagosora therefore would still remain liable for the crimes of these militiamen
since subordinates under his effective control would have aided and abetted them in addition
to their own direct participation in the criminal acts.2232
1.2.3
Knowledge
2038. The Chamber is satisfied that Bagosora had actual knowledge that his subordinates
were about to commit crimes or had in fact committed them. As discussed above, it is clear
that these attacks were organised military operations requiring authorisation, planning and
orders from the highest levels. It is inconceivable that Bagosora would not be aware that his
subordinates would be deployed for these purposes, in particular in the immediate aftermath
of the death of President Habyarimana and the resumption of hostilities with the RPF, when
the vigilance of military authorities would have been at its height. Furthermore, many of
these crimes took place in Kigali where Bagosora was based, including the open and
notorious slaughter at roadblocks, or in the vicinity of Gisenyi town where Nsenigyumva, the
operational commander of Gisenyi, was located.
2039. Furthermore, in the alternative, the Chamber notes that Bagosora also had reason to
know that subordinates under his command would commit crimes. On the night of 6 April,
Bagosora expressed to Dallaire during the Crisis Committee meeting that his main concern
was keeping Kigali secure and calm (III.3.2.1). The next morning, Bagosora spoke with the
United States Ambassador about the shootings that could be heard throughout Kigali the
previous night (III.3.2.3). He witnessed first-hand the ongoing attack by Rwandan soldiers at
2232
See Orić Appeal Judgement, para. 20; Nahimana et al. Appeal Judgement, paras. 485-486; Blagojević and
Jokić Appeal Judgement, paras. 280, 282. Paragraphs 6.62 and 6.66 of the Bagosora Indictment allege that
military personnel aided and abetted militiamen in the commission of crimes. The Prosecution also contends
that a superior can be responsible for the role of his subordinates in aiding and abetting crimes. See Prosecution
Closing Brief, paras. 2008-2009.
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Camp Kigali against the 10 Belgian peacekeepers (III.3.4). Moreover, he was informed on
the evening of 7 April about the murder of the Prime Minister as well as other prominent or
opposition figures, including Father Mahame (III.3.5.2). UNAMIR was receiving reports
from military observers about targeted killings by military personnel (III.2.5.5). It is difficult
to accept that similar reports were not being provided to Bagosora.
1.2.4
Failure to Prevent or Punish
2040. As noted above, these attacks were clearly organised and authorised or ordered at the
highest level of the Rwandan military. Therefore, Bagosora failed in his duty to prevent the
crimes because he in fact participated in them. There is also absolutely no evidence that the
perpetrators were punished afterwards.
2041. Finally, in view of their widespread and systematic nature, the Chamber categorically
rejects that the crimes committed by Bagosora’s subordinates were somehow spontaneous
and that the military lacked resources to put them down while fighting the RPF. To the extent
that it lacked resources, it is because these very resources had been committed by military
authorities to executing the crimes.
1.3
Kabiligi’s Superior Responsibility
2042. The Kabiligi and Ntabakuze Indictment alleges that Kabiligi exercised authority over
the Rwandan military, their officers and militiamen by virtue of his position as head of the
military operations bureau (G-3) on the army general staff. In this function, he was
responsible for planning, coordinating and ensuring the execution of military operations
throughout Rwanda and in particular had command over the operational sectors of Byumba,
Ruhengeri, Mutara and Kigali as well as the elite units, such as the Presidential Guard,
Reconnaissance Battalion and Para Commando Battalion. The Prosecution points primarily to
evidence of Kabiligi’s rank as a brigadier general, evidence of him or the G-3 bureau issuing
orders and directing combat, as well as documents relating to his military role in exile to
demonstrate his actual command authority.2233
2043. The Kabiligi Defence argues that the Prosecution has not presented any credible
evidence to prove that Kabiligi exercised any actual command authority as head of the
military operations bureau (G-3). Any role Kabiligi played after July 1994 has no relevance
to his actual authority during the relevant events. Evidence from the Defence’s military
expert as well as from Rwandan and foreign military officers familiar with the scope of a G3’s authority in the Rwandan army and foreign militaries, shows that the head of the G-3
bureau lacked operational command and the power to take disciplinary measures.2234
1.3.1
De Jure Authority
2044. Kabiligi held the position of head of the military operations bureau (G-3) on the army
staff from September 1993 until leaving Rwanda in July 1994 (I.2.2). He was promoted to
brigadier general on 16 April 1994 and was one of the highest ranking officers in the
2233
Kabiligi and Ntabakuze Indictment, paras. 4.2-4.4, 6.31; Prosecution Closing Brief, paras. 695-725, 2018,
pp. 783-789.
2234
Kabiligi Closing Brief, paras. 1318-1493.
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Rwandan army. Prior to his appointment as G-3, he served as the commander of the Byumba
operational sector.2235
2045. The Prosecution did not bring a military expert to define the scope of Kabiligi’s
authority as head of the operations bureau (G-3). Alison Des Forges, a Prosecution expert in
Rwandan history, provided some testimony on his authority as G-3, but it was mainly based
on her review of an interview with Kabiligi during his custodial interview in 1997. As that
interview had previously been excluded as evidence because it was taken in violation of
Kabiligi’s fair trial rights, the Chamber declared that it would accord no weight to expert
opinions based exclusively on that interview.2236 Filip Reyntjens, another Prosecution expert
on Rwandan history, testified that Kabiligi had a reputation as an excellent operational
soldier. However, he described Kabiligi’s function as G-3 as a “bureaucrat” or “an office job”
and stated that he “would not, for instance, fight a war on the front, would not command an
operational unit on the front”.2237 According to Reyntjens, Kabiligi had no ability to give
orders to the Presidential Guard.2238 He also confirmed a 1998 interview in which he said that
he did not have any information about Kabiligi’s involvement in the genocide, but
acknowledged that he has not studied his role in particular.2239
2046. According to Lieutenant Colonel Jacques Duvivier, Kabiligi’s Belgian military
expert, each of the bureaus on the army staff (G-1 to G-4) was a tool available to the chief of
staff to provide him with necessary information and proposals so that the chief of staff could
respond to a given situation and issue orders. The role of the G-3 in this process was to
provide information concerning training and military operations. Once the chief of staff has
taken a decision and issued orders for a military operation, the G-3 transmitted them to
operational commanders and oversaw their implementation. However, the G-3 did not have
any direct authority over the operational commanders in the chain of command. The chief of
staff maintained the responsibility for the execution of his orders.2240
2047. In its Closing Brief, the Prosecution concedes that Kabiligi may have possessed
limited de jure authority.2241 The G-3’s lack of operational command was also testified to by
several other Defence witnesses than Duvivier: Witnesses FC-77, KP-22, FLA-4, KVB-19,
2235
Some of Kabiligi’s direct subordinates, namely the staff officers within the G-3 Bureau, are depicted in an
organisational chart of the army staff as well as on a list of officers in the Rwandan army. See Prosecution
Exhibit 454 (Rules of the Rwandan Army), p. 7; Nsengiyumva Defence Exhibit 15 (Situation of officers in the
Rwandan Army as of 1 March 1994).
2236
Decision on Kabiligi Motion for the Exclusion of Portions of Testimony of Prosecution Witness Alison Des
Forges (TC), 4 September 2006, paras. 2, 5. See also Decision on Prosecutor’s Motion for the Admission of
Certain Materials Under Rule 89 (C), 14 October 2004, para. 21 (holding that Kabiligi’s statement was taken in
violation of his right to assistance of counsel).
2237
T. 21 September 2004 p. 23.
2238
Id. p. 24.
2239
Id. p. 22; T. 22 September 2004 p. 51; Bagosora Defence Exhibit 134 (Reyntjens’s interview).
2240
Kabiligi Defence Exhibit 129B (Expert Report of Colonel Duvivier), pp. 3-7, 10. Colonel Duvivier worked
at the beginning of his military career as an assistant staff officer on the Belgian general staff. He was also a
former instructor at ESM in Rwanda from 1983 to 1988 and from 1993 to 14 April 1994. He stated that
organisational systems for the general staff is nearly universal. T. 6 December 2006 pp. 37-41, 44, 48-52.
2241
Prosecution Closing Brief, para. 2018 (“General Kabiligi was de jure among the top 5 highest ranking
officers in the Rwanda army, and although he arguably possessed limited direct hierarchal command over an
administrative assignment of specific troops within his official post, within his de jure command he enjoyed a
de facto status of superior responsibility under 6 (3), partly as a consequence of charismatic influence, partly in
obeisance to his official post of G3, and partly by his reputation and standing as a General, one of the top 5
officers in the entire army.”).
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LAX-2, LCH-1, LX-65, YC-3, YUL-39, SX-1, A-8 and Colonel Luc Marchal.2242 These
witnesses included a high ranking French officer (Witness SX-1), who was familiar with the
functioning of the G-3 office of the French army. Duvivier and Marchal were familiar with
the structure of both the Belgian army and the Rwandan army, which were similarly
organised. Also Rwandan officers who had worked at one point on the G-3 staff (Witnesses
YC-3 and FC-77) gave similar evidence. The remaining witnesses were also Rwandan army
officers. Even Witness XXJ, which the Prosecution is relying heavily on in relation to
Kabiligi’s command authority, appeared to make a distinction between the general
regulations and the factual situation under the extraordinary situation in 1994, focusing on the
latter.2243 In the Chamber’s view, the Prosecution has not proven beyond reasonable doubt
that Kabiligi had de jure authority over various units of the Rwandan Armed Forces in their
conduct of military operations.
1.3.2
De Facto Authority
2048. According to the Prosecution, Kabiligi had de facto authority over various units. This
flowed from his rank, position, reputation and charismatic influence.2244 The main evidence
of Kabiligi’s exercise of command comes from Prosecution Witness XXJ, a Hutu
lieutenant.2245 The witness, who was an artillery officer, testified that, from mid-May to midJune, he received orders directly from Kabiligi over the radio and once in person at army
headquarters in relation to firing on specific targets during ongoing military operations
against the RPF. In his view, as the G-3 officer of the general staff, Kabiligi had overall
command of military operations in the city of Kigali, as well as responsibility for operations
at a national level.2246 The Kabiligi Defence disputes this evidence and points to Defence
2242
Witness FC-77, T. 8 September 2006 p. 11; Witness KP-22, T. 26 September 2006 pp. 82-83; Witness FLA4, T. 6 September 2006 pp. 74-75, 77 and T. 7 September 2006 pp. 11, 15, 25; Witness KVB-19, T. 27
September 2006 pp. 15-16, 24 and T. 28 September 2006 p. 22; Witness LAX-2, T. 10 November 2006 pp. 4,
10-11; Witness LCH-1, T. 3 October 2006 pp. 28-31, 34-35; Witness LX-65, T. 26 September 2006 pp. 7, 9-10,
17-18; Witness SX-1, T. 17 January 2007 pp. 33-34; Witness YC-3, T. 7 November 2006 pp. 40-41; Witness
YUL-39, T. 15 November 2006 p. 32; Marchal, T. 6 December 2006 pp. 5-6; Witness A-8, T. 10 May 2005 pp.
30-31.
2243
Witness XXJ, T. 15 April 2004 p. 100 (“… You see, with all, there was a change in structure. When fighting
intensified, we did not continue following the ordinary structure, and a case in point is what happened in Kigali
town. Kabiligi led operations there, and it’s obvious that he was the person who was capable of directing
combat. … But that was not maybe because it was his operational sector, but maybe it was because he was the
only one who had demonstrated capacity to defend Kigali town”.).
2244
Prosecution Closing Brief, para. 2018, see also para. 702 (“Gratien Kabiligi was a hands-on officer. His
command was notable for the fact that his domain included not only the planning and map rooms of the
headquarters, but also the tents and artillery posts of the battlefield. His military and strategic abilities were said
to be second to no-one in the Rwandan army and he had the respect of his subordinates.”).
2245
The Prosecution also pointed to Witnesses LAI, XXQ, CE, AAA, DK-11 and HN. Witness LAI testified
about Kabiligi’s alleged distribution of weapons on 28 January 1994 (III.2.4.3). Witness XXQ referred to
Kabiligi’s participation in a February 1994 meeting in Ruhengeri prefecture (III.2.4.4). Witness CE testified
about soldiers cheering Kabiligi’s arrival at Camp Kigali (III.6.2). Witness AAA allegedly participated in two
meetings with Kabiligi at the Kigali-Ville prefecture office (III.4.1.11) and on Mount Huye (III.4.1.12). Witness
DK-11 gave testimony about the G-3 bureau issuing instructions to the Para Commando Battalion concerning
the movement of Tutsi refugees from ETO to Nyanza hill (III.4.1.1). Witness HN referred to Kabiligi issuing
instructions to operational commanders to use Interahamwe in operations (III.2.6.2). In other sections of the
judgement, the Chamber either did not accept the evidence of these witnesses on these incidents or did not find
that it resulted in command authority for Kabiligi.
2246
T. 14 April 2004 pp. 45-48; T. 15 April 2004 pp. 99-100; T. 16 April 2004 pp. 9-10, 13-14, 16, 18-19;
Prosecution Exhibit 208 (personal identification sheet). Witness XXJ stated that the Field Artillery Battalion, the
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Witness FLA-4, a Hutu artillery officer, who stated that Witness XXJ was never stationed on
Mount Kigali and moreover would have received his orders from his unit commander, not
Kabiligi.2247
2049. Witness XXJ’s evidence of receiving orders directly from Kabiligi is uncorroborated
and contradicted by Witness FLA-4. His evidence concerning radio contact by Kabiligi is
general, and the single incident where the witness met with him at army headquarters is not
sufficient to demonstrate that Kabiligi was the operational commander of Kigali. The
Chamber thus accords limited weight to his testimony concerning the scope of Kabiligi’s
authority. Nevertheless, Witness FLA-4 acknowledged seeing Kabiligi meeting for about five
minutes with the commanding officer of the artillery unit, Major Mutabera, at Mount Kigali
in May 1994.2248 Other witnesses, including Witnesses STAR-1, VIP-1, DCH and Jean
Kambanda, attested to Kabiligi’s presence on the ground in relation to military operations.2249
Witness STAR-1, a Hutu officer in the Huye Battalion, saw Kabiligi meet briefly in the field
on one occasion with the Kigali-west sector commander concerning a counter offensive
against the RPF.2250 Witness VIP-1, an officer assigned to Opération Turquoise, testified that,
in mid-July 1994 General Augustin Bizimungu, the chief of staff of the Rwandan army, told
him that Kabiligi was retreating with the last group of combatants that had been expelled
from Kigali.2251
2050. Considered together, these witnesses reflect that Kabiligi might have played a more
active role in the conduct of military operations than simply serving as a desk officer.
However, the evidence is not clear as to the exact nature of his role in these incidents, for
example, whether it entailed command authority. In addition, even if the testimonies relied on
by the Prosecution established that he had operational command, they do not show that he
participated in operations that resulted in civilian casualties.2252 Furthermore, the evidence is
consistent with the G-3 function of monitoring all activities relating to military operations.2253
2051. Jean Kambanda, the Prime Minister of Rwanda, stated that he was told that, as a G-3,
Kabiligi was in command of all troops in Kigali.2254 The Chamber accords his opinion on
Reconnaissance Battalion, the military police, the Presidential Guard, the Para Commando Battalion and the
Logistical Battalion were all based in Kigali and therefore came under Kabligi’s command. The witness
suggested, however, that Kabiligi lacked authority over the Rulindo operational sector which neighboured
Kigali. This undercuts the Prosecution’s theory that he had an overall command role over the entire Rwandan
army.
2247
Kabiligi Closing Brief, paras. 871-882; Witness FLA-4, T. 6 September 2006 pp. 73-76; Kabiligi Defence
Exhibit 91 (personal identification sheet). Witness FLA-4 also appeared as Nsengiyumva Defence Witness
OME-1.
2248
T. 7 September 2006 pp. 14-15.
2249
In addition, by way of analogy, the Prosecution refers to Witness YUL-39, a Hutu officer, who was familiar
with the functions of an S-3 on the staff of a commander of an operational sector. The witness stated that an S-3
was in contact with troops on the ground. See Prosecution Closing Brief, para. 719, citing T. 15 November 2006
pp. 56-57. In the Chamber’s view, the fact that Witness YUL-39, as an S-3, may have been actively involved on
the ground does not mean that the same parallel exists at the G-3 level or with Kabiligi.
2250
T. 24 February 2006 pp. 35-36.
2251
T. 17 January 2007 pp. 54, 71-73.
2252
Witness XXJ testified about an alleged order given by Kabiligi to search an area in the vicinity of Saint
André College where orphans were located and where intense fighting was ongoing nearby between the
Rwandan army and the RPF. The witness heard much later that the orphans were killed. The Chamber did not
find this evidence reliable (III.4.1.14).
2253
Kabiligi Defence Exhibit 129B (Expert Report of Colonel Duvivier), pp. 3-4.
2254
T. 13 July 2006 pp. 10, 16; T. 14 July 2006 p. 45.
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Kabiligi’s authority limited weight since he did not identify his sources of information and
acknowledged a lack of familiarity with military matters.2255 The Prosecution also points to
Witness DCH, an Interahamwe, who claimed that he worked with soldiers under Kabiligi’s
authority at Camp Kigali.2256 The witness’s evidence on this point is limited and
uncorroborated. The Chamber has raised questions about various aspects of Witness DCH’s
testimony in other parts the judgement (III.2.8; III.4.1.5; III.4.2.3).
2052. The Prosecution also refers to Witness A-8, a Hutu gendarmerie officer with the
Ministry of Defence, who stated generally that Kabiligi as G-3 would convey orders from the
chief of staff to operational commanders. The witness, however, viewed Kabiligi as an
adviser.2257 In addition, reference is made to Witness RAS-1, a Hutu gendarmerie officer,
who testified that the G-2 and G-3 on the general staff would work in close collaboration so
that operations could be carried out effectively with the necessary intelligence.2258 However,
the witness spoke only in general terms and was not questioned about this specifically in
relation to Kabiligi or the army general staff. In any event, in the Chamber’s view, this
evidence is not inconsistent with the description of the position of G-3, as set forth above.
2053. To further establish Kabiligi’s command authority, the Prosecution highlights two
letters emanating from the G-3 bureau. One is a letter drafted by Kabiligi after giving a
UNAMIR military observer a tour of the army’s weapons depots.2259 This does not give any
indication of his command authority. The other letter, which is addressed to the Minister of
Defence, concerns the minutes of a meeting on the implementation of a civil defence
program.2260 The meeting was held on 29 March 1994 between Déogratias Nsabimana, the
army chief of staff, Tharcisse Renzaho, the prefect of Kigali, and Félicien Muberuka, who
was the operational commander of Kigali. Kabiligi was in Egypt at the time (III.6.2). The
letter was signed by Nsabimana, and the sole connection to Kabiligi is that it was printed on
the letterhead of the G-3 bureau. In the Chamber’s view, this letter may show that Kabiligi’s
office played some role in preparation of the civil defence program, but it does not
demonstrate his authority over members of the armed forces or militiamen.
2054. Finally, the Prosecution submits that evidence of Kabiligi’s appointment in August
1994 as deputy commander, as well as commander of the Bukavu Squad, of the reorganised
Rwandan army and his other subsequent political activities are a reflection of the de facto
authority he enjoyed in Rwanda.2261 A letter of 11 August 1994 from Augustin Bizimana, the
Minister of Defence, to all field and general officers listed Kabiligi as the Rwandan army’s
deputy commander and as the commander of the Bukavu squad. The document, however,
concerned the “reorganization of the Rwandan Armed Forces”. In the Chamber’s view, this
appointment may be a recognition of Kabiligi’s skills as a military commander, but it does
not prove beyond reasonable doubt that this had in fact been his actual role as G-3.
2255
T. 13 July 2006 p. 16.
Prosecution Closing Brief, para. 717; T. 18 June 2004 p. 32.
2257
T. 9 May 2005 p. 53; T. 10 May 2005 p. 31.
2258
T. 13 October 2005 pp. 65-66; T. 18 October 2005 p. 24.
2259
Prosecution Exhibit 379 (Letter of 13 January 1994).
2260
Prosecution Exhibit 38 (Letter from Déogratias Nsabimana to the Minister of Defence, dated 30 March
1994).
2261
Prosecution Closing Brief, paras. 700, 724, 867-873, 877-879; Prosecution Exhibit 339 (Letter from
Augustin Bizimana of 11 August 1994: Reorganisation of the Rwandan Armed Forces); Prosecution Exhibit 415
(RDR: Minutes of founding meeting); Prosecution Exhibit 457 (Report of the High Command (2-6 September
1994)).
2256
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2055. In the same vein, the minutes of a meeting from 2 to 6 September 1994 of the
Rwandan army high command in Goma and another meeting from 29 March to 3 April 1995
to create a political organisation for refugees simply reflect that Kabiligi was present.
Participation in these meetings shows that he remained committed to returning the former
government to power in Rwanda. They do not provide any clarity on Kabiligi’s actual
authority as G-3 during the relevant events in Rwanda. It also does not necessarily follow
from the minutes alone that Kabiligi was in agreement with every sentiment expressed during
the meetings.
1.3.3
Conclusion
2056. The Prosecution has not proven beyond reasonable doubt that Kabiligi exercised
authority over the Rwandan Armed Forces, in particular the operational sectors of Byumba,
Ruhengeri, Mutara and Kigali as well as the Presidential Guard, Reconnaissance Battalion
and Para Commando Battalion, beyond his subordinates in the operations bureau (G-3) of the
army staff. The evidence does not show that these subordinates committed crimes at points
when Kabiligi exercised effective control over them. There is some evidence that Kabiligi
was involved in connection with operations conducted against the RPF in Kigali. The
Prosecution has not proven that these related to the targeting of civilians.2262
1.4
1.4.1
Ntabakuze’s Superior Responsibility
Authority – General Considerations
Introduction
2057. The Kabiligi and Ntabakuze Indictment alleges that Ntabakuze exercised authority
over the Rwandan military, their officers and militiamen by virtue of his position as
commander of the Para Commando Battalion, an elite unit within the Rwandan army.2263 The
Ntabakuze Defence concedes that Ntabakuze commanded the Para Commando Battalion. It
disputes, however, that he had operational command over the CRAP platoon (Commando de
Recherche et d’Action en Profondeur).2264
2262
It is notable that the Prosecution was asked during its final submissions what remained of the case against
Kabiligi if the alibi were accepted. The Prosecution responded that he would still be liable for the charge of
conspiracy (IV.2.1) and events on which Witness DY testified (III.4.1.8-9; III.4.4.2). It mentioned his superior
responsibility for the actions of Colonel Kanyandekwe, who was acting as G-3 in his absence, in relation to the
Nyanza massacre. The Prosecution did not refer to his superior responsibility in general. See T. 1 June 2007 pp.
35, 43-45. The Chamber has not found that Kabiligi had effective control over Kanyandekwe during his absence
(III.4.1.1).
2263
Kabiligi and Ntabakuze Indictment, paras. 4.6, 4.8, 6.31. Prosecution Closing Brief, paras. 741-747, 2018,
pp. 789, 883.
2264
Ntabakuze Closing Brief, paras. 471, 473-474, 2481, 2482-2483. See also Ntabakuze Defence Exhibit 235
(deposition of Ntabakuze), pp. 5-6, 41-46. This is annexed to the Closing Brief. The Ntabakuze Defence also
disputes that he had any control over the battalion’s Second Company when it was temporarily under the
command of the Presidential Guard during the events of 6-7 April (III.3.3.3). See Ntabakuze Closing Brief, para.
471.
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De Jure Authority
2058. There is no dispute that Ntabakuze was the de jure commander of the Para
Commando Battalion.2265 The main question for the Chamber is whether he also had
authority over the CRAP platoon. The listing of officers in the Rwandan army clearly places
the CRAP platoon within the section of the document concerning the Para Commando
Battalion.2266 A Ntabakuze Defence Exhibit detailing the organisation of the Para Commando
Battalion lists it as under Ntabakuze’s command as well.2267 Nevertheless, according to
Ntabakuze and Witnesses DK-11, the CRAP platoon was assigned to the Para Commando
Battalion only for administrative purposes and received its orders through Ntabakuze directly
from the army general staff.2268 Witness BC, a member of the CRAP platoon, also stated that
most of the orders to the unit came from army headquarters through Ntabakuze.2269
2059. The Chamber does not exclude that many of the orders tasking the CRAP platoon
with assignments originated from army headquarters. This is logical, bearing in mind its
specialised function, such as undertaking covert operations, often behind enemy lines.2270
According to Witness BC, the platoon’s orders came through Ntabakuze, who oversaw the
operations and received mission reports after their completion.2271 Under Rwandan law,
Ntabakuze remained legally accountable for the orders he issued.2272 In the Chamber’s view,
this evidence sufficiently demonstrates that the CRAP platoon was an integral part of the Para
Commando Battalion under Ntabakuze’s de jure authority.
De Facto Authority
2060. It is not disputed that the Para Commando Battalion was well trained, disciplined and
loyal to Ntabakuze.2273 With respect to the CRAP platoon, Ntabakuze’s actual authority over
2265
See also Nsengiyumva Defence Exhibit 15 (Situation of officers in the Rwandan Army as of 1 March 1994).
Id.
2267
Ntabakuze Defence Exhibit 157 (organisation of the Para Commando Battalion).
2268
Ntabakuze, T. 21 September 2006 p. 67; Witness DK-11, T. 19 July 2005 pp. 18, 40; T. 20 July 2005 pp.
15-16.
2269
Witness BC, T. 1 December 2003 pp. 25, 47.
2270
Witness BC and Ntabakuze detailed the specialised missions of the CRAP platoon. See Witness BC, T. 1
December 2003 p. 28; Ntabakuze, T. 21 September 2006 pp. 66-67.
2271
Witness BC, T. 1 December 2003 p. 47 (“Q. In your statement you say that the CRAP platoon received most
of its instructions from the army headquarters, is that correct? A.Yes. Yes, for the most part, but that was done
with the blessing of the commander of the paracommando battalion, Aloys Ntabakuze. Q. When you say, “with
the blessing”, are you implying that the commander supervised it, that it was under the supervision, I mean the
supervision of the execution of the mission of that CRAP? A. Yes. After the mission, the reports were sent to
the battalion commander. Q. But, in principle, if I understand you correctly, you were under the supervision of
the headquarters as far as your operations were concerned? A. The headquarters gave us missions through Major
Ntabakuze’s office and he explained the missions to us and then placed us on mission, and Lieutenant
Kanyamikenke gave Ntabakuze a report after the mission, and the report was further forwarded to the army
headquarters.”). Kanyamikenke was the commander of the CRAP Platoon.
2272
Prosecution Exhibit 155 (Presidential Act No. 413/02, 13 December 1978), p. III, Art. 14, which reads: “In
the exercise of authority, a soldier shall: … Take full responsibility for the orders given and for their execution,
such responsibility cannot be separated from the responsibility of subordinates”).
2273
Ntabakuze Closing Brief, paras. 473-474 (“During the war, the Para Commando Battalion was well known
to be one of the most effective and disciplined units among the Rwandan Armed Forces (FAR). Para
Commando soldiers were very proud of being members of the unit …”). See also Witness DM-26, T. 1
December 2006 p. 23; Witness DK-120, T. 4 July 2005 p. 70; Witness DH-85, T. 18 April 2005 pp. 31-34;
Witness DH-68, T. 30 June 2005 pp. 19-20.
2266
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its members is reflected in his orders to the platoon on the night of 6 April to secure the crash
site of the President’s plane (III.3.5.1) and its joint deployment with other units of the Para
Commando Battalion at places such as the Sonatube junction (III..4.1.1). Notably, Colonel
Muberuka, the Kigali operational commander, ordered Ntabakuze to deploy the CRAP
platoon to the crash site within minutes of the event, not the army staff. Moreover, Ntabakuze
stated that he reinforced the Third Company at the Sonatube junction with the CRAP
platoon.2274 Furthermore, members of the CRAP platoon were trained by the same staff that
trained the Para Commando Battalion’s other units and were hand-picked from its various
companies.2275
Conclusion
2061. The Chamber finds beyond reasonable doubt that Ntabakuze had authority over
members of the Para Commando Battalion, including its CRAP platoon. The Prosecution has
not established, as alleged in the Indictment, that he had authority over other parts of the
Rwandan military or its officers while serving as head of the battalion.2276
1.4.2
Superior – Subordinate Relationship
2062. The perpetrators of the attacks at Kabeza (III.3.5.4), Nyanza hill (III.4.1.1) and
IAMSEA (III.4.1.4) included members of the Para Commando Battalion, as well as its CRAP
platoon. The attacks reflect military organisation and, in view of the elite nature of these units
as well as their discipline, would only have occurred with the authorisation or orders of
higher military authorities, in particular the commander of their battalion, Ntabakuze. As
discussed above, the military troops committing crimes were clearly Ntabakuze’s
subordinates acting under his effective control.
2063. The three attacks also included members of civilian militia groups acting as an
auxiliary or complementary force to the soldiers. The Chamber determined that in certain
circumstances civilian assailants could be considered as acting under the authority of the
Rwandan military (III.2.6.2). These militiamen were working in close coordination with
military perpetrators during these attacks. The Chamber is satisfied that at the time of the
crimes the militiamen were also Ntabakuze’s subordinates acting under his effective control.
2064. Finally, even if the civilian assailants could not be considered as subordinates of
Ntabakuze, the cooperation, presence and active involvement of military personnel alongside
their civilian counterparts rendered substantial assistance to the crimes perpetrated by the
militiamen. The soldiers and gendarmes present at the scenes of attacks or in their vicinity
would have clearly encouraged these operations with full knowledge of the crimes being
committed. Ntabakuze therefore would still remain liable for the crimes of these militiamen
2274
See Ntabakuze, T. 18 September 2006 p. 29; T. 21 September 2006 p. 9.
Witness BC, T. 1 December 2003 p. 25; Witness DM-26, T. 1 December 2006 pp. 21-22; Witness DH-85,
T. 14 April 2005 p. 46; Witness DH-68, T. 29 June 2005 p. 96; Witness DK-11, T. 19 July 2005 p. 7.
2276
The Chamber is aware that Ntabakuze also briefly commanded the Gitarama operational sector between 3
and 17 July 1994. Ntabakuze, T. 18 September 2006 pp. 10-11. However, the Prosecution has not presented
evidence liking him to crimes committed during that period.
2275
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since subordinates under his effective control would have aided and abetted them in addition
to their own direct participation in the criminal acts.2277
1.4.3
Knowledge
2065. The Chamber is satisfied that Ntabakuze had actual knowledge that his subordinates
were about to commit crimes or had in fact committed them. As discussed above, it is clear
that these attacks were organised military operations requiring authorisation, planning and
orders from the highest levels. It is inconceivable that Ntabakuze would not be aware that his
subordinates would be deployed for these purposes, in particular in the immediate aftermath
of the death of President Habyarimana and the resumption of hostilities with the RPF, when
the vigilance of military authorities would have been at its height.
2066. Furthermore, the location of the massacres at Nyanza and IAMSEA were near
military positions of the Para Commando Battalion, and Kabeza is located near Camp
Kanombe where the battalion was based. Moreover, in the case of Nyanza hill, there was
extensive radio communication between the Para Commando position at Sonatube junction,
Ntabakuze and Rwandan army headquarters concerning a smaller group of refugees stopped
there earlier in the day. The Chamber cannot accept that Ntabakuze would not have been
informed about the significantly larger group a few hours later.
1.4.4
Failure to Prevent and Punish
2067. As noted above, these operations were clearly organised and authorised or ordered at
the highest level of the Para Commando Battalion. Therefore, Ntabakuze failed in his duty to
prevent the crimes because he in fact participated in them. There is absolutely no evidence
that the perpetrators were punished afterwards.
1.5
1.5.1
Nsengiyumva’s Responsibility
Authority – General Considerations
Introduction
2068. The Nsengiyumva Indictment alleges that Nsengiyumva exercised authority over the
Rwandan military, their officers and militiamen, in particular in the Gisenyi operational
sector, by virtue of his position, his rank and personal relations and shared beliefs with
individuals implicated in the killings.2278
2069. The Nsengiyumva Defence accepts that from June 1993 to June 1994, Nsengiyumva
was the Gisenyi operational sector commander and had authority over the soldiers under him.
