Citation
International Criminal Tribunal for Rwanda
Tribunal Pénal International pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER III
Original: English
Before Judges:
Lloyd G. Williams, QC, Presiding
Yakov Ostrovsky
Pavel Dolenc
Registrar:
Adama Dieng
Judgement of:
25 February 2004
THE PROSECUTOR
v.
ANDRÉ NTAGERURA
EMMANUEL BAGAMBIKI
SAMUEL IMANISHIMWE
Case No. ICTR-99-46-T
____________________________________________________________________
JUDGEMENT AND SENTENCE
_____________________________________________________________________
Counsel for the Prosecution:
Richard Karegyesa
Holo Makwaia
Andra Mobberley
Counsel for André Ntagerura:
Benoït Henry
Hamuli Rety
Counsel for Emmanuel Bagambiki:
Vincent Lurquin
Seydou Doumbia
Counsel for Samuel Imanishimwe:
Marie Louise Mbida
Jean-Pierre Fofé
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
i
INDEX
I.
Introduction............................................................................................................ 1
A.
The Tribunal and its Jurisdiction ....................................................................... 1
B.
Procedural Background ...................................................................................... 1
1.
André Ntagerura............................................................................................. 1
2.
Emmanuel Bagambiki and Samuel Imanishimwe ......................................... 3
3.
The Trial against Ntagerura, Bagambiki, and Imanishimwe ......................... 4
C.
Evidentiary Matters............................................................................................ 5
D.
Witness Protection Issues .................................................................................. 5
E.
Preliminary Matters Relating to the Indictments ............................................... 5
II.
1.
Applicable Principles ..................................................................................... 6
2.
Ntagerura Indictment ..................................................................................... 9
3.
Bagambiki/Imanishimwe Indictment ........................................................... 13
4.
Conclusion ................................................................................................... 18
Factual Findings ................................................................................................... 21
A.
Ntagerura Indictment ....................................................................................... 21
1.
General Allegations ...................................................................................... 21
2.
Paragraphs 9.1, 9.2, and 9.3 of the Ntagerura Indictment ........................... 23
a.
Kamarampaka Stadium, October 1992 .................................................... 24
(i)
Allegations ........................................................................................... 24
(ii)
Findings............................................................................................ 24
b.
Kamarampaka Stadium, 1993 .................................................................. 25
(i)
Allegations ........................................................................................... 25
(ii)
Findings............................................................................................ 25
c.
Bushenge Market, 7 February 1993 ......................................................... 25
(i)
Allegations ........................................................................................... 25
(ii)
Findings............................................................................................ 27
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
d.
ii
Hotel Ituze, June 1993 ............................................................................. 27
(i)
Allegations ........................................................................................... 27
(ii)
Findings............................................................................................ 28
e.
Gatare and Cyangugu Prefecture Office, October 1993 .......................... 28
(i)
Allegations ........................................................................................... 28
(ii)
Findings............................................................................................ 30
f.
Bushenge, November 1993 ...................................................................... 30
(i)
Allegations ........................................................................................... 30
(ii)
Findings............................................................................................ 31
g.
Bugarama, 28 January 1994..................................................................... 31
(i)
Allegations ........................................................................................... 31
(ii)
Findings............................................................................................ 34
h.
Hotel Ituze, 18 March 1994 ..................................................................... 35
(i)
Allegations ........................................................................................... 35
(ii)
Findings............................................................................................ 35
i.
Kanyamuhanda’s House, 10 April 1994 .................................................. 36
(i)
Allegations ........................................................................................... 36
(ii)
Findings............................................................................................ 37
j.
Cyangugu, 11 April 1994......................................................................... 37
(i)
Allegations ........................................................................................... 37
(ii)
Findings............................................................................................ 37
k. Findings in Respect of Paragraphs 9.1, 9.2, and 9.3 of the Ntagerura
Indictment ........................................................................................................ 38
3.
B.
Paragraphs 14.1, 14.3, 17, 18, and 19 of the Ntagerura Indictment ............ 38
a.
Allegations ............................................................................................... 39
b.
Findings.................................................................................................... 45
Bagambiki/Imanishimwe Indictment ............................................................... 48
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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1.
General Allegations ...................................................................................... 48
2.
Paragraph 3.16 of the Bagambiki/Imanishiwme Indictment ....................... 52
a.
Allegations ............................................................................................... 53
b.
Findings.................................................................................................... 55
3. Paragraphs 3.19, 3.20, 3.21, 3.22, and 3.23 of the Bagambiki/Imanishimwe
Indictment ............................................................................................................ 56
a.
Allegations ............................................................................................... 57
b.
Findings.................................................................................................... 84
c.
Conclusion ............................................................................................... 90
4.
(i)
Paragraph 3.19 ..................................................................................... 90
(ii)
Paragraph 3.20 ................................................................................. 90
(iii)
Paragraph 3.21 ................................................................................. 91
(iv)
Paragraph 3.22 ................................................................................. 91
(v)
Paragraph 3.23 ................................................................................. 91
Paragraphs 3.24 and 3.25 of the Bagambiki/Imanishimwe Indictment ....... 92
a.
Torture and Murder of Civilians and Soldiers at Cyangugu Camp ......... 92
(i)
Allegations ........................................................................................... 92
(ii)
Findings.......................................................................................... 104
b.
Other Events........................................................................................... 107
c.
Findings on Paragraphs 3.24 and 3.25 ................................................... 109
5. Paragraphs 3.17, 3.18, 3.26, 3.27, 3.28, 3.30, and 3.31 of the
Bagambiki/Imanishimwe Indictment ................................................................. 110
a.
Gashirabwoba......................................................................................... 111
(i)
Allegations ......................................................................................... 111
(ii)
Findings.......................................................................................... 117
b.
Shangi Parish.......................................................................................... 119
(i)
Allegations ......................................................................................... 119
(ii)
Findings.......................................................................................... 129
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c.
Mibilizi Parish........................................................................................ 131
(i)
Allegations ......................................................................................... 131
(ii)
Findings.......................................................................................... 144
d.
Nyamasheke Parish................................................................................ 147
(i)
Allegations ......................................................................................... 147
(ii)
Findings.......................................................................................... 157
e.
Kadasomwa ............................................................................................ 159
(i)
Allegations ......................................................................................... 159
(ii)
Findings.......................................................................................... 160
f.
Nyarushishi Camp.................................................................................. 161
(i)
Allegations ......................................................................................... 161
(ii)
Findings.......................................................................................... 164
g.
III.
iv
Conclusion ............................................................................................. 164
(i)
Findings on Paragraphs 3.17 and 3.18 ............................................... 164
(ii)
Findings on Paragraph 3.26 ........................................................... 165
(iii)
Findings on Paragraph 3.27 ........................................................... 165
(iv)
Findings on Paragraph 3.28 ........................................................... 165
(v)
Findings on Paragraphs 3.30 and 3.31 ........................................... 166
Legal Findings ................................................................................................ 167
A.
Criminal Responsibility ................................................................................. 167
1.
Superior Responsibility.............................................................................. 167
a.
b.
2.
Bagambiki.............................................................................................. 168
(i)
Gendarmes ......................................................................................... 169
(ii)
Soldiers........................................................................................... 170
(iii)
Kagano Commune Officials ........................................................... 171
Imanishimwe .......................................................................................... 173
Duty to Ensure Protection.......................................................................... 176
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
B.
v
Genocide ........................................................................................................ 177
1.
Ntagerura Indictment ................................................................................. 177
2.
Bagambiki/Imanishimwe Indictment ......................................................... 178
a.
Bagambiki.............................................................................................. 178
(i) Finding: Counts 1 and 2 of the Bagambiki/Imanishimwe Indictment –
Killing and Causing Serious Bodily and Mental Harm ............................. 180
b.
Imanishimwe .......................................................................................... 181
(i) Finding: Counts 7 and 8 of the Bagambiki/Imanishimwe Indictment –
Killing and Causing Serious Bodily and Mental Harm ............................. 183
C.
Crimes Against Humanity.............................................................................. 185
1.
Ntagerura Indictment ................................................................................. 186
2.
Bagambiki/Imanishimwe Indictment ......................................................... 187
a.
General Elements ................................................................................... 187
b.
Bagambiki.............................................................................................. 188
(i) Finding: Count 3 of the Bagambiki/Imanishimwe Indictment Murder........................................................................................................ 190
(ii)
Finding: Count 4 of the Bagambiki/Imanishimwe Indictment Extermination............................................................................................. 190
(iii)
Finding: Count 5 of the Bagambiki/Imanishimwe Indictment Imprisonment ............................................................................................. 190
c.
Imanishimwe .......................................................................................... 191
(i) Finding: Count 9 of the Bagambiki/Imanishimwe Indictment Murder........................................................................................................ 193
(ii)
Finding: Count 10 of the Bagambiki/Imanishimwe Indictment Extermination............................................................................................. 194
(iii)
Finding: Count 11 of the Bagambiki/Imanishimwe Indictment Imprisonment ............................................................................................. 195
(iv)
Finding: Count 12 of the Bagambiki/Imanishimwe Indictment Torture196
D. Article 3 Common to the Geneva Conventions and Additional Protocol II
Thereto ................................................................................................................... 198
1.
Ntagerura Indictment ................................................................................. 199
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2.
vi
Bagambiki/Imanishimwe Indictment ......................................................... 199
a.
Bagambiki.............................................................................................. 199
(i)
b.
Finding: Count 6 of the Bagambiki/Imanishimwe Indictment .......... 201
Imanishimwe .......................................................................................... 202
(i)
Finding: Count 13 of the Bagambiki/Imanishimwe Indictment ........ 204
IV.
The Verdict .................................................................................................... 208
V.
Sentencing.......................................................................................................... 210
A.
Sentencing Principles and Practices............................................................... 210
B.
Aggravating Factors ....................................................................................... 212
C.
Mitigating Factors.......................................................................................... 212
D.
Conclusion ..................................................................................................... 213
1.
Genocide and Extermination (Counts 7 and 10) ........................................ 213
2. Murder, Imprisonment, and Torture as Crimes Against Humanity (Counts 9,
11, and 12) and Murder Torture and Cruel Treatment as Serious Violations of
Common Article 3and Additional Protocol II (Count 13) ................................. 213
3.
VI.
Conclusion ................................................................................................. 214
Consequential Orders ..................................................................................... 215
Dissenting Opinion of Judge Williams
Separate Opinion of Judge Ostrovsky
Separate and Dissenting Opinion of Judge Dolenc
Annex I.A: Ntagerura Indictment
Annex I.B: Bagambiki/Imanishimwe Indictment
Annex II: List of Cited Judgements and Sentences
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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I. INTRODUCTION
A. The Tribunal and its Jurisdiction
1. This Judgement in the case of The Prosecutor v. André Ntagerura, Emmanuel
Bagambiki, and Samuel Imanishimwe is rendered by Trial Chamber III of the
International Criminal Tribunal for Rwanda (“Tribunal”), composed of Judge Lloyd
G. Williams, QC, presiding, Judge Yakov Ostrovsky, and Judge Pavel Dolenc.
2. The Tribunal was established by United Nations Security Council Resolution 955
of 8 November 1994.1 The Security Council acted under Chapter VII of the United
Nations Charter, after having considered official United Nations reports indicating
that genocide and widespread, systematic, and flagrant violations of international
humanitarian law had been committed in Rwanda. 2 The Security Council determined
that this situation constituted a threat to international peace and security and expressed
the conviction that the prosecution of persons responsible for serious violations of
international humanitarian law would contribute to the process of national
reconciliation and to the restoration and ma intenance of peace in Rwanda and in the
region.
3. The Tribunal is governed by its Statute (“Statute”), annexed to Security Council
Resolution 955, and by its Rules of Procedure and Evidence (“Rules”). 3
4. Pursuant to the Statute, the Tribunal has the authority to prosecute persons
responsible for serious violations of international humanitarian law committed in the
territory of Rwanda and Rwandan citizens responsible for such violations committed
in the territory of neighbouring States. Under Article 1 of the Statute, ratione temporis
jurisdiction is limited to acts committed between 1 January 1994 and 31 December
1994. The Tribunal has ratione materiae jurisdiction over genocide, crimes against
humanity, and serious violations of Article 3 common to the Geneva Conventions and
of Additional Protocol II thereto, as provided in Articles 2, 3, and 4 of the Statute.
B. Procedural Background
1. André Ntagerura
5. André Ntagerura was born on 2 January 1950 in Cyangugu prefecture, Rwanda.4
From March 1981 through July 1994 Ntagerura served as a minister in the Rwandan
1
UN Document S/RES/955 of 8 November 1994.
Preliminary Report of the Commission of Experts established pursuant to Security Council Resolution
935(1994), Final Report of the Commission of Experts established pursuant to Security Council
Resolution 935 (1994) (Document S/1994/1157)(Annexes I and II).
3
The Rules were adopted on 5 July 1995 and were successively amended on 12 January 1996, 15 May
1996, 4 July 1996, 5 June 1997, 8 June 1998, 4 June 1999, 1 July 1999, 21 February 2000, 26 June
2000, 31 May 2001, 5 and 6 July 2002, and 26 and 27 May 2003.
4
T. 20 February 1997 p. 5; T. 17 July 2002 pp. 62, 132.
2
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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government, his last appointment being Minister of Transport and Communications in
the interim government. 5
6. Ntagerura was arrested in Cameroon on 27 March 1996 pursuant to an
international arrest warrant issued by the authorities of Rwanda.
7. On 17 May 1996, the Tribunal issued an Order of Provisional Detention and of
Transfer, requesting the authorities of Cameroon to detain Ntagerura and to transfer
him to the Tribunal, pursuant to Rule 40bis. 6 On 18 June 1996 and 15 July 1996, the
Tribunal ordered the continued detention of Ntagerura pursuant to Rule 40bis(D). 7
8. The Prosecutor of the Tribunal submitted an indictment against Ntagerura on 9
August 1996. On 10 August 1996, this indictment was confirmed, and the Tribunal
issued a Warrant of Arrest against Ntagerura. 8
9. Ntagerura was transferred to the Tribunal on 23 January 1997. During his initial
appearance before the Tribunal on 20 February 1997, he pleaded not guilty to the
charges against him. 9
10. Upon Ntagerura’s motion, on 28 November 1997, the Tribunal ordered the
Prosecutor to amend certain parts of the indictment. 10 The Prosecutor filed the
amended indictment on 29 January 1998, and the Tribunal confirmed that the
amendments complied with the order of 28 November 1997. 11 The amended
indictment contains the final version of the Prosecutor’s charges against Ntagerura
(“Ntagerura Indictment”). 12 The text of the Ntagerura Indictment is set out in Annex
I.A to this Judgement.
11. On 11 October 1999, the Tribunal granted the Prosecutor’s motion for joinder of
Ntagerura with Emmanuel Bagambiki, Samuel Imanishimwe, and another accused. 13
5
T. 17 July 2002 pp. 67-68.
Prosecutor v. Ntagerura, Case No. ICTR-96-10-DP, Order of Provisional Detention and of Transfer
(TC), 17 May 1996.
7
Prosecutor v. Ntagerura, Case No. ICTR-96-10-DP, Decision: Continued Detention on Remand of
André Ntagerura (TC), 18 June 1996; Procureur contre Ntagerura, Affaire No. ICTR-96-10-DP,
Décision: Prolongation de la Détention Provisoire de André Ntagerura (TC), 15 juillet 1996.
8
Prosecutor v. Ntagerura, Case No. ICTR-96-10-I, Decision: Confirmation of the Indictment (TC) 10
August 1996; Prosecutor v. Ntagerura, Case No. ICTR-96-10-DP, Warrant of Arrest (TC), 10 August
1996.
9
T. 20 February 1997 pp. 19-24.
10
See Prosecutor v. Ntagerura, Case No. ICTR-96-10-I, Decision on the Preliminary Motion Filed by
the Defence Based on Defects in the Form of the Indictment (TC), 28 November 1997. This Decision
was corrected by Decision on the Prosecution Motion for Interpretation of a Decision by the Trial
Chamber (TC), 30 June 1998.
11
See Prosecutor v. Ntagerura, Case No. ICTR-96-10A-I, Decision on the Defence Motion for a
Ruling that the Amended Indictment Filed on 29 January 1998 Does Not Comply with the Trial
Chamber’s Decision of 28 November 1997 (TC), 19 May 1999.
12
On 2 December 1999, the Prosecutor filed a request for leave to file an amended indictment.
However, before the matter was considered, on 14 February 2000, the Prosecutor filed a notice to
withdraw the request for leave to amend the indictment.
13
Prosecutor v. Ntagerura, Case No. ICTR-96-10-I, Prosecutor v. Bagambiki, Imanishimwe, and
Munyakazi, Case No. ICTR-97-36-I, Decision on the Prosecutor’s Motion for Joinder (TC), 11 October
1999. Appeal of this decision was rejected. See Bagambiki v. Prosecutor, Case No. ICTR-96-10-A and
6
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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2. Emmanuel Bagambiki and Samuel Imanishimwe
12. Emmanuel Bagambiki was born on 8 March 1948 in Cyangugu prefecture,
Rwanda. 14 From 4 July 1992 to 17 July 1994, Bagambiki served as the prefect of
Cyangugu. 15
13. Samuel Imanishimwe was born on 25 October 1961 in Gisenyi prefecture,
Rwanda. 16 Imanishimwe, a lieutenant in the Rwandan armed forces, served as the
acting commander of the Cyangugu military camp, which is also referred to as the
Karambo military camp, from October 1993 until he left Rwanda in July 1994. 17
14. On 22 July 1997, the Tribunal issued an Order for Transfer and Provisional
Detention requesting the authorities of Kenya to arrest Imanishimwe and to transfer
him to the Tribunal, pursuant to Rule 40bis. 18 On 11 August 1997, Kenyan authorities
arrested Imanishimwe and transferred him to the Tribunal. 19 On 8 September 1997,
the Tribunal ordered Imanishimwe’s continued detention. 20
15. On 9 October 1997, the Prosecutor submitted an indictment against Bagambiki,
Imanishimwe, and another accused. On 10 October 1997, this indictment was
confirmed, and the Tribunal issued a Warrant of Arrest against Bagambiki. 21 On 24
September 1998, upon a motion by the Defence, the Tribunal ordered the Prosecution
to clarify paragraph 3.14 of the indictment. 22 On 30 September 1998, the Tribunal
denied a Defence request to hold a separate trial of Imanishimwe and again ordered
the Prosecution to clarify paragraph 3.14 of the indictment. 23 The Prosecutor filed the
amended paragraph 3.14 on 10 August 1999. The confirmed indictment, together with
the amended paragraph 3.14, contains the final version of the charges against
Bagambiki and Imanishimwe (“Bagambiki/Imanishimwe Indictment”). The text of the
Bagambiki/Imanishimwe Indictment is set out in Annex I.B to this Judgement.
16. Imanishimwe made his initial appearance before the Tribunal on 27 November
1997, pleading not guilty to the charges against him. 24
ICTR-97-36-A, Decision (AC), 13 April 2000; Bagambiki v. Prosecutor, Case No. ICTR-96-10-A and
ICTR-97-36-A, Decision (AC), 7 September 2000. Yussuf Munyakazi, the other accused, remains at
large.
14
T. 26 March 2003 p. 61.
15
T. 26 March 2003 p. 62; T. 27 March 2003 p. 3.
16
T. 20 January 2003 pp. 5-6.
17
T. 20 January 2003 pp. 11, 42; T. 21 January 2003 p. 49.
18
Prosecutor v. Imanishimwe, Case No. ICTR-97-36-DP, Order for Transfer and Provisional Detention
(TC), 22 July 1997.
19
T. 8 September 1997 p. 22.
20
T. 8 September 1997 p. 35.
21
Prosecutor v. Bagambiki, Imanishimwe, and Munyakazi, Case No. ICTR-97-36-I, Decision to
Confirm the Indictment (TC), 10 October 1997; Prosecutor v. Bagambiki, Imanishimwe, and
Munyakazi, Case No. ICTR-97-36-I, Warrant of Arrest and Order for Surrender (TC), 10 October
1997.
22
Prosecutor v. Bagambiki, Imanishimwe, and Munyakazi, Case No. ICTR-97-36-I, Decision on the
Defence Motion on Defects in the Form of the Indictment (TC), 24 September 1998.
23
Prosecutor v. Bagambiki, Imanishimwe, and Munyakazi, Case No. ICTR-97-36-I, Decision on the
Defence Motion for the Separation of Crimes and Trials (TC), 30 September 1998.
24
T. 27 November 1997 pp. 44-51.
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17. Bagambiki was arrested in Togo on 5 June 1998 and was transferred to the
Tribunal on 10 July 1998. At a hearing held on 5 November 1998 for Bagambiki’s
initial appearance, Bagambiki refused to enter a plea on the ground that he was not
represented by counsel of his choice. 25 The initial appearance was subsequently held
on 19 April 1999 at which time Bagambiki pleaded not guilty to the charges against
him. 26
18. As noted above, the Tribunal granted the Prosecutor’s motion for joinder of
Bagambiki and Imanishimwe with Ntagerura on 11 October 1999. 27 On 26 May 2000,
the Trial Chamber granted the Prosecutor’s request to sever Yussuf Munyakazi from
the Bagambiki/Imanishimwe Indictment. 28
3. The Trial against Ntagerura, Bagambiki, and Imanishimwe
19. The trial against Ntagerura, Bagambiki, and Imanishimwe started on 18
September 2000 with the opening of the Prosecution case. During seventy-three days
of trial proceedings the Prosecution called forty-one witnesses.
20. Upon a motion by the Defence, on 6 March 2002, the Chamber acquitted
Imanishimwe of the charge of conspiracy to commit genocide pursuant to Rule
98bis. 29
21. Presentation of Ntagerura’s defence commenced on 6 March 2002 and spanned
thirty-seven trial days during which the Chamber heard thirty-three witnesses,
including the accused Ntagerura. Additionally, the testimony of one witness, K1H,
was taken by deposition.
22. Presentation of Imanishimwe’s defence commenced on 2 October 2002. Over the
course of twenty-six trial days, Imanishimwe’s defence presented twenty-three
witnesses, including the accused Imanishimwe.
23. Bagambiki’s defence commenced on 3 February 2003, and, over the course of
twenty-five trial days, his defence presented twenty-six witnesses, including the
accused Bagambiki.
24. The parties presented their closing arguments from 11 through 15 August 2003.
On 15 August 2003, the Presiding Judge declared the trial hearing closed pursuant to
Rule 87(A).
25
T. 5 November 1998 pp. 7, 8.
T. 19 April 1999 pp. 57-60.
27
Prosecutor v. Ntagerura, Case No. ICTR-96-10-I, Prosecutor v. Bagambiki, Imanishimwe, and
Munyakazi, Case No. ICTR-97-36-I, Decision on the Prosecutor’s Motion for Joinder (TC), 11 October
1999. Appeal of this decision was rejected. See Bagambiki v. Prosecutor, Case No. ICTR-96-10-A and
ICTR-97-36-A, Decision (AC), 13 April 2000; Bagambiki v. Prosecutor, Case No. ICTR-96-10-A and
ICTR-97-36-A, Decision (AC), 7 September 2000.
28
T. 26 May 2000 p. 12.
29
T. 6 March 2002 pp. 54, 68.
26
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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C. Evidentiary Matters
25. Rule 89 sets out the general provisions of the Tribunal’s rules of evidence. In
accordance with Rule 89, a Chamber may admit any relevant evidence which it deems
to have probative value. Furthermore, in circumstances not otherwise provided for
under the Tribunal’s rules of evidence, the Chamber is bound to apply rules of
evidence which best favour a fair determination of the matter before it and which are
consonant with the spirit of the Statute and the general principles of law. The
Chamber is not bound by national rules of evidence.
26. The Chamber observes that in this case prior written statements of witnesses were
not systematically tendered into evidence in their entirety. When the parties used such
statements during trial, they read the relevant portions of the statements into the
record. When inconsistencies were raised between the content of a prior statement and
the testimony during trial, the Chamber’s point of departure was the account given by
a witness in his in-court testimony. The Chamber notes that differences between prior
statements and testimony in court may be due to various factors, such as the lapse of
time, the language used, the questions put to the witness, the accuracy of
interpretation and transcription, and the impact of trauma on the witness. However,
when the inconsistencies cannot be explained to the satisfaction of the Chamber, the
probative value of the testimony may be questioned.
D. Witness Protection Issues
27. Part of the evidence adduced by the parties was given in closed sessions due to
witness protection concerns. In analysing evidence received during closed sessions in
this Judgement, the Chamber has been mindful of the need to avo id unveiling
identifying particulars of protected witnesses so as to prevent disclosure of their
identities to the public. At the same time, the Chamber has wished to provide in the
Judgement as much detail as possible to make it easy to follow its reasoning. In view
of these concerns, when referring to evidence received in closed sessions in this
Judgement, the Chamber has used language designed not to reveal protected
information yet specific enough to convey the basis for its reasoning.
E. Preliminary Matters Relating to the Indictments
28. Ntagerura, Bagambiki, and Imanishimwe have challenged their respective
indictments on grounds of vagueness, asserting that the indictments did not provide
adequate notice of the charges. 30 The Chamber will review the indictments in light of
applicable pleading principles because of the paramount importance of fair notice to
the integrity of the proceedings and because of the Chamber’s duty to ensure the
fundamental fairness of the trial. 31
30
See Ntagerura Closing Brief, pp. 78-178 (in passim); Bagambiki Closing Brief, pp. 171-181, 197204, 223-227, 235-239, 288-294; Imanishimwe Closing Brief, pp. 27-51.
31
See Semanza, Judgement (TC), para. 42.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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1. Applicable Principles
29. In accordance wit h Article 20(4)(a) of the Statute, an accused has a fundamental
right “to be informed promptly and in detail in a language which he or she
understands of the nature and cause of the charge against him or her.”32 This provision
is based on Article 14(3)(a) of the International Covenant on Civil and Political Rights
and is substantially similar to the guarantee in Article 6(3)(a) of the European
Convention on Human Rights. While neither this Tribunal nor the International
Criminal Tribunal for the Former Yugoslavia has previously defined or made a
distinction between the nature and the cause of the charges, the Chamber understands
that the nature of the charge refers to the precise legal qualification of the offence,
and the cause of the charge refers to the facts underlying it. 33 Although Article
20(4)(a) of the Statute does not require that the nature and the cause of the charge be
communicated to the accused in any particular format, it is clear from the Statute and
the Rules that this information should be included in the indictment, which is the only
accusatory instrument provided for therein. 34
30. Accordingly, the Prosecutor has an obligation to plead all material facts
underpinning the charges against an accused in the indictment with sufficient detail so
that the accused can prepare his defence. 35 In assessing an indictment, the Chamber is
mindful that each paragraph should not be read in isolation but rather should be
considered in the context of the other paragraphs in the indictment. 36 Moreover, when
assessing an indictment at the post-trial phase, the Chamber is primarily concerned
with defects in the indictment that prejudice the rights of the accused. 37
31. The mode and extent of an accused’s participation in an alleged crime are always
material facts that must be clearly set forth in the indictment. 38 The materiality of
32
See also Article 19(2); Semanza, Judgement (TC), para. 42; Kupreskic, Judgement (AC), para. 114.
KAREN REID, A PRACTITIONER’S GUIDE TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS 95
(1998); M ANFRED NOVAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY
255 (1993).
34
Articles 17(4), 19(2), 20(4); Rule 47. See also Semanza, Judgement (TC), para. 42; Kupreskic,
Judgement (AC), para. 88; Hadzihasanovic et al, Case No. IT-01-47-PT, Decision on the Form of the
Indictment (TC), 7 December 2001, para. 8.
35
Semanza, Judgement (TC), para. 44; Krnojelac, Judgement (AC), paras. 130, 131; Kupreskic,
Judgement (AC), paras. 88, 92.
36
Rutaganda, Judgement (AC), para. 304.
37
See Semanza , Judgement (TC), para. 43; Rutaganda, Judgement (AC), para. 303 (“ Before holding
that an event charged is immaterial or that there are minor discrepancies between the indictment and
the evidence presented at trial, a Chamber must normally satisfy itself that no prejudice shall, as a
result, be caused to the accused. An example of such prejudice is the existence of inaccuracies likely to
mislead the accused as to the nature of the charges against him.”); Kupreskic, Judgement (AC), paras.
115-125 (undertaking prejudice analysis for vagueness allegation raised in post-trial stage).
38
The Chamber recognises that the Prosecutor may allege more than one form of participation for each
crime, but emphasises that it is vague for the Prosecutor to simply refer broadly to Article 6(1) without
further particularising the alleged acts of the accused that give rise to each form of participation
charged. Semanza, Judgement (TC), para. 59. See also Krnojelac, Judgement (AC), para. 138 (“Since
Article 7(1) allows for several forms of direct criminal responsibility, a failure to specify in the
indictment which form or forms of liability the Prosecution is pleading gives rise to ambiguity. The
Appeals Chamber considers that such ambiguity should be avoided and holds therefore that, where it
arises, the Prosecution must identify precisely the form or forms of liability alleged for each count as
soon as possible and, in any event, before the start of the trial.”); Celebici, Judgement (AC) para. 350.
33
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
7
other facts and the specificity with which the Prosecutor must plead these facts
depend on the form of participation alleged in the indictment and the proximity of the
accused to the underlying crime. 39
32. In cases where the Prosecutor alleges that an accused personally “committed”
criminal acts within the meaning of Article 6(1), an indictment generally must plead
with particularity the identity of the victims, the time and place of the events, and the
means by which the acts were committed. 40 The Chamber, however, does not expect
the Prosecutor to perform an impossible task and recognises that the nature or scale of
the crimes, the fallibility of witnesses’ recollections, or witness protection concerns
may prevent the Prosecution from fulfilling its legal obligations to provide prompt
and detailed notice to the accused. 41 If a precise date cannot be specified, a reasonable
range of dates should be provided. 42 If victims cannot be individually identified, then
the indictment should refer to their category or position as a group. 43 Where the
Prosecution cannot provide greater detail, then the indictment must clearly indicate
that it provides the best information available to the Prosecutor. 44
33. Where an accused is charged with a form of accomplice liability, the Prosecutor
must plead with specificity the acts by which the accused allegedly planned,
instigated, ordered, or aided and abetted in the crime. 45 Where superior responsibility
39
Kupreskic, Judgement (AC), para. 89; Prosecutor v. Galic, Case No. IT-98-29-AR72, Decision on
Application by Defence for Leave to Appeal (AC), 30 November 2002, para 15.
40
Semanza, Judgement (TC), para. 45; Kupreskic, Judgement (AC), para. 89.
41
Semanza, Judgement (TC), paras. 55, 57-58; Kupreskic, Judgement (AC), para. 89. Of course,
witness protection cannot be used as a pre-text to frustrate the proper preparation of a defence. See
Prosecutor v. Gacumbitsi, Case No. ICTR-2001-64-I, Decision on Prosecution Motion for Protective
Measures for Victims and Witnesses (TC), 20 May 2003, para. 11(“The protection of witnesses should
not . . . serve to frustrate or hinder an effective defence.”); Prosecutor v. Krnojelac, Case No. 97-25PT, Decision on the DEfence Preliminary Motion on the Form of the Indictment (TC), 24 February
1999, para. 40 (“It may be, of course, that the prosecution is simply unable to be more specific because
the witness statement or statements in its possession do not provide the information in order for it to do
so. It cannot be obliged to perform the impossible, but in some cases there will then arise the question
as to whether it is fair to the accused to permit such an imprecise charge to proceed. The inability of
the prosecution to provide proper particulars may itself demonstrate sufficient prejudice to an accused
person as to make a trial upon the relevant charge necessarily unfair. The fact that the witnesses are
unable to provide the needed information will inevitably reduce the value of their evidence. The
absence of such information effectively reduces the defence of the accused to a mere blanket denial;
he will be unable, for example, to set up any meaningful alibi, or to cross-examine the witnesses by
reference to surrounding circumstances such as would exist if the acts charged had been identified by
reference to some more precise time or other event or surrounding circumstance.”)
42
See, e.g., Prosecutor v. Brdjanin, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to
the Form of Amended Indictment (TC), 20 February 2001, para. 22.
43
See, e.g., Prosecutor v. Brdjanin, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to
the Form of Amended Indictment (TC), 20 February 2001, para. 22; Prosecutor v. Krnojelac, Case
No.97-25-PT, Decision on the Defence Preliminary Motion on the Form of the Indictment (TC), 24
February 1999, para. 40 paras. 55, 58 (“The prosecution must provide some identification of who died
(at least by reference to their category or position as a group), and it is directed to amend the indictment
accordingly”).
44
See, e.g., Prosecutor v. Brdjanin, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to
the Form of Amended Indictment (TC), 20 February 2001, para. 22; Prosecutor v. Krnojelac, ICTY
Case No. 97-25-PT. Decision on Preliminary Motion on Form of Amended Indictment, 11 February
2000 paras. 33-34, 43.
45
Prosecutor v. Brdjanin, Case No. IT-99-36-PT, Decision on Objections by Momir Talic to the Form
of Amended Indictment (TC), 20 February 2001, para. 20.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
8
is alleged, the relationship of the accused to his subordinates is most material, as are
his knowledge of the crimes and the necessary and reasonable measures that he failed
to take to prevent the crimes or to punish his subordinates. 46
34. If the Prosecutor intends to rely on the theory of joint criminal enterprise to hold
the accused criminally responsible as a principal perpetrator of the underlying crimes
rather than as an accomplice, the indictment should plead this in an unambiguous
manner and specify upon which form of joint criminal enterprise the Prosecutor will
rely. 47 In addition to alleging that the accused participated in a joint criminal
enterprise, the Prosecutor must also plead the purpose of the enterprise, the identity of
the co-participants, and the nature of the accused’s participation in the enterprise. 48
For these reasons, the Chamber will not consider the Prosecutor’s arguments, which
were advanced for the first time during the presentation of closing arguments, to hold
the accused criminally responsible based on this theory.
35. The specificity required to plead the identity of the victims, the time and place of
the events, and the means by which the acts were committed is not as high where
criminal responsibility is predicated on accomplice liability or superior
responsibility. 49 The Chamber emphasises, however, that the accused must be
informed not only of his own alleged conduct giving rise to criminal responsibility but
also of the acts and crimes of his alleged subordinates or accomplices. 50 Thus,
pleading accomplice or superior responsibility does not obviate the Prosecution’s
obligation to particularise the underlying criminal events for which it seeks to hold the
accused responsible, particularly where the accused was allegedly in close proximity
to the events. 51
36. Although no rule specifies the content of the “count”, it is evident from the
context of Rule 47 that this term refers to the legal characterisation or qualification of
the crime alleged in the concise statement of facts of the crime. 52 This legal
46
Prosecutor v. Mejakic, ICTY Case No. IT-02-65-PT, Decision on Zeljko Mejakic Preliminary
Motion on the Form of the Indictment (TC), 14 November 2003, p. 3; Prosecutor v. Deronjic, Case No.
IT-02-61-PT, Decision on Form of the Indictment (TC), 25 October 2002, para. 7.
47
Krnojelac, Judgement (AC), para. 138; Prosecutor v. Mejakic, ICTY Case No. IT-02-65-PT,
Decision on Zeljko Mejakic Preliminary Motion on the Form of the Indictment, 14 November 2003, p.
3. See also Tadic, Judgement (AC), paras. 185-226 (discussing the forms of joint criminal enterprise).
48
See, e.g., Prosecutor v. Stansic, Case No. IT-03-69-PT, Decision on Defence Preliminary Motions
(TC), 14 November 2003, p. 5; Prosecutor v. Mejakic, Case No. IT-02-65-PT, Decision on Dusko
Knezevic’s Preliminary Motion on the Form of the Indictment (TC), 4 April 2003.
49
Semanza, Judgement (TC), para. 45; Prosecutor v. Galic, Case No. IT-98-29-AR72, Decision on
Application by Defence for Leave to Appeal (AC), 30 November 2002, para 15 (“As the proximity of
the accsed person to those events becomes more distant, less precision is required in relation to those
particular details, and greater emphasis is placed upon the conduct of the accused person himself upon
which the prosecution relies to establish his responsibility as an accessory or as a superior to the
persons who personally committed the acts giving rise to the charges against him.”).
50
Prosecutor v. Strugar, Case No. IT-01-42-PT, Decision on Defence Preliminary Motion Concerning
the Form of the Indictment (TC), 28 June 2002.
51
Prosecutor v. Strugar, Case No. IT-01-42-PT, Decision on Defence Preliminary Motion Concerning
the Form of the Indictment (TC), 28 June 2002. See also Brdjanin and Talic, Case No. IT-99-36,
Decision on Objections by Momir Talic to the Form of the Amended Indictment (TC), 20 February
2001, paras. 19-20.
52
This is particularly evident in Rule 47(I) (“. . . indictment based on the acts underlying the count . .
.”) (emphasis added).
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
9
qualification must include both the crime alleged and the mode of the accused’s
alleged participation. Thus, a “count” defines the nature of the charge referred to in
Article 20(4)(a) of the Statute.
37. Accordingly, each count in the indictment should indicate the precise legal
qualification of the crime charged which should be based on the material facts alleged
in the indictment. The count must also clearly identify the mode of the accused’s
alleged participation in the crime; mere reference to Article 6(1) of the Statute, which
lists multiple forms of individual criminal responsibility, is insufficient. 53
38. The count must also indicate which paragraphs of the concise statement of the
facts of the crime support the charge. When a count charges the accused with
accomplice liability, then it must refer to the paragraphs describing the relevant
conduct of the accused and of the principal perpetrator. When a count charges
superior responsibility pursuant to Article 6(3), then it is essential for the count to
refer to the paragraphs describing the relationship between the accused and the
alleged subordinates, the basis for the alleged knowledge of the accused, and the
alleged failure to prevent the crime or to punish the subordinate. Nevertheless, in
principle, defects in legal qualification may not be fatal because the Chamber can
apply the correct material law to the factual findings regardless of the qualification
indicated by the Prosecution, provided that the concise statement of facts of the crime
adequately describes the accused’s role in the crime. 54
39. A failure to properly plead the material facts in an indictment will constitute a
material defect. 55 In order to ensure the fundamental fairness of the proceedings, the
Chamber will take this deficiency into account in making factual and legal findings. 56
2. Ntagerura Indictment
40. The Prosecution conceded that it did not submit any evidence in support of
paragraphs 12.2, 14.2, 15.1, and 15.2 of the Ntagerura Indictment. 57 The Chamber
will consequently not consider them. Additionally, the Chamber will not assess
paragraph 10 for vagueness because it considers it to be a general allegation. Mindful
of the applicable principles set forth above, the Chamber will analyse the remaining
paragraphs, from 9.1 through 19, which according to the Prosecutor support each of
the six counts in the indictment.
9.1 From 1 January to 31 July 1994, and even as early as 1991, ANDRÉ
NTAGERURA had strong political and community ties in Cyangugu préfecture,
in Rwanda. ANDRÉ NTAGERURA frequently traveled to Cyangugu
préfecture, particularly to Karengera, Gatare and other communes and conducted
MRND party meetings as well as meetings of conseillers and bourgmestres of
the préfecture.
53
Semanza, Judgement (TC), para. 59; Krnojelac, Judgement (AC), para. 138; Celebici, Judgement
(AC) para. 350.
54
Semanza, Judgement (TC), para. 59.
55
Semanza, Judgement (TC), para. 42; Kupreskic, Judgement (AC), paras. 114, 122.
56
Semanza, Judgement (TC), para. 42; Kupreskic, Judgement (AC), paras. 114, 122.
57
Prosecutor’s Closing Brief, pp. 43-44, 51, 52.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
10
9.2 Consequently, on 11 April 1994, after the death of President Habyarimana
when the plane in which he was travelling crashed, André Ntagerura conducted a
meeting in Cyangugu.
9.3 From 1 January to 31 July 1994 and even before this period,
- André NTAGERURA, Minister of Transport and Communications,
- Emmanuel BAGAMBIKI, Préfet of Cyangugu,
- Yussuf MUNYAKAZI, Interahamwe leader,
- Christophe NYANDWI, civil servant at the Ministry of Planning,
- Michel BUSUNYU, Chairman of the MRND in Karengera commune,
all prominent MRND figures in Cyangugu, held a meeting among themselves as
well as with others to organize, prepare and encourage the genocide, particularly
of the Tutsi population. 58
41. The Chamber finds that paragraphs 9.1, 9.2, and 9.3 are problematic because the
exceedingly broad and open-ended date ranges and vague identification of locations
fail to specify with any particularity the meetings in which Ntagerura allegedly
participated. Additionally, these allegations are problematic because they fail to
specify the nature of Ntagerura’s participation in the meetings. The Chamber further
notes that paragraphs 9.1 and 9.2 do not allege a criminal purpose for any of the
possible meetings. Unless these paragraphs are read together with paragraph 9.3, it is
not clear whether the allegations in paragraphs 9.1 and 9.2 provide only background
information or whether they are intended to constitute material facts for crimes
alleged in Counts 1 through 6. 59
11. From 1 January to 31 July 1994 and particularly in February, March and
April 1994, ANDRE NTAGERURA allowed and/or authorized the use of
government vehicles, specifically buses for the transport of militiamen, armed
Interahamwe militiamen and civilians, including Tutsis, as well as for the
transport of weapons and ammunition to and throughout Cyangugu préfecture,
particularly through Karengera, Bugarama, Nyakabuye and other communes as
well as in Butare, Ruhengeri and Kibuye préfectures and elsewhere.
42. The Chamber finds that paragraph 11 fails to particularise any instance when
Ntagerura allowed or authorized the use of government vehicles or any circumstance
in which the people or items named in paragraph 11 were actually transported by
government vehicles. The Chamber also notes that this broad paragraph does not
appear to allege elements of a criminal act because it lacks any details concerning
both the purpose for which the people or items were transported and Ntagerura’s
knowledge of such a purpose. The Prosecutor particularly seeks to use this paragraph
58
The Chamber notes that in paragraph 9.3, the plural term “réunions” was improperly translated from
the French version of the Ntagerura Indictment, the original language of drafting, into the singular
“meeting” in the English version of the Indictment.
59
The Chamber notes however that each paragraph uses a different formulation to specify the
meetings’ dates, venues, purposes, and participants.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
11
to support an allegation of superior responsibility in Count 6. The Chamber notes that
this paragraph, as well as the indictment as a whole, fails to adequately identify
Ntagerura’s subordinates who actually approved the use of the buses. In addition, it
fails to specify a superior-subordinate relationship between the alleged principal
perpetrators and Ntagerura, Ntagerura’s knowledge of a criminal use of the buses, and
his failure to take necessary and reasonable measures to prevent such use or to punish
the alleged subordinates. 60
12.1. From 1 January to 31 July 1994 as early as 1991, ANDRÉ NTAGERURA
encouraged and participated in the training of Interahamwe militiamen in
Karengera commune and in other communes in Cyangugu préfecture.
43. The Chamber finds that paragraph 12.1 fails to identify with any particularity even
a single incidence of Ntagerura’s encouragement or participation as a result of its
broad date range and vague reference to venue. The paragraph also fails to specify the
nature of Ntagerura’s participation in the training. Moreover, the Chamber notes that
this paragraph does not allege that the training was for a criminal purpose or that it
was related to any criminal activity.
13. From 1 January to 31 July 1994 and as early as January 1993, weapons,
ammunition and uniforms were frequently distributed in Cyangugu préfecture.
These weapons were sometimes stored in Yussuf MUNYAKAZI’s house in
Bugarama commune and elsewhere. They were later distributed to the
Interahamwe in Cyangugu préfecture.
44. The Chamber finds that paragraph 13 fails to mention any act or role of Ntagerura
in the alleged distributions.
14.1. From 1 January to 31 July 1994, ANDRÉ NTAGERURA was often seen
in the company of, and publicly expressed his support for, Yussuf
MUNYAKAZI and the Interahamwe in Cyangugu préfecture, specifically in
Bugarama commune.
14.3 From 1 January to 31 July 1994, ANDRÉ NTAGERURA travelled
throughout Cyangugu préfecture, often accompanied by Préfet Emmanuel
BAGAMBIKI and Yussuf MUNYAKAZI, to monitor the activities of the
Interahamwe and verify that the orders to kill the Tutsis and all political
opponents had been carried out.
45. The Chamber finds that paragraphs 14.1 and 14.3 fail to particularise a single
incident by date, location, or circumstance during the broad seven month date range
alleged when Ntagerura was in the company of Munyakazi or Ba gambiki, expressing
support for the Interahamwe or monitoring them and the killings in Cyangugu. Given
60
The Chamber is mindful that the Prosecutor presented evidence of only one instance within the date
range specified in the paragraph and the Tribunal’s temporal jurisdiction where an ONATRACOM bus
was allegedly used to further a crime. The Chamber notes that this event is based on the testimony of a
Prosecution Witness LAI whom the Chamter has determined lacks credibility and reliability.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
12
the proximity in which these paragraphs place Ntagerura to the killings in Cyangugu
and their alleged principal perpetrators, the vague references to expressions of public
support, monitoring, and verifying, without more, do not sufficiently describe the
nature of Ntagerura’s criminal participation.
16. From 1 January to 31 July 1994, Yussuf MUNYAKAZI was an influential
member and one of the leaders of the Interahamwe in Cyangugu préfecture. He
was one of the people in charge of implementing MRND orders. Many of the
orders came from ANDRÉ NTAGERURA.
46. The Chamber finds that paragraph 16 contains no detail about the nature of the
orders allegedly coming from Ntagerura, when these orders were issued during the
broad seven month period, or the connection of these orders to the commission of any
underlying crime.
17. The murder of civilians in Cyangugu started in the course of the month of
February 1994, and was led and perpetrated by the Interahamwe and other
groups.
18. From early April through July 1994, attacks on Tutsi civilians occurred in
Cyangugu préfecture and resulted in the death of an estimated one hundred
thousand or more people and countless injured.
19. During the period of these attacks, ANDRÉ NTAGERURA continued to
remain active in Cyangugu préfecture and acted as a supervisor. On one occasion
after April 1994, he attended a meeting chaired by the Interim President of the
Republic of Rwanda, Théodore SINDIKUBWABO, who congratulated the
community on killing the Tutsis.
47. The Chamber finds that paragraphs 17, 18, and 19 fail to particularise with any
specificity the underlying criminal events, the principal perpetrators of the killings
and attacks, and the manner in which these attacks and killings were executed.
Moreover, the allegations that Ntagerura remained active or acted as a “supervisor” do
not adequately plead the nature of Ntagerura’s participation in the attacks or killings,
nor do they particularise the nature of his superior relationship to any identifiable
subordinates, his knowledge of their activities, or his failure to take necessary and
reasonable measures to prevent the crimes and to punish the subordinate perpetrators.
This is true even when considering the vague allegations of expressing support,
monitoring, and verifying made in paragraphs 14.1 and 14.3. Moreover, the Chamber
notes that paragraph 19 fails to adequately explain the connection between the
meeting involving Sindikubwabo and Ntagerura’s alleged role as a “supervisor”.
48. The Chamber further emphasises that the formulation of the counts in the
Ntagerura Indictment is incomprehensible. 61 The phrase “as a result of the acts
61
As an illustration, Count 6 of the Ntagerura Indictment states that the accused committed complicity
in genocide under Article 2(3)(e) for which he is individually responsible pursuant to Article 6(3) “…
in relation to the events described particularly in paragraph 11…” because “…he knew or had reason to
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
13
committed ... in relation to the events described in paragraphs 9-19”, which is
contained in each count, refers to the “results” and to “the events” and not to the
criminal conduct of Ntagerura. Moreover, the counts do not clearly specify whether
Ntagerura is being charged as a principal or as an accomplice, or what particular form
of complicity is alleged.
3. Bagambiki/Imanishimwe Indictment
49. The Chamber will now consider paragraphs 3.12 through 3.31 of the
Bagambiki/Imanishimwe Indictment, which the Prosecutor asserts support the counts
in the Indictment. The Chamber will do so in light of the applicable principles set
forth above.
3.12 During the events referred to in this indictment, Préfet Emmanuel
BAGAMBIKI chaired many of the meetings of the ‘restricted security
committee’ of the préfecture of Cyangugu, the body responsible for the safety of
the civilian population of the préfecture, meetings in which Samuel
IMANISHIMWE participated, in his capacity as the Commander of the
Cyangugu Barracks, as well as the Commander of the Gendarmerie, the souspréfets and others. One of these meetings was held on or about 9 April 1994.
3.13 Furthermore, on at least two occasions, on or about 11 April 1994 and on or
about 18 April 1994, Préfet Emmanuel BAGAMBIKI chaired meetings of the
‘prefectural committee’ of Cyangugu préfecture, where problems relating to the
safety of the civilian population of the préfecture were discussed. Members of
the ‘restricted security committee’, particularly Préfet Emmanuel
BAGAMBIKI and Lieutenant Samuel IMANISHIMWE, as well as all the
bourgmestres, representatives of political parties and different churches, attended
these meetings.
50. The Chamber finds that paragraphs 3.12 and 3.13 fail to allege facts that would
constitute material elements of the crime of conspiracy, which, according to the
Prosecutor, is the only charge that these paragraphs support. The Chamber further
emphasises that paragraphs 3.12 and 3.13 fail to identify any criminal purpose for the
meetings or any connection to an underlying crime, and thus do not allege any act of
criminal participation on the part of Bagambiki or Imanishimwe. Indeed, the stated
know that his subordinates were preparing to commit or had committed acts referred to in Articles 2 – 4
of the Statute … consisting of placing Government or Parastatal company vehicles at the disposal of
the Interahamwe … and failed to take necessary and reasonable steps to prevent the said acts … of
punishing the perpetrators.” This count contains a mixture of factual allegations, recitations of statutory
provisions, and a reference to several articles and legal qualifications that are contradictory. Complicity
in genocide under Article 2(3)(e) may not be equated with superior responsibility under Article 6(3) of
the Statute. Allegations that the accused’s subordinates were preparing or committed the crimes
referred to in Articles 2 through 4 include responsibility under Article 6(3), not only for genocide, but
also for crimes against humanity and war crimes despite the fact that Counts 4 and 5 charge the accused
only under Article 6(1). Moreover, the factual allegations in Count 6 not only blur the distinction
between the concise statement of facts of the crime and its legal qualification, but also contradict
factual allegations in paragraph 11 on which this Count particularly relies. Namely, paragraph 11
specifically states that the accused himself “allowed and/or authorised the use of government vehicles”
for unlawful purposes.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
14
purpose for the meetings, discussion of problems relating to the safety of the civilian
population of the prefecture, appears to run counter to the charge of conspiracy to
commit genocide, which these paragraphs are intended to support. Moreover, the time
frames for the alleged meetings are vague, save for the enumerated dates of 9, 11, and
18 April 1994. 62
3.14 Before and during the events referred to in this indictment,
Emmanuel BAGAMBIKI, Préfet of Cyangugu;
André NTAGERURA, Minister of Transportation and Communications;
Yussuf MUNYAKAZI, Interahamwe leader;
Christophe NYANDWI, an official in the Ministry of Planning;
Michel BUSUNYU, MRND Chairman for Karengera commune; and
Édouard BANDESTE, Interahamwe leader;
all of whom were prominent figures within the MRND in Cyangugu, held a large
number of meetings among themselves, or with others, to incite, prepare,
organise and commit genocide.
These meetings took place in diverse locations throughout Cyangugu préfecture,
in the sous-préfectures and in the communes, including public gathering places
such as Kamarampaka stadium, and also in restricted locations, such as bars and
private residences, notably:
(a) towards late 1993, in Kirambo commune, with members of the MRND;
(b) towards late 1993 and early 1994, in Augustin MIRUHO’s drinking place
in Karangiro, with the participation of Félicien BALIGIRA, a former
parliamentarian, Simeon NTEZIRYAYO, the Manager of SONARWA,
KAYIJAMAHE, the Manager of STIR, and others;
(c) February 1994, in André NTAGERURA’s house, Karengera commune,
with the participation of Yussuf MUNYAKAZI, an Interahamwe leader,
Christophe NYANDWI, a civil servant in the Ministry of Planning, Edouard
BANDETSE, an Interahamwe leader, and other members of the MRND;
(d) on 7 February 1994, at Bushenge market, with he (sic) participation of
André NTAGERURA, Daniel MBANGURA, Michel BUSUNYU, Callixte
NSABIMANA, Félicien BALIGIRA and other members of the MRND and
CDR;
(e) during June 1994 at the MRND headquarters, in Cyangugu, organised by
President Théodore SINDIKUBWABO with the participation of André
NTAGERURA, Daniel MBANGURA, a Minister, together with civilians and
religious figures;
(f) from 1993 to early 1994, in Gatare commune, with the participation of
André NTAGERURA, Yussuf MUNYAKAZI, and Emmanuel
BAGAMBIKI;
(g) on or about 28 January 1994, in Bugarama, with the participation of André
NTAGERURA and Yussuf MUNYAKAZI; and
(h) in late June 1994, in Gisuma, with the participation of Emmanuel
BAGAMBIKI and Samuel IMANISHIMWE.
62
Prosecutor v. Hadzihasanovic et al, Case No. IT-01-47-PT, Decision on the Form of the Indictment
(TC), 7 December 2001, para. 43 (“the accused are entitled to proceed upon the basis that the details
pleaded are the only case which they have to meet in relation to the offences charged”)(emphasis in
original).
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51. The Chamber finds that paragraph 3.14 fails to allege facts that would constitute
material elements of the crime of conspiracy, which, according to the Prosecutor, is
the only charge that this paragraph supports. This paragraph also does not
particularise the nature of Bagambiki’s and Imanishimwe’s participation in the
meetings.
3.15 Also, during this same period, André NTAGERURA, Yussuf
MUNYANKAZI, and Emmanuel BAGAMBIKI publicly expressed anti-Tutsi
sentiments.
52. The Chamber finds that paragraph 3.15 is devoid of any particularity concerning
when and where the alleged sentiments were expressed, the specific nature and
approximate content of what was said, and the connection of these statements to an
underlying crime.
3.16 Before and during the events referred to in this indictment, Minister André
NTAGERURA, Préfet Emmanuel BAGAMBIKI, Yussuf MUNYANKAZI,
Christophe NYANDWI, all of whom were influential figures in the MRND in
Cyangugu, participated, directly or indirectly, in the training and instructing of,
and distributing of weapons to, the MRND militiamen, the Interahamwe, who
later committed massacres of the civilian Tutsi population.
53. The Chamber finds that paragraph 3.16 fails to provide any particularity
concerning the dates, the venues, the purpose, or Bagambiki’s specific role in the
alleged training of and distribution of weapons to Interahamwe. Moreover, the
paragraph fails to identify any massacre in which those allegedly trained participated.
3.17 During the events referred to in this indictment, Lieutenant Samuel
IMANISHIMWE, in his capacity as Commander of the Cyangugu Barracks,
participated, with Préfet Emmanuel BAGAMBIKI and other persons, in
preparing lists of people to eliminate, mostly Tutsis and some Hutus in the
opposition.
3.18 These lists were given to the soldiers and militiamen with orders to arrest
and kill the persons whose names were listed. The soldiers and the Interahamwe
then carried out the orders.
54. Paragraphs 3.17 and 3.18 fail to allege with particularity a single incident, let
alone provide a narrow date range or venue, when Bagambiki and Imanishimwe
prepared the said lists, when orders were issued to arrest and kill the individuals listed
thereon, and when such orders were executed. Moreover, these paragraphs also fail to
identify any individuals who were on the lists, especially given the alleged proximity
of Bagambiki and Imanishimwe to the underlying crime. The paragraphs also do not
indicate the role or knowledge of Bagambiki or Imanishimwe in the issuing or
execution of the alleged orders.
3.19 In early April 1994, many Tutsis sought refuge at Cyangugu Cathedral to
protect themselves from the attacks against them. On or about 11 April 1994, the
attacks on the refugees at the cathedral began. The acts were carried out by
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
16
groups of Interahamwe militiamen, including a group led by Yussuf
MUNYANKAZI.
3.20 Following the first attack on or about 11 April 1994, some refugees were
arrested and taken to the Cyangugu Barracks before Lieutenant Samuel
IMANISHIMWE, who gave the order to execute them.
55. The Chamber notes that paragraph 3.19 does not identify any act of criminal
participation on the part of Bagambiki or Imanishimwe, particularly because it fails to
mention any knowledge of the accused concerning these attacks and the connection of
the accused to the alleged perpetrators. Paragraph 3.20 also does not identify the
principal perpetrators of the arrests or their connection with Imanishimwe, and, as
such, it is unclear from the Indictment whether these perpetrators can be considered
accomplices or subordinates of Imanishimwe. Moreover, given the alleged proximity
of Imanishimwe to the arrested individuals, greater detail is required concerning the
identity of the victims. It is also unclear from the indictment whether Imanishimwe’s
alleged order was executed, which is necessary under Article 6(1) for it to constitute a
crime, unless this paragraph is read together with paragraphs 3.24 and 3.25.
3.21 On or about 15 April 1994, Préfet Emmanuel BAGAMBIKI and
Lieutenant Samuel IMANISHIMWE ordered that the refugees at the Cathedral
be moved to Cyangugu Stadium. The refugees who refused to obey were
threatened with death.
3.22 The refugees from the cathedral were escorted to Kamarampaka Stadium in
Cyangugu by the civilian and military authorities, including Préfet Emmanuel
BAGAMBIKI and Lieutenant Samuel IMANISHIMWE. At the stadium, many
other refugees were already there, and later, others came in to join them. They
remained there for several weeks.
During this period, the refugees could not leave the stadium, which was guarded
by gendarmes. Those who attempted to leave the stadium were either forced
back inside by the gendarmes, or executed by the Interahamwe and the
gendarmes who were outside the stadium. Also, during this period, Interahamwe
would enter the stadium to abduct refugees and execute them.
3.23 On several occasions between April and June 1994, the authorities in
Cyangugu, notably Préfet Emmanuel BAGAMBIKI, Lieutenant Samuel
IMANISHIMWE and Minister André NTAGERURA, selected names from preestablished lists of the refugees who were inside the stadium, mostly Tutsis and
some Hutus in the opposition. These refugees were then arrested and later
executed in a place called Gatandara.
56. The Chamber finds that paragraph 3.21 fails to specify who threatened the
refugees with death and whether either Bagambiki or Imanishimwe were aware of
these threats. Though paragraph 3.22 identifies the alleged principal perpetrators, the
Chamber finds that it fails to allege a connection between the events mentioned
therein and any act of criminal participation on the part of Bagambiki or
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
17
Imanishimwe. In addition, the paragraph and the Indictment do not specify
Bagambiki’s or Imanishimwe’s superior-subordinate relationship with the principal
perpetrators, their knowledge of the commission of a crime, or their failure to take
necessary and reasonable measures to prevent the crime or to punish the perpetrators.
Given the alleged proximity of the accused to the selection and execution of the
refugees from the stadium, the Chamber finds that paragraph 3.23 fails to adequately
particularise the victims or times when the events occurred. Moreover, no mention is
made of the principal perpetrators of the alleged executions or the accused’s role or
knowledge in the executions beyond “select[ing] names from pre-established lists.”
3.24 Between April and July 1994, Lieutenant Samuel IMANISHIMWE
participated with his soldiers in the selection and arrest of Tutsis, some of whom
were later executed at the Cyangugu Barracks.
Also, Lieutenant Samuel IMANISHIMWE ordered soldiers to execute certain
people suspected of being Tutsis.
57. The Chamber finds that paragraph 3.24 fails to adequately specify the dates,
locations, and victims of any alleged incident when Imanishimwe participated in the
selection, arrest, or execution of Tutsis, or when he ordered the execution of people
suspected of being Tutsis. This is a particularly serious omission because the
paragraph alleges personal participation.
3.25 Between April and July 1994, Tutsis and moderate Hutus were arrested and
taken to the Cyangugu Barracks to be tortured and executed. Also, during this
period, soldiers, participated on several occasions with MRND militiamen and
the Interahamwe in massacres of the civilian Tutsi population.
58. The Chamber finds that the first sentence of paragraph 3.25 does not adequately
identify the principal perpetrators of the arrests, Imanishimwe’s role in the arrests, the
perpetrators’ connection with Imanishimwe, his knowledge of the acts, or his failure
to take necessary and reasonable measures to prevent the crimes or punish the
perpetrators. Moreover, the sentence does not indicate whether the tortures and
executions were eventually carried out. The paragraph also fails to identify any
incident with particularity where soldiers participated in massacres with militiamen
and Interahamwe against the Tutsi civilian population or any other material fact that
would demonstrate Imanishimwe’s responsibility for the crimes.
3.26 On at least two occasions in April 1994, Préfet Emmanuel BAGAMBIKI
ordered soldiers and MRND militiamen, i.e. the Interahamwe, to kill members of
the civilian Tutsi population and certain Hutus in the opposition.
59. The Chamber finds that paragraph 3.26 fails to identify any specific incident by
date, location, or circumstances when Bagambiki issued orders to soldiers or
militiamen or any particular event where these orders were carried out, which is
required under Article 6(1) to establish a crime.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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3.27 Between April and July 1994, subordinates of Préfet Emmanuel
BAGAMBIKI, notably sous-préfets, bourgmestres, government employees and
gendarmes, participated in the massacres of the civilian Tutsi population and of
certain Hutus in the opposition.
60. The Chamber finds that paragraph 3.27 fails to identify any specific instance when
Bagambiki’s alleged subordinates participated in a massacre. It also fails to specify
Bagambiki’s knowledge of their participation and his failure to take necessary and
reasonable measures to prevent it or to punish them.
3.28 During the events referred to in this Indictment, Préfet Emmanuel
BAGAMBIKI had the duty of ensuring the protection and safety of the civilian
population within his préfecture. On several occasions in April 1994, Préfet
BAGAMBIKI failed or refused to assist those whose lives were in danger who
asked for his help, particularly in Gatare commune, where those Tutsis were
massacred.
61. The Chamber finds that paragraph 3.28 fails to indicate any occasion by date and
specific location, as well as any instance when Bagambiki failed or refused to assist
persons whose lives were in danger. This is a serious omission given that the
paragraph, inter alia, alleges the affirmative act of refusal.
3.30 During the events referred to in this indictment, the militiamen, i.e. the
Interahamwe, with the help of the soldiers, participated in the massacres of the
civilian Tutsi population and of Hutu political opponents in Cyangugu
préfecture.
3.31 During the events referred to in this indictment, there were several tens of
thousands of victims, mostly Tutsis, in Cyangugu prefecture.
62. The Chamber finds that paragraphs 3.30 and 3.31 fail to particularise with any
specificity the underlying criminal events or the specific role that the accused
allegedly played in the massacres.
63. The Chamber further emphasises that the formulation of the counts in the
Bagambiki/Imanishimwe Indictment is problematic because the counts do not clearly
identify whether Bagambiki and Imanishimwe are being charged as principals or as
accomplices nor do they specify what particular form of complicity is charged.