2277
See Orić Appeal Judgement, para. 20; Nahimana et al. Appeal Judgement, paras. 485-486; Blagojević and
Jokić Appeal Judgement, paras. 280, 282. Paragraphs 6.44 and 6.48 of the Kabiligi and Ntabakuze Indictment
allege that military personnel aided and abetted militiamen in the commission of crimes. The Prosecution also
contends that a superior can be responsible for the role of his subordinates in aiding and abetting crimes. See
Prosecution Closing Brief, paras. 2008-2009.
2278
Nsengiyumva Indictment, paras. 4.2, 4.4-4.5, 6.36; Prosecution Closing Brief, paras. 435, 655, 741-747,
2018, pp. 847, 896.
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It disputes his authority over the Bigogwe Commando Training Centre and Bututori training
facility. It further argues that the Indictment fails to adequately identify his subordinates.2279
Notice
2070. It follows from case law that, if the Prosecution intends to rely on the theory of
superior responsibility to hold an accused criminally responsible under Article 6 (3) of the
Statute, the Indictment should plead, among other things, that he is the superior of
sufficiently identified subordinates over whom he had effective control.2280 A superior need
not necessarily know the exact identity of his subordinates who perpetrate crimes in order to
incur liability under Article 6 (3).2281
2071. The Indictment adequately identifies Nsengiyumva’s subordinates alleged to have
committed the crimes. Some are named in various paragraphs throughout the Indictment in
connection with the attacks.2282 In most cases, the participants who physically perpetrated the
crimes are identified in the Indictment and the Pre-Trial Brief dealing with the specific crimes
by broad category, such as Interahamwe or soldiers, and then further identified with
geographic and temporal details. In the context of this case, it is clear that the references to
soldiers are those within the Gisenyi operational sector. Given the nature of the attacks, the
Chamber is satisfied that the Prosecution provided an adequate identification.2283
De Jure and De Facto Authority
2072. It is not disputed that Nsengiyumva was the army commander of the operational
sector of Gisenyi from June 1993 until June 1994, when he became the liaison officer with
Opération Turquoise.2284 Therefore, the Chamber is satisfied that soldiers assigned to Gisenyi
operational sector were under Nsengiyumva’s command.
2073. The remaining questions for the Chamber are whether his authority also extended to
the Bigogwe Commando Training Centre and Bututori training facility in Gisenyi prefecture.
According to Nsengiyumva, both of these facilities answered directly to the army general
staff.2285 Major Willy Biot, a Belgian military adviser assigned to Bigogwe camp, testified
that Butotori fell under Bigogwe’s command.2286 He did not indicate whether Bigogwe camp
fell under Nsengiyumva’s authority.
2279
Nsengiyumva Closing Brief, paras. 149-194.
Muvunyi Appeal Judgement, para. 19; Nahimana et al. Appeal Judgement, para. 323; Ntagerura et al.
Appeal Judgement, paras. 26, 152.
2281
Muvunyi Appeal Judgement, para. 55; Blagojević and Jokić Appeal Judgement, para. 287.
2282
For example, with respect to civilian militiamen, paragraphs 6.13 and 6.22-6.24 of the Indictment
specifically mention Bernard Munyagishari, Omar Serushago, Barnabé Samvura, Mabuye and Thomas
Mugiraneza.
2283
See, e.g., Muvunyi Appeal Judgement, paras. 55-56.
2284
Nsengiyumva, T. 4 October 2006 p. 17, T. 11 October 2006 p. 21.
2285
T. 5 October 2006 p. 70; T. 9 October 2006 p. 73; X-6, T. 13 October 2006 p. 19.
2286
T. 21 September 2006 p. 75. See also Biot, T. 21 September 2006 p. 82 (“Q. And during this evacuation, did
you seek the assistance of the local ops commander? A. No, I always worked with commanding officer,
Nzungize, firstly, because I had very good contacts with the colonel as part of my work. We saw each other on
almost a daily basis. Furthermore, in order for me to benefit from Rwandan army forces escorts from Butotori,
which was under the Bigogwe camp, it was very normal for me to make a request to the camp commander.”).
See also Nsengiyumva, T. 9 October 2006 p. 3.
2280
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2074. The Prosecution did not specifically address the issue of whether the Bigogwe and
Bututori facilities came under Nsengiyumva’s command in its Closing Brief. Omar
Serushago, an Interahamwe leader, stated that Colonel Bahufite, the Gisenyi operational
commander oversaw training at Bigogwe beginning in June 1993 which continued when
Nsengiyumva took over as operational commander.2287 The fact that Serushago attributes
training at these camps to the operational sector commander does not definitively indicate
that the camps, themselves, were under Nsengiyumva’s authority as opposed to the army
general staff.
2075. The Chamber notes that military schools such as ESM and ESO came directly under
army headquarters.2288 Furthermore, the officers at Butotori and Bigogwe are not located
under the Gisenyi operational sector heading in the document listing the place of service of
the officers in the Rwandan army.2289 While it is conceivable that these locations came under
Nsengiyumva’s command by virtue of their location in the Gisenyi operational sector, the
record does not conclusively show this. The Chamber however is satisfied that, given
Nsengiyumva’s role as the area’s operational commander, these soldiers would in fact be
operating under his authority when engaged in military operations in the area.
Conclusion
2076. The Chamber finds beyond reasonable doubt that Nsengiyumva had command over
soldiers within the Gisenyi operational sector. The Prosecution has not proven that members
of other units of the Rwandan army, including at Bigogwe or Butotori training facilities, were
under his general authority, except when they were involved in military operations.
1.5.2
Superior – Subordinate Relationship
2077. The assailants participating in the targeted killings in Gisenyi town on 7 April
(III.3.6.1), including the murder of Alphonse Kabiligi (III.3.6.5), and the massacre at
Mudende University (III.3.6.7) included soldiers from the Gisenyi operational sector. Given
the nature and pattern of these assaults as well as their similarity to parallel events in Kigali,
the Chamber has no doubt that they were part of an organised military operation conducted
on orders or with the authorisation of the highest military authorities, including
Nsengiyumva, the area’s operational commander. The soldiers were clearly Nsengiyumva’s
subordinates acting under his effective control.
2078. These attacks also included the participation of militiamen. The Chamber has
determined that in certain circumstances civilian assailants could be considered as acting
under the authority of the Rwandan military (III.2.6.2). These militiamen were working in
close coordination with military assailants during the attacks. The Chamber is satisfied that at
the time of the crimes the militiamen were also Nsengiyumva’s subordinates acting under his
effective control, in particular bearing in mind his involvement in the arming and training of
civilians both before and after 6 April 1994 (III.2.6.2; III.4.5.1)
2287
T. 18 June 2003 pp. 80-81.
This is reflected in the organisational chart which forms part of Prosecution Exhibit 454 (Rules of the
Rwandan Army), p. 5.
2289
Nsengiyumva Defence Exhibit 16 (Situation of officers in the Rwandan Army as of 1 March 1994). The
commando training centre under Colonel Nzungize is listed separately after ESM and ESO.
2288
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2079. Turning to the repeated attacks at Nyundo Parish (III.3.6.6), they were perpetrated
only by militiamen. The attack mirrors other massacres of civilians in Gisenyi and Kigali,
which involved soldiers. It reflects a degree of coordination and control given its
progressively increasing intensity from targeted assassinations on 7 April to wholesale
slaughter on 9 April, which featured the increased firepower of guns. The military clearly
played a role in training and distributing weapons to militia groups (III.2.6.2). This operation
must have been sanctioned by the area’s military commander, Nsengiyumva. The assailants
were therefore acting under military control and were equally subordinates of Nsengiyumva.
2080. The attacks in Bisesero also involved militiamen.2290 Nsengiyumva oversaw the
arming and training between April and June of the militia sent to Kibuye prefecture
(III.4.5.1). He dispatched them on the orders of the interim government to reinforce
operations there against Tutsi civilians. While the Chamber is satisfied that these assailants
were Nsengiyumva’s subordinates, it cannot conclude that they were acting under his
effective control at the time of the attack since they were placed under the authority of local
leaders in Kibuye prefecture. The Chamber will, however, consider in its legal findings
whether Nsengiyumva bears any other form of responsibility for their crimes.
2081. Finally, even if the civilian assailants could not be considered as subordinates of
Nsengiyumva, the cooperation, presence and active involvement of military personnel
alongside their civilian counterparts rendered substantial assistance to the crimes perpetrated
by the militiamen. The soldiers and gendarmes present at the scenes of attacks or in their
vicinity would have clearly encouraged these operations with full knowledge of the crimes
being committed. Nsengiyumva therefore would still remain liable for the crimes of these
militiamen since subordinates under his effective control would have aided and abetted them
in addition to their own direct participation in the criminal acts.2291
1.5.3
Knowledge
2082. The Chamber is satisfied that Nsengiyumva had actual knowledge that his
subordinates were about to commit crimes or had in fact committed them. As discussed
above, it is clear that these attacks were organised military operations requiring authorisation,
planning and orders from the highest levels. It is inconceivable that Nsengiyumva would not
be aware that his subordinates would be deployed for these purposes, in particular in the
immediate aftermath of the death of President Habyarimana and the resumption of hostilities
with the RPF when the vigilance of military authorities would have been at its height.
Furthermore, the location of many of these crimes were around Gisenyi town where
Nsengiyumva was based. With respect to Nyundo Parish, Nsengiyumva was put on clear
notice of imminent attack at the parish when he rescued Bishop Kalibushi, who had been
abducted from his residence there on 8 April by a soldier and Interahamwe and taken to be
killed at the Commune Rouge. He also was made plainly aware of the results of the attack
2290
There is evidence that local government and military authorities from Kibuye prefecture outside of
Nsengiyumva’s operational sector also participated in the attacks in Bisesero. However, the contingent of
assailants sent from Gisenyi prefecture appears to have only included civilian militiamen.
2291
See Orić Appeal Judgement, para. 20; Nahimana et al. Appeal Judgement, paras. 485-486; Blagojević and
Jokić Appeal Judgement, paras. 280, 282. Paragraphs 6.32 and 6.35 of the Nsengiyumva Indictment allege that
military personnel aided and abetted militiamen in the commission of crimes. The Prosecution also contends
that a superior can be responsible for the role of his subordinates in aiding and abetting crimes. See Prosecution
Closing Brief, paras. 2008-2009.
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when Witness XX, a survivor of the attack, came to the military camp covered in blood
seeking his assistance (III.3.6.6).
1.5.4
Failure to Prevent and Punish
2083. As noted above, these operations were clearly organised and authorised or ordered at
the highest level of the Gisenyi operational sector. Therefore, Nsengiyumva failed in his duty
to prevent the crimes because he in fact participated in them. There is absolutely no evidence
that the perpetrators were punished afterwards.
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2.
2.1
GENOCIDE
Conspiracy to Commit Genocide
Introduction
2084. Count 1 of each of the Indictments charges the Accused with conspiracy to commit
genocide pursuant to Article 2(3) (b) of the Statute. It is alleged that each of them “conspired
with [their co-accused] and 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”.2292 Section 5 of the three Indictments (entitled “Preparation”) states that the Accused
and other persons conspired “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 include speeches and incitement, militia groups
(including training and distribution of weapons), and the establishment of lists of persons to
be executed.2293
2085. In support of the charge of conspiracy, the Prosecution points to certain key pieces of
evidence or alleged events showing the Accused’s alleged involvement in extended planning
and preparations for genocide prior to 1994. In particular, it refers to work of the ENI
Commission and subsequent meetings of soldiers invoking its definition of the enemy,
Bagosora’s 1992 reference to planning the “apocalypse”, clandestine organisations, the
warnings from Jean-Pierre and the anonymous “Machiavellian Plan” letter, the preparation of
lists and the creation, arming and training of civilians.2294
2086. The Defence teams argue that the Prosecution either relies on evidence lacking
credibility or misinterprets evidence. It also improperly draws inferences from facts which
have not been proven. Therefore, the constituent elements of conspiracy have not been
established. The Kabiligi Defence also argues that the Prosecution seeks to rely on evidence
outside the temporal scope of the Tribunal.2295
The Law
2087. Conspiracy to commit genocide is “an agreement between two or more persons to
commit the crime of genocide”.2296 The actus reus of the crime is the existence of an
agreement between individuals to commit genocide.2297 The persons involved in the
agreement must possess the mens rea for genocide, that is the intent to destroy in whole or in
2292
Bagosora Indictment, para. 6.64, Count 1; Kabiligi and Ntabakuze Indictment, para. 6.51, Count 1;
Nsengiyumva Indictment, para. 6.37, Count 1.
2293
Bagosora Indictment, paras 5.1-5.40; Kabiligi and Ntabakuze Indictment, paras. 5.1-5.36; Nsengiyumva
Indictment, paras. 5.1-5.32.
2294
Prosecution Closing Brief, paras. 31-55; T. 27 May 2007 pp. 12-14; T. 1 June 2007 pp. 37-42.
2295
Bagosora Closing Brief, paras. 2133-2216; Kabiligi Closing Brief, paras. 1512-1566; Ntabakuze Closing
Brief, paras. 2478-2480, 2502-2516; Nsengiyumva Closing Brief, paras. 86-128, 195-233, 3219-3221.
2296
Seromba Appeal Judgement, paras. 218, 221; Nahimana et al. Appeal Judgement, para. 894; Ntagerura et
al. Appeal Judgement, para. 92; Kajelijeli Trial Judgement, para. 787; Niyitegeka Trial Judgement, para. 423;
Ntakirutimana Trial Judgement, para. 798; Musema Trial Judgement, para. 191.
2297
Seromba Appeal Judgement, para. 221; Nahimana et al. Appeal Judgement, para. 896.
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part a national, ethnical, racial or religious group as such.2298 The mens rea for genocide is
discussed more fully below in connection with the crime of genocide (IV.2.2).
2088. With respect to the actus reus, the agreement can be proven by establishing the
existence of planning meetings for the genocide, but it can also be inferred, based on
circumstantial evidence.2299 The concerted or coordinated action of a group of individuals can
constitute evidence of an agreement. The qualifiers “concerted or coordinated” are important:
it is not sufficient to simply show similarity of conduct.2300 In certain cases the existence of a
conspiracy to commit genocide between individuals controlling institutions could be inferred
from the interaction between these institutions.2301 When based on circumstantial evidence,
the finding of a conspiracy must be the only reasonable inference based on the totality of the
evidence.2302
2089. The Tribunal’s case law has addressed the issue of conspiracy in eight cases:
Kajelijeli, Kambanda, Musema, Nahimana et al., Niyitegeka, Ntagerura et al., Ntakirutimana
and Seromba.2303 Of the eight cases, a conspiracy was found by the Trial Chamber to exist in
three of them: Kambanda, Nahimana et al. and Niyitegeka. Prime Minister Jean Kambanda
pleaded guilty to conspiring with other ministers and officials in his government to commit
genocide after 8 April 1994.2304 The conspiracy conviction in Niyitegeka concerned a specific
attack in the Bisesero region of Kibuye prefecture in June 1994 and was based on his
participation and statements in several meetings in that region around the same time.2305 In
Nahimana et al., the Trial Chamber convicted the three Accused “for consciously
interact[ing] with each other, using the institutions they controlled [Kangura, RTLM and the
CDR party] to promote a joint agenda, which was the targeting of the Tutsi population for
destruction.”2306 The Appeals Chamber, however, reversed the finding in Nahimana et al.
because, while the factual basis for the conviction was consistent with a joint agenda to
commit genocide, it was not the only reasonable conclusion from the evidence.2307
2298
Nahimana et al. Appeal Judgement, paras. 894, 896; Niyitegeka Trial Judgement, para. 423; Musema Trial
Judgement, para. 192.
2299
Seromba Appeal Judgement, para. 221; Nahimana et al. Appeal Judgement, para. 896.
2300
Nahimana et al. Appeal Judgement, paras. 896-897.
2301
Id. para. 907.
2302
Seromba Appeal Judgement, para. 221; Nahimana et al. Appeal Judgement, para. 896.
2303
See Kajelijeli Trial Judgement, paras. 785-798; Kambanda Trial Judgement, para. 40; Musema Trial
Judgement, para. 937-941; Nahimana et al. Trial Judgement, paras. 1040-1055; Niyitegeka Trial Judgement,
paras. 422-479; Ntagerura et al. Trial Judgement, para. 70; Ntagerura et al. T. 6 March 2002 pp. 54, 68 (oral
decision acquitting Samuel Imanishimwe pursuant to Rule 98bis); Ntakirutimana Trial Judgement, paras. 797801, 838-841; Seromba Trial Judgement, paras. 344-351. An overarching conspiracy for the whole genocide
was charged in three of these cases: Kajelijeli, Nahimana et al. and Kambanda. The first two cases concerned
the period 1990 to 1994, whereas Kambanda involved a conspiracy after 8 April 1994. The remaineder of the
cases focused on regional conspiracies after 6 April 1994.
2304
Kambanda Trial Judgement, para. 40(2) (“(2) By his acts or omissions described in paragraphs 3.8, 3.9, 3.13
to 3.15 and 3.19 of the indictment, Jean Kambanda did conspire with others, including Ministers of his
Government, such as Pauline Nyiramasuhuko, André Ntagerura, Eliezer Niyitegeka and Edouard Karemera, to
kill and to cause serious bodily or mental harm to members of the Tutsi population, with intent to destroy in
whole or in part, an ethnic or racial group as such, and has thereby committed Conspiracy to Commit Genocide,
stipulated in Articles 2(3) (b) of the Statute as a crime, and attributed to him by virtue of Article 6(1) and
punishable in reference to Articles 22 and 23 of the Statute of the Tribunal.”).
2305
Niyitegeka Trial Judgement, paras. 424-479.
2306
Nahimana et al. Trial Judgement, paras. 1054-1055.
2307
Id. paras. 906, 910.
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2090. It is also noteworthy that in the Kajelijeli case, the Prosecution charged the Accused
with an overarching conspiracy including military personnel, members of the government and
political leaders to commit genocide which spanned from 1990 to 1994. The Trial Chamber
found that the Accused participated in creating lists of Tutsis as well as discussions on the
arming and training militiamen to fight the RPF and its accomplices. The Trial Chamber,
however, was not satisfied on this evidence alone that these actions were taken for the
purpose of eliminating Tutsis.2308
2091. Finally, the Chamber notes that a number of the allegations discussed in this section
precede the Tribunal’s temporal jurisdiction of 1 January to 31 December 1994. The
Chamber is mindful that it can only convict the Accused of criminal conduct occuring in
1994. Nevertheless, the Appeals Chamber has held that the provisions of the Statute on the
temporal jurisdiction of the Tribunal do not preclude the admission of evidence on events
prior to 1994, if the Chamber deems such evidence relevant and of probative value and there
is no compelling reason to exclude it. Such evidence can be relevant to: clarify a given
context; establishing by inference the elements (in particular, criminal intent) of criminal
conduct occurring in 1994; and demonstrating a deliberate pattern of conduct.2309 The
Chamber therefore does not find it necessary to address the challenge by the Defence to the
pleading of the pre-1994 incidents in the Indictments since they are not themselves material
facts on which a conviction can be based.
Deliberations
2092. At the outset, the Chamber emphasises that the question under consideration is not
whether there was a plan or conspiracy to commit genocide in Rwanda. Rather, it is whether
the Prosecution has proven beyond reasonable doubt based on the evidence in this case that
the four Accused committed the crime of conspiracy.
2093. Paragraph 5.1 of each of the Indictments alleges that the Accused conspired amongst
themselves and with others “from late 1990 until July 1994” to exterminate the Tutsi
population. The criminal responsibility section of the Indictments reflects that the conspiracy
existed before 7 April 1994 and was simply put in place after that date.2310 The Prosecution’s
submissions in its Closing Brief and during oral argument have focused exclusively on the
formation of the conspiracy, allegedly involving the Accused, before 7 April. Reference is
made only to the events after that date to further illustrate that a conspiracy was in fact
already in place. Consequently, the Accused are charged with a conspiracy pre-dating 7 April
and not a conspiracy which was formed after that date.2311
2308
Kajelijeli Trial Judgement, paras. 427-449. The Prosecution did not appeal Kajelijeli’s Trial Judgement.
Nahimana et al. Appeal Judgement, paras. 313, 315-316. In that case, the Appeals Chamber did consider
pre-1994 evidence in assessing whether a conspiracy existed. Id. paras. 905, 908.
2310
Bagosora Indictment, para. 6.64; Kabiligi and Ntabakuze Indictment, para. 6.46; Nsengiyumva Indictment,
para. 6.33, which all state that the massacres “were the result of a strategy adopted and elaborated by political,
civil, and military authorities in the country … 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’”.
2311
To the extent that Paragraph 5.1 of the Indictments could be interpreted as charging a conspiracy which was
formed after 6 April 1994, the Prosecution’s final submissions described above reflect that it has failed to pursue
such a charge. See Ntagerura et al. Appeal Judgement, paras. 149-150. The Chamber will therefore not consider
it as a basis of conviction.
2309
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2094. Another general issue relates to the commencement of the alleged planning. As
mentioned above, the Indictment indicates that the conspiracy took place from “late 1990”.
According to the Prosecution Closing Brief, “the planning aspect of conspiracy extended a
significant time prior to the events in 1994”.2312 The Prosecution has referred to evidence
from as early as December 1990 in order to demonstrate a conspiracy. However, it clarified
in its oral submissions that the alleged plan was only in place for several months, possibly for
more than a year, before 7 April 1994.2313 Instead, during most of the period from the end of
1990 to April 1994, the Prosecution speaks mainly of the evidence showing a “growing and
developing preparedness”, a “trend” and a “tendency” towards a conspiracy, which it claims
then crystallised into one.2314 It contends that each of the acts which in themselves might not
evince a conspiracy form a link in a chain of conspiracy.2315
2095. The Chamber notes that views on the commencement of the planning from the expert
witnesses vary. During her testimony, Alison Des Forges explained that the “organisational”
phase of the planned genocide began in 1993 and early 1994, although a small group of
individuals had been conceptualising and planning the genocide for a “much longer time.”2316
According to Filip Reyntjens, there was “no particular moment in time when a number of
conspirators sat together and decided, ‘We are going to organise a genocide’.” However,
Reyntjens testified that the element of intent to commit genocide was present and developed
incrementally beginning 1 October 1990.2317 Bernard Lugan, on the other hand, testified that
there was no proof of plan or conspiracy to kill Tutsis.2318 Helmut Strizek stated that there
was no conspiracy to commit genocide because the downing of the plane was the spark that
began the genocide.2319
2312
Prosecution Closing Brief, para. 35.
T. 1 June 2007 p. 42. In particular, it stated: “there was no plan in 1992 to conduct a genocide in April 1994.
There’s no evidence of that.” See id. p. 41.
2314
Id. p. 41.
2315
Id. p. 39.
2316
T. 26 September 2002 p. 36. During her testimony, Des Forges pointed to a statement by the then Minister
of Justice following the RPF attack of 1 October 1990 in which he asserted that Tutsis within Rwanda likely
facilitated the attack as the moment when key persons in the government commenced thinking about genocide.
T. 5 September 2002 pp. 113, 118-119. Des Forges also pointed to the February 1991 publication of a pamphlet
by Leon Mugesera which used the term genocide for the first time. T. 5. September 2002 pp. 121-124. In her
expert report, Des Forges suggested that steps toward the eventual genocide began as early as 1991 with the
issuance of a secret report by a 10 officer commission chaired by Bagosora that contained definitions of the
Tutsi “enemy” and its alleged collaborators. This report was circulated to army officers in 1992 and utilised in
the effort to generate lists of RPF “accomplices” that accelerated in late 1992 and 1993. According to Des
Forges, the march toward genocide continued with actions such as the 1992 establishment of the CDR, the 1993
Hutu Power coalition, and the stockpiling of arms and training of militias that continued throughout 1993. These
preparations culminated in late March 1994, when, according to Des Forges, military and political leaders had
soldiers and militiamen ready to attack targeted victims throughout the country. Prosecution Exhibit 2A (Expert
Report of Alison Des Forges), pp. 19-23, 30-35.
2317
T. 20 September 2004 pp. 9-10.
2318
T. 15 November 2006 p. 7 (“I have not found any proof of planning [plan to kill Tutsis]…I criticised at
length in my reports what is considered as information trying to establish the existence of such a plan.”).
2319
T. 11 May 2005 p. 8 (“Q. So when you were looking at the planning of the genocide, is it fair to say that
your focus was on who shot down the airplane? A. Yes, and the reason is that for me they were always linked.
The theory of planning was supported by people who said that the plane was brought down by extremists. But
by finding that the plane was brought down by the RPF, the theory of planning became obsolete because I told
myself that it’s not possible for Hutu extremists to plan something which they did not know where such a thing
could lead. Do you see my reasoning?”); T. 12 May 2005 p. 68 (“In toto, because I have always said that this is
2313
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2096. A third matter relates to the participants in the alleged conspiracy. The Prosecution is
arguing that all four Accused conspired amongst themselves and with other named civilian
and military authorities and in Nsengiyumva’s case also local militia leaders in Gisenyi
prefecture.2320 There is no requirement that the Chamber conclude that all of the Accused
conspired together. It suffices if the Prosecution can establish that they conspired with at least
one other with whom they are alleged in their respective Indictment to have planned to
commit genocide. The Chamber observes that there is limited evidence with respect to the
many of the other alleged co-conspirators on the record, in particular with respect to their role
in the planning of the alleged conspiracy.
2097. Turning now to the elements underpinning the allegation of planning and conspiracy,
the Prosecution acknowledges that its case is principally circumstantial.2321 There are only a
few alleged meetings which could be characterised as planning genocide. The allegations
instead refer, among other things, to statements made by the Accused, their affiliation with
certain clandestine organisations, general warnings, of which some were circulated publicly,
that the Interahamwe or groups with the military were plotting assassinations and mass
killings, and their role in the preparation of lists as well as the arming and training of
civilians. Most of the components of the planning have been extensively considered in other
parts of the judgment (III.2). However, the Chamber finds it useful to briefly recapitulate the
findings on the events, which the Prosecution has highlighted in its Closing Brief and oral
submissions, and view them together in the legal context of an alleged conspiracy.2322 The
Chamber has nonetheless also taken into account the evidence related to the other events not
specifically referred to by the Prosecution.
a unique type of genocide in history, and this confirms that those people were beyond anybody’s control. It
confirms that there was no command, no planning. It was a spontaneous act of unruly, uncontrollable people
who went on a killing spree. And it is actually this argument which [General Dallaire] confirms here that there
were uncontrollable and mass actions.”).
2320
The Indictments against Bagosora, Kabiligi and Ntabakuze name the following individuals: Bagosora,
Kabiligi, Ntabakuze, Nsengiyumva, Augustin Ndindiliyimana, Augustin Bizimungu, Aloys Ntiwiragabo, Protais
Mpiranya, François-Zavier Nzuwonemeye, Augustin Bizimana and Tharcisse Renzaho. See Bagosora
Indictment, para. 6.64; Kabiligi and Ntabakuze Indictment, para. 6.46. The Nsengiyumva Indictment names:
Nsengiyumva, Bagosora, Ntabakuze, Joseph Nzirorera, Félicien Kabuga, Omar Serushago, Bernard
Munyagishari, Mabuye, Barnabé Samvura and Thomas Mugiraneza. The Nsengiyumva Indictment does not
refer to Kabiligi. Nsengiyumva Indictment, para. 6.33.
2321
Prosecution Closing Brief, para. 35 (“The inference to be drawn from the evidence is not that each of the
accused sat in the same room at the same time and agreed to a plan, nor that such a plan consisted of a single
course of equally-divided or unified conduct”).
2322
The Prosecution refers to alleged meetings held in Butotori. See Prosecution Closing Brief, para. 42. The
Chamber admitted allegations about meetings there against Bagosora and Ntabakuze, but excluded these
allegations with respect to Nsengiyumva based on lack of notice. See Decision on Bagosora Motion for the
Exclusion of Evidence Outside the Scope of the Indictment (TC), 11 May 2007, paras. 70-72; Decision on
Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006, paras. 57-59; Decision on Nsengiyumva
Motion For the Exclusion of Evidence Outside the Scope of the Indictment (TC), 15 September 2006, paras. 4345. As the Indictment’s are similarly worded, fairness requires that these allegations be excluded as to all
Accused. In any event, the Chamber has raised concerns with the credibility of the underlying evidence in other
parts of the judgement, and it would not have altered the conclusion on the conspiracy charge.
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(i)
The Enemy Commission
2098. The Prosecution submits that the ENI document, which defined the enemy in ethnic
terms, was “a step towards a criminal conspiracy”.2323 The Chamber has found that, from
December 1991, Bagosora, Nsengiyumva, Ntabakuze and other high-ranking officers
participated in a commission which produced the Definition of the Enemy document (III.2.2).
The document was then circulated within the army in September 1992 and used by
Ntabakuze during meetings with members of the Para Commando Battalion (III.2.4.1). The
Chamber agrees that the over-emphasis on the Tutsi ethnicity in the document is troubling,
but cannot conclude that the document or its circulation to soldiers in the Rwandan army in
themselves evidenced a conspiracy to commit genocide. It can be viewed, however, as
background to give context to the subsequent actions of Bagosora, Nsengiyumva and
Ntabakuze.
(ii)
The “Apocalypse”
2099. The Prosecution submits that Bagosora was intent by the end of 1992 on preparing the
“apocalypse” based on an alleged statement to a member of the RPF delegation during a
session of the Arusha Accords in 1992.2324 The Chamber, however, did not find the evidence
supporting this allegation credible (III.2.3), and it therefore has no probative value in
establishing Bagosora’s role in a conspiracy.
(iii)
Meetings Before 6 April 1994
2100. The Prosecution submits that Kabiligi participated in a meeting in February 1994 in
Ruhengeri with local military commanders to inform them of a plan to commit genocide
(III.2.4.4).2325 Furthermore, it also points to evidence around the same time that Nsengiyumva
and Bagosora met in Butare prefecture with other officials to draw up lists of Tutsis to kill
(III.2.4.6) and also participated in a rally in Gisenyi prefecture, where they described the
enemy as Tutsis (III.2.4.2). The Chamber however did not find the uncorroborated evidence
supporting these allegations credible. Similarly, the Chamber was not convinced that
Bagosora referred to the eliminaton of the Tutsis at the Senegalese dinner held on 4 April
(III.2.4.5).
(iv)
The Preparation and Use of Lists
2101. The Prosecution argues that the involvement of the Accused in the preparation of lists
which were subsequently used during the killings evidences prior planning (III.2.5).2326 The
Chamber found that Nsengiyumva given his role as head of the military intelligence bureau
(G-2) on the army staff would have been involved in the preparation of lists and that
Bagosora in light of his position was likely aware of them. It also concluded that Ntabakuze
made use of lists to arrest people in October 1990. It was not proven that Kabiligi was
2323
Prosecution Closing Brief, paras. 35-36, 39; T. 1 June 2007 p. 38.
Prosecution Closing Brief, para. 38.
2325
Prosecution Closing Brief, paras. 40-41. The Prosecution does not refer to the February 1994 Butare
meeting in its final submissions on conspiracy.
2326
Prosecution Closing Brief, paras. 46-49.
2324
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involved in this effort. The Chamber was not satisfied, however, that these lists were
prepared or maintained with the intent to kill Tutsi civilians.
(v)
The Creation, Arming and Training of Civilian Militias
2102. The Prosecution also contends that the Accused role in arming and training civilians,
who later participated in the killings, and in particular the notes contained in Bagosora’s
agenda related to these efforts, shows planning (III.2.6).2327 The Chamber has found that
Bagosora, Nsengiyumva and Kabiligi participated in varying degrees in the arming and
training of civilians. It was not proven that Ntabakuze was involved in this effort. The entries
in Bagosora’s agenda, as well as his explanations for them, demonstrate that he was actively
involved in the military’s development and implementation of a civil defence system.
Nsengiyumva and Kabiligi would have played a role as operational commanders in sectors
were training was ongoing. However, when viewed in the context of the immediate aftermath
of the RPF’s violation of the cease fire agreement, it does not necessarily show an intention
to use the forces to commit genocide.