4. Conclusion
64. For the foregoing reasons, the Chamber finds that the operative paragraphs
underpinning the charges against Ntagerura, Bagambiki, and Imanishimwe, as well as
the charges themselves, are unacceptably vague. Moreover, the Chamber finds no
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
19
justifiable reason for the Prosecutor to have pleaded the allegations or charges in such
a generic manner. 63
65. In Kupreskic, the Appeals Chamber acknowledged the possibility that a defective
indictment could be cured if the Prosecution provided the accused with “timely, clear
and consistent information detailing the factual basis underpinning the charges”. 64 The
Appeals Chamber, however, emphasised that “in light of the factual and legal
complexities normally associated with the crimes within the jurisdiction of this
Tribunal, there can only be a limited number of cases that fall within that category.”65
66. The Chamber notes that the supporting materials to the Ntagerura and to the
Bagambiki/Imanishimwe Indictments, other pre-trial disclosure, and the pre-trial brief
provide additional information concerning the possible evidence to be introduced at
trial and the theory of the Prosecution’s case. However, pre-trial submissions and
disclosure are not adequate substitutes for a properly pleaded indictment, which is the
only accusatory instrument mentioned in the Statute and Rules. 66 The indictment must
plead all material facts. 67 The Trial Chamber and the accused should not be required
to sift through voluminous disclosures, witness statements, and written or oral
submissions in order to determine what facts may form the basis of the accused’s
alleged crimes, in particular, because some of this material is not made available until
the eve of trial.
67. When the Chamber is confronted with defective paragraphs in an indictment at the
post-trial phase, it may address an accused’s lack of notice by disregarding the
defective paragraphs in making its factual and legal findings. 68 Nonetheless, the
Chamber emphasises that in certain circumstances it has discretion to consider
63
Kupreskic, Judgement (AC), para. 92 (“[T]he Prosecution is expected to know its case before it goes
to trial. It is not acceptable for the Prosecution to omit the material aspects of its main allegations in the
indictment with the aim of moulding the case against the accused in the course of the trial depending on
how the evidence unfolds.”)(internal footnotes omitted).
64
Kupreskic, Judgement (AC), para. 114. See also Krnojelac, Judgement (AC), para. 138.
65
Kupreskic, Judgement (AC), para. 114. See also Krnojelac, Judgement (AC), paras. 125-145 (The
Trial Chamber is entitled not to consider allegations advanced by the Prosecutor in the pre-trial brief
which are different than the allegations in the indictment).
66
Krnojelac, Judgement (AC), para. 139 (“The Appeals Chamber points out that the Prosecution's
obligation to draw up a sufficiently precise indictment must be interpreted in the light of the provisions
of Articles 21(2), 21(4)(a) and 21(4)(b) of the Statute, which state that, in the determination of charges
against him, the accused shall be entitled to a fair hearing and, more specifically, to be informed of the
nature and cause of the charge against him and to have adequate time and facilities for the preparation
of his defence”). See also Prosecutor v. Mrksic, Case No. IT-95-13/1-PT, Decision on Form of the
Indictment (TC), 19 June 2003 para. 17; Prosecutor v. Hadzihasanovic, Case No. IT-01-47-PT,
Decision on the Form of Indictment (TC), 7 December 2001, para. 12.
67
Krnojelac, Judgement (AC), para. 139.
68
Krnojelac, Judgement (AC), para. 144 (“the Appeals Chamber holds that, in view of the persistent
ambiguity surrounding the issue of what exactly the Prosecution argument was, the Trial Chamber had
good grounds for refusing, in all fairness, to consider an extended form of liability with respect to
Krnojelac.”); Kupreskic, Judgement (AC), para. 92 (“It is not acceptable for the Prosecution to omit the
material aspects of its main allegations in the indictment with the aim of moulding the case against the
accused in the course of the trial depending on how the evidence unfolds. There are, of course,
instances in criminal trials where the evidence turns out differently than expected. Such a situation may
require the indictment to be amended, an adjournment to be granted, or certain evidence to be excluded
as not being within the scope of the indictment.”)(emphasis added). See also Semanza, Judgement (TC),
para. 61; Krnojelac, Judgement (TC), para. 86.
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evidence supporting a paragraph, even if the paragraph is defective. 69 The Chamber
further notes that disregarding a portion of the indictment is most appropriate where
an allegation is grossly deficient or where to disregard it would not dispose of the
central allegations in the case.
68. The Chamber recalls that in Kupreskic the Appeals Chamber intimated that it
“might understandably be reluctant to allow a defect in the form of the indictment to
determine finally the outcome of a case in which there is strong evidence pointing
towards the guilt of the accused.”70 The Chamber will thus consider the Prosecutor’s
evidence against Ntagerura, Bagambiki, and Imanishimwe to see if such strong
evidence exists. The Chamber emphasises that it will consider evidence that falls only
within the contours of the existing indictment. If strong evidence of guilt is found to
exist, the Chamber will take into consideration to what extent the lack of notice and
the ambiguity influenced the evidence and will adjust its findings if necessary.
69. The Chamber will thus make factual findings with respect to paragraphs 9.1, 9.2,
9.3, 14.1, 14.3, 17, 18, and 19 of the Ntagerura Indictment and paragraphs 3.16
through 3.31 of the Bagambiki/Imanishimwe Indictment. The Chamber will not make
factual findings on paragraphs 12.2, 14.2, 15.1, and 15.2 of the Ntagerura Indictment
because the Prosecution conceded that it has offered no proof in respect of them.
Finally, the Chamber will not make factual findings in respect of paragraphs 11, 12.1,
13, and 16 of the Ntagerura Indictment or paragraphs 3.12, 3.13, 3.14, and 3.15 of the
Bagambiki/Imanishimwe Indictment because, in addition to being vague, these
paragraphs fail to plead any identifiable criminal conduct on the part of the accused.
70. The Chamber further notes that it must dismiss Count 2 of the Ntagerura
Indictment and Count 19 of the Bagambiki/Imanishimwe Indictment, which charge
conspiracy to commit genocide, because the allegations supporting these counts, even
if proven, could not constitute the material elements of the crime of conspiracy. In
particular, the concise statements of the facts of these crimes fail to allege the actus
reus of conspiracy, namely that two or more persons agreed to commit the crime of
genocide. 71
69
Kupreskic, Judgement (AC), para. 114.
Kupreskic, Judgement (AC), para. 125.
71
Musema, Judgement (TC), paras. 191-192 (defining material elements of conspiracy). See also
Niyitegeka, Judgement (TC), para. 423; Ntakirutimana, Judgement (TC), para. 798; Tadic, Judgement
(AC), para. 211.
70
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II. FACTUAL FINDINGS
A. Ntagerura Indictment
1. General Allegations
71. Paragraphs 1, 2, and 3 of the Ntagerura Indictment read:
1. During the events referred to in this indictment, Rwanda was divided into
eleven préfectures, one of which was Cyangugu préfecture.
2. During the events referred to in this indictment, the Tutsi were identified as a
racial or ethnic group.
3. During the entire period referred to in this indictment, there were in Rwanda
widespread and/or systematic attacks directed against a civilian population on
political, ethnic or racial grounds.
72. The Chamber notes that the Ntagerura Defence does not dispute the allegations in
paragraphs 1 through 3 of the indictment. 72
73. Paragraph 4 of the Ntagerura Indictment reads:
4. During the events referred to in this indictment, a state of non-international
armed conflict existed in Rwanda. The victims referred to in this indictment were
protected persons and did not take an active part in the hostilities.
74. The Chamber previously took judicial notice that “[b]etween 1st January 1994 and
17th July 1994, in Rwanda, there was an armed conflict not of international
character.”73 The Chamber will consider whether the victims were protected persons
in its findings, where necessary. The Chamber also emphasises that there is ample
precedent in this Tribunal to support the view that the conflict in Rwanda met the
criteria of a non- international armed conflict. 74
75. Paragraph 5 of the Ntagerura Indictment reads:
5. On 6 April 1994, the plane carrying President Juvénal Habyarimana of
Rwanda crashed on its approach to Kigali airport, Rwanda, killing all on board.
Soon thereafter, attacks on and the killing of civilians began throughout Rwanda.
72
Ntagerura’s Closing Brief paras. 128-130.
Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, ICTR 99-46-T, Oral Decision on the
Proposed Expert Reports and Evidence of Antoine Nyetera, Uwe Friesecke, and Wayne Madsen (TC),
T. 4 July 2002 p. 9.
74
See, e.g., Semanza Judgement (TC), paras. 280-282; Musema, Judgement (TC), para. 971;
Rutaganda Judgement (TC), para. 436, 514; Kayishema and Ruzindana Judgement (TC), para. 172.
73
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76. The Chamber notes that the Ntagerura Defence does not dispute this allegation. 75
77. Paragraphs 6 and 7 of the Ntagerura Indictment read:
6. During the period referred to in this indictment, ANDRÉ NTAGERURA was
a senior cabinet Minister, and a prominent member of the ruling party, the
Mouvement républican national pour la démocratie et le devéloppement
(MRND), formerly the Mouvement révolutionnaire national pour le
devéloppement, in southwestern Rwanda.
7. As a member of the MRND, ANDRÉ NTAGERURA was involved in
defining the political orientation of the MRND.
78. The Chamber notes that the Defence does not dispute that Ntagerura was a
government minister from 1991 until 1994 or that he was a member of the MRND
party. 76 The Ntagerura Defence however contests that Ntagerura was a “prominent
member” of the MRND and that he was involved in defining the political orientation
of the party. 77
79. The only evidence that Ntagerura held any prominent position within the MRND
party, in which he might have been in a position to define the political orientation of
the MRND, emanates from a facsimile copy of an undated document from the
Ministry of the Interior, indicating, in Prosecution Expert Witness Guichaoua’s
opinion, the de facto party leadership from mid-1992 up to 1994. 78
80. The Chamber finds that the evidence on the record does not reliably establish that
Ntagerura was a prominent member of the MRND party or that he was involved in
defining its political orientation.
81. Paragraph 8 of the indictment reads:
8. ANDRÉ NTAGERURA was the Minister of Transport and Communications
of the Republic of Rwanda. As Minister of Transport and Communications, he
was responsible for, among other things, assigning all government vehicles.
82. The Chamber notes that the Ntagerura Defence does not dispute that Ntagerura
was the Minister of Transport and Communications. 79 The Ntagerura Defence,
however, contests that Ntagerura was responsible for assigning all government
vehicles. 80 Because the Chamber has decided not to make findings in respect of
paragraph 11 of the Ntagerura Indictment, it need not find whether Ntagerura was
responsible for assigning all government vehicles.
75
Ntagerura’s Closing Brief, paras. 134-135.
Ntagerura’s Closing Brief para. 136. See also T. 17 July 2002 pp. 67-68; T. 24 July 2002 pp. 97-98.
77
Ntagerura’s Closing Brief paras. 137, 144-146.
78
T. 20 September 2001 pp. 77, 79-80, 92-93. See also The Republic of Rwanda: Approved Political
Parties, Ntagerura Defence Exhibit 3.
79
Ntagerura’s Closing Brief para. 136. See also T. 17 July 2002 pp. 67-68.
80
Ntagerura’s Closing Brief para. 147.
76
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83. Paragraph 10 of the Ntagerura Indictment reads:
10. From 1 January to 31 July 1994, the Interahamwe militia (“Interahamwe”)
was a wing of the MRND party.
84. The evidence of both Prosecution and Defence witnesses reflects that the youth
movement of the MRND party was called the Interahamwe.81 The testimonies of
Guichaoua and Ntagerura, however, indicate that the Interahamwe was never formally
incorporated into the MRND party. 82 As Guichaoua noted, the Interahamwe generally
remained at the disposal of those individuals who financed them. 83 From this
evidence, the Chamber finds that the Interahamwe was a youth movement associated
with, but not necessarily formally incorporated into, the MRND party. The Chamber
will reserve its finding on whether the Interahamwe was the MRND party’s militia
and will rule upon this matter only to the extent that it may relate to a specific count in
the indictment.
2. Paragraphs 9.1, 9.2, and 9.3 of the Ntagerura Indictment
85. Paragraphs 9.1, 9.2, and 9.3 of the Ntagerura Indictment read:
9.1 From 1 January to 31 July 1994, and even as early as 1991, ANDRÉ
NTAGERURA had strong political and community ties in Cyangugu préfecture,
in Rwanda. ANDRÉ NTAGERURA frequently traveled [sic] to Cyangugu
préfecture, particularly to Karengera, Gatare and other communes and conducted
MRND party meetings as well as meetings of conseillers and bourgmestres of
the préfecture.
9.2 Consequently, on 11 April 1994, after the death of President Habyarimana
when the plane in which he was travelling crashed, André Ntagerura conducted a
meeting in Cyangugu.
9.3 From 1 January to 31 July 1994 and even before this period,
- André NTAGERURA, Minister of Transport and Communications,
- Emmauel [sic] BAGAMBIKI, Préfet of Cyangugu,
- Yussuf MUNYAKAZI, Interahamwe leader,
- Christophe NYANDWI, civil servant at the Ministry of Planning,
- Michel BUSUNYU, Chairman of the MRND in Karengera commune,
81
See, e.g., Testimony of Prosecution Witness Guichaoua, T. 19 September 2001 p. 44; Testimony of
Prosecution Witness MM, T. 12 October 2000 p. 88; Testimony of Ntagerura, T. 1 October 2002 p. 83;
Testimony of Defence Witness T16H, T. 13 March 2002 pp. 29, 42-43; Testimony of Defence Witness
HOPE, T. 19 March 2002 pp. 42-43; Testimony of Defence Witness Nyetera, T. 11 July 2002 pp. 54,
87-88; Testimony of Defence Witness MOH, T. 10 March 2003 pp. 24-25. Prosecution Witness LAI, a
member of the Bugarama Interahamwe, noted that the Interahamwe had the support of MRND
governmental authorities, but did not testify about whether it was a part of the MRND. T. 17 September
2001 pp. 18, 49-50; T. 18 September 2001 p. 91
82
Testimony of Prosecution Witness Guichaoua, T. 20 September 2001 pp. 14-15. See also Prosecution
Exhibit 64(B), document 2, annex 8, p. 59, para. 3; Testimony of Ntagerura, T. 18 July 2002 p. 149; T.
1 October 2002 p. 83.
83
T. 20 September 2001 pp. 6-10, 14-15. See also Prosecution Exhibit 64(B), document 2, annex 8, p.
59, para. 3.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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all prominent MRND figures in Cyangugu, held a meeting among themselves as
well as with others to organize, prepare and encourage the genocide, particularly
of the Tutsi population. 84
86. In addition to a series of alleged meetings in 1994, Prosecution witnesses also
testified about six meetings allegedly attended by Ntagerura prior to 1994. Although
these meetings do not fall within the temporal jurisdiction of the Tribunal, the
Chamber will nevertheless consider the evidence in case the allegations are relevant to
an offence alleged in the indictment and falling within the Tribunal’s temporal
jurisdiction.
a. Kamarampaka Stadium, October 1992
(i) Allegations
87. Prosecution Witness LAP testified that he saw Ntagerura, Bagambiki, and
Imanishimwe participating in an MRND meeting at Kamarampaka Stadium in
Cyangugu in October 1992. 85 According to the witness, both Bagambiki and
Ntagerura addressed the assembly. 86
88. Prosecution Witness LAI also mentioned an MRND meeting at Kamarampaka
Stadium attended by Ntagerura and Imanishimwe in 1992. 87 He recalled that at the
meeting Imanishimwe was introduced as commander of the military camp in
Cyangugu. 88
89. Ntagerura denied participating in an MRND meeting at Kamarampaka Stadium in
mid-October 1992. 89
90. Imanishimwe denied the assertion of Witnesses LAP that he was at an MRND
rally in Cyangugu in October 1992, because at that time he was stationed in Kigali at
the staff headquarters and because Rwandan soldiers did not participate in political
rallies. 90
91. Bagambiki testified that he was a member of the MRND party but did not attend
meetings or hold any leadership roles within the national party or the MRND party in
Cyangugu. 91 He stated that he never held meetings with Ntagerura. 92
(ii) Findings
84
The French text of the Indictment specifies the plural term “reunions”, which has been incorrectly
translated as “a meeting”.
85
T. 11 September 2001 p. 3.
86
T. 11 September 2001 pp. 4-5, 52-53, 56; T. 12 September 2001 pp. 116-117; T. 13 September 2001
p. 31.
87
T. 25 September 2001 pp. 95-96.
88
T. 25 September 2001 p. 99.
89
T. 18 July 2002 p. 26.
90
T. 20 January 2003 pp. 47, 49-51; Imanishimwe Defence Exhibit 9, Rule 17.
91
T. 27 March 2003 pp. 3, 4.
92
T. 27 March 2003 pp. 16, 17.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
25
92. The Chamber notes that Witnesses LAP and LAI are alleged accomplices of the
accused and, as such, views their testimonies with caution. Witnesses LAP and LAI
testified about meetings at Kamarampaka Stadium during 1992. Witness LAP testified
about an MRND meeting held at the stadium in October 1992, while Witness LAI did
not provide any date. It is therefore unclear whether the two witnesses described the
same event. The credibility of both of these witnesses is drawn into serious question
in relation to other events. 93 Moreover, the Chamber is doubtful that Imanishimwe,
who was stationed in Kigali in October 1992, would then have participated in an
MRND rally in Cyangugu as commander of the military camp because there is no
evidence that he had any link with the Cyangugu region prior to 1993. Accordingly,
the Chamber is not satisfied beyond a reasonable doubt that Ntagerura took part in
this meeting.
b. Kamarampaka Stadium, 1993
(i) Allegations
93. Prosecution Witness LAJ testified that at an MRND rally at Cyangugu Stadium in
1993 he heard Ntagerura urge party members to be vigilant in order to prevent enemy
infiltration into their area and tell them that he had brought uniforms for the
Interahamwe.94 The witness acknowledged that he did not participate in the meeting,
but was told by a gendarme outside the stadium that Ntagerura conve ned the meeting
and that it was “the minister” who was speaking. 95
94. Ntagerura denied participating in an MRND meeting at Kamarampaka Stadium in
Cyangugu in 1993 or offering uniforms to the Interahamwe, contrary to the
allegations of Witness LAJ. 96
(ii) Findings
95. The Chamber notes that Witness LAJ is an alleged accomplice of the accused and,
as such, views his testimony with caution. Witness LAJ is the only witness who
testified about this alleged event. The Chamber notes that Witness LAJ was not an
eyewitness to the event and did not personally see Ntagerura take part in or address
the meeting. His identification of Ntagerura speaking at the meeting is based on a
statement made by an unidentified gendarme stationed outside the stadium. The
Chamber finds that Witness LAJ’s identification of Ntagerura is not reliable.
Accordingly, the Chamber is not satisfied beyond a reasonable doubt that Ntagerura
attended this event at Kamarampaka Stadium in 1993.
c. Bushenge Market, 7 February 1993
(i) Allegations
93
Cross Reference Bugarama Weapons Distribution
T. 24 October 2000 pp. 115-117, 119-121.
95
T. 24 October 2000 pp. 115, 117.
96
T. 18 July 2002 pp. 19-20.
94
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
26
96. Prosecution Witness LAD testified that from 2:00 to 4:00 p.m. on 7 February 1993
there was an MRND meeting in a field near the market in Bushenge. 97 According to
the witness, the multi-party meeting of 4,000 to 5,000 people ostensibly concerned the
construction of a sub-prefecture, but was in reality a rally designed to unite the
members of different political parties against their common Tutsi enemy. 98 The
witness testified that he saw Bagambiki address the crowd, followed by Ntagerura,
Busunyu, and Ngirumpatse, but that he could not hear what was said because he was
100 meters away. 99 The witness also stated that Emmanuel Nsabimana, a journalist
with Radio Rwanda, was in attendance. 100
97. Prosecution Witness LAN, a Tutsi, also testified that at approximately 1:00 p.m.
on 7 February 1993, he attended a political meeting at the Bushenge market called to
discuss the creation of a sub-prefecture. 101 He recalled seeing Interahamwe singing
anti-Tutsi songs and carrying weapons at the meeting. 102 He testified that Ntagerura
addressed the crowd and stated that the Rwandan government did not favour the
Arusha Peace Accords and asked the people at the meeting if they could accept
“Inyenzis” or “Inkotanyis” running the country. 103 The witness added that Ntagerura
urged the crowd to follow the MRND, mobilise itself, and take up arms to return the
Inyenzis and Inkotanyis to the place from where they came. 104 The witness explained
that “Inyenzi” and “Inkotanyi” were terms that had been used to describe the entire
Tutsi ethnic group, and he interpreted Ntagerura’s speech to be saying that the Hutu
were going to avenge the deaths of fellow Hutus by killing Tutsis. 105 Following
Ntagerura’s speech, the witness recalled, Michel Busunyu, Martin Mahirane,
Ntezilyayo, Yussuf Munyakazi, and Mathieu Ngirumpatse also addressed the
crowd. 106
98. Prosecution Witness NG-1 testified that one afternoon in February or March 1993
he passed by an MRND meeting in Bushenge. 107 During his brief observation, the
witness testified, he noticed that Ntagerura and Bagambiki were in attendance and
heard Busunyu call on the population to join the MRND party and say that the Tutsi
were the enemy. 108
99. Ntagerura testified that he was not aware of and did not participate in an MRND
meeting at the Bushenge market on 7 February 1993. 109 Moreover, he testified that he
was not aware that government personalities of the MRND from Kigali participated in
any meeting held in the Bushenge market during the multiparty period. 110
97
T. 21 November 2000 pp. 82-88, 102; T. 22 November 2000 pp. 33, 37, 41-45, 113-114, 118, 121.
T. 22 November 2000 pp. 24-25, 32, 64-65, 105, 123.
99
T. 21 November 2000 pp. 100-101.
100
T. 21 November 2000 pp. 87-92; T. 22 November 2000 pp. 52-53, 60, 69-70.
101
T. 17 January 2001 pp. 8-10, 13-14, 24, 71-74, 78-79, 82, 112; T. 18 January 2001 pp. 41-42, 46.
102
T. 17 January 2001 pp. 12-13, 15-17, 26, 105, 107-111.
103
T. 17 January 2001 pp. 31-32.
104
T. 17 January 2001 pp. 33, 60.
105
T. 17 January 2001 pp. 33-35, 59-64.
106
T. 17 January 2001 pp. 40-45.
107
T. 27 November 2000 p. 128; T. 28 November 2000 pp. 39, 64-66.
108
T. 27 November 2000 pp. 129-132; T. 28 November 2000 pp. 39-40, 62, 66-67, 86.
109
T. 18 July 2002 pp. 84, 100.
110
T. 18 July 2002 pp. 84-85.
98
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
27
100. Bagambiki testified that, on 6 April 1994, he was a member of the MRND
party but did not attend meetings or hold any leadership role within the national party
or the MRND party in Cyangugu. 111 He stated that he never held meetings with
Ntagerura or Busunyu. 112
101. Defence Witness HOPE testified that he recalled hearing from an unidentified
source about several MRND members, including Ntagerura, attending a political rally
in the Bushenge market on 7 February 1993. 113 He stated that he had never heard that
Ntagerura said that the Tutsis should be killed. 114
(ii) Findings
102. The Chamber has carefully assessed the evidence of Witnesses LAN, LAD,
and NG-1, who gave largely consistent accounts of this event. The Chamber observes
that these three Prosecution witnesses lived in the same locality and knew each other.
The witnesses denied discussing their evidence with each other. 115 The Chamber notes
the differences between their accounts and is satisfied that such discrepancies are
explained by the witnesses’ different vantage points and by the timing of their
observations. Ntagerura’s presence at the meeting is also supported by the evidence of
Defence Witness HOPE. On this basis, the Chamber finds that, on 7 February 1993,
Ntagerura attended a public meeting held near the Bushenge market in Cyangugu.
103. The Chamber also finds, on the basis of the detailed evidence provided by
Witness LAN, that Ntagerura addressed the gathering and made statements about
repulsing the “Inkotanyi” and “Inyenzi”. However, the Chamber does not subscribe to
the unsubstantiated interpretation proffered by Witness LAN, namely, that
Ntagerura’s words suggested a general and indiscriminate attack on Tutsi civilians.
d. Hotel Ituze, June 1993
(i) Allegations
104. Prosecution Witness LAI, a member of the Interahamwe, testified that he
attended a meeting at Hotel Ituze in June 1993. 116 He recalled that there were many
Interahamwe at the meeting, which was attended by Ntagerura, Bagambiki,
Munyakazi, Michel Busunyu, Edouard Bandetse, Christopher Nyandwi, and others. 117
According to the witness, the meeting was organized for the Interahamwe from the
communes of Cyangugu to find ways to reinforce the party and to destroy opposition
parties, such as the MDR. 118
111
T. 27 March 2003 pp. 3, 4.
T. 27 March 2003 p. 16, 17.
113
T. 19 March 2002 pp. 14, 17.
114
T. 19 March 2002 pp. 14-16.
115
T. 28 November 2000 pp. 88-91; T. 18 January 2001 pp. 4-16.
116
T. 17 September 2001 pp. 59, 81-82; T. 18 September 2001 p. 31; T. 26 September 2001 p. 73.
117
T. 17 September 2001 pp. 61-62; T. 18 September 2001 p. 34.
118
T. 17 September 2001 p. 60; T. 18 September 2001 pp. 9-10, 31-34; T. 25 September 2001 p. 61.
112
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
28
105. Witness LAI stated that Bagambiki and Ntagerura chaired the meeting. 119 He
explained that Ntagerura talked about a decision taken by the MRND National
Committee to recruit people back into the MRND party and to tell the population that
the “new” MRND was the MRND PARMEHUTU. 120 According to the witness,
Ntagerura ordered that all employees of companies located in Cyangugu who were
not MRND members should be dismissed from their jobs. 121 The witness admitted
that subsequently some employees, who were not members of the MRND, were not
dismissed from their jobs. 122
106. Ntagerura denied meeting with Bagambiki, Munyakazi, and others at Hotel
Ituze in June 1993, and specifically denied the allegation that he had delivered a
decision of the national committee of the MRND to dismiss all employees who were
not members of the MRND. 123 He noted that in June 1993 he was not a member of the
national committee of the MRND. 124
107. Bagambiki denied attending an MRND meeting in June 1993 at Hotel Ituze,
and denied hearing that Ntagerura said that employees who were not MRND members
should be dismissed from their jobs. 125 Bagambiki also noted that he would not have
organised a meeting at Hotel Ituze, which is a private resort, because he had space to
hold meetings at the prefecture. 126
(ii) Findings
108. The Chamber notes that Witness LAI is an alleged accomplice of the accused
and, as such, views his testimony with caution. Witness LAI was the sole witness to
testify about this event. The Chamber has considered the totality of the evidence
provided by Witness LAI and has found that he lacks credibility in relation to other
allegations. 127 In the absence of any other evidence to support Witness LAI’s account
of these events, the Chamber is not satisfied that the Prosecution proved beyond a
reasonable doubt that Ntagerura attended such a meeting. Furthermore, the Chamber
is not satisfied on the evidence before it that opposition party members were
systematically dismissed from their jobs, thus calling into question whether such an
order was ever given.
e. Gatare and Cyangugu Prefecture Office, October 1993
(i) Allegations
109. Prosecution Witness LAI testified that he was present at a public rally to
encourage MRND membership in October 1993 at Hanika centre in Gatare commune,
119
T. 17 September 2001 p. 61; T. 25 September 2001 p. 61.
T. 17 September 2001 pp. 64, 67.
121
T. 17 September 2001 p. 69; T. 25 September 2001 p. 35.
122
T. 17 September 2001 p. 75; T. 25 September 2001 pp. 35-36.
123
T. 18 July 2002 p. 51.
124
T. 18 July 2002 p. 52.
125
T. 1 April 2003 p. 49; T. 1 April 2003 p. 58 (French).
126
T. 1 April 2003 p. 50.
127
See supra paras. 129-132.
120
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
29
Cyangugu. 128 He testified that during the meeting Ntagerura made a speech that
“triggered the war.”129 The witness explained that bourgmestres, conseillers, and
other authorities who were MRND members had been fired and replaced with
members of opposition parties and that therefore the MRND sought to replace them
with MRND members. 130 According to the witness, Ntagerura told the people that
they had to be Interahamwe and that they had to fight against the parties that did not
share the same views as the MRND because such parties were collaborating with the
Tutsis. 131
110. Witness LAI testified that the meeting resulted in violent clashes on nearby
bridges between Interahamwe and the youth of other parties, during which the witness
was injured. 132 He recalled that the person who injured him was killed in the presence
of Ntagerura and other officials by an Interahamwe who was never prosecuted for the
killing. 133 The witness testified that Ntagerura was the first to leave the scene of the
violence and that Ntagerura then requested the gendarmerie from Kirambo to come to
the support of the Interahamwe.134
111. Witness LAI testified that, later the same day in October 1993, following the
Gatare meeting, he was also present at a meeting at the Cyangugu prefecture office
with Bagambiki, Ntagerura, and other community leaders. 135 He testified that during
the meeting Ntagerura said, “Anybody, even if it is your child, who is not a member
of the MRND, must be sent away,” and promised to provide weapons to
Interahamwe.136
112. Ntagerura denied attending either an MRND meeting at the Hanika Centre in
Gatare commune or a meeting later the same day at the office of the prefecture in
Cyangugu during October 1993. 137 He admitted attending an MRND meeting in
Kirambo commune in May 1992. 138 Ntagerura recalled that on the way to the meeting
they passed through Kagano, where they were attacked by members of the MDR
party, who were fended off by gendarmes. 139 He testified that they were attacked by a
larger crowd on their return and that they sustained injuries, but were freed thanks to
the intervention of the gendarmes. 140 He explained that the government took steps to
restore peace in the area by arresting and prosecuting some of the attackers. 141 He
128
T. 17 September 2001 pp. 54-55, 57; T. 18 September 2001 pp. 44-45, 47.
T. 17 September 2001 p. 55; T. 18 September 2001 pp. 44-45, 48.
130
T. 17 September 2001 p. 57.
131
T. 17 September 2001 p. 55.
132
T. 17 September 2001 pp. 57-58; T. 18 September 2001 pp. 46, 50-52, 54; T. 26 September 2001 p.
11.
133
T. 17 September 2001 pp. 58-59.
134
T. 18 September 2001 pp. 52-54.
135
T. 17 September 2001 pp. 51-53.
136
T. 17 September 2001 p. 52.
137
T. 18 July 2002 pp. 42-44, 47; T. 18 July 2002 p. 53 (French).
138
T. 18 July 2002 p. 44.
139
T. 18 July 2002 p. 45.
140
T. 18 July 2002 p. 45.
141
T. 18 July 2002 p. 46.
129
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30
testified that the friction continued and so he visited Kirambo in August 1992 with
Prime Minister Nsengiyaremye to put an end to the violence. 142
(ii) Findings
113. The Chamber notes that Witness LAI is an alleged accomplice of the accused
and, as such, views his testimony with caution. Witness LAI was the sole witness to
testify about these events. The Chamber has considered the totality of the evidence
provided by Witness LAI and has found that he lacks credibility in relation to other
allegations. 143 The Chamber also harbours doubts about his credibility in relation to
these events. In particular, the Chamber notes the inconsistencies between his
testimony and his prior statement, which were raised during cross-examination. 144
Moreover, Witness LAI’s evidence concerning these events is linked to his account of
the meeting allegedly held at Hotel Ituze in June 1993, during which the Gatare
meeting was allegedly planned. The Chamber has not found that Ntagerura’s presence
at the Hotel Ituze meeting was proven beyond a reasonable doubt. The Chamber is not
satisfied beyond a reasonable doubt that Ntagerura attended either the alleged meeting
in Gatare commune or the second meeting at the Cyangugu prefecture office later that
day.
f. Bushenge, November 1993
(i) Allegations
114. Prosecution Witness LAH testified that he participated in a public meeting in
November 1993 at the Bushenge market, during which, according to him, Ntagerura
said, “[I]n a short while President Ikinani will no longer be there, and at that time the
fate of the Tutsi will be sealed.”145 The witness stated that the word “Ikinani” was
President Habyarimana’s nickname. 146
115. Prosecution Witness NL stated that in late 1993 or early 1994 on his way to
Butare, he saw Ntagerura in Ntendezi. 147 The witness stated that Ntagerura and others,
who were wearing MRND colours and carrying flags, were travelling from Kigali to a
meeting in Bushenge. 148
116. Ntagerura denied participating in an MRND meeting at the Bushenge market,
located at the border of the communes of Gafunzo and Gisuma, in November 1993. 149
Ntagerura specifically denied that he had made the statement alleged by Witness
LAH. 150 Ntagerura explained that such words could not be said by a member of the
government because they would have been published by the free press in Rwanda,
142
T. 18 July 2002 p. 46.
See supra paras. 129-132.
144
T. 18 September 2001 pp. 56-58.
145
T. 10 October 2000 pp. 63, 104, 109-110; T. 11 October 2000 pp. 25, 26.
146
T. 10 October 2000 pp. 63, 106.
147
T. 21 February 2001 pp. 22-25, 37, 43-44.
148
T. 21 February 2001 pp. 22-25, 43-44.
149
T. 17 July 2002 pp. 70, 79-80; T. 18 July 2002 pp. 85-86.
150
T. 17 July 2002 pp. 69, 92.
143
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31
and neither the multiparty and multiethnic government nor the judicial system would
have tolerated such a statement in 1993. 151
117. Bagambiki stated that he authorised, but did not attend, an MRND party
meeting in Gafunzo commune toward the end of 1993 involving both Gafunzo and
Gisuma communes. 152
(ii) Findings
118. The Chamber recalls that Witness LAH is an alleged accomplice of the
accused and, as such, views his testimony with caution. The Trial Chamber has
considered the evidence of Witness LAH in light of the evidence of Defence Witness
BLB, who testified that Witness LAH made and then recanted false accusations
against him in relation to serious charges before the Rwandan courts. 153 The Chamber
is of the view that this evidence calls Witness LAH’s credibility into serious question.
The testimony of Witness NL does not provide adequate corroboration for the
allegations of Witness LAH. The Chamber notes that Witness NL did not see
Ntagerura in Bushenge and did not indicate how he knew that Ntagerura was going to
a meeting there. The Chamber therefore finds that his conclusion that Ntagerura
attended a meeting in Bushenge is unreliable. The Trial Chamber is of the view that
the accounts of Witnesses LAH and NL are insufficient to satisfy the Chamber
beyond a reasonable doubt that Ntagerura took part in such a meeting.
g. Bugarama, 28 January 1994
(i) Allegations
119. Prosecution Witness LAI testified that, on 5 January 1994, at around 5:00
p.m., he was present when Bagambiki and Commander Bavugamenshi met at
Munyakazi’s home, where they discussed an upcoming visit by Ntagerura planned for
Democracy Day on 28 January 1994. 154
120. Witness LAI testified that, on the morning of 28 January 1994, Ntagerura,
Bagambiki, Bavugamenshi, Kabiligi, and another soldier arrived at the Bugarama
football field in a helicopter to deliver weapons to Munyakazi. 155 The witness testified
that Bagambiki then chaired a meeting during which Bagambiki, Ntagerura, and
Kabiligi spoke to the assembly, which consisted of Interahamwe and others. 156
According to the witness, Ntagerura stated that he was fulfilling a promise that he had
made to the Interahamwe in October 1993 to provide weapons for “civilian defence”
and protection of MRND members. 157 The witness testified that Ntagerura then told
151
T. 17 July 2002 p. 82.
T. 27 March 2003 p. 18.
153
T. 19 February 2003 pp. 29-33, 40-42; T. 20 February 2003 p. 2; Bagambiki Defence Exhibits 8, 9.
154
T. 17 September 2001 p. 33; T. 18 September 2001 pp. 82-83, 85; T. 25 September 2001 p. 80; T.
26 September 2001 p. 57.
155
T. 17 September 2001 pp. 30-32; T. 18 September 2001 pp. 85-85, 88-89; T. 25 September 2001 pp.
72, 79-80.
156
T. 17 September 2001 pp. 35-36; T. 18 September 2001 pp. 87-90.
157
T. 17 September 2001 pp. 36-37.
152
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32
the assembled group that Tutsis were the enemy, that he did not want to hear of
another Hutu being killed, and that anyone who was not a member of the MRND
would be considered a Tutsi. 158 The witness stated that by these comments he
understood Ntagerura to mean that anyone who was not a member of the MRND was
to die. 159
121. Witness LAI stated that he and four others moved the weapons from the
helicopter to a vehicle under the supervision of Kabiligi and Munyakazi. 160 He
testified that the weapons, including guns, grenades, and ammunition, were in boxes,
which they opened at Munyakazi’s home. 161 He testified that the weapons were for
training and for killing people. 162 The witness testified that, in addition to firearms,
uniforms, and other items of clothing, he also saw Ntagerura give Munyakazi money
on 28 January 1994 for the purchase of weapons in the Congo and in Burundi. 163
122. Prosecution Witness LAJ testified that, on 28 January 1994, Ntagerura, two
unknown men wearing plain clothes, and a pilot wearing a military uniform arrived by
helicopter at the football field at the primary school in Bugarama sector. 164 According
to the witness, Munyakazi brought together all the Interahamwe and reservists to meet
the helicopter. 165 The witness stated that Ntagerura told those assembled that the
situation had become increasingly serious and that they had to be extremely vigilant at
all times because the enemy, the Tutsis who were killing the Hutus, could attack at
any time, and that if the enemy did come, nobody would survive. 166 The witness, who
acknowledged having read, signed, corrected, and understood his statements, stated
that he did not mention Ntagerura’s statements to the Prosecution investigators
because he was not asked about the issue. 167
123. Prosecution Witness LAJ testified that at the meeting, Ntagerura told
Munyakazi that he had a parcel for the Interahamwe and that four big and four small
cartons of weapons and other materials were unloaded from the helicopter. 168 The
witness stated that in one of the large cartons there were 300 bayonets. 169 The witness
testified that he did not see what was in the four small boxes. 170
124. Prosecution Witness LAP testified that Ntagerura, Kabiligi, and two pilots
visited the Bigogwe military camp in a helicopter before 9:30 a.m. on 28 January
1994.171 The witness testified that Interahamwe came to greet the helicopter and that
158
T. 17 September 2001 pp. 36-37; T. 17 September 2001 p. 43 (French) (“Il nous a fait comprendre
que l'ennemi était le Tutsi, et il a déclaré qu'il ne voulait plus entendre parler d'un Hutu quelconque
qui été tué.”).
159
T. 17 September 2001 p. 37.
160
T. 17 September 2001 pp. 38, 40-42, 44-47; T. 25 September 2001 p. 73.
161
T. 17 September 2001 pp. 43-44, 47; T. 18 September 2001 pp. 91-94.
162
T. 17 September 2001 p. 48.
163
T. 17 September 2001 p. 50; T. 18 September 2001 p. 94.
164
T. 23 October 2000 p. 32; T. 24 October 2000 pp. 20, 21, 25.
165
T. 23 October 2000 p. 32; T. 24 October 2000 p. 26.
166
T. 23 October 2000 pp. 33-34.
167
T. 24 October 2000 pp. 34-35, 37-39, 63; T. 25 October 2000 p. 42.
168
T. 23 October 2000 p. 35.
169
T. 23 October 2000 p. 37.
170
T. 23 October 2000 p. 36.
171
T. 11 September 2001 pp. 5-6, 67-68, 99, 103-104; T. 12 September 2001 pp. 24-25.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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Ntagerura informed them that he had brought equipment, including uniforms,
firearms, grenades, and ammunition. 172 The witness participated in unloading the
cartons of weapons and equipment, which were later distributed to the
Interahamwe.173 Witness LAP testified that he heard both Ntagerura and Kabiligi say
that they were heading to Cyangugu. 174
125. Ntagerura denied the allegations of Witnesses LAP, LAI, and LAJ that, on 28
January 1994, he was at the Bigogwe camp in Mutara commune of Gisenyi prefecture
or in Bugarama with Kabiligi. 175 He denied that he ever went to the Bigogwe camp. 176
Ntagerura explained that 28 January 1994 was a holiday and that he was then in
Kigali. 177 He testified that, in January 1994 during the implementation of the broadbased transitional government, it would have been unacceptable to the Tutsi members
of the MRND if an MRND government minister said the words “the enemy is the
Tutsi” and that this would have been reported in the press, resulting in administrative
and criminal sanctions initiated by the opposition parties and the head of the
government. 178 He also recalled that, on 18 March 1994, Twagiramungu, who was
also from Cyangugu, announced that Ntagerura would be a minister in the transitional
government, which would not have happened if he had said the words attributed to
him by the Prosecution witnesses. 179
126. Ntagerura Defence Witness Kabiligi testified that, on 28 January 1994, he did
not visit the Bigogwe camp or Bugarama in a helicopter with Ntagerura to supply
arms to the Interahamwe.180 Kabiligi testified that, between 27 January and 8
February 1994, he was in Cairo, Egypt, on a government mission concerning officer
training which was approved by an order signed by the President on 19 January
1994.181 On his return to Kigali, on 10 February 1994, he submitted a report addressed
to the President of Rwanda concerning the mission. 182 Kabiligi testified that he
travelled to Egypt on a diplomatic passport, which he returned to the Ministry of
Foreign Affairs in Rwanda. 183 Kabiligi admitted that after leaving Rwanda he
obtained false passports and travel documents because he was a refugee and the
Rwandan government was seeking to arrest him. 184
127. Defence Witnesses DBH, T12H, T5H, and ZJH testified that they did not see
or hear of the arrival of Ntagerura in Bugarama by helicopter on 28 January 1994. 185
Witnesses T12H and T5H testified that Ntagerura had once come to Bugarama in a
172
T. 11 September 2001 pp. 7, 78, 82, 98; T. 12 September 2001 pp. 31-32.
T. 11 September 2001 pp. 76, 78-80, 84-86, 90-93, 96.
174
T. 11 September 2001 p. 23; T. 12 September 2001 pp. 26-27.
175
T. 18 July 2002 pp. 8, 27.
176
T. 18 July 2002 p. 27.
177
T. 18 July 2002 pp. 11-12.
178
T. 18 July 2002 pp. 12-13.
179
T. 18 July 2002 pp. 13-14.
180
T. 25 March 2002 pp. 20-21.
181
T. 25 March 2002 pp. 9-11, 34.
182
T. 25 March 2002 pp. 12-19; Ntagerura Defence Exhibit 5.
183
T. 25 March 2002 pp. 34-36.
184
T. 25 March 2002 pp. 114-127, 133-135, 138-146.
185
T. 7 March 2002 pp. 32, 35-36; T. 11 March 2002 pp. 84-85, 128; T. 12 March 2002 pp. 3-4, 18, 8990, 110.
173
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34
helicopter for a ceremony inaugurating the second furnace at the Cimerwa cement
factory. 186
128. Bagambiki denied having a relationship with Munyakazi and stated that he did
not attend a meeting at Munyakazi’s home on 5 January 1994 to announce a visit by
Ntagerura. 187 Bagambiki also stated that he did not bring weapons to Munyakazi in
Bugarama, Cyangugu, on 28 January 1994 by helicopter with Ntagerura, Kabiligi, and
Bavugamenshi. 188
(ii) Findings
129. The Chamber has carefully considered the evidence of Witnesses LAI, LAJ,
and LAP concerning the alleged events of 28 January 1994. The Chamber accepts the
corroborated testimony of Witness Kabiligi that he was in Egypt on that date.
Therefore, the Chamber finds that these events did not occur in the manner alleged by
Witnesses LAI and LAP, who both gave well-developed explanations for their ability
to observe and identify Kabiligi as one of the people who on that day had arrived in a
helicopter in Bugarama and Bigogwe, respectively. The Chamber finds that this
inconsistency draws the credibility and reliability of their evidence into question.
130. Witness LAJ’s signed statement to Prosecution investigators, which was read
into evidence, indicates that from January to 7 April 1994 he stayed at home because
he had been wounded. He made no mention in his prior statement of the alleged 28
January 1994 distribution of weapons. 189 During his testimony, the witness denied that
his injury prevented him from leaving his house between January and April 1994,
explaining that he was unable only to work. 190 The Chamber is not convinced by this
explanation.
131. The Chamber recalls that Witnesses LAI, LAJ, and LAP are alleged
accomplices of the accused and, as such, views their testimonies with caution. The
Chamber further observes that Witnesses LAI, LAJ, and LAP know each other and
that they were detained together in Rwanda. 191 Given the finding that Kabiligi was not
present at the alleged distribution of weapons in Bugarama on 28 January 1994 and
the inconsistency between Witness LAJ’s prior statement and his testimony, the
Chamber acknowledges the possibility that the testimonies of Witnesses LAI, LAJ,
and LAP about this event may have been fabricated.
132. For the foregoing reasons, the Chamber finds that Witnesses LAI, LAJ, and
LAP are not credible in relation to the allegations of meetings and arms distributions
on 28 January 1994, and, accordingly, finds that the Prosecution failed to prove
Ntagerura’s participation in these events beyond a reasonable doubt.
186
T. 12 March 2002 pp. 5, 91.
T. 1 April 2003 pp. 47, 48.
188
T. 1 April 2003 p. 48.
189
T. 24 October 2000 pp. 34-35, 37-39.
190
T. 24 October 2000 pp. 29-37.
191
T. 12 September 2001 pp. 49, 51-52; T. 25 September 2001 pp. 37, 41-49, 51, 54, 56; T. 26
September 2001 pp. 6-7.
187
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h. Hotel Ituze, 18 March 1994
(i) Allegations
133. Prosecution Witness LAJ testified that he saw Ntagerura at a meeting at Hotel
Ituze around 18 March 1994. 192 According to the witness, after being welcomed by
Bagambiki, Ntagerura took the floor and stated that the Hutus had almost all been
exterminated and that those gathered had to be vigilant so that the situation would be
brought under control. 193 The witness recalled that Ntagerura said that if ever another
Hutu in authority were to be killed in the commune, then all Tutsis should be looked
for and killed. 194 The witness failed to mention Ntagerura’s alleged utterances in his
24 June and 10 July 1999 statements to Prosecution investigators, explaining that the
investigators did not ask about this issue. 195
134. Ntagerura denied going to the Hotel Ituze, on 18 March 1994, and testified
that he was in Kigali the entire day preparing documents related to the hand-over of
the ministry. 196 He denied that he had ever, at any time or place, said anything similar
to “the Hutu are practically exterminated…so you must remain vigilant”, as alleged
by Witness LAJ. 197 He explained that there would have been serious consequences for
an MRND minister who said such things at a public meeting at that time. 198
Moreover, he noted that UNAMIR civil police, CIVILPOL, who were deployed in
Cyangugu from mid-February 1994, were living in the Ituze Hotel and that their
mission was to ensure the implementation of the broad-based transitional
institutions. 199
(ii) Findings
135. The Chamber recalls that Witness LAJ is an alleged accomplice of the accused
and, as such, views his testimony with caution. Witness LAJ was the only witness to
testify about this event. The Chamber notes that Witness LAJ’s credibility has been
called into question in relation to other allegations. 200 The Chamber recalls that his
witness statement to the Prosecution investigators indicates that he did not leave his
home because of an injury between January and April 1994. The Chamber also notes
that the witness did not mention Ntagerura’s participation in a meeting at Hotel Ituze
in his witness statement. The Chamber is not willing to rely on this uncorroborated
testimony and, accordingly, finds that it has not been proven beyond a reasonable
doubt that Ntagerura participated in the meeting.
192
T. 23 October 2000 pp. 38-41; T. 24 October 2000 pp. 9, 11.
T. 23 October 2000 pp. 40-41; T. 25 October 2000 p. 12.
194
T. 23 October 2000 p. 43.
195
T. 24 October 2000 pp. 34-35, 37-39, 63.
196
T. 18 July 2002 pp. 14, 15; T. 1 October 2002 pp. 96-101.
197
T. 18 July 2002 pp. 16-17.
198
T. 18 July 2002 p. 17.
199
T. 18 July 2002 pp. 18-19.
200
See supra paras 129-132.
193
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36
Kanyamuhanda’s House, 10 April 1994
(i) Allegations
136. Witness LAH testified that, on 10 April 1994, at Kanyamuhanda’s house,
Ntagerura promised the Interahamwe that they would be paid 1,000 Rwandese Francs
in exchange for identity cards of Tutsis whom they had killed. 201
137. Ntagerura testified that the only occasion on which he ever visited
Kanyamuhanda’s home was after an MRND meeting in November 1993. 202 He
specifically denied visiting the house after 6 April 1994 and ever telling people to
give identity cards to Kanyamuhanda. 203
138. Ntagerura testified that from 10 to 12 April 1994 he was on an official
government mission to accompany the remains of the President of Burundi and of the
two Burundian ministers who were killed in the plane crash with Rwandan President
Habyarimana on 6 April 1994. 204 Ntagerura testified that his passport, Ntagerura
Defence Exhibit 27, bears a Rwandan exit stamp dated 10 April 1994, which was
placed in his passport at the Rwanda/Burundi border. 205 He explained that his passport
does not bear an entry stamp of the Burundian authorities because of the agreement
between Great Lakes countries to permit entry on a single country’s stamp when the
traveller remains within the region. 206 Ntagerura testified that he stayed at the
Rwandan ambassador’s residence in Bujumbura during the night of 10 April 1994. 207
Ntagerura testified that he returned to Rwanda on 11 April 1994, arriving in Butare at
11:00 p.m., and that he rejoined the government in Gitarama at around 5:00 p.m. on
12 April 1994. 208
139. Ntagerura’s wife, Defence Witness Leoncie Bongwa, testified that her
husband was sworn in as a member of the interim government on 9 April 1994 and
that he left Kigali on 10 April 1994 to accompany the remains of the Burundian
president to Bujumbura, Burundi. 209 She testified that, on 12 April 1994, she and her
family were flown by a French military plane to Bujumbura, where they stayed from
12 to 14 April 1994. 210 Witness Bongwa stated that while she was in Bujumbura she
met the Rwandan ambassador to Burundi, who told her that her husband Ntagerura
had left Bujumbura the previous day. 211
140. Defence Witness BSH testified that he met Ntagerura in Burundi when the
Minister was leading a delegation accompanying the body of Burundi’s President to
201
T. 10 October 2000 pp. 70-71; T. 11 October 2000 pp. 28-29, 34.
T. 17 July 2002 pp. 86-87.
203
T. 17 July 2002 p. 91.
204
T. 17 July 2002 pp. 93-98, 102; T. 24 July 2002 pp. 39-41; T. 30 September 2002 pp. 5, 7-8; T. 2
October 2002 p. 50; DAN 27, excerpted as DAN 28, p. 6.
205
T. 17 July 2002 p. 97.
206
T. 17 July 2002 p. 98; T. 30 September 2002 pp. 18, 43, 52; T. 2 October 2002 pp. 24-26, 44-49;
DAN 86.
207
T. 22 July 2002 p. 36; T. 24 July 2002 p. 44; T. 30 September 2002 pp. 13, 15.
208
T. 24 July 2002 pp. 41, 44-45.
209
T. 20 May 2002 pp. 20-21, 41.
210
T. 20 May 2002 pp. 23-25.
211
T. 20 May 2002 pp. 25-26.
202
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37
Bujumbura. 212 He stated that he did not remember the exact date but estimated that the
delegation arrived in Burundi on 10 April 1994 and left in the evening of the
following day. 213
(ii) Findings
141. The Chamber recalls that Witness LAH is an alleged accomplice of the
accused and, as such, views his testimony with caution. Witness LAH is the only
witness to testify about this alleged meeting. The Trial Chamber has considered
Witness LAH’s testimony in light of the evidence provided by Defence Witness BLB,
who testified that Witness LAH made and then recanted false accusations against him
in relation to serious charges before the Rwandan courts. 214 The Chamber is of the
view that this evidence calls Witness LAH’s credibility into question. The Chamber
has also considered the evidence proffered by the Defence in support of Ntagerura’s
alibi for this date. Taking the totality of the evidence into account, the Chamber is not
satisfied beyond a reasonable doubt that Ntagerura participated in a meeting at
Kanyamuhanda’s home on 10 April 1994.
j. Cyangugu, 11 April 1994
(i) Allegations
142. Prosecution Witness LC testified that, on 11 or 12 April 1994 at approximately
11:00 a.m., he saw Ntagerura enter the Cyangugu prefecture office and leave fifteen
to twenty minutes later. 215 In cross-examination the witness stated that he was not
certain about the date of this meeting, and then explained that Ntagerura’s visit could
have occurred between April and June 1994. 216 When asked to explain his reference
point for the time frame of 11 or 12 April 1994, the witness stated that he knew it was
around the first week of April because that was when Ntagerura came back from
Bukavu, and it was a few days after the witness started a new work assignment. 217
143. Ntagerura explained that, on 10 April 1994, he accompanied the remains of
the Burundian President and ministers to Bujumbura, which is supported and
corroborated by his passport and the testimonies of Defence Witnesses Bongwa and
BSH. 218
(ii) Findings
144. The Chamber finds that the evidence of Witness LC is vague and inconclusive.
Witness LC testified that he observed Ntagerura entering and exiting the prefectural
office. He did not testify that Ntagerura met with any person in the office and offered
no evidence about the substance of any meeting in which Ntagerura might have taken
212
T. 28 March 2002 pp. 34-35, 50.
T. 28 March 2002 pp. 35-36, 41, 44, 51.
214
T. 19 February 2003 pp. 29-33, 40-42; T. 20 February 2003 p. 2; Bagambiki Defence Exhibits 8, 9.
215
T. 9 May 2001 pp. 63, 102, 104.
216
T. 9 May 2001 pp. 102, 106.
217
T. 9 May 2001 pp. 107-108; T. 10 May 2001 p. 33.
218
See supra paras. 137-141
213
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part. Witness LC was unsure of the date of this alleged event, placing it somewhere
between April and June 1994. Moreover, the evidence of Witness LC is further
undermined by the reliable and corroborated evidence of Ntagerura’s presence in
Bujumbura from 10 to 11 April 1994. The Chamber accordingly finds that the
evidence is insufficient to prove beyond a reasonable doubt that Ntagerura attended a
meeting at the prefectural office in Cyangugu on 11 April 1994.
k. Findings in Respect of Paragraphs 9.1, 9.2, and 9.3 of the Ntagerura Indictment
145. Upon reviewing the evidence related to paragraphs 9.1, 9.2, and 9.3 of the
Ntagerura Indictment, the Chamber has found beyond a reasonable doubt that
Ntagerura attended and addressed a meeting at the Bushenge market on 7 February
1993. During his address, Ntagerura made statements about repulsing the Inkotanyi
and Inyenzi. The Prosecutor did not, however, establish beyond a reasonable doubt
that Ntagerura conducted this meeting as alleged in paragraph 9.1 of the Ntagerura
Indictment. The 7 February 1993 meeting in Bushenge has no relevance to the
allegations in 9.2 of the Indictment. The Prosecutor also failed to prove that the
purpose of the meeting was to organize, prepare, and encourage the genocide as
alleged in paragraph 9.3. Consequently, the Chamber finds that the Prosecutor did not
prove the allegations made in paragraphs 9.1, 9.2, and 9.3 of the Ntagerura Indictment
beyond a reasonable doubt.
3. Paragraphs 14.1, 14.3, 17, 18, and 19 of the Ntagerura Indictment
146. The Chamber will consider the evidence tendered to support paragraphs 14.1,
14.3, 17, 18, and 19 together.
147.
Paragraphs 14.1, 14.3, 17, 18, and 19 read:
14.1. From 1 January to 31 July 1994, ANDRÉ NTAGERURA was often seen
in the company of, and publicly expressed his support for, Yussuf
MUNYAKAZI and the Interahamwe in Cyangugu préfecture, specifically in
Bugarama commune.
14.3. From 1 January to 31 July 1994, ANDRÉ NTAGERURA travelled
throughout Cyangugu préfecture, often accompanied by Préfet Emmanuel
BAGAMBIKI and Yussuf MUNYAKAZI, to monitor the activities of the
Interahamwe and verify that the orders to kill the Tutsis and all political
opponents had been carried out.
17. The murder of civilians in Cyangugu started in the course of the month of
February 1994, and was led and perpetrated by the Interahamwe and other
groups.
18. From early April through July 1994, attacks on Tutsi civilians occurred in
Cyangugu préfecture and resulted in the death of an estimated one hundred
thousand or more people and countless injured.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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19. During the period of these attacks, ANDRÉ NTAGERURA continued to
remain active in Cyangugu préfecture and acted as a supervisor. On one occasion
after April 1994, he attended a meeting chaired by the Interim President of the
Republic of Rwanda, Théodore SINDIKUBWABO, who congratulated the
community on killing the Tutsis.
148. Paragraphs 17 and 18 broadly refer to the murder of and attacks on civilians in
Cyangugu perpetrated from February through July 1994. The Chamber will describe
evidence relating to those events in greater detail in section II.B.5. and focuses here
only on the evidence closely related to Ntagerura’s alleged activities in Cyangugu
during 1994.
149. The Chamber is mindful that the Prosecution asserts that several alleged
events support paragraphs 14.1, 14.3, 17, 18, and 19, including the February 1993
meeting in Bushenge market, the June 1993 meeting at Hotel Ituze, the October 1993
meeting in Gatare, a visit by Ntagerura to the Cimerwa factory in Bugarama in
December 1993, and a visit by Ntagerura to Buga rama on 28 January 1994. 219 All but
the last of these alleged events fall outside the temporal scope of paragraphs 14.1,
14.3, 17, 18, and 19.220 The Chamber has previously considered the evidence
concerning Ntagerura’s alleged visit to Bugarama in January 1994 and has found that
his participation in that event was not proven beyond a reasonable doubt. 221 Thus, the
Chamber will not consider the evidence of these events here.
a. Allegations
150. Prosecution Witness LC, a former driver for the Cyangugu prefecture, testified
that Ntagerura met with Bagambiki in Cyangugu on at least five occasions between
April and June 1994, which often corresponded with Ntagerura’s family visits. 222 The
witness stated that Ntagerura briefly visited the prefecture office on 11 or 12 April
1994, on another occasion two to three weeks later, and on about three other
occasions in May 1994. 223 The witness testified that he could neither recall the exact
date of each meeting, nor did he know what Ntagerura and Bagambiki discussed. 224
151. Prosecution Witness LAI testified that, on 7 April 1994, he drove with Yussuf
Munyakazi to Elias Bakundukize’s petrol station after Munyakazi was informed that
he had an urgent telephone message there. 225 The witness stated that Munyakazi spoke
to someone on Bakundukize’s phone. 226 According to the witness, after the call,
Munyakazi organized a meeting with the Interahamwe where he told them that
219
Prosecutor’s Closing Brief pp. 49-64.
The Chamber notes that all but one of these events, Ntagerura’s alleged visit to the Cimerwa factory
in Bugarama in Decemb er 1993, were previously considered in connection with paragraphs 9.1 through
9.3 of the Ntagerura Indictment. See supra paras. 96-113, 119-132. The Chamber has considered the
alleged visit to the Cimerwa factory in connection with its assessment of the credibility and reliability
of Prosecution Witness LAK. See infra para. 484.
221
See supra paras 129-132.
222
T. 9 May 2001 pp. 13, 62-63, 66, 67; T. 10 May 2001 p. 22.
223
T. 9 May 2001 pp. 62-63, 66, 90, 94, 104; T. 10 May 2001 pp. 12-13, 23, 27, 28-29.
224
T. 9 May 2001 pp. 63, 66, 90, 93; T. 10 May 2001 pp. 12-13, 24.
225
T. 17 September 2001 pp. 26, 89; T. 18 September 2001 pp. 95, 96.
226
T. 17 September 2001 p. 26; T. 18 September 2001 p. 96.
220
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Ntagerura had authorised the killing of all Tutsis, beginning with the most
educated. 227
152. Witness LAI stated that Ntagerura functioned like a boss for Munyakazi. 228 As
an example of this assertion, the witness testified that Munyakazi waged political
campaigns for Ntagerura while Ntagerura was a member of parliament. 229 Moreover,
Witness LAI testified that he attended night meetings convened by Ntagerura in
Karengera at the home of Nvuningoma at which Ntagerura gave orders to Munyakazi
to kill Faustin Twagirimungu. 230 The witness recalled seeing photographs of President
Habyarimana, Munyakazi, Ntagerura, and others in a November 1992 issue of the
government publication Imvaho with the caption “we are Interahamwe” from which
the witness concluded that Ntagerura was a member of the Interahamwe.231
153. Prosecution Witness MZ testified that he sought refuge behind a latrine in the
tea plantation near the home and bar of Francois Habimana, also known as Rojigo, in
Kimpundu cellule, Nyamuhunga sector, Karengera commune from 13 through 18
April 1994. 232 The witness stated that, on 14 April 1994, he heard Joseph Kabatsi, the
commune’s agricultural officer, speaking through a megaphone and telling people to
leave their hiding places because security had been restored. 233 The witness stated that
someone told him that several people left their hiding places and were killed on 17 or
18 April 1994. 234
154. Witness MZ explained that, on 17 April 1994, while he was in his hiding place
he heard a noise, and he thought that two vehicles had arrived at Habimana’s bar. 235
The witness stated that he heard Kabatsi say that André Ntagerura, the Minister for
Transport and Communications, had just arrived. 236 According to the witness, he then
heard Ntagerura address the crowd and say:
You know that we have tried to negotiate with the Inkotanyi, but in vain, and you
know that they are the people who killed the head of state. From today,
henceforth, you have to hunt down the enemy who are the Tutsi, wherever they
are, and even a baby who was born the day before should be killed. I no longer
want to hear of any Tutsis still living on this hill. 237
The witness testified that Ntagerura next introduced Jean Ndemeye, a native of the
cellule, who was the deputy director of the airport. 238
227
T. 17 September 2001 p. 26; T. 18 September 2001 pp. 97, 100.
T. 26 September 2001 p. 27.
229
T. 26 September 2001 pp. 38-39.
230
T. 26 September 2001 pp. 70-71, 73-74.
231
T. 17 September 2001 p. 20; T. 18 September 2001 p. 33.
232
T. 23 January 2001 pp. 27-29, 34, 38, 39, 45, 65, 70, 78-79, 92. The Chamber considers Rojigo to be
the same person referred to by Prosecution Witness LAB as Rujigo.