(vi)
Jean-Pierre and the “Machiavellian Plan”
2103. The Prosecution contends that the information provided to UNAMIR by its informant
Jean-Pierre concerning the activities of the Interahamwe as well as the anonymous letter
detailing a “Machiavellian Plan” by certain members of the army to engage in mass killings
further illustrates the existence of a conspiracy to commit genocide.2328 As discussed in
section III.2.6.3, the Prosecution’s reliance on this evidence is problematic since there are
lingering questions concerning the reliability of this evidence and because it does not directly
implicate the Accused. This evidence therefore has limited probative value in establishing the
Accused’s role in a conspiracy.
(vii)
Clandestine Organisations (Zero Network, AMASASU and Death Squads) and RTLM
2104. The Prosecution argues that the Accused’s participation in clandestine organisations,
such as the Zero Network (III.2.7), AMASASU (III.2.8) and death squads (III.2.9), reflects
their concerted action in furtherance of a plan to commit genocide as well as the existence of
a group of some officers operating outside of normal chains of command to commit illegal
acts.2329 In particular, it points to the AMASASU letters which threaten targeted
assassinations and mass killings. In its Closing Brief, the Prosecution points to parallels in
these letters and other writings of Bagosora and Nsengiyumva, in particular Nsengiyumva’s
letter of 27 July 1992 to President Habyarimana, who was then also army chief of staff.2330
2105. With respect to the parallels between Bagosora and Nsengiyumva’s writings and the
sentiments expressed in the AMASASU letters, the Chamber concluded that this evidence
2327
Prosecution Closing Brief, paras. 44-45, 54.
Prosecution Closing Brief, paras. 52-53.
2329
Prosecution Closing Brief, paras. 37, 50-51; T. 1 June 2007 pp. 38-39. The Prosecution does not refer to
death squads in its final submissions on conspiracy.
2330
Prosecution Exhibit 21 (Letter of 27 July 1992 from Nsengiyumva to the Rwandan Army Chief of Staff
entitled “Mood of the Military and Civilians”). The Prosecution also referred to other letters written by
Nsengiyumva which make reference to Ntabakuze, Kabiligi and Ferdinand Nahimana. See Prosecution Exhibit
18 (Letter of 15 December 1990); Prosecution Exhibit 25 (Letter of 24 February 1993).
2328
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created an inference that Bagosora and Nsengiyumva were behind the AMASASU
documents and possibly part of a group of Rwandan army officers who shared these
views.2331 However, the available information concerning the existence of Zero Network and
the AMASASU as well as the Accused’s participation in them was limited and to a large
extent second-hand. The Chamber was therefore unable to conclude beyond reasonable doubt
that the Accused were members of them.
2106. Turning to the death squads, the Chamber noted the considerable evidence pointing to
their existence and role in killings before April 1994. Several sources also indicated to
varying degrees that Bagosora, Nsengiyumva and Ntabakuze were members. However, this
information was all second-hand and its description of the Accused’s activities was limited.
Therefore, the Chamber could not find beyond reasonable doubt that they were members of
death squads. In addition, the mere fact that such groups existed and were engaged in
criminal acts does not mean that it was preparing a genocide. The Prosecution has not clearly
identified their membership or shown a proven connection between their activities and the
Accused. Similarly, the Chamber was not satisfied that the Accused played a significant role
in the creation or control of RTLM. Consequently, these elements carry limited weight in
relation to the conspiracy.
(viii) Concluding Observations
2107. Having considered the elements mentioned by the Prosecution, discussed above, and
elsewhere in the judgement, the Chamber cannot exclude that there were in fact plans prior to
6 April to commit genocide in Rwanda. As the Prosecution argues, there are certain
indications in the evidence of a prior plan or conspiracy to perpetrate a genocide as well as
other politically motivated killings in Rwanda, which could have been triggered upon the
resumption of hostilities between the government and the RPF or following some other
significant event.
2108. For example, a cycle of ethnic violence against Tutsi civilians has often followed
attacks by the RPF or earlier groups associated with Tutsis, such as Union Nationale
Rwandaise party. After an attack by Tutsi combatants in December 1963, there were reprisal
killings. Following the October 1990 RPF invasion, there were mass arrests as well as
localised killings at the time and in subsequent years in several northern communes and the
Bugesera region. Allegations were made that elements of the government and security forces
failed to timely intervene or participated in these events.2332
2331
The Prosecution noted that it could not directly attribute the document to any of the Accused, but it
nonetheless showed that elements of the Rwandan army were involved in planning. See T. 1 June 2008 p. 39
(“Now, all of those elements, even though we don’t know the identity of the author, taken at face value, it
indicates that within the Rwandan armed forces there’s a subset of individuals who have, for the -- an unlawful
purpose, organised or planned and intend to render their own form of justice by acting with the speed of
lightning. The document itself can’t be directly attributed to the four Accused; they didn’t sign it, as far as we
know. But it is a link in the chain of conspiracy that somebody is out there planning, somebody is moving in this
direction. So all that’s necessary later on is to create a link between that conspiracy and the contribution of the
four Accused.”).
2332
For example, Alison Des Forges and Filip Reyntjens point to incidents such as the mass arrests in October
1990, the 1992 Bugesera massacre, the killing of Bigogwe Tutsis as well as other attacks. See Prosecution
Exhibit 2A (Expert Report of Alison Des Forges), pp. 15-16, 24-25; Prosecution Exhibit 302 (Expert Report of
Filip Reyntjens).
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2109. At the same time, there was also a campaign to secretly arm and train civilian
militiamen and efforts to put in place a “civil defence” system made up of “resistance”
groups (III.2.6.2). The Chamber found that Bagosora, Nsengiyumva and Kabiligi were
involved in some of these efforts in varying degrees. In particular, the outlines of the core of
the proposed civil defence system were recorded as notes in Bagosora’s agenda, during
meetings at the Ministry of Defence in early 1993, after the RPF resumed hostilities and
advanced towards Kigali. Furthermore, lists primarily aimed at identifying suspected
accomplices of the RPF and opponents of the Habyarimana regime or MRND party were
prepared and maintained by the army (III.2.5). However, in the context of the ongoing war
with the RPF, this evidence does not invariably show that the purpose of arming and training
these civilians or the preparation of lists was to kill Tutsi civilians.
2110. After the death of President Habyarimana, these tools were clearly put to use to
facilitate killings. When viewed against the backdrop of the targeted killings and massive
slaughter perpetrated by civilian and military assailants between April and July 1994 as well
as earlier cycles of violence, it is understandable why for many this evidence takes on new
meaning and shows a prior conspiracy to commit genocide. Indeed, these preparations are
completely consistent with a plan to commit genocide. However, they are also consistent with
preparations for a political or military power struggle. The Chamber recalls that, when
confronted with circumstantial evidence, it may only convict where it is the only reasonable
inference. It cannot be excluded that the extended campaign of violence directed against
Tutsis, as such, became an added or an altered component of these preparations.2333
2111. Furthermore, the Chamber observes that the evidence in this case only implicates the
Accused in varying degrees in these efforts. It is possible that some military or civilian
authorities did intend these preparations as part of a plan to commit genocide. However, the
Prosecution has not shown that the only reasonable inference based on the credible evidence
in this trial was that this intention was shared by the Accused.
2112. Other or newly discovered information, subsequent trials or history may demonstrate
a conspiracy involving the Accused prior to 6 April to commit genocide. This Chamber’s
task, however, is narrowed by exacting standards of proof and procedure, the specific
evidence on the record before it and its primary focus on the actions of the four Accused in
this trial. In reaching its finding on conspiracy, the Chamber has considered the totality of the
evidence, but a firm foundation cannot be constructed from fractured bricks.
2333
See Nahimana et al. Appeal Judgement, paras. 906, 910 (“The Appeals Chamber finds that, even if this
evidence is capable of demonstrating the existence of a conspiracy to commit genocide among the Appellants,
on its own it is not sufficient to establish the existence of such a conspiracy beyond reasonable doubt. It would
also have been reasonable to find, on the basis of this evidence, that the Appellants had collaborated and entered
into an agreement with a view to promoting the ideology of “Hutu power” in the context of the political struggle
between Hutu and Tutsi, or even to disseminate ethnic hatred against the Tutsi, without, however, going as far
as their destruction in whole or in part. Consequently, a reasonable trier of facts could not conclude that the only
reasonable inference was that the Appellants had conspired together to commit genocide … There is no doubt,
in the Appeals Chamber’s view, that the aforementioned factual findings are compatible with the existence of “a
joint agenda” aiming at committing genocide. However, it is not the only reasonable inference. A reasonable
trier of fact could also find that these institutions had interacted to promote the ideology of “Hutu power” in the
context of a political struggle between Hutu and Tutsi, or to disseminate ethnic hatred against the Tutsi without
going as far as the destruction, in whole or in part, of that group.”).
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2113. Accordingly, the Chamber is not satisfied that the Prosecution has proven beyond
reasonable doubt that the four Accused conspired amongst themselves or with others to
commit genocide before it unfolded on 7 April 1994.
2.2
2.2.1
Genocide
Introduction
2114. Count 2 of the Indictments charge the Accused with genocide under Article 2 (3)(a)
and 2 (3)(e) of the Statute.
2.2.2
Law
2115. To find an accused guilty of the crime of genocide, it must be established that he
committed any of the enumerated acts in Article 2 (2) with the specific intent to destroy, in
whole or in part, a group, as such, that is defined by one of the protected categories of
nationality, race, ethnicity, or religion.2334 Although there is no numeric threshold, the
perpetrator must act with the intent to destroy at least a substantial part of the group.2335 The
perpetrator need not be solely motivated by a criminal intent to commit genocide, nor does
the existence of personal motive preclude him from having the specific intent to commit
genocide.2336
2116. In the absence of direct evidence, a perpetrator’s intent to commit genocide may be
inferred from relevant facts and circumstances that can lead beyond any reasonable doubt to
the existence of the intent. Factors that may establish the specific intent include the general
context, the perpetration of other culpable acts systematically directed against the same
group, the scale of atrocities committed, the systematic targeting of victims on account of
their membership in a particular group, or the repetition of destructive and discriminatory
acts.2337
2117. The Indictment charges the Accused with killing and causing serious bodily or mental
harm to members of the Tutsi group. It is firmly established that the Tutsi ethnicity is a
protected group.2338 Killing members of the group requires a showing that the principal
perpetrator intentionally killed one or more members of the group.2339 The term “causing
serious bodily harm” refers to acts of sexual violence, serious acts of physical violence falling
short of killing that seriously injure the health, cause disfigurement, or cause any serious
2334
Nahimana et al. Appeal Judgement, para. 492, 496, 522-523; Niyitegeka Appeal Judgement, para. 48;
Gacumbitsi Appeal Judgement, para. 39; Brđanin Trial Judgement, paras. 681, 695.
2335
Seromba Appeal Judgement, para. 175; Gacumbitsi Appeal Judgement, para. 44; Simba Trial Judgement,
para. 412; Semanza Trial Judgement, para. 316.
2336
Simba Appeal Judgement, para. 269; Ntakirutimana Appeal Judgement, paras. 302-304; Niyitegeka Appeal
Judgement, paras. 48-54; Krnojelac Appeal Judgement, para. 102, citing Jelisić Appeal Judgement, para. 49.
2337
Seromba Appeal Judgement, para. 176, citing Seromba Trial Judgement, para. 320; Nahimana et al. Appeal
Judgement, paras. 524-525; Simba Appeal Judgement, para. 264; Gacumbitsi Appeal Judgement, paras. 40-41;
Rutaganda Appeal Judgement, para. 525; Semanza Appeal Judgement, para. 262, citing Jelisić Appeal
Judgement, para. 47; Kayishema and Ruzindana Appeal Judgement, paras. 147-148.
2338
Prosecution Exhibit 3 (Expert Report of Alison Des Forges), pp. 1, 3-4, 6-8. Furthermore, every judgement
rendered by this Tribunal concerning genocide has recognised that the Tutsi ethnicity is a protected group. See
also Karemera et al., Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice (AC), 16
June 2006, para. 25; Semanza Appeal Judgement, para. 192.
2339
Simba Trial Judgement, para. 414, citing Kayishema and Ruzindana Appeal Judgement, para. 151.
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injury to the external or internal organs or senses.2340 Serious mental harm refers to more than
minor or temporary impairment of mental faculties.2341 The serious bodily or mental harm,
however, need not be an injury that is permanent or irremediable.2342 This harm can include
crimes of sexual violence, including rape.2343
2.2.3
Deliberations
(i) Kigali and Its Environs
Belgian Peacekeepers, 7 April (III.3.4)
2118. The Prosecution has charged the killing of the 10 Belgian peacekeepers under the
count of genocide. It does not argue that these murders constituted the crime of genocide
themselves. Rather, they were intended to prompt Belgium to withdraw its contingent to
UNAMIR and thus facilitate the ensuing massacres. The Chamber is not satisfied that this is
the only reasonable inference to draw from the killing of the Belgian peacekeepers (III.3.4).
Accordingly, the Chamber does not find that these killings constituted genocide. It also has
not been proven that they were committed with the requisite genocidal intent in order to
substantially assist other acts of genocide.
Centre Christus, 7 April (III.3.5.2)
2119. On the morning of 7 April 1994, soldiers killed 17 Rwandans at Centre Christus in
the Remera area of Kigali. The Chamber lacks sufficient reliable evidence to show that the
killers had the requisite genocidal intent. Other than Father Mahame, a Tutsi, the ethnicity of
the other victims is unknown. The circumstances surrounding the attack reflect that it was a
targeted killing similar to others perpetrated against prominent personalities or opposition
figures on the morning of 7 April. The testimony of Bagosora, who was informed of
Mahame’s death that evening, also suggests that the attack was directed primarily at the priest
and that the others were simply unfortunate to have been staying there. Accordingly, it has
not been proven beyond reasonable doubt that these killings constituted the crime of
genocide.
Prominent Personalities and Opposition Political Officials, 7-8 April (III.3.3; III.3.5.6)
2120. The Prosecution has charged the killing of Agathe Uwilingiyimana, Joseph
Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza and
Augustin Maharangari under the count of genocide. With the exception of Ndasingwa and
Maharangari, who were Tutsis, these prominent personalities or members of the opposition
were Hutus. The Prosecution does not argue that the killing of the Hutu individuals
constituted the crime of genocide themselves. Rather, they were intended to prevent the
2340
Seromba Appeal Judgement, paras. 46-49; Ntagerura et al. Trial Judgement, para. 664; Semanza Trial
Judgement, para. 320, citing Kayishema and Ruzindana Trial Judgement, para. 110.
2341
Seromba Appeal Judgement, para. 46; Kajelijeli Trial Judgement para. 815; Ntagerura et al. Trial
Judgement, para. 664; Semanza Trial Judgement, paras. 321-322; Kayishema and Ruzindana Trial Judgement,
para. 110.
2342
Ntagerura et al. Trial Judgement, para. 664; Semanza Trial Judgement, paras. 320, 322.
2343
Seromba Appeal Judgement, para. 46; Gacumbitsi Trial Judgement, para. 292; Akayesu Trial Judgement,
paras. 706-707.
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installation of the Broad-Based Transitional Government and thereby allow the creation of an
interim government favouring a policy of genocide. The Chamber is not satisfied that this is
the only reasonable inference to draw from the killing of these individuals (III.3.3.3).
2121. The Chamber also lacks sufficient reliable evidence to show that the killers of
Landoald Ndasingwa and Augustin Maharangari, both Tutsis, had the requisite genocidal
intent. Ndasingwa was killed by elite soldiers in connection with the murder of other Hutu
government and political figures in the Kimihurura neighbourhood on the morning of 7 April.
Maharangari was killed by soldiers in a similarly organised manner the next day. The
evidence does not show that they were killed because they were Tutsis. Given these
circumstances, it remains possible that these killings were part of systematic attacks aimed at
eliminating political opponents or those viewed as sympathetic to the RPF.
2122. Accordingly, the Chamber does not find that these killings constitute the crime of
genocide. It also has not been proven beyond reasonable doubt that they were committed with
the requisite genocidal intent in order to substantially assist other acts of genocide.
Kigali Area Roadblocks, 7-9 April (III.5.1)
2123. Roadblocks manned primarily by civilians, at times with a soldier or gendarme at its
head, proliferated throughout Kigali, beginning on 7 April 1994. The civilians were mostly
members of political party militias or local inhabitants who volunteered or were pressed into
service at them as part of the “civil defence” efforts (III.2.6.2). The roadblocks were used to
check the identities of passers-by. Tutsis, persons without identification documents, and Hutu
members of opposition parties were singled out. These roadblocks were sites of open and
notorious slaughter and sexual assault from 7 April.
2124. The Chamber finds that, considering the purpose of roadblocks, the assailants at them
intentionally killed Tutsis. The Chamber also finds that the acts of rape, sexual violence and
mistreatment of Tutsis there constituted serious bodily or mental harm.
2125. The Chamber heard extensive evidence about the killing of Tutsi civilians throughout
the Kigali area at roadblocks immediately after the death of President Habyarimana. The
assailants checked the identity cards of the victims and targeted mainly Tutsis along with
Hutus suspected of being sympathetic to the RPF. In these circumstances, the only reasonable
conclusion is that the assailants who physically perpetrated the killings possessed the intent to
destroy, in whole or in substantial part, the Tutsi group.
2126. The Chamber has considered, as the only reasonable inference, that Bagosora in the
exercise of his authority between 6 and 9 April 1994 ordered the crimes at Kigali area
roadblocks (III.2.6.2). In the context of the open and notorious targeting and slaughter of
Tutsis at them, he was aware of the genocidal intent of the perpetrators and shared it.
Other Crimes in the Kigali Area, 7-9 April: Kibagabaga Mosque (III.3.5.3), (Kabeza
(III.3.5.4), Saint Josephite Centre (III.3.5.5), Karama Hill and Kibagabaga Catholic Church
(III.3.5.7) and Gikondo Parish (III.3.5.8))
2127. On the morning of 7 April 1994, around 300 Hutu and Tutsi refugees gathered at the
Kibagabaga mosque in Remera due to increasing insecurity in the area. A group of
Interahamwe attacked a Tutsi refugee in front of the mosque and threatened the refugees
there with attack if they did not surrender the Tutsis. That afternoon, the refugees fended off
three attacks. A soldier came to the mosque for his sister, intimating that further attacks were
coming. On 8 April, soldiers and Interahamwe surrounded the mosque, and the soldiers fired
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
for a few minutes, killing several persons, to prompt the refugees to line up on the street. The
soldiers checked identity cards and then withdrew. The Interhamwe then continued checking
cards and killed more than 20 mostly Tutsi refugees.
2128. In the Kabeza area of Kigali, members of the Para Commando Battalion, Presidential
Guard and Interahamwe went from house to house on 7 and 8 April and killed people. The
area was predominately Tutsi and considered sympathetic to the RPF.
2129. On 8 April, soldiers wearing black berets and militiamen attacked and killed a number
of Tutsi refugees at the Saint Josephite Centre. The assailants initially asked to see the
refugees’ identity cards, and Hutus were asked to leave. During the course of the attack, some
of the women were asked to undress before being killed and at least one woman was raped by
a soldier.
2130. At Karama hill near Kigali in Rubungo commune, soldiers and gendarmes killed a
number of Tutsi refugees on 8 April. Many of the refugees at the school had just fled an
attack at a nearby roadblock where military personnel were separating Hutus and Tutsis
based on their identity cards before killing the Tutsis.
2131. On 9 April 1994, a number of soldiers and gendarmes digging trenches near
Kibagabaga Catholic Church were told by a high-ranking soldier to kill the refugees there.
The military personnel then gave firearms and grenades to a group of Interahamwe who
began attacking the church. During the attack, the Interahamwe asked to see the identity
cards of the refugees and killed the Tutsis. The military personnel watched as the attack
proceeded.
2132. During an attack on Gikondo Parish on the morning of 9 April, the army sealed off
the Gikondo area, and gendarmes moved systematically through the neighbourhood with
lists, sending Tutsis to the parish. The gendarmes checked the identity cards of the Tutsis
there against their lists and burned the identity cards. The Interahamwe then proceeded to kill
the more than 150 Tutsi refugees in an atrocious manner. The parish priests and UNAMIR
military observers were forced to watch at gunpoint. Major Brent Beardsley of UNAMIR
arrived shortly after the attack and described the terrible scene, which bore witness of killing,
mutilation and rape. The Interahamwe returned later that night to finish off the survivors.
2133. Considering the nature of how the attacks unfolded, the Chamber finds that soldiers,
gendarmes or Interahamwe participating in the events intentionally killed Tutsis during these
events. Furthermore, the acts of rape, sexual violence and mistreatment constituted serious
bodily or mental harm.
2134. The Chamber heard extensive evidence about the killing of Tutsi civilians throughout
Kigali area and in other parts of Rwanda in the days immediately after the death of President
Habyarimana. In the course of many of the attacks, the assailants checked the identity cards
of the victims or asked Hutus to leave. In these circumstances, the only reasonable conclusion
is that the assailants who physically perpetrated the killings possessed the intent to destroy, in
whole or in substantial part, the Tutsi group.
2135. The Chamber concluded that Bagosora bears superior responsibility for the crimes
committed in Kabeza, Kibagabaga Mosque, the Saint Josephite Centre, Karama hill,
Kibagabaga Catholic Church and Gikondo Parish (IV.1.2). Ntabakuze bears superior
responsibility for the crimes committed in Kabeza (IV.1.4). In the circumstances of the
attacks, described above, Bagosora and Ntabakuze also would have been fully aware of the
participants’ genocidal intent.
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Nyanza Hill, 11 April (III.4.1.1) and IAMSEA, Mid-April (III.4.1.4)
2136. On 11 April 1994, thousands of Tutsi refugees fled from the ETO in Kigali after the
Belgian peacekeepers withdrew from the position. They were stopped at the Sonatube
junction by soldiers of the Para Commando Battalion. Members of the battalion as well as
Interahamwe then marched the refugees several kilometres to Nyanza hill. A pick-up truck
filled with members of the Para Commando Battalion passed the refugees. At Nyanza, they
were waiting. When the refugees arrived, the soldiers opened fire. When they ran out of
ammunition, they sent for more. The Interahamwe then killed the survivors with traditional
weapons.
2137. Around 15 April, members of the Para Commando Battalion along with Interahamwe
separated Tutsi from Hutu refugees at IAMSEA. These assailants then led around 60 Tutsis
away to a location where other members of the Para Commando Battalion were waiting. The
Tutsi refugees were killed.
2138. Given the manner in which these attacks unfolded, the Chamber finds that the
assailants intentionally killed members of the Tutsi ethnic group. In view of the large number
of Tutsi victims at Nyanza hill, the separation of Tutsis from Hutus at IAMSEA, and the
extensive evidence of the targeting of members of this group in Rwanda, the only reasonable
conclusion is that the assailants who physically perpetrated these attacks possessed the intent
to destroy, in whole or in substantial part, the Tutsi group.
2139. Ntabakuze bears superior responsibility for these crimes (IV.1.4). In the
circumstances of the attacks at Nyanza hill and IAMSEA he was aware of the participants’
genocidal intent.
(ii) Gisenyi Prefecture
Gisenyi Town, 7 April (III.3.6.1)
2140. On 7 April 1994, militiamen supported by plainclothes soldiers from the Gisenyi
military camp conducted targeted killings in the vicinity of the camp, and primarily in Bugoyi
cellule. Soldiers accompanied militiamen to the house of a Tutsi teacher, where both groups
participated in killing him and his daughter. Hutus suspected of being accomplices, such as
Rwabijongo and Kajanja, were also killed by militiamen, as was Rwabijongo’s Tutsi wife.
These attacks were followed by the killings of Gilbert, a Tutsi, and another Tutsi man hiding
in a compound with him. Mukabutare, a Tutsi, and her daughter were also singled out and
killed.
2141. The Chamber finds that these assailants intentionally killed members of the Tutsi
ethnic group. The attack focused primarily on Tutsi victims as well as some Hutus viewed as
sympathetic to the RPF. The extensive evidence about the targeting of members of this group
at this time shows, as the only reasonable conclusion, that the assailants who physically
perpetrated these attacks possessed the intent to destroy, in whole or in substantial part, the
Tutsi group.
2142. In assessing Nsengiyumva’s responsibility, the Chamber has viewed these crimes in
connection with the participation of soldiers and militiamen in the killing of Alphonse
Kabiligi (III.3.6.5) and the massacre at Mudende University (III.3.6.7). Given the nature of
these assaults and the involvement of soldiers under Nsengiyumva’s command (IV.1.5), the
Chamber has no doubt that the genocidal killings in Gisenyi town on 7 April were ordered by
Nsengiyumva, the highest military authority in the area. In reaching this conclusion, the
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Chamber has taken into account that he met with military officers on the night of 6 to 7 April
in order to discuss the situation after the death of President Habyarimana (III.3.6.1).
Furthermore, it has viewed these events in the context of the other parallel crimes being
committed in Kigali by elite units and other soldiers in the wake of the death of President
Habyarimana, which were also ordered or authorised by the highest military authority
(III.3.3). In the Chamber’s view, Nsengiyumva’s orders to these assailants to participate
substantially assisted in the execution of these crimes.
2143. As discussed in section IV.1.2, Bagosora bears superior responsibility for the crimes
committed in Gisenyi town on 7 April.
2144. Given the circumstances surrounding the attacks in Gisenyi town the Chamber is
satisfied that Nsengiyumva and Bagosora were aware of the participants’ genocidal intent.
Alphonse Kabiligi, 7 April (III.3.6.5)
2145. The killing of Alphonse Kabiligi on 7 April 1994 is charged under the crime of
genocide. The evidence reflects that he was a Hutu of mixed parentage. Kabiligi was
suspected of being an RPF accomplice and was killed by soldiers as part of targeted attacks
on the morning of 7 April which mirror similar killings in the Kigali area of prominent
personalities committed on political grounds. Therefore, it has not been proven beyond
reasonable doubt that his death constituted genocide.
Mudende University, 8 April (III.3.6.7)
2146. On the morning of 8 April 1994, militiamen supported by at least two soldiers
attacked and killed the Tutsi refugees at Mudende University. The soldiers played a
supporting role by firing at the doors of classrooms, allowing the militiamen to kill refugees
hiding inside. During the attack, the assailants separated Hutu and Tutsi students, and some
of the Tutsis were killed.
2147. The Chamber finds that, given the nature of the attacks, the assailants intentionally
killed members of the Tutsi ethnic group. The number of Tutsi victims at the university, the
separation of Tutsis from Hutus, as well as the extensive evidence concerning the targeting of
members of this group in Rwanda shows, as the only reasonable conclusion, that the
assailants who physically perpetrated these attacks possessed the intent to destroy, in whole
or in substantial part, the Tutsi group.
2148. In assessing Nsengiyumva’s responsibility, the Chamber has viewed these crimes in
connection with the participation of soldiers and militiamen in the killing of Alphonse
Kabiligi (III.3.6.5) and the other targeted killings on 7 April in Gisenyi town (III.3.6.1).
Given the nature of these assaults and the involvement of soldiers under Nsengiyumva’s
command (IV.1.5), the Chamber has no doubt that the genocidal killings at Mudende
University were ordered by Nsengiyumva, the highest military authority in the area. In
reaching this conclusion, the Chamber has considered that Nsengiyumva met with military
officers on the night of 6 to 7 April in order to discuss the situation after the death of the
President (III.3.6.1). Furthermore, it has viewed these events in the context of the other
parallel crimes being committed in Kigali by elite units and other soldiers in the wake of the
death of the President, which were also ordered or authorised by the highest military
authority (III.3.3). In the Chamber’s view, Nsengiyumva’s orders to these assailants to
participate in the crimes substantially assisted in the execution of the attack.
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2149. Bagosora bears superior responsibility for the crimes committed at Mudende
University (IV.1.2). Given the circumstances surrounding the attack there, the Chamber is
satisfied that Bagosora and Nsengiyumva were aware of the participants’ genocidal intent.
Nyundo Parish, 7-9 April (III.3.6.6)
2150. On the afternoon of 7 April 1994, Interahamwe engaged in a targeted attack at the
Nyundo seminary and killed two priests before withdrawing. Later that evening, they killed a
number of Tutsi refugees in the seminary’s chapel. The survivors were evacuated to the
cathedral and the bishop’s residence nearby. On 8 April, the Interahamwe unsuccessfully
attacked Nyundo Parish several times. They returned with reinforcements on the morning of
9 April and killed a number of Tutsi refugees at the parish before gendarmes put an end to the
attack and evacuated several members of religious orders.
2151. Given the nature of the attacks, the Chamber finds that the assailants intentionally
killed members of the Tutsi ethnic group. The large number of Tutsi victims at Nyundo
Parish as well as the extensive evidence of the targeting of members of this group in Rwanda
clearly shows that the assailants who physically perpetrated these attacks possessed the intent
to destroy, in whole or in substantial part, the Tutsi group.
2152. Nsengiyumva clearly had a close connection with militiamen in Gisenyi given his
involvement in their arming and training both before and after April 1994 (III.2.6.2;
III.4.5.1). The Chamber has also concluded that he acted as their superior (IV.1.5). Given the
repeated nature of these assaults, increasing in intensity from targeted killings on 7 April to a
massacre on 9 April, their proximity to the death of the President, the resumption of
hostilities with the RPF, as well as their similarity with parallel killings in Gisenyi and Kigali
involving military authorities, the only reasonable conclusion is that this was a military
operation also ordered by Nsengiyumva. This order from the highest military authority in the
area substantially assisted in the completion of the crime.
2153. As discussed in section IV.1.2, Bagosora bears superior responsibility for the crimes
committed at Nyundo Parish.
2154. Given the circumstances surrounding the attacks at Nyundo Parish the Chamber is
satisfied that Nsengiyumva and Bagosora were aware of the participants’ genocidal intent.
(iii) Bisesero, Kibuye Prefecture, June (III.4.5.1)
2155. In the second half of June 1994, Nsengiyumva dispatched militiamen, whose training
he had overseen, from Gisenyi prefecture to reinforce local forces in an operation in the
Bisesero area of Kibuye prefecture. This followed a request by the interim government to
provide this support. On arrival, the militiamen were chanting “Let’s exterminate them”.
Government and local authorities sent them to kill surviving Tutsi refugees in Bisesero.
2156. The Chamber finds that these assailants participated in the intentional killing of
members of the Tutsi ethnic group. In view of the widespread killing of Tutsis throughout
Rwanda as well as the chanting of “Let’s exterminate them” by the assailants, the Chamber
has no doubt that they participated in the attacks with the intent to destroy, in whole or in
substantial part, the Tutsi group.
2157. Nsengiyumva’s provision of additional resources to conduct the killings in Bisesero
substantially assisted in the completion of the crime. He was requested to send
reinforcements by the interim government and did so with full knowledge of the intended
purpose and genocidal nature of the operation. In the Chamber’s view, Nsengiyumva
Judgement and Sentence
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
therefore aided and abetted the killing of Tutsi refugees in Bisesero by making resources
available to the local authorities in Kibuye prefecture for this purpose.
2.2.4
Conclusion
Bagosora
2158. The Chamber finds Bagosora guilty of genocide (Count 2) for ordering the crime of
genocide committed between 6 and 9 April 1994 at Kigali area roadblocks under Article 6 (1)
and for the crimes committed at the Kabeza, Kibagabaga Mosque, the Saint Josephite Centre,
Karama hill, Kibagabaga Catholic Church, Gikondo Parish, Gisenyi town, Mudende
University and Nyundo Parish as a superior under Article 6 (3) of the Statute. Bagosora is
also liable as a superior for crimes committed at the Kigali area roadblocks (IV.1.2), which
the Chamber will take into account in sentencing.
Kabiligi
2159. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of genocide (Count 2).
Ntabakuze
2160. The Chamber finds Ntabakuze guilty of genocide (Count 2) for the crime of genocide
committed at Kabeza, Nyanza hill and IAMSEA as a superior under Article 6 (3) of the
Statute.
Nsengiyumva
2161. Nsengiyumva is guilty of genocide (Count 2) for ordering the killings in Gisenyi
town, Mudende University, Nyundo Parish and aiding and abetting the killings in Bisesero
under Article 6 (1) of the Statute. For the reasons set forth above, the Chamber is also
satisfied that he could be held responsible as a superior under Article 6 (3) for the crimes
committed in Gisenyi town as well as at Mudende University and Nyundo Parish (IV.1.5).
This will be taken into account in sentencing.