233
T. 23 January 2001 pp. 23, 30-31, 72-73.
234
T. 23 January 2001 pp. 31-32, 34.
235
T. 23 January 2001 p. 32.
236
T. 23 January 2001 pp. 32, 85-86.
237
T. 23 January 2001 p. 32.
238
T. 23 January 2001 p. 33.
228
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155. Witness MZ testified that he did not see what happened during this meeting
because he was hiding and if he had stood up, he would have been killed. 239 The
witness stated that the speakers did not use a megaphone and that they were half way
to the bar, which he estimated was ten meters away from his hiding place. 240
According to the witness, after Ntagerura spoke, the crowd committed criminal acts
and killings. 241 The witness stated that he did not see anyone being killed or
mistreated but noted that he saw corpses when he left his hiding place on 18 April
1994.242
156. Prosecution Witness LAB testified that a man named Rujigo, who purportedly
led a group of killers in Nyamuhunga sector of Karengera commune, prevented
Eugene Karekezi from killing a number of Tutsi women and children by hiding them
in drinking places in the area. 243 According to Witness LAB, after being repulsed by
Rujigo, Karekezi went to Kigali and returned by helicopter with Ntagerura at the “end
of April just before the beginning of May”, which the witness agreed in crossexamination was in the last days of April. 244 The witness testified that Karekezi went
into the Shagasha tea factory and told the workers that they had to take care of the
“Inyenzis” in Nyamuhunga. 245 The witness stated that Karekezi then went outside
where he joined Ntagerura and Callixte Nsabimana, the factory manager. 246 Karekezi
subsequently returned to the factory to inform the workers that Nsabimana had told
them to stop working and to kill the “Inyenzis”. 247
157. Witness LAB stated that all of the factory workers, armed with guns,
machetes, and clubs, ran to Nyamuhunga and began killing the women and children
hidden there. 248 The witness stated that later, when Ntagerura and Nsabimana arrived
at Nyamuhunga, the workers and local inhabitants were convened and asked how their
“work” was progressing. 249 According to the witness, those gathered answered that
the men had been killed and that only the women protected by Rujigo remained. 250
The witness stated that Ntagerura then told the crowd to kill them immediately. 251 The
witness testified that Ntagerura and Nsabimana were still present when the killings
began. 252
158. Witness LAB testified that, on a later date at the end of April 1994, he saw
Ntagerura come again to the Shagasha tea factory in a white Suzuki. 253 According to
the witness, Nsabimana had spared and protected four Tutsis at the factory, namely
239
T. 23 January 2001 pp. 33-34, 78-79.
T. 23 January 2001 pp. 33, 83-85.
241
T. 23 January 2001 p. 34.
242
T. 23 January 2001 pp. 34, 38, 79.
243
T. 24 January 2001 pp. 22-24. The Chamber considers Rujigo to be the same person referred to by
Prosecution Witness MZ as Rojigo.
244
T. 24 January 2001 p. 22; T. 25 January 2001 p. 55.
245
T. 24 January 2001 pp. 23-24.
246
T. 24 January 2001 p. 24.
247
T. 24 January 2001 p. 24.
248
T. 24 January 2001 pp. 24-25.
249
T. 24 January 2001 p. 26.
250
T. 24 January 2001 pp. 26-27.
251
T. 24 January 2001 p. 27.
252
T. 24 January 2001 p. 27.
253
T. 24 January 2001 p. 30; T. 25 January 2001 pp. 53, 55.
240
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Mukakalisa, Majyembere, Bizuru, as well as the factory accountant, and hidden them
in a house near the Mabanda road block. 254 The witness stated that Nsabimana asked
Ntagerura how to prevent an attack on the factory because of the four Tutsis under
Nsabimana’s protection. 255 According to the witness, Ntagerura told Nsabimana that
“those who were attacking the country were people who had managed to escape in
1959 and it was, therefore, possible that those people who are the people who were
being protected, and they could launch attacks later so they had to be killed.”256 The
witness testified that Nsabimana then came down to the Mabanda road block with
Ntagerura and told the workers manning it to kill the four Tutsis at the tea factory. 257
The witness acknowledged not being present when Ntagerura told Nsabimana that the
four Tutsis should be killed, and explained that Nsabimana told the workers that
“someone more important than him” had ordered the killing. 258 The witness testified
that the four were then killed. 259
159. Prosecution Witness Guichaoua testified that Ntagerura wielded a “monopoly”
on political power in Cyangugu, explaining that Ntagerura represented the
government authority in Cyangugu and spoke on behalf of the interim government. 260
Referring to his report on the political structures in Cyangugu, the witness stated that,
as a minister, Ntagerura had responsibility for coordinating matters in his prefecture
and that Ntagerura was the only figure with such responsibility in Cyangugu. 261 The
witness noted that though Ntagerura went abroad to negotiate for the government,
Ntagerura was in Rwanda during the two periods when “the work had to be done”. 262
Guichaoua also testified that the interim President Sindikubwabo conducted a meeting
in June 1994 at the “house of MRND” in Cyangugu. 263 The witness stated that at this
meeting Sindikubwabo spoke out against people who had killed Hutus in the
opposition. 264
160. Ntagerura acknowledged knowing Eugene Karekezi, Joseph Kabatsi, and Jean
Ndemeye but testified that he did not go to, or order killings at, Nyamuhunga sector or
the Shagasha tea factory on 18 April or at any other time at the end of April or
beginning of May 1994. 265 Ntagerura explained that, on 17 and 18 April 1994, he was
in Gitarama attending a cabinet meeting and preparing for a mission to negotiate a
cease-fire with the RPF. 266 He stated that he left Gitarama for Gisenyi on 22 April
1994 to wait for UNAMIR to arrange a flight for his mission. 267 Ntagerura attested to
254
T. 24 January 2001 pp. 29-30; T. 25 January 2001 pp. 52-53.
T. 24 January 2001 p. 30.
256
T. 24 January 2001 p. 30.
257
T. 24 January 2001 p. 30; T. 25 January 2001 p. 54.
258
T. 24 January 2001 p. 31; T. 25 January 2001 p. 54.
259
T. 24 January 2001 pp. 31-32; T. 25 January 2001 pp. 54-55.
260
T. 19 September 2001 pp. 66, 77.
261
T. 19 September 2001 pp. 66-67. See also Prosecution Exhibit 66. The witness supported this
assertion by pointing to a Ministry of the Interior document listing Ntagerura as the member of the de
facto MRND party leadership in Cyangugu. T. 20 September 2001 pp. 77, 79-80, 92-93. See also The
Republic of Rwanda: Approved Political Parties, Ntagerura Defence Exhibit 3.
262
T. 19 September 2001 pp. 69-71, 83-84, 92.
263
T. 21 September 2001 p. 84.
264
T. 21 September 2001 pp. 84-85.
265
T. 17 July 2002 p. 117; T. 18 July 2002 pp. 5-7.
266
T. 25 July 2002 p. 6.
267
T. 17 July 2002 p. 135; T. 24 July 2002 pp. 45-46.
255
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leaving Gisenyi on 23 April 1994 for his mission first to Goma, Zaire, and then via
Kenya to Dar es Salaam and Arusha, Tanzania, returning to Rwanda on 12 May
1994.268
161. Ntagerura testified that he attended a pacification meeting with the president
on 17 May 1994 in Cyangugu. 269 He stated that Bagambiki was at the meeting,
representing the Minister of Interior, as were the Minister of Industry and Trade and
various bourgmestres including those of Kamembe and Karengera communes. 270 He
stated that Bagambiki referred to killings but was gratified that the situation had
normalised. 271 Ntagerura testified that during his visit Bagambiki stated that he had
made efforts to stop the killings, but acknowledged that he and Bagambiki did not
have time to talk about the details. 272
162. Ntagerura Defence Witness Nkurunziza, the secretary general of the
government as of 6 April 1994, testified that Ntagerura was present at cabinet
meetings held on 16 and 17 April 1994 at Murambi Hill in Gitarama. 273 He explained
that Ntagerura was abroad on mission during the other cabinet meetings held on 27
and 28 April 1994. 274 Nkurunziza testified that Ntagerura left Rwanda on 22 April
1994 for the Congo and that Daniel Mbangura visited Cyangugu in place of
Ntagerura. 275 The witness stated that Ntagerura did not travel to Cyangugu before
going to Zaire. 276 Nkurunziza testified that, on 15 May 1994, the president, prime
minister, Ntagerura, and Murego, who was the secretary general of the MDR, all
visited Cyangugu to speak to the people about the peace process. 277 The witness
testified that the interim president called people killing others “criminals” and said
that they deserved to be punished, although the government did not have the resources
to deal with such punishment. 278
163. Ntagerura Defence Witness Kanyarushoki, the former Rwandan Ambassador
to Uganda, testified that between 2 and 5 May 1994, he participated in a ceasefire
negotiation along with Ntagerura in Arusha, Tanzania. 279
164. Ntagerura Defence Witness BZFH, who lived near the Shagasha tea factory, 280
testified that he had to pass through a roadblock manned by two gendarmes and
former soldiers to buy provisions at the shops at Mabanda. 281 He stated that he did not
see anyone at the roadblock with firearms but heard that the two gendarmes carried
268
T. 17 July 2002 pp. 123-128, 131.
T. 1 October 2002 p. 50.
270
T. 1 October 2002 pp. 51-52.
271
T. 1 October 2002 p. 52.
272
T. 1 October 2002 pp. 52-58.
273
T. 28 May 2002 pp. 30-31, 48, 51.
274
T. 28 May 2002 pp. 50-51; T. 29 May 2002 p. 31.
275
T. 29 May 2002 pp. 31-32.
276
T. 29 May 2002 p. 32.
277
T. 29 May 2002 pp. 67-68.
278
T. 29 May 2002 p. 111.
279
T. 21 March 2002 pp. 24-25, 28, 57-59, 64, 96, 102, 110, 111.
280
T. 14 March 2002 p. 21.
281
T. 14 March 2002 p. 29.
269
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44
weapons. 282 He testified that he never heard of anyone killed at the roadblock and did
not hear a scream or a gunshot at the roadblock. 283
165. Witness BZFH stated that he had heard, but did not see, that Tutsis hid in the
tea plantations near the factory between March and July 1994. 284 Witness BZFH
stated that he did not see or hear about a visit by Ntagerura to Gisuma commune
between March and 17 July 1994. 285 The witness, who stated that he had visited the
Shagasha tea factory several times and was familiar with both the factory’s premises
and its director, testified that in late April 1994 he did not see or hear that work had
stopped at the factory and that factory employees accompanied Ntagerura to the
Nyamuhunga sector. 286 The witness testified that if such a work stoppage had
occurred, the factory employees who are the witness’s neighbours would have told
him about it. 287
166. Witness BZFH stated that during late April 1994 he did not see or hear about
the landing of a helicopter in the area or that Ntagerura, accompanied by Nsabimana,
led an attack against Tutsis. 288 He stated that he was certain a helicopter had not
landed during this period at the factory which was near his home because he
undoubtedly would have heard the noise. 289
167. Ntagerura Defence Witness BZJH testified that he did not see or hear about a
meeting in Kimpundu held by Ntagerura, Kabatsi, and Demié and that he probably
would have attended such a meeting if it had occurred given the importance of the
alleged convenors. 290 The witness stated that he never heard of Ntagerura going to
Nyamuhunga sector with Karekezi and the director of the Shagasha tea factory to
order the killing of Tutsis. 291
168. Bagambiki stated that he convened a prefectural conference on 17 May 1994
at the former MRND Palace on Mount Cyangugu when President Theodore
Sindikubwabo visited Cyangugu to deliver a pacification message, emphasising peace
and reconciliation and the prosecution of those responsible for the “unfortunate”
“troubles”. 292 Bagambiki noted that the prefectural conference included hundreds of
people, including all conseillers, heads of cooperatives and production units,
commune and prefectural party representatives, representatives of religious groups,
and representatives from the national level. 293 Bagambiki stated that at the meeting he
explained the security situation and the various initiatives that had been adopted in the
prefecture to restore peace and tranquillity. 294 Bagambiki testified that he further
282
T. 14 March 2002 p. 28.
T. 14 March 2002 p. 29.
284
T. 13 March 2002 p. 120; T. 14 March 2002 pp. 29-30.
285
T. 13 March 2002 pp. 116-117.
286
T. 13 March 2002 pp. 114-118; T. 14 March 2002 pp. 15, 22.
287
T. 13 March 2002 p. 117; T. 14 March 2002 p. 23.
288
T. 13 March 2002 pp. 116-117; T. 14 March 2002 pp. 16, 21.
289
T. 14 March 2002 pp. 22-23, 60.
290
T. 13 March 2002 p. 73.
291
T. 13 March 2002 pp. 74, 75.
292
T. 27 March 2003 pp. 33, 34; T. 2 April 2003 p. 19.
293
T. 27 March 2003 p. 34.
294
T. 27 March 2003 p. 34.
283
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noted at the meeting that as of 17 May 1994 the massacres had ceased and that the
trouble was limited to a few scattered “problems”. 295 Bagambiki noted that Ntagerura
and Daniel Mbangura accompanied the president to the meeting. 296
169. Ntagerura Defence Witness DBH recalled that he attended a “pacification
meeting” chaired by President Sindikubwabo at the MRND Palace in Cyangugu. 297
He testified that Ntagerura, and all the Cyangugu sub-prefects, bourgmestres, and
department heads were in attendance at the meeting, as was the public. 298
170. Ntagerura Defence Witness ZFH, who knew Ntagerura and his wife well,
stated that he did not personally see or meet with Ntagerura between 6 April and midJuly 1994, but that he heard that Ntagerura visited Cyangugu twice during the period,
first around mid-May and then second at the end of June 1994. 299
171. Ntagerura Defence Witness BAH testified that she saw Ntagerura in May 1994
in Cyangugu, noting that for two days and two nights Ntagerura stayed at the Home
Saint François to visit members of his family, including his spouse, his three children,
and his Tutsi mother- in- law, who were staying there. 300 She testified that she
remembered the month, but not the date, of this visit because it coincided with
Sindikubwabo’s visit. 301
172. Ntagerura Defence Witness Leonard Brochu, a defence investigator and a
veteran of the police force in Montreal, Canada, 302 testified that, on 25 June 2002, he
traveled to Kimpundu cellule in Nyamuhunga sector, Karengera commune, to
measure the distance between Prosecution Witness MZ’s approximate hiding place in
the tea plantation and the place where Ntagerura allegedly spoke on 17 April 1994. 303
According to Brochu, the distance from an electric pylon, which represented the area
where Witness MZ placed the speakers to the back of the house of Francois
Habimana, behind whose latrine Witness MZ hid, equalled fifty- four metres. 304
Brochu estimated a margin of error of two to three meters but agreed that it could be
eight to ten metres. 305
b. Findings
173. The Chamber finds that Prosecution Witness LC did not reliably establish
when Ntagerura visited Cyangugu because the witness repeatedly conceded his lack
of certainty about specific dates. The Chamber emphasises that Witness LC was not
295
T. 27 March 2003 p. 34.
T. 27 March 2003 p. 34; T. 2 April 2003 p. 19.
297
T. 7 March 2002 pp. 37, 143.
298
T. 7 March 2002 pp. 143-144.
299
T. 11 March 2002 pp. 11, 12, 16, 18, 30.
300
T. 26 March 2002 pp. 49-53.
301
T. 26 March 2002 p. 55.
302
T. 2 July 2002 pp. 107, 132-134.
303
T. 2 July 2002 pp. 108, 109, 126-127; Ntagerura’s Closing Brief, para. 500; Ntagerura Defence
Exhibits 9-11; Prosecution Exhibit 45 (images at 11.00, 11.20, 11.30).
304
T. 2 July 2002 p. 126.
305
T. 2 July 2002 pp. 126-127, 138-140.
296
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present during any of the alleged brief meetings between Bagambiki and Ntagerura
and thus cannot confirm whether they in fact met and, if so, what they discussed.
174. The Chamber recalls that Witness LAI is an alleged accomplice of the accused
and, as such, views his testimony with caution. The Chamber does not accept Witness
LAI’s testimony that Ntagerura issued an order to Munyakazi by telephone on 7 April
1994 to begin the killings in Cyangugu. The Chamber recalls that Witness LAI did not
participate in the alleged telephone conversation on 7 April 1994 and only heard
Munyakazi state at a meeting after the telephone call that Ntagerura had issued such
an order. Therefore, Witness LAI was not in a position to confirm that such an order
emanated from Ntagerura. The Chamber also does not accept Witness LAI’s
assertions of Ntagerura’s public support for Munyakazi and the Interahamwe in
Cyangugu, which the witness based on Munyakazi’s alleged support for Ntagerura in
parliamentary elections and Ntagerura’s alleged appearance in the Imvaho publication
with the caption “we are Interahamwe”. Witness LAI did not adequately substantiate
these assertions. Moreover, the Chamber is not convinced, based on the limited detail
provided by Witness LAI, that these claims, even if true, would sufficiently establish
that Ntagerura would have supported Munyakazi or the Interahamwe during the
events in Cyangugu in 1994. The Chamber also does not accept as reliable Witness
LAI’s testimony that he attended night meetings convened by Ntagerura in Karengera
at Nvuningoma’s home. The Chamber notes that this assertion lacks sufficient detail
to be reliable and appears to be outside the temporal scope of these paragraphs.
Moreover, the evidence arose spontaneously during cross-examination in connection
with evidence concerning the alleged ambush against Faustin Twagiramungu, which
the Prosecution conceded was not relevant to its case. 306 The Chamber is further
mindful of its previous finding that Witness LAI lacks credibility. 307
175. The Chamber does not accept the testimony of Prosecution Witness MZ that
Ntagerura was in Nyamuhunga sector around 17 April 1994 because the witness’s
identification of Ntagerura is not reliable. Witness MZ did not see the meeting and
only heard what transpired there from his hiding place in the tea plantation. Though
Witness MZ claimed that he was ten meters from the speakers, the Chamber finds it
likely that he was approximately forty to fifty meters away based on the
measurements of Defence Witness Brochu and the witness’s description of the
location of his hiding place and the alleged position of Ntagerura. Given the witness’s
vantage point and the circumstances of the identification, the Chamber doubts that the
witness could have accurately followed what transpired at the meeting or that he could
have positively identified Ntagerura as the speaker. Moreover, the Chamber finds that
the likelihood that Ntagerura remained in Gitarama on 17 April 1994 to attend a
government cabinet meeting and to prepare for an official mission abroad raises
further doubt about his presence in Nyamuhunga sector during that period.
176. The Chamber recalls that Prosecution Witness LAB is an alleged accomplice
of the accused and, as such, views his testimony with caution. The Chamber does not
accept Witness LAB’s testimony about Ntagerura’s presence at the Shagasha tea
306
See Prosecutor v. Ntagerura, Case No. ICTR-96-46-T, Decision on the Defence Motion for Leave
to Present Evidence in the Form of a Written Statement under Rule 92 Bis (TC), 13 March 2003, paras.
7, 15.
307
See supra paras. 131-132.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
47
factory and in Nyamuhunga sector in the last days of April 1994. The Chamber finds
improbable Witness LAB’s account of Karekezi arriving in a helicopter at Shagasha
tea factory with Ntagerura. The Chamber also notes that, although he was not present,
the witness gave a detailed description of an alleged exchange between Ntagerura and
Nsabimana, during which Ntagerura allegedly ordered the killing of four Tutsis
hidden at the factory. The Chamber is not satisfied that the witness adequately
explained how he came to know the contents of the alleged conversation in such
detail, which leaves the impression that the witness’s testimony is exaggerated,
fabricated, or unreliable hearsay. The Chamber also finds that the evidence that
Ntagerura was not in Rwanda from 23 April until 12 May 1994 raises considerable
doubt about Witness LAB’s account. The Chamber notes that Ntagerura’s claim that
he was out of the country during this period is adequately corroborated by the stamps
in his passport. 308
177. The Chamber finds that the testimony of Prosecution Witness Guichaoua does
not reliably establish the nature or extent of Ntagerura’s role in Cyangugu in 1994.
The Chamber notes that Ntagerura and Bagambiki, as well as other Defence
witnesses, testified about attending a meeting with President Sindikubwabo but
provided a substantially different account of what had transpired there from
Guichaoua. 309 The Chamber emphasises that Guichaoua appeared as an expert in
sociology, not as a factual witness, and that he received information about the meeting
from unidentified sources. His testimony thus cannot reliably establish the content of
the meeting.
178. In light of the evidence discussed in section II.B.5, the Chamber finds that the
Prosecutor proved beyond a reasonable doubt that Interahamwe and other groups
attacked and killed massive numbers of mostly Tutsi civilians in Cyangugu between
April and July 1994, as alleged in paragraphs 17 and 18 of the Ntagerura Indictment.
The Chamber notes that there is evidence that Ntage rura travelled on a few occasions
to Cyangugu between April and July 1994 and that he met with Bagambiki. However,
the Chamber finds that there is no reliable or credible evidence on the record to
establish beyond a reasonable doubt that Ntagerura expressed public support for
Munyakazi or the Interahamwe in Cyangugu or that during the killings he was often
seen in the company of Munyakazi or Bagambiki, verifying the execution of orders to
kill Tutsis, as alleged in paragraphs 14.1 and 14.3 of the Ntagerura Indictment. The
Chamber also finds that there is no reliable or credible evidence that Ntagerura
“continued to remain active in Cyangugu préfecture and acted as a supervisor” during
1994 or that he attended a meeting where President Sindikubwabo congratulated the
community on killing the Tutsis, as alleged in paragraph 19 of the Ntagerura
Indictment.
308
See Ntagerura Defence Exhibits 29, 30.
The Chamber notes that Prosecution Witness LY testified about a meeting with Sindikubwabo in
May 1994 but did not mention Ntagerura’s presence. T. 26 February 2001 pp. 6-10.
309
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
48
B. Bagambiki/Imanishimwe Indictment
1. General Allegations
179.
Paragraph 2.1 of the Bagambiki/Imanishimwe Indictment reads:
Emmanuel Bagambiki was born in Cyangugu préfecture. Throughout the
events referred to in this indictment, until he left Rwanda, the accused held the
office of Préfet of Cyangugu préfecture. Before that, he held the office of Préfet
of Kigali-Rural préfecture. He was a member of the MRND.
180. The Chamber notes that Bagambiki confirmed the facts alleged in paragraph
2.1.310
181.
Paragraph 2.2 of the Bagambiki/Imanishimwe Indictment reads:
Samuel IMANISHIMWE was born in Nyamitaba, Masisi region, in the
Democratic Republic of Congo. His parents were from Nkuli commune,
Ruhengeri préfecture. On 6 April 1994, he held the position of Commander of
the Cyangugu barracks and had the rank of Lieutenant. In 1993, he held the
position of officer of the staff of the G-3, attached to the General Staff of the
Rwandan Army in Kigali.
182. The Chamber accepts Imanishimwe’s testimony that he was born in Gisenyi
prefecture, Rwanda, on 25 October 1961. 311 The Chamber also notes and accepts
Imanishimwe’s testimony that he was a Lieutenant in the Rwandan Armed Forces and
acting commander of the Cyangugu military camp from October 1993. 312
183.
Paragraph 3.2 of the Bagambiki/Imanishimwe Indictment reads:
During the events referred to in this indictment, the Tutsis, Hutus and Twas were
identified as ethnic or racial groups.
184. The Chamber notes that the allegations in paragraph 3.2 are not disputed by
the Bagambiki or Imanishimwe Defence. 313
185.
Paragraph 3.3 of the Bagambiki/Imanishimwe Indictment reads:
During the events referred to in this indictment, there were in Rwanda
widespread or systematic attacks against a civilian population based on political,
ethnic or racial grounds.
310
T. 26 March 2003 pp. 6-62; T. 27 March 2003 p. 3.
T. 20 January 2003 pp. 5-6.
312
T. 20 January 2003 pp. 11, 42; T. 21 January 2003 p. 49.
313
Bagambiki’s Closing Brief p. 45; Imanishimwe’s Closing Brief p. 30.
311
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186. The Bagambiki Defence does not dispute that there were widespread attacks
against the civilian population in Cyangugu during the events referred to in the
indictment. 314 The Chamber further notes Imanishimwe’s acknowledgement that there
was “inter-ethnic killing” throughout Rwanda in April and May 1994. 315 The
Chamber is also mindful of Prosecution Expert Witness Guichaoa’s testimony that
subsequent to 6 April 1994 there were widespread attacks against the Tutsi population
across Rwanda. 316 The Chamber will address in its legal findings whether the attacks
were against a civilian population and were systematic and based on political, ethnic,
or racial grounds.
187.
Paragraph 3.4 of the Bagambiki/Ima nishimwe Indictment reads:
During the time of the events referred to in this indictment, there was an armed
[non] international conflict in the territory of Rwanda. The victims mentioned in
this indictment were protected persons, according to the meaning of Article 3
common to the Geneva Conventions and of Additional Protocol II thereto, and
did not actively participate in the conflict.
188. The Chamber previously took judicial notice that “[b]etween 1st January 1994
and 17 July 1994, in Rwanda, there was an armed conflict not of an international
character.”317 The Chamber will consider whether the victims were protected persons
in its findings, where necessary. The Chamber also emphasises that there is ample
precedent in this Tribunal to support the view that the conflict in Rwanda met the
criteria of a non- international armed conflict. 318
189.
Paragraph 3.5 of the Bagambiki/Imanishimwe Indictment reads:
During the events referred to in this indictment, the MRND (Mouvement
Républicain National pour le Developpment et la Démocratie) was one of the
political parties. The members of its youth wing were called “Interahamwe”.
Most of them subsequently became part of a para-militia group.
190. The Chamber notes that Witness Guichaoua testified that the MRND was one
of the political parties in Rwanda during the events referred to in the indictment. 319
The Bagambiki Defence does not contest this fact. 320 The Chamber finds that the
MRND was one of the political parties, as alleged in the indictment. The Chamber
recalls its finding that the Interahamwe was a youth movement associated with the
MRND party. 321 The Chamber reserves its finding on whether most members of the
314
Bagambiki’s Closing Brief pp. 46-47.
T. 23 January 2003 pp. 4-5.
316
T. 19 September 2001 pp. 53, 56-59.
317
Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, ICTR 99-46-T, Oral Decision on the
Proposed Expert Repiorts and Evidence of Antoine Nyetera, Uwe Friesecke, and Wayne Madsen (TC),
T. 4 July 2002 p. 9.
318
See, e.g., Semanza Judgement (TC), paras. 280-282; Musema, Judgement (TC), para. 971;
Rutaganda Judgement (TC), para. 436, 514; Kayishema and Ruzindana Judgement (TC), para. 172.
319
T. 19 September 2001 pp. 42-43.
320
Bagambiki’s Closing Brief p. 48.
321
See supra para. 84.
315
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Interahamwe became part of a para- military group and will rule on this point only if
necessary for other findings.
191.
Paragraph 3.6 of the Bagambiki/Imanishimwe Indictment reads:
At prefectural level, the Préfet is the most senior government representative and
possessor of the State's authority at the local level. The Préfet carries out his
duties under the hierarchical authority of the Minister holding the portfolio of the
Interior. The Préfet's authority covers the entire préfecture.
In his capacity as Préfet of Cyangugu, Emmanuel BAGAMBIKI had to carry
out the duties attached to his office, notably:
-Run the préfecture in conformity with the laws and regulations in force and
ensure their implementation and observance.
-Ensure peace, public order and the safety of people and property
-Assist and supervise the communal authorities
-Inform the central body of the situation in the préfecture and of any event of
interest.
192. The Chamber notes that the Bagambiki Defence does not dispute that the
prefect is the delegate and possessor of the State’s authority at the prefectural level. 322
The Chamber finds that the role and authority of a prefect was prescribed in Articles
3, 8, and 15 of the Rwandan Law on the Organization and Functioning of Prefectures
(Décret-Loi organisation et fonctionnement de la prefecture) of 11 March 1975. 323
193.
Paragraph 3.7 of the Bagambiki/Imanishimwe Indictment reads:
In the préfecture, the Préfet is in charge of ensuring peace, public order and the
safety of people and property. The Préfet may, in the discharge of his duties,
request the intervention of the army and of the Gendarmerie Nationale.
The Gendarmerie Nationale is an armed body set up to maintain public order and
the observance of laws. It falls under the Ministry of National Defense but can
carry out its duties of ensuring public order at the request of the national
authority having jurisdiction, namely the Préfet. In cases of emergency, this
request can be made verbally, notably by telephone. The request must be carried
out immediately.
322
323
Bagambiki’s Closing Brief pp. 48-49.
Bagambiki Defence Exhibit 3(i).
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
51
In addition, the Gendarmerie Nationale is obliged to transmit to the Préfet all
information relating to public order and has the duty to assist anyone in danger
who requests its help.
194. Bagambiki testified that under the law, the prefect had the authority to
requisition gendarmerie forces to maintain law and order or to establish security. 324
Bagambiki Defence Witness Ndindiliyimana confirmed that the prefect had the legal
authority to requisition the gendarmerie and that Bagambiki had used this power. 325
Ndindiliyimana also testified that where there were no gendarmes or where their
number was insufficient, the gendarmerie commander could have requested
reinforcements from the army and that in this way the prefect could have accessed the
assistance of the army. 326 The Chamber finds that the following Rwandan legal
instruments specify the authority of the prefect vis-à-vis the gendarmerie and the
army: Law on the Organization and Functioning of Prefectures (Décret-Loi
Organisation et fonctionnement de la préfecture) of 11 March 1975; Ministerial
Instruction 01/02 on Establishment and Maintenance of Order (Instruction
Ministérielle no. 01/02 Maintien et rétablissement de l’órdre) of 15 September 1978;
and Law on the Creation of the Gendarmerie (Décret-Loi Création de la
Gendarmerie) of 23 January 1974.327 The Chamber will consider each of these
instruments in its legal findings on criminal respons ibility.
195.
Paragraph 3.8 of the Bagambiki/Imanishimwe Indictment reads:
As Préfet, Emmanuel BAGAMBIKI exercised de jure authority over his
subordinates, notably:
- All the sous-préfets;
- All the bourgmestres of the communes and all public administration staff in the
communes;
- All heads of public administration departments, who are ex-officio members of
the prefectural committee chaired by the Préfet;
- All the administrative staff of the préfecture;
- All staff under contract with the prefectural administration;
- All government employees in the préfecture.
324
T. 1 April 2003 p. 51.
T. 18 February 2003 pp. 17-18.
326
T. 18 February 2003 p. 17.
327
Bagambiki Defence Exhibits 3(i), 3(ii), and 3(iii).
325
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52
196. The Chamber will make a finding on Bagambiki’s de jure authority in its legal
findings.
197.
Paragraph 3.9 of the Bagambiki/Imanishimwe Indictment reads:
Furthermore, Emmanuel BAGAMBIKI, by virtue of his office, exercised de
facto authority over his subordinates and over others, notably army units.
198. The Chamber will make a finding on Bagambiki’s de facto authority in its
legal findings.
199.
Paragraph 3.10 of the Bagambiki/Imanishiwme Indictment reads:
During the events referred to in this indictment, Lieutenant Samuel
IMANISHIMWE, in his capacity as Commander of the Cyangugu Barracks,
exercised de facto and de jure authority over army units in Cyangugu préfecture.
200. The Chamber will make findings on Imanishimwe’s de facto and de jure
authority in its legal findings.
2. Paragraph 3.16 of the Bagambiki/Imanishiwme Indictment
201.
Paragraph 3.16 of the Bagambiki/Imanishimwe Indictment reads:
3.16 Before and during the events referred to in this indictment, Minister André
NTAGERURA, Préfet Emmanuel BAGAMBIKI, Yussuf MUNYAKAZI,
Christophe NYANDWI, all of whom were influential figures in the MRND in
Cyangugu, participated, directly or indirectly, in the training and instructing of,
and distributing of weapons to, the MRND militiamen, the Interahamwe, who
later committed massacres of the civilian Tutsi population.
202. The Chamber is mindful of the Prosecution’s assertion that several alleged
events support paragraph 3.16 of the Bagambiki/Imanishimwe Indictment, including
evidence of distribution of weapons in connection with attacks against refugees328 at
the Gashirabwoba football field, Shangi parish, Mibilizi parish, and Nyamasheke
parish, as well as evidence of training and weapons distribution activities involving
Ntagerura and Imanishimwe. The Chamber will consider the evidence of weapons
distributions that are closely related to attacks in the section dealing with those
events. 329 The Chamber will consider the evidence related to the alleged activities of
Imanishimwe only to the extent that it impacts on the credibility or reliability of
Prosecution witnesses because Imanishimwe is not mentioned in paragraph 3.16 of
the indictment. The Chamber will not consider evidence related to allegations made
against Ntagerura in this paragraph because he is not charged in the
Bagambiki/Imanishimwe Indictment.
328
The Chamber uses the term “refugee” to describe Tutsis or other civilians who fled the attacks in
their local communities, given the use of the term in this sense throughout the proceedings in this case.
329
See infra Section II.B.5.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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a. Allegations
203. Prosecution Witness LAB, an employee at the Shagasha tea factory, testified
that in January 1994, Bagambiki and Imanishimwe held a meeting at the factory with
the manager Nsabimana and the workers. 330 According to the witness, at this meeting
Bagambiki said, “[T]he Tutsis have attacked the country. So some among you have to
learn to handle the firearms so that at the right time we can defend ourselves.”331 The
witness testified that Imanishimwe instructed Nsabimana to recruit thirty workers for
training in the use of firearms and that Bagambiki selected four people and two
gendarmes to be the instructors. 332 Witness LAB testified that he was among those
selected for the training, which initially took place on the factory’s playing field and
later in Nyungwe forest. 333 The witness stated that the training lasted from January to
March 1994 and that Imanishimwe, Bagambiki, and Nsabimana came to the training
sessions about twice a week. 334 Witness LAB testified that in March 1994
Imanishimwe brought guns for the trainees, which were kept at the factory. 335 At the
conclusion of the training, in March 1994, the trainees were taken to Kamembe for
selection into the army, but, according to the witness, up unt il the President’s death in
April, none of the trainees was selected for army service. 336
204. Witness LAB testified that, on 7 April 1994, he went to the roadblock near the
tea factory, where the brigadier of the commune told the population to hunt down the
Tutsi because they were enemies of the nation, since they had just killed the
President. 337 Following this announcement, the witness testified, he and others
collected their guns from the Shagasha tea factory and returned to the roadblock. 338
The witness explained that Bagambiki then arrived at the roadblock, at around 9 a.m.,
and distributed machetes and clubs which he had brought. 339 The witness testified that
he and others with weapons then killed one Tutsi and destroyed the houses of those
who had fled. 340
205. Prosecut ion Witness LAH testified that in March 1994 Bagambiki brought and
distributed 200 machetes at the Shagasha tea factory. 341 The witness testified that in
the same month, after the distribution of the machetes, Bagambiki also brought and
distributed “modern” clubs at the tea factory. 342 The witness stated that he was among
the recipients of the weapons. 343 Witness LAH testified that some weapons remained
330
T. 24 January 2001 pp. 12-13.
T. 24 January 2001 p. 16.
332
T. 24 January 2001 pp. 13, 108.
333
T. 24 January 2001 pp. 13-14.
334
T. 24 January 2001 pp. 13-14, 15, 63, 104-107.
335
T. 24 January 2001 pp. 4-5; T. 29 January 2001 pp. 3-5.
336
T. 24 January 2001 p. 63.
337
T. 24 January 2001 pp. 2, 3.
338
T. 24 January 2001 pp. 4-5; T. 29 January 2001 p. 3.
339
T. 24 January 2001 pp. 4-5; T. 25 January 2001 p. 7.
340
T. 24 January 2001 pp. 5-6.
341
T. 10 October 2000 p. 54.
342
T. 10 October 2000 p. 52; T. 11 October 2000 pp. 76, 78.
343
T. 10 October 2000 p. 55.
331
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
54
at the factory for use by the employees, and that, on the instructions of the factory
director, he delivered the other weapons to a certain house. 344
206. Prosecution Witness LAC, an employee at the Shagasha tea factory, testified
that Nsabimana, the factory director, recruited forty-three people from Bumazi sector
to work at the factory “just before the war and the killings”. 345 According to the
witness, these workers were Interahamwe because he saw them during the attacks and
they had received training “to kill” at a football field near the factory. 346 The witness
testified, however, that he never saw the training because he was not authorised to go
near the place where the training was conducted. 347
207. Bagambiki stated that no weapons were distributed in Cyangugu because it
was not close to the active front and that UNAMIR monitored the situation to prevent
distributions of weapons. 348 Bagambiki testified that he did not go to the Shagasha tea
factory in January 1994 to ask how many people were familiar with firing weapons
and further denied going twice a week, between January and March 1994, to see
young people training at the factory in handling weapons. 349 Bagambiki also stated
that he was not aware that Interahamwe were being trained in Gikongoro forest. 350
208. Bagambiki stated that he did not distribute weapons at the Shagasha tea
factory on 7 April 1994 and that on this day he remained in his office. 351 He testified
that, on 7 April 1994, he went to his office at 7:00 a.m. to make telephone calls in
order to convene a security council meeting which lasted from 10:30 a.m. until around
1:00 p.m. 352
209. Imanishimwe stated that he did not hear of or participate in the training of
young people at the Shagasha tea factory or in Nyungwe forest beginning in January
1994.353 Imanishimwe further stated that he never trained Interahamwe in Cyangugu
and noted that he was not aware of the training or the presence of Interahamwe in
Cyangugu. 354 Imanishimwe stated that he did not deliver weapons to the Shagasha tea
factory or anywhere else in March 1994, emphasising that the Karambo camp did not
have a surplus of weapons. 355 Imanishimwe stated that the camp had no support
weapons such as sub- machine guns, mortars, or grenades, and that each soldier had
only one magazine, which in a combat situation would not last longer than ten
minutes. 356
344
T. 11 October 2000 pp. 81-82.
T. 9 October 2000 pp. 3, 46; T. 10 October 2000 p. 41.
346
T. 9 October 2000 pp. 46-47.
347
T. 9 October 2000 p. 82.
348
T. 31 March 2003 pp. 23-24.
349
T. 31 March 2003 pp. 24-25, 26.
350
T. 31 March 2003 p. 21.
351
T. 27 March 2003 pp. 35, 37, 38; T. 31 March 2003 p. 23.
352
T. 27 March 2003 pp. 35, 37, 38; T. 31 March 2003 p. 23.
353
T. 22 January 2003 p. 24.
354
T. 22 January 2003 p. 26.
355
T. 22 January 2003 pp. 24, 25.
356
T. 21 January 2003 pp. 44, 45, 48.
345
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
55
210. Bagambiki Defence Witness BLB testified that he was not aware of, and did
not observe, the distribution of weapons at the Shagasha tea factory, and that weapons
were never stored in his house in March 1994. 357
211. Bagambiki’s wife, Defence Witness Bernadette Mukandekezi, testified that,
on 7 April 1994, her husband went to the prefecture for a meeting with his
colleagues. 358
212. Bagambiki Defence Witness GNV, who lived near and frequently visited the
Shagasha tea factory, testified that he had “close contact” with a number of workers
there and did not hear that Bagambiki came to the factory, that the workers of the
factory received any training in weapons handling, or that weapons were stored
there. 359
213. Imanishimwe Defence Witness PBB indicated that he was a member of the
prefectural security council. 360 Witness PBB stated that, on 7 April 1994, he attended
a meeting of the council with the commander of the military camp and Bagambiki. 361
The witness stated that the meetings usually ran from 9:00 or 9:30 a.m. until 2:00 to
3:00 p.m. 362
214. Imanishimwe Defence Witness PLA testified that soldiers from Cyangugu
trained in Nyungwe forest.363 The witness stated that he received the last report of
military training in the forest between October and November 1993. 364 Witness PLA
testified that he never received a report that civilians were training in the forest. 365
215. Imanishimwe Defence Witness PNE, a soldier at Karambo camp, testified that
it was impossible for Imanishimwe to have distributed munitions to civilians because
soldiers at the Karambo camp did not have enough munitions and there was none in
the store. 366
b. Findings
216. The Chamber recalls that Prosecution Witnesses LAB and LAH are alleged
accomplices of the accused and, as such, views their testimonies with caution. The
Chamber recalls that it has found the testimonies of Witnesses LAB and LAH not
credible and unreliable with respect to other events, and thus cannot accept their
testimonies without further corroboration. 367 Although Prosecution Witness LAC
testified about the training of forty-three workers at the factory, the Chamber cannot
rely on this evidence because the witness did not see the training. Moreover, the
357
T. 19 February 2003 pp. 24-25.
T. 10 March 2003 p. 35.
359
T. 24 February 2003 pp. 30, 37, 38.
360
T. 4 November 2002 p. 10.
361
T. 4 November 2002 pp. 16-17.
362
T. 4 November 2002 p. 18.
363
T. 3 February 2003 pp. 6-7.
364
T. 3 February 2003 p. 8.
365
T. 3 February 2003 p. 8.
366
T. 10 October 2002 pp. 5-6.
367
See supra paras.118, 141, 176.
358
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
56
Chamber notes that Witness LAC implicated the factory director Nsabimana in this
training without mentioning Bagambiki or Imanishimwe or without noting
distribution or storage of weapons at the factory. The Chamber has also considered
evidence proffered by Prosecution Witnesses NG-1, MG, and LAM concerning other
training activities and finds that none of this evidence implicates Bagambiki in those
activities. 368 The Chamber also takes into account that the evidence of Defence
Witness BLB, at whose house some of the weapons were allegedly stored, Defence
Witness GNV, who was familiar with the factory and its workers, and Defence
Witness PLA, who was familiar with training activities in Nyungwe forest, raises
furthe r doubt about the alleged training and distribution activities. Moreover, even if
the Chamber were to accept the evidence of Witnesses LAB, LAH, and LAC, the
Chamber observes that the Prosecution did not establish that the alleged training and
arming were for the purpose of killing Tutsi civilians.
217. The Chamber finds that the evidence of Bagambiki’s involvement in activities
related to the prefectural security council meeting on 7 April 1994 raises doubt about
his presence at the road block near the Shagasha tea factory on that date.
218. The Chamber recalls its finding that the testimonies of Prosecution Witnesses
LAI, LAJ, and LAP are not credible with respect to the alleged weapons distribution
in Bugarama on 28 January 1994. 369 In view of this finding, the Chamb er notes that
there is no credible or reliable evidence on record that Bagambiki took part in that
alleged event.
219. Finally, the Chamber notes its findings, made in section II.B.5, that the
testimonies of Prosecution Witnesses LAB, LAK, LAJ, and LAM concerning alleged
weapons distributions related to the attacks at the Gashirabwoba football field, Shangi
parish, Mibilizi parish, and Nyamasheke parish are not credible and thus do not
establish Bagambiki’s participation in such distributions. Accordingly, the Chamber
holds that Bagambiki’s alleged role in training and arming the Interahamwe was not
proven beyond a reasonable doubt.
3. Paragraphs 3.19, 3.20, 3.21, 3.22, and 3.23 of the Bagambiki/Imanishimwe
Indictment
220. Paragraphs 3.19, 3.20, 3.21, 3.22, and 3.23 of the Bagambiki/Imanishimwe
Indictment read:
3.19 In early April 1994, many Tutsis sought refuge at Cyangugu Cathedral to
protect themselves from the attacks against them. On or about 11 April 1994, the
attacks on the refugees at the cathedral began. The attacks were carried out by
groups of Interahamwe militiamen, including a group led by Yussuf
MUNYAKAZI.
368
Testimony of Witness NG-1, T. 23 November 2000 pp. 103, 118. Testimony of Witness MG, T. 12
February 2001 pp. 10-11, 70, 77-78. Testimony of Witness LAM, T. 21 November 2000 pp. 47, 55-57.
369
See supra paras. 129-132.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
57
3.20 Following the first attack on or about 11 April 1994, some refugees were
arrested and taken to the Cyangugu Barracks before Lieutenant Samuel
IMANISHIMWE, who gave the order to execute them.
3.21 On or about 15 April 1994, Préfet Emmanuel BAGAMBIKI and
Lieutenant Samuel IMANISHIMWE ordered that the refugees at the Cathedral
be moved to Cyangugu Stadium. The refugees who refused to obey were
threatened with death.
3.22 The refugees from the cathedral were escorted to Kamarampaka Stadium in
Cyangugu by the civilian and military authorities, including Préfet Emmanuel
BAGAMBIKI and Lieutenant Samuel IMANISHIMWE. At the stadium, many
other refugees were already there, and later, others came in to join them. They
remained there for several weeks.
During this period, the refugees could not leave the stadium, which was guarded
by gendarmes. Those who attempted to leave the stadium were either forced back
inside by the gendarmes, or executed by the Interahamwe and the gendarmes
who were outside the stadium. Also, during this period, Interahamwe would
enter the stadium to abduct refugees and execute them.
3.23 On several occasions between April and June 1994, the authorities in
Cyangugu, notably Préfet Emmanuel BAGAMBIKI, Lieutenant Samuel
IMANISHIMWE, and Minister André NTAGERURA, selected names from
pre-established lists of the refugees who were inside the stadium, mostly Tutsis
and some Hutus in the opposition. These refugees were then arrested and later
executed in a place called Gatandara.
a. Allegations
221. Prosecution Witness LY testified that, beginning on 8 April 1994, people
seeking refuge from the violence following the death of the president started arriving
at Cyangugu Cathedral, eventually numbering approximately 5,000. 370 The witness
stated that the husband of Bagambiki’s niece, George Nkusi, also sought refuge at the
cathedral and that Bagambiki spoke with Nkusi on the telephone and brought him
medicine there. 371 Witness LY also stated that Nkusi told him that Bagambiki bore a
grudge against him because Nkusi sentenced Munyakazi to one day in prison, whereas
when Nkusi went to investigate the matter, Bagambiki told Nkusi, “Be very careful;
you should be very careful with that trial.”372
222. In Witness LY’s opinion, the cathedral was not a secure location for the
refugees; consequently, church authorities requested assistance and received the
protection of two to four gendarmes.373 The witness testified that at 10:30 or 11:00
370
T. 22 February 2001 pp. 70-72; T. 28 February 2001 pp. 8-9.
T. 22 February 2001 p. 108.
372
T. 22 February 2001 pp. 118-119.
373
T. 22 February 2001 pp. 70-73; T. 26 February 2001 pp. 114, 115; T. 28 February 2001 pp. 8-9.
371
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
58
a.m., on 11 April 1994, a pickup truck carrying Interahamwe stopped at the cathedral
and that the Interahamwe shot in the air, creating disorder and panic, and took away
Munyakazi’s son- in- law from among the refugees. 374 The witness was told that it was
Munyakazi who drove the Interahamwe during this incident. 375
223. Witness LY recalled that shortly after this incident Brother Rugema called him
and asked for his assistance in securing the release of refugees who were taken by
soldiers to the Karambo military camp. 376 According to the witness, he went to the
military camp, but soldiers denied him entry, even though he had just made an
appointment to see Imanishimwe at the bishop’s request. 377
224. Witness LY testified that he then went to the prefecture office and told those
attending a meeting there about the attack at the cathedral. 378 He stated that upon
being informed, Bagambiki and others visited the cathedral for approximately twenty
minutes. 379
225. Witness LY also stated that he discovered soldiers forcing several refugees to
lie on the ground near the prefecture office. 380 These refugees returned to the
cathedral, after the witness asked Bagambiki to intervene. 381
226. Witness LY testified that the cathedral was attacked two more times on 11
April 1994, but that the three gendarmes stationed there were able to dissuade the
attackers, and no one was killed. 382 The witness testified that, on 13 or 14 April 1994,
he saw Bagambiki stop a crowd of attackers armed with machetes and spears who
were coming to attack the cathedral. 383
227. Witness LY testified that, in light of the attacks at the cathedral and elsewhere
in the region, the church authorities felt that they could not ensure the refugees’ safety
at the cathedral without the assistance of the civilian or military authorities. 384 He
recalled that the bishop and the church authorities organized a meeting on 14 April
1994 at the Cyangugu Bishopric with Bagambiki, Imanishimwe, and the Commander
of the gendarmerie Munyarugerero to ask them to provide security for the refugees. 385
Witness LY recalled that Imanishimwe, who arrived late, said the refugees would die
unless the church authorities asked the RPF to stop the fighting and that Bagambiki
then concluded the meeting, stating that they would study the matter. 386
374
T. 22 February 2001 pp. 72-83, 79-80; T. 28 February 2001 p. 10.
T. 22 February 2001 p. 80.
376
T. 22 February 2001 p. 83; T. 26 February 2001 p. 94.
377
T. 22 February 2001 p. 84; T. 26 February 2001 pp. 94, 103-107.
378
T. 22 February 2001 pp. 84-88.
379
T. 22 February 2001 pp. 84-88.
380
T. 22 February 2001 p. 85; T. 26 February 2001 p. 58.
381
T. 22 February 2001 p. 85; T. 26 February 2001 p. 58.
382
T. 22 February 2001 pp. 88-89; T. 26 February 2001 pp. 115-116, 119; T. 28 February 2001 pp. 1012.
383
T. 26 February 2001 pp. 35-36.
384
T. 22 February 2001 pp. 90, 91; T. 26 February 2001 pp. 133, 143; T. 28 February 2001 pp. 13, 15,
31, 35.
385
T. 22 February 2001 pp. 90, 91; T. 26 February 2001 pp. 133-135, 143; T. 28 February 2001 pp. 13,
15, 31, 35.
386
T. 22 February 2001 pp. 91-92; T. 26 February 2001 pp. 142, 143.
375
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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228. Witness LY testified that, on the following day, 15 April 1994, Bagambiki
telephoned the bishop’s house at around 2:00 p.m. and later visited the bishopric
between 3:00 and 3:30 p.m. with Imanishimwe and Munyarugerero to inform the
bishop of the decision to transfer the refugees from the cathedral to Kamarampaka
Stadium. 387 The witness testified that the church officials then gathered the refugees to
hear Bagambiki’s proposal about the move. 388 The witness stated that the refugees
were reluctant to agree to the transfer until the bishop and the other church officials
encouraged them to move for their safety, at which point the refugees accepted to go
to the stadium. 389
229. Prosecution Witness LY testified that, on 15 April 1994, Bishop Thadée led
the procession of approximately 5,000 refugees to Kamarampaka Stadium, while the
witness drove alongside the procession with Bagambiki, “reassuring” the refugees of
their security. 390 The witness stated that he and Bagambiki told a group of prisoners to
stay away because they were frightening the refugees. 391 The witness also noted that
the gendarmes stationed at the cathedral accompanied the procession of refugees to
the stadium. 392 Witness LY thought, though he was not entirely certain, that
Imanishimwe accompanied the procession. 393 The witness stated nonetheless that he
met Imanishimwe inside the stadium, after most of the refugees had arrived and that
Imanishimwe asked him the whereabouts of Jean-Marie Vianney Habimana. 394
230. Witness LY testified that sick refugees, priests, parish workers, and at least
four others, who distrusted the authorities, remained at the cathedral after the
transfer. 395 Witness LY recalled that at around 3:00 or 4:00 p.m. on 16 April 1994,
Bagambiki, Imanishimwe, Munyarugerero, Prosecutor Ndolimana, and some soldiers
came to the cathedral to take the remaining refugees. 396 The witness testified that
while he was talking with Bagambiki and the other authorities, the soldiers searched
for and found the remaining refugees. 397 He testified that the soldiers took Jean-Marie
Habimana, Vital, Felicien, and Ananias Gatake in Bagambiki’s pickup truck for
questioning regarding their possible financial contributions to the RPF. 398 The witness
stated that the church authorities did not try to prevent the removal of the refugees
because they thought the request to question them was genuine and that it would not
be harmful. 399 The witness testified that during the search for the refugees,
Imanishimwe hit a church secretary in the face with a gun. 400
387
T. 22 February 2001 pp. 96-98; T. 26 February 2001 p. 147; T. 28 February 2001 pp. 31, 32.
T. 22 February 2001 p. 102-103; T. 28 February 2001 p. 22.
389
T. 22 February 2001 pp. 100-102; T. 28 February 2001 pp. 22-23.
390
T. 22 February 2001 pp. 103-104, 118-120; T. 26 February 2001 pp. 148, 150, 161; T. 27 February
2001 pp. 127-129; T. 28 February 2001 pp. 9, 23; Prosecution Exhibit 43 (1.32, 3.15, 3.24, 1021, 5.15).
391
T. 22 February 2001 pp. 103-104.
392
T. 28 February 2001 p. 24.
393
T. 22 February 2001 pp. 106-107; T. 26 February 2001 pp. 149-150, 151.
394
T. 22 February 2001 pp. 106-107; T. 26 February 2001 pp. 149-150, 151.
395
T. 22 February 2001 pp. 102-103, 106-108, 118-119; T. 28 February 2001 p. 5.
396
T. 22 February 2001 pp. 109, 110; T. 26 February 2001 pp. 163-164, 166-167.
397
T. 22 February 2001 p. 112; T. 26 February 2001 pp. 163-164, 166-167.
398
T. 22 February 2001 pp. 111-113; T. 26 February 2001 pp. 164-170.
399
T. 26 February 2001 pp. 165-166, 174.
400
T. 22 February 2001 pp. 109-113; T. 26 February 2001 pp. 167-168.
388
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
60
231. Witness LY testified that he followed Bagambiki’s pickup truck to
Kamarampaka Stadium and parked near the officials’ vehicles, which were just
outside the stadium. 401 Witness LY stated that he spoke briefly with Bagambiki inside
the stadium and observed refugees being lined up and Bagambiki, Imanishimwe,
Ndolimana, and Munyarugerero pointing at a black diary held by Munyarugerero. 402
The witness recounted that he later learned from the refugees at the stadium that the
authorities selected thirteen people to be taken for questioning. 403 The witness attested
to hearing gunshots after he returned to the parish; so he asked the bishop to telephone
Bagambiki to find out if the four people taken from the cathedral had been shot. 404
According to the witness, Bagambiki told the bishop that Interahamwe had taken the
four refugees, and that they were probably the ones who had been shot. 405 Witness LY
received confirmation of this information from refugees who telephoned from the
stadium to say that thirteen refugees from the stadium and the four refugees from the
cathedral were removed and killed, with the exception of Marianne. 406 The witness
later stated that he was sure that the sixteen people who were killed were those whose
names had been called from the list in the diary. 407
232. Witness LY stated that the conditions at the stadium were inadequate and that
there was insufficient sanitation, water, food, and shelter to meet the refugees’ needs
and that, in his view, the prefectural authorities did not do anything to meet these
concerns. 408 The witness stated that prefectural authorities were aware that the church
authorities provided food and tended to the refugees at the stadium and that they never
prevented this. 409 According to the witness, the refugees maintained regular telephone
contact with the cathedral. 410 The witness noted that CARITAS, the diocese’s relief
organisation, prepared what little food it had and took it to the refugees daily. 411 In
addition, after 22 April 1994, the Red Cross also began to make regular visits to the
stadium and assist the refugees. 412 The witness stated that after repeated requests from
church and Red Cross authorities to remedy the deteriorating hygienic conditions at
the stadium, the prefectural authorities gradually transferred the refugees to a camp at
Nyarushishi, which was “well designed” and had toilets, plenty of water, and small
tents to shelter the refugees. 413
401
T. 22 February 2001 p. 113; T. 26 February 2001 pp. 170-171.
T. 22 February 2001 pp. 113-114; T. 26 February 2001 pp. 172-177; T. 27 February 2001 pp. 5-6,
14-15; T. 28 February 2001 p. 60.
403
T. 22 February 2001 pp. 111, 112, 113. The Chamber notes that the witness in his statement
indicated that he actually saw the thirteen people being removed.
404
T. 22 February 2001 p. 114; T. 27 February 2001 pp. 3, 21-22. The Chamber notes that the witness
initially states that he heard the shots only a few minutes after returning to the parish and in crossexamination noted that he heard the shots “a good time” after returning to the parish.
405
T. 22 February 2001 p. 114; T. 28 February 2001 pp. 51-52, 65.
406
T. 22 February 2001 p. 114; T. 26 February 2001 pp. 172, 175-177; T. 27 February 2001 pp. 4, 10;
T. 28 February 2001 p. 58.
407
T. 28 February 2001 p. 57.
408
T. 26 February 2001 pp. 10-13.
409
T. 27 February 2001 p. 31; T. 28 February 2001 p. 39.
410
T. 22 February 2001 p. 115; T. 27 February 2001 pp. 44-45.
411
T. 28 February 2001 p. 38.
412
T. 28 February 2001 p. 41.
413
T. 26 February 2001 pp. 10-11
402
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
61
233. Prosecution Witness LI testified that he went to Cyangugu Cathedral on 8
April 1994 to flee the massacres in his commune and that, between 8 and 11 April
1994, the number of refugees at the cathedral increased dramatically. 414 The witness
stated that all the refugees he knew at the cathedral were Tutsis. 415 He testified that,
on the morning of 11 April 1994, Interahamwe came to the cathedral and began
shooting at the refugees. 416 The witness testified that when the shooting began he was
in the middle of the courtyard between the cathedral and the priests’ residence, and
that he ran in the direction of the residence, where he found other refugees hiding. 417
Witness LI testified that shortly after his arrival in the area, at least five soldiers,
identifiable by their uniforms and firearms, came out of the surrounding bushes,
encircling the refugees. 418 According to the witness, some of the refugees managed to
escape, but the soldiers captured seven of them, including the witness. 419 The witness
testified that the soldiers kicked the refugees and hit them with the butts of their
guns. 420 He stated that the soldiers then took the refugees on foot to the Karambo
military camp, beating them along the way. 421
234. Witness LI testified that when they reached the military camp in the afternoon,
Imanishimwe told the soldiers that he would like to take the refugees to the
gendarmerie. 422 The witness stated that the soldiers then explained to Imanishimwe
that the refugees were “Inyenzi-Inkotanyi”, whom they had caught in the bush. 423 The
witness stated that the refugees who knew Imanishimwe begged him to let them go,
telling him that they were not soldiers, “Inkotayis”, or “Inyenzis”, but Imanishimwe
refused. 424 Witness LI testified that Imanishimwe instructed the soldiers to “take care
of them” and then left. 425 Witness LI testified that the refugees were then locked up in
a cell in the camp. 426 The witness stated that this was the first and only time that he
saw Imanishimwe. 427 Witness LI explained that other refugees with him at the
military camp knew Imanishimwe, but that he did not learn that the commander’s
name was Imanishimwe, until he arrived in the Congo. 428 The witness identified
Imanishimwe in court. 429
235. Witness LI testified that while Imanishimwe was talking to the refugees, at a
distance of barely two metres, they were made to sit on the ground and were kicked
and beaten by the soldiers with pieces of wood and rifle butts. 430 The witness testified
that Imanishimwe observed this mistreatment but did nothing to stop the soldiers from
414
T. 30 January 2001 pp. 10-11, 66-67, 72-75, 81
T. 30 January 2001 p. 13.
416
T. 30 January 2001 pp. 11-13, 64.
417
T. 30 January 2001 pp. 13, 64, 65, 97-99.
418
T. 30 January 2001 pp. 13, 17, 65.
419
T. 30 January 2001 pp. 14-15, 98, 100.
420
T. 30 January 2001 pp. 14-15.
421
T. 30 January 2001 p. 15.
422
T. 30 January 2001 p. 19.
423
T. 30 January 2001 pp. 17-18, 100-101; T. 31 January 2001 pp. 2-3, 13-14.
424
T. 30 January 2001 pp. 19, 101; T. 31 January 2001 p. 13.
425
T. 30 January 2001 pp. 19-20; T. 31 January 2001 p. 8.
426
T. 30 January 2001 pp. 19-20; T. 31 January 2001 p. 10.
427
T. 30 January 2001 pp. 18-19, 36-38; T. 31 January 2001 pp. 14-15.
428
T. 30 January 2001 pp. 18-19, 36-38; T. 31 January 2001 p. 14.
429
T. 30 January 2001 pp. 37-38.
430
T. 30 January 2001 pp. 20-21, 22, 101.
415
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
62
beating the refugees. 431 The witness also testified that he did not hear Imanishimwe
reprimand the soldiers for beating them. 432
236. Prosecution Witness NL testified that after fleeing from an attack, he arrived at
Cyangugu Cathedral on 8 April 1994 and found about 400 refugees already there. 433
He testified that Munyakazi came to the cathedral to take away a relative, but the
witness was not sure of the date of this event. 434 He recalled that, around 3:00 p.m. on
the same day, Interahamwe attacked the cathedral but were warded off by gendarmes
stationed there. 435 Witness NL testified that, on 15 April 1994, different officials
addressed the refugees at the cathedral and that Bishop Thadée said that the
authorities had decided that the cathedral was not safe and that the refugees would be
moved to Kamarampaka Stadium. 436 The witness testified that the refugees were
moved against their will to the stadium, which lacked adequate water, sanitation, and
communication facilities. 437
237. Witness NL testified that, on 15 April 1994, Bagambiki and Bishop Thadée
led the refugees, who were followed by soldiers, from the cathedral to Kamarampaka
Stadium. 438 He also testified that gendarmes prevented refugees from escaping on the
way to the stadium and that there were no problems during the transfer. 439 The witness
recalled that the approximately 4,000 refugees from the cathedral were the first group
to arrive at the stadium and that he learned that refugees were also transferred to the
stadium from another place of refuge. 440 The witness stated that the refugees’
movement was curtailed after they arrived at the stadium because Bagambiki locked
the stadium and stationed soldiers to prevent the refugees from leaving. 441 He testified
that there were also gendarmes inside the stadium and that during the day
Interahamwe waited outside the stadium to kill refugees who attempted to escape. 442
He testified that, on the night of 17 April 1994, he paid 30,000 francs to a gendarme,
who allowed him and three other refugees to flee the stadium. 443
238. Witness NL testified that, on 16 April 1994, Bagambiki visited the stadium
along with Imanishimwe, Prosecutor Ndolimana, Deputy Prosecutor Decimero, other
civilian authorities, and approximately ten armed soldiers. 444 He testified that
Bagambiki assured the refugees that he was working on improving the facilities in the
stadium. 445 The witness recalled that Bagambiki told the assembled refugees that the
Prefectural Security Committee had determined that those refugees who had been
communicating with RPF soldiers by radio and those who had weapons should be
431
T. 30 January 2001 p. 21.
T. 30 January 2001 pp. 20, 21; T. 31 January 2001 p. 9.
433
T. 20 February 2001 p. 97; T. 21 February 2001 pp. 56, 74-75.
434
T. 21 February 2001 pp. 59-60.
435
T. 21 February 2001 p. 60.
436
T. 20 February 2001 pp. 98-99; T. 21 February 2001 pp. 61- 65.
437
T. 20 February 2001 pp. 98-99; T. 21 February 2001 pp. 64-66.
438
T. 20 February 2001 pp. 99-100; T. 21 February 2001 pp. 37-38, 61-64, 71, 75, 77.
439
T. 20 February 2001 p. 100; T. 21 February 2001 pp. 63-64.
440
T. 21 February 2001 p. 75-77, 78-79.
441
T. 20 February 2001 pp. 100-101; T. 21 February 2001 pp. 72-73, 77.
442
T. 21 February 2001 pp. 68, 72-73.
443
T. 21 February 2001 pp. 4-5, 78.
444
T. 20 February 2001 pp. 101-104; T. 21 February 2001 pp. 41, 68-69, 78.
445
T. 20 February 2001 p. 104.
432
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
63
taken away for questioning. 446 He testified that Bagambiki called out the names of
approximately twenty five refugees, including the witness, and that all were Tutsis but
one. 447 The witness stated that he and others did not respond but that thirteen refugees
answered, including Tojan Nzisabira, Benoit Sibomana, Bernard Nkata, Perani
Nxorimana, Fidel Murekezi, Albert Mugabo, Levit Nsegiyumva, Ibambasi, Albert
Twagiramungu, Gaperi, Remy Mihigo, and Marianne Baziruwiha, who was a Hutu
member of the PSD party. 448 Witness NL recounted that he saw Imanishimwe and
some soldiers lead the thirteen refugees from the stadium to a pickup truck which
contained Jean-Marie Habimana, Ananie Gatake, Vital, and Felician. 449 The witness
stated that two minutes later he saw the pickup truck loaded with refugees depart just
as Bagambiki walked out of the stadium. 450 The witness noted that Marianne climbed
into a gendarmerie vehicle. 451
239.