2.3
Complicity in Genocide
2162. Count 3 of the Indictments charge the Accused with complicity in genocide. The
Prosecution has indicated that the count of complicity should be dismissed in the event of a
finding on the count of genocide.2344 Accordingly, the Chamber dismisses this count in
respect of Bagosora, Ntabakuze and Nsengiyumva. The Prosecution did not prove beyond
reasonable doubt that Kabiligi was responsible either directly or as a superior for any of the
crimes alleged against him in his Indictment. Accordingly, the Chamber acquits Kabiligi of
complicity in genocide (Count 3).
2344
Prosecution Closing Brief, para. 2150.
Judgement and Sentence
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18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2.4
Direct and Public Incitement to Commit Genocide
2163. The Prosecution charges Nsengiyumva with direct and public incitement to commit
genocide (Count 4) based on his encouragement of militiamen to kill Tutsi civilians during
meetings held on the morning of 7 April 1994 (III.3.6.2-3) as well as at Umuganda stadium
between April and June 1994 (III.3.6.8).2345 The Prosecution did not prove these allegations
beyond reasonable doubt. Accordingly, the Chamber acquits Nsengiyumva of direct and
public incitement to commit genocide charged under Count 4 of his Indictment.
2345
Nsengiyumva Indictment, paras. 6.14, 6.16, 6.30, Count 4.
Judgement and Sentence
548
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.
3.1
CRIMES AGAINST HUMANITY
Introduction
2164. Counts 4 to 9 of the Bagosora Indictment, Counts 4 to 8 of the Kabiligi and
Ntabakuze Indictment, and Counts 5 to 9 of the Nsengiyumva Indictment charge the Accused
with murder, rape, persecution and inhumane treatment as crimes against humanity under
Article 3 (a), (b), (g-i) of the Statute.
3.2
Widespread and Systematic Attack
2165. For an enumerated crime under Article 3 to qualify as a crime against humanity, the
Prosecution must prove that there was a widespread or systematic attack against the civilian
population on national, political, ethnic, racial or religious grounds.2346 An attack against a
civilian population means the perpetration against that population of a series of acts of
violence, or of the kind of mistreatment referred to in sub-paragraph (a) to (i).2347 Intended to
be read as disjunctive elements, “widespread” refers to the large scale nature of the attack and
the number of targeted persons, while “systematic” describes the organised nature of the acts
of violence and the improbability of their random occurrence.2348
2166. As concerns the mens rea, the perpetrator must have acted with knowledge of the
broader context and knowledge that his acts formed part of the attack, but need not share the
purpose or goals of the broader attack.2349 The additional requirement that crimes against
humanity have to be committed “on national, political, ethnic, racial or religious grounds”
does not mean that a discriminatory mens rea must be established.2350
2167. The Chamber has considered the totality of the evidence, in particular concerning the
ethnic composition of the individuals who sought refuge at various sites as well as the actual
or perceived political leanings of many of those killed or singled out at roadblocks in the days
after President Habyarimana’s death. It finds that there were widespread and systematic
attacks against the civilian population on ethnic and political grounds between April and July
1994. It is inconceivable that the principal perpetrators of these attacks as well as the Accused
did not know that their actions formed part of this attack. As high-ranking military officers,
the Accused would have been familiar with the situation unfolding both nationally and in
2346
Semanza Appeal Judgement, paras. 326-332, citing Akayesu Trial Judgement, para. 578; Rutaganda Trial
Judgement, para. 73; Akayesu Appeal Judgement, paras. 467, 469; Ntakirutimana Appeal Judgement, para. 516;
Ntagerura et al. Trial Judgement, paras. 697-698; Mpambara Trial Judgement, para. 11; Simba Trial
Judgement, para. 421; Gacumbitsi Trial Judgement, para. 299; Tadić Appeal Judgement, paras. 248, 255.
2347
Nahimana et al. Appeal Judgement, paras. 915-918; Kordić and Čerkez Appeal Judgement, para. 666;
Kunarac et al. Appeal Judgement, para. 89; Kunarac et al. Trial Judgement, para. 415.
2348
Nahimana et al. Appeal Judgement, para. 920, quoting Kordić and Čerkez Appeal Judgement, para. 94;
Ntakirutimana Appeal Judgement, para. 516; Mpambara Trial Judgement, para. 11; Semanza Trial Judgement,
paras. 328-329; Kunarac et al. Trial Judgement, para. 429; Kunarac et al. Appeal Judgement, para. 94;
Gacumbitsi Appeal Judgement, para. 101, citing Gacumbitsi Trial Judgement, para. 299; Stakić Appeal
Judgement, para. 246; Blaškić Appeal Judgement, para. 101; Limaj et al. Trial Judgement, para. 180; Brđanin
Trial Judgement, para. 133.
2349
Gacumbitsi Appeal Judgement, paras. 86, 103, citing Tadić Appeal Judgement, paras. 251-252; Galić
Appeal Judgement, para. 142; Semanza Appeal Judgement, paras. 268-269; Simba Trial Judgement, para. 421;
Kordić and Čerkez Appeal Judgement, para. 99; Kunarac et al. Trial Judgement, para. 434; Kunarac et al.
Appeal Judgement, para. 102; Blaškić Appeal Judgement, paras. 124-127.
2350
Akayesu Trial Judgement, paras. 464-469, 595; Bagilishema Trial Judgement, para. 81.
Judgement and Sentence
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areas under their control. Many of the attacks or massacres where open and notorious. The
Chamber has also concluded that Bagosora, Ntabakuze and Nsengiyumva ordered or
authorised many of these attacks.
3.3
3.3.1
Murder
Introduction
2168. Counts 4 and 5 of the Bagosora Indictment, Count 5 of the Nsengiyumva Indictment,
and Count 4 of the Kabiligi and Ntabakuze Indictment charge the Accused with murder as a
crime against humanity under Article 3 (a) of the Statute.
3.3.2
Law
2169. Murder is the intentional killing of a person without any lawful justification or excuse
or the intentional infliction of grievous bodily harm leading to death with knowledge that
such harm will likely cause the victim’s death.2351
3.3.3
Deliberations
2170. The Chamber has already determined that the killing of Tutsis at roadblocks in Kigali
between 7 and 9 April 1994, as well as during the attacks in Kabeza, Kibagabaga Mosque,
the Saint Josephite Centre, Karama hill, Kibagabaga Catholic Church, Nyanza hill, IAMSEA,
Gisenyi town on 7 April, Mudende University, Nyundo Parish and Bisesero constituted
genocide. On the same basis, the Chamber is satisfied that these intentional murders were
conducted on ethnic grounds.
2171. Some Hutus were likely killed during these attacks, even though they were principally
directed at Tutsis. As they formed part of the attack on ethnic grounds they constitute murder
as a crime against humanity.2352 At roadblocks, in Kabeza, and during the targeted killings in
Gisenyi town on 7 April, there is evidence that the killings were also conducted on political
grounds. In particular, roadblocks were equally established to identify members of the
political opposition and those suspected of being RPF accomplices. Kabeza was viewed as a
neighbourhood populated by Tutsis and individuals sympathetic to the RPF. The killings in
Gisenyi town also mirror targeted assassinations on political grounds conducted at the same
time in Gisenyi and in Kigali. These crimes therefore formed part of the attack on political
grounds.
2172. The Chamber has already determined that Bagosora bears responsibility for the
crimes committed at Kigali area roadblocks, Kabeza, Kibagabaga Mosque, the Saint
Josephite Centre, Karama hill, Kibagabaga Catholic Church, Gisenyi town on 7 April,
Mudende University and Nyundo Parish as a superior under Article 6 (3) (IV.2.4). It also
concluded that Ntabakuze is responsible as a superior for crimes committed in Kabeza,
Nyanza hill and IAMSEA (IV.2.4), and that Nsengiyumva is responsible for ordering or
aiding and abetting the killings in Gisenyi town on 7 April, Mudende Universiy, Nyundo
2351
Decision on Motions for Judgement of Acquittal, para. 25; Karera Trial Judgement, para. 558. The Chamber
notes that some Trial Chambers have held that murder requires an element of pre-meditation, not only intent.
Bagilishema Trial Judgement, para. 86, Ntagerura et al. Trial Judgement, para. 700; Semanza Trial Judgement,
para. 339. In the present case, the Chamber is satisfied that the killings at issue would constitute murder as a
crime against humanity under both standards.
2352
Muhimana Appeal Judgement, para. 174; Semanza Trial Judgement, para. 330.
Judgement and Sentence
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Parish and Bisesero (IV.2.4). As discussed above, the assailants and the Accused were aware
that these events formed part of widespread and systematic attacks against the civilian
population on ethnic and political grounds (IV.3.2).
2173. The Chamber will discuss below whether the three Accused also bear criminal
responsibility for the other crimes which did not constitute genocide.
(i) Kigali and Its Environs
Belgian Peacekeepers, 7 April (III.3.4)
2174. On the morning of 7 April 1994, 10 Belgian peacekeepers dispatched to escort Prime
Minister Agathe Uwilingiyimana to Radio Rwanda were arrested and disarmed during an
attack by Rwandan soldiers on her residence. The peacekeepers were taken to Camp Kigali
where four were beaten to death by a mob of soldiers. The beatings did not stop even though
some officers at the camp tried to verbally intervene. Six peacekeepers were able to seek
refuge in the UNAMIR office there and fend off the assailants for several hours after
disarming a Rwandan soldier. They were later killed by high powered weapons. In view of
the circumstances surrounding these attacks, the Chamber finds that these murders were
premeditated.
2175. Considering their status as United Nations peacekeepers and that they were disarmed,
the Chamber is satisfied that the victims could not be considered as combatants.2353 The fact
that the peacekeepers were able to obtain a weapon during the course of the attack in order to
defend themselves against a mob of soldiers intending to kill them can in no way alter this
conclusion.
2176. The peacekeepers were arrested and disarmed during the course of an attack on the
Prime Minister, which the Chamber concluded above was part of the attack against the
civilian population on political grounds. UNAMIR and the Belgian contingent in particular
were also seen as sympathetic to the RPF and Tutsis in general (III.1.3). Immediately after
the death of the President, the Belgian contingent was blamed for downing his plane by
RTLM as well as by some of the assailants at the camp. Therefore, it is clear that the killing
of the peacekeepers formed part of the widespread and systematic attack on political and
ethnic grounds.
2177. The Chamber has concluded that Bagosora bears superior responsibility for the crimes
committed against these individuals (IV.1.2). The assailants and Bagosora were aware that
these attacks formed part of widespread and systematic attacks against the civilian population
on ethnic and political grounds (IV.3.2).
2353
In the Martić case, the Appeals Chamber determined that the definition of civilians contained in Article 50
of Additional Protocol I reflects the definition of civilian for the purpose of applying crimes against humanity.
The term civilian in that context does not include persons hors de combat. The Appeals Chamber held that,
according to the Statute, a person hors de combat may be the victim of an act amounting to a crime against
humanity, provided that all other necessary conditions are met, in particular that the act in question is part of a
widespread or systematic attack against any civilian population. See Martić Appeal Judgement, paras. 302, 313
(referring to Article 5 of the ICTY Statute concerning crimes against humanity).
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Prominent Personalities and Opposition Political Officials, 7 April (III.3.3)
2178. On the morning of 7 April 1994, members of elite army units, including the
Presidential Guard, Para Commando Battalion and Reconnaissance Battalion, systematically
targeted and killed Agathe Uwilingiyimana, Joseph Kavaruganda, Frédéric Nzamurambaho,
Landoald Ndasingwa and Faustin Rucogoza, who were all prominent personalities or
opposition political officials. The Chamber has described this as an organised military
operation ordered or authorised at the highest level of the Rwandan military. In view of the
nature of these operations, the Chamber finds that they were intentionally murdered. In
addition, bearing in mind the actual or perceived political leanings of these individuals, it is
clear that they formed part of a systematic attack against civilians on political grounds.
2179. The Chamber concluded that Bagosora bears superior responsibility under Article 6
(3) of the Statute for the crimes against these individuals (IV.1.2).2354 The assailants and
Bagosora were aware that they formed part of a systematic attack against the civilian
population on political grounds (IV.3.2).
Centre Christus, 7 April (III.3.5.2)
2180. On 7 April 1994, soldiers killed 17 Rwandans at Centre Christus in the Remera area
of Kigali. The civilians were first identified by the Centre’s register and locked in a room.
The soldiers later returned to kill them with guns and grenades. One of the victims, Father
Mahame, was a prominent personality in Rwanda and was on a list of suspected accomplices
of the RPF. The circumstances surrounding the attack reflect that it was a targeted killing on
political grounds similar to others perpetrated against prominent personalities or opposition
figures on the morning of 7 April. The testimony of Bagosora, who was informed of
Mahame’s death that evening, also suggests that the attack was directed primarily at the
priest.
2181. The Chamber concluded that Bagosora bears superior responsibility under Article 6
(3) for the crimes at Centre Christus (IV.1.2). The assailants and Bagosora were aware that
these attacks formed part of a systematic attack against the civilian population on political
grounds (IV.3.2).
Augustin Maharangari, 8 April (III.3.5.6)
2182. Soldiers killed Augustin Maharangari, the Director of the Rwandan Bank of
Development, at his residence on 8 April 1994. The evidence reflects that Maharangari was
suspected of being an RPF accomplice. His killing also mirrors other targeted assassinations
in the wake of the death of President Habyarimana (III.3.3; III.3.5.2; III.3.6.1; III.3.6.5). It is
clear that his killing was premeditated and conducted on political grounds. The Chamber has
considered, as the only reasonable inference, that Bagosora in the exercise of his authority
between 6 and 9 April ordered the political assassinations conducted throughout Kigali and
Gisenyi prefecture (III.3.5.6). He therefore is responsible for ordering, under Article 6 (1), the
2354
The Chamber concluded that the Second Company of the Para Commando Battalion, which participated in
these attacks, had been previously and temporarily subordinated to the Presidential Guard at Camp Kimihurura
and thus were not under Ntabakuze’s effective control at the time of the attack (III.3.3.3).
Judgement and Sentence
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murder of Maharangari.2355 The assailants and Bagosora were aware that these killings
formed part a systematic attack against the civilian population on political grounds (IV.3.2).
(ii) Gisenyi Prefecture
Alphonse Kabiligi, 7 April (III.3.6.5)
2183. Alphonse Kabiligi was brutally murdered on the evening of 7 April. During the course
of the attack, soldiers asked to see his identity card and noted that it was bad that he was from
Butare prefecture. They also demanded to see his RPF documents before cutting off his arm
and taking him outside and shooting him. The Chamber has found that Kabiligi was on a list
of suspected accomplices of the RPF maintained by the Rwandan army. It is clear that his
murder was premeditated and on political grounds.
2184. In assessing Nsengiyumva’s responsibility, the Chamber has viewed the killing of
Alphonse Kabiligi in connection with the participation of soldiers and militiamen in the
killings at Mudende University (III.3.6.7) and the other targeted killings on 7 April in Gisenyi
town (III.3.6.1). Given the nature of these assaults and the involvement of soldiers under
Nsengiyumva’s command (IV.1.5), the Chamber finds as the only reasonable conclusion that
the killing of Alphonse Kabiligi was ordered by Nsengiyumva, the highest military authority
in the area. In making this finding, the Chamber has taken into consideration that
Nsengiyumva met with military officers on the night of 6 to 7 April in order to discuss the
situation in the aftermath of the death of President Habyarimana (III.3.6.1). Furthermore, it
has viewed these events in the context of the other parallel crimes being committed in Kigali
by elite units and other soldiers in the wake of the death of President Habyarimana, which
were also ordered or authorised by the highest military authority (III.3.3; III.3.5.6). In the
Chamber’s view, Nsengiyumva’s orders to these assailants to participate in the crimes
substantially assisted in their execution.
2185. Bagosora bears superior responsibility for the murder of Alphonse Kabiligi (IV.1.2).
The assailants and the Accused were aware that this killing formed part of a systematic attack
against the civilian population on political grounds (IV.3.2).
3.3.4
Conclusion
Bagosora
2186. The Chamber finds Bagosora guilty of murder as a crime against humanity (Count 4)
for ordering the murder of Augustin Maharangari and the killings committed between 7 and 9
April 1994 at Kigali area roadblocks under Article 6 (1) of the Statute. He is also responsible
as a superior under Article 6 (3) for the murders of Agathe Uwilingiyimana, Joseph
Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza and
civilians at Centre Christus, Kabeza, the Kibagabaga Mosque, the Saint Josephite Centre,
Karama hill, Kibagabaga Catholic Church, Gikondo Parish, Gisenyi town on 7 April,
including Alphonse Kabiligi, Mudende University and Nyundo Parish. Furthermore, he is
responsible for murder as a crime against humanity (Count 5) for the deaths of the 10 Belgian
peacekeepers as a superior under Article 6 (3). Bagosora is liable as a superior for crimes
2355
The murder of Augustin Maharangari is charged against Bagosora under Article 6 (1), while the killing of
the other prominent personalities is charged only under Article 6 (3).
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
committed at the Kigali area roadblocks (IV.1.2), which the Chamber will take into account
in sentencing.
Kabiligi
2187. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of murder as a crime against humanity (Count 4).
Ntabakuze
2188. The Chamber finds Ntabakuze guilty of murder as a crime against humanity (Count 4)
for the crimes committed at Kabeza, Nyanza hill and IAMSEA as a superior under Article 6
(3) of the Statute.
Nsengiyumva
2189. Nsengiyumva is guilty of murder as a crime against humanity (Count 5) for ordering
the killings in Gisenyi town, including Alphonse Kabiligi, Mudende University, Nyundo
Parish and for aiding and abetting the killings in Bisesero under Article 6 (1) of the Statute.
The Chamber is also satisfied that he could be held responsible as a superior under Article 6
(3) for the crimes committed in Gisenyi town as well as at Mudende University and Nyundo
Parish (IV.1.5). This will be taken into account in sentencing.
3.4
3.4.1
Extermination
Introduction
2190. Count 6 of the Bagosora and Nsengiyumva Indictments, and Count 5 of the Kabiligi
and Ntabakuze Indictment charge the Accused with extermination as a crime against
humanity under Article 3 (b) of the Statute.
3.4.2
Law
2191. The crime of extermination is the act of killing on a large scale.2356 The actus reus
consists of any act, omission, or combination thereof which contributes directly or indirectly
to the killing of a large number of individuals.2357 Although extermination is the act of killing
a large number of people, such a designation does not suggest that a numerical minimum
must be reached.2358 The mens rea of extermination requires that the accused intend to kill
persons on a massive scale or to subject a large number of people to conditions of living that
would lead to their deaths in a widespread or systematic manner.2359
2356
Seromba Appeal Judgement, para. 189; Ntakirutimana Appeal Judgement, para. 516.
Seromba Appeal Judgement, para. 189; Ndindabahizi Appeal Judgement, para. 123.
2358
Brđanin Appeal Judgement, para. 470; Gacumbitsi Appeal Judgement, para. 86; Ntakirutimana Appeal
Judgement, para. 522; Semanza Appeal Judgement, paras. 268-269; Simba Trial Judgement, para. 422.
2359
Brđanin Appeal Judgement, para. 476; Stakić Appeal Judgement, paras. 259-260; Gacumbitsi Appeal
Judgement, para. 86; Ntakirutimana Appeal Judgement, para. 522.
2357
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554
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.4.3
Deliberations
2192. Several of the events charged as extermination when viewed separately do not satisfy
the threshold of killing on a large-scale, in particular the targeted political assassinations.
However, the Chamber has considered the events for which the Accused have been held
responsible together since they are essentially part of the same widespread and systematic
attacks against the civilian population on political and ethnic grounds. In this respect, the
Chamber emphasises the relatively brief time period in which these crimes were committed
and that each of them were based on the same set of orders or authorisation from the
Accused.
2193. It is clear therefore that the following killings satisfy either in themselves or
collectively the requirement of killings on a large-scale: Agathe Uwilingiyimana, Joseph
Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza (III.3.3),
Alphonse Kabiligi (III.3.6.5) and Augustin Maharangari (III.3.5.6) as well as civilians at
roadblocks in the Kigali area between 7 and 9 April (III.5.1), at Centre Christus (III.3.5.2),
the Kibagabaga Mosque (III.3.5.3), Kabeza (III.3.5.4), the Saint Josephite Centre (III.3.5.5),
Karama hill and Kibagabaga Catholic Church (III.3.5.7), Gikondo Parish (III.3.5.8), Nyanza
hill (III.4.1.1), IAMSEA (III.4.1.4), Gisenyi town (III.3.6.1), Nyundo Parish (III.3.6.6),
Mudende University (III.3.6.7) and Bisesero (III.4.5.1). Each of these killings were
conducted on the basis of ethnic and political grounds (IV.3.3.3). As also noted above, the
assailants and the Accused were aware that these attacks formed part of widespread and
systematic attacks against the civilian population on ethnic and political grounds (IV.3.2).
3.4.4
Conclusion
Bagosora
2194. The Chamber finds Bagosora guilty of extermination as a crime against humanity
(Count 6) for the killing of Augustin Maharangari as well as those committed between 7 and
9 April 1994 at Kigali area roadblocks under Article 6 (1) of the Statute. He is responsible as
a superior under Article 6 (3) for the killings of Agathe Uwilingiyimana, Joseph
Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza and
Alphonse Kabiligi as well as for the crimes committed at Centre Christus, Kabeza, the
Kibagabaga Mosque, the Saint Josephite Centre, Karama hill, Kibagabaga Catholic Church,
Gikondo Parish, Gisenyi town, Mudende University and Nyundo Parish. Bagosora is also
liable as a superior for crimes committed at the Kigali area roadblocks (IV.1.2), which the
Chamber will take into account in sentencing.
Kabiligi
2195. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of extermination as a crime against humanity
(Count 5).
Ntabakuze
2196. The Chamber finds Ntabakuze guilty of extermination as a crime against humanity
(Count 5) for the crime of genocide committed at Kabeza, Nyanza hill and IAMSEA as a
superior under Article 6 (3) of the Statute.
Judgement and Sentence
555
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Nsengiyumva
2197. Nsengiyumva is guilty of extermination as a crime against humanity (Count 6) for
ordering the killings in Gisenyi town on 7 April, including Alphonse Kabiligi, Mudende
University, Nyundo Parish and for aiding and abetting the killings in Bisesero under Article 6
(1) of the Statute. For the reasons set forth above, the Chamber is also satisfied that he could
be held responsible as a superior under Article 6 (3) for the crimes committed in Gisenyi
town as well as at Mudende University and Nyundo Parish. This will be taken into account in
sentencing.
3.5
3.5.1
Rape
Introduction
2198. Count 7 of the Bagosora and Nsengiyumva Indictments and Count 6 of the Kabiligi
and Ntabakuze Indictment charge the Accused with rape as a crime against humanity under
Article 3(g) of the Statute.
3.5.2
Law
2199. Rape as a crime against humanity requires proof of the non-consensual penetration,
however slight, of the vagina or anus of the victim by the penis of the perpetrator or by any
other object used by the perpetrator, or of the mouth of the victim by the penis of the
perpetrator.2360 Consent for this purpose must be consent given voluntarily and freely and is
assessed within the context of the surrounding circumstances.2361 Force or threat of force
provides clear evidence of non-consent, but force is not an element per se of rape.2362
2200. The mens rea for rape as a crime against humanity is the intention to effect the
prohibited sexual penetration with the knowledge that it occurs without the consent of the
victim.2363
3.5.3
Deliberations
2201. The Chamber has found that acts of rape occurred during attacks on civilians at Kigali
area roadblocks (III.5.1), the Saint Josephite Centre (III.3.5.5) and Gikondo Parish (III.3.5.8).
It is clear that, given the circumstances surrounding these attacks, there could have been no
consent for these acts of sexual violence and that the perpetrators would have known this fact.
The Chamber has determined that the crimes at these locations were committed as part of a
wide-spread and systematic attack on ethnic and political grounds (IV.3.2).
2202. Bagosora bears superior responsibility for the crimes committed at Kigali area
roadblocks between 7 and 9 April, the Saint Josephite Centre and Gikondo Parish
(IV.1.2).2364 As noted above, the assailants and the Accused were aware that these attacks
formed part of widespread and systematic attacks against the civilian population on ethnic
and political grounds (IV.3.2).
2360
Kunarac et al. Appeal Judgement, paras. 127-128; Semanza Trial Judgement, para. 344.
Kunarac et al. Appeal Judgement, paras. 127-133; Semanza Trial Judgement, para. 344.
2362
Kunarac et al. Appeal Judgement, para. 129.
2363
Id. para. 127; Semanza Trial Judgement, para. 346.
2364
Bagosora is charged with rape as a crime against humanity only under Article 6 (3) of the Statute.
2361
Judgement and Sentence
556
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.5.4
Conclusion
Bagosora
2203. The Chamber finds Bagosora guilty of rape as a crime against humanity (Count 7) for
the rapes committed between 7 and 9 April 1994 at Kigali area roadblocks, at the Saint
Josephite Centre and Gikondo Parish under Article 6 (3).
Kabiligi
2204. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of rape as a crime against humanity (Count 6).
Ntabakuze
2205. The Prosecution did not prove beyond reasonable doubt that Ntabakuze was
responsible either directly or as a superior for any of the rapes alleged against him in his
Indictment (III.4.1.1; III.4.4.1). Accordingly, the Chamber acquits Ntabakuze of rape as a
crime against humanity (Count 6).
Nsengiyumva
2206. The Prosecution did not prove beyond reasonable doubt that Nsengiyumva was
responsible either directly or as a superior for any of the rapes alleged against him in his
Indictment (III.4.2.6). Accordingly, the Chamber acquits Nsengiyumva of rape as a crime
against humanity (Count 7).
3.6
3.6.1
Persecution
Introduction
2207. Count 8 of the Bagosora and Nsengiyumva Indictments, and Count 7 of the Kabiligi
and Ntabakuze Indictment charge the Accused with persecution as a crime against humanity
under Article 3 (h) of the Statute.
3.6.2
Law
2208. The Appeal Chamber has established that “the crime of persecution consists of an act
or omission which discriminates in fact and which: denies or infringes upon a fundamental
right laid down in international customary or treaty law (the actus reus); and was carried out
deliberately with the intention to discriminate on one of the listed grounds, specifically race,
religion or politics (the mens rea).”2365 The required discriminatory intent can be inferred
2365
Nahimana et al. Appeal Judgement, para. 985, quoting Krnojelac Appeal Judgement, para. 185. See also
Simić Appeal Judgement, para. 177; Stakić Appeal Judgement, paras. 327-328; Kvočka et al. Appeal Judgement,
para. 320; Kordić and Čerkez Appeal Judgement, para. 101; Blaškić Appeal Judgement, para. 131; Vasiljević
Appeal Judgement, para. 113.
Judgement and Sentence
557
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
from circumstantial evidence, such as the nature of the attack and the circumstances
surrounding it.2366
2209. The enumerated grounds of discrimination for persecution in Article 3 (h) of the
Statute do not expressly include ethnic grounds, which is included in the list of
discriminatory grounds for the attack contained in the chapeau of Article 3. Notwithstanding,
the Appeals Chamber in the Nahimana et al. case held that discrimination on ethnic grounds
could constitute persecution if the accompanying violation of rights was sufficiently serious,
such as killings, torture and rape. It affirmed a conviction for persecution based on the
supervision of roadblocks where Tutsis were killed.2367
3.6.3
Deliberations
2210. The Chamber has found Bagosora, Ntabakuze and Nsengiyumva responsible
variously for the killings of Agathe Uwilingiyimana, Joseph Kavaruganda, Frédéric
Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza, Alphonse Kabiligi and Augustin
Maharangari as well as of civilians at Kigali area roadblocks between 7 and 9 April, Centre
Christus, Kabeza, the Kibagabaga Mosque, the Saint Josephite Centre, Karama hill,
Kibagabaga Catholic Church, Gikondo Parish, Nyanza hill, IAMSEA, Gisenyi town on 7
April, Mudende University, Nyundo Parish and Bisesero (IV.3.3.4). It has also held Bagosora
responsible for the rapes committed at Kigali area roadblocks, the Saint Josephite Centre and
Gikondo Parish.
2211. The Chamber has already determined that these crimes formed part of the widespread
and systematic attack against civilians on ethnic and political grounds (IV.3.4.3; IV.3.5.3).
These crimes are also charged in their respective Indictments as persecution.
2212. In the Chamber’s view, these acts of killing and rape equally establish the actus reus
of persecution. Furthermore, the circumstances surrounding the attacks clearly evince that the
perpetrators had the requisite discriminatory intent on ethnic or political grounds. In
particular, for many of these crimes, the Chamber has already found that the assailants
possessed genocidal intent (IV.2.2.3). The assailants and the Accused were aware that these
attacks formed part of widespread and systematic attacks against the civilian population on
ethnic and political grounds (IV.3.2).
3.6.4
Conclusion
Bagosora
2213. The Chamber finds Bagosora guilty of persecution as a crime against humanity
(Count 8) for the killing of Augustin Maharangari and the crimes committed between 7 and 9
April 1994 at Kigali area roadblocks under Article 6 (1). He is liable as a superior under
Article 6(3) of the Statute for the killings of Agathe Uwilingiyimana, Joseph Kavaruganda,
Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza as well as the crimes
committed at Centre Christus, Kabeza, the Kibagabaga Mosque, the Saint Josephite Centre,
Karama hill, Kibagabaga Catholic Church, Gikondo Parish, Gisenyi town, Mudende
University and Nyundo Parish. Bagosora is also liable as a superior for the crimes committed
2366
Nahimana et al. Appeal Judgement, para. 986; Blaškić Appeal Judgement, para. 164; Krnojelac Appeal
Judgement, para. 184.
2367
Nahimana et al. Appeal Judgement, paras. 986-988, 1002.
Judgement and Sentence
558
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
at the Kigali area roadblocks (IV.1.2), which the Chamber will take into account in
sentencing.
Kabiligi
2214. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of persecution as a crime against humanity
(Count 7).
Ntabakuze
2215. The Chamber finds Ntabakuze guilty of persecution as a crime against humanity
(Count 7) for the killings committed at Kabeza, Nyanza hill and IAMSEA as a superior under
Article 6 (3) of the Statute.
Nsengiyumva
2216. Nsengiyumva is guilty of persecution as a crime against humanity (Count 8) for
ordering the killings in Gisenyi town, Mudende University, Nyundo Parish and aiding and
abetting the killings in Bisesero under Article 6 (1) of the Statute. The Chamber is also
satisfied that he could be held responsible as a superior under Article 6 (3) for the killings
committed in Gisenyi town as well as at Mudende University and Nyundo Parish (IV.1.5).
This will be taken into account in sentencing.
3.7
3.7.1
Other Inhumane Acts
Introduction
2217. Count 9 of the Bagosora and Nsengiyumva Indictments and Count 8 of the Kabiligi
and Ntabakuze Indictment charge the Accused with inhumane acts as a crime against
humanity under Article 3 (i) of the Statute.
3.7.2
Law
2218. The crime of inhumane acts is a residual clause for serious acts which are not
otherwise enumerated in Article 3.2368 They must be similar in gravity to the acts envisaged in
Article 3 and must cause mental or physical suffering or injury or constitute a serious attack
on human dignity.2369 The mens rea required is the intent to inflict serious bodily or mental
harm upon the victim and the knowledge that the act or omission is part of a widespread and
systematic attack.2370
Kordić and Čerkez Appeal Judgement, para. 117.
Galić Appeal Judgement, para. 155; Kordić and Čerkez Appeal Judgement, para. 117; Musema Trial
Judgement, para. 232.
2370
Kayishema and Ruzindana Trial Judgement, paras. 148-151, 583; Musema Trial Judgement, para. 232;
Delalić et al. Trial Judgement, para. 536; Kunarac Trial Judgement, para. 504; Kordić and Čerkez Appeal
Judgement, para. 117.