Witness NL testified that, on the evening of 16 April 1994, a gendarme at the
stadium told him that Interahamwe had killed the thirteen refugees at the gendarmerie
brigade near the Rusizi River with machetes and clubs and that one of the refugees
was shot while trying to escape. 452 According to the witness, the gendarme told him
that the bodies were taken to Mururu sector. 453 The witness stated that Marianne, the
only Hutu amongst them, was not killed. 454 The witness also testified that, in August
1994, he spoke to someone who had been conscripted to assist in burying the bodies
of the refugees who were killed after being taken from the stadium that day. 455 He
testified that, in April 2000, the bodies of the sixteen refugees were exhumed and that
he was present when the victims’ relatives identified the bodies. 456
240. Witness NL recalled that he regularly conversed at the cathedral and at the
stadium with George Nkusi, a deputy prosecutor, who was married to Bagambiki’s
niece. 457 According to the witness, Nkusi told him that, on the morning of 7 April
1994, Bagambiki came to Nkusi’s home and took Nkusi’s wife and children, leaving
Nkusi there. 458 The witness testified that Nkusi’s wife told Nkusi to hide from
Bagambiki to avoid being killed. 459 The witness explained that when he bribed a
gendarme in order to flee the stadium with three others, Nkusi remained and that he
later learned that Nkusi had been killed. 460
241. Prosecution Witness LCJ testified that she and her family sought refuge at
Cyangugu Cathedral after the death of CDR Chairman Bucyana in February 1994. 461
446
T. 20 February 2001 pp. 104; T. 21 February 2001 p. 69.
T. 20 February 2001 pp. 105-106, 107-108; T. 21 February 2001 pp. 88-89.
448
T. 20 February 2001 pp. 12-13, 97, 108-109, 112-114; T. 21 February 2001 pp. 69-70.
449
T. 20 February 2001 pp. 110, 114-115.
450
T. 20 February 2001 pp. 110, 112, 116.
451
T. 20 February 2001 pp. 111-112..
452
T. 20 February 2001 pp. 116-117; T. 21 February 2001 pp. 2-3, 70, 101, 103-104, 107.
453
T. 21 February 2001 pp. 58, 70.
454
T. 21 February 2001 pp. 76, 77.
455
T. 20 February 2001 pp. 116-118; T. 21 February 2001 pp. 106-110.
456
T. 21 February 2001 pp. 3-4, 11, 112-115.
457
T. 21 February 2001 pp. 13-14.
458
T. 21 February 2001 pp. 13-14, 56-57.
459
T. 21 February 2001 p. 14.
460
T. 21 February 2001 p. 15.
461
T. 22 May 2001 pp. 2-3.
447
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
64
Witness LCJ stated that the y were still at the parish at the time of President
Habyarimana’s death and that during the following week many people sought refuge
there because they feared that Hutus wanted to kill them. 462 The witness noted that
several attacks were launched against the parish. 463 She testified that, on 15 April
1994, Bagambiki, accompanied by Imanishimwe, Bishop Thadée, and other church
and civilian officials, informed the refugees that they had to move to Kamarampaka
Stadium where their security would be ensured. 464
242. Witness LCJ testified that, on 15 April 1994, she and the other refugees at the
cathedral were escorted by soldiers to Kamarampaka Stadium. 465 The witness
recounted that Jean-Marie Vianney Habimana remained at the cathedral while the
other refugees were transferred to the stadium on 15 April 1994. 466 She testified that,
after the refugees arrived at the stadium, the stadium was locked and that three
gendarmes remained with the refugees. 467 Witness LCJ recalled remaining at the
stadium with her mother and siblings for three days. 468
243. Witness LCJ also stated that Bishop Thadée and Father Ndorimana came to
the stadium on 16 April 1994 but that Father Ndorimana left before Bagambiki
arrived. 469 The witness testified that Bagambiki, Imanishimwe, and other soldiers
entered the stadium. 470 She recalled that Bagambiki read out the names of Tutsis from
a list including Bernard Nkata, Benoit Sibomana, Apian Ndolimana, Trojan Nzisabira,
Fidel Murekezi, Mhigo, Albert Mugabo, Albert Twagiramungu, Dominique Mugabo
who was also called Gaperi, and Ibambasi. 471 According to the witness, Bagambiki
explained that the people whose names he read aloud were disrupting the security of
the Hutu population, had weapons and military uniforms, and were thus being taken
away for questioning and to have “their fate decided.”472 The witness noted that at the
end of Bagambiki’s speech the refugees applauded. 473 The witness recalled that some
of those whose names had been read aloud were frightened but that others stepped
forward. 474 The witness stated that as Sibomana walked past Bagambiki he took out
his rosary and said that he would go to heaven whereas Bagambiki would remain on
earth for his deeds. 475 The witness also recalled hearing Sibomana ask those
remaining at the stadium to recite litanies and to pray for him. 476 The witness testified
that the people who stepped forward were lined up and escorted by soldiers out of the
stadium. 477 The witness noted that those taken from the stadium were civilians. 478 The
462
T. 22 May 2001 pp. 3-4; T. 23 May 2001 p. 90.
T. 23 May 2001 p. 92.
464
T. 22 May 2001 pp. 4-6; T. 23 May 2001 p. 92.
465
T. 22 May 2001 p. 6.
466
T. 22 May 2001 pp. 7-8, 12.
467
T. 22 May 2001 p. 6.
468
T. 22 May 2001 p. 16; T. 24 May 2001 p. 6.
469
T. 23 May 2001 pp. 92-93.
470
T. 22 May 2001 pp. 8-9.
471
T. 22 May 2001 pp. 8-10; T. 23 May 2001 p. 94.
472
T. 22 May 2001 pp. 10-11; T. 23 May 2001 p. 94.
473
T. 23 May 2001 p. 95.
474
T. 22 May 2001 p. 11.
475
T. 22 May 2001 p. 11-12.
476
T. 22 May 2001 p. 12.
477
T. 22 May 2001 p. 12.
478
T. 22 May 2001 p. 57.
463
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
65
witness testified that Bagambiki promised to supply water and to dig latrines for the
remaining refugees and reassured them that they would be able to return to their
homes in the near future. 479
244. Witness LCJ testified that she later learned from a gendarme, named Jean
Baptiste Habakurama, that the people on the list, as well as Jean-Marie Vianney
Habimana, had been taken away by Bagambiki and handed over to Interahamwe who
killed them on 16 April 1994. 480 While in Zaire, the witness stated, an Interahamwe
named Ignace Rubyogo informed her that Interahamwe had killed Jean-Marie
Vianney Habimana, removed his heart, and threw his body into his latrine. 481
245. Witness LCJ testified that she was present when seventeen bodies were
exhumed from the latrine of Jean-Marie Vianney Habimana’s home on 28 April
2000.482 She recognized the body of Jean-Marie Vianney Habimana because of his
build and his clothes. 483 According to the witness, the left side of the deceased’s body
had been opened, there were wounds on his limbs, and his skull was fractured. 484
Witness LCJ testified that while examining the deceased she put her hand inside the
corpse and observed that his heart was missing. 485 The witness also noted that the
other bodies were missing hearts and genitals. 486
246. Witness LCJ testified that she met with someone who told her the names of
people who were taken from the stadium. 487 According to the witness, that person also
informed her that the people were killed in Gatandara near the gendarmerie and that
their hearts were removed and their bodies thrown into a pit. 488
247. Prosecution Witness LCA testified that he arrived at Cyangugu Cathedral
around 12 April 1994 and that he found many people, mostly Tutsis, already there. 489
The witness stated that, on 15 April 1994, Bagambiki called a meeting at the
cathedral. 490 With the bishop of Cyangugu and the army commander present,
Bagambiki told the refugees that they had to go to the stadium to ensure their
security. 491 The witness testified that the refugees initially refused to obey the order
but that Bagambiki told them that they had no choice but to go to the stadium. 492
According to the witness, at first the bishop advised the refugees not to leave the
cathedral, but then he said that they should go to the stadium because Bagambiki had
informed him that their security could not be assured at the cathedral. 493 Witness LCA
479
T. 22 May 2001 p. 12; T. 24 May 2001 p. 5.
T. 22 May 2001 pp. 13-15; T. 23 May 2001 p. 95; T. 24 May 2001 pp. 5-6.
481
T. 22 May 2001 pp. 17-18.
482
T. 22 May 2001 pp. 19-20, 25, 43-47; T. 23 May 2001 p. 10; T. 24 May 2001 pp. 7-9; Prosecution
Exhibit 53, photos 2, 4-7; Prosecution Exhibit 58.
483
T. 22 May 2001 pp. 25-26, 29-32; 55; T. 23 May 2001 pp. 58-59, 68-69, 92; Prosecution Exhibit 51.
484
T. 22 May 2001 p. 55; T. 24 May 2001 p. 12; Prosecution Exhibit 62.
485
T. 22 May 2001 p. 42; T. 24 May 2001 pp. 12-13, 56, 62, 64-65; Prosecution Exhibit 61.
486
T. 22 May 2001 p. 42.
487
T. 23 May 2001 pp. 21, 22, 23-24, 25, 27, 37; T. 24 May 2001 p. 49; Prosecution Exhibit 59.
488
T. 23 May 2001 p. 24.
489
T. 14 May 2001 p. 68.
490
T. 14 May 2001 pp. 70-71, 121-122.
491
T. 14 May 2001 pp. 70-71, 121-122.
492
T. 14 May 2001 p. 70.
493
T. 14 May 2001 pp. 122-123.
480
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
66
testified that he and other refugees were thus forced to go to the stadium and that they
left the cathedral between 2:00 and 3:00 p.m. on 15 April 1994. 494
248. Witness LCA testified that, on 15 April 1994 at approximately 4:00 p.m., the
bishop, accompanied by sold iers, led the refugees to the stadium. 495 According to the
witness, when he and the other refugees from the cathedral entered the stadium, it was
empty, but other refugees arrived subsequently. 496 Witness LCA stated that soldiers
were stationed at the stadium to guard the refugees. 497
249. Witness LCA testified that, at approximately 4:00 p.m. on 16 April 1994,
Bagambiki, Imanishiwme, the gendarmerie commander, two sub-prefects, and the
president of the Court of Appeals held a meeting at the stadium. 498 The witness stated
that he heard Bagambiki read aloud from a list of “people being sought to ensure the
protection of other refugees who were at the stadium”. 499 The witness recalled that he
heard Bagambiki read the names of sixteen people. 500 He stated that a soldier then
approached his father and took him away to join the others whose names had been
called and that the group was taken out of the stadium. 501
250. Witness LCA stated that he next saw his father’s body on 28 April 2000 when
it was exhumed from a latrine in Jean-Marie Vianney Habimana’s compound in
Mururu sector, Cyimbogo commune. 502 The witness stated that he observed the
retrieval of the bodies of the sixteen persons who had been taken away from the
stadium from that same pit. 503 The witness stated that the bodies had not completely
decomposed and that he recognized his father’s body immediately from his personal
characteristics and clothing. 504 The witness stated that both feet had been cut off his
father’s body. 505
251. Prosecution Witness LCH testified that, on 15 April 1994, she and her
husband were at the cathedral when Bagambiki came and took them to Kamarampaka
Stadium where they spent the night. 506 The witness testified that, around 4:30 p.m. on
16 April 1994, Bagambiki returned to the stadium with soldiers and stated that he was
going to remove those who posed a threat to the others. 507 The witness then heard
Bagambiki read out the names of fifteen people at the stadium, including that of her
494
T. 14 May 2001 pp. 70, 120-122.
T. 14 May 2001 pp. 71, 123-124.
496
T. 14 May 2001 pp. 71, 123-124.
497
T. 14 May 2001 p. 71.
498
T. 14 May 2001 pp. 71, 124.
499
T. 14 May 2001 pp. 71-72, 107.
500
T. 14 May 2001 pp. 77, 90.
501
T. 14 May 2001 pp. 89-90.
502
T. 14 May 2001 pp. 90-91, 95-96; Prosecution Exhibit 51, picture 1; Prosecution Exhibit 53,
pictures 2 and 5.
503
T. 14 May 2001 p. 93.
504
T. 14 May 2001 pp. 91-92, 97, 126-127, 134.
505
T. 14 May 2001 p. 92.
506
T. 21 May 2001 p. 60.
507
T. 21 May 2001 pp. 59-60.
495
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
67
husband, a Tutsi trader. 508 In addition, she noted that two people were brought from
the parish. 509
252. Witness LCH testified that she identified her husband’s body amongst those
exhumed at Jean-Marie Vianney Habimana’s property on 28 April 2000. 510 Witness
LCH noted that her deceased husband’s left side along his ribs had been ripped
open. 511 The witness attested to learning that assailants removed hearts in order to eat
them. 512 The witness testified that, although she did not personally verify that the
deceased’s heart had been removed, a person accompanying the witness put his hand
into the deceased’s body to confirm that the heart was missing. 513
253. Prosecution Witness NI testified that she fled with her family and neighbours
to Kamarampaka Stadium because of insecurity. 514 After being reminded of her
witness statement, the witness acknowledged that she first spent a few days at
Cyangugu Cathedral prior to moving to the stadium when directed by Bagambiki and
the bishop to do so. 515 Later, the witness testified that she left her home on 15 April
1994, passing through the cathedral and arriving at the stadium in the afternoon of the
same day. 516 Witness NI also testified that she arrived at Cyangugu Cathedral on 7
April 1994 and left for the stadium on 15 April 1994. 517
254. Witness NI stated that she could not estimate the number of people at the
stadium because it was full of mainly Tutsi refugees from the cathedral. 518 She stated
that gendarmes protected the stadium and that church authorities brought food while
she was there. 519 The witness testified that, on 16 April 1994, Bagambiki visited the
stadium, accompanied by soldie rs and others. 520 The witness, who did not personally
know Bagambiki and could not identify him in court, explained that she was told by
people at the stadium that Bagambiki had come. 521 The witness testified that
Bagambiki, who was standing in the middle of the stadium, told the refugees that the
people responsible for the insecurity had to be removed from the stadium and that he
then read aloud a list of seventeen names, including the names of Bernard Nkata,
Benoit Sibomana, Ananias Gatake, Apiani, Trojean, Remy Mihigo, and Gilbert. 522
She recalled that all of the named people answered except for one. 523 The witness
stated that she and other children left the stadium unharmed on 17 April 1994
accompanied by Interahamwe, who had been sent by the children’s parents. 524 The
508
T. 21 May 2001 pp. 60, 62.
T. 21 May 2002 p. 60.
510
T. 21 May 2001 pp. 63-69, 78-81, 91-92, 96-97.
511
T. 21 May 2001 pp. 67, 93-94.
512
T. 21 May 2001 p. 67.
513
T. 21 May 2001 pp. 67-68, 94-96.
514
T. 20 February 2001 pp. 8-9.
515
T. 20 February 2001 p. 29.
516
T. 20 February 2001 p. 44.
517
T. 20 February 2001 pp. 36, 44-47.
518
T. 20 February 2001 pp. 34-36, 49, 64-67
519
T. 20 February 2001 pp. 34, 36.
520
T. 20 February 2001 pp. 8-11, 24, 38.
521
T. 20 February 2001 p. 10.
522
T. 20 February 2001 pp. 12, 15-16, 38-39, 49, 87.
523
T. 20 February 2001 p. 39.
524
T. 20 February 2001 pp. 52-53.
509
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
68
witness stated that while in the Congo she met her father’s driver who told her that the
people taken from the stadium had been killed and that the driver had buried them in a
latrine in Cyimbogo. 525 She stated that her mother confirmed this informatio n,
because she told the witness that she heard the noise made by the killers from her
hiding place. 526 She testified that in April 2000 she was present when the bodies were
exhumed from the latrine. 527
255. Prosecution Witness LAP testified that, on 13, 14, and 23 April 1994,
Imanishimwe, accompanied on 13 and 23 April 1994 by Bagambiki, brought groups
of ten to fifteen Tutsi civilians to a roadblock at Gatandara and that the two were
present while Witness LAP and others killed the civilians. 528 When reminded of his
first statement to Tribunal investigators, the witness recalled that similar events
occurred on 8 and 16 April 1994. 529 Additionally, the witness recalled that, on 14
April 1994, Imanishimwe started a ritual of eating human flesh by roasting and eating
the heart and liver of one of the ten victims and instructing the assailants to eat the
hearts of the Tutsis because the “Tutsis are wicked people.”530
256. Witness LAP testified that, on 16 April 1994, he and about 100 armed
assailants, led by Bagambiki, Imanishimwe, Sub-Prefect Munyangabe, Bourgmestre
Napolean Mubiligi, and Deputy Prosecutor Simeion Nshamihigo, participated in the
removal and execution of sixteen refugees from Kamarampaka Stadium and one
person, Jean-Marie Vianney Habimana, from the Bishop’s residence. 531 The witness
stated that Bagambiki was armed with an R4 rifle and that Munyangabe carried an
Uzi-type weapon. 532 The witness stated that Bagambiki read the names of sixteen
people, including Bernard Ntaka, Benoit, and Apiani, from a pre-established list. 533
The witness explained that Bagambiki and Imanishimwe had previously ordered
Conseiller Mangara to prepare a list of names, which was then written by Mathias
Semageni. 534
257. According to Witness LAP, Bagambiki, Imanishimwe, Mubiligi, and
Nshamihigo removed the sixteen refugees from the stadium, and Bagambiki told the
witness and other assailants, who were waiting outside the stadium’s main gate, to
meet them at the gendarmerie camp at Rusizi I. 535 The witness stated that, shortly
after more than 100 armed assailants arrived at the gendarmerie, Bagambiki,
Imanishimwe, Mubiligi, and Nshamihigo arrived with the seventeen people. 536 The
witness testified that Imanishimwe shot and killed Emilie, who tried to escape. 537 The
525
T. 20 February 2001 p. 18.
T. 20 February 2001 pp. 19, 89, 91.
527
T. 20 February 2001 pp. 19, 20.
528
T. 10 September 2001 pp. 22-26, 30-34; Prosecution Exhibit 40.
529
T. 12 September 2001 p. 92.
530
T. 10 September 2001 p. 28; T. 12 September 2001 pp. 104-105; T. 13 September 2001 p. 70.
531
T. 10 September 2001 pp. 38-39, 40, 41; T. 12 September 2001 p. 106. The witness identified the
date as “the Saturday of the week after President Habyarimana’s death”, which the Chamber notes was
16 April 1994.
532
T. 12 September 2001 p. 109.
533
T. 10 September 2001 pp. 39, 41.
534
T. 12 September 2001 pp. 107, 123; T. 13 September 2001 p. 74.
535
T. 10 September 2001 pp. 41-42.
536
T. 10 September 2001 pp. 42-43.
537
T. 10 September 2001 p. 43.
526
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
69
witness recalled that Bagambiki handed Jean-Marie Habimana over to the assailants
and stated, “What are you waiting for, these people are still around. Act quickly.”538
According to the witness, Bagambiki meant for the assailants to kill the detainees. 539
The witness stated that the assailants then attacked the victims, killing them within
approximately thirty minutes. 540 The witness recalled that after the killing, the
assailants were rewarded with a little money. 541 Witness LAP noted that the bodies of
the seventeen people who were killed in the evening were the n loaded onto a
vehicle. 542
258.
Witness LAP testified that the bodies were unloaded when they reached the
Gatandara roadblock and that the assailants removed the hearts from all except one of
the bodies. 543 The witness recalled that, after removing the hearts, they threw the
corpses into the latrine of Jean-Marie Vianney Habimana’s house, except for the one
whose heart had not been removed, which remained at the roadblock. 544
259. Prosecution Witnesses LCC, LCD, LCE, LCF, and LCG testified that they
were present during the April 2000 exhumation of sixteen or seventeen bodies from a
pit latrine on Jean-Marie Vianney Habimana’s property in Cyimbogo commune. 545
Each witness testified that he or she identified one of the bodies removed from the
grave and gave reasons for the identification. 546 Witnesses LCG, LCE, and LCD also
testified that the hearts and in some cases other organs, limbs, or genitals were
missing from the bodies that they identified. 547
260. Prosecution Exhibit 37 provides the medical examiner’s observations on the
condition of the sixteen bodies exhumed from the pit latrine. The medical examiner’s
report recounts the common characteristics and injuries of all sixteen bodies and
further indicates the individual characteristics and injuries of the bodies of the
following people who were identified by family members and neighbours: Trojan
Nzisabira, Dominique Mugabo, Bernard Nkata, Ananias Gatake, Eliphase, Albert
Twagiramungu, Remy Muhigo, Albert Mugabo, Felicien Musabimana Benoit
Sibomana, Jean-Marie Vianney Habimana, Fidèle Murekezi, Ibambasi, Leonard
Nsengiyumba, and Apian Ndolimana. The report indicates that several of the bodies
had injuries but that the sexual organs of the bodies were not mutilated.
261. Prosecution Witness NG-1 testified that he arrived at Kamarampaka Stadium
on 26 April 1994 and remained there for about one to two weeks. 548 The witness
538
T. 10 September 2001 p. 44.
T. 10 September 2001 p. 44.
540
T. 10 September 2001 pp. 44-45; T. 13 September 2001 p. 44.
541
T. 10 September 2001 p. 45.
542
T. 10 September 2001 p. 45.
543
T. 10 September 2001 p. 45.
544
T. 10 September 2001 pp. 45-46; T. 13 September 2001 pp. 44-45.
545
T. 15 May 2001 pp. 17-20, 95; T. 16 May 2001 pp. 17, 19-22, 108; T. 17 May 2001 pp. 48-49; T. 21
May 2001 pp. 5-7, 27-28; T. 4 June 2001 pp. 60-62, 63-64, 108-111.
546
T. 15 May 2001 pp. 20-24, 26-27, 38, 42, 49-50, 57, 60-62, 65, 67-70, 73, 81, 84, 100, 103; T. 16
May 2001 pp. 23-24, 65-66; T. 21 May 2001 pp. 8, 31, 37-39; T. 4 June 2001 pp. 56-58, 60-62, 63-64,
96-106, 108-109.
547
T. 16 May 2001 p. 25; T. 17 May 2001 pp. 15, 45, 47-48, 90; T. 21 May 2001 pp. 8, 38-39; T. 4
June 2001 pp. 60-62, 110.
548
T. 23 November 2000 pp. 53-55, 58-59.
539
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
70
stated that while there, he saw priests give mass and on one occasion he saw food
delivered from the bishopric. 549 The witness stated that the stadium guards were
everywhere, but were primarily concentrated at the front entrance. 550 The witness
stated that Interahamwe surrounded the stadium and that they sometimes came into
the stadium in groups of two to five and walked around, but did not harm anyone
inside. 551 The witness testified that, from the second day he arrived at the stadium,
there was a selection of refugees by gendarmes or soldiers. 552 According to the
witness, the soldiers or gendarmes selected refugees, including George Nkusi, from
the stadium and handed them over to Interahamwe who took them to Gatandara to be
killed. 553 The witness also testified that, on one occasion around midnight, two
grenades were thrown into the stadium, wounding a woman. 554 The witness stated that
he left the stadium with church authorities who took the injured woman to receive
care. 555
262. Prosecution Witness LH testified that Bagambiki, whom he was unable to
identify in court, visited the Gihundwe school and told the refugees there that they
were to be moved to join other refugees at Kamarampaka Stadium. 556 He testified
that, when he arrived at the stadium, he found approximately 3,000 to 4,000 Tutsi
refugees already there. 557 The witness testified that, on 20 April 1994, Bagambiki
came to the stadium with four soldiers and that he called out names from a list. 558 The
witness stated that approximately thirty people were taken away and that they never
returned. 559
263. Witness LH testified that four more people were taken on 22 April 1994,
among whom the witness recognized George Nkusi who worked at the public
prosecutor’s office. 560 The witness testified that the refugees telephoned Bishop
Thadée who came to the stadium and asked Bagambiki where they were taking the
selected refugees and that Bagambiki told the bishop that the people were being taken
away for questioning and that they would return. 561
264. Witness LH testified that, after the four people had been returned to the
stadium, Bagambiki returned to the stadium and one of his soldiers cut the telephone
line. 562 He recounted that names were again read from a list but that the refugees were
too afraid to respond, so the soldiers lined people up in rows and selected thirty
people, including the witness. 563 The witness stated that those who could not fit into a
double-cabin vehicle were taken on foot to Gatandara where there was a roadblock
549
T. 28 November 2000 pp. 33, 36.
T. 28 November 2000 pp. 114-115.
551
T. 28 November 2000 p. 115.
552
T. 23 November 2000 pp. 53-54; T. 28 November 2000 pp. 115-116.
553
T. 23 November 2000 pp. 53-54; T. 28 November 2000 pp. 115-116.
554
T. 23 November 2000 p. 55; T. 28 November 2000 pp. 33-34.
555
T. 28 November 2000 pp. 33-35.
556
T. 31 January 2001 pp. 26-29, 49-51.
557
T. 31 January 2001 p. 29.
558
T. 31 January 2001 pp. 30-31.
559
T. 31 January 2001 pp. 30-31.
560
T. 31 January 2001 p. 31.
561
T. 31 January 2001 pp. 31-32.
562
T. 31 January 2001 pp. 32-33.
563
T. 31 January 2001 p. 33-34.
550
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
71
manned by Interahamwe.564 The witness stated that the soldiers first looted the
refugees’ belongings before authorizing the Interahamwe to kill them. 565 He
recounted that the Interahamwe began with the first row of people and that they hit
the first man with a machete until he died, before attacking the next person in line. 566
The witness testified that he was fourth in the line, and that he escaped by jumping
into Gatandara River, where he stayed until 1:00 a.m., when he returned to the
stadium as he had nowhere else to go. 567
265. Witness LH testified that in the days following his return to the stadium,
Bagambiki and accompanying soldiers took away approximately thirty more
refugees. 568 The witness stated that he then left the stadium and hid at the homes of
friends and in the Gihundwe forest before eventually returning to the stadium out of
hunger, thirst, and fear. 569 He testified that, when he returned to the stadium, the
practice of Bagambiki and his soldiers coming to select people had ended. 570
266. Prosecution Witness LBH testified that approximately one week after he
sought refuge at the Gihundwe school, Bagambiki visited the school with
Imanishimwe, a gendarme major, and Nshamihigo, and ordered that the refugees be
transferred to Kamarampaka Stadium to ensure their security. 571 The witness stated
that the refugees went to the stadium the following day where they joined people who
had been transferred there from Cyangugu Cathedral to ensure their security. 572 He
testified that he stayed at Kamarampaka Stadium for approximately one month. 573 He
explained that most of the refugees at the stadium were Tutsis, but that some were
Hutu members of the opposition parties. 574 The witness testified that outside the
stadium were soldiers and Interahamwe who were waiting to kill the refugees rather
than to protect them. 575
267. Witness LBH stated that Bagambiki came to the stadium on several occasions
to look for people whose names were on a list to be killed and testified that he was
selected three times. 576 The witness recalled that, on the first occasion, Imanishimwe
was with Bagambiki. 577 The witness was unable to remember the date but admitted
that he told prosecution investigators that the first selection took place on 24 April
1994, explaining that the date was only approximate. 578 He testified that, on the first
occasion, Bagambiki did not read his name from a list; he was simply taken in a small
white pickup along with thirty to thirty-five others, including Darividon, Ncogoza,
564
T. 31 January 2001 pp. 33-34, 36.
T. 31 January 2001 pp. 36-37.
566
T. 31 January 2001 p. 37.
567
T. 31 January 2001 pp. 37-40, 56-59
568
T. 31 January 2001 pp. 39-41.
569
T. 31 January 2001 pp. 41-47.
570
T. 31 January 2001 p. 47.
571
T. 13 February 2001 pp. 76-79.
572
T. 13 February 2001 p. 80.
573
T. 13 February 2001 p. 80; Prosecution Exhibit 40, picture 8.
574
T. 19 February 2001 p. 78.
575
T. 20 February 2001 pp. 3-4.
576
T. 13 February 2001 p. 81, 83; T. 19 February 2001 p. 69.
577
T. 19 February 2001 pp. 68-69.
578
T. 15 February 2001 p. 11.
565
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
72
and Dieudonne Harerimana, to the Gatandara River bridge. 579 The witness stated that
Bagambiki, Imanishimwe, and Nshamihigo were all present when he arrived at
Gatandara but that they left immediately after the refugees were handed over to the
Interahamwe.580 The witness explained that, when the shooting began, there were also
people attacking the refugees with machetes and that on this occasion he avoided
being killed by running through the river back to Kamarampaka Stadium, because
there was no other place of refuge. 581
268. Witness LBH testified that he was selected at the stadium for the second time
one or two days later and that he was again taken to Gatandara but that he again
escaped from more than fifteen Interahamwe.582 The witness stated that he escaped
with the same people on each occasion, including Dieudonne Harerimana and
Ncogoza, who was a Hutu. 583 The witness stated that he returned to the stadium after
each escape from Gatandara because there was nowhere else for him to go. 584 Defence
counsel read from the witness’s prior statement that “on the 24th of April I was taken
to Gatandara bridge along with three women to be killed”, and the witness explained
that this happened on the second occasion. 585 The witness further explained that they
were taken out of the stadium but that the women did not accompany them to the
bridge, but rather stayed with the soldiers. 586
269. Witness LBH could not recall how many days after the second occasion he
was taken to the bridge for the third time. 587 Witness LBH stated that, after two
rounds of selections, the refugees would not answer when called and as a result all the
men, including children, were taken away to be killed. 588 The witness stated that at the
third selection, rather than being singled out, people were taken away in groups and
then ordered onto the vehicle by Bagambiki. 589 The witness stated he was in a group
of about thirty to thirty- five persons who were taken to the Gatandara bridge and that
only three people from this group survived by escaping to the stadium. 590
270. Witness LBH testified that he saw many other people being selected to be
killed, including Professor Karemera, Georges Nkusi, Darividon, Ncogoza,
Dieudonne Harerimana. 591 He also heard of the selection of Ananiase Gatake, Gaperi,
and Gapfumu, a trader. 592 The witness stated that Nkusi was taken away by a soldier
in the presence of Bagambiki and was later killed. 593 The witness testified that
579
T. 13 February 2001 pp. 83-84; T. 15 February 2001 pp. 10-11; T. 19 February 2001 pp. 72.
T. 13 February 2001 p. 84.
581
T. 13 February 2001 pp. 84-85; T. 15 February 2001 pp. 13-16, 25.
582
T. 15 February 2001 pp. 19-20.
583
T. 15 February 2001 p. 20; T. 19 February 2001 p. 79.
584
T. 15 February 2001 pp. 14-15, 25.
585
T. 15 February 2001 pp. 12, 22-23
586
T. 15 February 2001 p. 24.
587
T. 15 February 2001 p. 25.
588
T. 13 February 2001 p. 86.
589
T. 13 February 2001 p. 86; T. 15 February 2001 p. 21.
590
T. 13 February 2001 p. 87; T. 15 February 2001 p. 21; T. 19 February 2001 p. 76.
591
T. 13 February 2001 p. 102; T. 14 February 2001 p. 91; T. 15 February 2001 pp. 9-10, 15; T. 19
February 2001 pp. 15-16.
592
T. 13 February 2001 pp. 81-82; T. 15 February 2001 pp. 7-9.
593
T. 13 February 2001 p. 103; T. 15 February 2001 pp. 16-17.
580
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
73
Nkusi’s wife and children were at the stadium with him and that people who knew
Nkusi’s wife said that she was Bagambiki’s niece. 594
271. Witness LBH stated that, on 28 April 1994, there were approximately 5,000
refugees at the stadium, who were guarded by one gendarme. 595 The witness testified
that at 5:00 a.m. all of the refugees attempted to escape by forcing their way out of the
stadium in order to seek refuge in Zaire. 596 The witness testified that the refugees took
the road going below the prison and up to the prefecture, with the intention of going to
Zaire on foot. 597 When confronted with his prior statement that they intended to cross
the border by swimming across the Rusizi River, the witness explained that they
intended to use the bridge and to appeal to the people guarding the border. 598 The
witness stated that, when they left, the stadium the gendarme guarding them fired a
shot into the air, as did the gendarmes in the camp 250 metres from the stadium and
the supervisors of the prison, and then he heard shots from the Karambo military
camp. 599 The witness testified that the refugees did not succeed in reaching Zaire, as
approximately half an hour later they were stopped by Bagambiki, Imanishimwe, and
Deputy Prosecutor Nshamihigo at the office of the prefecture. 600 The witness stated
that Bagambiki asked the refugees where they were going, and that when, they
explained that they were seeking refuge in Zaire because of the killings at the
Gatandara bridge, Ima nishimwe told them to go back and said that no more people
would be taken. 601
272. Witness LBH testified that, as soon as the refugees turned around to return to
the stadium, soldiers started shooting and throwing grenades at them and that, when
they tried to run to the stadium, Interahamwe attacked them with grenades, clubs, and
machetes to the extent that fewer than 1,000 people managed to return to the
stadium. 602 The witness stated that Bagambiki and Imanishimwe were present
throughout the attack and that the attack did not begin until Bagambiki and
Imanishimwe ordered the refugees to return to the stadium. 603 The witness confirmed
that about 4,000 people, mainly women, children, and the elderly who could not run
as fast, were killed on the road from the prefecture to the stadium, between 5:00 a.m.
and 8:00 a.m. 604 The witness stated that he had no knowledge of any burial of the
bodies and that he heard that the bodies were thrown into the river which flows into
Lake Kivu. 605 The witness testified that between 28 April and 11 May 1994 no more
people were taken from the stadium, nor were there any further attacks. 606
594
T. 13 February 2001 p. 102; T. 15 February 2001 p. 16; T. 19 February 2001 pp. 16-17.
T. 13 February 2001 p. 109; T. 19 February pp. 80-81, 87, 89.
596
T. 13 February 2001 pp. 104-105, 109; T. 15 February 2001 pp. 25-27; T. 19 February 2001 pp. 8082.
597
T. 15 February 2001 pp. 28-29.
598
T. 15 February 2001 pp. 29-31.
599
T. 19 February 2001 pp. 5, 87-88; T. 19 February 2001 p. 43.
600
T. 13 February 2001 p. 106; T. 15 February 2001 pp. 28, 33; T. 19 February 2001 pp. 5-6.
601
T. 13 February 2001 p. 106; T. 19 February 2001 pp. 88-89.
602
T. 13 February 2001 p. 110; T. 19 February 2001 pp. 89-90.
603
T. 13 February 2001 p. 110; T. 15 February 2001 p. 33.
604
T. 19 February 2001 pp. 7-8, 82, 90-93.
605
T. 19 February 2001 pp. 96-97.
606
T. 19 February 2001 p. 100.
595
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
74
273. Bagambiki testified that in April 1994 more than 3,000 refugees gathered at
Cyangugu Cathedral and that the prefectural authorities asked the gendarmes to
ensure their safety. 607 He recalled that, from 7 April 1994, the commander of the
gendarmerie posted four gendarmes at the cathedral. 608 Bagambiki testified that the
cathedral was not large enough to house the refugees, that it lacked sufficient water
and toilets, and that it was difficult to ensure security there because the area was not
fenced. 609 He testified that, beginning on 11 April 1994, there were attempted attacks
on the refugees gathered at the cathedral and that the commander of the gendarmerie
reinforced his team at the cathedral by adding five to seven gendarmes. 610
274. Bagambiki explained that he convened a security council meeting on 11 April
1994 in the auditorium of the court of first instance next to the prefectural
administration buildings, which meeting was enlarged to involve all the sub-prefects
and bourgmestres, as well as Bishop Thadée. 611 Bagambiki stated that the agenda of
the meeting was to receive precise details on the prevailing security situation in each
commune, including where refugees had gathered, and to adopt appropriate measures
to restore calm as soon as possible. 612 Bagambiki testified that the participants at the
meeting decided to dispatch gendarmes to protect refugees who were beginning to
gather at various places in the prefecture. 613 Bagambiki recalled that just as the
meeting was starting, around 10:30 or 11:00 a.m., they received a telephone call about
an attack at the cathedral. 614 Bagambiki testified that he, the commander of the
gendarmerie, and the bishop immediately went outside where they heard gunfire and
saw refugees running in all directions. 615 He testified that they proceeded to the
cathedral where the vicar told them that a vehicle belonging to Munyakazi came and
took away Munyakazi’s son- in- law, one of the refugees. 616 He testified that the
gendarmerie commander made enquiries and was told that the gendarmes had fired
their guns to push back the attackers. 617 Bagambiki testified that he explained the
situation to the refugees. 618 Bagambiki recalled that there were further attacks on 11
April 1994, all of which were foiled by the gendarmes, sometimes with the assistance
of the bishop. 619
275. Bagambiki testified that it was difficult to protect the refugees at the cathedral
because of its unfenced location at the bottom of a slope, near a wooded area. 620
Bagambiki recalled that, on 14 April 1994, Bishop Thadée called to ask him to find a
better place for the refugees. 621 He testified that a meeting was held with the bishop
607
T. 1 April 2003 p. 15.
T. 1 April 2003 p. 16.
609
T. 1 April 2003 p. 15.
610
T. 1 April 2003 p. 16-17.
611
T. 27 March 2003 pp. 27, 38; T. 1 April 2003 p. 16.
612
T. 27 March 2003 p. 38; T. 31 March 2003 p. 17.
613
T. 27 March 2003 p. 38.
614
T. 1 April 2003 pp. 16, 17.
615
T. 1 April 2003 pp. 16-17.
616
T. 1 April 2003 p. 16.
617
T. 1 April 2003 p. 17.
618
T. 1 April 2003 p. 17.
619
T. 1 April 2003 p. 17.
620
T. 1 April 2003 pp. 17-18.
621
T. 1 April 2003 p. 18.
608
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
75
and other ecclesiastical authorities during which Bagambiki told them that he would
consult with his colleagues to determine where the refugees should be moved. 622
Bagambiki testified that he then met with the sub-prefects and called the commander
of the gendarmerie, other members of the security council, and the head of the urban
affairs department. 623 He testified that they examined all of the possible sites near the
prefecture and determined that Kamarampaka Stadium was suitable for the
refugees. 624 He explained that the stadium was bigger than the cathedral and had a
high wall, electricity, a telephone, many water taps, toilets, changing rooms, and a
covered area. 625 He testified that he requested the urban affairs official to ensure that
these facilities were in good working order and, with the assistance of the Rwandan
Red Cross, dug a pit latrine to increase the toilet capacity. 626 He testified that the
stadium was also preferable because it could be seen from the gendarmerie camp,
allowing better security. 627
276. Bagambiki testified that he telephoned the bishop around 2:00 p.m. on 15
April 1994 to inform him of the decision to transfer the refugees to the stadium and
that they agreed to meet at the cathedral one hour later. 628 Bagambiki stated that he
and some of the members of the security council went to the cathedral around 3:00
p.m., where they gathered the refugees to inform them of the decision to move them
to the stadium. 629 Bagambiki testified that he explained to the refugees that the
transfer was in order to ensure their security. 630 Bagambiki testified that the refugees
seemed hesitant about the transfer but agreed to it after the bishop, the vicar, and the
commander of the gendarmerie explained the reasons for the move. 631 He testified that
the bishop reassured the refugees that the church would continue to work with the
authorities to provide for their needs at the stadium. 632
277. Bagambiki denied the allegation that he threatened the refugees who were not
willing to go to the stadium with death. 633 Bagambiki recalled that it was agreed that
certain people would remain at the cathedral, including members of religious orders,
the church staff, certain seminarians, and those who were ill. 634
278. Bagambiki testified that, on 15 April 1994, approximately 3,000 to 3,500
refugees, the majority of whom were Tutsi, were transferred from the cathedral to the
stadium without incident. 635 He recalled that, on 16 April 1994, the commander of the
gendarmerie informed him of an imminent attack on the stadium by a crowd of
assailants. 636 He recounted that he and the gendarmes successfully repulsed the attack
622
T. 1 April 2003 p. 18.
T. 1 April 2003 p. 18.
624
T. 1 April 2003 p. 20.
625
T. 1 April 2003 p. 20.
626
T. 1 April 2003 p. 20, 21.
627
T. 1 April 2003 p. 20.
628
T. 1 April 2003 p. 21.
629
T. 1 April 2003 p. 21.
630
T. 1 April 2003 p. 21.
631
T. 1 April 2003 p. 21.
632
T. 1 April 2003 p. 22.
633
T. 1 April 2003 p. 22.
634
T. 1 April 2003 p. 22.
635
T. 1 April 2003 pp. 22-23.
636
T. 1 April 2003 pp. 23-24.
623
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
76
at around 11:00 a.m. or 12:00 a.m. 637 He recalled that the gendarmes defended the
stadium against further attacks in the afternoon of 16 April and on 17 April 1994. 638
279. Bagambiki testified that he was informed by the commander of the
gendarmerie that the attackers gave a list of persons within the stadium who were
rumoured to be armed, to be communicating by radio with the RPF and the RPA, and
to be preparing to attack their neighbours. 639 He recalled that he recognized some of
the names on this list, including Marianne Baziruwiha, the head of the PSD party, and
Jean-Marie Vianney Habimana. 640 Bagambiki testified that he consulted with the
commander of the gendarmerie who explained that with only forty gendarmes
available he could not assure effective protection of the refugees against a crowd of
attackers. 641 Bagambiki then consulted with members of the security council, who
wanted to protect the refugees within the stadium without handing over to the
assailants the persons on the assailants’ list. 642 He explained that the best solution was
for the prosecutor, under the protection of the gendarmes, to commit to questioning
the listed persons in order to establish that they did not have weapons or radios. 643
Bagambiki admitted that, in hindsight, the decision was risky but that at the time they
thought it was the only way to protect the refugees in the stadium and the persons on
the list. 644 He explained that it was up to the commander of the gendarmerie to decide
whether to call for the assistance of the military but that, in light of his experience on
15 April 1995 at Nyamasheke, he believed that if the listed people were removed the
assailants would not attack. 645
280. Bagambiki testified that he first went to the cathedral in order to pick up the
four listed persons who remained there. 646 He explained the situation to the priests at
the cathedral, who, themselves familiar with the events in Nyamasheke, were not
opposed.647 He testified that the religious authorities called the people together to
explain the situation and that the four listed persons got into the car without being
forced. 648
281. Bagambiki testified that he then went to the stadium and explained the
situation to the refugees, who applauded the decision to remove the sixteen or
seventeen listed persons in order to ensure the safety of the stadium. 649 He stated that
the commander of the gendarmerie took the floor and read the list of names from a
sheet of paper. 650 He testified that the listed people were transported in the
prosecutor’s truck, which was escorted by gendarmes to ensure their safety. 651
637
T. 1 April 2003 p. 24.
T. 1 April 2003 p. 24.
639
T. 1 April 2003 pp. 24-25.
640
T. 1 April 2003 p. 24.
641
T. 1 April 2003 p. 25.
642
T. 1 April 2003 p. 25.
643
T. 1 April 2003 p. 25.
644
T. 1 April 2003 pp. 25-26.
645
T. 1 April 2003 p. 26.
646
T. 1 April 2003 p. 26.
647
T. 1 April 2003 p. 26.
648
T. 1 April 2003 pp. 26-27.
649
T. 1 April 2003 p. 27.
650
T. 1 April 2003 pp. 27-28.
651
T. 1 April 2003 p. 28.
638
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
77
Bagambiki testified that he then returned home and did not accompany the refugees to
the prosecutor’s office. 652 According to Bagambiki, the prosecutor informed him that,
after arriving at the prosecutor’s office, the commander of the gendarmerie agreed to
keep the refugees in the judicial brigade at Rusizi I and to conduct the interviews the
following day. 653 He recalled that, because of a lack of available cells, Marianne
Baziruwiha was taken to the home of the commander. 654 Bagambiki testified that he
learned the following morning, 17 April 1994, that a crowd of assailants attacked the
cells, which were protected only by a few gendarmes, and killed the detainees. 655 He
testified that he was informed by the Red Cross that the bodies were collected on 18
April 1994 to be buried in Mururu. 656 He testified that after 17 April 1994 the security
situation at the stadium was stable. 657
282. Bagambiki testified that after the transfer of the refugees from the cathedral on
15 April 1994, refugees continued to arrive at the stadium from other places. 658 He
explained that he often provided transportation and gendarmes to aid such transfers.659
283. Bagambiki testified that, on 29 April 1994, a small group of refugees sought to
convince the others that they should leave the stadium by force but that the others
refused. 660 He recalled that when the group tried to leave, the gendarmes told them it
was too dangerous and shot in the air to dissuade them. 661 He stated that there were no
deaths or massacres at the stadium and admitted that it was possible that he may have
sent a communiqué to Radio Bukavu to deny fabricated RPF claims of massacres. 662
He explained that the stadium was not a prison and that refugees could leave it to
shop. 663
284. Bagambiki also testified that he had a good relationship with Georges Nkusi,
who was married to one of his nieces. 664 He testified that, on 7 April 1994, when
Nkusi took refuge without contacting his family, he collected his wife and children
and took them into his home. 665 He recalled that on this occasion it took him thirty
minutes to negotiate his way through a roadblock because those manning the
roadblock alleged that Nkusi’s family members were Inkotanyi accomplices. 666
Bagambiki explained that this was an example of the deterioration of the prefect’s
administrative authority. 667 He later learned that Nkusi first hid in the home of an
expatriate and then sought refuge at the vicar’s home at the cathedral. 668 Bagambiki
652
T. 1 April 2003 p. 28.
T. 1 April 2003 p. 28.
654
T. 1 April 2003 p. 28.
655
T. 1 April 2003 p. 28.
656
T. 1 April 2003 p. 29.
657
T. 1 April 2003 p. 31.
658
T. 1 April 2003 p. 30.
659
T. 1 April 2003 p. 30.
660
T. 1 April 2003 p. 31.
661
T. 1 April 2003 p. 31.
662
T. 3 April 2003 pp. 6-8, 12-13.
663
T. 1 April 2003 p. 31.
664
T. 1 April 2003 p. 40.
665
T. 1 April 2003 pp. 40-41.
666
T. 1 April 2003 p. 41.
667
T. 1 April 2003 p. 41.
668
T. 1 April 2003 p. 42.
653
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
78
testified that Nkusi’s family remained in touch with Nkusi and that Bagambiki, Nkusi
and Nkusi’s family decided that Nkusi would be safer at the priest’s residence than at
Bagambiki’s home. 669 Bagambiki testified that, after returning from a pacification
meeting in Mibilizi on the evening of 28 April 1994, he learned that Nkusi had been
“intercepted” at the stadium and killed and that the Red Cross found his body on the
road near Mururu. 670
285. Bagambiki testified that he was aware that there was a roadblock near the
Gatandara bridge manned by the local population, including criminals. 671 He
explained that he had demanded the removal of the roadblock which occurred
sometime before June 1994. 672 Bagambiki stated that he was never in Gatandara while
people were being killed. 673
286. Imanishimwe testified that he was aware that refugees were at Cyangugu
Cathedral since the death of Bucyana in February 1994 and that more joined them
after 6 April 1994. 674 Imanishimwe denied participating in a meeting at the cathedral
on 14 April 1994, where he was alleged to have stated that the refugees would die if
the church authorities did not tell the RPF to stop the combat. 675 He stated that the
ecclesiastical authorities asked the prefectural authorities to find another place for the
refugees at the cathedral because there had been a number of attacks on them there
and the infrastructure of the cathedral was not sufficient to hold a large number of
refugees. 676 Imanishimwe stated that Kamarampaka Stadium was selected because it
was fenced, covered on one side, and had health facilities, water, toilets, and
telephone lines. 677 He recalled that the refugees were moved from the cathedral to the
stadium around 15 April 1994. 678
287. Imanishimwe testified that he did not come to the cathedral on 16 April 1994
or on any other date, accompanied by Munyarugerero, Ndolimana, and soldiers, to
search for and arrest four individuals and take them away, as alleged by Witness
LY. 679 Imanishimwe testified that the stadium was guarded by gendarmes, not by
soldiers as alleged by Witness NL. 680 Imanishimwe stated that he went to the stadium
on the day when the refugees were moved but that he never returned there after that
because the mission was entrusted to the gendarmes and he no longer had a role in
it. 681
288. Imanishimwe testified that, on 11 April 1994, his soldiers did not arrest
civilians at the Jesuit Novitiate and did not take them to the Karambo camp. 682
669
T. 1 April 2003 p. 42.
T. 1 April 2003 p. 42.
671
T. 1 April 2003 p. 44.
672
T. 1 April 2003 pp. 44-45.
673
T. 1 April 2003 p. 45.
674
T. 22 January 2003 p. 41.
675
T. 22 January 2003 p. 39.
676
T. 22 January 2003 p. 41.
677
T. 22 January 2003 p. 41.
678
T. 22 January 2003 p. 41.
679
T. 22 January 2003 p. 42; T. 22 January 2003 p. 48 (French).
680
T. 22 January 2003 pp. 41-47.
681
T. 22 January 2003 pp. 41-42.
682
T. 22 January 2003 p. 18.
670
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
79
Imanishimwe testified that he met Witness LY on one occasion but that he never
spoke with him on the telephone to set up an appointment. 683 Imanishimwe noted that,
on 11 April 1994, he attended the prefectural security meeting, which gathered
bourgmestres and was expanded to include church leaders, from before 10:00 a.m.
until around 3:00 p.m. 684 Imanishimwe stated that he did not see Witness LY at the
meeting and that he did not see anyone fetch the bishop during the meeting. 685
According to Imanishimwe, at the end of the meeting he returned to the camp, and his
soldiers did not tell him that Witness LY had come there looking for him. 686
289. Imanishimwe denied that Witness LI could have seen him at the Karambo
camp on 11 April 1994, because he was at the prefectural security meeting. 687 He
recalled that on that day he arrived at the prefecture office before 10:00 a.m. and that
the meeting concluded around 3:00 p.m., at which time he returned to the military
camp. 688 Imanishimwe stated that no civilians were brought to the camp and, as such,
none could have been detained or tortured there, as claimed by Witness LI. 689 He
testified that no civilian was ever detained in the military jail at the camp, which was
reserved for disciplining military personnel. 690 Imanishimwe denied ordering his
soldiers to kill civilians at the camp or being informed that civilians were killed
there. 691
290. Imanishimwe testified that he went to Kamarampaka Stadium on the day the
refugees were moved there from the cathedral. 692 Imanishimwe testified that he was
aware that the gendarmes and the prosecutor arrested individuals at Kamarampaka
Stadium and removed them for questioning at the prosecutor’s office. 693 He explained
that the prosecutor and commander of the gendarmerie were trying to verify rumours
that certain refugees in the stadium were in contact with the RPF, because elements of
the local population had threatened to attack the stadium on that ground. 694 He learned
that the detainees were moved to Rusizi I gendarmerie brigade for the night and that
the population, who were following the developments, attacked the brigade, which
was insufficiently protected by perhaps two or three gendarmes, and killed the
refugees there. 695 Imanishimwe noted that he was told that the bodies were transported
to the Mururu cemetery. 696 Imanishimwe noted that one woman, who was arrested
with the refugees, was taken to the gendarmerie camp and was thereby saved from
being killed. 697 Imanishimwe stated that he deplored the killing of the refugees. 698
683
T. 22 January 2003 p. 18.
T. 22 January 2003 pp. 18-19.
685
T. 22 January 2003 p. 19.
686
T. 22 January 2003 p. 19.
687
T. 22 January 2003 p. 19.
688
T. 22 January 2003 p. 19.
689
T. 22 January 2003 p. 20.
690
T. 22 January 2003 p. 20.
691
T. 22 January 2003 p. 20.
692
T. 22 January 2002 pp. 41-42.
693
T. 22 January 2003 p. 42.
694
T. 22 January 2003 p. 42.
695
T. 22 January 2003 pp. 42, 43.
696
T. 22 January 2003 p. 43; T. 23 January 2003 p. 61.
697
T. 22 January 2003 p. 42-43.
698
T. 22 January 2003 p. 43; T. 23 January 2003 p. 61.
684
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291. Imanishimwe stated that he did not meet with 5,000 refugees attempting to
escape from the stadium on the morning of 28 April 1994 and that his soldiers did not
kill these refugees. 699 Imanishimwe explained that to kill thousands of refugees would
require massive weapons and that with individual weapons one hundred people could
not kill that many people in such a short time. 700 Imanishimwe stated that he did hear
about refugees trying to flee the stadium and that they were turned back by gendarmes
shooting in the air. 701
292. Imanishimwe acknowledged that there was a roadblock at Gatandara in April
1994 but stated that he never took anyone there to be killed. 702 Imanishimwe
explained that the roadblock was manned by the local population and that he never
assigned any soldiers to it. 703 He testified that Witness LAP was not one of his
soldiers. 704 He noted that the roadblock was removed after the people manning it
killed three individuals from Kigali in an attempt to steal their vehicle. 705
293. Bagambiki Defence Witness Theodore Munyangabe, a sub-prefect in
Cyangugu in 1994, testified that, on 9 April 1994, there were between fifty and one
hundred refugees at Kamarampaka Stadium and that the refugee population at the
stadium grew to several thousand by 20 April 1994. 706 According to what the witness
had heard, people in the stadium were killed by Interahamwe when they left the
stadium by choice, but Imanishimwe and Bagambiki did not remove people from the
stadium to kill them. 707
294. Imanishimwe Defence Witness PBB testified that, on 11 April 1994, he
attended a prefectural security meeting, which included the commander of the military
camp and the Bishop of Cyangugu. 708 He testified that during the meeting the bishop
proposed that the refugees at his parish be transferred to Kamarampaka Stadium. 709
The witness testified that the refugees were transferred to the stadium because the
cathedral lacked sufficient sanitary facilities. 710 The witness stated that he thought that
at the stadium the refugees were protected by the gendarmerie. 711
295. Witness PBB testified that during the prefectural security council meeting,
around 20 April 1994, the commander of the gendarmerie explained that it was
believed that certain people at the stadium were RPF infiltrators and that, therefore,
people wanted to attack the stadium. 712 He recalled that the gendarmerie commander
explained that, in order to protect the security of the other people and to verify the
information, he and the prosecutor summoned approximately fifteen refugees to the
699
T. 22 January 2003 p. 44.
T. 22 January 2003 pp. 44-45.
701
T. 22 January 2003 p. 46.
702
T. 22 January 2003 pp. 26, 27, 28.
703
T. 22 January 2003 pp. 26, 27.
704
T. 22 January 2003 p. 27.
705
T. 22 January 2003 p. 28.
706
T. 24 March 2003 pp. 3-4, 19, 34.
707
T. 25 March 2003 pp. 35-36.
708
T. 4 November 2002 pp. 18-19; T. 5 November 2002 p. 38.
709
T. 4 November 2002 p. 29.
710
T. 4 November 2002 p. 28.
711
T. 4 November 2002 p. 29.
712
T. 4 November 2002 pp. 29-30.
700
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prosecutor’s office for hearings. 713 He testified that he was informed that because the
hearings could not start on the same day, the detainees were taken to the gendarmerie
brigade at Rusizi I, except for the female detainee who was taken to the commander’s
home. 714 He testified that the gendarmerie commander informed the security council
that during the night the brigade was attacked and the detainees were killed. 715 The
witness stated that the security council received this information but did not take
action in response. 716 Witness PBB testified that, in the course of his intelligence
gathering, he did not find that RPF operatives were communicating with the enemy
from Kamarampaka Stadium. 717
296. Witness PBB testified that he did not hear of the flight of great numbers of
refugees from Kamarampaka Stadium in April 1994. 718 The witness explained that
Bukavu regional radio broadcast false information about 4,000 people having been
killed at the stadium in April 1994. 719 The witness testified that, on the following
morning, he personally transported a press release written by the Bagambiki denying
the information concerning the deaths at the stadium. 720 The witness testified that, to
the best of his knowledge, there were no deaths at Kamarampaka Stadium. 721
297. Bagambiki Defence Witness Bernadette Mukandekezi, Bagambiki’s wife,
recalled that, on 7 April 1994, her niece called around 6:00 p.m. to seek advice about
the safety of her husband Nkusi. 722 According to the witness, Bagambiki went to
collect his niece and others with her. 723 Mukandekezi testified that Nkusi’s wife and
others stayed at her house until she and Bagambiki were exiled in July 1994. 724 Also,
the witness stated that she, Nkusi, and Bagambiki believed it better for George Nkusi
to remain anonymous with Abbey Ndolimana instead of coming to Bagambiki’s
house, where he risked being identified and jeopardizing the rest of his family. 725
298. Bagambiki Defence Witness FLZ testified that his house was near the Rusizi I
brigade. 726 The witness testified that in April 1994 he heard that some of the refugees
at Kamarampaka Stadium had been moved to the gendarmerie brigade and that
unidentified people invaded the brigade, armed with rifles, machetes, and spears, and
massacred the refugees. 727 The witness noted that he did not personally witness those
events because after 6 April 1994 he was in hiding but that he heard gunshots at the
brigade. 728 The witness stated that he later learned that Bagambiki came to the
713
T. 4 November 2002 p. 30.
T. 4 November 2002 p. 30.
715
T. 4 November 2002 p. 30.
716
T. 5 November 2002 p. 41.
717
T. 5 November 2002 p. 14.
718
T. 4 November 2002 p. 31.
719
T. 4 November 2002 pp. 31-32.
720
T. 4 November 2002 p. 32.
721
T. 5 November 2002 pp. 68, 70.
722
T. 10 March 2003 p. 35.
723
T. 10 March 2003 p. 35.
724
T. 10 March 2003 p. 37.
725
T. 10 March 2003 p. 37.
726
T. 11 March 2003 p. 13.
727
T. 11 March 2003 pp. 14, 19-20.
728
T. 11 March 2003 p. 14.
714
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stadium with a list of seventeen people suspected of being RPF infiltrators. 729
According to what the witness learned, Bagambiki told the refugees at the stadium
that people were preparing to attack the stadium and kill the seventeen people
suspected of being RPF infiltrators and that, in order to protect themselves, the
seventeen people should leave the stadium for questioning at the prosecutor’s
office. 730 The witness stated that he learned from refugees at Nyarushishi camp that
his friend Sibomana was amongst those killed. 731
299. Witness FLZ stated that the people from the stadium who were killed were
buried at Jean-Marie Habimana’s house in Mutongo, in Cyimbogo commune. 732 The
witness noted that in November 1994 he and representatives of the RPA were present
when concrete was poured over the surface of the mass grave at Jean-Marie Vianney
Habimana’s house. 733 The witness noted that he was also present at the exhumation of
the bodies. 734
300. Bagambiki Defence Witness TSF stated that he requested Bagambiki to
transfer the refugees from the Groupe Scolaire in Gihundwe to Kamarampaka
Stadium to provide them with food and better security. 735 The witness noted that
Bagambiki accepted his proposal but stated that they would have to wait a “short
while” until a bus became available to transfer all the refugees from the school. 736 The
witness stated that he called and asked Bagambiki for an escort for the convoy and
that Bagambiki sent two gendarmes. 737 The witness stated that there were no problems
transferring the refugees to the stadium and that all of the 4,500 refugees from the
Groupe Scolaire were safely transferred. 738
301. Witness TSF stated that he went to the stadium on one occasion to discuss the
food shortage and found three people in a car outside, including a woman, whom the
witness identified as Marianne Baziruwiha. 739 The witness recalled that he entered the
stadium and spoke with Bagambiki who told him that there was not enough food and
that the prosecution was conducting investigations at the stadium. 740 The witness
stated that the next morning he spoke with Bagambiki’s wife and learned that the
seventeen male Tutsi who had been taken from the stadium had been murdered. 741
302. Bagambiki Defence Witness WTJ testified that, during the last week of April
1994, he was assigned to Kamarampaka Stadium, along with five or six other
gendarmes, whose duties were to ensure security at the stadium, to monitor relations
and illnesses among the refugees, and to bring in new refugees. 742 The witness noted
729
T. 11 March 2003 pp. 14-15.
T. 11 March 2003 pp. 14-15.
731
T. 11 March 2003 p. 14.
732
T. 11 March 2003 p. 18.
733
T. 11 March 2003 pp. 18-19.
734
T. 11 March 2003 pp. 18-19.
735
T. 11 March 2003 p. 37.
736
T. 11 March 2003 p. 37.
737
T. 11 March 2003 p. 37.
738
T. 11 March 2003 p. 38.
739
T. 11 March 2003 pp. 45-46.
740
T. 11 March 2003 pp. 45, 47, 48.
741
T. 11 March 2003 p. 48.
742
T. 13 February 2003 pp. 23, 32.
730
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that the stadium was guarded by day and by night, due to fear that the refugees might
be attacked. 743 The witness stated that even though only six or seven gendarmes were
stationed there, no assailants wo uld dare to attack the stadium because of all the other
gendarmes positioned near the stadium. 744 The witness also stated that in his opinion
the gendarmerie brigade was well protected between 10 and 18 April 1994. 745 The
witness testified that he heard people say that Munyarugerero and other prefectural
authorities removed Tutsis from the stadium who were later killed at Gatandara bridge
and the gendarmerie brigade. 746 The witness testified that he never heard that people
were killed within the stadium. 747
303. Bagambiki Defence Witness GLB testified that he met Witness LAP in the
central prison of Cyangugu, where they were both incarcerated. 748 The witness
attested to knowing that Witness LAP had received money from unidentified persons
outside prison in order assist in bringing charges against certain people. 749 The
witness explained that he learned this information from other, now-released prisoners,
who were victims of false accusations, many of them brought by Witness LAP. 750
304. Bagambiki Defence Witness JNQ, a representative of the human rights
organisation LIPRODHOR, testified that he knew Witness LAP and provided
information about his character, past criminal acts, and reasons to doubt his
credibility. 751 Witness JNQ also read from a letter in which Witness LAP recanted
certain elements of his confession in which he falsely denounced three persons who
did not participate in the genocide. 752
305. Bagambiki Defence Witness FOZ stated that, on 7 April 1994, many people,
including the wife and children of Georges Nkusi, sought refuge at Bagambiki’s
home. 753 She recalled that unidentified people outside threatened the safety of those in
Bagambiki’s house. 754
306. Bagambiki Defence Witness HNV, a Rwandan Tutsi, stated that the Nkusi
family and the Bagambiki family were close. 755 The witness explained that Bagambiki
rescued her and Nkusi’s wife from armed attackers and protected them at his home. 756
The witness also stated that, after rescuing Nkusi’s family, Bagambiki was stopped at
a roadblock and was forced to plead to get through because the people manning the
roadblock referred to the Nkusi and his wife as “Inkotanyi”.757 The witness stated that
743
T. 13 February 2003 p. 24.
T. 13 February 2003 p. 34.
745
T. 13 February 2003 p. 30.
746
T. 13 February 2003 pp. 32-33.
747
T. 13 February 2003 p. 26.
748
T. 20 February 2003 p. 28.
749
T. 20 February 2003 p. 28.
750
T. 20 February 2003 pp. 28-29.
751
T. 11 March 2003 pp. 50-51, 56, 57.
752
T. 12 March 2003 pp. 7-8; Bagambiki Defence Exhibits 10-14.
753
T. 17 March 2003 pp. 7-8, 12-13.
754
T. 17 March 2003 pp. 8-9.
755
T. 17 March 2003 p. 18.
756
T. 17 March 2003 pp. 18, 20-21, 23.
757
T. 17 March 2003 p. 21.
744
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Bagambiki saved her life and that she does not believe that he had any responsibility
for Nkusi’s death. 758
307. Bagambiki Defence Witness Graff took photos of Cyangugu Cathedral in
2003 which were introduced as part of Bagambiki Defence Exhibit 16. 759 The witness
testified that he believed 2,500 to 3,000 people would be able to remain in the
cathedral for one night but that there were no toilets or water facilities ins ide the
cathedral. 760 Graff also testified that, based on his measurements, it took six minutes
and ten seconds to walk at a “normal” and steady pace the 600 metres from the
cathedral to the stadium but that he was unsure how long it would take a large group
to cover this distance. 761 Graff also stated that it took thirteen minutes and fifty-eight
seconds to walk the 600 metres from the main south entrance of the stadium to the
Gatandara bridge, using the pedestrian shortcut across a very steep slope. 762
b. Findings
308. Prosecution Witnesses LY, LI, NL, LCJ, LCA, LCH, and NI provided largely
consistent first- hand accounts of the chronology of events at Cyangugu Cathedral and
Kamarampaka Stadium and, in particular, concerning the role of the accused in the
transfer of the refugees from the cathedral on 15 April 1994 and the selection of the
four refugees from the cathedral and the thirteen refugees from the stadium on 16
April 1994. 763 The Chamber is mindful of several minor differences between these
witnesses’ accounts but considers that these differences are explained by the passage
of time and the witnesses’ varying vantage points and familiarity with the overall
situation and actions of the authorities. The Chamber finds that these Prosecution
witnesses are generally credible and reliable. The Chamber does not, however, find
their accounts reliable where the witnesses lacked an adequate basis of knowledge for
a particular point. In assessing the evidence surrounding the transfer of the refugees
from the cathedral to the stadium as well as the conditions at the stadium, the
Chamber particularly relies on the testimony of Witness LY because he provided a
convincing and detailed account of his personal interactions during the events with
prefectural and military authorities as well as church and Red Cross officials who
were involved in relief activities. The Chamber notes that the chronology of the
events at the cathedral and the stadium is corroborated to a large extent by Bagambiki
and Imanishimwe.