2368
2369
Judgement and Sentence
559
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.7.3
Deliberations
2219. The sole reference in the Indictments to inhumane treatment is the sexual assault of
Prime Minister Uwilingiyimana.2371 The Chamber found that a bottle was inserted into her
vagina after her death (III.3.3.2).2372
2220. In its Closing Brief, the Prosecution refers to several incidents of inhumane treatment
occurring during the course of attacks in which the Chamber has implicated the Accused. In
particular, it points to prevention of refugees from seeking sanctuary and the suffering of
small children left to die next to their murdered parents in connection with the attack at
Nyanza hill, the sheparding of refugees to Gikondo Parish where they were killed as well as
the slow and atrocious manner in which people were murdered there, the forcing of victims to
dig their own graves and the throwing of them alive into latrines before killing them at
Karama hill, the stripping of women before killing them at the Saint Josephite Centre and the
brutal murder of Alphonse Kabiligi in front of his family.2373
2221. The Indictments do not refer to these specific acts of inhumane treatment. However,
the Chamber accepts that notice was provided in the Prosecution’s Pre-Trial Brief for the
prevention of refugees killed at Nyanza hill from seeking sanctuary, the sheparding of Tutsis
to Gikondo Parish to be killed in a house of worship, the stripping of women at the Saint
Josephite centre and the torture and murder of Alphonse Kabiligi in front of his family.2374
2222. The Chamber is satisfied that each of these acts conducted in the course of the attacks
against the Prime Minister, Alphonse Kabiligi as well as the civilians at Gikondo Parish,
Nyanza hill and the Saint Josephite Centre constitutes a serious attack on human dignity. In
the circumstances of the attacks, it is clear that they were perpetrated with the intent to cause
serious bodily or mental harm to the victims. The Chamber has already determined that the
2371
Bagosora Indictment, para. 6.9; Kabiligi and Ntabakuze Indictment, para. 6.8; Nsengiyumva Indictment,
para. 6.7. In its Closing Brief, the Prosecution does not point to the sexual assault against the Prime Minister as
an act of inhumane treatment, but instead mentions it as evidence which would put the Accused on notice of the
propensity of soldiers to commit acts of sexual violence. See Prosecution Closing Brief, paras. 155-156. Since it
is clearly pleaded in the Indictments and mentioned in the Closing Brief, the Chamber does not consider that the
Prosecution has abandoned this as a basis of conviction.
2372
In the Niyitegeka case, the accused was held responsible for other inhumane acts for his role in the
desecration of a man’s genitals and the insertion of a sharpened piece of wood in a woman’s vagina after they
were killed. See Niyitegeka Trial Judgement, paras. 459-467. The appeal against these convictions was
dismissed. Niyitegeka Appeal Judgement, paras. 132, 183.
2373
Prosecution Closing Brief, paras. 203-205, 207-208, 214, 217-218.
2374
With respect to Nyanza hill, the summary of Witness AR’s anticipated testimony annexed to the Pre-Trial
Brief states: “On 11th April 1994, the UNAMIR soldiers evacuated from ETO. The witness left the site. The
witness and other refugees, were stopped by soldiers … The refugees were turned back and led towards the
ETO.” See Prosecution Pre-Trial Brief (21 January 2002), p. 10. The Chamber has extensively discussed the
notice for the attack in general in section III.4.1.1. Concerning Gikondo Parish, the summary of Witness UT’s
anticipated testimony annexed to the Pre-Trial Brief states: “Some refugees were killed inside the church and
some outside”. See Prosecution Pre-Trial Brief (21 January 2002), p. 133. As for the Saint Josephite Centre, the
summary of Witness DBJ’s anticipated testimony annexed to the Pre-Trial Brief states: “Some of the victims
were naked, men and women.” See id. p. 43. With respect to Alphonse Kabiligi, the summary of the anticipated
testimony of Witness AS states: “At about 8.00 p.m. [Alphonse Kabiligi’s] family were attacked … They started
torturing the witness and other persons in the house. The soldier stated that his was wanted [Kabiligi] for
interrogation. [Kabiligi] was cut by a machete and led outside where he was killed.” See id. pp. 10-11. In the
revision to the Pre-Trial Brief, filed on 7 June 2002, each of these witnesses is listed under a relevant paragraph
in the Indictments which is charged as other inhumane acts.
Judgement and Sentence
560
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
assailants would have been aware that they formed part of the wide-spread and systematic
attack against the civilian population on ethnic and political grounds (IV.3.2).
2223. Bagosora bears superior responsibility under Article 6 (3) of the Statute for the crimes
committed against the Prime Minister and Alphonse Kabiligi as well as the civilians at the
Saint Josephite Centre and Gikondo Parish (IV.1.2). Ntabakuze bears superior responsibility
under Article 6 (3) for the crimes committed in connection with the Nyanza hill massacre
(IV.1.4). Nsengiyumva is directly responsible under Article 6 (1) for ordering the death of
Alphonse Kabiligi (IV.3.3.4). He is also responsible as a superior which will be taken into
account during sentencing (IV.1.5).
3.7.4
Conclusion
Bagosora
2224. The Chamber finds Bagosora guilty of other inhumane acts as a crime against
humanity (Count 9) as a superior under Article 6 (3) in connection with the sexual assault of
the Prime Minister, the torture and murder of Alphonse Kabiligi in front of his family, the
stripping of female refugees at the Saint Josephite Centre and the sheparding of refugees to
Gikondo Parish, where they were killed.
Kabiligi
2225. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of other inhumane acts as a crime against
humanity (Count 8).
Ntabakuze
2226. The Chamber finds Ntabakuze guilty of other inhumane acts as a crime against
humanity (Count 8) as a superior under Article 6 (3) for preventing the refugees killed at
Nyanza hill from seeking sanctuary.
Nsengiyumva
2227. Nsengiyumva is guilty of other inhumane acts as a crime against humanity (Count 8)
for ordering under Article 6 (1) the killing of Alphonse Kabiligi which was done in a brutal
manner in front of his family.
Judgement and Sentence
561
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.
SERIOUS VIOLATIONS OF ARTICLE 3 COMMON TO THE GENEVA
CONVENTIONS AND ADDITIONAL PROTOCOL II
4.1
Introduction
2228. Counts 10, 11 and 12 of the Bagosora Indictment, Counts 9 and 10 of the Kabiligi and
Ntabakuze Indictment and Counts 10 and 11 of the Nsengiyumva Indictment charge the
Accused with 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 under Articles 4 (a) and 4 (e) of the Statue for violence to life and outrages upon
personal dignity.
4.2
4.2.1
Threshold Elements
Law
2229. In connection with crimes within the scope of Article 4 of the Statute, the Prosecution
must prove, as a threshold matter, the following elements: (1) the existence of a noninternational armed conflict; (2) the existence of a nexus between the alleged violation and
the armed conflict; and (3) that the victims were not directly taking part in the hostilities at
the time of the alleged violation.2375
4.2.2
Non-International Armed Conflict
2230. The evidence reflects that, on 1 October 1990, the RPF, made up mostly members of
Rwanda’s community of exiled Tutsis living in surrounding countries, invaded the territory
of Rwanda from Uganda. The initial invasion was repulsed by Rwandan government forces,
but the RPF remained in a portion of the northern border region of Rwanda. Between October
1990 and April 1994, the RPF and the Rwandan government negotiated several cease fire
agreements, which were frequently violated.2376 In August 1993, the parties to the conflict
had finally agreed to a peace agreement, the Arusha Accords, which called for the integration
of forces and the political participation of the RPF in a Broad-Based Transitional
Government (III.1.1). At the time active hostilities resumed between the RPF and the
Rwandan government in April 1994, they were awaiting the integration of forces and the
creation of the Broad-Based Transitional Government provided for by the Arusha Accords. In
view of these circumstances, it is established that during the relevant period an armed conflict
of a non-international character existed on the territory of Rwanda.
4.2.3
Nexus
2231. A nexus exists between the alleged offence and the non-international armed conflict
when the offence is closely related to the hostilities. In determining whether the requisite
close relation exists, the jurisprudence of the Tribunal reflects:
[T]he existence of armed conflict must, at a minimum, have played a substantial part in
the perpetrator’s ability to commit [the offence], 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
2375
Akayesu Appeal Judgement, para. 438; Ntagerura et al. Trial Judgement, para. 766; Semanza Trial
Judgement, para. 512.
2376
Section III.1.1 (Arusha Accords); Prosecution Exhibit 3 (Expert Report of Alison Des Forges), pp. 12-14.
Judgement and Sentence
562
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
established … that the perpetrator acted in furtherance of or under the guise of the armed
conflict, it would be sufficient to conclude that his acts were closely related to the armed
conflict.2377
2232. As reflected in the evidence and previous case law, the ongoing armed conflict
between the Rwandan government forces and the RPF, which was identified with the Tutsi
ethnic minority in Rwanda and many members of the political opposition, both created the
situation and provided a pretext for the extensive killings and other abuses of members of the
civilian population in Rwanda. The killings began within hours of the death of President
Habyarimana and on the same day the active hostilities resumed between the RPF and
government forces.2378
2233. The Chamber has described the following targeted assassinations of prominent
personalities and political opposition figures as military operations: Agathe Uwilingiyimana,
Joseph Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza,
Alphonse Kabiligi and Augustin Maharangari as well as the killings at various sites in the
Kigali area and Gisenyi as military operations. The killing of the Belgian peacekeepers
occurred at a military camp after they had been disarmed earlier during the course of an
attack on the Prime Minister’s residence. Some of the assailants were blaming the
peacekeepers for shooting down the President’s plane, which triggered the resumption of
hostilities.
2234. For the most part, soldiers, often from elite units, were the main perpetrators of the
crimes or acted in conjunction with gendarmes and militiamen. The participation of military
personnel in the attacks substantially influenced the manner in which the killings and other
crimes were executed.
2235. With respect to crimes committed at roadblocks, the Chamber has highlighted their
relationship to the military’s civil defence efforts and noted the frequent mixing of military
and civilian personnel at them. The evidence shows that the pretext of the killings at them
was to identify RPF infiltrators. The dispatch of militiamen, trained by military authorities in
Gisenyi, to Bisesero was done to ostensibly assist with an operation against RPF operatives in
the area.
2236. In the Chamber’s view, the military and civilian assailants were acting in furtherance
of the armed conflict or under its guise. Accordingly, the Chamber finds it established that
the alleged violations of Articles 4 (a) and 4(e) of the Statute had the requisite nexus to the
armed conflict between Rwandan government forces and the RPF.
4.2.4
Victims
2237. At the time of the alleged violations, most of the victims were primarily unarmed
Tutsi civilians who were either murdered in their homes, at places of refuge such as religious
sites and schools, or at roadblocks on their way to these sanctuaries while fleeing the
resumption of hostilities or other attacks.
2377
Semanza Trial Judgement, para. 517, quoting Kunarac et al. Appeal Judgement, para. 58. The Semanza
Trial Judgement’s findings on nexus were affirmed by the Appeals Chamber. See Semanza Appeal Judgement,
para. 369. See also Rutaganda Appeal Judgement, paras. 569-580, 577-579; Ntagerura et al. Trial Judgement,
para. 793, affirmed by Ntagerura et al. Appeal Judgement, paras. 427, 428.
2378
Semanza Trial Judgement, para. 518, affirmed by Semanza Appeal Judgement, para. 369.
Judgement and Sentence
563
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2238. There is evidence that the refugees at Nyundo Parish used traditional weapons to
defend themselves against the repeated attacks by militiamen. The Chamber is not satisfied
that the use of rudimentary defensive weapons changes the status of the victims. Even if those
with weapons for self-defence could be characterised as combatants, their possible presence
within groups of refugees does not deprive those who are non-combatants of their protected
status.2379
2239. The Belgian peacekeepers were highly trained members of the Belgian army’s Para
Commando Battalion. As part of UNAMIR, they were neutral in the conflict between the
Rwandan government forces and the RPF (III.1.3). Furthermore, they had been disarmed well
before the attack against them at Camp Kigali. The fact that one of the Belgians was able to
obtain a weapon and use it for self-defence during the course of the attack does not alter their
status. This happened only after the mob of soldiers at the camp began brutally beating the
peacekeepers to death (III.3.4).
2240. Therefore, the Chamber finds beyond reasonable doubt that the victims of the alleged
violations of Articles 4(a) and 4(e) of the Statute were not taking active part in the hostilities.
4.3
Violence to Life
4.3.1
Introduction
2241. Counts 10 and 11 of the Bagosora Indictment, Count 9 of the Kabiligi and Ntabakuze
Indictment and Count 10 of the Nsengiyumva Indictment charge the Accused with violence
to life under Article 4 (a) of the Statute as a violation of Article 3 Common to the Geneva
Conventions and of Additional Protocol II.
4.3.2
Law
2242. Article 4 (a) of the Statute prescribes that the Tribunal has the power to prosecute
persons who committed or ordered serious violations of Common Article 3 or Additional
Protocol II amounting to: “Violence to life, health and physical or mental well-being of
persons, in particular murder as well as cruel treatment such as torture, mutilation or any
form of corporal punishment.” The specific violation of murder requires the unlawful,
intentional killing of another person.2380
4.3.3
Deliberations
2243. In its previous legal findings, the Chamber has found Bagosora responsible for
ordering under Article 6 (1) of the Statute the killing of Augustin Maharangari and the crimes
committed at Kigali area roadblocks from 7 to 9 April. He is also liable as a superior under
Article 6 (3) for the killings of Agathe Uwilingiyimana, Joseph Kavaruganda, Frédéric
Nzamurambaho, Landoald Ndasingwa, Faustin Rucogoza and the 10 Belgian peacekeepers as
well as the civilians at Centre Christus, Kabeza, the Kibagabaga Mosque, the Saint Josephite
Centre, Karama hill, Kibagabaga Catholic Church, Gikondo Parish, Gisenyi town, including
Alphonse Kabiligi, Mudende University and Nyundo Parish. It held Ntabakuze responsible as
a superior under Article 6 (3) for the killings at Kabeza, Nyanza hill and IAMSEA.
2379
2380
Semanza Trial Judgement, para. 515.
Id. paras. 338, 373; Ntagerura et al. Trial Judgement, para. 765.
Judgement and Sentence
564
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Nsengiyumva was found responsible under Article 6 (1) for ordering the killings in Gisenyi
town, Mudende University, Nyundo Parish and aiding and abetting the killings in Bisesero.
2244. It follows from those findings, that these killings also amount to murder under Article
4 (a) of the Statute. As discussed above, in the circumstances of these attacks, it is clear that
the perpetrators were aware that the victims were not taking an active part in the hostilities.
Furthermore, each of these crimes against these individuals not taking an active part in the
hostilities had a nexus to the non-international armed conflict between the Rwandan
government and the RPF.
4.3.4
Conclusion
Bagosora
2245. The Chamber finds Bagosora guilty of violence to life as a serious violation of Article
3 common to the Geneva Conventions and of Additional Protocol II (Count 10) for ordering
the murder of Augustin Maharangari and the killings committed between 6 and 9 April 1994
at Kigali area roadblocks under Article 6 (1) of the Statute. He is also liable as a superior
under Article 6 (3) for the murders and other crimes committed against Agathe
Uwilingiyimana, Joseph Kavaruganda, Frédéric Nzamurambaho, Landoald Ndasingwa,
Faustin Rucogoza and civilians at Centre Christus, Kabeza, the Kibagabaga Mosque, the
Saint Josephite Centre, Karama hill, Kibagabaga Catholic Church, Gikondo Parish, Gisenyi
town, including Alphonse Kabiligi, Mudende University and Nyundo Parish. Furthermore,
Bagosora is responsible as a superior under Article 6 (3) for violence to life as a serious
violation of Article 3 common to the Geneva Conventions and of Additional Protocol II
(Count 11) for the deaths of the 10 Belgian peacekeepers. He is also liable as a superior for
crimes committed at the Kigali area roadblocks (IV.1.2), which the Chamber will take into
account in sentencing.
Kabiligi
2246. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
Accordingly, the Chamber acquits Kabiligi of violence to life as a serious violation of Article
3 common to the Geneva Conventions and of Additional Protocol II (Count 9).
Ntabakuze
2247. The Chamber finds Ntabakuze guilty of violence to life as a violation of Article 3
common to the Geneva Conventions and of Additional Protocol II (Count 9) for the killings
at Kabeza, Nyanza hill and IAMSEA as a superior under Article 6 (3) of the Statute.
Nsengiyumva
2248. Nsengiyumva is guilty of violence to life as a serious violation of Article 3 common
to the Geneva Conventions and of Additional Protocol II (Count 10) for ordering under
Article 6 (1) the killings in Gisenyi town on 7 April, including Alphonse Kabiligi, Mudende
University, Nyundo Parish and aiding and abetting the killings in Bisesero. He could be held
responsible as a superior under Article 6 (3) for the crimes committed in Gisenyi town as well
as at Mudende University and Nyundo Parish (IV.1.5). This will be taken into account in
sentencing.
Judgement and Sentence
565
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.4
Outrages upon Personal Dignity
4.4.1
Introduction
2249. Count 12 of the Bagosora Indictment, Count 10 of the Kabiligi and Ntabakuze
Indictment and Count 11 of the Nsengiyumva Indictment charge the Accused with outrages
upon personal dignity under Article 4 (e) of the Statute as a serious violation of Article 3
Common to the Geneva Conventions and of Additional Protocol II.
4.4.2
Law
2250. Article 4 (e) of the Statute prescribes that the Tribunal has the power to prosecute
persons who committed or ordered serious violations of Common Article 3 or Additional
Protocol II amounting to: “Outrages upon personal dignity, in particular humiliating and
degrading treatment, rape, enforced prostitution and any form of indecent assault.” Outrages
upon personal dignity have been defined as any act or omission which would be generally
considered to cause serious humiliation, degradation or otherwise be a serious attack on
human dignity.2381 The mens rea of the crime requires that the accused knew that his act or
omission would have such effect.2382
2251. It follows from the counts in the Indictments and the allegations charged in support of
them that the Prosecution is only charging acts of rape under Article 4 (e).
4.4.3
Deliberations
2252. In its findings on genocide and rape as a crime against humanity, the Chamber found
Bagosora responsible as a superior for the rape of women at Kigali area roadblocks between
7 and 9 April, the Saint Josephite Centre and Gikondo Parish (IV.3.5.4).
2253. It follows from those findings, that the rapes of these individuals also amount to rape
under Article 4 (e) of the Statute. As discussed above, in the circumstances of these attacks, it
is clear that the perpetrators were aware that the victims were not taking an active part in the
hostilities. Furthermore, each of these crimes against individuals not taking an active part in
the hostilities has a nexus to the non-international armed conflict between the Rwandan
government and the RPF.
4.4.4
Conclusion
Bagosora
2254. The Chamber finds Bagosora guilty of outrages against personal dignity as violation
of Article 3 Common to the Geneva Conventions and of Additional Protocol II (Count 12) for
the rapes committed between 6 and 9 April 1994 at Kigali area roadblocks, at the Saint
Josephite Centre and Gikondo Parish under Article 6 (3).
Kabiligi
2255. The Prosecution did not prove beyond reasonable doubt that Kabiligi was responsible
either directly or as a superior for any of the crimes alleged against him in his Indictment.
2381
2382
Kunarac et al. Appeal Judgement, para. 163.
Id. para. 164.
Judgement and Sentence
566
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Accordingly, the Chamber acquits Kabiligi of outrages against personal dignity as violation
of Article 3 Common to the Geneva Conventions and of Additional Protocol II (Count 10).
Ntabakuze
2256. The Prosecution did not prove beyond reasonable doubt that Ntabakuze was
responsible either directly or as a superior for any of the rapes alleged against him in his
Indictment (III.4.1.1; III.4.4.1). The Chamber acquits Ntabakuze of outrages against personal
dignity as violation of Article 3 Common to the Geneva Conventions and of Additional
Protocol II (Count 10).
Nsengiyumva
2257. The Prosecution did not prove beyond reasonable doubt that Nsengiyumva was
responsible either directly or as a superior for any of the rapes alleged against him in his
Indictment (III.4.2.6). Accordingly, the Chamber acquits Nsengiyumva of outrages against
personal dignity as violation of Article 3 Common to the Geneva Conventions and of
Additional Protocol II (Count 11).
Judgement and Sentence
567
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
CHAPTER V:
VERDICT
2258. For the reasons set out in this Judgement, having considered all evidence and
arguments, the Trial Chamber finds unanimously in respect of
THÉONESTE BAGOSORA as follows:
Count 1:
NOT GUILTY of Conspiracy to Commit Genocide
Count 2:
GUILTY of Genocide
Count 3:
DISMISSED (Complicity in Genocide)
Count 4:
GUILTY of Crimes Against Humanity (Murder)
Count 5:
GUILTY of Crimes Against Humanity (Murder of the Belgian Peacekeepers)
Count 6:
GUILTY of Crimes Against Humanity (Extermination)
Count 7:
GUILTY of Crimes Against Humanity (Rape)
Count 8:
GUILTY of Crimes Against Humanity (Persecution)
Count 9:
GUILTY of Crimes Against Humanity (Other Inhumane Acts)
Count 10:
GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Violence to Life)
Count 11:
GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Violence to Life of the Belgian
Peacekeepers)
Count 12:
GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Outrages upon Personal Dignity)
GRATIEN KABILIGI as follows:
Count 1:
NOT GUILTY of Conspiracy to Commit Genocide
Count 2:
NOT GUILTY of Genocide
Count 3:
NOT GUILTY of Complicity in Genocide
Count 4:
NOT GUILTY of Crimes Against Humanity (Murder)
Count 5:
NOT GUILTY of Crimes Against Humanity (Extermination)
Count 6:
NOT GUILTY of Crimes Against Humanity (Rape)
Count 7:
NOT GUILTY of Crimes Against Humanity (Persecution)
Count 8:
NOT GUILTY of Crimes Against Humanity (Other Inhumane Acts)
Count 9:
NOT GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Violence to Life)
Count 10:
NOT GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Outrages upon Personal Dignity)
Judgement and Sentence
568
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
ALOYS NTABAKUZE as follows:
Count 1:
NOT GUILTY of Conspiracy to Commit Genocide
Count 2:
GUILTY of Genocide
Count 3:
DISMISSED (Complicity in Genocide)
Count 4:
GUILTY of Crimes Against Humanity (Murder)
Count 5:
GUILTY of Crimes Against Humanity (Extermination)
Count 6:
NOT GUILTY of Crimes Against Humanity (Rape)
Count 7:
GUILTY of Crimes Against Humanity (Persecution)
Count 8:
GUILTY of Crimes Against Humanity (Other Inhumane Acts)
Count 9:
GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Violence to Life)
Count 10:
NOT GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Outrages upon Personal Dignity)
ANATOLE NSENGIYUMVA as follows:
Count 1:
NOT GUILTY of Conspiracy to Commit Genocide
Count 2:
GUILTY of Genocide
Count 3:
DISMISSED (Complicity in Genocide)
Count 4:
NOT GUILTY of Direct and Public Incitement to Commit Genocide
Count 5:
GUILTY of Crimes Against Humanity (Murder)
Count 6:
GUILTY of Crimes Against Humanity (Extermination)
Count 7:
NOT GUILTY of Crimes Against Humanity (Rape)
Count 8:
GUILTY of Crimes Against Humanity (Persecution)
Count 9:
GUILTY of Crimes Against Humanity (Other Inhumane Acts)
Count 10:
GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Violence to Life)
Count 11:
NOT GUILTY of Serious Violations of Article 3 Common to the Geneva
Conventions and Additional Protocol II (Outrages upon Personal Dignity)
Judgement and Sentence
569
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
CHAPTER VI:
1.
SENTENCING
INTRODUCTION
2259. Having found Bagosora, Ntabakuze and Nsengiyumva guilty of genocide, crimes
against humanity and serious violations of common Article 3 to the Geneva Conventions and
Additional Protocol II, the Chamber must determine appropriate sentences.
2260. The penalty imposed should reflect the goals of retribution, deterrence, rehabilitation,
and the protection of society. Pursuant to Article 23 of the Statute and Rule 101 of the Rules
of Procedure and Evidence, the Chamber shall consider the general practice regarding prison
sentences in Rwanda, the gravity of the offences or totality of the conduct, the individual
circumstances of the accused, including aggravating and mitigating circumstances, and the
extent to which any penalty imposed by a court of any State on the accused for the same act
has already been served.2383 As pointed out by the Appeals Chamber, these considerations are
not exhaustive when determining the appropriate sentence. In addition, the Trial Chamber
shall credit the accused for any time spent in detention pending transfer to the Tribunal and
during trial.2384
2.
SUBMISSIONS
2261. The Prosecution submits that the crimes charged against the Accused are so heinous
that they place each of them in the category of the most serious offenders, in particular given
their senior status in the Rwandan army. They did not surrender, admit their guilt, show
remorse, or cooperate in any fashion in bringing others to justice. Bagosora refused to
acknowledge the existence of a genocide, and Ntabakuze and Nsengiyumva exhibited zeal in
the conduct of the killings. There are no mitigating factors. Accordingly, the Prosecution
argues that they should be sentenced to life imprisonment on each count in their
Indictment.2385
2262. The Ntabakuze Defence submits that, if convicted of any crimes, Ntabakuze’s good
character as attested to by Colonel Joseph Dewez, Colonel Luc Marchal and Witnesses DM25, DK-32 and DM-26, should be considered in mitigation. In particular, it asserts that the
evidence shows that, during the course of the events, Ntabakuze provided assistance on
several occasions to UNAMIR and others and maintained discipline, cohesion and combat
effectiveness within his unit without resort to discrimination amongst his soldiers. In
addition, it points to several alleged procedural violations, discussed in chapter II, which, if
founded, should also reduce his sentence.2386 The Bagosora and Nsengiyumva Defence teams
did not make any sentencing submissions.2387
2383
Article 23 (1)-(3) and Rule 101 (B)(i)-(iv).
Kajelijeli Appeal Judgement, para. 290. See Rule 101 (C).
2385
Prosecution Closing Brief, paras. 2096-2134, 2137-2148.
2386
Ntabakuze Closing Brief, paras. 2597-2628.
2387
The Bagosora Defence submits that it is impossible to make sentencing submissions until it knows the basis
of any possible conviction. See Bagosora Closing Brief, paras. 2083-2085. However, Rule 86 (C) of the Rules
clearly states that sentencing submissions shall be addressed in closing arguments. See Muhimana Appeal
Judgement, para. 231.
2384
Judgement and Sentence
570
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.
3.1
DELIBERATIONS
Gravity of the Offences
2263. All crimes under the Tribunal’s Statute are serious violations of international
humanitarian law.2388 When determining a sentence, a Trial Chamber has considerable,
though not unlimited, discretion on account of its obligation to individualise penalties to fit
the individual circumstances of an accused and to reflect the gravity of the crimes for which
the accused has been convicted.2389
2264. In determining an appropriate sentence, the Appeals Chamber has stated that
“sentences of like individuals in like cases should be comparable”. However, it has also noted
the inherent limits to this approach because “any given case contains a multitude of variables,
ranging from the number and type of crimes committed to the personal circumstances of the
individual”.2390
2265. The Chamber has determined that, between 6 and 9 April 1994, Bagosora was the
highest authority in the Ministry of Defence and exercised control over the Rwandan Armed
Forces, the most powerful entity at the time in the Rwandan government. There may have
been others behind him or at a similar level, for instance in the government or the various
political parties. Nevertheless, there is no doubt that he was one of the main, if not the most
important, person in Rwanda at this time. In this period, members of the military and
militiamen working with them as an auxiliary or complementary force participated in a
widespread and systematic campaign of slaughter and targeted political assassinations as war
resumed with the RPF.
2266. The toll of human suffering was immense as a result of crimes which could have only
occurred with his orders or authorisation. Simple murder was compounded with extreme
brutality and cruelty: after the killing of Prime Minister Agathe Uwilingiyimana her genitals
were mutilated with a bottle; Alphonse Kabiligi’s arm was cut off with a machete in front of
his family before he was shot to death; refugees were herded to places of worship, such as
Gikondo Parish, before being brutally killed as peacekeepers and priests were forced at
gunpoint to watch the carnage, including the mutilation of sexual organs; women stopped at
roadblocks were raped before being killed, their naked corpses left by the road.
2267. Bagosora’s failure to prevent and punish the crimes with which he has been convicted
set Rwanda on a course of further slaughter in the days which followed. This would have
been avoided or at least substantially mitigated had he reigned in the troops under his control
and used them as a stabilising force rather than unleash them as one of death. His acts and
omissions during this period are worthy of the highest sanction and censure comparable to
other senior leaders who have received life sentences.
2268. Ntabakuze was the commander of the elite Para Commando Battalion, a highly
disciplined, well-trained, frontline force. He was an able, professional and respected officer.
It appears from the evidence that his battalion spent most of the war engaged with RPF
forces. However, at key moments in the days after the death of President Habyarimana its
members went from house to house in Kabeza, a predominately Tutsi and RPF-leaning area,
2388
Kayishema and Ruzindana Appeal Judgement, para. 367 (quoting Article 1 of the Statute).
Kajelijeli Appeal Judgement, para. 291.
2390
Kvočka et al. Appeal Judgment, para. 681.
2389
Judgement and Sentence
571
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
killing civilians. At IAMSEA, they separated a number of Tutsis from Hutus at a school and
killed them along with Interahamwe. These were organised military operations which, in
such a disciplined and elite unit, only would have occurred following Ntabakuze’s orders or
with his authorisation. When deployed along the frontline at Sonatube junction, members of
the battalion and Interahamwe stopped a large group of predominately Tutsi refugees fleeing
to safety and marched them to their death at Nyanza hill in one of the most notorious early
massacres of the genocide, a crime of which the Appeals Chamber has already emphasised
the gravity.2391 The Chamber agrees with this view.
2269. Nsengiyumva served as commander of the Gisenyi operational sector. He was the
highest military authority in an area, which was one of the furthest from the army’s frontline
with the RPF. Within hours after the death of President Habyarimana, soldiers accompanying
militiamen conducted targeted genocidal and political killings, including of Alphonse
Kabiligi, which as noted above, was brutally murdered in front of his family. Other larger
scale killings followed against refugees at Mudende University and Nyundo Parish. These
can only be described as organised military operations conducted on orders from
Nsengiyumva. In June, he dispatched militiamen, whose training he oversaw, to participate in
an operation to kill starving and barely surviving Tutsi refugees in Bisesero. The gravity and
brutality of these crimes are worthy of the highest condemnation. His conduct is equivalent to
other senior regional authorities who have also received life imprisonment.
2270. Under Rwandan law, similar crimes carry the possible penalties of life imprisonment,
depending on the nature of the accused’s participation.2392 In this Tribunal, a sentence of life
imprisonment is generally reserved those who planned or ordered atrocities as well as the
most senior authorities.2393 In the Chamber’s view, the gravity of the crimes committed by
Bagosora, Ntabakuze and Nsengiyumva warrants similar treatment.
2391
Rutaganda Review Decision, para. 21 (“[T]he Appeals Chamber recalls that it declined to revisit Mr.
Rutaganda’s life sentence, after quashing a conviction of murder in his appeal, noting in particular the gravity of
the events in Nyanza alone.”), citing Rutaganda Appeal Judgement, para. 592.
2392
Kanyarukiga, Decision on Prosecutor’s Request for Referral to the Republic of Rwanda (TC), 6 June 2008,
paras. 22-25 (assessing Rwanda’s penalty structure); Gatete, Decision on Prosecutor’s Request for Referral to
the Republic of Rwanda (TC), 17 November 2008, paras. 22-25. See also Semanza Appeal Judgement, para. 377
(“The command for Trial Chambers to ‘have recourse to the general practice regarding prison sentences in the
courts of Rwanda does not oblige the Trial Chambers to conform to that practice; it only obliges the Trial
Chambers to take account of that practice.’”), quoting Serushago Appeal Judgement, para. 30; Dragan Nikolić
Appeal Judgment, para. 69.
2393
Musema Appeal Judgement, para. 383 (noting that the leaders and planners of a particular conflict should
bear heavier responsibility, with the qualification that the gravity of the offence is the primary consideration in
imposing a sentence). Life sentences have been imposed and affirmed against senior government authorities in:
Ndindabahazi Trial Judgement, paras. 505, 508, 511 (Minister of Finance); Niyitegeka Trial Judgement, paras.
499, 502 (Minister of Information); Kambanda Trial Judgement, paras. 44, 61-62 (Prime Minister);
Kamuhanda, Trial Judgement, paras. 6, 764, 770 (Minister of Higher Education and Scientific Research). In
several other cases, lower level officials, as well as those who did not hold government positions, have received
life sentences. See, e.g., Karera Trial Judgement, para. 585 (prefect of Kigali-Rural); Kayishema and Ruzindana
Trial Judgement (Sentence), p. 8 (Kayishema was prefect of Kibuye); Gacumbitsi Appeal Judgement, para. 206
(bourgmestre); Musema Trial Judgement, paras. 999-1008 (influential director of a tea factory who exercised
control over killers); Rutaganda Trial Judgement, paras. 466-473 (second vice-president of Interahamwe at
national level).