309. From the evidence provided by Prosecution Witnesses LY, LI, NL, LCJ, LCA,
LCH, and NI, the Chamber finds that, beginning on 8 April 1994, predominantly Tutsi
civilian refugees fleeing the violence in their neighbourhoods ensuing after the death
of President Habyarimana began gathering at Cyangugu Cathedral and eventually
numbered around 5,000. The prefectural authorities provided at least two to four
gendarmes to protect the refugees at the cathedral because the location was not secure.
Between 10:00 and 11:00 a.m. on 11 April 1994, Munyakazi came to the cathedral
758
T. 17 March 2003 p. 23.
T. 26 March 2003 p. 13.
760
T. 26 March 2003 p. 11.
761
T. 25 March 2003 pp. 51-52; T. 26 March 2003 pp. 13-14.
762
T. 26 March 2003 pp. 20-21.
763
Witness LI’s account concerns only the events at the cathedral.
759
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with a group of Interahamwe and removed his son- in-law while the Interahamwe shot
into the air, creating disorder and panic among the refugees. Bagambiki and other
authorities came to the cathedral after this attack to speak briefly to the refugees and
to assess the situation.
310. Based on the evidence of Witness LI, the Chamber finds that during the
disorder created by Munyakazi’s attack, soldiers arrested seven refugees at the Jesuit
Novitiate located behind the cathedral and took them to the Karambo military camp.
The Chamber notes that the evidence of this arrest is corroborated by the evidence of
Witness LY who received a telephone call informing him that refugees had been
arrested by soldiers at the novitiate. The soldiers repeatedly kicked and beat Witness
LI and the refugees with him with rifle butts from the time of their arrest and during
their incarceration at the military camp. Based on the testimony of Witness LI and his
in-court identification of Imanishimwe, the Chamber finds that the soldiers presented
the refugees to Imanishimwe at the military camp as “Inyenzi-Inkotanyi” whom they
had found in the bush. 764 The Chamber further finds that Imanishimwe was present
during a part of the beating of the refugees at the military camp and that he did not
attempt to stop it. In the view of the Chamber, Imanishimwe’s participation in the
prefectural security council meeting on 11 April 1994 does not cast doubt on his
presence at the camp when soldiers brought the refugees from the novitiate, given the
proximity of the camp to the prefectural office and the fact that the security meeting
broke at lunch time.
311. From the evidence presented by Witness LY, the Chamber finds that, on 11
April 1994, soldiers arrested additional refugees at the cathedral and forced them to
lie on the ground near the prefecture office. These refugees were returned to the
cathedral after Witness LY asked Bagambiki to intervene.
312. The Chamber notes that Imanishimwe and a number of his witnesses deny that
soldiers ever arrested civilians and brought them to the Karambo military camp. 765 As
fully explained in section II,B.4, the Chamber does not find their testimonies on this
point to be credible or reliable. 766
313. Based on the testimonies of Witnesses LY and NL as well as of Bagambiki,
the Chamber finds that gendarmes deterred two subsequent attacks on the refugees at
the cathedral on 11 April 1994. From the evidence provided by Witness LY, the
Chamber finds that, on 13 or 14 April 1994, Bagambiki prevented a fourth attack
against the refugees when he personally stopped an armed crowd of assailants heading
to the cathedral.
314. On 14 April 1994, the bishop and church authorities convened a meeting with
Bagambiki, Imanishimwe, and Munyarugerero because the church authorities did not
feel that they could ensure the refugees’ safety without the assistance of civilian or
military authorities. After consulting members of the security council and others,
Bagambiki determined that the refugees should be transferred to Kamarampaka
Stadium. In the afternoon of 15 April 1994, Bagambiki, Imanishimwe, and
764
T. 30 January 2001 pp. 37-38.
See infra paras. 359, 367, 372, 372, 376, 382, 399.
766
See infra para. 399.
765
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Munyarugerero first informed the church authorities and then the refugees of
Bagambiki’s decision to transfer the refugees from the cathedral to Kamarampaka
Stadium. The refugees did not want to leave the cathedral but reluctantly agreed to do
so when the bishop and other church officials encouraged them to move for their
safety. In reaching this conclusion, the Chamber principally relies on Witness LY
because he was involved in making the decision to transfer the refugees, discussed the
decision with them, and accompanied them to the stadium.
315. The Chamber is not satisfied that the record contains sufficiently reliable
evidence to establish that the prefectural or military authorities forced the refugees to
move to the stadium or that refugees who refused to move to the stadium were
threatened with death. The Chamber does not accept Witness LCA’s statement that
the bishop initially told the refugees not to go to the stadium because this account is
inconsistent with the testimony of Witness LY that the church authorities supported
the transfer when they met with the refugees.
316. Later, on the afternoon of 15 April 1994, Bishop Thadée led the procession of
refugees to Kamarampaka Stadium, accompanied by gendarmes. From the evidence
presented by Witness LY, the Chamber finds that Bagambiki drove alongside the
procession to protect the refugees and that he told a group of prisoner workers to stay
away from the procession because the refugees feared an attack. The Chamber does
not accept Witness NL’s assertion that the gendarmes accompanied the procession to
prevent the refugees from escaping because the witness did not substantiate his
conclusion. 767 The Chamber further notes that Witness NL’s conclusion on this point
is inconsistent with Witness LY’s convincing testimony that the gendarmes, church
authorities, and Bagambiki accompanied the refugees to protect them.
317. Based on the testimonies of Munyangabe and Bagambiki, the Chamber finds
that the refugees arriving at the stadium from the cathedral joined between fifty and
one hundred refugees who had been at the stadium since 9 April 1994. Sick refugees
and a few others who were distrustful of the authorities remained at the cathedral with
the priests and parish workers. On 15 April 1994, once the refugees were inside the
stadium, Imanishimwe arrived and asked Witness LY about the whereabouts of JeanMarie Vianney Habimana.
318. Around 3:00 or 4:00 p.m. on 16 April 1994, Bagambiki, Imanishimwe,
Munyarugerero, Ndolimana, and some soldiers came to the cathedral, searched for,
and took away Jean-Marie Vianney Habimana, Vital, Felicien, and Ananias Gatake,
purportedly for questioning regarding their possible financial contributions to the
RPF. Based on the evidence of Witness LY, the church officials did not try to prevent
the removal of these refugees because they believed that the request to question them
was genuine and that they would not be harmed. During the search of the cathedral for
the refugees, Imanishimwe hit a church secretary in the face with a gun. The officials
took the four refugees to Kamarampaka Stadium, where the refugees were left outside
the main gate in a pickup truck under the guard of a soldier. Inside the stadium,
767
The Chamber is not satisfied that the statement “you want to create incidents unnecessarily” made
by a gendarme to Witness NL substantiates the witness’s conclusion that this meant “whether you
stayed at the stadium or went to the cathedral you were going to be killed.” T. 21 February 2001 pp.
51-52.
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Bagambiki, Imanishimwe, Ndolimana, and Munyarugerero pointed to the contents of
a diary held by Munyarugerero. Bagambiki addressed the refugees, stating his
intention to improve the sanitary conditions at the stadium. Bagambiki also stated that
the authorities were going to remove and to question a number of refugees believed to
be linked with the RPF to ensure the safety of the other refugees at the stadium. Based
on the evidence provided by Witness LCJ and by Bagambiki, the Chamber finds that
at the end of Bagambiki’s speech some of the refugees applauded. Bagambiki called
out between thirteen and twenty- five names from a pre-established list. The Chamber
finds that the list was pre-established given the eye-witness testimony that Bagambiki
read from a list and Bagambiki’s admission to previously discussing the situation of
the people on the list with members of the security council.
319. The Chamber finds that the authorities selected the following thirteen
refugees: Trojan Nzisabira, Dominique Mugabo, Bernard Nkata, Eliphase, Albert
Twagiramungu, Remy Muhigo, Albert Mugabo, Felicien Musabimana, Benoit
Sibomana, Fidèle Murekezi, Ibambasi, Leonard Nsengiyumba, Apian Ndolimana, and
Marianne Baziruwiha.
320. Based on the eye-witness account of Witness NL, the Chamber finds that
Imanishimwe and soldiers left the stadium with the thirteen people and placed twelve
of them in the vehicle with the four refugees from the church. Marianne Baziruwiha,
who was the head of the PSD party and a Hutu, was placed in the car of the
gendarmerie commander. Bagambiki left the stadium a few minutes later. The
Chamber finds that these refugees, excluding Marianne, were killed and buried in a pit
latrine on Jean-Marie Vianney Habimana’s property in Mururu sector, Cyimbogo
commune. From the evidence of when witnesses heard of the death of these refugees,
the Chamber finds that their deaths occurred in the evening or during the night of 16
April 1994.
321. The Chamber recalls that Witness LAP is an alleged accomplice of the
accused and, as such, views his testimony with caution. The Chamber does not accept
Witness LAP’s testimony concerning his activities at the gendarmerie brigade and the
Gatandara roadblock because it is inconsistent with other reliable evidence and
because he is not a credible or reliable witness. The Chamber recalls that Witness
LAP stated that Bagambiki, Imanishimwe, Mubiligi, Nshamihigo, and Munyangabe
participated in the selection of the refugees in the stadium and that Witness LAP and
others killed all seventeen of them, later removing and eating the hearts of all but one
victim. Witness LAP’s assertion that Mubligi, Nshamihigo, Munyangabe were
amongst the authorities conflicts with the reliable evidence that only Bagambiki,
Imanishimwe, Ndolimana, and Munyagerero participated in the selection. Witness
LAP’s assertion that authorities removed sixteen refugees from the stadium and only
one from the cathedral conflicts with the evidence that thirteen refugees were
removed from the stadium and four came from the cathedral. Witness LAP’s assertion
that the assailants killed all seventeen refugees conflicts with the evidence that only
sixteen refugees were killed. Though the autopsy report notes injuries that could
indicate that the hearts or other organs of some of the refugees may have been
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removed, it contradicts Witness LAP’s claim that the hearts of all but one of the
refugees were removed. 768
322. In addition, the Chamber recalls its earlier finding that the testimony of
Witness LAP is not credible or reliable with respect to another event. 769 The Chamber
also notes that Witness LAP’s testimony is inconsistent with his prior written
statement presented to him in cross-examination. For example, the witness made no
mention of Bagambiki’s presence at the Gatandara roadblock in his statement to
Tribunal investigators, with which he was confronted during cross-examination. 770
The Chamber finds unconvincing the witness’s explanation that he did not mention
Bagambiki because he knew that he was going to mention his name before the
Tribunal, which leaves the impression of fabrication. Moreover, in the Chamber’s
opinion, Witness LAP’s request for money in exchange for providing evidence leaves
the impression that his testimony is for sale, which is further supported by Bagambiki
Defence Witnesses GLB and JNQ who testified about Witness LAP’s reputation for
making false accusations for personal gain. 771 The Chamber further notes that Witness
JNQ testified about a series of letters bearing the seal of the Cyangugu Prison in
which Witness LAP admitted to falsifying evidence related to other cases. The
Prosecution has asserted that these letters are not reliable because they are of
questionable provenance. Given the numerous indicia that Witness LAP lacks
credibility and is not reliable, the Chamber need not examine this issue further.
323. The Chamber also does not rely on the explanations for the death of the
refugees provided by Prosecution Witnesses LY, NL, and LCJ, as well as by
Bagambiki, Imanishimwe, Imanishimwe Defence Witness PBB, and Bagambiki
Defence Witness FLZ because the Chamber lacks an adequate basis from their
evidence to assess the credibility and reliability of the second- hand sources upon
which their testimonies on this point were based.
324. The Chamber further does not accept Imanishimwe’s denial of his presence at
the cathedral and the stadium on 16 April 1994 given the reliable eye-witness
testimony of Witness LY which is corroborated by Witnesses NL, LCJ, and LCA.
325. The Chamber lacks sufficient reliable and credible evidence to determine
whether prefectural authorities participated in any further selection of refugees from
Kamarampaka Stadium after 16 April 1994. The Chamber, however, accepts the firsthand account of Prosecution Witness NG-1 concerning the selection and removal of a
number of refugees, including George Nkusi, by either soldiers or gendarmes around
27 April 1994. 772 The Chamber, however, lacks sufficient reliable evidence to
768
See Prosecution Exhibit 37.
See supra paras. 129-132.
770
T. 12 September 2001 pp. 92-94, 102-103.
771
T. 12 September 2001 p. 65 (“To join the camp of those who pleaded guilty they need money to buy
wood that they would use as beds, because there are no beds. Each prisoner buys the wood from his
pocket at 500 francs a piece of wood and the bed needs three pieces of wood or planks for it to be
made. This is why I’m asking you to bring to me, as soon as possible, or immediately the amount of
20,000 francs to solve this bed problem for you (sic). In this way we will be many to confess to the
same crimes and we will, therefore, receive more support for your case.”)
772
The Chamber cannot make a definitive finding because Witness NG-1 testified that he could not
readily distinguish between the two groups. See T. 28 November 2000 pp. 8-9.
769
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determine what happened to these refugees after their removal, except in the case of
Nkusi whose death is not disputed.
326. The Chamber lacks sufficient reliable evidence to determine whether
Bagambiki had any involvement in the death of Nkusi. The Chamber is not satisfied
that the evidence of Witnesses LY and NL sufficiently demonstrates that Bagambiki
bore a grudge against Nkusi. In reaching this conclusion, the Chamber considered that
Bagambiki spoke with Nkusi at the cathedral and personally brought him medicine.
The Chamber also finds it reasonable that it would have been dangerous for
Bagambiki to bring Nkusi to his home, given the harassment he faced from soldiers
for bringing Nkusi’s family there, as recounted by Defence Witnesses Mukandekezi,
HNV, FOZ, and Bagambiki. The Chamber also does not accept as reliable Witness
NL’s testimony about his conversations with Nkusi at the stadium because the
Chamber finds that his account about the transfer of Nkusi’s family to Bagambiki’s
home is inconsistent with the testimony of Witnesses Mukandekezi, HNV, as well as
of Bagambiki who had first hand knowledge of the transfer.
327. The Chamber notes that Prosecution Witnesses LH and LBH testified about a
number of instances after 20 April 1994 where Bagambiki allegedly selected refugees
from the stadium to be killed by Interahamwe at the Gatandara roadblock, including
the two witnesses and George Nkusi. Witness LBH also testified about prefectural and
military authorities selecting all male refugees from the stadium and, on another
occasion, killing all but fewer than a thousand refugees, when, according to him, they
fled the stadium around 27 or 28 April 1994. The Chamber is not convinced that these
witnesses’ accounts are sufficiently credible and reliable because their testimonies
appear to be exaggerated and inconsistent with other reliable evidence on the
record. 773 In reaching this conclusion, the Chamber has considered that Witness NG1, who was at the stadium on 27 and 28 April 1994, made no mention of the escape
and murder of a large number of the refugees from the stadium. Witness NG-1 also
witnessed the removal of Nkusi and others from the stadium but did not mention the
presence of authorities. Witness NG-1 mentioned no other selections of refugees from
the stadium. In addition, Witness LY, who closely followed the conditions of the
refugees, also did not mention other selections involving prefectural autho rities or the
escape and murder of almost all the refugees from the stadium. The Chamber cannot
accept that Witnesses NG-1 and LY would have failed to mention such significant
events and details, had they indeed occurred. The testimony of Witness WTJ, a
gendarme stationed at the stadium during that period, raises further doubt about the
allegations of Witnesses LBH and LH. The Chamber notes the inconsistency between
Witness LBH’s testimony that in his second abduction he was with fifteen refugees
and his prior written statement, which was read into evidence, stating that he was with
three women. 774 Moreover, Witness LBH’s assertion that Nkusi’s wife and children
were at the stadium conflicts with the evidence that Nkusi’s family was at
Bagambiki’s home from 7 April 1994.
328. Given Witness LY’s role in and knowledge of relief activities, the Chamber
also accepts his assessment that the refugees at the stadium lacked sufficient
773
The Chamber also doubts Witness LH’s ability to identify Bagambiki given his misidentification of
him in court. See T. 31 January 2001 pp. 48-51.
774
T. 15 February 2001 pp. 12, 20, 22-23.
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sanitation, water, food, and shelter to meet all the refugees’ basic needs. The
Chamber, however, finds that church authorities, and later the Red Cross, had regular
access to the refugees and tried to provide them with food, medical care, and
improved sanitary conditions. The Chamber also accepts Witness LY’s assessment
that food and other relief supplies were in extremely short supply and that it was
nearly impossible to receive international aid in the midst of the on-going conflict.
The Chamber finds that prefectural authorities were aware of these efforts and, as far
as the evidence shows, did not inhibit church and Red Cross officials from assisting
the refugees at the stadium.
329. The Chamber finds that gendarmes guarded the refugees at the stadium. The
Chamber is not satisfied, however, that there is sufficient reliable or credible evidence
proving that gendarmes or Interahamwe killed refugees who left the stadium. Though
Witnesses NL and NG-1 testified that Interahamwe were outside the stadium, which
the Chamber accepts, there is no credible or reliable evidence that Interahamwe killed
the refugees who left the stadium.
330. The Chamber also lacks sufficient reliable evidence to determine if
Interahamwe entered the stadium to abduct and kill refugees. Though the Chamber
accepts Witness NG-1’s testimony that small groups of Interahamwe entered the
stadium, the witness noted that these Interahamwe did not do anything to the refugees
inside.
331. After considering the evidence, the Chamber finds that the gendarmes and the
prefectural authorities curtailed the movement of the refugees at the stadium. In
reaching this conclusion, the Chamber considered that the stadium had limited access
points, which were guarded by gendarmes. The Chamber also notes the evidence of
Witness NL that he bribed a gendarme to leave the stadium and also the evidence of
Bagambiki that gendarmes fired in the air to discourage a small group of refugees
from leaving. The Chamber, however, lacks sufficient reliable evidence to determine
whether the gendarmes and the prefectural authorities curtailed the refugees’
movements for a malicio us purpose or whether it was for their security. In contrast to
other sites in Cyangugu, a large scale attack was never carried out against the refugees
at the stadium. The Chamber also notes that other refugees, such as Witness LCJ and
her family and Witness NG-1, left the stadium and did not testify about encountering
any difficulty when doing so.
c. Conclusion
(i) Paragraph 3.19
332. The Chamber finds that approximately 5,000 Tutsis sought refuge at
Cyangugu Cathedral to escape the violence in their neighbourhoods ensuing after the
death of President Habyarimana. On 11 April 1994, there were three attacks on the
refugees at the cathedral, including one by Yussuf Munyakazi and his Interahamwe.
(ii) Paragraph 3.20
333. The Chamber finds beyond a reasonable doubt that, following the first attack
on Cyangugu Cathedral on 11 April 1994, soldiers arrested at least seven refugees
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near the cathedral, including Prosecution Witness LI, and took them to the Karambo
military camp in Cyangugu where they were presented to Imanishimwe. The Chamber
will consider whether Imanishimwe issued orders to execute refugees who were taken
to the military camp in section II.B.4. 775
(iii)Paragraph 3.21
334. The Chamber finds that, on 15 April 1994, Bagambiki and Imanishimwe
ordered the refugees at Cyangugu Cathedral to move to Kamarampaka Stadium in
Cyangugu after discussions with church authorities who indicated that they could not
adequately protect the refugees at the cathedral without greater assistance from
prefectural and military authorities. The Chamber finds that it was not proven beyond
a reasonable doubt that the refugees who refused to obey were threatened with death.
(iv) Paragraph 3.22
335. The Chamber finds that the church authorities, Bagambiki, and gendarmes
escorted the refugees to Kamarampaka Stadium. The Cha mber lacks sufficient
reliable evidence to determine whether Imanishimwe escorted the refugees, though
the Chamber finds that he was at the cathedral prior to the transfer and at the stadium
immediately after it. The Chamber also finds that there were some refugees already at
the stadium and that a number of other refugees arrived later, including refugees from
the Gihundwe Groupe Scolaire and refugees from Shangi parish. The Chamber finds
that the refugees remained at the stadium until 11 May 1994 when the y were
transferred to the Nyarushishi camp.
336. The Chamber finds that, during this period, gendarmes guarded the stadium
and that the movement of the refugees was curtailed, though some were apparently
able to leave without difficulty. The Chamber, however, lacks sufficient reliable
evidence to determine whether the restriction on the refugees’ movement was
principally to keep them incarcerated or to ensure their protection. The Chamber also
finds that it has not been proven beyond a reasonable doubt that those refugees who
attempted to leave the stadium were executed by the Interahamwe and the gendarmes
who were outside. The Chamber finds that Interahamwe entered the stadium but lacks
sufficient reliable evidence to find that they abducted refugees and later executed
them.
(v) Paragraph 3.23
337. The Chamber finds that, on 16 April 1994, Bagambiki, Imanishimwe, and
others selected twelve Tutsis and one Hutu from the stadium using a pre-established
list. The Chamber finds that the twelve Tutsi refugees were executed along with four
other Tutsis who had been selected and removed from Cyangugu Cathedral by the
same authorities a short while earlier. The Chamber lacks sufficient reliable evidence
to determine if the execution of the sixteen Tutsis occurred at Gatandara. A majority
of the Chamber, Judge Williams dissenting, lacks sufficient reliable evidence to
determine whether Bagambiki or Imanishimwe participated in the execution of these
775
See infra para. 410.
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sixteen refugees by either personally killing them, ordering soldiers to kill them, or
giving them to Interahamwe to be killed. Judge Williams is of the view that given the
circumstances surrounding the selection and removal of the refugees from the
cathedral and the stadium, and their resultant death, Bagambiki by his actions must
have intended or have been fully aware and consented to the killing of the refugees.
338. The Chamber also finds that, around 27 April 1994 gendarmes or soldiers
participated in a selection, in which George Nkusi and other refugees, were removed
from the stadium. The Chamber lacks sufficient reliable evidence to determine if
Bagambiki and Imanishimwe were present during or participated in that or in any
other selection after 16 April 1994.
4. Paragraphs 3.24 and 3.25 of the Bagambiki/Imanishimwe Indictment
339.
Paragraphs 3.24 and 3.25 of the Bagambiki/Imanishimwe Indictment read:
3.24 Between April and July 1994, Lieutenant Samuel IMANISHIMWE
participated with his soldiers in the selection and arrest of Tutsis, some of whom
were later executed at the Cyangugu Barracks.
Also, Lieutenant Samuel IMANISHIMWE ordered soldiers to execute certain
people suspected of being Tutsis.
3.25 Between April and July 1994, Tutsis and moderate Hutus were arrested and
taken to the Cyangugu Barracks to be tortured and executed. Also, during this
period, soldiers, participated on several occasions with MRND militiamen and
the Interahamwe in massacres of the civilian Tutsi population.
340. The Chamber will consider the evidence of soldiers’ participation in
massacres, as alleged in paragraph 3.25, in connection with its findings in section
II.B.5.
a. Torture and Murder of Civilians and Soldiers at Cyangugu Camp
(i) Allegations
341. Prosecution Witness AQ, a soldier at Karambo camp, testified that during two
assemblies at 4:00 a.m. and 6:00 a.m. on 7 April 1994, Imanis himwe informed the
soldiers about the death of the President and told them to be vigilant, explaining that
they were in the final stages of the war. 776 The witness stated that Imanishimwe also
reorganized the camp’s three platoons and ordered a platoon under Chief Warrant
Officer Mirembano to guard the camp, a platoon under Chief Warrant Officer
Seberagwera to patrol Lake Kivu, and a platoon under First Sergeant Ndayishimiye to
776
T. 2 May 2001 pp. 96, 99-100, 103-109; T. 3 May 2001 pp. 100-102.
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93
patrol Cyangugu prefecture to look for “Inkotanyis and their accomplices”. 777 The
witness stated that, after the 6:00 a.m. assembly, he took his position at the guard
post. 778 The witness testified that from this vantage point he saw Imanishimwe meet
briefly after the assembly with several other soldiers at his residence before the
platoons left the camp on their missions. 779
342. Witness AQ estimated that between 8:00 and 8:30 a.m. on 7 April 1994, a
group of soldiers returned to the camp passing by the guard post with civilians,
primarily young people, who were noticeably wounded and bleeding. 780 The witness
stated that, after the civilians’ arrival, Imanishimwe, who was coming from his home,
met them inside the camp. 781 According to the witness, Imanishimwe insulted the
civilians stating, inter alia, that “these Inyenzis want to take over the country; it will
be difficult for them” and then fired a bullet from a Kalashnikov gun hitting the foot
of one of the civilians, who fell to the ground. 782 The witness stated that Imanishimwe
and the other soldiers then kicked the civilians and beat them with the butts of their
rifles before taking them to the camp’s jail cells, where the soldiers continued to beat
them. 783 Witness AQ testified that other groups of soldiers returned during the day
with visibly injured civilians who were also imprisoned at the camp. 784 The witness
stated that soldiers took these civilians away at night to be killed. 785 The witness
stated that he heard shots emanating from Gatandara as well as soldiers boasting about
killing the civilians at the Gatandara roadblock with the assistance of Interahamwe.786
343. Witness AQ testified that, on the morning of 8 April 1994, he was transferred
from the guard post to the roadblock near the prefecture office which guarded one of
the two entrances to the camp, where he stayed for five days monitoring who entered
and exited the camp. 787 Witness AQ testified that, from this post from 8 until 12 April
1994, he observed “ill-treated” civilians being brought into the camp several times a
day where they continued to be “mistreated” by soldiers. 788
344. Witness AQ stated that, on 9 April 1994, he left his post to go to the camp
where he saw Imanishimwe and others arrest about ten to thirteen soldiers, who were
suspected of being Inkotanyi accomplices rumoured to be planning to kill
Imanishimwe, and one soldier, who had mistakenly shot a Hutu. 789 The witness stated
777
T. 2 May 2001 pp. 110-114; T. 3 May 2001 p. 81. The witness later stated that Ndayishimiye shared
command of his platoon with Ruberanziza and noted in cross-examination that only Ruberanziza was
in command. T. 2 May 2001 pp. 111, 113; T. 3 May 2001 p. 103.
778
T. 2 May 2001 pp. 113-114; T. 3 May 2001 pp. 41-42.
779
T. 2 May 2001 pp. 115-116, 119; T. 4 May 2001 pp. 2-3.
780
T. 2 May 2001 pp. 122-127, 134-135.
781
T. 2 May 2001 pp. 127-128; T. 4 May 2001 pp. 5-6.
782
T. 2 May 2001 pp. 128-131.
783
T. 2 May 2001 pp. 124, 132-134; T. 4 May 2001 p. 11.
784
T. 2 May 2001 pp. 135-136; T. 4 May 2001 p. 7.
785
T. 2 May 2001 pp. 134, 136.
786
T. 2 May 2001 pp. 136-137; T. 4 May 2001 pp. 13-14.
787
T. 3 May 2001 pp. 2-3.
788
T. 3 May 2001 pp. 3, 10-11.
789
T. 3 May 2001 pp. 4-8, 9; T. 4 May 2001 pp. 22-23.
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that he saw the arrested soldiers being taken from the camp to the Cyangugu central
prison on the day of their arrests. 790
345. Witness AQ testified that, on 10, 11, and 12 April 1994, he saw the arrested
soldiers being taken to the Prosecutor’s office and then back to the central prison,
accompanied by First Sergeant Ndayishimiye. 791 The witness stated that, on 12 April
1994, he heard screams and gunshots as the arrested soldiers reached the forest on the
way from the Prosecutor’s office to the central prison. 792 According to the witness, a
few minutes later two of the arrested soldiers, Corporals Murangwa and Ignace, came
to the witness’s roadblock and told the soldiers there that Interahamwe, armed with
clubs, axes, and machetes, and soldiers attacked them in the forest. 793 The witness
stated that Corporals Murangwa and Ignace begged the soldiers at the roadblock, to
no avail, to shoot them and spare them an atrocious death at the hands of the
Interahamwe, before seeking the intervent ion of Bagambiki, who was then outside the
prefecture office. 794 The witness testified that he did not know what Bagambiki said to
the arrested soldiers but that Bagambiki did not intervene. 795 According to the
witness, First Sergeant Ndayishimiye then returned and took away Corporals
Murangwa and Ignace in his vehicle, after explaining that what the two corporals had
said was untrue. 796 The witness stated that Ndayishimiye’s vehicle returned to the
camp a few moments later carrying only the soldiers who had guarded the arrestees
and Interahamwe, one of whom was wearing Corporal Murangwa’s jacket. 797
346. Prosecution Witness LI testified that, on 11 April 1994, soldiers arrested and
beat him and six other refugees at the Jesuit Novitiate near Cyangugu Cathedral and
then took them to the Karambo military camp where the soldiers mistreated them
upon arrival. 798 The witness testified that the soldiers locked him and the others in a
room and kicked and beat them again with sticks of wood and rifle butts while saying,
“we are go ing to beat you to death.”799 The witness stated that no one tried to stop the
beating. 800 The witness stated that, during this beating, soldiers took some of the
refugees away and that, when the refugees did not return, he and the sole other
remaining detainee forced their way past the two guards, who were beating them, and
fled the camp while it was still daylight.801 The witness stated that he ran behind the
office of the prefecture and continued to the bank of Lake Kivu where he rested for a
short while and then swam to Bukavu, while being fired upon. 802 The witness stated
that he was the only survivor of the seven people arrested because he knew that two of
790
T. 3 May 2001 p. 11; T. 4 May 2001 p. 21.
T. 3 May 2001 pp. 11-14; T. 4 May 2001 p. 23.
792
T. 3 May 2001 p. 14.
793
T. 3 May 2001 pp. 15, 16.
794
T. 3 May 2001 pp. 19-20; T. 4 May 2001 p. 17.
795
T. 3 May 2001 p. 20.
796
T. 3 May 2001 pp. 20-21.
797
T. 3 May 2001 p. 22.
798
See supra paras. 233-235.
799
T. 30 January 2001 pp. 22, 23, 101-102.
800
T. 30 January 2001 p. 27.
801
T. 30 January 2001 pp. 24-25, 101-103; T. 31 January 2001 p. 4.
802
T. 30 January 2001 pp. 25-26, 101; T. 31 January 2001 p. 4.
791
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95
those arrested, his brother and a classmate, had died, and he did not hear that the
others ever rejoined the refugees at the cathedral. 803
347. Prosecution Witness MG, a Tutsi resident of Kamembe city, testified that he
remained at home with his family from April until June 1994 due to the increased
insecurity for the Tutsi population. 804 The witness stated that at the end of April 1994,
ten soldiers came to his house looking for his father because it was said that an RPF
soldier was guarding him. 805 The witness stated that the soldiers did not arrest anyone
at that time because they found no RPF soldiers at the house and did not recognise his
father who was sick. 806 The witness also noted that on this occasion soldiers prevented
the Interahamwe from looting the his house. 807
348. Witness MG testified that soldiers from the Karambo camp returned to his
home accompanied by Interahamwe at the beginning of June 1994 as part of a search
of Kamembe city, which in the witness’ opinion, was aimed at identifying Tutsis. 808
The witness stated that when the soldiers came, he fled to the bourgmestre’s residence
but that three soldiers arrested him there and took him to the Kamembe market where
the witness joined his father, two sisters, and about 300 other arrested people
suspected of having ties with the RPF.809 The witness knew that he was arrested by
soldiers because they wore black berets, whe reas gendarmes wore red berets. 810 The
witness stated that Bagambiki, Imanishimwe, Colonel Bavugamenshi of the
gendarmerie, Bourgmestre Napoleon Mubiligi, and the conseiller of Kamembe sector
came to the market shortly after the witness arrived there. 811 According to the witness,
Mubiligi dismissed a number of those arrested whom he recognised. 812 The witness
testified that soldiers lined up the arrested people, who included Tutsis, about one
hundred Hutus, and Zaireans, with the Tutsis in the first row, suspected accomplices
in the second row, and “people in whose homes people had been found hiding” in the
third. 813
349. Witness MG stated that Bagambiki, Imanishimwe, and Bavugamenshi asked
Mubiligi whether each of those arrested was a resident of Kamembe commune. 814 The
witness testified that a soldier informed the authorities that an RPF cassette tape had
been found on one of the members of the witness’s family. 815 The witness recounted
that Imanishimwe, Bagambiki, and Bavugamenshi each asked Mubiligi whether the
witness and his family were people of integrity. 816 According to the witness, Mubiligi
stated that he had nothing against the witness and his family because they were his
803
T. 30 January 2001 p. 26-27.
T. 12 February 2001 pp. 4-5, 6, 59-60.
805
T. 12 February 2001 pp. 7-8, 68-69.
806
T. 12 February 2001 pp. 8, 68, 69.
807
T. 12 February 2001 p. 71.
808
T. 12 February 2001 pp. 8-9, 69-70, 102-103.
809
T. 12 February 2001 pp. 11-14, 80-81, 104-108, 112; T. 13 February 2001 p. 4.
810
T. 12 February 2001 p. 12.
811
T. 12 February 2001 pp. 14-15, 110.
812
T. 13 February 2001 pp. 22-23, 27.
813
T. 12 February 2001 pp. 16-18, 81-82; T. 13 February 2001 pp. 10-11.
814
T. 12 February 2001 p. 18; T. 13 February 2001 p. 19.
815
T. 12 February 2001 pp. 20-21, 61-62; T. 13 February 2001 p. 17, 19.
816
T. 12 February 2001 pp. 21, 97; T. 13 February 2001 p. 18.
804
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neighbours. 817 The witness stated that the soldiers protested and asserted that Mubiligi
was simply trying to protect the witness and his family who were “Inyenzis”. 818 The
witness testified that Bavugamenshi stated that he knew the witness’s family and that
they should be taken to his barracks to ensure their safety. 819
350. Witness MG stated that four gendarmes with red berets and three soldiers with
black berets escorted him and the family members detained with him to the
gendarmerie brigade in a van belonging to the commune. 820 He stated that before they
arrived at the brigade, the soldiers wearing black berets, purporting to act on
Imanishimwe’s orders, diverted the vehicle to Gatandara by threatening the driver,
where the soldiers summoned Interahamwe, telling them that they had brought people
to be killed, and then attempted to steal the personal possessions of the witness and
his family. 821 The witness stated that the gendarmes fought the soldiers and prevented
the Interahamwe from killing the witness and his family. 822
351. Witness MG testified that after his arrival at the gendarmerie brigade, he was
joined by seventy other people who were brought from the market and that he was
informed by the people arriving that most of those arrested had been released because
they were Hutus, and the bourgmestre had recognized them. 823 The witness stated that
the next night soldiers came to the gendarmerie brigade and demanded, purportedly
on Imanishimwe’s orders, that the arrested individuals be transferred to Karambo
military camp. 824
352. Witness MG testified that he, his father, and two sisters were taken in the first
group to the military camp and that an unknown number of other people arrested in
the market and detained at the gendarmerie brigade were also later transferred to the
camp. 825 The witness stated that he and his father were placed in a cell with two badly
beaten Tutsi soldiers and that his two sisters were placed in another cell. 826 The
witness stated that the next morning, soldiers took his father, him, and three other
Tutsi civilians to the camp’s field for questioning. 827 The witness testified that, in the
presence of Imanishimwe, soldiers beat him and another detainee with a stick to such
an extent that the witness could not stand up for several days. 828 Witness MG also
testified that the soldiers hammered a fifteen centimetre nail into the feet of the other
two Tutsi prisoners while asking them if they were members of the RPF and while
telling them that they were collaborating with the enemy. 829 The witness stated that
Imanishimwe was present throughout the incident and that he did not restrain the
817
T. 12 February 2001 pp. 21-22, 97; T. 13 February 2001 p. 13.
T. 12 February 2001 pp. 22-23, 98.
819
T. 12 February 2001 pp. 23, 98; T. 13 February 2001 p. 8.
820
T. 12 February 2001 pp. 24, 31-32; T. 13 February 2001 pp. 26-28.
821
T. 12 February 2001 pp. 25-26, 33; T. 13 February 2001 pp. 32-33.
822
T. 12 February 2001 pp. 26, 29, 33-34.
823
T. 12 February 2001 pp. 24-25; T. 13 February 2001 pp. 25-26, 41.
824
T. 12 February 2001 p. 35; T. 13 February 2001 pp. 34-35.
825
T. 12 February 2001 pp. 35, 37; T. 13 February 2001 pp. 41-42.
826
T. 12 February 2001 p. 37; T. 13 February 2001 pp. 44-45.
827
T. 12 February 2001 p. 38; T. 13 February 2001 pp. 51-53, 57-59.
828
T. 12 February 2001 pp. 38-42, 44, 82-83; T. 13 February 2001 pp. 53-55.
829
T. 12 February 2001 pp. 38-42, 44, 82-83; T. 13 February 2001 pp. 53-55.
818
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soldiers. 830 The witness stated that, thirty minutes later, they were returned to their
cell and that, subsequently, the two Tutsis, who had been mistreated with the nail and
who were screaming in pain, were removed for questioning, never to return. 831
353. Witness MG stated that while he was incarcerated in the camp for five days,
soldiers called out names and took prisoners for questioning around 1:00 a.m. and that
some did not return. 832
354. Witness MG stated that, during his incarceration, Imanishimwe came to ask
the witness’s father if he knew a certain trader and a particular MRND official. 833
According to the witness, a few days later Second Lieutenant Hakizimana called out
the names of the witness, his father, and two sisters, one of whom had disappeared
during their incarceration, and drove the three of them home. 834 He stated that earlier
the name of his sister, who had disappeared, had been called out at night along with
one of her cellmates, a woman called Mbembe, that they were taken from their cell,
and that Mbembe was later found dead at Kadasomwa. 835 The witness stated that his
sister has not been found. 836
355. Prosecution Witness MA, a Hutu, testified that, in late June 1994, he was
arrested at the prefecture office in Cyangugu by a man in plain clothes who, after
inspecting his identity papers, told him that he was an accomplice and took him to the
military camp. 837 The witness speculated that he was suspected of being an RPF
accomplice because he had worked in a ministry that was not under the control of the
MRND and because many Tutsis lived in his sector of origin. 838 The witness stated
that he was taken to the command office and presented to the camp commander,
whom he identified as Imanishimwe and described as wearing a camouflage uniform
lacking any indicia of rank. 839 According to the witness, the camp commander
examined his identity card, said that he was an accomplice, tore the identity card, and
then ordered soldiers to take the witness to jail. 840 The witness stated that he was
imprisoned for more than a week in a cell located in the guard post at the camp, which
had about twelve cells, where more than ten people were detained, each in his own
cell. 841
356. Witness MA stated that, during his detention, detainees were brought in and
removed but that, other than the Tutsi detainee in the adjacent cell, he did not know
who was detained there. 842 The witness noted that he heard regularly, but not daily,
gunshots emanating from inside the camp near Lake Kivu about an hour or two after
830
T. 12 February 2001 pp. 41-42.
T. 12 February 2001 pp. 42, 44-45; T. 13 February 2001 pp. 44, 49, 55, 60.
832
T. 12 February 2001 pp. 46, 49, 94; T. 13 February 2001 pp. 62-63, 64-65.
833
T. 12 February 2001 pp. 46-47.
834
T. 12 February 2001 pp. 47-48.
835
T. 13 February 2001 pp. 69, 70.
836
T. 12 February 2001 pp. 47, 48; 13 February 2001 p. 70.
837
T. 31 January 2001 pp. 72-74; T. 1 February 2001 pp. 60, 64, 66.
838
T. 1 February 2001 pp. 88-89.
839
T. 31 January 2001 pp. 74, 81-82; 1 February 2001 pp. 69, 72.
840
T. 31 January 2001 pp. 73-74; T. 1 February 2001 p. 74.
841
T. 31 January 2001 pp. 74-75, 77; T. 1 February 2001 p. 75.
842
T. 31 January 2001 pp. 77-78; T. 1 February 2001 pp. 78-79.
831
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detainees were taken out of their cells between 2:00 and 4:00 a.m. 843 The witness
stated that he thought, but had no way to confirm, that the people taken out were
being shot. 844 The witness stated that he next saw the camp commander during his
release sometime in the first ten days of July after French soldiers arrived at the
camp. 845 The witness stated that, upon his release, Imanishimwe gave him a document
certifying that the witness lost his identity papers. 846 The witness stated that he
identified the commander as Imanishimwe from this document on which
Imanishimwe’s name was written next to his signature. 847
357. Imanishimwe testified that, on 21 October 1993, he assumed the acting
command of the Karambo military camp in Cyangugu. 848 Imanishimwe stated that he
commanded the military camp’s three platoons, which totaled around ninety to ninetyfive soldiers. 849 Imanishimwe stated that soldiers wore black berets while gendarmes
had red berets. 850
358. Imanishimwe testified that, on 6 April 1994 around 9:00 p.m., he informed the
soldiers at the Karambo camp of the president’s death and that he asked them to
remain calm and alert. 851 He stated that he did not hold an assembly on 7 April 1994,
nor did he reorganise and dispatch the camp’s three platoons as alleged by
Prosecution Witness AQ.852 Rather, Imanishimwe stated that, on 7 April 1994, he
attended a meeting at the gendarmerie squad around 7:00 a.m. to discuss deploying
soldiers at Rusizi I and II and at the airport and then returned to the camp around 8:30
a.m. to prepare for the prefectural security council meeting. 853 Imanishimwe testified
that he attended the meeting until around 1:00 to 2:00 p.m. 854 He stated that, after the
meeting, he returned to the camp to check on the deployment of his soldiers. 855
359. Imanishimwe stated that soldiers never brought civilians to the camp, placed
them in the military jail, tortured them, or executed them at the Gatandara road
block. 856
360. Imanishimwe stated that when he learned of a plot by a group of soldiers to
kill him, he then sent a FLASH message to the staff headquarters which responded
that he had to refer the matter to the prosecutor’s office. 857 Imanishimwe stated that,
after receiving this response, he ordered the arrest of six soldiers, who were both
Hutus and Tutsis. He stated that of the six, four were arrested, turned over to the
prosecutor’s office, and then sent to the Cyangugu prison, while two had escaped
843
T. 31 January 2001 pp. 78, 79-80; T. 1 February 2001 pp. 78-79.
T. 31 January 2001 p. 79.
845
T. 31 January 2001 pp. 79, 80-82.
846
T. 31 January 2001 pp. 81-82.
847
T. 31 January 2001 p. 82.
848
T. 20 January 2003 p. 11.
849
T. 21 January 2003 pp. 13, 15, 33.
850
T. 21 January 2003 p. 31-32.
851
T. 21 January 2003 pp. 37, 38.
852
T. 21 January 2003 pp. 38, 39, 40.
853
T. 21 January 2003 pp. 40, 41.
854
T. 21 January 2003 pp. 41, 42.
855
T. 21 January 2003 pp. 42.
856
T. 22 January 2003 pp. 15-16, 20.
857
T. 22 January 2003 pp. 16-17.
844
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
99
arrest. 858 Imanishimwe stated that he learned that one of the four who were arrested
fled from custody in the Prosecutor’s office and that the other three remained
incarcerated in the Cyangugu central prison. 859
361. Imanishimwe testified that he was aware of a search in Kamembe in June
1994, which was organised by commune authorities and executed with the assistance
of the gendarmes under Bavugamenshi and a section of soldiers from the Karambo
camp, which he provided at Bavugamenshi’s request. 860 Imanishimwe stated that he
heard that during the operation people were arrested and eventually released upon the
verification of their identities. 861
362. Imanishimwe Defence Witness PBA, who stayed at Imanishimwe’s residence
in the Karambo camp from April to July 1994, testified that, on 6 April 1994,
Imanishimwe went to the camp around 9:00 p.m. for about an hour. 862 According to
the witness, on 7 April 1994, Imanishimwe left his house around 7:30 a.m. and went
to see the commander of the Cyangugu gendarmerie, returning around 8:30 a.m and
leaving again shortly thereafter. 863 Witness PBA testified that he heard no gunshots
coming either from within or outside the camp during his stay at Karambo. 864
363. Imanishimwe Defence Witness PKA, who was stationed at the Cyangugu
gendarmerie squad on 6 April 1994, stated that he saw the commander of the military
camp come to a meeting on the morning of 7 April 1994 at about 7:00 or 7:30 a.m.
and that at the meeting the gendarmerie commander Munyarugerero ordered soldiers
to replace the gendarmes at Rusizi I and II and the airport. 865
364. Imanishimwe Defence Witness PCC, a soldier at the Karambo camp, testified
that he arrived at his new post at the Cyangugu airport in Kamembe at about 2:00 p.m.
on 7 April 1994, where he and his commander Sergeant Major Ndayishimiye
remained until July 1994 without returning to the camp. 866
365. Imanishimwe Defence Witness PCD, a soldier at the Karambo camp, stated
that beginning on 5 April 1994, he guarded the camp at the roadblock near the
prefecture where he could see everyone who entered the military camp. 867 The witness
stated that, though other soldiers were periodically replaced, he worked twenty- four
hour shifts for fourteen days with no relief, leaving only two to three times a week for
about fifteen minutes to take a shower in the camp and sleeping only an hour at a
time. 868 The witness explained that he commanded ten soldiers posted at the
858
T. 22 January 2003 pp. 16-17.
T. 22 January 2003 p. 17.
860
T. 22 January 2003 pp. 36-37.
861
T. 22 January 2003 pp. 37, 38.
862
T. 5 November 2002 p. 77.
863
T. 5 November 2002 p. 84.
864
T. 5 November 2002 p. 85; T. 6 November 2002 p. 20.
865
T. 14 October 2002 pp. 77-79.
866
T. 29 October 2002 pp. 7-8, 11.
867
T. 29 October 2002 pp. 21-22, 24.
868
T. 29 October 2002 pp. 27, 47-48, 49.
859
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100
roadblocks leading to the camp and on Lake Kivu and that these soldiers reported to
him about who entered and exited the camp. 869
366. Witness PCD stated that from his post he saw Imanishimwe enter the camp on
the evening of 6 April 1994. 870 The witness stated that, on 7 April 1994 around 8:00
a.m., a platoon under the command of Second Lieutenant Irankunda departed the
camp to take up positions at Rusizi I and II and that, sometime in the afternoon, the
third platoon under Second Lieutenant Hakizimana left for the Kamembe airport. 871
The witness noted that the first platoon remained at the camp. 872
367. According to Witness PCD, during the fourteen days at his post, he did not see
or hear about soldiers escorting civilians into the camp or about a civilian escaping the
military camp while being fired upon. 873
368. Witness PCD testified that from his post he saw four soldiers, including
Corporals Murangwa, Rucakibungo, and Gisagara, who were not in uniform, being
escorted to the prosecutor’s office as a result of their plans to kill Imanishimwe. 874
The witness stated that he later met Corporal Gisagara in Congo, and that Gisagara
told him that he had escaped while the arrested soldiers were being transferred from
the prosecutor’s office to the prison. 875
369. Witness PCD indicated that no soldier in the first platoon, which guarded the
camp, deserted. 876
370. Imanishimwe Defence Witness PCE, a soldier at Karambo camp, testified that,
on the evening of 6 April 1994, Imanishimwe informed the soldiers of the death of the
president and that Imanishimwe did not call any further assemblies on 7 April
1994.877 The witness stated that, on 7 April 1994, a platoon led by Sergeant Major
Ndayishimiye was stationed at the airport, a platoon under Second Lieutenant
Irankunda was stationed at Rusizi I and II, and a platoon headed by Second Lieutenant
Chantal Ujeneza guarded the camp. 878 The witness noted that Second Lieutenant
Hakizimana headed Ndayishimiye’s platoon but that Hakizimana remained at the
camp because he held the position of S-3. 879
371. Witness PCE testified that he saw the arrest of four soldiers, including
Rucakibungo, Murangwa, and Karangwa, who were suspected of trying to kill
Imanishimwe. 880 The witness stated that he could not recall the exact date of the arrest
or the exact ranks of the arresting officers but noted that Imanishimwe was not
869
T. 29 October 2002 pp. 21-22, 24.
T. 29 October 2002 pp. 50-51, 53.
871
T. 29 October 2002 pp. 38-39, 41, 46.
872
T. 29 October 2002 p. 63.
873
T. 29 October 2002 pp. 25, 26-27, 30-31, 49-50.
874
T. 29 October 2002 p. 29.
875
T. 29 October 2002 p. 30.
876
T. 29 October 2002 pp. 6, 64.
877
T. 30 October 2002 pp. 13-14.
878
T. 30 October 2002 pp. 26-27.
879
T. 30 October 2002 pp. 49-50.
880
T. 30 October 2002 pp. 17-18, 34-35.
870
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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present. 881 The witness stated that, when the four soldiers were arrested, their clothes
and weapons were removed, and they were transferred to the court. 882 The witness
stated the general staff, rather than Imanishimwe, gave the order to arrest these
soldiers, which he had heard from a radio operator who had received a cable to that
effect. 883 The witness also indicated that there were two additional soldiers, who were
associated with the same plan to assassinate Imanishimwe, but who were not arrested
because they were at posts located away from the camp. 884
372. Witness PCE explained that the camp ’s four jail cells were located to the right
of the guard post upon entry into the camp. 885 The witness stated that opposite the
four cells there was a wall and not another row of cells.886 According to the witness,
civilians were neither detained in the cells during his time at the Karambo camp nor
were they killed at the camp. 887 The witness also testified that, on 11 April 1994, a
civilian was not chased or shot by soldiers at the camp. 888 The witness also stated that
he did not hear gunshots during the night between April and July 1994. 889
373. Imanishimwe Defence Witness PKB testified that he was stationed at the
guard post from 4:00 p.m. on 6 April 1994 until 4:00 p.m. on 7 April 1994 and that he
was responsible for monitoring entry into the camp. 890 Witness PKB testified that, at
about 9:00 p.m. on 6 April 1994, Imanishimwe came to the camp and told the soldiers
gathered on the tarmac that the president had been killed and that they must remain
vigilant because the “enemy”, which the witness understood to mean RPF-Inkotanyi,
could enter the country from any point. 891 The witness stated that there was no other
meeting held during that night or on 7 April 1994. 892 Witness PKB stated that after
duty at the guard post, he went to the roadblock at the prefecture at 4:00 p.m. on 7
April 1994 where he remained until 4:00 p.m. on 8 April 1994. 893 The witness also
testified that a soldier could not pass five consecutive days and nights in a single
location because of the rotation system then in effect. 894 The witness explained that
his platoon of twenty-six soldiers guarded the camp, while two other platoons were
deployed at the Kamembe airport and at Rusizi I and II, respectively. 895
374. Witness PKB testified that the guard post contained four jail cells, each of
which could fit two people. 896 Witness PKB testified that he did not see or hear about
any civilians being detained, tortured, or killed at the Karambo camp between April
881
T. 30 October 2002 pp. 40, 41-42.
T. 30 October 2002 p. 17.
883
T. 30 October 2002 pp. 37-38.
884
T. 30 October 2002 pp. 17-18.
885
T. 30 October 2002 pp. 15-16.
886
T. 30 October 2002 p. 16.
887
T. 30 October 2002 pp. 18-19.
888
T. 30 October 2002 pp. 20, 50-51.
889
T. 30 October 2002 pp. 20-21.
890
T. 16 October 2002 pp. 18-20, 40-41.
891
T. 16 October 2002 pp. 30-31, 32-33, .
892
T. 16 October 2002 p. 33-34.
893
T. 16 October 2002 pp. 22-23.
894
T. 16 October 2002 p. 24.
895
T. 17 October 2002 pp. 4-5.
896
T. 16 October 2002 pp. 35-36, 56-57.
882
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
102
and July 1994. 897 Witness PKB testified that he was not aware that any soldiers were
taken away from the Karambo camp on 9 April 1994 and killed. 898
375. Imanishimwe Defence Witness PNC, a soldier at the Karambo camp, testified
that, on 6 April 1994, Imanishimwe informed the soldiers of the President’s death
around 9:00 p.m. and placed the camp on a state of alert. 899 The witness stated that no
additional assembly was held on 7 April 1994. 900
376. Witness PNC testified that, beginning on 7 April 1994, the camp’s soldiers
were positioned at the airport under Sergeant Major Ndayishimiye, at Rusizi I and II
under Lieutenant Irankunda, and at the camp under Lieutenant Chantal Ujeneza. 901
The witness stated that he was not aware that civilians were detained, tortured, or
imprisoned at the Karambo camp from April to July 1994. 902
377. Witness PNC testified about an exchange of messages between the Karambo
camp and the military headquarters concerning the punishment of six soldiers
suspected of plotting to kill Imanishimwe. 903 The witness testified that the message
from headquarters stated that the soldiers should be arrested, disarmed, and sent to the
prosecutor’s office. 904 The witness testified that he heard that four soldiers, including
Murangwa and Rucakibungo, were arrested on 9 April 1994 on the orders of
Imanishimwe and that they were taken to the Prosecutor’s office, but that two
soldiers, Kawamo Karangwa and Lambert Kabalisa, fled. 905
378. Witness PNC also stated that there were four jail cells manned by two persons
at the guard post at the camp. 906
379. Imanishimwe Defence Witness PNE testified that at 9:00 p.m. on 6 April
1994, Imanishimwe informed the soldiers at the camp of the death of the president
and asked them to be “vigilant” because Karambo was located at the border of Zaire
and Burundi and the enemy could enter Rwanda through Cyangugu. 907 The witness
stated that there were no other assemblies that night or on the morning of 7 April
1994.908
380. Witness PNE testified that, beginning on 7 April 1994, soldiers occupied
positions at Rusizi I and II under Second Lieutenant Irankunda, at the Kamembe
airport under First Sergeant Ndayishimiye and Second Lieutenant Hakizimana, and at
the camp under Second Lieutenant Chantal Ujeneza. 909 Witness PNE testified that the
soldiers left for Rusizi I and II at 8:00 a.m. on 7 April 1994 and that he took his
897
T. 16 October 2002 p. 36.
T. 17 October 2002 p. 6.
899
T. 3 October 2002 pp. 43, 44-45.
900
T. 3 October 2002 p. 46.
901
T. 3 October 2002 p. 55.
902
T. 3 October 2002 pp. 53-54; T. 7 October 2002 p. 49.
903
T. 3 October 2002 pp. 19-22; T. 7 October 2002 pp. 53-62, 67, 68.
904
T. 3 October 2002 pp. 20-23; T. 7 October 2002 p. 67.
905
T. 3 October 2002 pp. 23-24, 25; T. 7 October 2002 p. 34.
906
T. 7 October 2002 p. 16.
907
T. 10 October 2002 pp. 3-4, 15-16.
908
T. 10 October 2002 p. 4-5.
909
T. 9 October 2002 p. 69; T. 10 October 2002 pp. 5, 9, 11-12.
898
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
103
position at the Kamembe airport on 7 April 1994 around 4:00 p.m. where he remained
constantly until 17 July 1994. 910
381. Witness PNE testified that the Karambo camp’s four cells could each fit two
persons. 911
382. Imanishimwe Defence Witness PNF, who stayed at the Cyangugu military
camp from April until July 1994, testified that he supplied food from the camp to the
soldiers positioned at Rusizi I and II and at the airport. 912 The witness testified that,
while at the Karambo camp, he heard no gunshots during the night and never saw or
heard about civilians being detained in the camp’s jail cells. 913
383. Imanishimwe Defence Witness Essono testified that within the guard post at
Karambo camp was a jailhouse with four cells measuring one metre in width and two
metres in length, each with a small opening for ventilation. 914 He stated that the
measurement of the jailhouse itself was three metres in width and six metres in length
with three walls of sixty centimetres each separating the cells. 915 He stated that the
distance from the guard post to the bank of Lake Kivu is 578 metres. 916 The witness
explained that the estimated distance from the Rwandan bank of Lake Kivu to the
Congo bank of the lake is approximately 1,000 metres. 917
384. Imanishimwe Defence Witness PNB testified that until she fled Rwanda, she
was a resident of Cinq Julliet cellule in Kamembe commune. 918 She testified that,
around 9:00 a.m. at some point in June 1994, ten cell leaders along with young men
and three or four gendarmes came to her house as part of a “raid” in Kamembe
commune and told the witness to remain at home and that all “able-bodied men”
should assemble in the market place. 919 The witness stated that her brothers, who were
present in the market place, informed her that, during the meeting, the bourgmestre
told those gathered to return home and not to worry about the “search” which was
conducted only to ensure that everything was safe in the area. 920 The witness stated
that the next day she was told that members of a certain family allegedly affected by
the raid had returned home unharmed. 921
385. Bagambiki stated that Mubiligi, the bourgmestre of Kamemebe city, submitted
a request to the prefectural security council for a search of Kamemebe because of the
increasing insecurity in the region due to the influx of approximately 70,000 war
refugees, including war deserters and people released from prison. 922 Bagambiki
noted that the gendarmerie commander concurred with the idea of a search, and the
910
T. 9 October 2002 pp. 68-69; T. 10 October 2002 pp. 11-12, 15-16, 17.
T. 10 October 2002 pp. 6-8.
912
T. 8 October 2002 pp. 20-21.
913
T. 8 October 2002 pp. 17, 20, 23.
914
T. 10 October 2002 pp. 63-64, 66.
915
T. 10 October 2002 pp. 66, 70.
916
T. 10 October 2002 p. 78; T. 14 October 2002 p. 52.
917
T. 10 October 2002 pp. 78-79.
918
T. 9 October 2002 pp. 3-4, 18.
919
T. 9 October 2002 pp. 9-10, 48.
920
T. 9 October 2002 p. 11.
921
T. 9 October 2002 pp. 12, 16.
922
T. 1 April 2003 p. 3.
911
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gendarmerie conducted a search under Bavugamenshi’s supervision, beginning at
6:00 a.m on 6 June 1994, with the assistance of a few soldiers and cellule officials. 923
Bagambiki noted that he was called to observe when the search of the houses was
complete at 10:00 a.m. 924 Bagambiki stated that he did not see people separated by
ethnicity. 925 Bagambiki noted that, after the search, Bavugamenshi made a report and
told him that any “irregulars” found after brief questioning in the market were taken
to the gendarmerie brigade at Rusizi I. 926
(ii) Findings
386. The Chamber accepts that Prosecution Witness AQ was a soldier assigned to
the Karambo military camp in Cyangugu, which is corroborated by several
Imanishimwe Defence Witnesses. Witness AQ’s testimony, however, contains
inconsistencies and lacks a number of basic details which, in the Chamber’s opinion,
the witness should have been able to provide. For example, the witness could not state
the approximate number of civilians brought into the camp or the number and names
of the soldiers escorting them. The Chamber finds that the witness’s explanation for
not providing greater detail is unpersuasive and evasive, particularly considering the
size of the camp and his duty to monitor who entered and exited the camp. 927
Moreover, the Chamber finds it problematic that Witness AQ could not state the
number of soldiers in his platoon or name his section leader. 928
387. Given Witness AQ’s assertion that he was stationed at the roadblock nearest
the prefectural office on 11 April 1994, the witness should have been able to observe
that Bagambiki, the gendarmerie commander, and the Bishop left the prefectural
office for Cyangugu Cathedral in response to the attack at the cathedral, which was
audible and visible from the prefecture office. Moreover, the Chamber would also
expect that Witness AQ would have seen or heard about Witness LI’s escape from the
Karambo military camp while being fired upon by soldiers. The failure of the witness
to mention these matters casts doubt on his testimony.