Judgement and Sentence
572
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
3.2
Individual, Aggravating and Mitigating Circumstances
2271. The Chamber will consider the individual circumstances of the Accused, including
aggravating and mitigating factors. Mitigating circumstances need only be established by the
balance of the probabilities, while aggravating circumstances need to be proven beyond
reasonable doubt.2394 Any particular circumstance that is included as an element of the crime
for which the Accused is convicted will not also be considered as an aggravating factor.2395
2272. In aggravation, the Chamber has considered Bagosora’s role as a superior in
connection with Kigali area roadblocks and Nsengiyumva’s role as a superior with respect to
the targeted killings in Gisenyi town, including Alphonse Kabiligi, and the massacres at
Mudende University and Nyundo Parish. The large number of Tutsi victims during the course
of the attacks and massacres is also aggravating with respect to each of the Accused’s
conviction for genocide, which is a crime with no numeric minimum of victims.2396
2273. The Chamber has already discussed the background and individual circumstances of
each Accused (I.2). The Chamber is mindful of their lengthy public service to their country as
military officers. It has considered Bagosora’s efforts to facilitate the evacuation of orphans
at the behest of the French government (III.5.1). It has also assessed the selective assistance
that Nsengiyumva rendered to some Tutsis in Gisenyi prefecture in 1994, in particular
Witness XX, a Tutsi nun and family friend, after the Nyundo Parish massacre (III.3.6.6).
Furthermore, the Chamber has taken into account Ntabakuze’s role in facilitating UNAMIR
convoys and the general positive view of him held by certain UNAMIR and foreign officers
and high ranking opposition officials (III.3.5.4; III.4.1.1). In the Chamber’s view, this
selective assistance carries only limited weight as a mitigating factor.2397
2274. The Chamber is aware that Nsengiyumva and Ntabakuze were at times following
superior orders in executing their crimes, which is a mitigating factor under Article 6 (4) of
the Statute. However, given their own senior status and stature in the Rwandan army, the
Chamber is convinced that their repeated execution of these crimes as well as the manifestly
unlawful nature of any orders they received to perpetrate them reflects their acquiescence in
committing them. No mitigation is therefore warranted on this ground.
2275. In the Chamber’s view, the gravity of the crimes and the aggravating factors greatly
outweigh any mitigating factors.
2394
Nahimana et al. Appeal Judgement, para. 1038; Kajelijeli Appeal Judgement, para. 294.
Ndindabahizi Appeal Judgement, para. 137.
2396
Semanza Appeal Judgement, paras. 337-338.
2397
Kajelijeli Appeal Judgement, para. 311.
2395
Judgement and Sentence
573
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
4.
CONCLUSION
2276. The Chamber has the discretion to impose a single sentence. This practice is usually
appropriate where the offences may be characterised as belonging to a single criminal
transaction.2398 The convictions for genocide, crimes against humanity and serious violations
of common Article 3 to the Geneva Conventions and Additional Protocol II are based largely
on the same underlying criminal acts.
2277. Considering all the relevant circumstances discussed above, the Chamber
SENTENCES Théoneste Bagosora to
LIFE IMPRISONMENT
2278. The Chamber SENTENCES Aloys Ntabakuze to
LIFE IMPRISONMENT
2279. The Chamber SENTENCES Anatole Nsengiyumva to
LIFE IMPRISONMENT
5.
CONSEQUENTIAL ORDERS
2280. The above sentences shall be served in a State designated by the President of the
Tribunal, in consultation with the Chamber. The Government of Rwanda and the designated
State shall be notified of such designation by the Registrar.
2281. Until their transfer to their designated places of imprisonment, Théoneste Bagosora,
Aloys Ntabakuze and Anatole Nsengiyumva shall be kept in detention under the present
conditions.
2282. Pursuant to Rule 102 (B) of the Rules, on notice of appeal, if any, enforcement of the
above sentences shall be stayed until a decision has been rendered on the appeal, with the
convicted person nevertheless remaining in detention.
2283. The Chamber has acquitted Kabiligi of all counts against him and orders his
immediate release.
2284. It requests the Registry to make the necessary arrangements.
2398
Nahimana et al. Appeal Judgement, paras. 1042-1043; Simba Trial Judgement, para. 445; Ndindabahizi
Trial Judgement, para. 497.
Judgement and Sentence
574
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Arusha, 18 December 2008
Erik Møse
Jai Ram Reddy
Sergei Alekseevich Egorov
Presiding Judge
Judge
Judge
(Seal of the Tribunal)
Judgement and Sentence
575
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
ANNEX A: PROCEDURAL HISTORY
1.
THÉONESTE BAGOSORA
2285. Théoneste Bagosora was arrested in Cameroon on 9 March 1996 pursuant to a
Belgian international arrest warrant.2399
2286. On 17 May 1996, Judge Lennart Aspegren granted the Prosecution’s request that
Belgium defer its case against Bagosora to the ICTR.2400 Judge Aspegren ordered Bagosora’s
transfer and provisional detention for 30 days to the Tribunal’s detention facilities on the
same day.2401
2287. Following delays in the implementation of the transfer order, Judge Aspegren ordered
Bagosora’s continued detention in Cameroon for another 30 days, through 16 July 1996, and
reiterated the prior request to Cameroon to transfer Bagosora to the Tribunal’s detention
facilities “as soon as possible.”2402 On 15 July 1996, with Bagosora still in Cameroon, Judge
Laïty Kama, President of Trial Chamber I, ordered his continued detention there for another
30 days for a third “and final” time.2403
2288. On 5 August 1996, the Prosecution submitted its Indictment against Théoneste
Bagosora. Five days later, Judge Aspegren confirmed the Indictment, holding that there was
sufficient evidence to provide reasonable grounds to believe that Bagosora had committed
genocide, conspiracy to commit genocide, crimes against humanity and violations of Article
3 common to the 1949 Geneva Conventions and Additional Protocol II.2404 Judge Aspegren
also issued a warrant of arrest on behalf of the ICTR, requesting that Cameroon continue to
hold Bagosora in custody and convey the charges of the Indictment to him.2405
2289. By a letter dated 30 August 1996, Bagosora requested that the Registrar of the
Tribunal assign him Defence counsel. When his first and third options were refused,
Bagosora opted to be represented by Mr. Benjamin Ondingui.2406
2290. On 23 January 1997, Bagosora was transferred from Cameroon to the Tribunal’s
detention facilities in Arusha, Tanzania. He made an initial appearance before Trial Chamber
II, composed of Judge William Sekule, presiding, Judge Yakov Ostrovsky and Judge
Navanathem Pillay, on 20 February 1997. He did not have legal counsel, however, and did
not make his plea.2407
2399
The warrant for Bagosora’s arrest was issued on 29 May 1995.
Bagosora, Decision on the Application by the Prosecution for a Formal Request for Deferral (TC), 17 May
1996; T. 17 May 1996 pp. 1-3.
2401
Bagosora, Decision: Order of Provisional Detention and of Transfer (TC), 17 May 1996.
2402
Bagosora, Decision: Continued Detention on Remand of Théoneste Bagosora (TC), 18 June 1996. The
hearing took place in Cameroon.
2403
Bagosora, Décision: Prolongation de la détention provisoire de Théoneste Bagosora (TC), 15 July 1996.
2404
Bagosora, Decision: Confirmation of the Indictment (TC), 10 August 1996. On 5 October 1998, Trial
Chamber II denied the Bagosora Defence motion to compel the Prosecution to provide greater detail regarding
counts of the Indictment. See Bagosora, Decision on the Defence Motion for Further Particulars on Counts 2, 3
and 4 of the Indictment (TC), 5 October 1998.
2405
Bagosora, Warrant of Arrest, 10 August 1996.
2406
Bagosora, Decision on the Request by the Accused for Change of Assigned Counsel (TC), 26 June 1997.
Bagosora’s first and third choices were already representing other accused persons. On 28 February 1997, the
Registry confirmed that Mr. Ondingui had been assigned to the Accused as his Defence Counsel.
2407
T. 20 February 1997 pp. 1-9.
2400
Judgement and Sentence
576
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The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2291. On 7 March 1997, Bagosora, represented by Mr. Ondingui, made his second
appearance before Trial Chamber II, pleading not guilty to all charges in the Indictment.
During a status conference that day, a trial date was provisionally set for 12 March 1998.2408
The Tribunal granted Bagosora’s request for a new lead counsel on 26 June 1997, and Mr.
Benjamin Ondingui was replaced by Mr. Raphaël Constant.2409
2292. The Prosecution submitted a new indictment, stipulating charges against Bagosora
and 28 others on 6 March 1998. Eleven days later, Trial Chamber II postponed Bagosora’s
trial pending the decision on the Prosecution’s motion to join his Indictment.2410 The
Prosecution’s request for joinder was denied by Judge Tafazzal Khan on 31 March 1998. 2411
2293. On 12 August 1999, Trial Chamber II granted the Prosecution’s motion to amend the
Indictment against Bagosora to include a complicity in genocide charge, allegations of crimes
against humanity, including rape, murder, extermination, persecution, and other inhumane
acts, and further allegations of serious violations of common Article 3, including outrages
upon personal dignity. 2412 Bagosora pleaded not guilty to these new charges.2413
2.
GRATIEN KABILIGI AND ALOYS NTABAKUZE
2294. On 16 July 1997, Judge Kama ordered the transfer from Kenya and provisional
detention for 30 days of Gratien Kabiligi and Aloys Ntabakuze.2414 Ntabakuze was arrested in
Nairobi, Kenya two days later and signed an Avis de Droits de Suspect. Ntabakuze and
Kabiligi were transferred to the Tribunal’s detention facilities in Arusha, Tanzania on 18 July
1997. On 14 August 1997, in two separate decisions, Judge Kama extended the provisional
detention of both Accused for 30 days. These orders were extended by Judge Pillay on 16
September 1997.2415
2295. Judge Aspegren confirmed a joint Indictment against Kabiligi and Ntabakuze on 15
October 1997, finding sufficient evidence to support charges of genocide, crimes against
humanity, complicity in genocide, and violations of common Article 3 to the 1949 Geneva
Conventions and Additional Protocol II. On the same day the Chamber ordered that
Ntabakuze and Kabiligi be arrested under the confirmed indictment and informed of the
2408
T. 7 March 1997 pp. 24-25.
Bagosora, Decision on the Request by the Accused for Change of Assigned Counsel (TC), 26 June 1997; T.
27 June 1997 p. 58. See also correspondence between ICTR and Raphaël Constant, dated 23 July 1997.
2410
Bagosora, Decision on the Prosecution Motion for Adjournment (TC), 17 March 1998.
2411
Bagosora and 28 Others, Dismissal of Indictment (TC), 31 March 1998.
2412
Bagosora, Decision on the Prosecution’s Request for Leave to Amend the Indictment (TC), 12 August 1999.
2413
T. 13 August 1999 p. 36.
2414
Kabiligi, Order of Transfer and Provisional Detention (in Accordance with Rule 40 bis of the Rules) (TC),
16 July 1997; Ntabakuze, Order of Transfer and Provisional Detention (in Accordance with Rule 40 bis of the
Rules) (TC), 16 July 1997.
2415
Kabiligi, Decision on the Extension of the Provisional Detention for a Maximum Period of Thirty Days (in
Acccordance with Rule 40 Bis (F) of the Rules of Procedure and Evidence) (TC), 14 August 1997; Ntabakuze,
Decision on the Extension of the Provisional Detention for a Maximum Period of Thirty Days (in Acccordance
with Rule 40 Bis (F) of the Rules of Procedure and Evidence) (TC), 14 August 1997; Kabiligi, Extension of the
Provisional Detention for a Maximum Period of Thirty Days (in Accordance with Rule 40 Bis (G) of the Rules
of Procedure and Evidence) (TC), 16 September 1997; Ntabakuze, Extension of the Provisional Detention for a
Maximum Period of Thirty Days (in Accordance with Rule 40 Bis (G) of the Rules of Procedure and Evidence)
(TC), 16 September 1997.
2409
Judgement and Sentence
577
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
charges against them.2416 On 24 October 1997 and 17 February 1998, Ntabakuze and
Kabiligi, respectively, pleaded not guilty to all counts contained in their Indictment.2417 Trial
Chamber II dismissed a Prosecution indictment attempting to join the case of Ntabakuze and
Kabiligi with 27 others on 31 March 1998.2418
2296. On 25 September 1998, Trial Chamber II determined that Ntabakuze’s arrest and
continued detention were validly authorised. It also ordered the Prosecution to return personal
items and documents unnecessary to its case to the Ntabakuze Defence and held that the
measures used by Kenya to restrain and arrest Ntabakuze were deemed reasonable and within
Kenya’s jurisdiction as the arresting State. It dismissed the Defence motion for annulment of
proceedings.2419
2297. Trial Chamber II denied Defence requests on 30 September 1998 to prosecute the
Accused separately.2420 It also ordered the Prosecution to clarify two paragraphs in its
Indictment by providing approximate times and locations of anti-Tutsi speeches on 5 October
1998. In the same order, the Chamber dismissed Defence motions to nullify the Kabiligi and
Ntabakuze Indictment based on procedural violations, including undue delay resulting from a
failure to agree on a trial date and multiple defects in the Indictment.2421
2298. In a separate 5 October 1998 decision, Trial Chamber II ordered the Prosecution to
return to the Kabiligi Defence original versions of all documents unnecessary for trial, in
addition to certified copies of documents intended for use at trial.2422 It also dismissed the
Kabiligi Defence motion to initiate an investigation and nullify proceedings against the
Accused based on accusations that Kabiligi was tortured and endured cruel or inhuman
treatment during the course of his arrest and subsequent detention.2423
2416
Kabiligi and Ntabakuze, Decision to Confirm the Indictment (TC), 15 October 1997; Kabiligi and
Ntabakuze, Warrant of Arrest and Order for Continued Detention (TC), 15 October 1997.
2417
T. 24 October 1997 p. 29; T. 17 February 1998 p. 20.
2418
Bagosora and 28 Others, Dismissal of Indictment (TC), 31 March 1998.
2419
Kabiligi and Ntabakuze, Decision on the Defence Motion for Annulment of Proceedings, Release and
Return of Personal Items and Documents (TC), 25 September 1998. Later in the proceedings, the Chamber
ordered the Prosecution to comply with this order and return personal items and documents to the Accused. See
Ntabakuze, Decision on the Defence Motion to Implement Trial Chamber II Decision Rendered on 25
September 1998 Ordering the Return of Seized Items and on the Prosecution’s Motion for a Temporary Stay for
the Execution of the Same Decision (TC), 19 May 2000. On 28 June 2000, Trial Chamber III granted the
Prosecution a 21-day extension to comply with its 25 September 1998 ruling. See Ntabakuze, Decision on the
Prosecution’s urgent Motion for Extension of Time Within Which to Comply Fully With the Orders Contained
in the Decision of 19 May 2000 (TC), 28 June 2000.
2420
Kabiligi and Ntabakuze, Decision on the Defence Motion Requesting an Order for Separate Trials (TC), 30
September 1998. On 4 May 2000, Trial Chamber III dismissed the Ntabakuze Defence motion to declare the
Prosecution’s motion for joinder of the Accused inadmissible. See Kabiligi and Ntabakuze, Decision on
Ntabakuze’s Motion to Declare Inadmissible the Prosecutor’s Motion for Joinder (TC), 4 May 2000.
2421
Kabiligi and Ntabakuze, Decision on the Defence Preliminary Motions Relating to Defects in the Form and
Substance of the Indictment (TC), 5 October 1998. On 17 May 2000, Trial Chamber III denied the Prosecution’s
motion to temporarily stay the part of this decision that required the Prosecution to clarify certain passages. See
Kabiligi and Ntabakuze, Decision on the Prosecution Motion for a Temporary Stay of Execution of the Decision
of 5 October 1998 Relating to Defects in the Form of the Indictment (TC), 17 May 2000.
2422
Kabiligi and Ntabakuze, Decision on the Defence Motion for the Restitution of Items and Documents Seized
(TC), 5 October 1998.
2423
Kabiligi and Ntabakuze, Decision on the Defence Motion to Lodge Complaint and Open Investigations into
Alleged Acts of Torture Under Rules (40) (C) and 73 (A) of the Rules of Procedure and Evidence (TC), 5
October 1998. The Appeals Chamber later rejected the Kabiligi Defence’s motion to appeal this decision. See
Judgement and Sentence
578
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2299. On 16 March 1999, the Registrar approved Ntabakuze’s request to withdraw Ms.
Simonette Rakotondramanitra, as his counsel.2424 On 17 March 1999, the Registrar granted
Kabiligi’s request to withdraw Ms. Macha Sinegre-David as his counsel. Less than one
month later, Mr. Clemente Monterosso was appointed as Ntabazuke’s lead counsel.2425
2300. The Prosecution amended its joint Indictment on 13 August 1999 to include new
charges of conspiracy to commit genocide and crimes against humanity, extermination, rape,
and persecution. The Chamber confirmed the Amended Indictment on 8 October 1999.2426
2301. On 4 November 1999, Trial Chamber II dismissed the Kabiligi Defence motion
alleging defects in his initial detention and requesting his release.2427 On the same day, Trial
Chamber III rejected Kabiligi Defence motion to disqualify Judge Sekule of Trial Chamber
II.2428
2302. The Appeals Chamber rejected motions on 21 January 2000 from both Defence teams
who claimed that Trial Chamber II had failed to order disclosure of certain material contained
in the Prosecution’s request to amend its Indictment.2429 On 13 April 2000, Trial Chamber III
denied motions from the Ntabakuze and Kabiligi Defence seeking to declare the Indictment
void.2430
2303. On 5 May 2000, Trial Chamber III dismissed the Kabiligi Defence motion requesting
transcripts of former interviews with the Accused and Prosecution investigators.2431 It denied
Kabiligi and Ntabakuze Defence motions requesting that the Prosecution provide further
details of the new charges in the Amended Indictment on 18 May 2000.2432 The next day,
Kabiligi and Ntabakuze, Decision Rejecting Notice of Appeal (AC), 18 December 1998. The Appeals Chamber
rejected Kabiligi’s appeal against this decision. See Kabiligi and Ntabakuze, Decision Rejecting Notice of
Appeal (AC), 28 July 1999.
2424
Kabiligi and Ntabakuze, Decision to Withdraw the Assignment of Counsel Simonette Rakotondramanitra
(TC), 16 March 1999.
2425
Kabiligi and Ntabakuze, Décision de retrait de la Commission d’Office à Maitre Macha Sinegre-David
(TC), 17 March 1999; Kabiligi and Ntabakuze, Décision portant nomination de Me Clemente Monterosso en
qualité de conseil principal de M. Aloys Ntabakuze (TC), 13 April 1999.
2426
Kabiligi and Ntabakuze, Decision on the Prosecutor’s Motion to Amend the Indictment (TC), 8 October
1999.
2427
Kabiligi and Ntabakuze, Decision on the Defence Motion for Nullity of Proceedings and Release (TC), 4
November 1999. The Appeals Chamber later rejected the motion from the Defence to appeal this decision. See
Kabiligi and Ntabakuze, Interlocutory Appeal Against the Decision on Nullity of Proceedings and Release
(AC), 2 June 2000.
2428
Kabiligi and Ntabakuze, Decision on the Defence’s Extremely Urgent Motion for Disqualification and
Objection Based on Lack of Jurisdiction (TC), 4 November 1999. On 18 May 2000, the Appeals Chamber held
that it did not have jurisdiction to review this decision. See Kabiligi and Ntabakuze, Interlocutory Appeal
Against the Decision of 4 November 1999 (AC), 18 May 2000.
2429
Kabiligi and Ntabakuze, Decision Rejecting Notice of Appeal (AC), 21 January 2000.
2430
Kabiligi and Ntabakuze, Decision on Defence Motion Objecting to Lack of Jurisdiction and Seeking to
Declare the Indictment Void Ab Initio (TC), 13 April 2000.
2431
Kabiligi and Ntabakuze, Decision on Kabiligi’s Motion for the Disclosure of Statements to the Accused
(TC), 5 May 2000.
2432
Kabiligi and Ntabakuze, Decision on Preliminary Motion Seeking to Obtain From the New Indictment
Clarification Crucial in the Exercise of the Right of the Accused to Raise Preliminary Motions (Under 50 (C) of
the Rules of Procedure and Evidence) (TC), 18 May 2000; Kabiligi and Ntabakuze, Decision on Defence
Motion Seeking Clarification of the New Charges (Rule 72 of the Rules of Procedure and Evidence) (TC), 18
May 2000. The Chamber later denied the Ntabakuze Defence motion challenging and seeking clarification of
the Indictment. See Kabiligi and Ntabakuze, Decision on Ntabakuze’s Preliminary Motion and Motion for the
Execution of the Decisions Rendered on 5 October 1998 and 8 October 1999 (TC), 20 October 2000.
Judgement and Sentence
579
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Trial Chamber III decided that the Prosecution was not allowed to keep original versions of
certain documents seized from Ntabakuze that were not necessary for trial. It ordered the
Prosecution to provide the Accused with copies of documents which it wished to retain.2433
2304. On 1 June 2000, Trial Chamber III denied the Kabiligi Defence motion to compel
supplementary investigations by the Prosecution into the plane crash of President
Habyarimana.2434 The following day, it denied the new Kabiligi Defence motion seeking to
nullify the proceedings and declare illegal and inadmissible certain evidence obtained from
the Accused.2435
2305. A Kabiligi Defence motion was granted by Trial Chamber III on 6 June 2000,
compelling the Prosecution to clarify certain paragraphs of the Indictment.2436 In two separate
decisions two days later, it decided that the Ntabakuze and Kabiligi Defence were entitled to
disclosure of a United Nations report, dated 1 August 1997.2437
2306. Trial Chamber III denied the Kabiligi Defence motion asserting that the Prosecution
had not complied with a former decision of Trial Chamber II to disclose original documents
seized from the Accused that were not necessary for the preparation of trial on 28 June 2000.
On the same day, Trial Chamber III denied the Prosecution’s motion to postpone the return of
original documents to Kabiligi until the end of trial.2438
3.
ANATOLE NSENGIYUMVA
2307. Anatole Nsengiyumva was apprehended in Cameroon pursuant to a Rwandan arrest
warrant on 27 March 1996. Judge Lennart Aspegren ordered Nsengiyumva’s transfer to the
Tribunal’s detention facilities and provisional detention for 30 days on 17 May 1996.2439 He
reissued this order on 18 June.2440 On 12 July 1996, Judge Yakov Ostrovsky confirmed the
Prosecutor’s Indictment against Nsengiyumva, finding sufficient evidence to support charges
of direct and public incitement to commit genocide, crimes against humanity and violations
of Article 3 common to the 1949 Geneva Conventions and the Additional Protocol II.2441
2308. Nsengiyumva was transferred to the Tribunal’s detention facilities on 23 January
1997. The Accused, represented by Mr. Kennedy Ogetto and Mr. Gershom Otachi
Bw’Omanwa, made his initial appearance on 19 February 1997 before Trial Chamber I,
composed of Judge Kama, presiding, Judge Sekule and Judge Pillay. Nsengiyumva pleaded
2433
Kabiligi and Ntabakuze, Decision on the Defence Motion to Implement Trial Chamber II Decision Rendered
on 25 September 1998 Ordering the Return of Seized Items and on the Prosecution’s Motion for a Temporary
Stay for the Execution of the Same Decision (TC), 19 May 2000.
2434
Kabiligi and Ntabakuze, Decision on the Defence Motion Seeking Supplementary Investigations (TC), 1
June 2000.
2435
Kabiligi and Ntabakuze, Decision on Kabiligi’s Motion to Nullify and Declare Evidence Inadmissible (TC),
2 June 2000.
2436
Kabiligi and Ntabakuze, Decision on Kabiligi Motion to Quash or Amend the Indictment (TC), 6 June 2000.
2437
Kabiligi and Ntabakuze, Decision on Kabiligi’s Supplementary Motion for Investigation and Disclosure of
Evidence (TC), 8 June 2000; Kabiligi and Ntabakuze, Decision on Ntabakuze’s Motion for Disclosure of
Material (TC), 8 June 2000.
2438
Kabiligi and Ntabakuze, Decision on Kabiligi’s Motion for Disclosure and Restitution of Documents
Pursuant to Decision Rendered on 5 October 1998 and the Prosecution’s Motion for a Temporary and Partial
Stay of Execution of the Same Decision (TC), 28 June 2000.
2439
Nsengiyumva, Decision: Order of Provisional Detention and Transfer (TC), 17 May 1996.
2440
Nsengiyumva, Decision: Continued Detention on Remand of Anatole Nsengiyumva (TC), 18 June 1996.
2441
Nsengiyumva, Decision on the Review of the Indictment (TC), 12 July 1996.
Judgement and Sentence
580
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
not guilty to all charges.2442 On 28 September 1998, Trial Chamber II denied the Defence
motion contesting its jurisdiction to consider the Prosecution’s request for leave to amend and
join the Nsengiyumva Indictment with three other Accused.2443
2309. On 24 May 1999, Trial Chamber I ordered the Prosecution to clarify its Indictment by
identifying the names and categories of Nsengiyumva’s subordinates and to identify persons
allegedly killed by the Accused.2444 The Prosecution was granted leave to amend the
Nsengiyumva Indictment and to add the charges of conspiracy to commit genocide, genocide,
complicity in genocide, crimes against humanity (extermination, rape and persecution), and
serious violations of common Article 3 of the Geneva Convention and Additional Protocol II
on 2 September 1999.2445
2310. Trial Chamber III denied a Defence motion, on 13 April 2000, challenging the
Chamber’s jurisdiction to rule on the Prosecution’s Amended Indictment.2446 On 3 May 2000,
it rejected the Defence motion arguing that a certain portion of the Concise Statement of
Facts section should be stricken from the Amended Indictment.2447 The Chamber dismissed
the Defence motion, on 12 May 2000, alleging that the Chamber did not have the requisite
jurisdiction to try the Accused on certain counts of the Amended Indictment.2448 On 15 May
2000, the Chamber ordered the Prosecution to provide further details on a number of the
paragraphs of the Amended Indictment.2449
4.
BAGOSORA AND 28 OTHERS
2311. On 6 March 1998, the Prosecution submitted a joint Indictment, naming 29 Accused,
including Bagosora, Kabiligi, Ntabakuze and Nsengiyumva. Judge Khan dismissed the
Indictment against Bagosora and 28 others on 31 March 1998. The Appeals Chamber rejected
the Prosecution’s appeal of the decision on 8 June 1998.2450
2442
T. 19 February 1997 p. 14.
T. 28 September 1998 pp. 28-32. The Prosecution sought to join the Nsengiyumva Indictment with those of
Ntabakuze, Kabiligi and Bagosora. The Defence motion to appeal this decision was dismissed. See
Nsengiyumva, Decision on Appeal Against Oral Decision of Trial Chamber II of 28 September 1998 (AC), 3
June 1999.
2444
Nsengiyumva, Decision on the Defence Motion to Strike Out the Indictment (TC), 24 May 1999. The
Chamber invited the Prosecution to make these amendments within 30 days.
2445
Nsengiyumva, Decision of the Prosecution’s Request for Leave to Amend the Indictment (TC), 2 September
1999.
2446
Nsengiyumva, Decision on the Defence Motions Objecting to the Jurisdiction of the Trial Chamber on the
Amended Indictment, 13 April 2000.
2447
Nsengiyumva, Decision on the Defence Motion Seeking the Striking Out of Paragraph 6.17 of the Concise
Statement of Facts for Non-Compliance of Orders Requiring Amendment (TC), 3 May 2000.
2448
Nsengiyumva, Decision on the Defence Motion Raising Objections on Defects in the Form of the Indictment
and to Personal Jurisdiction on the Amended Indictment (TC), 12 May 2000.
2449
Nsengiyumva, Decision on the Defence Motion on Defects in the Form of the Indictment (TC), 15 May
2000.
2450
Bagosora and 28 Others, Dismissal of Indictment (TC), 31 March 1998; Bagosora and 28 Others, Decision
on the Admissibility of the Prosecution’s Appeal from the Decision of a Confirming Judge Dismissing an
Indictment Against Théoneste Bagosora and 28 Others (AC), 8 June 1998.
2443
Judgement and Sentence
581
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
5.
5.1
THÉONESTE BAGOSORA ET AL.
Pre-Trial Proceedings
2312. On 29 June 2000, Trial Chamber III granted the Prosecution motion to join the cases
of Bagosora, Kabiligi and Ntabakuze, and Nsengiyumva.2451
2313. On 21 November 2001, Trial Chamber III ruled that each party be given notice of all
filings in the case against Bagosora and 28 others.2452 It also harmonised the Prosecution
witness protection orders on 29 November 2001.2453 The Chamber ordered the Prosecution on
5 December 2001 to disclose the identity of its protected witnesses, as well as their nonredacted statements, either 35 days before each witness’s expected testimony or when an
individual comes under the Tribunal’s protection, whichever was earlier.2454
5.2
Prosecution Case
2314. The Prosecution delivered its opening statement on 2 April 2002 before Trial
Chamber III, composed of Judge Lloyd G. Williams, presiding, Judge Pavel Dolenc and
Judge Andrésia Vaz.2455 It heard two witnesses over the course of 32 days, including the
examination of Prosecution Expert Witness Alison Des Forges.
2315. On 2 May 2002, the Chamber ordered the Prosecution to amend its Pre-Trial Brief to
identify the portions of its Indictment that its witnesses intended to corroborate with
testimony.2456 The Prosecution filed its revised brief on 7 June 2002.2457
2316. The Chamber granted, on 13 May 2002, the request from the Bagosora, Kabiligi and
Ntabakuze Defence to compel the Prosecution to deliver French translations of several key
documents, including the Prosecution’s Pre-Trial Brief, its list of intended trial witnesses,
summaries for each prospective witness’s testimony and a copy of Jean Kambanda’s
statement.2458 On the same day, the Chamber dismissed the Bagosora, Kabiligi and
Ntabakuze motion alleging untimely delivery of these documents to the Accused.2459
2451
Bagosora et al., Decision on the Prosecution’s Motion for Joinder (TC), 29 June 2000.
Bagosora et al., Decision on Defence’s Extremely Urgent Motion for All Inferences to be Drawn From the
Joinder Decision Rendered on 29 June 2000 (TC), 21 November 2001.
2453
Bagosora et al., Decision on the Prosecution Motion for Harmonisation and Modification of Protective
Measures for Witnesses (TC), 29 November 2001.
2454
Bagosora et al., Decision and Scheduling Order on the Prosecution Motion for Harmonisation and
Modification of Protective Measures for Witnesses (TC), 5 December 2001. On 28 March 2002, Trial Chamber
III dismissed the joint Defence motion to reconsider both decisions. See Bagosora et al., Decision on Defence
Motion for reconsideration of the Decisions rendered on 29 November 2001 and 5 December 2001 and for a
Declaration of lack of Jurisdiction (TC), 28 March 2002.
2455
T. 2 April 2002 pp. 137-196.
2456
Bagosora et al., Decision on Defence Motions of Nsengiyumva, Kabiligi and Ntabakuze Challenging the
Prosecutor’s Pre-Trial Brief and on the Prosecutor’s Counter Motion (TC), 23 May 2002.
2457
Bagosora et al., The Prosecutor’s Pre-Trial Brief Revision in Compliance with the Decision on Prosecutor’s
Request for an Extension of the Time Limit in the Order of 23 May 2002, and with the Decision on the Defence
Motion Challenging the Pre-Trial Brief, dated 23 May 2002 (TC), 7 June 2002.
2458
Bagosora et al., Decision on Defence Extremely Urgent Motion for Translation of Document (TC), 13 May
2002.
2459
Bagosora et al., Decision on the Motion of Bagosora, Kabiligi and Ntabakuze for the Preservation of their
Rights (TC), 13 May 2002.