923
T. 1 April 2003 pp. 2-5.
T. 1 April 2003 p. 5.
925
T. 1 April 2003 p. 5.
926
T. 1 April 2003 p. 6.
927
T. 4 May 2001 pp. 6-10 (“Q. How many soldiers escorted the civilians? A. I do not know their
number. Q. Can you give us some of the names of the soldiers who were escorting the civilians? A.
You see, asking me names of soldiers under such circumstances is something I cannot answer precisely
because there was the group of civilians which arrived and a few minutes later another group arrived,
and so on and so forth. So, I do not want to take the risk of giving you names, because I might give you
names of soldiers who came in the second group and then you might say, ‘No, those came in the first
group,’ so I cannot venture into that field. Q. Witness, can you now tell us that on the 7th of April
several groups of civilians arrived at the camp successively? A. I'm not saying that the arrival of the
groups was successive, or in a given rhythm. What I know is that groups of civilians were brought to
the camp on that date, on several occasions. Groups of civilians were brought to the camp several times
on the same day, on the same date, in such a manner that you cannot ask me the names of soldiers who
came with the first group or the second group, and so on and so forth. I cannot venture giving you the
names of those soldiers. Q. But, Witness, they were your colleagues and you knew each other, right? A.
Even if we knew each other -- that is, between soldiers -- we did not take the trouble of knowing what
specific person was assigned to a task, as a duty. One could see people coming with a group, but I did
not take the trouble of noting who came with the first group, or who came with the second group, and
so on and so forth, particularly since my duties were different from their duties.”).
928
T. 3 May 2001 p. 109.
924
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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388. The Chamber recalls that Witness AQ testified that he was amongst those
suspected of plotting to kill the camp commander, which was confirmed by
Imanishimwe Defence Witness PNC. As such, the Chamber doubts that Witness AQ,
if he were present at the camp, would have escaped arrest or that he would have
remained at the camp, in particular as a guard, after 9 April 1994.
389. In addition, based on accounts of Imanishimwe Defence Witnesses PCD,
PKB, PNC, and PNE, as well as of Imanishimwe, the Chamber accepts that, following
the President’s death, Imanishimwe addressed the camp only once, on the night of 6
April 1994. In this respect the Chamber notes the reasonableness of a commander
immediately placing his camp on alert in the wake of the death of the head of state,
especially given the state of affairs between the government and the RPF forces.
Witness AQ’s account of two pre-dawn assemblies with Imanishimwe on 7 April
1994 is inconsistent with other evidence on the record.
390. The Chamber also notes that Witness AQ’s account that Imanishimwe
reorganised the platoons, dispatching one platoon to search the prefecture for
Inkotanyis and their accomplices, one to patrol Lake Kivu, and one to remain at the
camp is at odds with his later testimony that he contacted a fellow Tutsi soldier who
was stationed at the airport, which would be consistent with the testimony of
Imanishimwe Defence Witnesses PKA, PCC, PCD, PCE, PNE, and PNF, as well as
with the testimony of Imanishimwe who stated that a platoon of soldiers was posted at
the airport. Furthermore, the Chamber notes that the witness’s credibility is further
undermined by his assertion that he was a member of Sergeant Mirembano’s platoon,
which was assigned to guard the camp, and his later assertion that he was not a
member of Mirembano’s platoon. 929
391. Based on the above inconsistencies and omissions in Witness AQ’s testimony,
the Chamber has doubt that he was stationed at the guard post on 7 April 1994 and in
front of the roadblock at the prefecture from 8 until 12 April 1994. As such, the
Chamber cannot rely on his account of what he claimed to have seen from those posts
because the basis of his knowledge for these events is suspect.
392. The Chamber finds the first-hand and detailed evidence of Prosecution
Witness LI to be credible and reliable. From his testimony, the Chamber finds that
soldiers at the Karambo camp severely beat Witness LI and those detained with him
and threatened them with death. The Chamber also accepts Witness LI’s testimony
that his brother and his classmate with whom he was arrested and incarcerated at the
camp are dead, which the witness would reasonably know because of his relationship
with them. However, the Chamber cannot determine beyond a reasonable doubt the
fate of the other individuals detained at the camp with Witness LI. The witness only
speculated that they were killed because he did not hear that they had returned to the
cathedral.
393. From the testimonies of Prosecution Witness MG, Bagambiki, and
Imanishimwe, the Chamber finds that a search occurred in Kamembe city on 6 June
929
Cf. T. 2 May 2001 p. 114 (“I was assigned to the first platoon, and I think that I said that the first
corps was led by Chief Warrant Officer Mirembano”) with T. 3 May 2001 p. 13 (“It was obvious that
that soldier was part of my platoon, but not part -- did not belong to Mirembano's platoon.”).
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1994. The Chamber finds that Witness MG’s detailed first-hand account of his arrest
during the search and his subsequent detention at the Karambo military camp is
credible and reliable. In the Chamber’s opinion, Bagambiki’s failure to remember that
Witness MG was among 300 people in the Kamembe city market on 6 June 1994 does
not raise any doubt about his arrest. The Chamber has also considered Witness MG’s
testimony in connection with Imanishimwe Defence Witness PNB’s statement that
Witness MG and his family were not affected by the search. The Chamber cannot
accept Witness PNB’s account as credible given the detailed and convincing evidence
provided by Witness MG.
394. Based on the evidence of Witness MG, the Chamber finds that, on 6 June 1994
in Kamembe city, soldiers arrested approximately 300 people, including the witness,
his father, and two sisters. Bagambiki, Imanishimwe, and Bavugamenshi then
questioned Mub iligi about whether each of the arrested people was from Kamembe.
During the questioning, a dispute arose between the soldiers and Mubiligi about
whether the witness and his family were people of integrity, as claimed by Mubiligi,
or whether they had ties to the RPF, as claimed by the soldiers, one of whom had said
that a member of the witness’s family was found in possession of an RPF cassette
tape. Bavugamenshi, who knew the witness’s family, intervened and ordered that the
witness and his family be taken to the gendarmerie brigade to ensure their safety. On
the way to the gendarmerie brigade, soldiers forced the driver of the communal
vehicle to change course to Gatandara. The Chamber finds that Imanishimwe ordered
the soldiers to have Witness MG and his family killed at Gatandara because the
soldiers said that they were acting on the orders of their “chief” and had just left
Imanishimwe at the Kamembe market.
395. The Chamber finds that upon arrival at Gatandara, the soldiers summoned
Interahamwe, telling them that they had brought people to be killed. The gendarmes
protected the witness and his family from the soldiers and the Interahamwe and
brought them safely to the gendarmerie brigade. The next day, soldiers purporting to
act on Imanishimwe’s instructions took the witness and his family from the
gendarmerie brigade and incarcerated them at the Karambo military camp for about
one week. While at the Karambo camp, soldiers severely beat the witness and three
other Tutsi civilians in the presence of Imanishimwe and drove a fifteen centimetre
nail into the feet of two of these detainees, while asking them about their connections
to the RPF. At night, soldiers brought new prisoners to the cells and took away some
prisoners for questioning. Some of the prisoners who had been removed for
questioning did not return while others did, indicating that they had been questioned.
At one point, soldiers called out the names of one of the witness’s sisters and her
cellmate Mbembe and removed them from their cell. Since then, the witness’s sister
has not been found, while Mbembe’s dead body was found later. During the witness’s
incarceration, Imanishimwe came to ask the witness’s father if he knew a certain
trader and an MRND official, whom his father did know. A few days later, Second
Lieutenant Hakizimana called out the names of the witness and the other family
members detained with him and drove them home.
396. The Chamber accepts Witness MG’s assertion that his sister was killed, given
the time that has passed since she was removed from her cell, the fact that if she had
been alive at the camp, she would have been released with the other family members,
and the circumstances of being taken from her cell by soldiers at night with another
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107
woman, Mbembe, who was subsequently found dead. The Chamber finds that she was
killed between 7 June 1994 and 11 or 12 June 1994, considering the date of the
Kamembe city search, the date on which Witness MG and his family were transferred
to the camp, and the period of time they were incarcerated at the military camp there.
397. The Chamber also finds the first-hand and detailed evidence of Prosecution
Witness MA to be credible and reliable. As such, the Chamber accepts that the
witness was arrested and, on the orders of Imanishimwe, imprisoned at the Karambo
military camp for more than one week at the end of June 1994 and that during that
period unidentified prisoners were taken in and out of the camp’s cells at night,
followed by the sounds of gunfire between 2:00 and 4:00 a.m.
398. The Chamber notes that Prosecution Witnesses LI, MA, and MG attest that
soldiers imprisoned civilians at the Karambo military camp at various points from
April through June 1994. Though these witnesses were not incarcerated at the same
time, the Chamber finds that their accounts provide a measure of mutual
corroboration. All provide similar first-hand and detailed accounts of soldiers
incarcerating civilians in cells in the guard post, calling them for questioning, and, in
the case of Witnesses LI and MG, mistreating them while accusing them of having
connections with the RPF.
399. In assessing the credibility and reliability of the accounts of Witnesses LI,
MA, and MG, the Chamber has considered the assertions of Imanishimwe and his
witnesses that soldiers were never brought to or mistreated at the camp. The Chamber,
however, does not find Imanishimwe or his witnesses to be credible or reliable on this
point. The Chamber is mindful that the Imanishimwe Defence witnesses are biased
and self- interested because they previously served as soldiers under Imanishimwe’s
command and because acknowledging that civilians were brought to the camp would
implicate them or their colleagues in the mistreatment. Consequently, the Chamber
does not find that this evidence of Imanishimwe and his witnesses casts doubt on the
persuasive and detailed first-hand accounts of Witnesses LI, MA, and MG.
400. The Chamber accepts the testimonies of Imanishimwe Defence Witnesses
PCE, PKB, PNC, PNE, and Essono that the Karambo camp had four cells in the guard
post, each measuring one metre by two meters. This finding does not undermine
Witness MA’s account of his imprisonment at the camp because, in the Chamber’s
opinion, Witness MA’s statement that there were twelve cells was based on an
observation made under difficult circumstances. In addition, the Chamber finds that
Witness MG’s account of several people being placed in a single cell is not
undermined by the small size of each cell, given the other mistreatment that soldiers
then inflicted on detainees at the Karambo camp.
b. Other Events
401. The Prosecution also submitted that Imanishimwe participated in a number of
killings, as recounted by Prosecution Witnesses LAI, LAJ, LC, and LAK. 930 Witness
LAI testified that Imanishimwe personally killed a Tutsi soldier at 11:00 a.m. on 7
930
See Prosecutor’s Closing Brief, pp. 155, 156, 163.
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108
April 1994 at a meeting in Bugarama and that Imanishimwe also personally killed
Second Lieutenant Mbakaniye of the gendarmerie a week later at Gatandara. 931
Witness LAJ testified about Imanishimwe and Munyakazi killing a Tutsi second
lieutenant in Bugarama around 10:00 a.m. on 10 April 1994. 932 Witness LC attested to
hearing that Imanishimwe had ordered Interahamwe to kill three Hutu boys at
Gatandara. 933 Witness LAK testified about Imanishimwe personally killing a soldier
in July 1994 in Kamembe city. 934
402. The Chamber emphasises that the Bagambiki/Imanishimwe Indictment does
not mention these specific events and that they do not fall within the contours of
paragraphs 3.24 and 3.25 or any other paragraph of the indictment. Indeed, no
paragraph in the indictment alleges that Imanishimwe personally killed or ordered
Interahamwe or other civilians to engage in killings. In addition, the Chamber
observes that notice of these specific events is not in the supporting materials to the
indictment, in the pre-trial brief, or in other pre-trial disclosure. 935
403. Further, the Chamber recalls that Witnesses LAI, LAJ, and LAK are alleged
accomplices of the accused and, as such, views their testimonies with caution. In
addition, the Chamber has found the testimonies of Witnesses LAI, LAJ, and LAK
not to be credible or reliable with respect to other events and thus does not accept
their testimonies about these events without corroboration. 936 The Chamber
emphasises that Witness LC’s account of Imanishimwe’s participation in the murder
of the three Hutu boys is uncorroborated hearsay. In addition to his testimony being
uncorroborated, Witness LAI did not specify the basis of knowledge for his account
of Imanishimwe’s participation in the killing of Second Lieutenant Mbakaniye.
Moreover, the Chamber finds that the testimonies of Bagambiki and Imanishimwe
that they participated in a prefectural security council meeting on 7 April 1994, which
is corroborated by Bagambiki Defence Witness Mukandekezi and Imanishimwe
Defence Witness PBB, raises doubt about their alleged participation in the meeting in
Bugarama on that day. 937
404. Consequently, the Chamber will not take into account the evidence of these
witnesses on these matters in making its findings because such evidence is unreliable
and outside the scope of the indictment.
931
T. 17 September 2001 pp. 27, 89-92; T. 25 September 2001 pp. 83-85, 102-103, 107-108, 110-114,
116-118.
932
T. 23 October 2000 pp. 49, 51-53; T. 23 October p. 57 (French); T. 24 October 2000 pp. 109-111; T.
25 October 2000 p. 12.
933
T. 9 May 2001 pp. 25-26, 70-71; T. 10 May 2001 pp. 111-112, 114, 117, 123-124, 131, 137, 138,
140.
934
T. 18 January 2001 pp. 109-110; T. 22 January 2001 pp. 83, 84, 86, 93, 104-105; T. 23 January
2001 pp. 8-9, 10-14.
935
See, e.g., Testimony of LAI, T. 25 September 2001 p. 110; Testimony of LAJ, T. 24 October 2001
p. 42.
936
See paras. 129-132, 484, 540.
937
Testimony of Bagambiki, T. 27 March 2003 p. 35, 37, 38; T. 2 April 2003 p. 29; Testimony of
Imanishimwe, T. 22 January 2003 p. 25; Testimony of Mukandekezi, T. 10 March 2003 p. 35;
Testimony of PBB, T. 4 November 2002 pp. 10, 11, 16-17, 18; T. 5 November 2002 pp. 14, 38. The
Chamb er also has previously found that Bagambiki’s participation in the security council meeting
raised reasonable doubt about his participation in another event that morning. See supra para. 217.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
109
c. Findings on Paragraphs 3.24 and 3.25
405. Based on the evidence of Prosecution Witnesses LI, MG, and MA, the
Chamber finds beyond a reasonable doubt that an unknown number of Tutsi and Hutu
civilians were arrested under suspicion of being RPF accomplices and taken to the
Karambo military camp where soldiers mistreated them. Based on the evidence of
Witness MG, the Chamber finds that Imanishimwe participated with his soldiers in
the selection and the arrest of mainly Tutsi civilians on 6 June 1994 at Kamembe city.
406. The Chamber also finds that Imanishimwe ordered the arrest at the Karambo
military camp of at least six soldiers who were suspected of plotting to kill him.
However, the Chamber lacks reliable evidence to determine beyond a reasonable
doubt what happened to the soldiers after their arrest and transfer to the prosecutor’s
office and the Cyangugu prison.
407. Based on the evidence of Witness MG, the Chamber finds that Imanishimwe
instructed soldiers to have Witness MG, his father, and two sisters killed at Gatandara,
which was ultimately prevented by gendarmes.
408. The Chamber finds that soldiers from the Karambo military camp killed or
facilitated the killing of Witness LI’s brother and his former classmate on 11 April
1994 and Witness MG’s sister and her cellmate Mbembe between 7 and 12 June 1994,
given the circumstances surrounding their detention and removal from the camp’s
cells.
409. The Chamber lacks sufficient reliable evidence to determine beyond a
reasonable doubt whether soldiers killed or participated in the killings of the other
unidentified persons detained at the Karambo military camp who were mentioned by
Witnesses LI, MA, and MG.
410. Based on the evidence, the Chamber infers that Imanishimwe issued orders
authorizing the arrest, detention, mistreatment, and execution of civilians with
suspected ties to the RPF. In reaching this conclusion, the Chamber has considered the
pattern and frequency of civilians being arrested and brought to the camp.
Imanishimwe was present during the detention and mistreatment of some of these
civilians. Given the nature of a military command structure and hierarchy, the
relatively small size of the camp, Imanishimwe’s presence at the camp,
Imanishimwe’s testimony that he had control over the Karambo camp soldiers, the
absence of any evidence suggesting that he lacked control over the soldiers, and the
absence of any evidence of Imanishimwe preventing soldiers from mistreating
civilians or punishing them for their abuse, the Chamber cannot accept that soldiers at
the Karambo camp would have undertaken these activities, particularly on such a
large scale, without orders from Imanishimwe, the commander of the camp. The
Chamber also notes that the soldiers who unsuccessfully attempted to have Witness
MG and his family killed at Gatandara stated that they were acting on the orders from
their commander. In addition, the soldiers stated that they were acting on orders of
Imanishimwe when they brought Witness MG and his family to the military camp
from the gendarmerie camp. The Chamber also recalls Imanishimwe’s total denial
that civilians were ever brought into the Karambo camp, which was not found to be
credible.
110
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411. As such, the Chamber finds that soldiers killed or facilitated the killing of
Witness LI’s brother and classmate and Witness MG’s sister and her cellmate
Mbembe, acting on the orders issued by Imanishimwe. The Chamber will determine
in its legal findings whether the soldiers’ mistreatment of civilians at the Karambo
camp constituted torture. The Chamber will also consider in its legal findings whether
soldiers arrested Tutsis, as such, and moderate Hutus to bring them to the camp to be
tortured and executed.
5. Paragraphs 3.17, 3.18, 3.26, 3.27,
Bagambiki/Imanishimwe Indictment
3.28,
3.30,
and
3.31
of
the
412. Paragraphs 3.17, 3.18, 3.26, 3.27, 3.28, 3.30, and 3.31 of the
Bagambiki/Imanishimwe Indictment read:
3.17 During the events referred to in this indictment, Lieutenant Samuel
IMANISHIMWE, in his capacity as Commander of the Cyangugu Barracks,
participated, with Préfet Emmanuel BAGAMBIKI and other persons, in
preparing lists of people, mostly Tutsis and some Hutus in the opposition to
eliminate.
3.18 These lists were given to the soldiers and militiamen with order to arrest and
kill the persons whose names were listed. The soldiers and the Interahamwe then
carried out the orders.
3.26 On at least two occasions in April 1994, Préfet Emmanuel BAGAMBIKI
ordered soldiers and MRND militiamen, i.e. the Interahamwe, to kill members of
the civilian Tutsi population and certain Hutus in the opposition.
3.27 Between April and July 1994, subordinates of Préfet Emmanuel
BAGAMBIKI, notably sous-préfets, bourgmestres, government employees and
gendarmes, participated in the massacres of the civilian Tutsi population and of
certain Hutus in the opposition.
3.28 During the events referred to in this Indictment, Préfet Emmanuel
BAGAMBIKI had the duty of ensuring the protection and safety of the civilian
population within his préfecture. On several occasions in April 1994, Préfet
BAGAMBIKI failed or refused to assist those whose lives were in danger who
asked for his help, particularly in Gatare commune, where those Tutsis were
massacred.
3.30 During the events referred to in this indictment, the militiamen, i.e. the
Interahamwe, with the help of the soldiers, participated in the massacres of the
civilian Tutsi population and of Hutu political opponents in Cyangugu
préfecture.
3.31 During the events referred to in this indictment, there were several tens of
thousands of victims, mostly Tutsis, in Cyangugu prefecture.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
111
413. The Chamber will also consider in this section whether Bagambiki
participated in the distribution of weapons as alleged in paragraph 3.16 and whether
soldiers participated in massacres as alleged in paragraph 3.25.
a. Gashirabwoba
(i) Allegations
414. Prosecution Witness LAC testified that, between 8 and 11 April 1994, he and
other Tutsis fought off Hutu assailants, armed with spears, machetes, clubs, and
grenades who were attacking Tutsi homes in Gisuma commune. 938
415. Witness LAC testified that, on 11 April 1994, Tutsi refugees went to the
Gashirabwoba football field where they found their families fighting against attackers
from Bumazi, Nyamuhunga, and Gashirabwoba sectors. 939 The witness testified that,
between 1:00 and 2:00 p.m., the 300 refugees at the football field pushed back the
attackers to the other side of the river. 940 The witness stated that after the attack,
Bagambiki, Imanishimwe, and soldiers arrived at the field in three pickup trucks and
that Bagambiki asked the refugees what they were doing there and why they were
being attacked. 941 According to the witness, the refugees replied that people from
Bumazi and Gashirabwoba sectors had attacked them and had burned their homes. 942
The witness stated that Bagambiki then asked why they were not burning the houses
of the attackers, to which the refugees responded that they did not have the means to
do so.943 The witness testified that Bagambiki then called out from a list the names of
Côme Simugomwa, a trader, who was with the refugees, and Ephrem, a trader, who
was not there. 944 The witness said that Bagambiki told the refugees that Michel
Busunyu, who was an MRND member in Karengera, asked them to bring Côme, a
member of the liberal party, to him so that they could talk about party affairs. 945 The
witness testified that after spending approximately twenty minutes at the field,
Bagambiki, Imanishimwe, and the soldiers left with Côme at about 3:00 p.m. 946
Witness LAC testified that he never saw Côme alive again and that, after security had
been restored, survivors, including the witness, found Côme’s body by a river in
Karengera commune; they recognized Côme’s body from his clothes: a red cap, white
shirt, a red waistcoat, and black trousers. 947
416. Witness LAC stated that the soldiers returned in a vehicle to the field on 11
April 1994 at about 7:00 p.m. and, when asked, told the refugees that they had left
Côme with Busunyu and that the two were talking with one another. 948 The witness
said that the soldiers then asked the refugees at the field, of whom there were the n
938
T. 9 October 2000 pp. 11-20, 89, 94, 96-97; T. 10 October 2000 pp. 24, 25.
T. 9 October 2000 pp. 20, 21, 22.
940
T. 9 October 2000 pp. 21, 22.
941
T. 9 October 2000 pp. 23, 25, 26, 97-98.
942
T. 9 October 2000 p. 26.
943
T. 9 October 2000 p. 26.
944
T. 9 October 2000 pp. 23, 25, 98-99.
945
T. 9 October 2000 pp. 26-27.
946
T. 9 October 2000 p. 27.
947
T. 9 October 2000 pp. 41, 42, 43, 76, 78.
948
T. 9 October 2000 pp. 28, 29.
939
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112
approximately 500, if they were all Tutsis and that the refugees told them that some
were Hutus. 949 According to the witness, the soldiers suggested killing the refugees,
but someone near the driver of the vehicle said no and suggested examining the
refugees’ problems. 950 The witness stated that the soldiers then left in their vehicles. 951
The witness stated that refugees continued to arrive and that, on 12 April 1994,
approximately 3,000 refugees had gathered at the field. 952
417. According to Witness LAC, on the morning of 12 April 1994, 2,000 people
including inhabitants from the various hills and Interahamwe and workers from the
Shagasha tea factory, began attacking the refugees. 953 The witness stated that during
the attacks, Bagambiki and Nsabimana, the director of the tea factory, stopped by the
field for about thirty minutes and asked the refugees to explain the situation. 954 The
witness stated that the refugees told Bagambiki that they had not eaten or drunk
anything in four days and that Bagambiki then promised to send soldiers to protect
them. 955
418. Witness LAC stated that after waiting for an hour, the refugees saw armed
soldiers and factory guards climbing to the summit over the football field. 956 The
witness stated that the soldiers surrounded the refugees and that ten to fifteen soldiers
fired on them, while other soldiers remained in the bushes. 957 The witness stated that
the refugees told the soldiers that they wanted peace but that the soldiers told the
refugees to raise their hands and threw grenades at them while shooting in all
directions. 958 Witness LAC explained that he was not wounded during this attack
because when they first started shooting he hid on a high hill and noted that a number
of wounded people fell on him. 959 The witness said that the soldiers’ attack lasted
about thirty minutes, following which the soldiers looted the refugees’ property, and
then they sent in the Interahamwe to finish off the survivors. 960 The witness said that
after the killings, the soldiers moved towards the tarred road and left the fie ld free for
the Interahamwe to loot. 961 He testified that when the Interahamwe started fighting
amongst themselves for the looted property, he escaped and hid in a banana
plantation, later crossing into the Congo on 18 April 1994. 962
419. Witness LAC stated that Callixte Nsabimana had previously recruited the
Interahamwe who participated in the attack to work at the Shagasha tea factory and
that there they had been trained to kill by reserve soldiers who also worked at the
factory. 963 The witness stated that he recognized these Interahamwe, who covered
949
T. 9 October 2000 pp. 29, 32, 69.
T. 9 October 2000 pp. 30, 69-70.
951
T. 9 October 2000 p. 32; T. 10 October 2000 p. 34.
952
T. 9 October 2000 pp. 32, 34.
953
T. 9 October 2000 pp. 33, 34-35, 70.
954
T. 9 October 2000 pp. 35, 36.
955
T. 9 October 2000 pp. 35, 36.
956
T. 9 October 2000 pp. 37, 38-39.
957
T. 9 October 2000 pp. 38-39.
958
T. 9 October 2000 pp. 37-38.
959
T. 9 October 2000 pp. 40, 73-74.
960
T. 9 October 2000 pp. 39, 40, 74.
961
T. 9 October 2000 p. 40.
962
T. 9 October 2000 pp. 40, 50, 74-75, 82.
963
T. 9 October 2000 pp. 45-47, 81.
950
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113
their faces with banana leaves to hide their identities, because they came along with
factory guards and because he knew them as factory employees. 964
420. Prosecution Witness LAH testified that the day after the death of the President,
he went to Kanyamuhanda’s house, where he received spears, swords, and clubs, and
then began killing Tutsis because of their ethnic group. 965 The witness stated that, on
8 April 1994, Bagambiki and Imanishimwe distributed grenades to Felix and Bernard,
near Bagambiki’s house in Bumazi sector and that Imanishimwe told the Interahamwe
to be patient because he was going to bring soldiers to help them overcome the
enemy. 966
421. Witness LAH testified that Interahamwe gathered and surrounded the Tutsis at
an unidentified place and that then they threw grenades at the refugees, killing three of
them. 967 The witness stated that the other refugees, who scattered in the forest, said
that they were going to the football field the following day. 968 According to the
witness, Bagambiki told Kanyamuhanda that the group which had received military
training had to be ready for the next day’s attacks. 969
422. Witness LAH testified that, on 8 April 1994 at the Gashirabwoba football
field, Côme Simugomwa, who was wearing a red hat, asked Bagambiki for assistance,
explaining that the Interahamwe were burning down their houses and attacking
them. 970 The witness said that Bagambiki then put Côme Simugomwa in his vehicle
and took him to a place called Kamafende where “they” killed him. 971
423. Witness LAH testified that, on 9 April 1994 between 11:00 a.m. and 1:00 p.m,
Interahamwe and soldiers brought by Imanishimwe from the Karambo camp attacked
and killed most of the approximately 2,000 refugees at the Gashirabwoba football
field. 972 The witness testified that Bagambiki, who was wearing a red coat and
trousers, told the attackers to separate into two groups, each with soldiers and people
who had received training. 973 The witness said that the group led by Bagambiki, of
which he was a part, attacked from the goal area and that the group led by
Imanishimwe was near the forest to ensure that the refugees could not escape from the
field. 974 The witness stated that a soldier fired a machine gun at the refugees to force
back anybody who tried to escape. 975
424. According to Witness LAH, during the attack Imanishimwe stated that the
attackers had to kill all the refugees so that no survivor would be left to recount what
had happened, and Bagambiki encouraged the attackers by saying that all the Tutsis
964
T. 9 October 2000 p. 81.
T. 10 October 2000 p. 76; T. 11 October 2000 p. 128.
966
T. 10 October 2000 pp. 80, 81, 84; T. 11 October 2000 pp. 129-130, 135, 148, 152.
967
T. 10 October 2000 p. 81.
968
T. 10 October 2000 p. 81.
969
T. 10 October 2000 p. 82.
970
T. 10 October 2000 p. 82; T. 11 October 2000 pp. 92, 94.
971
T. 10 October 2000 p. 82; T. 11 October 2000 p. 94.
972
T. 10 October 2000 pp. 81, 82, 84, 85, 89, 90; T. 11 October 2000 pp. 88, 95.
973
T. 10 October 2000 pp. 83-84; T. 11 October 2000 pp. 88-89, 91.
974
T. 11 October 2000 p. 96.
975
T. 10 October 2000 p. 83; T. 11 October 2000 pp. 146-147.
965
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114
had been killed in other localities. 976 The witness testified that Bagambiki also
encouraged them to search for and kill survivors among the victims. 977 The witness
testified that after the attack Bagambiki told Kanyamuhanda that Interahamwe could
loot the bodies. 978
425. Witness LAH testified that Bagambiki told the assailants to look for and kill
Tutsis in Bushenge hospital where they subsequently killed three Tutsis. 979 The
witness testified that he killed others on the orders of Kanyamuhanda. 980 The witness
noted, however, that their overall leader was Bagambiki, who met twice a week at
Kanyamuhanda’s house, where the Interahamwe received their orders, with the
following individuals: Callixte Gakawaya, Bagambiki’s secretary; Callixte
Nsabimana, the director of the Shagasha tea factory; and Conseillers Karamdizi
Cician and Habimana Ageesa. 981 The witness testified that he was present on 10 April
1994, when Bagambiki delivered petrol to Kanyamuhanda which the Interahamwe
then used to burn down houses, including two in Gashwate cellule, killing fifty- four
Tutsis. 982 The witness noted that the Interahamwe killed other Tutsis that day in
banana plantations and in the bush. 983
426. Prosecution Witness LAB testified that, on 9 April 1994, Interahamwe, led by
Tariq Assiz and Mugonda, went to Gashirabwoba stadium in Gisuma commune and
attacked Tutsis who had sought refugee there. 984 The witness explained that the attack
was unsuccessful, and so Tariq Assiz went to Cyangugu for reinforcements. 985 The
witness stated that Tariq Assiz returned to the roadblock near the Shagasha tea factory
with Imanishimwe and a vehicle full of soldiers and that Imanishimwe then took the
witness and others who had been trained to use weapons to Gashirabwoba. 986
According to the witness, when they arrived at Gashirabwoba, Imanishimwe told
them to surround the field to prevent the Tutsi refugees from escaping. 987 The witness
stated that Imanishimwe and Bagambiki told the refugees to gather in the middle of
the field and not move and that the soldiers had been brought to ensure their
security. 988 The witness stated that Imanishimwe then gave a soldier a coded message,
which the witness understood as an order to shoot the refugees, which the soldier
did. 989 The witness stated that the attack began around 11:00 a.m. and lasted for about
fifteen minutes and that the attackers killed all of the refugees. 990
427. Bagambiki stated that he did not deploy gendarmes to Gashirabwoba on 7
April 1994 because he was not informed that displaced persons had gathered there,
976
T. 10 October 2000 pp. 85-86; T. 11 October 2000 pp. 88, 89.
T. 10 October 2000 p. 88.
978
T. 10 October 2000 pp. 89-90; T. 11 October 2000 p. 86.
979
T. 10 October 2000 pp. 90, 91.
980
T. 11 October 2000 p. 35.
981
T. 10 October 2000 pp. 91, 92; T. 11 October 2000 pp. 100-101.
982
T. 10 October 2000 pp. 77, 78, 79-80, 82; T. 11 October 2000 pp. 83-84, 113.
983
T. 10 October 2000 pp. 70, 76, 117.
984
T. 24 January 2001 pp. 7-8; T. 25 January 2001 p. 7; T. 29 January 2001 p. 32.
985
T. 24 January 2001 p. 8; T. 25 January 2001 p. 8; T. 29 January 2001 pp. 33-34.
986
T. 24 January 2001 p. 8; T. 25 January 2001 p. 8; T. 29 January 2001 pp. 34, 36-37, 38.
987
T. 24 January 2001 p. 10; T. 29 January 2001 p. 55.
988
T. 24 January 2001 pp. 10-12; T. 25 January 2001 p. 8; T. 29 January 2001 pp. 57-58.
989
T. 24 January 2001 p. 11; T. 29 January 2001 pp. 54, 64-66.
990
T. 24 January 2001 p. 11; T. 29 January 2001 pp. 29, 68-69.
977
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
115
which he did not think possible because of the lack of facilities. 991 Bagambiki noted
that he did not go to Gashirabwoba on 11 April 1994 with Imanishimwe because he
was chairing a prefectural security council meeting until around 4:00 p.m. 992
Bagambiki stated that if it had been known that refugees were at Gashirabwoba on 11
April 1994, someone attending the meeting, such as the bourgmestres of Gisuma,
Gafunzo, Kagano, Kirambo, Gatare, and Karengera who had to drive past
Gashirabwoba on their way to the prefecture, would have informed him of that, as the
topic of the meeting was the refugee issue. 993 Bagambiki noted that he passed the field
on 13 April 1994 on his way to Nyamasheke when he stopped at the commune office
in Gisuma and learned that the bourgmestre had gone to bury the dead and conduct
investigations. 994 Bagambiki stated that he also learned at this time that the refugees
had been hiding in the bush around the field and that the bourgmestre had not been
aware of their presence. 995
428. Bagambiki noted that he knew Côme Simugomwa very well and that Côme
lived close to the Gashirabwoba football field on the Cyangugu-Butare road. 996
Bagambiki stated that he also knew Ephrem because he used to watch him play
football. 997 Bagambiki stated that he learned that Côme and Ephrem were killed,
which saddened him, because he had known Côme for a long time and they were
friends and neighbours. 998 Bagambiki testified that he did not go to Gashirabobwa on
11 April 1994 and that he did not call Ephrem’s or Côme’s names off a list because he
was at a prefectural security council meeting. 999 Bagambiki also stated that he did not
kill Côme. 1000
429. Bagambiki testified that, on 12 April 1994, he went immediately to Mibilizi
parish, with the commander of the gendarmerie and Bishop Thadée in response to a
call he received at about 10:00 or 11:00 a.m. and that he returned around 6:00 p.m. 1001
Bagambiki stated that he heard from people fleeing Kigali through Butare on 12 April
1994 that they had just seen people being massacred on the Gashirabwoba football
field. 1002 Bagambiki recounted that he then telephoned the Gisuma commune office
and that a commune policeman confirmed that refugees had been massacred there. 1003
430. Bagambiki stated that he knew Ananias Kanyamuhanda and acknowledged
meeting him at his official residence when he was appointed as prefect. 1004 Bagambiki
stated that he never brought grenades to Bumazi or gasoline to Kanyamuhanda during
the events. 1005 Bagambiki testified that he did not give orders to search the Bushenge
991
T. 31 March 2003 pp. 16, 17.
T. 2 April 2003 p. 30.
993
T. 31 March 2003 pp. 17, 18.
994
T. 31 March 2003 pp. 18, 38-39.
995
T. 31 March 2003 p. 18.
996
T. 31 March 2003 pp. 19-20.
997
T. 31 March 2003 p. 20.
998
T. 31 March 2003 p. 20.
999
T. 31 March 2003 p. 20.
1000
T. 31 March 2003 p. 20.
1001
T. 31 March 2003 pp. 18-19.
1002
T. 31 March 2003 pp. 16-17.
1003
T. 31 March 2003 pp. 16-17.
1004
T. 31 March 2003 pp. 15-16.
1005
T. 31 March 2003 p. 22.
992
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
116
hospital and to kill Tutsis hidden there. 1006 Bagambiki also noted that he did not own
any red clothing because it was not his taste. 1007 Bagambiki stated that Callixte
Gakwaya, the former bourgmestre of Gisuma commune, was not his secretary, but
rather a person dealing with requests from the community. 1008
431. Imanishimwe testified that he did not bring soldiers to the Gashirabwoba
football field on 9 April 1994 and that he did not distribute grenades to
Interahamwe.1009 Imanishimwe further noted that he did not have a machine-gun or
any stream grenades at his camp. 1010 Imanishimwe also stated that the combat
situation described by Witness LAB, where soldiers were firing on one side and
Interahamwe were firing on the other, could not have happened because then the two
assailants would in reality be killing each other. 1011 Imanishimwe testified that he did
not bring soldiers to the Gashirabwoba football field on 11 April 1994 with
Bagambiki to look for Côme Simugomwa as alleged by Witness LAC. 1012
Imanishimwe also stated that he did not attack the refugees at Gashirabwoba on 12
April 1994 because he left Rwanda between 9:00 and 9:30 a.m. and spent the day in
Bukavu attending a military meeting, returning to Cyangugu around 5:00 p.m. 1013
432. Bagambiki Defence Witness BLB testified that he was not in Gashirabwoba
between 7 and 13 April 1994 and that the Gashirabwoba football field was
approximately one kilometre from his house. 1014 The witness stated that he heard
gunshots coming from the Gashirabwoba football field on 12 April 1994 and that on
that day he heard from an unidentified source that massacres had taken place there. 1015
The witness, however, noted that he did not see any killings while he was in
hiding. 1016 The witness testified that Bagambiki never brought him petrol in order to
burn Tutsis during April 1994, although the distribution of petrol was one of the
charges levied against the witness in his trial in Rwanda. 1017 Witness BLB further
stated that a Rwandan court dismissed this charge. 1018
433. Witness BLB testified that Nzachayo and others looted his property in April
1994.1019 The witness stated that Nzachayo had written a letter to the prosecutor in
Rwanda in 1998 indicating that his accusations against the witness were
unfounded. 1020 The witness noted that Nzachayo gave a copy of the letter to the
witness’s family, which in addition to Nzachayo’s testimony, was used as exculpatory
1006
T. 31 March 2003 p. 22.
T. 31 March 2003 p. 21.
1008
T. 31 March 2003 p. 21.
1009
T. 22 January 2003 pp. 28-29; T. 23. January 2003 p. 14.
1010
T. 22 January 2003 p. 29.
1011
T. 22 January 2003 pp. 29-30.
1012
T. 22 January 2003 pp. 30-31; T. 23 January 2003 p. 14.
1013
T. 22 January 2003 p. 31; T. 23 January 2003 p. 58.
1014
T. 19 February 2003 p. 24.
1015
T. 19 February 2003 p. 24; T. 20 February 2003 pp. 5-6.
1016
T. 20 February 2003 pp. 5-6.
1017
T. 19 February 2003 p. 28.
1018
T. 19 February 2003 p. 28.
1019
T. 19 February 2003 p. 23.
1020
T. 19 February 2003 pp. 29-30, 33, 40.
1007
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evidence during the witness’s trial. 1021 The witness affirmed that there was a seal on
the letter and explained that, before a letter is sent from a prison, the director of the
prison must stamp it with a seal. 1022
434. Bagambiki Defence Witness GNV testified that, on 9 April 1994, he heard
from an unspecified person that a Tutsi, Côme Simugomwa, who was the chairman of
the PL party in Gisuma commune, had been kidnapped by unidentified persons. 1023
The witness stated that, on 11 April 1994, he saw many refugees gathered at the
Gashirabwoba football field. 1024 The witness further stated that, on 12 April 1994,
from his home, he heard gunshots coming from the football field at approximately
11:00 a.m. 1025 The witness stated that he later learned that people had shot at the
refugees at the football field. 1026 The witness testified that various members of the
family of his mother, who was a Tutsi, were killed at the Gashirabwoba field and that
there were two survivors, whom he later met at an unspecified date after the
killings. 1027 The witness further testified that he never heard either that Bagambiki
was at the Gashirabwoba football field on 12 April 1994 or that Bagambiki was
responsible for or participated in the events at Gashirabwoba on that day. 1028
(ii) Findings
435. Prosecution Witness LAC provided a convincing first- hand account of what
occurred at the Gashirabwoba football field, and the Chamber finds his testimony to
be credible and reliable. From his testimony the Chamber finds that, on 8 April 1994,
Hutu assailants began attacking Tutsi homes in Gisuma commune and that, after
several days of clashes, a number of refugees gathered at the Gashirabwoba football
field. By 11 April 1994, about 500 refugees had gathered at the football field. A
majority of the Chamber, Judge Ostrovsky dissenting, finds that on 11 April 1994
after the refugees had repulsed an attack, Bagambiki, Imanishimwe, and soldiers came
to the field between 2:30 and 3:00 p.m., and the refugees told Bagambiki that they
were being attacked by assailants from Bumazi and Gashirabwoba sectors. The
majority further finds that Bagambiki called out the names of Côme Simugomwa and
Ephrem and took away Côme Simugomwa, the local head of the PL party, saying that
Michel Busunyu wanted to talk to him about political party affairs. Ephrem was not at
the field at that time. At about 7:00 p.m. that evening, soldiers returned to the field
and asked the refugees if they were all Tutsis. The soldiers also told the refugees that
they had taken Côme Simugomwa to see Busunyu and that they had left him there.
After the genocide, survivors found Côme Simugomwa’s body by a river in
Karengera commune in the same clothes they had last seen him wearing when he was
taken from Gashirabwoba.
1021
T. 19 February 2003 pp. 30, 33, 40-41, 42, 44; 20 February 2003 p. 2; Bagambiki Defence Exhibit
8.
1022
T. 19 February 2003 p. 30.
T. 24 February 2003 pp. 32, 50.
1024
T. 24 February 2003 pp. 36-37.
1025
T. 24 February 2003 pp. 37, 48.
1026
T. 24 February 2003 p. 48.
1027
T. 24 February 2003 p. 39.
1028
T. 24 February 2003 pp. 39-40, 51.
1023
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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436. A majority of the Chamber, Judge Ostrovsky dissenting, does not accept as
reliable Bagambiki Defence Witness GNV’s testimony that Côme Simugomwa was
kidnapped on 9 April 1994 in light of the reliable and convincing first-hand account
of Witness LAC that he was removed on 12 April 1994. The Chamber further finds
that Witness GNV’s account is not reliable because it is based on an unidentified
second- hand source whose reliability cannot be tested.
437. From Witness LAC’s testimony, the Chamber further finds that, on 12 April
1994, the refugee population at the field had swelled to nearly 3,000. That morning,
thousands of assailants from the surrounding area and the Shagasha tea factory began
attacking the refugees at the football field. A majority of the Chamber, Judge
Ostrovsky dissenting, finds that Bagambiki and Nsabimana, the director of the
Shagasha tea factory, came to the field for about thirty minutes. From Witness LAC’s
evidence, the majority accepts that Bagambiki promised to send soldiers to protect the
refugees. An hour later, armed factory guards and at least fifteen sold iers surrounded
the refugees and, after the refugees had raised their hands and asked for peace, fired
and threw grenades at them for thirty minutes. The Interahamwe then killed the
survivors and looted their personal possessions.
438. The Chamber recalls that Witness LAH is an alleged accomplice of the
accused and, as such, views his testimony with caution. The Chamber does not accept
the evidence of Witness LAH about these events because he is not a credible or
reliable witness. In reaching this conclusion, the Chamber has considered the
testimony of Bagambiki Defence Witness BLB who explained that Witness LAH
made and then recanted false accusations against him for related crimes. The Chamber
also recalls that it has found Witness LAH’s testimony not to be credible or reliable in
connection with other events. 1029 Consequently, the Chamber views the testimony of
Witness LAH as suspect and will not accept his evidence implicating the accused
without adequate corroboration. The Chamber finds that Witness LAH’s versio n of
the events surrounding the attacks against the Tutsi population in Gisuma commune,
in particular at Gashirabwoba, is not adequately corroborated.
439. The Chamber also does not accept the evidence of Prosecution Witness LAB
about the attack on the refugees at Gashirabwoba because it is not credible or reliable
and because it materially conflicts with other evidence on the record. The Chamber
also recalls that it has found Witness LAB’s testimony not to be credible or reliable in
connection with other events and, therefore, views his testimony with suspicion. 1030
Witness LAB stated that Bagambiki and Imanishimwe assembled the refugees in the
middle of the field and tried to reassure them before soldiers opened fire. This
evidence, however, materially conflicts with the testimony of Witness LAC that,
following waves of attacks in the morning, fifteen soldiers and armed factory guards
surrounded the refugees and then after the refugees asked for peace fired and threw
grenades at them. The Chamber notes that Witness LAC, whose testimony the
Chamber accepted, did not see Bagambiki or Imanishimwe on the football field
immediately prior to the soldiers’ attack.
1029
1030
See supra paras. 141, 118.
See supra para. 176.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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440. The Chamber notes that Witnesses LAH and LAB provided some measure of
corroboration for their assertions that Bagambiki and Imanishimwe participated in the
attack against the refugees. However, the Chamber is reluctant to use the testimony of
one suspect witness to corroborate another, particularly where their own accounts of
Bagambiki’s and Imanishimwe’s participation in the attack are not consistent. The
Chamber also notes that the evidence of Witnesses LAH and LAB that the assault
occurred on 9 April 1994 conflicts with Witness LAC’s convincing testimony that it
occurred on 12 April 1994, which is corroborated by Bagambiki Defence Witnesses
GNV and BLB, who both heard gunshots coming from the field on that date. 1031
Moreover, Witness LAH’s testimony that Bagambiki took Côme Simugomwa away
from the field on 8 April 1994 conflicts with Witness LAC’s testimony that this
occurred on 11 April 1994. These discrepancies further undermine the probative value
of the testimonies of Witnesses LAH and LAB.
441. A majority of the Chamber, Judge Ostrovsky dissenting, does not accept
Bagambiki’s and Imanishimwe’s testimonies that they could not have been present at
the Gashirabwoba football field on 11 April 1994 because they were participating in
the prefectural security council meeting. According to the accounts of various defence
witnesses, the majority notes that the security council meeting ended sometime
between 2:00 p.m. and 4:00 p.m. In the majority’s view, Witness LAC gave only an
estimated time when Bagambiki and Imanishimwe arrived at the field on 11 April
1994. Given that the field was only 15.9 kilometres from the prefecture office where
the meeting was held, the majority does not find that Bagambiki’s and Imanishimwe’s
presence at the prefectural security council meeting raises any doubt that they came to
the field after the meeting on 11 April 1994. The majority also does not accept
Bagambiki’s claim that he was at Mibilizi parish on 12 April 1994 and that he
therefore could not have come to the field on that date. In reaching this conclusion,
the majority has considered its finding that Bagambiki’s visit to Mibilizi parish
occurred on 14 April 1994. 1032
442. The Chamber lacks sufficient reliable evidence to determine what role, if any,
Bagambiki or Imanishimwe played in the death of Côme Simugomwa.
b. Shangi Parish
(i) Allegations
443. Prosecution Witness LAK testified that from 8 April 1994, he worked every
day for about three weeks at a small shop in Bonaventure Harerimana’s home near a
roadblock set up on the orders of Bourgmestre Karero of Gafunzo and Conseiller
Rutaburingoga of Shangi. 1033 According to the witness, those manning the roadblock
killed anyone identified as Tutsi who tried to pass through the roadblock. 1034
1031
In light of the Chamber’s finding that the massacre occurred on 12 April 1994, the Chamber does
not need to assess Imanishimwe’s evidence that he was in Bukavu on 9 April 1994.
1032
See supra para. 530, 531.
1033
T. 18 January 2001 pp. 81, 95; T. 19 January 2001 pp. 21-22; T. 22 January 2001 pp. 14-15, 41, 58,
59, 66-67, 100.
1034
T. 18 January 2001 pp. 86, 94.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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444. Witness LAK testified that Bagambiki and Imanishimwe came to the
roadblock around 7:00 p.m. on 9 April 1994. 1035 The witness stated that he heard
Bagambiki tell Bonaventure that refugees at Shangi parish were a security problem
and that they brought “tools” for defence. 1036 According to the witness, Bagambiki
then instructed Bonaventure to find people who could handle weapons. 1037 The
witness testified that he saw Bagambiki and Imanishimwe give Bonaventure six
Kalashnikov guns, some cartridges, and about forty machetes, which were taken to
Bonaventure’s home. 1038 The witness stated that the next morning he also saw
grenades in Bonaventure’s home and assumed that Bagambiki and Imanishimwe had
delivered these as well. 1039
445. Witness LAK testified that assailants, such as Pima, Gahutu, and
Ntakirutimana used these weapons on several occasions to kill refugees at Shangi
parish, in particular on 13 April 1994, and at the health centre in Bunyenga, returning
them to Bonaventure’s house after each attack. 1040 The witness noted that when the
assailants ran out of ammunition, Bourgmestre Karero gave them three guns
belonging to the commune, which they used in the attacks at Shangi parish. 1041
446. Witness LAK testified that he could see Shangi parish very well from the
roadblock, which was 400 meters away. 1042 According to the witness, from the
roadblock he saw attacks against the refugees gathered at Shangi parish on 13, 15, 19,
23, 25 or 26, and 29 April 1994. 1043 According to the witness, the assailants gathered
at the roadblock before each attack and were armed with the guns brought by
Bagambiki and Imanishimwe and swords, lances, clubs, and machetes. 1044
447. Witness LAK testified that, on 27 or 28 April 1994, the bourgmestre and
several conseillers wanted to meet Bagambiki, but that Sub-Prefect Munyangabe
came to the roadblock instead, accompanied by Mategeko, and some other people. 1045
The witness testified that he attended a meeting held by Munyangabe and his
delegation with the local population near the Shangi Secondary School. 1046 According
to the witness, Conseiller Rutaburingoga opened the meeting saying that that some of
the refugees at the parish were disturbing security. 1047 The witness stated that, at the
request of Munyangabe, the population had prepared a list of thirty six “suspected”
refugees, all male Tutsis seeking refuge at Shangi parish, in whose homes they had
found weapons. 1048
1035
T. 18 January 2001 pp. 88-91; T. 22 January 2001 pp. 27-28, 69, 70; T. 23 January 2001 p. 15.
T. 18 January 2001 pp. 88, 91; T. 22 January 2001 pp. 73-74.
1037
T. 18 January 2001 pp. 88, 91.
1038
T. 18 January 2001 pp. 88, 90-91; T. 22 January 2001 pp. 28, 29, 72, 70-73; T. 23 January 2001 pp.
19-20.
1039
T. 23 January 2001 pp. 14-15.
1040
T. 18 January 2001 pp. 92-93, 96-97; T. 22 January 2001 pp. 29-30.
1041
T. 22 January 2001 pp. 30-34, 40.
1042
T. 18 January 2001 p. 95; T. 22 January 2001 pp. 75-77.
1043
T. 18 January 2001 pp. 96-97; T. 22 January 2001 pp. 29, 80-81.
1044
T. 18 January 2001 pp. 96-97.
1045
T. 18 January 2001 pp. 98-99; T. 22 January 2001 pp. 42-44.
1046
T. 18 January 2001 p. 98; T. 22 January 2001 pp. 77-79.
1047
T. 18 January 2001 p. 99.
1048
T. 18 January 2001 pp. 99-100; T. 19 January 2001 p. 3; T. 22 January 2001 p. 45.
1036
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448. Witness LAK testified that, around 4:00 p.m. on 29 April 1994, Munyakazi
came to the roadblock, with two pickups and about one hundred Interahamwe armed
with guns, bayonets, and clubs. 1049 According to the witness, the Interahamwe
mobilized more than two hundred people from the roadblock and from Nyamateke to
join an attack against Shangi parish. 1050 According to the witness, on 30 April 1994,
he went to the parish and participated in the burial of the dead. The witness estimated
that he saw 4,500 to 5,000 corpses scattered everywhere around the parish. 1051 The
witness said that the refugees who had survived the massacre were taken to the
Nyarushishi camp. 1052
449. Prosecution Witness NG-1 testified that he sought refuge at Shangi parish on
11 April 1994. 1053 The witness testified that the bourgmestre gave instructions to the
local police to direct people to the parish if the y came to seek refuge at the commune
office. 1054 The witness stated that Bagambiki and the military authorities sent three
gendarmes to the parish. 1055
450. Witness NG-1 testified that, on 12 or 13 April 1994, he heard that soldiers
took some refugees from the parish for questioning and that these refugees were killed
on the way from the parish. 1056 According to the witness, at about 11:00 a.m. on 13 or
14 April 1994, an ex-solider named Pima led an attack against the refugees at the
parish, and the assailants used three guns and grenades during the attack in which
many people died. 1057 The witness stated that he later learned from one of the
assailants, Viateur Gahutu, that two of the guns used in the attack belonged to
Gafunzo Commune and were supplied by the brigadier named Sekanyambo on the
instructions of the Bourgmestre Karorero. 1058 The witness stated that he saw one of
the gendarmes at the parish give the assailants the third gun. 1059 The witness stated
that on the next day the local population continued to attack the refugees at the parish
by throwing stones at them. 1060 The witness also noted that there was no water or food
inside the parish premises but that the nuns from the convent brought food. 1061
451. Witness NG-1 attested to hearing that, on 26 April 1994, Sub-Prefect
Munyangabe organized a meeting at the commune office with commune and
prefectural authorities. 1062 The witness stated that after the meeting a delegation,
including Munyangabe, Father Mategeko, and others, came to Shangi parish and held
a meeting with the refugees. 1063 According to the witness, the delegation told the
refugees that they would assure their security and promised to send the Red Cross to
1049
T. 18 January 2001 pp. 101, 103.
T. 18 January 2001 pp. 102-104.
1051
T. 18 January 2001 pp. 97, 106-107; T. 22 January 2001 pp. 58, 82.
1052
T. 18 January 2001 p. 107.
1053
T. 23 November 2000 pp. 39-40; T. 28 November 2000 pp. 3-4.
1054
T. 23 November 2000 p. 46.
1055
T. 28 November 2000 pp. 6-7.
1056
T. 28 November 2000 p. 6.
1057
T. 23 November 2000 pp. 41, 42, 43; T. 28 November 2000 pp. 10, 12.
1058
T. 23 November 2000 pp. 43-46; T. 28 November 2000 pp. 12-13.
1059
T. 28 November 2000 pp. 6-7, 13, 15.
1060
T. 23 November 2000 p. 42.
1061
T. 23 November 2000 p. 42; T. 28 November 2000 p. 10.
1062
T. 23 November 2000 p. 47; T. 28 November 2000 pp. 26-28, 105.
1063
T. 23 November 2000 pp. 47-48; T. 28 November 2000 pp. 21-23.
1050
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the parish. 1064 The witness stated that, from a list drawn up at the meeting at the
commune office, the delegation called out the names of thirty-nine Tutsi refugees to
be removed. 1065 The witness explained that two gendarmes escorted the selected
refugees, including the witness, in a pickup truck belonging to the commune. 1066 The
witness stated that the gendarmes told the refugees that they were going to the
prosecutor’s office for questioning. 1067 The witness testified that in Bushenge the local
population attacked them as they drove through and took one refugee out of the
vehicle, later killing him. 1068 The witness stated that the gendarmes first took the
refugees to the prefecture, where nothing happened to them, and then to the
gendarmerie, where the gendarmes beat them. 1069 The witness stated that later the
gendarmes took the refugees to Kamarampaka Stadium. 1070
452. Witness NG-1 testified that he heard from Father Mategeko at Kamarampaka
Stadium that, on 27 or 28 April 1994, Yussuf Munyakazi led an attack on the refugees
at Shangi parish, killing almost everybody. 1071
453. Prosecution Witness LAD testified that, on 10 April 1994, he sought refuge at
Shangi parish. 1072 The witness stated that gendarmes took away one priest to an
undisclosed location and that sometime before 28 April 1994 a vehicle came to the
parish around 5:00 p.m. and removed other priests from the parish. 1073 The witness
stated that nuns brought some food for the refugees but that many refugees went
hungry because there was not enough food for all of them. 1074
454. Witness LAD testified that Interahamwe attacked Shangi parish every day
from 10 until 29 April 1994. 1075 The witness testified that the Interahamwe never
entered the convent, which was guarded by gendarmes and housed the nuns and a few
refugees. 1076 The witness testified that, on 13 or 14 April 1994, Pima, a former soldier,
led an attack against Shangi parish. 1077 The witness said that the attackers, who were
armed with guns and grenades, encircled the gendarmes guarding the parish. 1078 The
gendarmes gave up their weapons to the attackers who then began attacking the parish
by throwing grenades through the parish windows. 1079 The witness estimated that the
attackers outnumbered the refugees and killed about 800 of the 4,000 or so
refugees. 1080
1064
T. 23 November 2000 p. 48; T. 28 November 2000 p. 24.
T. 23 November 2000 p. 48, 49-50; T. 28 November 2000 pp. 25-27, 29, 103.
1066
T. 23 November 2000 pp. 50, 51.
1067
T. 23 November 2000 p. 51.
1068
T. 23 November 2000 p. 51.
1069
T. 23 November 2000 pp. 51-52; T. 28 November 2000 pp. 31-32.
1070
T. 23 November 2000 p. 52.
1071
T. 23 November 2000 pp. 55, 56, 57; T. 28 November 2000 p. 30.
1072
T. 21 November 2000 p. 107; T. 22 November 2000 p. 108; T. 23 November 2000 p. 8.
1073
T. 22 November 2000 p. 108; T. 23 November 2000 pp. 14-15.
1074
T. 22 November 2000 pp. 108-109; T. 23 November 2000 pp. 13-14.
1075
T. 23 November 2000 pp. 8-9.
1076
T. 22 November 2000 p. 109.
1077
T. 21 November 2000 pp. 107-108, 109, 110.
1078
T. 21 November 2000 p. 108.
1079
T. 21 November 2000 p. 108.
1080
T. 21 November 2000 pp. 109-110.
1065
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455. Witness LAD testified that, on 27 April 1994, Sub-Prefect Munyangabe came
to Shangi parish with a list of people who were then removed from the parish and
taken to Cyangugu where he heard that the gendarmes beat them. 1081 The witness
stated that the refugees taken from Shangi parish by Munyangabe were later
evacuated to Nyarushishi camp. 1082
456. Witness LAD testified that Munyakazi led another attack against the parish on
28 April 1994, at about 3:00 p.m. 1083 The witness stated that the attackers were armed
with guns, clubs, machetes, and grenades, and that they wore masks and caps of the
CDR and MRND parties. 1084 The witness stated that he was in the priests’ residence
when the attackers began throwing grenades into the church. 1085 The witness stated
that, when the assailants broke down the back gate of the parish courtyard, he hid in
the cypress forest behind the convent, where he stayed until the attackers left the
parish around 10:00 p.m. 1086 The witness stated that the cypress forest was roughly
300 metres from the parish and that he could hear shouting coming from the parish as
people were attacked by the Interahamwe.1087 The witness said that, after the attackers
left, he and others went back to the parish to look for survivors and to bury the dead
and that all but about seventy Tutsi refugees were killed. 1088
457. Prosecution Witness Z testified that, on 7 May 1994, she participated in a
“security” meeting at the Gafunzo commune office presided over by Bagambiki. 1089
Though the witness stated that she had never seen Bagambiki before the meeting, she
stated that she knew him because the invitees were announced on their arrival. 1090 In
court, the witness mis- identified Ntagerura as Bagambiki. 1091
458. Witness Z recalled several points on the meeting’s agenda, including
strengthening of roadblocks, searching for the enemy, division or sharing of land,
distribution of guns at roadblocks, and the Arusha Accords. 1092 The witness stated
that, during the meeting, Bagambiki specified that the enemy were Tutsis. 1093 The
witness indicated that she had taken contemporaneous notes during the meeting. 1094
459. Witness Z stated that, less than an hour after adjournment of the meeting on 7
May 1994, the local population rushed to Shangi parish and killed a quarter of the
refugees there and that the following day Munyakazi and his Interahamwe came to the
parish, killing many more refugees. 1095 According to the witness, Munyakazi arrived
after a visit by Father Mategeko and Bagambiki, who promised to bring the refugees
1081
T. 22 November 2000 pp. 110-111; T. 23 November 2000 pp. 12, 13.
T. 22 November 2000 p. 111.
1083
T. 21 November 2000 pp. 109, 112.
1084
T. 21 November 2000 pp. 9, 110-112.
1085
T. 23 November 2000 p. 9.
1086
T. 21 November 2000 pp. 112-113; T. 23 November 2000 pp. 9-10.
1087
T. 23 November 2000 p. 10.
1088
T. 21 November 2000 pp. 112-114; T. 22 November 2000 p. 12; T. 23 November 2000 p. 10.
1089
T. 2 May 2001 pp. 6-7, 8, 46-47, 77.
1090
T. 2 May 2001 pp. 24, 66, 78-79.
1091
T. 2 May 2001 p. 26.
1092
T. 2 May 2001 p. 10.
1093
T. 2 May 2001 p. 22.
1094
T. 2 May 2001 pp. 8-9, 23, 74; Prosecution Exhibit 56.
1095
T. 2 May 2001 pp. 71, 72, 73.
1082
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food. 1096 The witness confirmed that she was not personally present when these
attacks took place and that she had heard about them only from others. 1097
460. Imanishimwe stated that he did not go to Shangi on 9 April 1994 with
Bagambiki to distribute weapons, as alleged by Prosecution Witness LAK, or at any
time during his stay in Cyangugu. 1098
461. Bagambiki testified that, on 8 April 1994, he received a telephone call from
priest at Shangi parish who informed him that refugees had begun gathering there,
eventually totalling 3,000. 1099 Bagambiki stated that he informed the gendarmerie
commander who sent gendarmes on 8 April 1994 for the safety of the refugees and
that nuns at the convent confirmed the arrival of the gendarmes. 1100 Bagambiki noted
that, on 10 April 1994, Sub-Prefect Munyangabe went to Shangi to assess the
refugees’ needs. 1101 Bagambiki also stated that he asked CARITAS to send food to
Shangi and that he requisitioned a vehicle to transport the food to the parish under
gendarmerie escort. 1102 Bagambiki stated that the nuns informed him of an attempted
attack at Shangi which the gendarmes repulsed sometime before 20 April 1994. 1103
Bagambiki noted that another attack was launched on 20 April 1994 but that he sent
Sub-Prefect Munyangabe and Father Mategeko to prevent it. 1104 According to
Bagambiki, Munyangabe reported that, upon his arrival, a large crowd armed with
traditional weapons had gathered and was threatening to attack. 1105 Bagambiki stated
that the parish was not attacked on 20 April 1994 after Munyangabe’s intervention. 1106
Bagambiki noted that assailants next attacked, without notice, on 29 April 1994 at
6:00 p.m. for thirty minutes and that the prefectural authorities did not intervene
because they were not contacted in time. 1107 According to Bagambiki, the
gendarmerie commander told him that the gendarmes could not repulse the attack
because the assailants had firearms. 1108 Bagambiki noted that some refugees remained
at the parish until mid-May 1994 before they were transferred to Nyarushishi camp on