2452
Judgement and Sentence
582
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2317. The Chamber ordered the Prosecution to identify within 15 days all portions of its
concise statement of facts to which its witnesses intended to testify on 23 May 2002. In the
same decision, the Chamber rejected Defence requests to compel the Prosecution to file three
separate sets of pre-trial documents, one for each Indictment.2460 It dismissed the Bagosora
Defence motion requesting Bagosora’s provisional release on 12 July 2002. 2461
2318. On 12 September 2002, the Chamber denied Prosecution efforts to enter into evidence
testimony delivered by Expert Witness Alison Des Forges in support of other cases
adjudicated before the Tribunal.2462 It rejected the Bagosora Defence request on 30
September 2002 to prohibit certain witnesses’ testimonies due to untimely disclosure of
statements by the Prosecution. The Chamber limited its remedy to a censure of the
Prosecution. In the same decision, it ordered the Prosecution to disclose to the Bagosora
Defence the “former identifying data” of Witness ZF at least 35 days before his scheduled
testimony.2463
2319. The Chamber ordered the Prosecution to file its revised list of witnesses and to
disclose statements for each prospective witness within ten days of the date of the decision on
4 November 2002.2464 The case was adjourned on 5 December 2002.2465
2320. On 8 April 2003, the Chamber requested the Prosecution to file a revised and final list
of its intended witnesses, with a 100-name limit.2466 The Prosecution submitted a revised
witness list on 30 April 2003, containing 121 names and excluding two witnesses that had
already testified.
2321. The parties were informed by the Registry that Judge Williams had withdrawn from
the trial on 7 May 2003. The President of the Tribunal reassigned the case on 4 June 2003 to
Trial Chamber I, composed of Judge Erik Møse, presiding, Judge Jai Ram Reddy and Judge
Sergei Alekseevich Egorov.2467 On 11 June 2003, Trial Chamber I decided to continue the
trial from the point of suspension instead of beginning anew.2468 The case recommenced in
2460
Bagosora et al., Decision on Defence Motions of Nsengiyumva, Kabiligi and Ntabakuze Challenging the
Prosecution’s Pre-Trial Brief and on the Prosecution’s Counter-Motion (TC), 23 May 2002. On 31 May 2002,
the Chamber refused to grant the Prosecution an extension to comply with this order. Bagosora et al., Decision
on Prosecution’s Request for an Extension of the Time Limit in the Order of 23 May 2002 (TC), 31 May 2002.
2461
Bagosora et al., Decision on the Defence Motion for Release (TC), 12 July 2002. On 19 April 2002, the
Chamber granted the Prosecution’s motion for an extension of time to reply to the Bagosora Defence motion.
Bagosora et al., Decision on the Prosecution’s Urgent Motion for Suspension of Time Limit for Response in the
Matter of Defence Motion “Requête en Demande de Mise en Liberté” Filed by Counsel for Bagosora on 8 April
2002 (TC), 19 April 2002. On 21 May 2002, the Chamber decided to allow the Prosecution another extension,
until 28 May 2002. Bagosora et al., Decision on the Prosecution’s Request for Variation of the Order of 19
April 2002 (TC), 21 May 2002.
2462
T. 12 September 2002 p. 6.
2463
Bagosora et al., Decision on the Defence for Bagosora’s Motion for Postponement or Quashing of the
Testimonies of Witnesses Ruggiu, XAM and ZF (TC), 30 September 2002.
2464
Bagosora et al., Decision (Motion by Aloys Ntabakuze’s Defence for Execution of the Trial Chamber’s
Decision of 23 May 2002 on the Prosecution’s Pre-Trial Brief, Dated 21 January 2002, and Another Motion on
a Related Matter (TC), 4 November 2002.
2465
T. 5 December 2003 p. 141.
2466
Bagosora et al., Order for a Reduction of Prosecutor’s Witness List (TC), 8 April 2003.
2467
T. 16 June 2003 p. 2.
2468
Bagosora et al., Decision on Continuation or Commencement De Novo of Trial (TC), 11 June 2003.
Judgement and Sentence
583
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Trial Chamber I five days later.2469 The Prosecution conducted the remainder of its case over
170 days, hearing 80 witnesses.
2322. On 26 June 2003, the Chamber granted the Prosecution request for leave to add six
witnesses to its list of proposed witness.2470 It ordered the Prosecution on 18 July 2003 to
disclose its witness list, in addition to each witness’s unredacted statement, no later than 28
July 2003. In the same decision, the Chamber provided for derogations from this deadline
when warranted by special circumstances.2471 On 15 August 2003, the Prosecution
successfully moved to suspend the time limit to disclose information on nine of its
witnesses.2472
2323. The Chamber granted the Prosecution, on 1 September 2003, another extension of the
time-limit for filing a motion for special protective measures concerning two witnesses,
giving the Prosecution until 5 September to file its motions.2473 The Prosecution filed the
relevant motion, and the Chamber issued special protective measures for the two witnesses on
3 October 2003.2474
2324. On 9 September 2003, the Chamber denied Ntabakuze Defence motions to sever the
case or, in the alternative, to compel the Prosecution to postpone calling witnesses against the
Accused in order to allow his new lead counsel, Mr. Peter Erlinder, to familiarise himself
with the case.2475
2325. The Chamber partially granted the joint Defence motion on 16 December 2003
ordering the Prosecution to request and then disclose Rwandan judicial records created in
connection with domestic proceedings initiated against prospective Prosecution witnesses. It
declined to postpone the testimony of witnesses whose documents had not yet been
obtained.2476
2326. On 1 March 2004, the Chamber granted the Nsengiyumva Defence motion seeking
disclosure of the unredacted statements of three Prosecution witnesses pursuant to Rule
68.2477 Also on this date, it ordered the Prosecution to comply with its 8 April 2003 decision
2469
T. 16 June 2003 pp. 1-2. On this date the judges of Trial Chamber I signed a declaration stating that they had
familiarised themselves with the records of the proceedings in the case. See Chamber Exhibit 1.
2470
Bagosora et al., Decision on Prosecution Motion for Addition of Witnesses Pursuant to Rule 73 bis (E)
(TC), 26 June 2003.
2471
Bagosora et al., Decision on Defence Motion for Reconsideration of the Trial Chamber’s Decision and
Scheduling Order of 5 December 2001 (TC), 18 July 2003.
2472
Bagosora et al., Decision on Prosecution Notice of Intention to File Motions for Special Witness Protection
Measures (TC), 15 August 2003. The time-limit was postponed with respect to Witnesses A, BT, BW, BY, CT,
DBO, DF, ZA and ZZ.
2473
Bagosora et al., Decision on Prosecution Request for Extension of Suspension of Time-Limit for Filing
Motion for Special Witness Protection Measures (TC), 1 September 2003.
2474
Bagosora et al., Decision on Prosecution Motion for Special Protective Measures for Witnesses A and BY
(TC), 3 October 2003.
2475
Bagosora et al., Decision on Motions by Ntabakuze for Severance and to Establish a Reasonable Schedule
for the Presentation of Prosecution Witnesses (TC), 9 September 2003.
2476
Bagosora et al., Decision on the Request for Documents Arising from Judicial Proceedings in Rwanda in
Respect of Prosecution Witnesses (TC), 16 December 2003.
2477
Bagosora et al., Decision on Motion for Disclosure Under Rule 68 (TC), 1 March 2004. The unredacted
statements of Witnesses OH, OK and OL were the subject of this order.
Judgement and Sentence
584
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
to reduce its witness list to 100 names by 12 March 2004.2478 The Prosecution filed a list on
that date.
2327. The Chamber granted, in part, the motion from the Bagosora Defence on 10 March
2004 and issued a request to the government of Rwanda asking it to determine whether it
possessed a list of specific documents, and if so, to transmit them to the Tribunal.2479 On 23
March 2004, it denied an application from African Concern, a non-governmental
organisation, seeking to appear as amicus curiae.2480 The Chamber denied the motion to
compel the Vatican’s cooperation in facilitating a meeting between one of its former
employees and the Bagosora Defence on 13 May 2004, as the Vatican was not a United
Nations member state.2481
2328. On 21 May 2004, the Chamber partially granted the Prosecution motion to vary its
witness list by allowing the addition of four witnesses that had been included on their 12
March 2004 list as “substitutes” or “added” individuals.2482 On this date, it also issued a
decision finding the Prosecution to be in violation of its former order to limit its witness list
to 100 names, issued on 1 March 2004. It requested compliance by 28 May 2004.2483
2329. The Chamber granted the Bagosora Defence request for the Republic of Ghana to
help facilitate a meeting with former UNAMIR Officer, Major General Yaache on 25 May
2004.2484 On 28 May 2004, the Prosecution filed its list of 100 witnesses. It indicated its
intent to replace four of the witnesses and stated that it would no longer call several of the
witnesses listed on its original list. The Chamber later ordered the Prosecution’s full
2478
Bagosora et al., Decision on Reconsideration of Order to Reduce Witness List and on Motion for Contempt
for Violation of that Order (TC), 1 March 2004. As mentioned above, Trial Chamber III ordered, on 8 April
2003, the Prosecution to file a witness list of no more than 100 names. The list submitted on 30 April 2003
contained 121 names.
2479
Bagosora et al., Request to the Government of Rwanda for Cooperation and Assistance Pursuant to Article
28 of the Statute (TC), 10 March 2004.
2480
Bagosora et al., Decision on Amicus Curiae Request by African Concern (TC), 23 March 2004.
2481
Bagosora et al., Decision on Defence Motion to Obtain Cooperation from the Vatican Pursuant to Article 28
(TC), 13 May 2004.
2482
Bagosora et al., Decision on Prosecutor’s Motions for Leave to Vary the Witness List Pursuant to Rule 73
bis (E) (TC), 21 May 2004. The Chamber granted the addition of Witnesses AAA, ABE, AFJ and Commander
Maxwell Nkole to the list. Reconsideration of this decision was denied in Bagosora et al., Decision on
Prosecutor’s Motion for Reconsideration of the Trial Chamber’s “Decision on Prosecutor’s Motion for Leave to
Vary the Witness List Pursuant to Rule 73 Bis (E), 15 June 2004. The Chamber refused to extend the seven-day
time limit to seek certification of its previous ruling in Bagosora et al., Decision on Prosecution’s Request for a
Suspension of the Time-Limit Under Rule 73 (C) in Respect of the Trial Chamber’s “Decision on Prosecution’s
Motion for Leave to vary the Witness List Pursuant to Rule 73 bis (E) (TC), 16 June 2004. It also denied the
Prosecution certification to appeal its 16 June 2004 decision. See Bagosora et al., Decision on Prosecution’s
Request for Certification Under Rule 73 with Regard to Trial Chamber’s “Decision on Prosecution’s Request
for a Suspension of the Time-Limit” (TC), 14 July 2004. Reconsideration of this decision was also denied. See
Bagosora et al., Decision on Prosecution’s Second Motion for Reconsideration of the Trial Chamber’s
“Decision on Prosecution’s Motion for Leave to vary the Witness List Pursuant to Rule 73 bis (E)” (TC), 14
July 2004.
2483
The Chamber found the Prosecution to be in “obvious” non-compliance with its former order, for including
seven “92 bis witnesses” among its list of 100 other “witnesses” submitted on 12 March 2004. Bagosora et al.,
Decision on Motion to Compel the Prosecution to Comply with the Chamber’s Decision of 1 March 2004 (TC),
21 May 2004.
2484
Bagosora et al., Decision on the Defence for Bagosora’s Request to Obtain the Cooperation of the Republic
of Ghana (TC), 25 May 2004.
Judgement and Sentence
585
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
compliance with its previous orders, “by filing a list of all its witnesses, not to exceed one
hundred in number” by 17 June 2004.2485
2330. On 10 June 2004, the Chamber granted several Prosecution motions and issued
subpoenas compelling seven witnesses to testify. It requested assistance from the government
of Rwanda to facilitate their attendance.2486
2331. The Chamber, on 23 June 2004, granted the Bagosora Defence request to issue a
subpoena compelling Major General Yaache to meet with the Bagosora Defence.2487 It
granted the similar Prosecution motion the next day that requested a subpoena to compel the
presence of Witness BW.2488 On 29 June 2004, the Chamber ruled orally that it would not
take judicial notice of the date of the Ruhanga Church massacre as found in the Semanza
judgement.2489
2332. On 25 August 2004, the Chamber allowed the Prosecution motion to issue a subpoena
for the appearance of Prosecution Witness BT. The Chamber requested assistance from the
Kingdom of Belgium to facilitate the witness’s attendance.2490
2333. The Chamber denied, on 9 September 2004, the Ntabakuze Defence motion objecting
to the Prosecution’s untimely disclosure of the report of Prosecution Expert Witness Filip
Reyntjens.2491 It orally overruled other Defence objections on the same issue, providing its
rationale in a written decision issued on 28 September 2004.2492 On 16 September 2004, the
Chamber denied joint Defence objections to questions posed by the Prosecution to Reyntjens
regarding events that occurred in Rwanda prior to 1991 and 1992.2493
2334. On 29 September 2004, the Chamber rejected the Prosecution request to recall
handwriting expert Antipas Nyanjwa to testify on the authorship and authenticity of certain
2485
Bagosora et al., Decision on Defence Motion to Compel the Prosecution to File a Revised Witness List
(TC), 15 June 2004.
2486
Bagosora et al., Decision on Requests for Subpoenas (TC), 10 June 2004. The Chamber issued subpoenas
for Witnesses AI, BA, CW, DBO, DH, HV and OP. One of them, Witness DBO, was unable to travel to Arusha.
The Chamber denied the Prosecution’s motion to allow Witness DBO’s testimony by deposition. See Bagosora
et al., Decision on Prosecution’s Motion to Allow Witness DBO to Give Testimony by Means of Deposition
(TC), 25 August 2004.
2487
Bagosora et al., Decision on Request for Subpoena of Major General Yaache and Cooperation of the
Republic of Ghana (TC), 23 June 2004.
2488
Bagosora et al., Decision on Request for Subpoena for Witness BW (TC), 24 June 2004.
2489
T. 29 June 2004 pp. 6-7.
2490
The Chamber held that the Prosecution’s alternative requests that the testimony be given by deposition or
video-link were premature; Bagosora et al., Decision on the Prosecutor’s Request for a Subpoena Regarding
Witness BT (TC), 25 August 2004. A subpoena was served on Witness BT on 7 September 2004. On 4 October
2004, the Chamber denied a Prosecution motion to order the deposition of Witness BT in Belgium. See
Bagosora et al., Decision on Prosecution Request for Deposition of Witness BT (TC), 4 October 2004. Four
days later, the Chamber granted a Prosecution request to hear Witness BT’s testimony via video-link in
Bagosora et al., Decision on Prosecution for Testimony of Witness BT via Video-Link (TC), 8 October 2004.
2491
Bagosora et al., Decision on Motion for Postponement of Testimony of Witness Reyntjens (TC), 9
September 2004.
2492
T. 15 September 2004 p. 1; Bagosora et al., Decision on Motion for Exclusion of Expert Witness Statement
of Filip Reyntjens (TC), 28 September 2004.
2493
T. 16 September 2004 p. 2.
Judgement and Sentence
586
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
documents. Nyanjwa had previously testified that photocopies of entries in Bagosora’s diary
from 1994 had been written by the Accused.2494
2335. On 13 October 2004, the Chamber dismissed the request from the Government of
Rwanda to be granted amicus curiae status to make an appearance before the Chamber to
claim restitution of property and assets from Bagosora.2495 The following day, it partially
allowed the Prosecution motion to admit certain documentary evidence pursuant to Rule 89
(C), including the records of interviews with Ntabakuze. In the same decision, it found that
the Prosecution had failed to show that Kabiligi had waived his right to counsel during
interviews with Tribunal investigators after his arrest, and declined to admit transcripts of his
interviews into evidence.2496
2336. The Prosecution concluded its case-in-chief on 14 October 2004.2497 Each Defence
team was asked to file a Pre-Defence Brief by 12 December 2004, as well as provide
preliminary provisional witness lists and a summary for each witness by 12 November
2004.2498 The case for all four Accused was scheduled to begin on 12 January 2005.
2337. On 22 October 2004, the Chamber granted the Bagosora Defence motion to issue a
subpoena compelling Mr. Mamadou Kane, a political adviser to the Special Representative of
the Secretary-General in Rwanda, to meet with the Defence team.2499 On the same date, the
Chamber issued a request to the Republic of France to facilitate a meeting between two of its
nationals and the Bagosora Defence.2500
2338. The Registrar ordered the withdrawal of Kabiligi’s lead counsel, Mr. Jean Yaovi
Degli, on 26 October 2004.2501 The Chamber denied the joint Defence motion to reinstate
him, appointing instead, Mr. Paul Skolnik, co-counsel for Bagosora at that time, as Kabiligi’s
new lead counsel.2502
2494
Bagosora et al., Decision on the Prosecution Motion to Recall Witness Nyanjwa (TC), 29 September 2004.
In two separate decisions in 2007, the Chamber rejected Bagosora Defence motions seeking, respectively, to
exclude the photocopies of the agenda and to compel the Prosecution to proffer the original agenda.
Reconsideration and certification to appeal this decision were denied. See Bagosora et al., Decision on
Bagosora Motion to Exclude Photocopies of Agenda (TC), 11 April 2007; Bagosora et al., Decision on
Bagosora Motion for Disclosure of Agenda (TC), 11 April 2007; Bagosora, et al., Decision on Request for
Certification or Reconsideration Concerning the “Bagosora Agenda” (TC), 8 May 2007.
2495
Bagosora et al., Decision on Amicus Curiae Request by the Rwandan Government (TC), 13 October 2004.
2496
Bagosora et al., Decision on the Prosecutor’s Motion for the Admission of Certain Materials Under Rule 89
(C) (TC), 14 October 2004.
2497
T. 14 October 2004 p. 41.
2498
T. 14 October 2004 pp. 12-13, 15.
2499
Bagosora et al., Decision on Bagosora Defence’s Request for a Subpoena Regarding Mamadou Kane (TC),
22 October 2004.
2500
Bagosora et al., Request to the Republic of France for Cooperation and Assistance Pursuant to Article 28 of
the Statute (TC), 22 October 2004.
2501
Bagosora et al., Decision to Withdraw the Assignment of Mr. Jean Yaovi Degli as Defence Counsel for
Gratien Kabiligi (TC), 26 October 2004.
2502
Bagosora et al., Decision on the Defence Motions for the Reinstatement of Jean Yaovi Degli as lead counsel
for Gratien Kabiligi (TC), 19 January 2005. Certification of this decision was denied in Bagosora et al.,
Decision on the Defence Requests for Certification of the “Decision on the Defence Motions for the
Reinstatement of Jean Yaovi Degli as lead counsel for Gratien Kabiligi” (TC), 2 February 2005. On the same
day it ordered that Kabiligi should be allowed to communicate with Mr. Degli. See Bagosora et al., Decision on
Mr. Degli’s Request for Authorization to Communicate with Mr. Kabiligi (TC), 2 February 2005.
Judgement and Sentence
587
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2339. In a status conference held on 21 December 2004, the start of the Defence case was
postponed until 30 March 2005.2503 The Chamber denied the Ntabakuze Defence motion on
28 December 2004, which sought the dismissal of the case against Ntabakuze due to
intimidation of its prospective witnesses.2504
2340. On 11 January 2005, the Chamber rejected the Prosecution motion to compel each
Accused to present his testimony before any other Defence witnesses.2505 The Chamber
denied all four Defence motions for acquittal pursuant to Rule 98 bis on 2 February 2005,
ruling that all charges against the Accused remained intact.2506 It requested that the
Netherlands assist the Bagosora Defence in accessing Major Robert Alexander van Putten on
7 February 2005.2507
2341. The Chamber refused to allow Mr. Degli to continue as Kabiligi’s counsel on a pro
bono basis on 4 March 2005. It later denied certification of this decision.2508 On 24 March
2005, the Chamber denied an application from Mr. Skolnik to withdraw as Kabiligi’s lead
counsel and another Defence motion requesting severance as a result of the prejudice caused
to Kabiligi. 2509
5.3
Defence Case
2342. The Defence commenced its case on 11 April 2005 and finished on 18 January 2007,
after offering 180 witnesses over the course of 201 trial days, including Bagosora, Ntabakuze
and Nsengiyumva. The Defence elected to combine their witnesses as part of a single, larger
presentation. The Kabiligi Defence’s obligation to file its Pre-Defence Brief and present
witnesses was suspended due to the re-assignment of counsel.2510
2343. On 21 April 2005, the Chamber decided that the Kabiligi Pre-Defence Brief, as well
as an initial sequence of witnesses, should be filed no later than 30 days before the
presentation of its first witness. The opening statement of the Kabiligi Defence was scheduled
for the day of the presentation of its first witness, which was 6 September 2006.2511
2344. On 26 April 2005, the Chamber outlined the procedure for cross-examination of
witnesses during the Defence phase, deciding that questions by Defence teams other than the
2503
T. 21 December 2004 p. 27.
Bagosora et al., Decision on Motion Concerning Alleged Witness Intimidation (TC), 28 December 2004.
2505
Bagosora et al., Decision on Motion to Compel Accused to Testify Prior to Other Defence Witnesses (TC),
11 January 2005.
2506
Bagosora et al., Decision on Motions for Judgement of Acquittal (TC), 2 February 2005.
2507
Bagosora et al., Decision on Request to the Kingdom of the Netherlands for Cooperation and Assistance
(TC), 7 February 2005.
2508
Bagosora et al., Decision on Request for Private Representation of Gratien Kabiligi (TC), 4 March 2005;
Bagosora et al., Decision on Request for Certification of Appeal Concerning Private Representation (TC), 24
March 2005.
2509
Bagosora et al., Decision on Maitre Paul Skolnik’s Application for Reconsideration of the Chamber’s
Decision to Instruct the Registrar to Assign Him as Lead Counsel for Gratien Kabiligi (TC), 24 March 2005;
Bagosora et al., Decision on Request for Severance by Accused Kabiligi (TC), 24 March 2005.
2510
T. 1 March 2005 p. 5.
2511
Bagosora et al., Decision on Postponement of Defence of Accused Kabiligi (TC), 21 April 2005. The
Kabiligi Defence request for certification of this decision was declined in Bagosora et al., Decision on Kabiligi
Defence Request for Certification (TC), 4 May 2005. The Chamber later ordered the Kabiligi Defence to file its
Pre-Defence Brief by 7 July 2006. See Bagosora et al., Decision on Commencement of Kabiligi Defence and
Filing of Pre-Defence Brief (TC), 21 June 2006.
2504
Judgement and Sentence
588
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
one(s) calling the witness should be conducted before the commencement of crossexamination by the Prosecution.2512
2345. On 1 June 2005, the Chamber harmonised the four Defence teams’ witness protection
orders and held that its 15 March 2004 decision, in which it outlined protections measures for
Ntabakuze Defence witnesses, should also apply to the Nsengiyumva Defence. It held that
the wording of its witness protection orders was correct and that automatic access to
protected Defence witness information should be limited to members of the “Prosecution
team in this case”.2513
2346. The Chamber denied the Ntabakuze Defence request for the Prosecution to disclose
its database of witness statements on 8 June 2005.2514 On 5 July 2005, it granted the
Prosecution request for further witness identifying information from the Ntabakuze and
Nsengiyumva Defence teams, insofar as the information provided by them had been
deficient.2515
2347. On 27 September 2005, the Chamber partially granted the Kabiligi Defence motion
for exclusion, ruling that portions of the testimony of Witnesses XAU and DCH were
inadmissible as irrelevant to the Indictment against the Accused.2516 On the same day, it
denied the Kabiligi Defence request that the Prosecution provide greater specificity in the
Indictment.2517 It also rejected the Nsengiyumva Defence request for an order requiring the
Prosecution to disclose any documents or other materials in its possession concerning the
immigration status of Defence witnesses that day.2518 The Appeals Chamber subsequently
reversed the Trial Chamber’s decision and ordered the Prosecution to permit inspection by
the Defence of all requested immigration documents not intended for use as exhibits.2519
2348. The Chamber granted on 31 October 2005 the Nsengiyumva Defence request for the
Government of Togo to facilitate contact with Mr. Aouili Tchemi-Tchambi, a former United
Nations observer in Rwanda. It also allowed the Bagosora Defence request for the
2512
Bagosora et al., Decision on Modalities for Examination of Defence Witnesses (TC), 26 April 2005.
Bagosora et al., Decision on Motion to Harmonize and Amend Witness Protection Orders (TC), 1 June
2005. The Appeals Chamber later determined that this decision inappropriately restricted the Prosecution’s
ability to perform its functions and asked the Chamber to adjust its ruling accordingly. See Bagosora et al.,
Decision on Interlocutory Appeals of Decision on Witness Protection Orders (AC), 6 October 2005.
2514
Bagosora et al., Decision on Disclosure of Prosecution Data Base and Map (TC), 8 June 2005.
2515
Bagosora et al., Decision on Sufficiency of Defence Witness Summaries (TC), 5 July 2005. Certification of
this decision was denied. See Bagosora et al., Decision on Request for Certification Concerning Sufficiency of
Defence Witness Summaries (TC), 21 July 2005.
2516
Bagosora et al., Decision on Exclusion of Testimony Outside the Scope of the Indictment (TC), 27
September 2005. Subsequent Defence motions for reconsideration and certification of this decision were denied.
See Bagosora et al., Decision on Kabiligi Motion for Exclusion of Testimony of Witness XAI (TC), 14
September 2006; Bagosora et al., Decision on Application for Certification to Appeal Decision on Exclusion of
Testimony (TC), 10 February 2006.
2517
Bagosora et al., Decision on Kabiligi Request for Particulars of the Amended Indictment (TC), 27
September 2005. The Chamber denied the Kabiligi Defence motion seeking certification to appeal this decision.
See Bagosora et al., Decision on Certification of Appeal from Decision Denying Request for Further Particulars
of the Indictment (TC), 10 February 2006.
2518
Bagosora et al., Decision on Disclosure of Materials Relating to Immigration Statements of Defence
Witnesses (TC), 27 September 2005. The Chamber later granted the Defence application for certification of this
decision; Bagosora et al., Decision on Certification of Interlocutory Appeal Concerning Prosecution Disclosure
of Defence Witness Statements (TC), 22 May 2006.
2519
Bagosora et al., Decision on Interlocutory Appeal Relating to Disclosure Under Rule 66 (B) of the
Tribunal’s Rules of Procedure and Evidence (AC), 25 September 2006.
2513
Judgement and Sentence
589
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Bangladeshi government to facilitate a meeting with Colonel Bahir and Captain Wadud, two
of the former members of the Bangladeshi contingent of UNAMIR.2520
2349. On 2 December 2005, the Chamber made two amendments to protection orders
applicable to the Defence, deleting portions of the orders that infringed on the Prosecution’s
access to confidential information of Defence witnesses.2521 The Chamber granted Bagosora,
Ntabakuze and Nsengiyumva Defence requests on 17 February 2006 to remove 51
prospective witnesses from their witness lists and to add 31 others, contingent upon
disclosure of the newly added witnesses’ identifying information and unredacted statements
at least 35 days prior to their scheduled testimony.2522
2350. The Chamber partially granted the Ntabakuze Defence motion seeking disclosure of
prior statements given to the Prosecution by four Defence witnesses, on the basis that they
were exculpatory under Rule 68 (A) on 8 March 2006.2523 On 22 March 2006, it issued an
oral ruling denying the joint Kabiligi, Nsengiyumva and Ntabakuze Defence motion to sever
their trials from Bagosora due to the possibility of prejudice arising from the testimony of
two potential Bagosora witnesses.2524
2351. On 21 April 2006, the Chamber requested that Belgium facilitate meetings between
the Nsengiyumva Defence team and four UNAMIR officers stationed in Gisenyi prefecture
during 1994.2525 It granted, on 24 May 2006, the Bagosora Defence motion for disclosure of
portions of the statement of Witness AIU, but denied its simultaneous request for the
subpoena of this witness.2526
2352. The Chamber allowed further alterations to the Nsengiyumva Defence witness list on
6 June 2006. It granted the Nsengiyumva Defence’s request to add 12 new witnesses to its list
and remove 12 others.2527
2353. On 29 June 2006, the Chamber partially granted the Ntabakuze Defence motion that
sought exclusion of seventeen categories of evidence, excluding three of the challenged
categories of evidence.2528 Certification of this decision was granted.2529 The Appeals
Chamber ruled that the Chamber should reconsider its former decision in order to determine
2520
Bagosora et al., Decision on Request to the Republic of Togo for Assistance Pursuant to Article 28 of the
Statute (TC), 31 October 2005; Bagosora et al., Decision on Request to the Republic of Bangladesh (TC), 31
October 2005.
2521
Bagosora et al., Decision Amending Defence Witness Protection Orders (TC), 2 December 2005.
2522
Bagosora et al., Decision on Defence Motions to Amend the Defence Witness List (TC), 17 February 2006.
2523
Bagosora et al., Decision on Disclosure of Defence Witness Statements in Possession of the Prosecution
Pursuant to 68 (A) (TC), 8 March 2006. The Chamber granted the Defence motion in respect of the statements
of Defence Witnesses DM-46 and DM-80, which it found were exculpatory in part.
2524
T. 22 March 2006 p. 8. Its written opinion on the issue was rendered on 27 March 2006. Bagosora et al.,
Decision on Request for Severance of Three Accused (TC), 27 March 2006. Requests for certification from all
three accused were denied. See Bagosora et al., Decision on Certification of Request for Severance of Three
Accused (TC), 22 May 2006.
2525
Bagosora et al., Decision on Request to the Kingdom of Belgium for Assistance Pursuant to Article 28 of
the Statute (TC), 21 April 2006.
2526
Bagosora et al., Decision on Disclosure of Identity of Prosecution Informant (TC), 24 May 2006.
2527
Bagosora et al., Decision on Nsengiyumva Motion for Leave to Amend its Witness List (TC), 6 June 2006.
2528
Bagosora et al., Decision on Ntabakuze Motion for Exclusion of Evidence (TC), 29 June 2006.
2529
Bagosora et al., Decision on Request for Certification of Decision on Exclusion of Evidence (TC), 14 July
2006.
Judgement and Sentence
590
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
whether the defects contained in the Indictment materially prejudiced the rights of the
Accused to a fair trial by hindering the Defence preparations.2530
2354. On 6 July 2006, the Chamber denied the Ntabakuze Defence request for Jean
Kambanda’s anticipated testimony not to be considered in relation to Ntabakuze’s case.2531
The Chamber later rendered an oral decision suspending Kambanda’s testimony until written
submissions on this issue could be heard.2532 The Chamber issued a subpoena on 14 July
2006 for the appearance and testimony of Major Jacques Biot.2533
2355. The Chamber requested on 29 August 2006 the Tanzanian government to facilitate a
meeting between the Bagosora Defence and Ambassador Ami R. Mpungwe, a former
Tanzanian official.2534 It later granted the Bagosora Defence request to issue a subpoena
compelling Mr. Mpungwe’s appearance.2535
2356. The Chamber partially granted the Kabiligi Defence motion to exclude the testimony
of seven Prosecution witnesses on 4 September 2006. Certification of this decision was
denied.2536 On the same day, the Chamber excluded portions of Alison Des Forges’s expert
testimony that referenced previously excluded statements made by Kabiligi during an
interview with the Prosecution in July 1997.2537
2357. On 11 September 2006, the Chamber issued a subpoena to compel the appearance of
General Marcel Gatsinzi.2538 Gatsinzi agreed to testify, provided that he was called as a
Chamber witness and permitted to testify via video-link.2539 The Chamber later decided not to
2530
Bagosora et al., Decision on Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29
June 2006 Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), 18 September 2006. The
Chamber affirmed its 29 June 2006 decision in Bagosora et al., Decision Reconsidering Exclusion of Evidence
Following Appeals Chamber Decision (TC), 17 April 2007. It dismissed the Ntabakuze Defence request for
certification of this decision. See Bagosora et al., Decision on Ntabakuze Motion for Certification Concerning
Exclusion of Evidence (TC), 23 May 2007.
2531
Bagosora et al., Decision on Ntabakuze Request for Exclusion of Testimony of Witness Jean Kambanda
(TC), 6 July 2006.
2532
T. 13 July 2006 p. 39. On 16 June 2006, the Chamber orally ordered the Registry to determine whether
Kambanda’s future arrival could be moved forward several days so that he would have more time to testify. See
T. 16 June 2006 p. 49. On 6 September 2006, the Chamber orally rejected the Kabiligi Defence motion to
suspend the trial pending a decision on the scheduling of Kambanda’s testimony. See T. 6 September 2006 p.
15. A few days later, the Chamber decided to exclude certain topics from Kambanda’s testimony, pursuant to
Kabiligi Defence, Nsengiyumva Defence and Ntabakuze Defence objections. See Bagosora et al., Decision on
Severance or Exclusion of Evidence Based on Prejudice Arising from Testimony of Jean Kambanda (TC), 11
September 2006.
2533
Bagosora et al., Decision on Request for a Subpoena for Major Jacques Biot (TC), 14 July 2006. The
witness testified under the name Willy Biot. See Nsengiyumva Defence Exhibit 209 (personal information
sheet).
2534
Bagosora et al., Decision on the Bagosora Defence Request for Subpoena of Ambassador Mpungwe and
Cooperation of the United Republic of Tanzania (TC), 29 August 2006.
2535
Bagosora et al., Decision on Request for Subpoena of Ami R. Mpungwe (TC), 19 October 2006.
2536
Bagosora et al., Decision on Kabiligi Motion for Exclusion of Evidence (TC), 4 September 2006.; Bagosora
et al., Decision on Kabiligi Request for Certification to Appeal Decision on Exclusion of Evidence (TC), 18
October 2006. The Chamber’s 4 September 2006 decision was affirmed on 23 April 2007. Bagosora et al.,
Decision Reconsidering Exclusion of Evidence Related to Accused Kabiligi (TC), 23 April 2007.
2537
Bagosora et al., Decision on Kabiligi Motion for the Exclusion of Portions of Testimony of Prosecution
Witness Alison Des Forges (TC), 4 September 2006.
2538
Bagosora et al., Decision on Request for a Subpoena (TC), 11 September 2006.
2539
The Registrar’s Submissions Regarding the Trial Chamber’s Decision on Request for a Subpoena of 11
September 2006, 5 October 2006, paras. 6-7.
Judgement and Sentence
591
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
call Gatsinzi as a Chamber witness.2540 Also on 11 September 2006, the Chamber granted the
Nsengiyumva Defence team leave to add six more witnesses to its list and granted the
Bagosora Defence team’s request to add two witnesses and remove 15 others.2541
2358. On 15 September 2006, the Chamber partially allowed the Nsengiyumva Defence
motion for exclusion, deciding that five specific pieces of Prosecution evidence should be
struck from the record because they were beyond the scope of the Indictment.2542 On 6
October 2006, it denied the Ntabakuze Defence motion to compel disclosure of any and all
evidence gathered by the Prosecution concerning actions of members of the RPF.2543 On the
same day, the Chamber refused the Ntabakuze Defence motion requesting assistance from
France to obtain the “Brugière Report”.2544 It also dismissed the Ntabakuze Defence request
to issue subpoenas compelling senior United Nations officials Kofi Annan, Iqbal Riza,
Shaharyar Khan and Michael Hourigan to appear before the Tribunal.2545
2359. The deadline for the presentation of the Defence cases (except for Kabiligi) expired
on 13 October 2006, although several Bagosora Defence and Ntabakuze Defence witnesses
remained outstanding.2546 On 17 October 2006, the Chamber rejected the Bagosora and
Ntabakuze Defence request for disclosure from the Prosecution of evidence pertaining to the
assassination of President Habyarimana.2547
2360. On 30 October 2006, the Chamber granted the Prosecution’s motion requesting that
the Kabiligi Defence provide identifying information for each of its witnesses as well as any
2540
T. 8 December 2006 pp. 4-5. In Bagosora et al., Decision on Bagosora Motion for Additional Time for
Closing Brief and on Related Matters (TC), 2 May 2007, the Chamber noted that the Defence never requested a
video-link with this witness and that, as all parties completed the presentation of evidence on 12 December
2006, it was unable to do anything further. In Bagosora et al., Decision on Bagosora Request for Ruling or
Certification Concerning Subpoena Issued to General Marcel Gatsinzi (TC), 23 May 2007, the Chamber held
that it had formally issued its ruling with regard to Gatsinzi’s appearance before the Tribunal and refused to
revisit this issue.
2541
Bagosora et al., Decision on the Nsengiyumva Motion to Add Six Witnesses to its Witness List (TC), 11
September 2006; Bagosora et al., Decision on Bagosora Motion to Modify its Witness List (TC), 11 September
2006.
2542
Bagosora et al., Decision on Nsengiyumva Motion for Exclusion of Evidence Outside the Scope of the
Indictment (TC), 15 September 2006.
2543
Bagosora et al., Decision on Ntabakuze Motion for Disclosure of Prosecution Files (TC), 6 October 2006. In
a similar decision rendered on 20 November 2006, the Chamber denied another Ntabakuze Defence motion to
compel the Prosecution to disclose evidence related to the RPF’s alleged involvement in massacres. See
Bagosora et al., Decision on Ntabakuze Motion for Disclosure of Specific Exculpatory Evidence (TC), 20
November 2006.
2544
Bagosora et al., Decision on Request for Cooperation of the Government of France (TC), 6 October 2006.
The Chamber later denied a Bagosora Defence motion to compel the Prosecution and the United Nations to
disclose all evidence regarding the President’s assassination. See Bagosora et al., Decision on Requests for
Disclosure and Investigations Concerning the Assassination of President Habyarimana (TC), 17 October 2006.
The Chamber denied certification to appeal the decision in Bagosora et al., Decision on Request for
Certification of Appeal on disclosure and Investigations Concerning the Assassination of President
Habyarimana (TC), 12 December 2006.
2545
Bagosora et al., Decision on Request for Subpoenas of United Nations Officials (TC), 6 October 2006.
Reconsideration of this decision was denied. See Bagosora et al., Decision on Ntabakuze Motion for
Reconsideration of Denial of Issuance of Subpoena to a United Nations Official (TC), 12 December 2006.
2546
T. 13 October 2006 p. 1.
2547
Bagosora et al., Decision on the Requests for Disclosure and Investigations Concerning the Assassination of
President Habyarimana (TC), 17 October 2006.
Judgement and Sentence
592
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
statements in its possession.2548 On 10 November 2006, it partially granted the Bagosora
Defence motion to amend its witness list and allow testimony from Expert Witness Bernard
Lugan.2549 It partially granted a Bagosora Defence motion to add Witness Ami R. Mpungwe
to its witness list a week later.2550
2361. On 17 November 2006, the Chamber denied the Nsengiyumva Defence motion to
suspend the trial in light of Nsengiyumva’s absence in court due to illness, during which the
Chamber heard testimony from eight remaining Defence witnesses.2551 It later refused to
recall these witnesses.2552 The Chamber rejected the Ntabakuze Defence motion on 20
November 2006 seeking disclosure from the Prosecution of evidence concerning the alleged
involvement of RPF soldiers in massacres in April and June 1994.2553
2362. The Chamber partially granted the Kabiligi Defence motion on 6 December 2006 and
ordered the Prosecution to disclose any statements or documents that Kabiligi gave to
immigration authorities, as well as any documents seized from the Accused by ICTR
investigators.2554 It denied the Kabiligi Defence motion for certification to appeal the decision
on 12 December 2006.2555
2363. In a status conference on 19 January 2007, the Prosecution was ordered to file its
Closing Brief by 2 March 2007. All Defence teams were ordered to file their Closing Briefs
by 2 April 2007.2556 Extensions were later granted to the Bagosora Defence for translation of
the Prosecution Closing Brief into French, first until 10 May and then until 17 May.2557 On 26
March 2007, the Chamber ordered the other three Defence teams to file their respective
Closing Briefs no later than 23 April 2007.2558
2364. On 29 March 2007, the Chamber dismissed requests from the Kabiligi and Ntabakuze
Defence to require that the Prosecution remove evidence from its Closing Brief that had
already been excluded at trial. The Chamber explained that it would ignore all formally
excluded evidence.2559
2548
Bagosora et al., Decision on Alleged Deficiencies in the Kabiligi Pre-Defence Brief (TC), 30 October 2006.
T. 10 November 2006 p. 29.
2550
Bagosora et al., Decision on Bagosora Motion to Present Additional Witnesses and Vary its Witness List
(TC), 17 November 2006.
2551
Bagosora et al., Decision on Nsengiyumva Motion for Adjournment Due to Illness of the Accused (TC), 17
November 2006. On 12 December 2006, the Chamber dismissed the Nsengiyumva Defence motion requesting
medical doctors to establish the state of Nsengiyumva’s physical health. See T. 12 December 2006 p. 7.
2552
Bagosora et al., Decision on Nsengiyumva Motions to Call Doctors and to Recall Eight Witnesses (TC), 19
April 1997.
2553
Bagosora et al., Decision on Ntabakuze Motion for Disclosure of Specific Exculpatory Evidence (TC), 20
November 2006.
2554
Bagosora et al., Decision on Kabiligi Motion for Inspection of Documents under Rule 66 (B) (TC), 6
December 2006.
2555
Bagosora et al., Decision on Kabiligi Request for Certification Concerning Inspection of Documents
Pursuant to Rule 66 (B) (TC), 12 December 2006.
2556
T. 19 January 2007, p. 16.
2557
Bagosora et al., Decision on Bagosora Defence Motion Concerning Scheduling of its Closing Brief (TC), 13
March 2007; Bagosora et al., Decision on Bagosora Motion for Additional Time for Closing Brief and on
Related Matters (TC), 2 May 2007.
2558
Bagosora et al., Decision on Defence Motions for Extension of Time to File Their Closing Briefs (TC), 26
March 2007.
2559
Bagosora et al., Decision on Defence Motions to Strike Excluded Evidence From the Prosecution Closing
Brief (TC), 29 March 2007.
2549
Judgement and Sentence
593
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
2365. In a decision of 18 April 2007, the Chamber denied the Ntabakuze Defence motion
requesting that it order the Prosecution to investigate Rwandan President Paul Kagame and
other RPF leaders and initiate criminal proceedings against them. In the same decision, it also
denied the Bagosora Defence motion seeking disclosure of all evidence suggestive of RPF
crimes committed in Rwanda in 1994.2560
2366. On 30 April 2007, the Chamber denied the Bagosora Defence motion seeking to
exclude portions of testimony provided by witnesses whose immigration documents were
previously undisclosed.2561 It granted in part the Bagosora Defence motion seeking the
exclusion of evidence based on lack of notice on 11 May 2007.2562 On 28 May 2007, the
Bureau denied a Bagosora Defence motion seeking disqualification of all three judges
presiding over Trial Chamber I based on an apprehension of bias.2563
5.4
Further Proceedings
2367. Oral closing arguments were heard by the Chamber between 28 May and 1 June 2007.
On 22 October 2008, it denied, in one decision, three Ntabakuze motions seeking the
disclosure of alleged exculpatory material related to the activities of the RPF in resuming
hostilities in Rwanda after 6 April and other crimes, and a stay in proceedings until the
Prosecution had met its disclosure obligations.2564 On the same day, it rejected a Ntabakuze
motion seeking the admission of an indictment issued by Judge Andreu of Spain on 8
February 2008 against former members of the RPF.2565 Also on that date, the Chamber
dismissed Ntabakuze and Nsengiyumva Defence requests to expedite the translation of the
Nahimana et al. Appeal Judgement, to allow additional arguments based on it prior to the
rendering of the judgement in the case, and to stay proceedings until such time.2566
2368. The Chamber pronounced its unanimous judgement on 18 December 2008. It
sentenced Bagosora, Ntabakuze and Nsengiyumva to life imprisonment based on convictions
for genocide, crimes against humanity and serious violations of Article 3 common to the
Geneva Conventions and Additional Protocol II. Kabiligi was acquitted of all counts and
immediately released. On 31 December 2008, the Chamber denied the Prosecution’s motion
to impose conditions on Kabiligi’s liberty, but requested him to inform the Tribunal and his
counsel of his whereabouts in the event that there was a change in his residence before the
expiration of the period for filing a notice of appeal.2567 The Chamber filed the written
judgement on 9 February 2009 after the completion of the editorial process.
2560
Bagosora et al., Decision on Ntabakuze Petition for a Writ of Mandamus and Related Defence Requests
(TC), 18 April 2007.
2561
Bagosora et al., Decision on Bagosora Motion to Exclude Testimony Relating to Immigration Document
(TC), 30 April 2007.
2562
Bagosora et al., Decision on Bagosora Motion for Exclusion of Evidence Outside the Scope of the
Indictment (TC), 11 May 2007.
2563
Bagosora et al., Decision on Motion for Disqualification of Judges (TC), 28 May 2007.
2564
Bagosora et al., Decision on Ntabakuze Defence Motions Concerning Disclosure of Exculpatory Evidence
(TC), 22 October 2008.
2565
Bagosora et al., Decision on Ntabakuze Defence Motions for the Admission of Additional Evidence (TC),
22 October 2008.
2566
Bagosora et al., Decision on Defence Motions Concerning Appeal Chamber Jurisprudence After Closure of
the Case (TC), 22 October 2008.
2567
Bagosora et al., Decision on Prosecution Motion to Impose Conditions on Kabiligi’s Liberty (TC), 31
December 2008.
Judgement and Sentence
594
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
ANNEX B: CITED MATERIALS AND DEFINED TERMS
1.
JURISPRUDENCE
1.1 ICTR
Akayesu
The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), 2 September
1998 (“Akayesu Trial Judgement”)
The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement (AC), 1 June 2001
(“Akayesu Appeal Judgement”)
Bagilishema
The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-T, Judgement (TC), 7 June
2001 (“Bagilishema Trial Judgement”)
The Prosecutor v. Ignace Bagilishema, Case No. ICTR-95-1A-A, Judgement (AC), 3 July
2002 (“Bagilishema Appeal Judgement”)
Bagosora et al.
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR 98-41-AR73, Decision on
Aloys Ntabakuze’s Interlocutory Appeal on Questions of Law Raised by the 29 June 2006
Trial Chamber I Decision on Motion for Exclusion of Evidence (AC), 18 September 2006
Bikindi
The Prosecutor v. Simon Bikindi, Case No. ICTR-01-72-T, Judgement (TC), 2 December
2008 (“Bikindi Trial Judgement”)
Gacumbitsi
The Prosecutor v. Sylvestre Gacumbitsi, Case No. ICTR-2001-64-T, Judgement (TC),
17 June 2004 (“Gacumbitsi Trial Judgement”)
Sylvestre Gacumbitsi v. The Prosecutor, Case No. ICTR-2001-64-A, Judgement (AC), 7 July
2006 (“Gacumbitsi Appeal Judgement”)
Gatete
The Prosecutor v. Jean-Baptiste Gatete, Case No. ICTR-2000-61-R11bis, Decision on
Prosecutor’s Request for Referral to the Republic of Rwanda (TC), 17 November 2008
(“Gatete Decision on Prosecutor’s Request for Referral to the Republic of Rwanda”)
Kajelijeli
The Prosecutor v. Juvénal Kajelijeli, Case No. ICTR-98-44A-T, Judgement and Sentence
(TC), 1 December 2003 (“Kajelijeli Trial Judgement”)
Judgement and Sentence
595
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Juvénal Kajelijeli v. The Prosecutor, Case No. ICTR-98-44A-A, Judgement (AC), 23 May
2005 (“Kajelijeli Appeal Judgement”)
Kambanda
The Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence (TC),
4 September 1998 (“Kambanda Trial Judgement”)
Jean Kambanda v. The Prosecutor, Case No. ICTR-97-23-A, Judgement (AC), 19 October
2000 (“Kambanda Appeal Judgement”)
Kamuhanda
The Prosecutor v. Jean de Dieu Kamuhanda, Case No. ICTR-95-54A-T, Judgement (TC),
22 January 2004 (“Kamuhanda Trial Judgement”)
Kanyarukiga
The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis, Decision on
Prosecutor’s Request for Referral to the Republic of Rwanda (TC), 6 June 2008
(“Kanyarukiga Decision”)
Karemera et al.
The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73.8, Decision on
Interlocutory Appeal Regarding Witness Proofing (AC), 11 May 2007
The Prosecutor v. Edouard Karemera et al., Case No. ICRT-98-44-AR73.10, Decision on
Nzirorera’s Interlocutory Appeal Concerning His Right to Be Present at Trial (AC),
5 October 2007
The Prosecutor v. Edouard Karemera et al., Case No. ICTR-98-44-AR73, Decision on
Prosecutor’s Interlocutory Appeal Against Trial Chamber III Decision of 8 October 2003
Denying Leave to File an Amended Indictment (AC), 19 December 2003
Karera
The Prosecutor v. François Karera, Case No. ICTR-01-74-T, Judgement (TC), 7 December
2007 (“Karera Trial Judgement”)
Kayishema and Ruzindana
The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T,
Judgement (TC), 21 May 1999 (“Kayishema and Ruzindana Trial Judgement”)
The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T,
Sentence, 21 May 1999 (“Kayishema and Ruzindana Trial Judgement (Sentence)”)
The Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-I-A,
Judgement (AC), 1 June 2001 (“Kayishema and Ruzindana Appeal Judgement”)
Judgement and Sentence
596
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Mpambara
The Prosecutor v. Jean Mpambara, Case No. ICTR-01-65-T, Judgement (TC), 11 September
2006 (“Mpambara Trial Judgement”)
Mugiraneza
The Prosecutor v. Prosper Mugiraneza, Case No. ICTR-99-50-AR73, Decision on Prosper
Mugaraneza’s Interlocutory Appeal From Trial Chamber II Decision of 2 October 2003
Denying the Motion to Dismiss the Indictment, Demand for Speedy Trial and Appropriate
Relief (AC), 27 February 2004
Muhimana
Mikaeli Muhimana v. The Prosecutor, Case No. ICTR-95-1B-A, Judgement (AC), 21 May
2007 (“Muhimana Appeal Judgement”)
Musema
The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-A, Judgement and Sentence (TC),
27 January 2000 (“Musema Trial Judgement”)
Alfred Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement (AC), 16 November
2001 (“Musema Appeal Judgement”)
Muvunyi
Tharcisse Muvunyi v. The Prosecutor, Case No. ICTR-2000-55A-A, Judgement (AC),
29 August 2008 (“Muvunyi Appeal Judgement”)
Nahimana et al.
The Prosecutor v. Ferdinand Nahimana et al., Case No. ICTR-99-52-T, Judgement and
Sentence (TC), 3 December 2003 (“Nahimana et al. Trial Judgement”)
Ferdinand Nahimana et al. v. The Prosecutor, Case No. ICTR-99-52-A, Judgement (AC),
28 November 2007 (“Nahimana et al. Appeal Judgement”)
Ndindabahizi
The Prosecutor v. Emmanuel Ndindabahizi, Case No. ICTR-2001-71-T, Judgement (TC),
15 July 2004 (“Ndindabahizi Trial Judgement”)
Emmanuel Ndindabahizi v. The Prosecutor, Case No. ICTR-01-71-A, Judgement (AC),
16 January 2007 (“Ndindabahizi Appeal Judgement”)
Niyitegeka
The Prosecutor v. Eliézer Niyitegeka, Case No. ICTR-96-14-T, Judgement and Sentence
(TC), 16 May 2003 (“Niyitegeka Trial Judgement”)
Eliézer Niyitegeka v. The Prosecutor, Case No. ICTR-96-14-A, Judgement (AC), 9 July 2004
(“Niyitegeka Appeal Judgement”)
Judgement and Sentence
597
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Ntagerura et al.
The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-T, Judgement and Sentence
(TC), 25 February 2004 (“Ntagerura et al. Trial Judgement”)
The Prosecutor v. André Ntagerura et al., Case No. ICTR-99-46-A, Judgement (AC), 7 July
2006 (“Ntagerura et al. Appeal Judgement”)
Ntahobali and Nyiramasuhuko
Arsène Shalom Ntahobali and Pauline Nyiramasuhuko v. The Prosecutor, Case No. ICTR97-21-AR73, Decision on the Appeals by Pauline Nyiramasuhuko and Arsène Shalom
Ntahobali on the “Decision on Defence Urgent Motion to Declare Parts of the Evidence of
Witness RV and QBZ Inadmissible” (AC), 2 July 2004
Ntakirutimana
The Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-T and
ICTR-96-17-T, Judgement and Sentence (TC), 21 February 2003 (“Ntakirutimana Trial
Judgement”)
The Prosecutor v. Elizaphan and Gérard Ntakirutimana, Cases Nos. ICTR-96-10-A and
ICTR-96-17-A, Judgement (AC), 13 December 2004 (“Ntakirutimana Appeal Judgement”)
Rutaganda
The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T,
Judgement and Sentence (TC), 6 December 1999 (“Rutaganda Trial Judgement”)
Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-A,
Judgement (AC), 26 May 2003 (“Rutaganda Appeal Judgement”)
Georges Anderson Nderubumwe Rutaganda v. The Prosecutor, Case No. ICTR-96-3-R,
Decision on Requests for Reconsideration, Review, Assignment of Counsel, Disclosure, and
Clarification, 8 December 2006 (“Rutaganda Review Decision”)
Rwamakuba
The Prosecutor v. André Rwamakuba, Case No. ICTR-98-44C-T, Judgement (TC),
20 September 2006 (“Rwamakuba Trial Judgement”)
André Rwamakuba v. The Prosecutor, Case No. ICTR-98-44C-A, Decision on Appeal
against Decision on Appropriate Remedy (AC), 13 September 2007
Semanza
The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T, Judgement and Sentence (TC),
15 May 2003 (“Semanza Trial Judgement”)
Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Judgement (AC), 20 May
2005 (“Semanza Appeal Judgement”)
Laurent Semanza v. The Prosecutor, Case No. ICTR-97-20-A, Decision (AC), 31 May 2000
Judgement and Sentence
598
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Seromba
The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-T, Judgement (TC),
13 December 2006 (“Seromba Trial Judgement”)
The Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-A, Judgement (AC),
12 March 2008 (“Seromba Appeal Judgement”)
Serushago
The Prosecutor v. Omar Serushago, Case No. ICTR-98-39-S, Sentence (TC), 5 February
1999 (“Serushago Trial Judgement”)
Omar Serushago v. The Prosecutor, Case No. ICTR-98-39-A, Reasons for Judgement (AC),
6 April 2000 (“Serushago Appeal Judgement”)
Simba
The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Judgement and Sentence (TC),
13 December 2005 (“Simba Trial Judgement”)
The Prosecutor v. Aloys Simba, Case No. ICTR-01-76-T, Decision on the Admissibility of
Evidence of Witness KDD (TC), 1 November 2004
Aloys Simba v. The Prosecutor, Case No. ICTR-01-76-A, Judgement (AC), 27 November
2007 (“Simba Appeal Judgement”)
Zigiranyirazo
Protais Zigiranyirazo v. The Prosecutor, Case No. ICTR-2001-73-AR73, Decision on
Interlocutory Appeal (AC), 30 October 2006 (“Zigiranyirazo Decision”)
1.2 ICTY
Blagojević and Jokić
Prosecutor v. Vidoje Blagojević and Dragan Jokić, Case No. IT-02-60-A, Judgement (AC),
9 May 2007 (“Blagojević and Jokić Appeal Judgement”)
Blaškić
Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-A, Judgement (AC), 29 July 2004
(“Blaškić Appeal Judgement”)
Brđanin
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-T, Judgement (TC), 1 September 2004
(“Brđanin Trial Judgement”)
Prosecutor v. Radoslav Brđanin, Case No. IT-99-36-A, Judgement (AC), 3 April 2007
(“Brđanin Appeal Judgement”)
Judgement and Sentence
599
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Delalić et al.
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Judgement (TC), 16 November
1998 (“Delalić et al. Trial Judgement”)
Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-A, Judgement (AC), 20 February 2001
(“Delalić et al. Appeal Judgement”)
Delić
Prosecutor v. Rasim Delić, Case No. IT-04-83-T, Judgement (TC), 15 September 2008
(“Delić Trial Judgement”)
Galić
Prosecutor v. Stanislav Galić, Case No. IT-98-29-A, Judgement (AC), 30 November 2006
(“Galić Appeal Judgement”)
Hadžihasanović and Kubura
Prosecutor v. Enver Hadžihasanović and Amir Kubura, Case No. IT-01-47-A, Judgement
(AC), 22 April 2008 (“Hadžihasanović and Kubura Appeal Judgement”)
Halilović
Prosecutor v. Sefer Halilović, Case No. IT-01-48-A, Judgement (AC), 16 October 2007
(“Halilović Appeal Judgement”)
Jelisić
Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Judgement (AC), 5 July 2001 (“Jelisić
Appeal Judgement”)
Kordić and Čerkez
The Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC),
17 December 2004 (“Kordić and Čerkez Appeal Judgement”)
Krnojelac
Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Judgement (AC), 17 September
2003 (“Krnojelac Appeal Judgement”)
Krstić
The Prosecutor v. Radoslav Krstić, Case No. IT-98-33-A, Judgement (AC), 19 April 2004
(“Krstić Appeal Judgement”)
Judgement and Sentence
600
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Kunarac et al.
Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23-T and IT-96-23/1-T, Judgement
(TC), 22 February 2001 (“Kunarac et al. Trial Judgement”)
Prosecutor v. Dragoljub Kunarac et al., Case No. IT-96-23-A and IT-96-23/1-A, Judgement
(AC), 12 June 2002 (“Kunarac et al. Appeal Judgement”)
Kupreškić et al.
Prosecutor v. Kupreškić et al., Case No. IT-95-16-A, Judgement (AC), 23 October 2001
(“Kupreškić et al. Appeal Judgement”)
Kvočka et al.
Prosecutor v. Miroslav Kvočka et al., Case No. IT-98-30/1-A, Judgement (AC), 28 February
2005 (“Kvočka et al. Appeal Judgement”)
Limaj et al.
Prosecutor v. Fatmir Limaj et al., Case No. IT-03-66-T, Judgement (TC), 30 November 2005
(“Limaj et al. Trial Judgement”)
Martić
Prosecutor v. Milan Martić, Case No. IT-95-11-A, Judgement (AC), 8 October 2008
(“Martić Appeal Judgement”)
Naletilić and Martinović
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-A, Judgement
(AC), 3 May 2006 (“Naletilić and Martinović Appeal Judgement”)
Orić
Prosecutor v. Naser Orić, Case No. IT-03-68-A, Judgement (AC), 3 July 2008 (“Orić Appeal
Judgement”)
Simić
Prosecutor v. Blagoje Simić, Case No. IT-95-9-A, Judgement (AC), 28 November 2006
(“Simić Appeal Judgement”)
Stakić
Prosecutor v. Milomir Stakić, Case No. IT-97-24-A, Judgement (AC), 22 March 2006
(“Stakić Trial Judgement”)
Stanišić and Simatović
Prosecutor v. Jovica Stanišić and Franko Simatović, Case No. IT-03-69-AR73.2, Decision on
Defence Appeal of the Decision on Future Course of Proceedings (AC), 16 May 2008
Judgement and Sentence
601
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Strugar
Prosecutor v. Pavle Strugar, Case No. IT-01-42-T, Judgement (TC), 31 January 2005
(“Strugar Trial Judgement”)
Tadić
Prosecutor v. Duško Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999 (“Tadić
Appeal Judgement”)
Vasiljević
Prosecutor v. Mitar Vasiljević, Case No. IT-98-32-A, Judgement (AC), 25 February 2004
(“Vasiljević Appeal Judgement”)
2.
DEFINED TERMS AND ABBREVIATIONS
AMASASU
Alliance des Militaires Agacés par les Séculaires Acts Sournois des Unaristes
Bagosora Closing Brief
The Prosecutor v. Théoneste Bagosora, Case No. ICTR-98-41-T, Théoneste Bagosora’s Final
Trial Brief, 21 May 20072568
Bagosora Indictment
The Prosecutor v. Théoneste Bagosora, Case No. ICTR-96-7-I, Amended Indictment,
12 August 1999.
CDR
Coalition pour la Défense de la République
CND
Conseil National pour le Développement
Commune Rouge
A place in Gisenyi town were people were taken to be killed
2568
The Chamber also consulted the original, which was filed in French: The Prosecutor v. Théoneste Bagosora
et al., Case No. ICTR-98-41-T, Mémoire Final de la Défense de Théoneste Bagosora, 25 May 2007.
Judgement and Sentence
602
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
DMZ
Demilitarised Zone
EGENA
École des Gendarmerie Nationale
ESM
École Superieure Militaire
ESO
École des Sous-Officiers
ETO
École Technique Officielle
fn.
Footnote
IAMSEA
L’Institut Africain et Mauricien de Statistiques et d’Economie
ICTR or Tribunal
International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and
Other Serious Violations of International Humanitarian Law Committed in the Territory of
Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States, between 1 January 1994 and
31 December 1994
ICTY
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since
1991
Kabiligi and Ntabakuze Indictment
The Prosecutor v. Gratien Kabiligi and Aloys Ntabakuze, Case Nos. ICTR-97-34-I and
ICTR-97-30-I, Amended Indictment, 13 August 1999.
Judgement and Sentence
603
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Kabiligi Closing Brief
The Prosecutor v. Gratien Kabiligi, Case No. ICTR-98-41-T, Gratien Kabiligi’s Final Trial
Brief, 23 April 20072569
KIBAT
Kigali Battalion
KWSA
Kigali Weapon Secure Area
MDR
Mouvement Démocratique Républicain
MINADEF
Ministry of Defence
MRND
Mouvement Révolutionnaire National pour la Démocratie et le Développement
Nsengiyumva Closing Brief
The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-98-41-T, Anatole Nsengiyumva’s
Unredacted Final Trial Brief, 23 April 20072570
Nsengiyumva Indictment
The Prosecutor v. Anatole Nsengiyumva, Case No. ICTR-96-12-I, Amended Indictment,
12 August 1999.
Ntabakuze Closing Brief
The Prosecutor v. Aloys Ntabakuze, Case No. ICTR-98-41-T, Aloys Ntabakuze’s Final Trial
Brief, 23 April 20072571
2569
The Kabiligi Defence filed a corrigendum and an addendum to its Closing Brief. The Prosecutor v. Gratien
Kabiligi, Case No. ICTR-98-41-T, Corrigendum to the Closing Brief of Gratien Kabiligi, 16 May 2007; The
Prosecutor v. Gratien Kabiligi, Case No. ICTR-98-41-T, Addendum no. 2 to the Closing Brief of Gratien
Kabiligi, 14 June 2007.
2570
The Nsengiyumva Defence filed a corrigendum to its Closing Brief. The Prosecutor v. Anatole
Nsengiyumva, Case No. ICTR-98-41-T, Corrigendum to the Unredacted Closing Brief of Anatole Nsengiyumva,
25 May 2007
2571
The Ntabakuze Defence filed an Amended Final Trial Brief, which is a public and redacted version, as well
as a Corrigendum and Addendum. The Prosecutor v. Aloys Ntabakuze, Case No. ICTR-98-41-T, Aloys
Ntabakuze’s Amended Final Trial Brief, 23 May 2007; The Prosecutor v. Aloys Ntabakuze, Case No. ICTR-9841-T, Corrigendum and Addendum to the Closing Brief of Aloys Ntabakuze, 24 May 2007.
Judgement and Sentence
604
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
OAU
Organisation of African Unity
p. (pp.)
page (pages)
para. (paras.)
paragraph (paragraphs)
PDC
Parti Démocrate Chrétien
PL
Parti Libéral
Prosecution Pre-Trial Brief (21 January 2002)
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, Prosecutor’s Pre-Trial
Brief in accordance with Rule 73 bis of the Rules of Procedure and Evidence, 21 January
2002
Prosecution Pre-Trial Brief (7 June 2002)
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-I, The Prosecutor’s PreTrial Brief Revision in compliance with the Decision on Prosecutor’s Request for an
Extension of the Time Limit in the Order of 23 May 2002, and with the Decision on the
Defence Motion Challenging the Pre-Trial Brief, 23 May 2002
PSD
Parti Social Démocrate
RP (RPP)
Registry Page(s) (reference to page number in the case file maintained by the Registry)
RPF
Rwandan (also Rwandese) Patriotic Front
RTLM
Radio Télévision Libre des Mille Collines
Rules
Rules of Procedure and Evidence of the International Criminal Tribunal for Rwanda
Judgement and Sentence
605
18 December 2008
The Prosecutor v. Théoneste Bagosora et al., Case No. ICTR-98-41-T
Statute
Statute of the International Criminal Tribunal for Rwanda, established by Security Council
Resolution 955
T.
Transcript
UNAMIR
United Nations Assistance Mission for Rwanda
UNAR
Union Nationale Rwandaise
Judgement and Sentence
606
18 December 2008