ONATRACOM bus es which he requisitioned. 1109
462. Bagambiki stated that he did not hold a meeting with the local population at
the commune office of Gafunzo on 7 May 1994. 1110 Bagambiki noted that, on 7 May
1994, he met with ICRC delegates from Bukavu at the prefecture to discuss the
Nyarushishi refugee camp. 1111
1096
T. 2 May 2001 pp. 71-72.
T. 2 May 2001 pp. 75-76.
1098
T. 22 January 2003 p. 36; T. 23 January 2003 p. 60.
1099
T. 31 March 2003 p. 45.
1100
T. 31 March 2003 pp. 45-46.
1101
T. 31 March 2003 p. 46.
1102
T. 31 March 2003 p. 46.
1103
T. 31 March 2003 p. 47.
1104
T. 31 March 2003 p. 47.
1105
T. 31 March 2003 p. 47.
1106
T. 31 March 2003 p. 49.
1107
T. 31 March 2003 p. 49.
1108
T. 31 March 2003 pp. 49, 50.
1109
T. 31 March 2003 p. 50.
1110
T. 31 March 2003 p. 51.
1111
T. 31 March 2003 p. 51.
1097
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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463. Bagambiki stated that he knew Bonaventure Harelimana but that he had never
been at his house with or without Imanishimwe. 1112
464. Bagambiki Defence Witness Munyangabe testified that, on 10 April 1994, he
spoke with the refugees, who said that their homes had been destroyed and burned and
that some people were wounded. 1113 Munyangabe testified that the refugees perceived
him as someone who could help them and that they explained that there was a lack of
medical supplies and food. 1114 The witness stated that he would relay the information
to a “competent person” and return with an answer. 1115
465. Munyangabe stated that he immediately told CARITAS and the Rusizi health
centre about the situation in Shangi. 1116 The witness stated that, on 12 April 1994, he
personally delivered to Shangi parish a stock of medicine provided by the Rusizi
health centre. 1117 The witness stated that, on 13 April 1994, the prefecture made a
truck available to transport to Shangi parish three tons of food provided by Father
Oscar.1118
466. Munyangabe testified that, on 20 April 1994, he received a phone call from
Sister Madeleine at Shangi about a large attack being prepared to exterminate a
thousand refugees in the Shangi parish buildings. 1119 The witness, when confronted
with an earlier written statement read into the record that he received this call on 27
April 1994, conceded that he remembered the chronology of events better than the
dates. 1120 According to the witness, he initially refused when Bagambiki asked him to
go and save the refugees because he did not feel capable of executing the mission. 1121
The witness testified that Bagambiki insisted that he go because the witness would do
the best that “one could.”1122 According to the witness, although Bagambiki promised
to send the bishop, the bishop was not available, and Bagambiki sent Father Mategeko
instead. 1123
467. Munyangabe stated that, on 20 April 1994, he saw thousands of assailants,
armed with machetes, clubs, and spears, at Shangi, passing the Bushenge market. 1124
The witness stated that he and Father Mategeko met with the attackers for practically
the entire day at the Shangi secondary school. 1125 According to the witness, the
assailants complained that the some of those seeking refuge in Shangi parish had
“caused insecurity” by throwing stones at ho uses and stealing food. 1126 The witness
stated that, at about 3:00 p.m., he reached a compromise with the assailants whereby
1112
T. 31 March 2003 p. 48.
T. 24 March 2003 p. 25.
1114
T. 24 March 2003 p. 26.
1115
T. 24 March 2003 p. 26.
1116
T. 24 March 2003 p. 26.
1117
T. 24 March 2003 p. 27.
1118
T. 24 March 2003 p. 27.
1119
T. 24 March 2003 pp. 34, 47.
1120
T. 25 March 2003 pp. 11-14.
1121
T. 24 March 2003 p. 34; T. 25 March 2003 pp. 3-4.
1122
T. 24 March 2003 p. 34.
1123
T. 24 March 2003 p. 34.
1124
T. 24 March 2003 p. 35.
1125
T. 24 March 2003 p. 35.
1126
T. 24 March 2003 p. 35.
1113
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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he and Father Mategeko would remove the people who had “caused insecurity” from
the parish and that, in return, the assailants would let the rest of the refugees “have
peace.”1127 The witness stated that the assailants gave him a list with the names of
approximately sixty people. 1128 The witness stated that after discussing the list with
the assailants, the list was reduced to forty-two people, who the assailants hoped
would be taken to army officials in Cyangugu and would never return to Shangi. 1129
The witness testified that in order to protect the refugees he did not take them to army
officials but rather to Kamarampaka Stadium via the prefecture. 1130
468. Munyangabe testified that he hid two of the forty-two listed refugees under the
cushions in his jeep rather than in the pickup carrying the remaining refugees because
he heard that the presence of these two refugees in the truck would jeopardise the
other listed refugees. 1131 The witness stated that Samuel Rwigera, one of the refugees
in the pickup truck, did not arrive at the prefecture because he jumped off the truck
and fled to his nearby house, where assailants later found him and killed him. 1132
469. Munyangabe testified that, on 29 April 1994, Munyakazi came to Shangi
parish to exterminate the refugees. 1133 According to what the witness had heard, while
“refreshing” himself at Shangawi, Munyakazi learned that there were thousands of
Tutsis at the parish and the n went there with his militiamen to kill the refugees. 1134
470. Bagambiki Defence Witness GLB testified that, on 7 April 1994, he sought
refuge at the convent at Shangi parish. 1135 The witness indicated that the nuns at the
convent telephoned the authorities in Gafunzo commune to request protection but that
the authorities did not grant this request, stating that the bourgmestre was ill and
absent from the commune office. 1136 The witness stated that the nuns telephoned the
prefecture to make the same request around 5:00 p.m. on 8 April 1994. 1137 The
witness noted that the nuns informed him and the other refugees that Bagambiki had
agreed to send gendarmes, who arrived at the convent on 8 April 1994 between 7:00
and 8:00 p.m. to ensure security. 1138
471. Witness GLB testified that he could not see Shangi parish from the convent
because buildings blocked his view. 1139 The witness stated that most of the refugees at
the convent were Tutsis, and that he remained at the convent until 21 April 1994,
when he returned home because gendarmes had informed the refugees that security
was ensured. 1140 The witness stated that he was present during a period when attacks
occurred at Shangi parish but that the last, large-scale attack took place after 21 April
1127
T. 24 March 2003 pp. 35-36.
T. 24 March 2003 p. 36.
1129
T. 24 March 2003 p. 36; T. 25 March 2003 p. 15.
1130
T. 25 March 2003 pp. 15-17.
1131
T. 24 March 2003 pp. 36, 37.
1132
T. 24 March 2003 pp. 36, 37.
1133
T. 24 March 2003 p. 38.
1134
T. 24 March 2003 p. 38; T. 25 March 2003 p. 11.
1135
T. 20 February 2003 pp. 23, 38.
1136
T. 20 February 2003 p. 23.
1137
T. 20 February 2003 pp. 23, 38.
1138
T. 20 February 2003 pp. 23-24.
1139
T. 20 February 2003 pp. 24, 47.
1140
T. 20 February 2003 pp. 24-25, 45.
1128
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1994.1141 The witness further stated that he heard gunfire and grenades throughout the
time when he was hiding at the convent and recalled that the first attack at Shangi
parish took place on 11 April 1994. 1142 According to the witness, those refugees who
had been with him at the convent all survived and were taken to Nyarushishi camp on
4 May 1994. 1143 The witness attributed the survival of the refugees to the
gendarmes. 1144
472. Witness GLB testified that he returned to the convent on 30 April 1994, after
hearing gunfire and grenade explosions emanating from Shangi the day before. 1145
The witness stated that when he arrived at the convent, the nuns informed him that the
attack in Shangi was executed by a man named “Yusuf”, an Interahamwe leader from
Bugarama. 1146 The witness stated that the nuns informed him that there had been
many armed assailants at the parish and that many of the refugees died. 1147
473. Witness GLB testified that he was present at the convent on 4 May 1994,
when Sub-Prefect Munyangabe, accompanied by gendarmes, escorted the refugees
from Shangi parish to Nyarushishi camp. 1148
474. Bagambiki Defence Witness Graff stated that it took fifty- five minutes,
twenty-seven seconds to reach Shangi parish from the prefecture. 1149 The witness
stated that Bagambiki Defence Exhibit, tab 6, photograph 12, taken with a focal
distance camera that had a minimal distance of thirty-five centimetres, shows a view
of the parish, with the house of Bonaventure to the right. 1150 The witness stated that,
based on the focal distance photograph, it was not possible to see any movement of
figures at the parish from the road with the naked eye. 1151 The witness stated that in
2003 the vegetation to the left of the parish and between the bell and the end of the
parish made it very difficult to see the area around the parish. 1152 The witness noted
that, without the vegetation, it would be possible to see the movement of people at the
parish from the road but that it would not be possible to recognise individual people or
to determine if they were wearing military uniforms. 1153 The witness stated that
Bagambiki Defence Exhibit 16, tab 6, photograph 13, a close- up also taken from the
road, depicts how difficult it would be to recognise someone. 1154 The witness noted
that Bagambiki Defence Exhibit 16, tab 6, photograph no. 14, with a magnification of
four times, shows that with magnification it would be possible to recognise a
silhouette at the foot of the parish bell. 1155 The witness stated that in 2003 he did not
observe any natural protection at the parish site and that the parish was on the summit
1141
T. 20 February 2003 pp. 42-43.
T. 20 February 2003 p. 43.
1143
T. 20 February 2003 p. 25.
1144
T. 20 February 2003 p. 25.
1145
T. 20 February 2003 pp. 25.
1146
T. 20 February 2003 pp. 25, 43, 44, 47-48.
1147
T. 20 February 2003 p. 25.
1148
T. 20 February 2003 pp. 25-26.
1149
T. 26 March 2003 p. 32.
1150
T. 26 March 2003 pp. 34-35.
1151
T. 26 March 2003 p. 35.
1152
T. 26 March 2003 p. 35.
1153
T. 26 March 2003 p. 35.
1154
T. 26 March 2003 p. 35.
1155
T. 26 March 2003 p. 35.
1142
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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of a hill. 1156 The witness noted that he did not observe any traces of fences or
constructed barriers. 1157 The witness stated that he did observe wooden roadblocks
which separated fields, or plots, but that these would not serve as any sort of a
defence. 1158
475. Imanishimwe Defence Witness PCG testified that the roadblock near Shangi
parish was not in front of Bonaventure Harerimana’s house but one kilometre away on
the road leading from the market towards the commune, at an intersection of two
roads, one going to the commune and the other going to the parish. 1159 According to
the witness, he and others at the roadblock did not receive guns, ammunition, or
machetes on 9 April 1994, nor did they receive a visit from any official, apart from
the ten-cell leader. 1160 The witness stated that, between 8 and 12 April 1994, no
soldier passed by the roadblock, apart from the gendarme who came to “chase” them
from the roadblock on 12 April 1994. 1161 The witness also testified about an incident
on 9 April 1994 in which Daniel Kamatali, a Tutsi, killed a Hutu named Nsabimana,
which resulted in clashes between Nsabimana’s family and the refugees at Shangi
parish. 1162 The witness stated that these clashes culminated in a large attack on 13
April 1994, which the gendarmes repulsed, and that the gendarmes removed Kamatali
from the parish and took him to Kamembe. 1163
476. Imanishimwe Defence Witness PCF testified that there was not a roadblock in
front of Bonaventure Harerimana’s house but that there was a roadblock
approximately 1,050 metres away. 1164 The witness stated that he drank beer at
Harerimana’s house on 9 April 1994 from around 5:00 p.m. until 9:00 or 10:00
p.m. 1165 The witness testified that he did not see Harerimana receive any other visitors
and stated that he would have noticed if Harerimana had left the house for some
time. 1166 The witness also stated that he never heard that guns, cartridges, or machetes
were delivered to the roadblock on the evening of 9 April 1994. 1167
477. Witness PCF testified also that the killings at Shangi parish occurred following
the killing at the parish of a Hutu named Nsabimana by Daniel Kamatali, a Tutsi. 1168
The witness stated that, on 10 and 13 April 1994, Nsabimana’s family attacked the
refugees at the parish and that the gendarmes eventually stopped the second and larger
attack. 1169 The witness testified that, after the 13 April 1994 attack, the gendarmes
1156
T. 26 March 2003 pp. 35-36.
T. 26 March 2003 p. 36.
1158
T. 26 March 2003 p. 36.
1159
T. 23 October 2002 pp. 2-3, 27, 29-30, 33.
1160
T. 23 October 2002 pp. 7-8.
1161
T. 23 October 2002 p. 9.
1162
T. 23 October 2002 pp. 9-14.
1163
T. 23 October 2002 p. 14.
1164
T. 21 October 2002 pp. 52-53.
1165
T. 21 October 2002 pp. 56-57; T. 22 October 2002 pp. 26, 39.
1166
T. 21 October 2002 pp. 58-59; T. 22 October 2002 p. 39.
1167
T. 21 October 2002 p. 59.
1168
T. 21 October 2002 pp. 60, 61, 62.
1169
T. 22 October 2002 pp. 5-6, 7, 62.
1157
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determined that Kamatali initiated the attack by killing Nsabimana and sent him to
Kamembe. 1170
(ii) Findings
478. Prosecution Witnesses NG-1 and LAD and Bagambiki Defence Witnesses
Munyangabe and GLB provided largely consistent first- hand accounts of the events at
Shangi parish, which the Chamber finds generally credible and reliable. The Chamber
is mindful of several minor differences between their accounts but is satisfied that
these differences are explained by the passage of time and by the witnesses’ varying
vantage points and familiarity with the overall situation and actions of the authorities.
From the evidence of these witnesses, the Chamber finds that refugees began arriving
at Shangi parish on 7 April 1994, eventually totalling between 3,000 and 4,000. From
the evidence of Bagambiki, which is corroborated by Witness GLB, Bagambiki sent
gendarmes to guard the parish at the request of parish authorities on 8 April 1994.
Witnesses LAD and NG-1 corroborated the presence of gendarmes at the parish.
479. From the evidence provided by Munyangabe, the Chamber finds that, on 10
April 1994, Munyangabe came to the parish to check on his family and to investigate
the situation there. Munyangabe informed the prefectural and church authorities of the
needs of the parish for food and medicine. On 12 April 1994, Munyangabe delivered
medicine to the parish from the Rusizi health centre. On 13 April 1994, the prefecture
made available gendarmes and a vehicle to take to the parish a shipment of food
provided by CARITAS. The Chamber notes that this account is corroborated by
Witnesses LAD and NG-1 who stated that the nuns from the Shangi convent provided
some food to the refugees.
480. From the evidence of Witnesses NG-1, LAD, and GLB, the Chamber finds
that the parish suffered daily attacks, beginning on 10 April 1994. From the evidence
of Witnesses NG-1 and LAD, the Chamber finds that there was a massive assault on
13 or 14 April 1994, which by one estimate resulted in the death of 800 refugees.
During this attack, the assailants, who were armed with guns and grenades,
surrounded the gendarmes, and at least one gendarme gave the attackers his weapon.
From the evidence on the record, the Chamber lacks sufficient evidence to determine
if the gendarme voluntarily relinquished his weapon to the attackers or if he was
forced to do so.
481. From the evidence, the Chamber further finds that the nuns at the Shangi
convent contacted Munyangabe on 26 April 1994 and told him about an imminent
massive attack against the refugees. 1171 At Bagambiki’s insistence, Munyangabe went
to the parish along with Father Mategeko to try to prevent the attack. Munyangabe
negotiated with the attackers away from the parish and agreed that he would remove a
number of refugees from the parish if the assailants agreed not to attack the remaining
1170
T. 22 October 2002 pp. 7, 30.
The Chamber notes that Witnesses NG-1, LAD, and Munyangabe provided different dates for his
arrival. The Chamber relies on Witness NG-1 for the date because it is consistent with events that
occurred at the stadium, specifically the removal of Nkusi two days after the witness arrived and
Nkusi’s death on 28 April 1994. The Chamber also notes that Munyangabe stated that he was not as
certain about the dates as about the chronology of events.
1171
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130
refugees there. From the evidence of Witnesses LAD, NG-1, and Munyangabe, the
Chamber finds that Munyangabe selected between thirty- nine and forty-two people at
the parish. The gendarmes drove the selected refugees in a pickup truck to the
prefecture. From the evidence of Witness NG-1, the Chamber finds that along the way
the refugees were attacked by members of the local population and that one of them
was taken from the truck and killed. From the prefecture, the gendarmes drove the
refugees to a gendarmerie camp where gendarmes mistreated some of the refugees
before taking them to Kamarampaka Stadium.
482. From the evidence of Witness LAD, which is corroborated by Witnesses NG1, GLB, and Munyangabe, the Chamber finds that, on 28 or 29 April 1994,
Munyakazi launched a massive attack on Shangi parish, killing most of the refugees
there. From the evidence of Witness GLB, the Chamber finds that Munyangabe
facilitated the transfer of the remaining refugees to Nyarushishi camp on 4 May 1994.
483. The Chamber does not accept as reliable Witness NG-1’s testimony that
soldiers removed people from the parish for questioning and that they killed them on
the way to Cyangugu because at that time the witness was in hiding and heard about
the event only from an unidentified source. The Chamber also does not accept that
Bourgmestre Karero supplied the attackers with guns and ammunition belonging to
the commune because Witness NG-1 heard this from an attacker after the events and
because the Chamber lacks an adequate basis for assessing the reliability of this
evidence.
484. The Chamber recalls that Witness LAK is an alleged accomplice of the
accused and, as such, views his testimony with caution. In addition, the Chamber
views Prosecution Witness LAK’s evidence with suspicion because he testified that
he saw Ntagerura deliver weapons and speak to a crowd at the Cimerwa factory
between 20 and 25 December 1994 which the Chamber finds could not have
happened given that Ntagerura was on an official mission in Cameroon at that
time. 1172 Consequently, the Chamber will not accept Witness LAK’s testimony
without adequate corroboration. The Chamber notes that no other witness mentioned
Bagambiki or Imanishimwe distributing weapons at the Shangi road block. Therefore,
the Chamber will not accept Witness LAK’s evidence on this point. In addition, no
other witness adequately corroborated Witness LAK’s testimony that commune
authorities set up a roadblock near Shangi parish and supplied the attackers with
weapons.
485. The Chamber does not find the testimony of Prosecution Witness Z to be
credible or reliable. Though Witness Z claimed familiarity with Bagambiki, she was
unable to identify him in court. The Chamber also notes that her testimony about the
chronology of events, in particular, the timing of the last massacre at the parish, is
inconsistent with the accounts of Witnesses LAD, NG-1, GLB, and Munyangabe who
place the final assault against the refugees at the end of April 1994. The witness also
timed Munyakazi’s attack after a visit by Bagambiki and Father Mategeko. The
Chamber notes that there is no evidence from witnesses at the parish that Bagambiki
1172
Cf. Testimony of LAK, T. 18 January 2001 pp. 110-11; T. 19 January 2001 pp. 42, 46, 47, 48-53
with Testimony of Ntagerura, T. 18 July 2002 p. 102-105, 107, 108, 113; T. 30 September 2002 p. 8689; Testimony of Bongwa, T. 20 May 2002 p. 16; Ntagerura Defence Exhibit 33 (passport).
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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visited the parish. Moreover, in the Chamber’s opinion, Witness Z’s testimony was
not persuasive when she was cross-examined about whether she took her notes during
the meeting. 1173
486. The Chamber does not find the accounts of Imanishimwe Defence Witnesses
PCG and PCF credible or reliable because their testimonies about the reason behind
the attacks at Shangi parish are not believable.
c. Mibilizi Parish
(i) Allegations
487. Prosecution Witness MM testified that, on the evening of 7 April 1994, Tutsi
refugees began arriving at Mibilizi parish. 1174 He explained that, by the evening of 8
April 1994, 300 refugees had come to the parish with their cattle and luggage and that
by 10 April 1994, he counted 2,000 people. 1175 The witness testified that, on 10 April
1994, about eight gendarmes visited the parish on a patrol to “verify” the situation and
that, on 11 April 1994, four gendarmes returned “to set up quarters permanently at the
parish”. 1176 He explained that, when he was evacuated on 15 June 1994, there were
still two gendarmes at the parish. 1177 The witness attested to hearing that during one
attack the gendarmes were seen shooting at refugees trying to escape over the parish
wall. 1178 He testified that, using a second telephone extension, he listened in on a
telephone call from an unidentified soldier in Cyangugu to the gendarmes at the parish
and that he heard the soldier say, “There at Mibilizi there are many Inkotanyi, if the
attack is stronger, allow the attackers to kill the Inkotanyis.”1179
488. Witness MM testified that the first attack on the parish came on 11 April 1994
from Interahamwe of the area armed with traditional weapons such as spears,
machetes, clubs, cudgels, and at least one grenade, which exploded and killed a
refugee. 1180 The witness stated that there were fewer assailants than refugees who
resisted, using stones. 1181 He explained that, on 12 April 1994, there was another
attack that was repelled by the refugees using stones and a few machetes and that a
lull in the attacks followed for the next two days during which refugees continued to
flow into the parish. 1182
1173
For example, the witness stated that she was standing up at the meeting, but when asked how she
wrote on loose leaf sheets standing up, she then said that she was sitting down. T. 2 May 2001 p. 75.
The witness confirmed that she had made her notes while the meeting was going on but also admitted
that she had written on page 2 that “Then the meeting took place in the mult ipurpose hall of Gafunzo
commune. It started about 11.30…and ended in the afternoon”, insisting that she had written this in the
morning when the meeting began not after it had ended. T. 2 May 2001 pp. 64-65.
1174
T. 12 October 2000 pp. 39-40.
1175
T. 12 October 2000 p. 40.
1176
T. 12 October 2000 pp. 41, 103; T. 12 October 2000 p. 120 (French).
1177
T. 12 October 2000 p. 103.
1178
T. 12 October 2000 p. 104.
1179
T. 12 October 2000 pp. 104-105, 117.
1180
T. 12 October 2000 pp. 41-42.
1181
T. 12 October 2000 pp. 41-42.
1182
T. 12 October 2000 p. 43.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
132
489. Witness MM testified that, on 14 April 1994, Bagambiki visited the parish
with Imanishimwe, Munyarugerero, the bishop, and Celestin Somayire to take stock
of the security situation at the parish and in the Mibilizi area in general. 1183 The
witness testified that he knew Bagambiki before the events and had met him during
ceremonies and celebrations. 1184 He explained that he knew Imanishimwe from his
two visits to the parish on 14 and 20 April 1994. 1185 According to the witness, the
authorities were also accompanied by a delegation from the local militia. 1186 The
witness stated that Bagamb iki listened to the complaints of the refugees as well as of
the local militia who said that the refugees were attacking them in the hills.1187 The
witness stated that, after Bagambiki listened to both parties, he said that he was going
to do everything he could to restore security to the area, particularly for the
refugees. 1188 The witness recalled that Imanishimwe left the meeting in anger when a
priest stated that the meeting, like the Arusha negotiations, was “not leading
anywhere.”1189 He testified that, in response, Imanishimwe stated that he personally
shot people he found celebrating the death of the president. 1190
490. Witness MM testified that, on 15 April 1994, assailants attacked the parish for
a third time and confronted the refugees on the primary school’s football field near the
parish. 1191 The witness testified that, on 17 April 1994, he saw people coming for
Sunday service and for visits with refugees at the camp and explained that Hutus
came to take their family members from the camp, including young children of mixed
parentage and other members of their families who were married to Tutsis. 1192 The
witness stated that the refugees believed that this signalled an imminent major
assault. 1193 The witness stated that the militia launched the first attack at 11:00 a.m.,
wounding refugees and then retreating. 1194 According to the witness, the militia
returned at 2:00 p.m. for twenty minutes and attacked the refugees with eight
grenades, stones, and other traditional weapons, killing and seriously wounding many
refugees who tried to defend themselves with traditional weapons. 1195 The witness
testified that towards 3:00 p.m., Sub-Prefect Munyangabe came to meet the parish
priest and proposed to the refugees that they should return within the parish gates so
as not to attract the militia’s anger. 1196 The witness testified that he also promised to
negotiate with the militia so that the militia would return to their homes. 1197 He
testified that the refugees withdrew inside the parish gates, whereupon the militia
surrounded them and later attacked them with firearms, grenades, and traditional
weapons such as machetes, swords and clubs. 1198 He explained that the refugees could
1183
T. 12 October 2000 pp. 43, 46.
T. 12 October 2000 pp. 72-73.
1185
T. 12 October 2000 pp. 74-75.
1186
T. 12 October 2000 p. 46.
1187
T. 12 October 2000 pp. 46-47.
1188
T. 12 October 2000 p. 47.
1189
T. 12 October 2000 p. 119.
1190
T. 12 October 2000 p. 119.
1191
T. 12 October 2000 p. 52.
1192
T. 12 October 2000 p. 53.
1193
T. 12 October 2000 pp. 53-54.
1194
T. 12 October 2000 p. 55.
1195
T. 12 October 2000 p. 55.
1196
T. 12 October 2000 pp. 56, 101-102.
1197
T. 12 October 2000 p. 56.
1198
T. 12 October 2000 pp. 56-57, 102.
1184
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
133
not defend themselves as there was no space to do so. 1199 He stated that as a result of
the attack, which lasted over one hour, many refugees were killed, including men,
women, children, and the elderly. 1200 He stated that he believed that the militia
retreated because they ran out of ammunition. 1201 He explained that, as they retreated,
the militia looted the refugees’ possessions and the contents of the convent and the
students’ halls. 1202
491. Witness MM explained that, on 20 April 1994, the refugees buried the dead
from the attack on 18 April 1994 in a mass grave. 1203 The witness estimated that his
group buried about one hundred corpses. 1204 According to the witness, on the way
back to the parish from the burial, the refugees learned of another imminent attack by
the Interahamwe intended to exterminate them. 1205 He stated that at a meeting
convened by the parish priest, some young people suggested that instead of fighting
back, it would be better to let the attackers choose whom they wanted to kill. 1206 He
testified that when the Interahamwe arrived at the parish, two of the Interahamwe
provided the priest with a list of sixty persons whom they wanted to take away,
including the parish priest. 1207 The witness testified that, when the attackers came,
they separated the women from the men in the courtyard and that after they found the
people on the list, they selected other people they wanted to kill, especially healthy
and well-dressed young people. 1208 The witness estimated that the attackers took away
and killed about one hundred refugees. 1209 The witness stated that the gendarmes
prevented only the parish priest from being killed and did not protect anybody
else. 1210 The witness stated that the priest was eventually killed by Interahamwe when
he left the parish on 19 May 1994. 1211
492. Witness MM testified that Bagambiki, Imanishimwe, Bavugamenshi, the
bishop, and other authorities held a meeting with the refugees on 25 April 1994
concerning their security situation at the parish and asked the refugees not to leave the
parish. 1212 The witness stated that, on 26 April 1994, Kwitonda Pierre and Gatabazi,
both members of parliament, Somayire, and Father Mategeko spoke to the refugees
and asked whether there was food, wood for heating, water, medication, and other
necessary facilities. 1213 According to the witness, the refugees did not have these
necessities, and the authorities promised to forward their complaints to senior
prefectural authorities. 1214 In the witness’s opinion, the authorities showed no interest
in the number of dead and wounded at the parish and were concerned only with the
1199
T. 12 October 2000 p. 57.
T. 12 October 2000 pp. 57-58.
1201
T. 12 October 2000 p. 58.
1202
T. 12 October 2000 p. 58.
1203
T. 12 October 2000 p. 59.
1204
T. 12 October 2000 p. 59.
1205
T. 12 October 2000 pp. 59-60.
1206
T. 12 October 2000 pp. 59-60.
1207
T. 12 October 2000 pp. 60-61.
1208
T. 12 October 2000 p. 61.
1209
T. 12 October 2000 pp. 61-62.
1210
T. 12 October 2000 pp. 62-69.
1211
T. 12 October 2000 pp. 62-63.
1212
T. 12 October 2000 pp. 50-51.
1213
T. 12 October 2000 pp. 47-48.
1214
T. 12 October 2000 p. 50.
1200
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
134
number of survivors and their current needs. 1215 The witness noted that parish
authorities did not attend the 28 April 1994 meeting. 1216
493. Witness MM stated that, on 30 April 1994, Munyakazi with about one
hundred Interahamwe attacked the parish. 1217 He testified that the militia separated the
male and female refugees, undressing the men and then killing them in the
courtyard. 1218
494. Witness MM stated that, on 1 May 1994, at the request of the parish priest, the
bishop visited the parish, comforted the refugees, and evacuated Abbey Simon and
Abbey Antoine. 1219 The witness testified that, on 14 and 15 June 1994, prefectural
authorities sent several ONATRACOM buses to transport from the parish the
remaining refugees, totalling about 1,000, to the Nyarushishi camp where the witness
agreed that these refugees were safe. 1220
495. Prosecution Witness MP stated that, on 8 April 1994, he was amongst the first
to seek refuge at Mibilizi parish. 1221 The witness estimated that, from 8 to 12 April
1994, 2,000-3,000 refugees gathered at the parish, including people who had been
wounded with machetes and clubs. 1222
496. Witness MP testified that assailants attacked the parish several times
beginning on 12 April 1994 and continuing on 18, 20, and 30 April 1994. 1223 The
witness recounted that during the first attack on 12 April 1994, which lasted twenty
minutes, the assailants used grenades, killing two, and injuring the other refugees who
tried to resist. 1224
497. Witness MP testified that while he stayed at the parish, the prefectural and
parish authorities held three or four meetings or peace negotiations and that
Bagambiki accompanied the bishop on visits to the parish. 1225 The witness testified
that the refugees phoned the bishop from the parish, and then the bishop phoned the
authorities of the prefecture, whereupon the prefect convened the meetings. 1226 The
witness testified that the bishop attended two meetings, while the witness and the
other priests from the parish attended three. 1227
498. Witness MP stated that Bagambiki, Imanishimwe, the commander of the
gendarmerie, and Father Sindarihora attended the first meeting on 14 April 1994
along with a delegation of attackers and a delegation from the parish, which included
1215
T. 12 October 2000 pp. 67-68.
T. 12 October 2000 p. 111.
1217
T. 12 October 2000 pp. 63-65.
1218
T. 12 October 2000 pp. 64, 68.
1219
T. 12 October 2000 p. 69.
1220
T. 12 October 2000 pp. 69, 108-109.
1221
T. 12 October 2000 pp. 131-132, 134.
1222
T. 12 October 2000 pp. 134-135.
1223
T. 12 October 2000 pp. 135, 137.
1224
T. 12 October 2000 pp. 24, 136-137.
1225
T. 12 October 2000 pp. 162-163; T. 13 October 2000 pp. 33, 44.
1226
T. 13 October 2000 p. 37.
1227
T. 13 October 2000 p. 34.
1216
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
135
the witness. 1228 According to the witness, the aim of the meeting was to restore peace,
because it was said that the refugees at the parish were attacking people on the
hills.1229 The witness stated that Bagambiki said that in order to restore good relations,
the refugees should not leave the parish because the people on the hills were tired of
being attacked. 1230 The witness said that the assailants were asked not to attack the
parish again. 1231 Witness MP testified that during these meetings Imanishimwe said,
“[W]e can shoot you down as we shot down a group of people who were drinking in
Kamembe as if they were celebrating the death of the President”. 1232
499. Witness MP estimated that thousands of assailants attacked the refugees at the
parish on 18 April 1994. 1233 According to the witness, before the attack, the parish
priest, Joseph Boneza, asked him to go to the Ngoro centre where the attacks were
organized in order to find out what was being planned. 1234 The witness stated that he
went to the centre, accompanied by one of the gendarmes responsible for guarding the
refugees at the parish, and saw a group of people carrying several types of weapons,
coming to attack him. 1235 Witness MP testified that the gendarme who had
accompanied him joined the assailants and started to distribute grenades which he had
carried with him. 1236 The witness said that at this point, his friend, an ex-soldier called
Mugarura, approached him and told him about a meeting that was taking place. 1237 He
told the witness that it had been decided at that meeting that the attackers would take
some refugees from the parish. 1238 Witness MP testified that Celestin Somayire also
approached him. 1239 Witness MP stated that Magarura and Somayire told him that
they would give him a list of certain refugees at the parish to be handed over to the
assailants. 1240 The witness said that Mugarura and Somayire told the witness to return
to the parish to set up a small delegation that would meet with the attackers at the
hospital between the Ngoro center and the parish. 1241 The witness said that he returned
to the parish with the gendarme and that the parish priest decided that a delegation
comprised of the priest, two gendarmes, and the witness should meet the attackers at
Mibilizi hospital. 1242 According to the witness, at the hospital, some of the assailants
gave the delegation a list of refugees to be taken from the parish. 1243 The witness
testified that there were about sixty names on the list, but later noted that he never
1228
T. 12 October 2000 pp. 163-164; T. 13 October 2000 pp. 35, 56.
T. 12 October 2000 p. 164.
1230
T. 12 October 2000 p. 165.
1231
T. 12 October 2000 p. 164.
1232
T. 12 October 2000 pp. 166-167; T. 13 October 2000 p. 57.
1233
T. 12 October 2000 pp. 137-138; T. 13 October 2000 pp. 24-25.
1234
T. 12 October 2000 pp. 3, 137, 139, 149.
1235
T. 12 October 2000 p. 138.
1236
T. 12 October 2000 pp. 139, 142.
1237
T. 12 October 2000 p. 138.
1238
T. 12 October 2000 p. 138.
1239
T. 12 October 2000 p. 138.
1240
T. 12 October 2000 p. 143.
1241
T. 12 October 2000 p. 143.
1242
T. 12 October 2000 pp. 143-144.
1243
T. 12 October 2000 pp. 144-145.
1229
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
136
personally saw the list. 1244 The witness stated that the parish delegation was told that
fifteen of the assailants would go to the parish to remove the selected refugees. 1245
500. Witness MP stated that the parish delegation did not accept the proposal
because none of them had the authority to do so. 1246 According to the witness, the
attackers said that the parish delegation was wasting their time and that the delegation
would have to act directly; otherwise they would be attacked. 1247 The witness stated
that the parish delegation returned to the parish and put the proposal to the refugees,
who rejected it. 1248 The witness noted that some refugees wanted to hand over the
requested individuals, in particular the intellectuals, to save their own lives. 1249 The
witness testified that the group of fifteen attackers, later joined by others, approached
the parish and launched grenades, fired gunshots, and stole property while the
refugees resisted by throwing stones. 1250 Witness MP testified that some of the
attackers were dressed like soldiers while others wore banana leaves. 1251 The witness
testified that the assailants killed about forty people and wounded many more in the
twenty minute attack. 1252 The witness testified that the assailants returned later that
day and again used grenades, killing between forty and fifty people. 1253 The witness
said that, after the second attack, the refugees phoned to request assistance from the
authorities of the prefecture and that, in response, Kwitonda Pierre, a member of
Parliament, and Sub-Prefect Munyangabe were sent to the parish. 1254
501. Witness MP testified that the prefectural representatives arrived during the
third attack, while the witness and a group of refugees tried to defend the parish. 1255
According to the witness, the representatives told the refugees that they were inciting
the attacks and that the refugees should return to the parish and let the prefectural
representatives repulse the attack. 1256 The witness stated that the refugees returned to
the area inside the parish fence and that Kwitonda and Munyangabe disappeared into
the crowd of assailants. 1257 The witness testified that, when he returned to the parish,
he saw a red vehicle belonging to Edouard Bandetse come close to the parish “as if to
give a signal to attack.”1258 Witness MP testified that after this, the attack intensified
and over the course of an hour the assailants killed up to 2,000 mostly Tutsi men. 1259
The witness stated that the attackers also stole property, including cows, motorcycles
1244
T. 12 October 2000 p. 145; T. 13 October 2000 p. 38.
T. 12 October 2000 p. 145.
1246
T. 12 October 2000 p. 145.
1247
T. 12 October 2000 pp. 145-146.
1248
T. 12 October 2000 p. 146.
1249
T. 13 October 2000 pp. 39-41.
1250
T. 12 October 2000 pp. 146-147.
1251
T. 12 October 2000 p. 148.
1252
T. 12 October 2000 pp. 148-149.
1253
T. 12 October 2000 pp. 149-150.
1254
T. 12 October 2000 p. 150; T. 13 October 2000 p. 46.
1255
T. 12 October 2000 pp. 150-151.
1256
T. 12 October 2000 p. 151.
1257
T. 12 October 2000 pp. 151, 153.
1258
T. 12 October 2000 p. 152.
1259
T. 12 October 2000 pp. 152, 153.
1245
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
137
and vehicles from the parish, and Mibilizi hospital, which was about one kilometre
away. 1260
502. Witness MP stated that the following day the surviving refugees attempted to
bury the dead but that they were unable to bury all of them due to new attacks. 1261 The
witness stated that, on 19 April 1994, some refugees went to the hills to look for food
because there was not enough at the parish and that many returned wounded. 1262 He
stated that CARITAS and the Red Cross arrived late and that the food which they
distributed was not enough. 1263
503. Witness MP testified that, on 20 April 1994, about one hundred assailants
attacked the parish, told the refugees to sit down, and took about sixty of them
away. 1264 According to the witness, the assailants selected only Tutsi men, beginning
with the intellectuals and businessmen, except for one woman with her baby, who was
selected because the assailants failed to find her husband and also because she was an
intellectual. 1265 Witness MP stated that they later heard that the woman had been
killed but that the baby had been taken to an orphanage. 1266
504. Witness MP testified that, on 30 April 1994 around 5:00 p.m., Munyakazi and
his Interahamwe attacked Mibilizi parish. 1267 Witness MP testified that when the
militia reached the parish, he overheard the gendarmes who were protecting the
refugees telling them not to attack because there had already been several attacks on
the parish, and nearly all the men had been killed. 1268 The gendarmes negotiated with
the militia, but the militia said that they would not leave “empty-handed”. 1269 The
militia entered the parish through all the doors and killed refugees with machetes. 1270
The witness stated that he also heard gunshots that were fired to terrify people. 1271
According to the witness, the assailants attacked for thirty minutes and killed between
sixty and eighty refugees. 1272
505. Witness MP stated that the French evacuated him from the parish at the end of
May 1994. 1273
506. Witness MP testified that the priest of Mibilizi parish, a Tutsi called Joseph
Boneza, was killed on 17 May 1994 in Kamembe when he left the parish. 1274
1260
T. 12 October 2000 pp. 153, 154.
T. 12 October 2000 p. 155; T. 13 October 2000 p. 74.
1262
T. 13 October 2000 pp. 9, 18.
1263
T. 13 October 2000 p. 10-11.
1264
T. 12 October 2000 pp. 155, 156; T. 13 October 2000 p. 25.
1265
T. 12 October 2000 pp. 70, 156.
1266
T. 12 October 2000 pp. 156-157.
1267
T. 12 October 2000 pp. 157-160; T. 13 October 2000 p. 23.
1268
T. 12 October 2000 p. 157.
1269
T. 12 October 2000 p. 158.
1270
T. 12 October 2000 p. 161-162.
1271
T. 12 October 2000 p. 162.
1272
T. 12 October 2000 p. 162.
1273
T. 13 October 2000 p. 19.
1274
T. 12 October 2000 pp. 167-168.
1261
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
138
507. Witness MP testified that there were four gendarmes at the parish, which was
not a sufficient number to help. 1275 The witness agreed that gendarmes escorted the
CARITAS vehicle that brought food to the parish. 1276
508. Prosecution Witness LAJ testified that, on 17 April 1994, Celestin Somayire
told him to go to Mibilizi parish and kill the Tutsi refugees there so that they would
not scatter throughout the surrounding sectors. 1277 The witness stated that Tariq Assiz
then gave the witness three grenades. 1278 The witness stated that he set off for Mibilizi
parish early on 18 April 1994 and met with Bourgmestre Somayire, Edouard
Bandetse, and a local Interahamwe leader at Bandetse’s bar near Mibilizi parish. 1279
The witness testified that Somayire gave him a list of people who were being sought
at the parish, which, according to the witness, had been prepared by a doctor called
Gagema Majera. 1280
509. Witness LAJ testified that he led the attacks at the Mibilizi parish on 18 April
1994 with the assistance of Mugarura, a gendarme, who had a gun which he had
received from Somayire. 1281 The witness stated that about 1,600 assailants, armed
with spears, clubs, and guns participated in the three hour attack against the Tutsis
who threw sharp stones, wounding some of the attackers. 1282 The witness stated that
many Tutsis were killed inside and that he personally used all the grenades and the
bullets he had, until he had only two bullets remaining. 1283 The witness testified that
when the assailants ran out of ammunition, they informed Bandetse and Somayire that
they had decided to withdraw because many of the attackers had been wounded. 1284
According to the witness, Bandetse said that they needed to ask the “commander” and
the “préfet” for ammunition. 1285
510. Witness LAJ stated that, on 18 April 1994, he accompanied Bandetse to Hotel
Ituze where they met Bagambiki. 1286 According to the witness, Bandetse stated that he
needed bullets to deal with the Tutsis at Mibilizi and that he was afraid the Tutsi
would launch a counter attack and scatter throughout the different sectors. 1287 The
witness stated that he saw Bagambiki call somebody and that about five minutes later
Imanishimwe arrived with his two escorts. 1288 The witness stated that Bagambiki
asked Imanishimwe for bullets but that Imanishimwe said that there were no bullets
for the Kalashnikovs and that he had brought ten M-26 type grenades instead. 1289 The
witness testified that Imanishimwe gave him the grenades and told him that with each
1275
T. 13 October 2000 pp. 25-26, 85.
T. 13 October 2000 pp. 44, 45.
1277
T. 23 October 2000 pp. 84, 85.
1278
T. 23 October 2000 pp. 85, 86.
1279
T. 23 October 2000 p. 85-87, 107.
1280
T. 23 October 2000 p. 89.
1281
T. 23 October 2000 p. 90; T. 25 October 2000 p. 28.
1282
T. 23 October 2000 pp. 90-91.
1283
T. 23 October 2000 pp. 91, 92.
1284
T. 23 October 2000 p. 92.
1285
T. 23 October 2000 pp. 92-93.
1286
T. 23 October 2000 p. 93; T. 24 October 2000 pp. 9, 71.
1287
T. 23 October 2000 p. 94.
1288
T. 23 October 2000 p. 95; T. 24 October 2000 p. 72.
1289
T. 23 October 2000 p. 95.
1276
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
139
of the grenades he had to kill at least five people. 1290 The witness testified that
Bagambiki told him that if he worked well, he would receive 300,000 Francs and that
Bagambiki gave him a 50,000 Franc advance. 1291 The witness testified that he and 500
other assailants attacked Mibilizi parish again that evening, using two of the grenades
that he had been given, having left the other eight with Bandetse. 1292
511. Prosecution Witness LAJ stated that, on 19 April 1994, he returned to Mibilizi
at about 10:00 a.m. and went to Bandetse’s bar to drink with the many Interahamwe
who were there. 1293 The witness testified that he saw Bagambiki in his vehicle
returning from the paris h with Bandetse and the bourgmestre. 1294
512. Prosecution Witness LAJ stated that, on 20 April 1994, 3,000 young people
armed with traditional weapons arrived from Nyakabuye, Gishoma, Bugarama, and
Cyimbogo communes and participated in a “massive, large-scale attack” killing many
people. 1295 The witness was given a list from Bourgmestre Somayire and a medical
assistant Ngangura containing seventy names of important Tutsi refugees whom they
had to kill first. 1296 The witness later said that Bandetse gave him the list which was
prepared by Dr. Ndagijimana of Mibilizi hospital. 1297 The witness stated that he was
told to bring back alive a priest named Joseph and another person. 1298 The witness
testified that they found about thirty of the seventy people on the list by giving it to a
gendarme at the parish who called out each name, reassuring the refugees before
handing them over to Interahamwe to be killed. 1299 The witness stated that after
killing the people on the list Munyakazi’s Interahamwe launched an attack on the
parish in which the witness did not participate. 1300 The witness later stated that he did
participate in a massive attack on 20 April 1994 where 1,500 people were killed. 1301
The witness also stated that Bavugamenshi gave the order to eliminate all the Tutsi
refugees that day. 1302
513. Bagambiki stated that, on 8 April 1994, Abbey Joseph Boneza informed the
prefecture by telephone that refugees were gathering at Mibilizi parish. 1303 According
to Bagambiki, when refugees arrived they were recorded so that they could be
counted in order to obtain supplies from CARITAS and the ICRC. 1304 Bagambiki
stated that he informed the gendarmerie commander of this and that four gendarmes
were sent as early as 8 April 1994 to ensure the refugees’ safety. 1305 Bagambiki stated
1290
T. 23 October 2000 p. 96.
T. 23 October 2000 pp. 96, 97, 98.
1292
T. 23 October 2000 pp. 99, 100, 101.
1293
T. 23 October 2000 pp. 101-102.
1294
T. 23 October 2000 pp. 102, 103.
1295
T. 23 October 2000 p. 105.
1296
T. 23 October 2000 pp. 106, 108.
1297
T. 23 October 2000 p. 107.
1298
T. 23 October 2000 pp. 107, 108.
1299
T. 23 October 2000 pp. 108-109.
1300
T. 23 October 2000 p. 110.
1301
T. 23 October 2000 pp. 110-111.
1302
T. 24 October 2000 p. 48.
1303
T. 31 March 2003 p. 28.
1304
T. 31 March 2003 p. 28.
1305
T. 31 March 2003 p. 28.
1291
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
140
that the gendarmes repulsed attacks on or about 10 April 1994. 1306 Bagambiki said
that he was not informed of any attack on 11 April 1994 but that he received a call
from Joseph Boneza at about 10:00 or 11:00 a.m. on 12 April 1994 stating that
assailants who had gathered at Kungoro were beginning to attack the refugees. 1307
Bagamiki stated that, on 12 April 1994, in response to the call, he, the gendarmerie
commander, and the bishop immediately went to Mibilizi parish. 1308 Bagambiki stated
that, upon their arrival, they found a hundred or so people armed with traditional
weapons waiting to attack the refugees. 1309 Bagambiki stated that they moved the
crowd away from the parish and that he told the crowd that the prefecture would
protect the refugees by any means necessary and that it did not help the war between
the FAR and RPF to kill one another instead of fighting against the RPF. 1310
Bagambiki stated that Bishop Thadée spoke similarily, underscoring the more
religious aspects of the situation. 1311 Bagambiki stated that the intervention was
successful and that the crowd returned home. 1312 Bagambiki stated that the gendarmes
remained and sealed the parish to protect the refugees. 1313 Bagambiki testified that he
was not able to return to Mibilizi when the assailants returned on 14 April 1994, so he
sent Sub-Prefect Munyangabe. 1314 Bagambiki stated that there were no further attacks
until 18 April 1994. 1315
514. Bagambiki stated that during the 18 April 1994 meeting of the enlarged
prefectural conference, he was notified by telephone that many assailants were
preparing to attack the refugees at Mibilizi parish and that the conference discussed
this impending attack and decided to send a commission to prevent the attack. 1316
Bagambiki stated that he appointed Sub-Prefect Munyangabe to go to the parish
because he had been placed in charge of Cyimbogo commune which was without a
bourgmestre. 1317 According to Bagambiki, the conference believed that the political
parties should be represented and appointed Pierre Kwitonda of the MDR and
Edouard Bandetse of the MRND to the commission. 1318 Bagambiki explained that
Munyangabe later reported that he tried to negotiate with the assailants but that
someone named Nkadgi shot in the air, starting the attack, which he and the
gendarmes were unable to stop. 1319 Bagambiki testified that Munyangabe stated that
he believed that Edouard Bandetse, who left before the other members of the
commission, was responsible for the attack. 1320 Bagambiki testified that he did not go
to or telephone Imanishimwe from the Hotel Ituze on 18 April 1994 to ask for
grenades or other weapons for the attack at Mibilizi parish. 1321 Bagambiki stated that
1306
T. 31 March 2003 p. 28.
T. 31 March 2003 p. 28.
1308
T. 31 March 2003 pp. 18, 28.
1309
T. 31 March 2003 p. 29.
1310
T. 31 March 2003 p. 29.
1311
T. 31 March 2003 p. 29.
1312
T. 31 March 2003 p. 29.
1313
T. 31 March 2003 p. 29.
1314
T. 31 March 2003 p. 29.
1315
T. 31 March 2003 p. 29.
1316
T. 31 March 2003 p. 30.
1317
T. 31 March 2003 pp. 30-31.
1318
T. 31 March 2003 p. 30.
1319
T. 31 March 2003 p. 31.
1320
T. 31 March 2003 p. 31.
1321
T. 31 March 2003 pp. 35-37.
1307
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
141
he did not go to Mibilizi parish on 19 April 1994 because he was finalizing the
working document for the pacification missions to begin on 20 April 1994. 1322
515. Bagambiki stated that a commission composed of Pierre Kwitonda from the
MDR, Gatabazi, a member of parliament, Sub-Prefect Munyangabe, and Father
Mategeko was sent to Mibilizi on 24 April 1994 to meet with the refugees and to
determine their needs. 1323 Bagambiki noted that CARITAS and the ICRC supplied
food and blankets. 1324 Bagambiki stated that he visited Mibilizi again on 28 April
1994 with Bishop Thadée and Colonel Bavugamenshi and met with refugees all day
to listen to their concerns and tour the facilities, returning around 7:00 p.m. 1325
516. Bagambiki stated that, rather than waiting for an escort from Bavugamenshi
on 19 May 1994, Joseph Boneza took a parish vehicle and attempted to drive it to the
bishopric. 1326 Bagambiki noted that the car was intercepted by gangs of criminals and
that Boneza was killed. 1327
517. Imanishimwe stated that he did not hear about or participate in a meeting at
Mibilizi parish on 14 April 1994 but that he did participate in a meeting that took
place there on 21 or 22 April 1994. 1328 Imanishimwe stated that he never said that he
personally shot people who were celebrating the death of President Habyarimana. 1329
518. Imanishimwe also stated that Bagambiki did not call him on 18 April 1994 and
that he did not bring ten M-26 grenades to distribute at Hotel Ituze. 1330 Imanishimwe
noted that during the time he was alleged to be at Hotel Ituze he was with Bagambiki
at the prefectural security council from 10:00 a.m. until 3:00 p.m. 1331
519. Bagambiki Defence Witness Munyangabe stated that Bagambiki called him
around 3:00 p.m. on 9 April 1994 and asked that he go to Mibilizi parish; this was in
response to a request from the Mibilizi parish priest, Joseph Boneza, for the prefecture
to intervene in the deteriorating security situation there and to prevent massacres. 1332
The witness stated that he went to Mibilizi later that afternoon, accompanied by three
gendarmes, sent by Bagambiki. 1333
520. Munyangabe stated that, on his way to the parish, he encountered groups of
panicking refugees as well as armed people from a neighbouring hill who, the
refugees claimed, had attacked them the previous night. 1334 The witness stated that the
gendarmes chased the armed group away but were unable to catch any of them,
1322
T. 31 March 2003 p. 33.
T. 31 March 2003 p. 33-34.
1324
T. 31 March 2003 p. 34.
1325
T. 31 March 2003 p. 34.
1326
T. 31 March 2003 p. 35.
1327
T. 31 March 2003 p. 35.
1328
T. 22 January 2003 p. 39; T. 23 January 2003 pp. 10-11.
1329
T. 22 January 2003 p. 40.
1330
T. 22 January 2003 p. 36; T. 23 January 2003 p. 60.
1331
T. 22 January 2003 p. 38.
1332
T. 24 March 2003 p. 22.
1333
T. 24 March 2003 pp. 22-23.
1334
T. 24 March 2003 p. 23.
1323
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
142
fearing a trap. 1335 Munyangabe stated that, after speaking with the priest at Mibilizi,
he called Bagambiki at about 6:00 p.m. to explain how serious the situation was and
how it would likely worsen at night. 1336 According to Munyangabe, he advised
Bagambiki to send soldiers to Mibilizi immediately to position themselves in the
region and to prevent “things from happening.”1337 The witness stated that Bagambiki
agreed to proceed quickly. 1338 The witness stated that he and the three gendarmes who
accompanied him remained at the parish and patrolled the area until the gendarmes
who were requisitioned by Bagambiki arrived around 7:00 p.m. 1339
521. Munyangabe testified that an enlarged prefectural conference was held on 18
April 1994, with approximately sixty to eighty people, including sub-prefects,
bourgmestres, other administrative authorities, representatives of religious
congregations, chairmen of political parties, and directors of private and public
enterprises. 1340 The witness stated that Bagambiki opened the meeting stating how
saddened he was by the situation and the disturbances which continued despite efforts
to stop the hostilities and that Bagambiki asked all present to voice their opinions on
restoring order in the prefecture. 1341 Munyangabe stated that about one hour after the
meeting began the prefectural secretary entered with a message for the bishop. 1342
According to the witness, the message from the priest of Mibilizi parish, Joseph
Boneza, was that small groups of armed men had been attacking the parish all
morning and were planning a large-scale attack to exterminate all refugees at the
parish. 1343 The witness stated that everyone present at the meeting heard the news,
discussed it, and decided to send the witness to Mibilizi to assess the situation. 1344
According to the witness, the participants also decided to send gendarmes to the
parish to try to stop the attack. 1345
522. Munyangabe stated that he voiced concern at the meeting that the attackers
would not listen to him because he was not a member of the MRND or MDR party
and that it was decided that he be accompanied to the parish by Pierre Kwitonda, a
representative from the MDR party and a native of Mibilizi, and Edouard Bandetse,
an important MRND official from Mibilizi. 1346 The witness stated that leaving for
Mibilizi was difficult because there was no vehicle and no petrol. 1347 However, the
witness noted Edouard Bandetse, who had come to the meeting with his own vehicle,
set out on his own. 1348 The witness stated that because he and Pierre Kwitonda could
not leave immediately and had to find a vehicle and petrol, Edouard Bandetse gained
1335
T. 24 March 2003 pp. 23, 24.
T. 24 March 2003 p. 24.
1337
T. 24 March 2003 p. 24.
1338
T. 24 March 2003 p. 24.
1339
T. 24 March 2003 p. 24.
1340
T. 24 March 2003 pp. 28, 29; T. 25 March 2003 p. 46.
1341
T. 24 March 2003 p. 29.
1342
T. 24 March 2003 p. 30.
1343
T. 24 March 2003 p. 30.
1344
T. 24 March 2003 p. 31; T. 25 March 2003 pp. 3-4.
1345
T. 24 March 2003 p. 31.
1346
T. 24 March 2003 p. 31; T. 25 March 2003 pp. 8, 11.
1347
T. 24 March 2003 p. 31-32.
1348
T. 24 March 2003 p. 31-32.
1336
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
143
a “great deal of headway.”1349 The witness estimated that he received orders from the
meeting to depart for Mibilizi around 11:00 a.m. or 12:00 p.m. 1350 The witness
estimated that, after looking for petrol and a vehicle, he left for Mibilizi at about 2:00
p.m. 1351
523. Munyangabe stated that, around 3:00 p.m., when he was approximately one
kilometre from Mibilizi, he realised the scale of the attack when he saw thousands of
people armed with spears, clubs, machetes and other weapons including firearms such
as grenades and rifles moving forward in a “determined manner.”1352 The witness
stated that the civilian authorities tried to move in front of the crowd and prevent it
from reaching the refugees. 1353
524. Munyangabe testified that he and the parish priest decided that the refugees
and the armed crowd could not confront each other and sent the refugees into the
parish compound; the witness spoke with the crowd to dissuade it from attacking. 1354
The witness noted that he was surprised that the gendarmes who had been scheduled
to leave the meeting for the parish before the civilian authorities still had not
arrived. 1355 The witness stated that he and Pierre Kwitonda spoke at length with the
angry crowd, who suspected that RPF accomplices were amongst the refugees, and
tried to dissuade the crowd of 4,000-5,000 people from attacking. 1356 Munyangabe
stated that after an hour he reached an agreement with the crowd for ten of them to
speak with a delegation of refugees in order to find a peaceful solution. 1357 According
to the witness, at approximately 4:00 p.m., when the crowd had chosen the seventh or
eighth representative, the witness saw Edouard Bandetse’s jeep approach. 1358
Munyangabe stated that he thought Edouard Bandetse was coming to assist him; when
Bandetse stopped his vehicle, a customs agent named Ngagi, exited carrying an
automatic firearm and started shooting at the door of the parish compound which
housed the refugees. 1359 The witness stated that once Ngagi fired his gun, the
assailants, following his lead, began shooting and throwing grenades at the parish
compound. 1360 Munyangabe testified that he hid nearby in a small building until the
shooting stopped; he later found Kwitonda and his driver drinking in front of
Bandetse’s bar. 1361 The witness stated that he refused their offer of a drink and
insisted that they return immediately to the prefecture. 1362
525. Munyangabe stated that he reached the prefecture between 5:00 and 6:00 p.m.
and phoned Bagambiki, the bishop, and the nuns who ran the Mibilizi hospital,
1349
T. 24 March 2003 pp. 31-32.
T. 25 March 2003 p. 6.
1351
T. 25 March 2003 p. 7.
1352
T. 24 March 2003 p. 32.
1353
T. 24 March 2003 pp. 31-32.
1354
T. 24 March 2003 p. 32.
1355
T. 24 March 2003 p. 32.
1356
T. 24 March 2003 p. 32.
1357
T. 24 March 2003 p. 33.
1358
T. 24 March 2003 p. 33; T. 25 March 2003 p. 7.
1359
T. 24 March 2003 p. 33; T. 25 March 2003 p. 9.
1360
T. 24 March 2003 p. 33.
1361
T. 24 March 2003 p. 33; T. 25 March 2003 pp. 9-10.
1362
T. 25 March 2003 pp. 9-10
1350
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
144
informing them that the mission had failed. 1363 The witness testified that he never saw
Bandetse again. 1364 The witness stated that he did not see Celestin Somayire at
Mibilizi parish. 1365
526. Bagambiki Defence Witness KOT testified that during one prefectural
committee meeting, which he attended, Bagambiki received an appeal to assist the
refugees at Mibilizi who were under threat of attack and that the committee decided to
dispatch a sub-prefect named “Theodore”, as well as gendarmes, soldiers, and
representatives of the political parties. 1366
527. Bagambiki Defence Witness EOT testified that members of the local
population, including some members of his family, had fled to Mibilizi parish. 1367 The
witness stated that one of his family members called Bagambiki who approved a
request to take those at the parish across the border to Congo. 1368 The witness
indicated that the next day, on 18 April 1994, he went to the prefecture office, but that
the prefect was absent, so the witness instead went to see the Sub-Prefect Kamonyo
who granted the witness travel authorisation and cautioned that “criminals” could
reject the travel authorizations issued by the prefect. 1369 The witness added that
Kamonyo told him that if he had problems in Mibilizi that he should contact SubPrefect Munyangabe, who had gone to Mibilizi to hold a meeting. 1370 The witness
testified that he travelled to Mibilizi to take his aunt to Congo. 1371 Witness EOT stated
that along the way to Mibilizi he met people at Kucyato who said that there was
fighting at the parish. 1372 The witness further stated that when he was three kilometres
from Mibilizi he heard gunshots and saw many people fleeing. 1373 The witness
testified that when he finally arrived at Mibilizi parish, he learned that his aunt had
been killed, along with all the other refugees at the parish. 1374
(ii) Findings
528. Prosecution Witnesses MM and MP provided a largely consistent and
convincing first-hand narrative of what transpired at Mibilizi parish, which the
Chamber generally accepts as credible and reliable. The Chamber also notes that
Bagambiki Defence Witness Munyangabe provided detailed and convincing
testimony about his efforts during the attack against the refugees on 18 April 1994.
529. From the evidence of Witnesses MM and MP, the Chamber finds that Tutsis
began seeking refuge at Mibilizi parish on 7 April 1994, and that they eventually
1363
T. 24 March 2003 p. 33.
T. 24 March 2003 p. 34.
1365
T. 25 March 2003 p. 10-11.
1366
T. 4 February 2003 p. 18.
1367
T. 11 February 2003 pp. 35-36.
1368
T. 11 February 2003 p. 37.
1369
T. 11 February 2003 pp. 37-38.
1370
T. 11 February 2003 p. 38.
1371
T. 11 February 2003 p. 38.
1372
T. 11 February 2003 p. 38.
1373
T. 11 February 2003 p. 38.
1374
T. 11 February 2003 p. 39.
1364
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
145
totalled between 2,000 and 3,000. From the evidence, the Chamber finds that four
gendarmes were posted at the parish at some point between 9 and 11 April 1994.
530. From the evidence of Witnesses MM and MP, the Chamber finds that, on 11
and 12 April 1994, local Interahamwe attacked the parish and that the refugees
warded off the attacks with stones. On 14 April 1994, Bagambiki, Imanishimwe,
Munyarugerero, and Celestin Somayire visited the parish to take stock of the security
situation. The authorities brought a delegation from the local Interahamwe and met
with a delegation of the refugees. Bagambiki listened to each party’s concerns and
told both parties that he would work to restore security in the area. During the
meeting, Imanishimwe became angry when a priest made a reference to the Arusha
Accords and said that he personally killed people celebrating the death or President
Habyarimana in Kamembe. Given the eye-witness accounts of Witnesses MM and
MP regarding this incident, the Chamber does not accept Imanishimwe’s simple
denial of making such a statement or participating in this meeting. Based on the
testimony of Witness MM, the Chamber finds that there was another clash between
the refugees and the local attackers on 15 April 1994.
531. Given the eye-witness accounts of Witnesses MM and MP, the Chamber does
not accept Bagambiki’s testimony that he visited the parish on 12 April 1994 instead
of 14 April 1994. The Chamber also notes that nothing in the record indicates that the
meeting at Mibilizi would have conflicted with the meeting on the afternoon of 14
April 1994 between Bagambiki, the gendarmerie commander, Imanishimwe, the
bishop, and Prosecution Witness LY held at the Cyangugu Bishopric.
532. From the evidence of Witnesses MM and MP, the Chamber finds that, on 18
April 1994, the refugees at the parish learned of plans for a large scale attack against
them. The Chamber accepts that Witness MP and a gendarme went to investigate the
situation. When Witness MP and the gendarme encountered the attackers, the
gendarme gave his grenades to the assailants. Somayire and other assailants later
asked Witness MP and parish authorities to hand over to the assailants sixty refugees
from the parish, but the refugees and parish authorities refused, stating that they did
not have authorisation.
533. The Chamber is mindful that Witnesses MM, MP, and LAJ referred to
Somayire as a bourgmestre. The Chamber is not convinced, however, that Somayire
was in fact bourgmestre in April 1994. The Chamber recalls Bagambiki’s testimony
that he sent Munyangabe to Mibilizi parish because at the time there was no
bourgmestre in Cyimbogo commune. The Chamber further notes that Munyangabe
believed that Somayire was a bourgmestre but did not recall when he was
appointed. 1375 In addition, the Chamber lacks sufficient reliable evidence to determine
if Somayire acted as a de facto bourgmestre in April 1994.
1375
T. 25 March 2003 p. 11 (“Q. And it is true, isn't it, that at that time as of 18th April 1994, he was
acting as a bourgmestre for Cyimbogo? A. I believe so. I really don't recall when he was appointed,
but I believe he was a bourgmestre. Q. Witness, he was appointed or confirmed as bourgmestre in May
1994, but I am talking of April, 1994, when you went to Mibirizi you found him at Mibirizi parish,
didn't you? A. No, he wasn't there.”)
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
146
534. From the evidence of Witnesses MM and MP, the assailants attacked the
parish with traditional weapons and grenades at about 11:00 a.m. and again at about
2:00 p.m. on 18 April 1994. The refugees tried to defend themselves with traditional
weapons, but the attackers succeeded in wounding many refugees and killing between
forty and fifty of them. From the evidence of Bagambiki, Munyangabe, and Defence
Witness KOT, the parish tried to contact the bishop who was participating in the
enlarged prefectural security council meeting. When the bishop received the message,
the security council meeting discussed the problem at Mibilizi parish and decided to
send Sub-Prefect Munyangabe, Pierre Kwitonda, and Edouard Bandetse, as well as
gendarmes. From the evidence of Munyangabe, the Chamber finds that Munyangabe
and Kwitonda left for Mibilizi together and that Bandetse left ahead of them on his
own. When Munyangabe and Kwitonda arrived, they found thousands of angry
attackers. From the evidence of Witnesses MM, MP, and Munyangabe, Munyangabe
asked the refugees to go inside the parish and told them that he would talk to the
attackers. The refugees went into the parish, while the attackers surrounded it.
Munyangabe and Kwitonda tried to negotiate with the attackers. However, during the
negotiation efforts, Bandetse’s vehicle arrived at the parish, and someone got out of
his vehicle and fired a shot at the parish gate, which signalled to the assailants to
attack. The parish then suffered a massive assault, and the assailants killed many
refugees and looted their belongings as well as many of the buildings in the parish
complex.
535. The Chamber cannot accept Witness MM’s testimony that a gendarme killed a
refugee who tried to escape during the attack because the witness heard this only from
an unidentified source, and the Chamber is therefore unable to asses the reliability of
this evidence.
536. From the evidence of Witnesses MM and MP, the Chamber finds that, on 20
April 1994, the assailants returned to the parish with a list of names and demanded to
take away sixty refugees, including the parish priest. Although, the gendarmes
prevented the Interahamwe from taking the parish priest, the assailants removed
between sixty and one hundred refugees and killed them.
537. From the evidence of Witness MM, the Chamber finds that, on 25 April 1994,
Bagambiki, Imanishimwe, Bavugamenshi, and the bishop visited the parish to assess
the situation. On 26 April 1994, Kwitonda, Gatabazi, Somayire, and Father Mategeko
visited the parish and also inquired about the refugees’ situation.
538. From the evidence of Witnesses MM and MP, the Chamber finds that, on 30
April 1994, Munyakazi and about one hundred Interahamwe attacked the parish. The
gendarmes guarding the parish tried to dissuade the attackers. After the Interahamwe
insisted that they would not leave “empty handed”, they entered the parish and killed
between sixty and eighty refugees.
539. From the evidence of Witness MM, the Chamber finds that, on 14 and 15 June
1994, the authorities sent ONATRACOM buses and transferred the remaining
refugees, totalling about 1,000, to the Nyarushishi camp.
540. The Chamber recalls that Witness LAJ is an alleged accomplice of the accused
and as such views his testimony with caution. The Chamber recalls that it has
previously found the testimony of Witness LAJ not to be not credible or reliable with
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
147
respect to other events. 1376 The Chamber views his evidence with suspicion and, as
such, it will not accept his account of the events at Mibilizi parish without
corroboration. The Chamber notes that no witness corroborated Witness LAJ’s
account of prefectural and commune authorities supplying weapons to the attackers or
giving other incentives to them for killing Tutsis. The Chamber also notes that
Bagambiki’s and Imanishimwe’s participation in the prefectural security council
meeting on 18 April 1994 further undermines the witness’s claim that they distributed
weapons to him at Hotel Ituze. The Chamber further notes that Witness LAJ’s account
of the attack at Mibilizi is often internally inconsistent and conflicts with other
reliable and credible evidence on the record, which further undermines its credibility
and reliability. For example, Witness LAJ testified that he participated in a major
assault on Mibilizi parish on 20 April 1994, which involved 3,000 attackers, and that
Munyakazi and his Interahamwe attacked the refugees later that day. The witness later
said that he did not participate in a major assault on 20 April 1994. The evidence also
indicates that Munyakazi attacked the parish only on 30 April 1994.
d. Nyamasheke Parish
(i) Allegations
541. Prosecution Witness LAY testified that, on 8 April 1994, a sub-prefect
travelled around in a vehicle announcing over a microphone that “the enemy was one
and that he was known and that orders had been given”. 1377 The witness stated that, on
9 April 1994, he and his family fled his home when armed assailants, including the
cellule and sector leaders as well as those of political parties, attacked shouting “let us
exterminate them” and “the only enemy is the Tutsi”. 1378 The witness said that from
his hiding place he heard but could not see the sub-prefect pass by his hill with a loudspeaker stating that “the trees had to be pulled out of the ground together with their
roots”. 1379 The witne ss said that he knew the individual using the loud-speaker was
the sub-prefect because his child saw him and identified him, though in the witness’s
prior statement, which was read onto the record, he indicated that he saw the subprefect. 1380
542. Witness LAY stated that, on 10 April 1994, he saw communal vehicles with
Red Cross banners advising Tutsis to come out of their hiding places and go to
Nyamasheke parish where their safety could be guaranteed. 1381 The witness stated that
he arrived at Nyamasheke parish at 5.30 a.m. on 11 April 1994, where he found
around 2,500 people. 1382 Witness LAY testified that the vehicles with Red Cross
banners brought people to the parish from Sunday until about Wednesday and that
some refugees arrived on their own. 1383 The witness testified that, on 11 April 1994,
1376
See supra paras. 129-132.
T. 26 October 2000 p. 98.
1378
T. 26 October 2000 pp. 98-101; T. 30 October 2000 pp. 84-88; T. 31 October 2000 pp. 5-15, 17-18.
1379
T. 26 October 2000 pp. 101, 103; T. 31 October 2000 pp. 22-24.
1380
T. 26 October 2000 p. 102; T. 30 October 2000 pp. 81-82; T. 31 October 2000 pp. 22-24.
1381
T. 26 October 2000 pp. 105-106; T. 30 October 2000 pp. 29-30.
1382
T. 26 October 2000 p. 108.
1383
T. 26 October 2000 pp. 108-109; T. 30 October 2000 pp. 76-77.
1377
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
148
the sub-prefect came to the parish along with party officials, the bourgmestre, and
others to determine how many refugees had arrived. 1384
543. Witness LAY testified that, on 13 April 1994 around 1:00 p.m., political party
officials, reservists, the local population, and Interahamwe launched their first armed
attack against the parish while singing songs such as “let us exterminate them” and
“the enemy is the Tutsi.”1385
544. Witness LAY explained that an Interahamwe wounded one of the two
gendarmes guarding the refugees at the parish, who then shot in the air and fired at the
Interahamwe, killing three. 1386 The witness testified that after this incident the bishop
arrived at the parish with Bagambiki, a judge, the army commander, the sub-prefect,
the bourgmestre of Kagano commune, and other public servants of the commune,
including the conseillers of all the sectors. 1387 According to the witness, the assailants
retreated when Bagambiki and his delegation arrived. 1388 The witness stated that
Bagambiki met the assailants outside the parish premises and that the leaders of the
assailants then entered the parish with Bagambiki and his delegation. 1389 In the
witness’s opinion, Bagambiki was not concerned about the many refugees who were
wounded during the attack but instead “bullied” the gendarmes, asking them why they
had killed Hutus. 1390
545. Witness LAY testified that some of the assailants told Bagambiki that the
parish priest had killed the three Interahamwe.1391 The witness stated that, after
holding a meeting which excluded the refugees, Bagambiki ordered a search for
weapons throughout the parish which produced nothing. 1392 According to the witness,
Bagambiki then announced that the Tutsi parish priest should leave the parish. 1393 The
witness stated that Bagambiki made this announcement to the few surviving refugees
at the parish who had not been killed in the attack. 1394 The witness testified that, while
Bagambiki was present, the convent was destroyed and looted and one woman was
killed. 1395 The witness stated that Bagambiki and the two gendarmes left the parish
but that the bishop stayed. 1396 According to the witness, on 13 April 1994, a crowd of
people surrounded the parish so that the refugees could not leave, and soldiers also
arrived to prevent the refugees from leaving. 1397
546. Witness LAY testified that, on 14 April 1994, the bishop celebrated a mass in
the parish, and then he left with four religious brothers. 1398 The witness later heard
1384
T. 26 October 2000 p. 109.
T. 26 October 2000 pp. 111-113; T. 30 October 2000 pp. 5, 91-92.
1386
T. 26 October 2000 pp. 111-112, 113-114.
1387
T. 26 October 2000 pp. 115-118; T. 30 October 2000 pp. 3-4, 93-98, 101-103.
1388
T. 26 October 2000 p. 117; T. 30 October 2000 p. 94.
1389
T. 30 October 2000 p. 93.
1390
T. 26 October 2000 p. 118.
1391
T. 26 October 2000 p. 119; T. 30 October 2000 p. 93.
1392
T. 26 October 2000 p. 119; T. 30 October 2000 pp. 92-93.
1393
T. 26 October 2000 p. 119; T. 30 October 2000 p. 5.
1394
T. 26 October 2000 pp. 119-120.
1395
T. 30 October 2000 pp. 104-105.
1396
T. 26 October 2000 pp. 120-121; T. 30 October 2000 p. 104.
1397
T. 26 October 2000 pp. 121-122; T. 30 October 2000 p. 104.
1398
T. 26 October 2000 pp. 122-123.
1385
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
149
from new refugees arriving at the parish that the brothers had been killed. 1399 The
witness testified that, on the morning of 15 April 1994, armed assailants again
attacked the parish, joined by the soldiers posted there and the sub-prefect, throwing
grenades and spraying petrol, burning some of the refugees alive. 1400 The witness
testified that petrol was brought to the parish in commune vehicles. 1401 The witness
could not give the number of refugees who died on 15 April 1994, but he said that
more people died than survived. 1402
547. Witness LAY stated that, on 16 April 1994, the assailants reinforced by
Munyakazi and his Interahamwe and Pima attacked the survivors who had locked
themselves in the parish. 1403 According to the witness, the attackers killed the women
and children who came out of the parish, having promised that nothing would happen
to them. 1404 The witness testified that the attackers broke the windows of the parish
and threw grenades and petrol through the openings into the building. 1405
548. Prosecution Witness LBI testified that, on 10 April 1994, she and her family
sought refuge at Nyamasheke parish, arriving in a commune vehicle. 1406 The witness
stated that, when they arrived, they found gendarmes guarding the parish and people
registering the stream of arriving Tutsi refugees. 1407
549. Witness LBI testified that, on 12 April 1994, Hutus attacked the parish,
singing “let’s exterminate them”. 1408 The witness stated that the assailants and the
refugees threw stones at each other but that no one died as a result. 1409 The witness
stated that other refugees continued to arrive at the parish. 1410
550. Witness LBI testified that, at about 10:00 a.m. on 13 April 1994, the parish
was attacked by the refugees’ former Hutu neighbours and policemen from Kagano
commune, who were armed with machetes, spears, clubs, firearms, grenades and
bayonets. 1411 The witness stated that the number of attackers made it difficult to
recognize them individually, except for those in uniform, but that she later learned
that the bourgmestre had participated in the attack. 1412 The witness explained that the
refugees used stones to defend themselves, and that the gendarmes ended the attack
when they shot and killed three of the attackers. 1413 The witness stated that during the
1399
T. 26 October 2000 p. 123.
T. 30 October 2000 pp. 7, 8-11; T. 31 October 2000 pp. 34-35.
1401
T. 30 October 2000 pp. 55, 56, 69-70, 73-74.
1402
T. 30 October 2000 p. 11.
1403
T. 30 October 2000 pp. 11, 12.
1404
T. 30 October 2000 pp. 12-13.
1405
T. 30 October 2000 p. 14.
1406
T. 25 October 2000 pp. 55-57.
1407
T. 25 October 2000 pp. 56-57
1408
T. 25 October 2000 pp. 58, 59.
1409
T. 25 October 2000 pp. 58, 59.
1410
T. 25 October 2000 pp. 58, 59, 60.
1411
T. 25 October 2000 pp. 61-62.
1412
T. 25 October 2000 p. 62.
1413
T. 25 October 2000 p. 61.
1400
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
150
attack she was in the rear courtyard of the parish and that none of the refugees was
injured or killed in this attack. 1414
551. Witness LBI testified that, at about 2:00 p.m. on 13 April 1994, Bagambiki
arrived at the parish. 1415 The witness stated that Bagambiki was accompanied by the
bishop, Sub-Prefect Sewabeza, Sub-Prefect Gérard Terebura, Bourgmestre Kamana,
Kamana’s older brother Antoine Hitimana, a commander of either the gendarmerie or
the army, and the conseillers of several sectors in Kagano commune. 1416
552. Witness LBI testified that after the authorities arrived, the homes of all the
priests, including Father Ubald, were searched because Father Ubald was believed to
have been responsible for the deaths of the three attackers shot by the gendarme. 1417
The witness stated that after the search Bagambiki and the authorities met briefly with
representatives of each sector and then met with all of the refugees for about an hour
before leaving. 1418 The witness stated that Bagambiki told the refugees that the
gendarmes at the parish had become “useless” and that these gendarmes were going to
be transferred to Cyangugu because they had killed Hutu, which they had no right to
do.1419 The witness testified that Bagambiki told the refugees that “it was hoped that
the people remaining behind would be safe, maybe some gendarmes would be left, but
that the gendarmes would receive the punishment they deserved.”1420 According to the
witness, Bagambiki further stated that there were no problems, that the refugees could
stay at the parish, and that the refugees were “safe”. 1421 The witness noted that
Bagambiki also told the gendarmes that they should not have killed a Hutu and that
they would be transferred. 1422 The witness also stated that Bagambiki told the refugees
that the Tutsi had started everything by killing the father of the nation and that this
was a plot they had hatched. 1423
553. Witness LBI noted that the bishop remained with the refugees until 14 April
1994 and that during his stay at the parish he performed baptisms and other religious
ceremonies. 1424 The witness noted that Father Ubald fled alone in the bishop’s vehicle
out of fear because people believed that he had killed the Hutu assailants. 1425 The
witness testified that, after the bishop finished performing sacraments, he left the
parish with several religious brothers and that the brothers were killed along the way
to the prefecture. 1426 The witness testified that the gendarmes were replaced by three
others and that the new gendarmes were among the first to shoot at them during the
attack of 15 April 1994. 1427
1414
T. 25 October 2000 pp. 61-62, 67-68.
T. 25 October 2000 pp. 62-63; T. 26 October 2000 p. 25.
1416
T. 25 October 2000 pp. 63-65; T. 26 October 2000 p. 25.
1417
T. 25 October 2000 pp. 63, 64; T. 26 October 2000 pp. 27-28.
1418
T. 25 October 2000 pp. 64-65, 67, 68; T. 26 October 2000 p. 25.
1419
T. 25 October 2000 p. 65-66; T. 26 October 2000 pp. 28-29.
1420
T. 25 October 2000 p. 65
1421
T. 25 October 2000 p. 66.
1422
T. 26 October 2000 pp. 28-29, 30.
1423
T. 25 October 2000 pp. 66-67.
1424
T. 25 October 2000 p. 68.
1425
T. 25 October 2000 p. 68; T. 25 October 2000 pp. 74-75 (French); T. 26 October 2000 p. 30-31.
1426
T. 25 October 2000 p. 68.
1427
T. 26 October 2000 p. 31.
1415
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
151
554. Witness LBI testified that, at about 2:00 p.m. on 15 April 1994, armed
assailants, including Hutus from the area, policemen, Bourgmestre Kamana, and
several conseillers from Kagano commune, attacked the parish. 1428 The witness stated
that when the attackers arrived the witness hid in an old house that was used as a
residence for student monks. 1429 The witness testified that the attackers began to kill
people using grenades, machetes, and spears and that they torched the house where
she was hiding with petrol. 1430 The witness stated that she was hit with a machete or a
hammer and that she was stabbed three times in the back, wounded with a machete on
her leg and hit on the chest with a club. 1431 The witness stated that the attackers
continuously sang “let us exterminate them, let us exterminate them.”1432 The witness
stated that she saw Bourgmestre Kamana armed with a machete but that she did not
see him use it because she then escaped. 1433 Witness LBI estimated that, of the 25,000
refugees at the parish, approximately three quarters were killed during this attack
which lasted until midnight. 1434
555. Witness LBI testified that the following day, 16 April 1994, the attackers
returned and began throwing people, alive, into the latrines located close to the parish
and that the remaining refugees were killed and cut up into small pieces. 1435 The
witness stated that the attackers asked Hutus to identify themselves so that their lives
would be spared. 1436
556. Witness LBI testified that, while the attackers killed people, she heard them
shout that Munyakazi had arrived. 1437 According to the witness, who was in the
bushes hidden from view, Munyakazi said that Bagambiki had sent them to reinforce
the people in Kagano because they were not effective enough and that he would
continue to Kibuye because Kibuye also needed reinforcements. 1438 The witness
stated that Munyakazi and his Interahamwe assisted the attackers by removing and
killing women hidden in the parish. 1439 The witness testified that, after Munyakazi and
his Interahamwe left, the remaining attackers continued to look for people to kill. 1440
557. Prosecution Witness LAM testified that he learned of a plan to invite
Bagambiki and Imanishimwe to Kagano to show the m that the Tutsis were
threatening security. 1441 According to the witness, the plan was to excite the
population by attacking the Tutsis before the arrival of Bagambiki and
Imanishimwe. 1442 The witness explained that, after learning from the Interahamwe of
1428
T. 25 October 2000 pp. 68-72; T. 26 October 2000 p. 61.
T. 25 October 2000 p. 69-70.
1430
T. 25 October 2000 pp. 70, 73.
1431
T. 25 October 2000 p. 73; T. 26 October 2000 pp. 63-64
1432
T. 25 October 2000 p. 73.
1433
T. 25 October 2000 p. 75
1434
T. 25 October 2000 p. 71.
1435
T. 25 October 2000 pp. 76, 77, 79.
1436
T. 25 October 2000 p. 77.
1437
T. 25 October 2000 p. 78; T. 26 October 2000 pp. 32-33.
1438
T. 25 October 2000 p. 78.
1439
T. 25 October 2000 p. 80.
1440
T. 25 October 2000 p. 81.
1441
T. 2 November 2000 pp. 17, 30-31; T. 20 November 2000 p. 87.
1442
T. 20 November 2000 pp. 88-89.
1429
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
152
Gisuma that Bagambiki and Imanishimwe gave authorization to kill people in
Gashirabwoba, the attackers there hoped to get the same authorization. 1443
558. According to the witness, on 13 April 1994, 2,000 assailants attacked the
Tutsis at Nyamasheke parish, and, during the attack, one of the gendarmes guarding
the Tutsis at the parish shot and killed three Interahamwe.1444 The witness stated that
the attackers took the three dead Interahamwe and another who had been injured to
Kabeza to wait for Imanishimwe and Bagambiki. 1445 The witness also stated that the
gendarmes at the parish also took the gendarme who had killed the three Interahamwe
to Kabeza. 1446
559. Witness LAM testified that when Imanishimwe, Bagambiki, and the bishop
arrived at the commune office, the assailants told them that the Tutsis were armed and
that they threatened their security. 1447 The witness testified that the attackers insisted
on searching the parish to determine if the Tutsis were armed, which the bishop
opposed.1448 According to the witness, Imanishimwe loudly berated the bishop for
hampering the search and then left the meeting angry, taking with him the gendarme
who had killed the three Interahamwe.1449 The witness testified that once
Imanishimwe left, Bagambiki told the bishop, “I cannot contain these people. I have
to fulfil their desire.”1450 The witness stated that Bagambiki authorized a search of the
parish and asked the heads of the political parties and the commune officials to select
civilians to go with the gendarmes. 1451
560. Witness LAM testified that, on 15 April 1994, he participated in an attack at
Nyamasheke parish which resulted in the death of many Tutsis. 1452 The witness stated
the that assailants worked in concert with the gendarmes, whom Imanishimwe and
Bagambiki had asked to assist in the attack. 1453 The witness stated that the attackers
went to Kabeza between 1:30 and 2:00 p.m. where they saw Bagambiki and
Imanishimwe. 1454 The witness stated that Imanishimwe and Bagambiki brought
weapons and distributed them to ex-soldiers. 1455 The witness testified that the attack
began at 2:00 p.m. and ended at 6:00 p.m. 1456 Witness LAM testified that there were
approximately 2,000 or more assailants involved in the attack on Nyamasheke parish,
including Sub-Prefect Terebura who was armed with a gun, and Bourgmestre
1443
T. 20 November 2000 p. 88.
T. 2 November 2000 p. 20; T. 20 November 2000 p. 89.
1445
T. 2 November 2000 p. 20.
1446
T. 2 November 2000 p. 20.
1447
T. 2 November 2000 pp. 21-22; T. 20 November 2000 pp. 90-91.
1448
T. 2 November 2000 pp. 23-24.
1449
T. 2 November 2000 pp. 23, 24; T. 20 November 2000 p. 107.
1450
T. 2 November 2000 p. 24.
1451
T. 2 November 2000 p. 24-25; T. 20 November 2000 p. 93.
1452
T. 2 November 2000 pp. 25, 26.
1453
T. 20 November 2000 pp. 100, 101.
1454
T. 2 November 2000 pp. 26; T. 20 November 2000 pp. 47-48, 49, 90.
1455
T. 2 November 2000 pp. 27-28; T. 20 November 2000 pp. 33-34, 50-51, 54, 55-56.
1456
T. 2 November 2000 p. 37; T. 20 November 2000 p. 54.
1444
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
153
Kamana. 1457 The witness stated that Imanishimwe coordinated the attack from
Kabeza. 1458
561. Witness LAM testified that they entered the parish gates and used clubs and
machetes against the refugees who did not counterattack. 1459 The witness stated that
the assailants told Imanishimwe that the refugees were running towards the parish but
that the attackers could not go in without bullets. 1460 The witness stated that he heard
Imanishimwe ask Sergeant Kamanayo to get more bullets for the attack. 1461 The
witness estimated that only 300 refugees of the more than 6,000 Tutsis at the parish
survived. 1462
562. Witness LAM testified that, on 16 April 1994, he and others looted the schools
behind the parish. 1463 The witness stated that when the attackers returned from the
school, they saw Munyakazi’s Interahamwe and those of other regions ask the
remaining women and children in the parish to come out. 1464 The witness stated that
the Interahamwe killed the women and young girls who refused to go with them and
threw some, alive, into the latrines. 1465
563. Bagambiki stated that Nyamasheke parish is located in Kagano commune in
the north of Cyangugu, approximately fifty kilometres from the seat of the
prefecture. 1466 Bagambiki stated that in April 1994 the bourgmestre of Kagano was
Aloys Kamana. 1467
564. Bagambiki testified that, on 8 April 1994, a priest at Nyamasheke parish
informed him that refugees began gathering there and that he immediately contacted
the gendarmerie commander who sent gendarmes to Nyamasheke with Sub-Prefect
Terebura. 1468 According to Bagambiki, on 12 April 1994, the priest informed him that
approximately 2,600 refugees had registered at Nyamasheke. 1469
565. Bagambiki stated that he went to Nyamasheke parish on 13 April 1994, with
Bishop Thadée and the commander of the gendarmerie because Sub-Prefect Terebura
and the parish had informed him that people were gathering outside the parish at a
place called Kabeza, threatening to attack the refugees at the parish. 1470 Bagambiki
noted that Sub-Prefect Terebura and Bourgmestre Kamana also joined his
delegation. 1471
1457
T. 2 November 2000 pp. 36, 38, 39.
T. 20 Novmenber 2000 p. 118.
1459
T. 2 November 2000 p. 28.
1460
T. 2 November 2000 p. 29.
1461
T. 20 November 2000 pp. 105-106.
1462
T. 2 November 2000 p. 39.
1463
T. 2 November 2000 pp. 42-44.
1464
T. 2 November 2000 pp. 43, 44; T. 20 November 2000 pp. 125, 126.
1465
T. 2 November 2000 p. 44; T. 20 November 2000 pp. 126, 127.
1466
T. 31 March 2003 p. 37.
1467
T. 31 March 2003 p. 37.
1468
T. 31 March 2003 pp. 37, 38.
1469
T. 31 March 2003 p. 37.
1470
T. 31 March 2003 pp. 18, 37-38.
1471
T. 31 March 2003 p. 38.
1458
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
154
566. Bagambiki stated that he arrived at Nyamasheke between 1:00 and 1:30 p.m.
and found an excited crowd armed with traditional weapons and saw a dead body. 1472
Bagambiki stated that he spoke to members of the crowd, who said that Father Ubald
had shot at them and that they believed that the refugees were armed. 1473 Bagambiki
stated that he moved the crowd to the commune office 500 to 600 metres from the
parish to speak to them and that, during the exchange, he learned that the gendarmes
had actually fired at the crowd. 1474 Bagambiki stated that he explained to the crowd
that the priest did not have weapons, that the refugees were under the prefecture’s
protection, and that the prefecture would not tolerate an attack on the refugees. 1475
Bagambiki further noted that the gendarmes did their duty and would use all means
necessary to prevent an attack and that he assured the crowd that the refugees would
not attack them because they were under the control of the gendarmes. 1476 Bagambiki
stated that the assailants were convinced and abandoned their plans of attack but
nonetheless demanded a search of the priest’s residence. 1477 Bagambiki stated that
Bishop Thadée did not object to the search and that they returned to the parish with
ten representatives of the crowd. 1478 Bagambiki stated that the search produced an old
hunting rifle that no longer worked, which was shown to the crowd who were then
convinced that Father Ubald was not the culprit. 1479 Bagambiki stated that the crowd
still demanded the removal of Father Ubald along with the gendarme who fired into
the crowd. 1480 Bagambiki testified that the bishop agreed that Father Ubald could be
removed and that the gendarmes asked to be replaced. 1481 Bagambiki stated that the
gendarmerie commander made the necessary arrangements to replace the gendarme
contingent and further stated that the gendarme who fired at the crowd was not
arrested or reproached because he did his duty. 1482
567. Bagambiki stated that Bishop Thadée stayed at Nyamasheke parish that night,
and that the authorities returned in a convoy to the prefecture with Father Ubald and
Abbey Augustin Rushita. 1483 Bagambiki stated that Bishop Thadée was attacked at a
roadblock at Mutusa on his way back to the prefecture on 14 April 1994 and that three
priests with him were killed. 1484
568. Bagambiki stated that, on 15 April 1994, Bourgmestre Kamana informed him
at about 3:00 to 3:30 p.m. about an attack at Nyamasheke parish involving the same
crowd. 1485 Bagambiki stated that he was not able to intervene because he was
informed after the attack was completed. 1486 Bagambiki stated that he suspended
1472
T. 31 March 2003 pp. 18, 38, 39.
T. 31 March 2003 p. 39
1474
T. 31 March 2003 p. 39
1475
T. 31 March 2003 pp. 39-40.
1476
T. 31 March 2003 p. 40.
1477
T. 31 March 2003 p. 40.
1478
T. 31 March 2003 p. 40.
1479
T. 31 March 2003 pp. 40-41.
1480
T. 31 March 2003 p. 41.
1481
T. 31 March 2003 p. 41.
1482
T. 31 March 2003 pp. 41, 42.
1483
T. 31 March 2003 pp. 42, 43.
1484
T. 31 March 2003 p. 43.
1485
T. 31 March 2003 p. 43.
1486
T. 31 March 2003 pp. 43-44.
1473
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
155
Aloys Kamana immediately because Kamana did not provide a convincing
explanation for why he did not inform Bagambiki earlier about the attack and because
Kamana was in possession of looted property from Nyamasheke. 1487
569. Bagambiki testified that he did not distribute weapons on 15 April 1994 at
Nyamasheke parish because at that time he was transferring refugees from Cyangugu
Cathedral to Kamarampaka Stadium. 1488
570. Imanishimwe stated that he has never been to Nyamasheke parish and that he
did not participate in any killings or meetings there. 1489
571. Imanishimwe Defence Witness PCI stated that, on 13 April 1994 between 1:00
and 2:00 p.m., he was visiting his aunt at a dispensary near Nyamasheke parish. 1490
He stated that, while at the dispensary, he heard a gunshot coming from Nyamasheke
parish and a few minutes later saw the vehicles of Bagambiki, the gendarmerie
commander, and the bishop, which he followed to the parish. 1491 The witness stated
that he saw a man wearing a red beret and a khaki uniform with red shoulder tags and
clear white stars, who other people told him was the commander of the
gendarmerie. 1492 The witness stated that Bagambiki and the gendarmerie commander
left the parish between 4:00 and 4:30 p.m. but that the bishop remained. 1493 The
witness stated that he learned that, on 15 April 1994, there had been confrontations
between members of the Hutu population and the Tutsi refugees at the parish. 1494
572. Imanishimwe Defence Witness PCH testified that, on 13 April 1994, he went
to Nyamasheke parish out of curiosity when he heard gunfire coming from there. 1495
The witness testified that he saw the bishop’s vehicle, a gendarmerie vehicle, and a
civilian vehicle head towards the parish. 1496 The witness stated that at the parish, he
saw the gendarmerie commander arrest a gendarme who had shot into the
population. 1497 The witness attested to hearing that the gendarme had killed three
people. 1498 The witness stated that the gendarmes who accompanied the commander
came to reinforce the gendarmes already stationed at the parish. 1499
573. Bagambiki Defence Witness KOE testified that, on 13 April 1994, he was
bringing food to one of the refugees at Nyamasheke parish when he heard
gunshots. 1500 The witness stated that he stopped for a short time at Kabeza before
following three vehicles carrying Bagambiki, the bishop, and gendarmes to the parish
1487
T. 27 March 2003 p. 22; T. 31 March 2003 p. 44.
T. 31 March 2003 p. 44.
1489
T. 22 January 2003 pp. 46-47; T. 23 January 2003 pp. 14, 60.
1490
T. 24 October 2002 pp. 30, 43.
1491
T. 24 October 2002 pp. 30-31, 41-42.
1492
T. 24 October 2002 pp. 30-32.
1493
T. 24 October 2002 pp. 32-33.
1494
T. 24 October 2002 pp. 33-34.
1495
T. 23 October 2002 pp. 43, 47; T. 24 October 2002 pp. 11, 15, 25.
1496
T. 23 October 2002 p. 43.
1497
T. 23 October 2002 p. 43.
1498
T. 23 October 2002 p. 43.
1499
T. 23 October 2002 p. 45; T. 24 October 2002 p. 14.
1500
T. 25 February 2003 pp. 8, 21.
1488
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
156
between 1:00 and 2:00 p.m. 1501 The witness stated that he saw two corpses and
observed people armed with clubs, machetes, and sticks in front of the parish
shouting. 1502 The witness noted that the parish was guarded by gendarmes.1503 The
witness stated that he did not see Bourgmestre Kamana or Kalisa, the commune’s
driver, amongst the attackers. 1504
574. Witness KOE testified that, when he arrived, Bagambiki, the bishop, and
gendarmes were standing in front of the parish. 1505 The witness stated that he heard
Bagambiki tell those attacking the parish to go home but that the attackers responded
that the refugees were enemies. 1506 According to the witness, Bagambiki tried to calm
down the local population and convince them to move aside. 1507 The witness recalled
that the bishop told the assailants that as Christians they could not attack and kill the
children of God. 1508 The witness stated that the attackers and the gendarmes moved
from the parish to Kabeza. 1509 The witness stated that, at Kabeza, Bagambiki asked
the attackers who their enemy was, and they responded that a gendarme had killed one
of them and that Father Ubald was also shooting. 1510 The witness stated that a gun was
later found in Father Ubald’s office. 1511 The witness testified that, when the gun was
found, the attackers began shouting about the gendarme who killed one of the
assailants. 1512 The witness stated that Bagambiki informed the assailants that the
gendarme in question had to be transferred. 1513 The witness noted that Bagambiki also
informed the attackers that the bishop would remain to take charge of the parish and
that, if there were another attack against the parish, the gendarmes would defend the
parish, and the attackers would suffer the consequences. 1514 According to the witness,
after the discussions, the convoy including Bagambiki, Father Ubald, and the
gendarmes departed. 1515
575. Witness KOE attested to hearing that the parish was attacked on 15 April 1994
by the local population who were reinforced by people from Gafunzo commune. 1516
576. Bagambiki Defence Witness BHB testified that, on 10, 11, and 12 April 1994,
he saw Tutsis fleeing to the hilltops and walking to Nyamasheke parish for refuge. 1517
The witness stated that he observed Father Ubald, along with a parish employee and a
member of the Red Cross, moving through the commune to inform Tutsis to go to the
1501
T. 25 February 2003 pp. 8, 11, 12, 20-21.
T. 25 February 2003 p. 9.
1503
T. 25 February 2003 p. 9.
1504
T. 25 February 2003 p. 10.
1505
T. 25 February 2003 p. 12.
1506
T. 25 February 2003 p. 12.
1507
T. 25 February 2003 p. 12.
1508
T. 25 February 2003 p. 12.
1509
T. 25 February 2003 p. 12.
1510
T. 25 February 2003 p. 12.
1511
T. 25 February 2003 p. 13.
1512
T. 25 February 2003 p. 13.
1513
T. 25 February 2003 p. 13.
1514
T. 25 February 2003 pp. 13.
1515
T. 25 February 2003 p. 15.
1516
T. 25 February 2003 pp. 15.
1517
T. 24 February 2003 p. 13.
1502
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
157
parish. 1518 The witness testified that he saw gendarmes patrolling Nyamasheke
parish. 1519 The witness testified that he saw Bagambiki leave the commune office with
Sub-Prefect Terebura along with the bishop and gendarmes on the afternoon of 13
April 1994. 1520
(ii) Findings
577. Prosecution Witnesses LAY and LBI provided a largely consistent chronology
of the events that transpired at Nyamasheke parish. From their evidence, the Chamber
finds that attacks in the local areas of Kagano commune forced a number of Tutsis to
seek refuge at Nyamasheke parish. Vehicles belonging to the commune transported
many refugees to the parish, and people at the parish registered the refugees on their
arrival.
578. The Chamber does not accept Witness LAY’s testimony that Sub-Prefect
Terebura was involved in inciting the local population to violence on 8 and 9 April
1994 because the witness did not see Terebura but rather heard of his alleged
participation from his son whose credibility and reliability the Chamber is not in a
position to assess.
579. From the evidence of Witness LAY, the Chamber finds that Sub-Prefect
Terebura, Bourgmestre Kamana, and others visited the parish on 11 April 1994 to
assess the situation.
580. From the evidence of Witness LBI, the Chamber finds that local Interahamwe
attacked the parish on 12 April 1994 by throwing stones while chanting “let’s
exterminate them.” No one was killed during that attack. From the evidence of
Witnesses LBI and LAY, the Chamber finds that the assailants returned on 13 April
1994 and engaged in a similar attack. During the attack, a gendarme fired and killed
three Interahamwe, ending the attack. The Chamber cannot accept Witness LAY’s
assertion that the attack of 13 April 1994 left many of the refugees wound ed and his
later assertion that most of the refugees at the parish that day were dead. Indeed, the
Chamber notes that Witness LBI testified that none of the refugees was wounded or
killed during the attack on 13 April 1994. In the Chamber’s view, such a discrepancy
cannot be reconciled and leaves the impression that Witness LAY’s testimony on this
point is exaggerated.
581. The Chamber accepts the evidence of Bagambiki that he received information
about an attack at Nyamasheke on 13 April 1994 and that he went there to intervene
with the bishop, the commander of the gendarmerie, Terebura, and Kamana. From the
evidence of Witnesses LBI, LAY, and Bagambiki, the Chamber finds that when
Bagambiki arrived at the parish between 1:00 and 2:00 p.m., he moved the attackers
away from the parish to speak with them. The Chamber also finds that the assailants
were angry that a gendarme had killed three Interahamwe and that they believed that
Father Ubald had a gun. The Chamber finds that Bagambiki authorized a search of the
parish for weapons, which yielded an old gun that was not serviceable, and that he
1518
T. 24 February 2003 pp. 13.
T. 24 February 2003 p. 15.
1520
T. 24 February 2003 p. 16.
1519
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removed Father Ubald from the parish. The gendarmes at the parish were also
replaced.
582. The Chamber lacks sufficient reliable evidence to determine whether
Bagambiki chastised the gendarmes for killing Hutus, given the varying accounts of
Bagambiki’s actions at the parish provided by Witnesses LAY, LBI, Bagambiki,
KOE. The Chamber also lacks sufficient reliable evidence to determine whether
Bagambiki removed the gendarmes from the parish given the presence of the
gendarmerie commander there, who would have had this authority.
583. From the evidence of Prosecution Witnesses LBI and LAY as well as
Bagambiki, the Chamber finds that the bishop remained with the refugees during the
night of 13 April 1994. The Chamber also notes that it is not disputed that three or
four parish priests accompanying the bishop were killed when the bishop’s vehicle
was stopped at a roadblock on 14 April 1994.
584. From the evidence of Witnesses LBI and LAY, the Cha mber finds that, on 15
April 1994, assailants launched a massive assault against the parish, killing most of
the refugees there. From the evidence of Witness LBI, the Chamber accepts that
Bourgmestre Kamana, who was carrying a machete, commune police, and the several
conseillers from Kagano commune were present during the attack. The Chamber has
doubt about Witness LAY’s assertion that the gendarmes at the parish participated in
the attack, having considered its previous finding about the exaggeration of his
testimony on another point.
585. From the evidence of Witnesses LBI and LAY, the Chamber finds that, on 16
April 1994, Munyakazi and his Interahamwe participated in an attack against the
survivors at the parish, brutally killing many of those who remained alive. Witness
LBI’s assertion that Munyakazi said that Bagambiki sent him to the parish is not
evidence on which the Chamber can conclude that Bagambiki in fact had sent
Munyakazi.
586. The Chamber accepts Bagambiki’s uncontested testimony that he suspended
Bourgmestre Kamana after the attacks at the parish.
587. The Chamber recalls that Witness LAM is an alleged accomplice of the
accused and, as such, views his testimony with caution. The Chamber does not accept
the testimony of Witness LAM concerning the events which transpired at
Nyamasheke parish because it contradicts other evidence on the record and is not
credible or reliable. The Chamber notes that Witness LAM’s account of Bagambiki’s
arrival is materially different from that of Witnesses LAY and LBI. For example,
Witness LAM stated that, as soon as the gendarme shot the three Interahamwe, the
attackers removed their dead and retreated to Kabeza and that the gendarmes also
went there. In contrast, the evidence of Witnesses LAY and LBI, which the Chamber
accepted, reflects that Bagambiki found the attackers, the dead Interahamwe, and the
gendarmes at the parish, before he moved them away.
588. In particular, the Chamber does not accept Witness LAM’s account of
Bagambiki’s and Imanishimwe’s participation in an alleged distribution of weapons
on the afternoon of 15 April 1994 because the Chamber has found that at that time
they were involved with church authorities in transferring the refugees from
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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Cyangugu Cathedral to Kamarampaka Stadium. 1521 Given the distance and travel time
between Nyamasheke and the prefecture, the Chamber finds it highly doubtful that
Bagambiki and Imanishimwe would then have been in Nyamasheke. This is so,
particularly, because Witness LAM’s testimony leaves the impression that
Imanishimwe was allegedly present at Nyamasheke parish during a significant portion
of the attack.
589. The Chamber lacks sufficient reliable evidence to determine that Imanishimwe
was present at Nyamasheke on 13 April 1994. The Chamber notes that, during the
visit of the authorities to the parish on 13 April 1994, Witness LAY identified
Imanishimwe only as the commander of the army and did not provide any further
detail. Witness LBI was not sure if she saw the commander of the gendarmerie or the
commander of the army. The Chamber has already expressed its doubts concerning
the credibility and reliability of Witness LAM’s testimony. Moreover, Imanishimwe’s
testimony concerning his absence from Nyamasheke on 13 April 1994 is corroborated
by Bagambiki, and Imanishimwe Defence Witnesses PCH and PCI.
e. Kadasomwa
(i) Allegations
590. Prosecution Witness LAW stated that after the death of President
Habyarimana, her neighbours in Gisuma commune began looting and chasing Tutsis
from their homes with machetes and spears. 1522 The witness stated that she and other
Tutsis took refuge in the forest. 1523 According to the witness, on 14 April 1994 when
the Tutsi refugees in the forest realised that Interahamwe were becoming more active,
they decided to head for the stadium in Kamembe because they had heard that
everyone was seeking refuge there. 1524
591. Witness LAW stated that Interahamwe pursued her and about 400 or 500 other
refugees as they tried to flee to the stadium. 1525 The witness stated that the refugees
encountered four soldiers with black berets and green military uniforms in a vehicle
near Kamembe at the Kadasomwa River bridge which led to the stadium. 1526 The
witness stated that two armed soldiers alighted from the vehicle and told the refugees
to sit down near the road. 1527 The witness stated that the other two soldiers drove off
but that those who remained guarded the refugees and asked two young people to
count the refugees. 1528 The witness stated that after approximately thirty minutes,
around 11:30 a.m., the two soldiers returned with Bagambiki. 1529
1521
See para. 314.
T. 28 February 2001 pp. 81-83, 129, 130.
1523
T. 28 February 2001 pp. 83, 97, 130, 131.
1524
T. 28 February 2001 pp. 86-88, 97-98, 116; T. 1 March 2001 p. 19.
1525
T. 28 February 2001 pp. 87, 88, 91, 95, 135, 138; T. 1 March 2001 pp. 11-12.
1526
T. 28 February 2001 pp. 88, 94, 96; T. 1 March 2001 pp. 4-5.
1527
T. 28 February 2001 pp. 88, 98-99.
1528
T. 28 February 2001 pp. 89, 90-91, 100; T. 1 March 2001 p. 11.
1529
T. 28 February 2001 pp. 91, 94, 100; T. 1 March 2001 pp. 12, 16.
1522
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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592. According to the witness, Bagambiki asked the refugees where they were
going and why they did not go to Lake Kivu. 1530 The witness recalled that Bagambiki
asked, “Don’t you know what your parents did? Where is Habyarimana now?”1531 The
witness stated that Bagambiki told the refugees to go to their priest, and got back in
his vehicle. 1532 The witness stated that, a short while after Bagambiki drove away with
all four of the soldiers, the soldiers shot into the air. 1533 The witness testified that after
the soldiers shot into the air, the Interahamwe came out from the bushes and attacked
the refugees with machetes and spears. 1534 The witness stated that the Interahamwe
killed her husband, her three year old child, and some others during the attack but that
she and other refugees were able to escape. 1535
593. The witness stated that she had not seen Bagambiki before this event but that
she knew that it was he because other people said that they were happy because the
prefect had arrived. 1536 The witness stated that she did not recognise Bagambiki at
Kadasomwa because she “had lost” her “mind.”1537 The witness stated that she would
not be able to recognise Bagambiki if she saw him again. 1538
(ii) Findings
594. The Chamber accepts that, after the death of President Habyarimana,
Prosecution Witness LAW and her Tutsi neighbours were chased from their homes by
Interahamwe and that they found refuge in the forest. The Chamber also accepts that,
on 14 April 1994, Witness LAW and a large group of refugees, who were being
pursued by the Interahamwe, left the forest and tried to seek refuge at Kamarampaka
Stadium. The Chamber also accepts that, just before the refugees reached Kamembe,
they were stopped by four soldiers and that two soldiers then left and returned with
Bagambiki while the other two guarded the refugees. Though the witness was not
familiar with Bagambiki and could not identify him in court, the Chamber accepts that
other refugees at the time said that they were happy because the prefect had arrived.
The Chamber also finds that, after Bagambiki briefly addressed the refugees, he and
the soldiers left and a short while later the soldiers shot into the air. The Chamber
finds that after the soldiers left the refugees, the Interahamwe who had been following
the refugees emerged from the bush and killed some of them while others fled.
595. The Chamber, however, lacks sufficient reliable evidence to determine
whether Bagambiki played any role in the attack on the refugees. In reaching this
conclusion, the Chamber notes that the Interahamwe who attacked the refugees had
been pursuing them since they left the forest. There is also no indication that
Bagambiki was aware of the presence of the Interahamwe, who were hiding while he
spoke with the refugees.
1530
T. 28 February 2001 pp. 91-92.
T. 28 February 2001 p. 92.
1532
T. 28 February 2001 p. 101.
1533
T. 28 February 2001 pp. 92-93, 105; T. 1 March 2001 p. 16.
1534
T. 28 February 2001 pp. 92-93, 95, 113.
1535
T. 28 February 2001 pp. 92-93, 95, 96; T. 1 March 2001 p. 19, 21.
1536
T. 28 February 2001 p. 93.
1537
T. 28 February 2001 p. 105.
1538
T. 28 February 2001 pp. 93-94, 105-106.
1531
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f. Nyarushishi Camp
(i) Allegations
596. Prosecution Witness LAB testified that, on 23 June 1994, Bagambiki,
Imanishimwe, Eugene Karekezi, Edouard Bandetse, Callixte Nsabimana, and
Fulgence Nsengumuremye met with members of the general public at
Bamenyayundi’s house. 1539 According to the witness, at the meeting Bagambiki stated
that the people should kill the Tutsis at Nyarushishi and then pretend to be Tutsis
when the French arrived. 1540 The witness stated that, on the morning of 24 April 1994,
attackers from several communes, including the Bugarama Interahamwe, surrounded
Nyarushishi while Bagambiki and Imanishimwe were at a nearby school. 1541 The
witness stated, that after a few minutes when five people had already been killed, a
Gisuma commune vehicle arrived, and the attackers were informed that the French
had already arrived and that they should leave through the bushes and avoid using the
roads. 1542
597. Prosecution Witness LAJ testified that he and 3,000 other attackers surrounded
the Nyarushishi refugee camp in order to launch an attack against the Tutsi refugees
there. 1543 The witness stated that they did not attack because Bavugamenshi of the
gendarmerie told them to stop the attack and leave because the French were already in
Kigoma. 1544 The witness stated that he did not see Bagambiki on that day, although he
had heard that Bagambiki was in the company of Bavugamenshi. 1545
598. Prosecution Witness LBH testified that he was one of the first refugees to
arrive at Nyarushishi on 11 May 1994 when he and others were transferred there from
Kamarampaka Stadium and that he remained at Nyarushishi until the end of July
1994.1546 The witness explained that his bus was accompanied by soldiers “under
Imanishimwe” and by members of the presidential guard and that, as soon as they got
off the buses, the soldiers killed some of the refugees. 1547 The witness stated that
people from Shangi parish, Miblilizi parish, and students from Ntendezi later arrived
at the camp. 1548
599. Witness LBH testified that soldiers, gendarmes, presidential guards, and
Interahamwe removed refugees from the Nyarushishi camp. 1549 The witness stated
that, prior to the arrival of the French, the Interahamwe and CDR, recognisable by
their uniforms, attacked the camp frequently. 1550 He testified that, on 23 June 1994 at
4:00 a.m., the camp was surrounded by Interahamwe and CDR members armed with
1539
T. 24 January 2001 pp. 34-35.
T. 24 January 2001 pp. 35, 36.
1541
T. 24 January 2001 pp. 36, 38.
1542
T. 24 January 2001 pp. 36-37.
1543
T. 23 October 2000 pp. 113, 114.
1544
T. 23 October 2000 p. 115.
1545
T. 23 October 2000 p. 116.
1546
T. 14 February 2001 p. 72; T. 19 February 2001 p. 8.
1547
T. 19 February 2001 p. 21.
1548
T. 14 February 2001 p. 73.
1549
T. 13 February 2001 pp. 112-113; T. 19 February 2001 pp. 101-102.
1550
T. 14 February 2001 p. 75.
1540
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machetes and clubs. 1551 The witness stated that, at about 5:00 a.m., three
ONATRACOM buses full of gendarmes sent by Bavugamenshi arrived at the camp
and took up positions to ensure the refugees’ security and prevent the attack. 1552 The
witness stated that at 5:00 p.m. the French troops arrived with Bagambiki. 1553 The
witness testified that prior to this there was only one gendarme at the camp and that he
did nothing to prevent the soldiers and Interahamwe from selecting and killing the
refugees. 1554
600. Witness LBH testified that the Red Cross provided the refugees at the camp
with food, utensils, and drinking water and that there were always some
representatives of the Red Cross at the camp. 1555 The witness stated that they were
also provided with medical facilities. 1556 The witness estimated that after people
arrived from Kibuye and Kigali, there were 22,000 people in the camp, which was
approximately one kilometre in length. 1557
601. Prosecution Witness LY stated that after repeated requests from church and
Red Cross authorities to remedy the deteriorating hygienic conditions at the stadium,
the prefectural authorities gradually transferred the refugees to a camp at Nyarushishi,
which was “well designed” and had toilets, plenty of water, and small tents to shelter
the refugees. 1558
602. Bagambiki testified that, on 11 May 1994, he transferred the refugees from
Kamarampaka Stadium to Nyarushishi after consultations with the gendarmerie,
church authorities, and the ICRC.1559 Bagambiki stated that Bavugamenshi provided a
contingent of gendarmes to escort the buses transporting the refugees. 1560 Bagambiki
stated that the conditions at Nyarushishi were far better than the conditions at
Kamarampaka Stadium because there was plenty of water, each family had a personal
shelter, and organisations such as CARITAS, the ICRC, and Doctors Without Borders
provided medical care, food, and blankets. 1561 Bagambiki stated that Bavugamenshi
stationed between fifty and sixty gendarmes at the camp day and night to protect the
refugees and that no one was mistreated or killed at the camp. 1562 Bagambiki stated
that Operation Turquoise arrived in Cyangugu on 23 June 1994 and that, at this time,
there were about 10,000 refugees at the camp. 1563 Bagambiki also stated that he did
not order an attack on the refugees at the camp. 1564
603. Imanishimwe stated that the gendarmes and local authorities transferred the
refugees from Kamarampaka Stadium to Nyarushishi over a two day period in May
1551
T. 14 February 2001 pp. 76-77; 19 February 2001 pp. 28-29
T. 14 February 2001 p. 76; T. 19 February 2001 pp. 11, 21, 22, 28.
1553
T. 14 February 2001 p. 77; T. 19 February 2001 pp. 28-30, 103.
1554
T. 19 February 2001 p. 23.
1555
T. 14 February 2001 pp. 74-75; T. 19 February 2001 pp. 9-11.
1556
T. 19 February 2001 p. 11.
1557
T. 14 February 2001 p. 75.
1558
T. 26 February 2001 pp. 11-12
1559
T. 1 April 2003 pp. 32, 34.
1560
T. 1 April 2003 p. 34.
1561
T. 1 April 2003 p. 34-35.
1562
T. 1 April 2003 pp. 35, 36.
1563
T. 1 April 2003 pp. 35-36.
1564
T. 1 April 2003 p. 35.
1552
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1994 but that he did not participate in the transfer. 1565 Imanishimwe stated that he was
not aware that soldiers, gendarmes, and presidential guards would periodically come
to Nyarushishi and take refugees away. 1566
604. Bagambiki Defence Exhibits 25A-C contain excerpts of a discussion between
the French Minister of Defence and a Tutsi refugee at the Nyarushishi camp on 29
June 1994. 1567 Bagambiki identified the Tutsi refugee as Daniel Kamatali. 1568 In the
excerpt, Kamatali indicates that he was among the first to arrive at the Nyarushishi
camp on 11 May 1994. 1569 Kamatali also stated that the refugees were well guarded
by the gendarmerie. 1570 Kamatali further stated that attackers came on only one
occasion at the beginning but that the gendarmes pushed them back. 1571
605. Bagambiki Defence Witness FOE testified that he saw Red Cross personnel at
Nyarushishi on 15 or 16 June 1994 when he visited the camp. 1572 The witness stated
that he heard from a friend that Bagambiki and Bavugamenshi visited the camp
regularly. 1573
606. Bagambiki Defence Witness JNQ testified that he went to the Nyarushishi
camp and that the situation there was “good”, as refugees were being guarded by
gendarmes from the Cyangugu squadron and there was water and supplies. 1574 The
witness stated that he did not observe killings at the Nyarushishi camp. 1575 The
witness noted that the Red Cross was present at the camp. 1576 The witness testified
that, at the end of June 1994, he heard about an attack that was organised to kill the
refugees at the Nyarushishi camp. 1577 The witness stated that he could only recall
seeing militia men with clubs return from Nyarushishi but that he did not know who
incited or organised the attack. 1578
607. Bagambiki Defence Witness Munyangabe stated that the Red Cross organised
the transfer of the refugees from Kamarampaka Stadium to the Nyarushishi camp in
cooperation with the prefectural authorities. 1579 According to what the witness heard
from the French Turquoise mission, Cyangugu was able to save more Tutsis who
were being pursued than any other prefecture. 1580
1565
T. 22 January 2003 pp. 34-35.
T. 22 January 2003 p. 35.
1567
T. 1 April 2003 pp. 36-37.
1568
T. 1 April 2003 p. 37.
1569
T. 2 April 2003 p. 2.
1570
T. 2 April 2003 pp. 3-4.
1571
T. 2 April 2003 p. 4.
1572
T. 11 February 2003 p. 15.
1573
T. 11 February 2003 p. 15.
1574
T. 11 March 2003 p. 55; T. 12 March 2003 p. 25.
1575
T. 11 March 2003 p. 55.
1576
T. 11 March 2003 p. 55.
1577
T. 12 March 2003 p. 25.
1578
T. 12 March 2003 p. 25.
1579
T. 24 March 2003 pp. 39-40.
1580
T. 24 March 2003 p. 40.
1566
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608. Bagambiki Defence Witness Graff testified that Nyarushishi was a few
kilometres away from the Shagasha tea factory. 1581 The witness noted that this area
has many steep slopes and valleys. 1582 The witness also testified about the existence of
a water system at Nyarushishi, which, according to people he met in 2003, existed in
1994.1583 The witness stated that the camp had no natural or artificial defence of any
kind but noted that compared to the other sites, including the parishes, this site might
be easier to defend because it was in a valley and there was only one access road,
which could be defended from the top of the hill without having to use built-up
defences. 1584
(ii) Findings
609. The Chamber finds that prefectural authorities transferred the refugees from
Kamarampaka Stadium to Nyarushishi on 11 and 12 May 1994. The refugees were
transferred by ONATRACOM buses and were protected by gendarmes. Other
refugees were also transferred to Nyarushishi around that time from other places such
as Shangi and Mibilizi parishes.
610. The Chamber finds that at Nyarushishi the refugees had better conditions and
received assistance, including personal shelters, water, food, and medical care.
611. The Chamber finds that gendarmes guarded the camp and pushed back at least
one attempted attack between 11 May 1994 and the arrival of the French Operation
Turquoise forces on 23 June 1994.
612. The Chamber lacks sufficient reliable evidence to determine if soldiers,
gendarmes, or Interahamwe removed refugees from the camp. The Chamber notes
that Prosecution Witness LBH testified about soldiers killing refugees on their arrival
at Nyarushishi and about soldiers, presidential guards, and Interahamwe removing
and killing refugees. The Chamber, however, recalls that it did not find credible or
reliable Witness LBH’s account of those practices at Kamarampaka Stadium and thus
cannot accept his testimony about such practices at Nyarushishi without
corroboration.
613. The Chamber lacks sufficie nt reliable evidence to find that Bagambiki and
Imanishimwe ordered the killing of refugees at the Nyarushishi camp because the
evidence of Prosecution Witnesses LAB and LAJ is not adequately corroborated. The
Chamber has previously determined that the testimony of these witnesses lacks
credibility and reliability and, as such, views this evidence with suspicion.
g. Conclusion
(i) Findings on paragraphs 3.17 and 3.18
1581
T. 26 March 2003 p. 50.
T. 26 March 2003 p. 50.
1583
T. 26 March 2003 pp. 50, 51.
1584
T. 26 March 2003 p. 51.
1582
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614. The Chamber finds that Bagambiki and Imanishimwe received names of
people with suspected ties to the RPF from assailants who were threatening to attack
Kamarampaka Stadium. The Chamber finds that Bagambiki and Imanishimwe
discussed these names with other members of the prefectural security council and then
removed sixteen Tutsis and one Hutu, who was a local leader of a political opposition
party, from the stadium as well as from Cyangugu Cathedral on 16 April 1994, as
discussed in section _._._. A majority of the Chamber, Judge Ostrovsky dissenting,
finds that Bagambiki and Imanishimwe came to the Gashirabwoba football field on 11
April 1994 looking for Ephrem and Côme Simugomwa and removed Côme
Simugomwa, who was a local leader of a political opposition party. Côme
Simugomwa was later found dead.
615. The Chamber lacks sufficient evidence to determine whether Bagambiki or
Imanishimwe participated in the preparation of lists for the purpose of eliminating
these individuals. The Chamber lacks sufficient reliable evidence to determine
whether Bagambiki or Imanishimwe gave these lists to Interahamwe. The Chamber
finds that soldiers participated in the execution of the arrests of the listed individuals
at Cyangugu Cathedral, Kamarampaka Stadium, and at the Gashirabwoba football
field.
616. The Chamber notes that there is evidence that lists were used during the events
at Mibilizi parish on 20 April 1994 and at Shangi parish on 26 April 1994. The
Chamber lacks sufficient reliable evidence to determine whether Bagambiki or
Imanishimwe played any role in the creation of these lists.
(ii) Findings on paragraph 3.26
617. A majority of the Chamber, Judge Williams dissenting, lacks sufficient
reliable evidence to determine whether Bagambiki ordered soldiers or Interahamwe to
kill members of the Tutsi population or certain Hutus in the opposition. Judge
Williams is of the view that the only reasonable inference to be drawn from the
evidence surrounding the Gashirabwoba massacre is that Bagambiki intentionally sent
soldiers and factory guards to the field with full knowledge and consent that the
soldiers and factory guards would participate in the attack.
(iii)Findings on paragraph 3.27
618. The Chamber finds that, on 15 April 1994, Bourgmestre Kamana, commune
police, and several conseillers from Kagano commune participated in the attack at
Nyamasheke parish. The Chamber finds that, on 18 April 1994, one of the gendarmes
guarding Mibilizi parish distributed his grenades to the attackers. The Chamber also
finds that gendarmes mistreated the refugees taken from Shangi parish on 26 April
1994 at a gendarmerie camp.
619. The Chamber will determine whether Bagambiki had a superior-subordinate
relationship with these individuals in its legal findings.
(iv) Findings on paragraph 3.28
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620. The Chamber finds that Bagambiki, as prefect, had the duty of ensuring the
protection and safety of the civilian population within the prefecture of Cyangugu. 1585
The Chamber will determine in its legal findings to what extent a failure by
Bagambiki to fulfil his duty under the Rwandan Law on the Organisation and
Function of the Prefecture to ensure the protection and safety of these refugees may
give rise to criminal responsibility under Article 6(1) of the Statute.
(v) Findings on paragraphs 3.30 and 3.31
621. The Chamber finds that Interahamwe and members of the local population
participated in the massacres of the civilian Tutsi population and of Hutu political
opponents in Cyangugu. The Chamber finds beyond a reasonable doubt that soldiers
assisted these groups during the massacre at Gashirabwoba on 12 April 1994. The
Chamber finds that these massacres and other killings resulted in the deaths of
massive numbers of mostly Tutsi victims.
1585
Bagmabiki Defence Exhibit 3(i), Law on the Organization and Function of the Prefectures, art. 8.
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III. LEGAL FINDINGS
A. Criminal Responsibility
622. In the Semanza Judgement, this Chamber articulated the elements of the forms
of criminal participation and responsibility under Article 2(3) and Articles 6(1) and
6(3) of the Statute. 1586 Those elements are adopted for the purposes of this case.
623. If an accused may be held criminally responsible for a crime under either
Article 6(1) or Article 6(3), the Chamber will enter a conviction on the form of
responsibility that best characterises the accused’s role in the crime. 1587 In such an
event, the Chamber will consider the other form of responsibility in sentencing in
order to reflect the totality of the accused’s culpable conduct. 1588
624. In this section, the Chamber will determine whether Bagambiki and
Imanishimwe bear individual criminal responsibility as a superior under Article 6(3)
or for “ordering”, under Article 6(1), which also requires a superior-subordinate
relationship. 1589 The Chamber need not consider whether Ntagerura bears criminal
responsibility as a superior over civil servants and officials of the Ministry of
Transport and Communications given its decision not to consider paragraph 11 of the
Ntagerura Indictment in making factual and legal findings. 1590
625. The Chamber will also consider the nature of Bagambiki’s duty under
Rwandan law to ensure the protection and safety of the civilian population within
Cyangugu prefecture and whether he bears any criminal responsibility for a failure to
meet that duty.
626. The Chamber will assess the nature and form of criminal responsibility and
participation under Articles 2(3) and 6(1) for each of the accused in its subsequent
legal findings.
1. Superior Responsibility
627. The following three elements must be proven to hold a civilian or a military
superior criminally responsible pursuant to Article 6(3) 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. 1591
1586
See Semanza, Judgement (TC), paras. 375-407.
See Naletilic and Martinovic, Judgement (TC), paras. 78-81. See also Krnojelac, Judgement (TC),
para. 173.
1588
Naletilic and Martinovic, Judgement (TC), para. 81. See also Celebici, Judgement (AC), para. 745;
Aleksovski, Judgement (AC), para. 183.
1589
See Semanza, Judgement (TC), para. 382.
1590
See supra para. 42, 69.
1591
Semanza, Judgement (TC), para. 400.
1587
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168
628. The Chamber stated in the Semanza Judgement that a superior-subordinate
relationship is established by showing a formal or informal hierarchical
relationship. 1592 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. 1593 The
superior must have had effective control over the subordinates at the time the offence
was committed. 1594 Effective control means the material ability to prevent the
commission of the offence or to punish the principal offenders. 1595 This requirement is
not satisfied by a showing of general influence on the part of the accused. 1596
629. 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. 1597
630. A superior may incur responsibility only for having failed to take “necessary
and reasonable measures” to prevent or punish a crime under the Statute committed
by subordinates. 1598 The degree of the superior’s effective control guides the
assessment of whether the individual took reasonable measures to prevent, stop, or
punish a subordinates’ crime. 1599
a. Bagambiki
631. The indictment alleges that Bagambiki had de jure and/or de facto authority
over sub-prefects, bourgmestres, all government employees in the prefecture,
gendarmes, and soldiers. 1600 Bagambiki is also alleged to have been a superior to
Interahamwe, given that paragraph 3.26 of the indictment against him states that he
ordered Interahamwe to commit crimes, which could be found only upon proof of a
superior-subordinate relationship.
632. In its factual findings, the Chamber has found that several gendarmes, soldiers,
and officials from Kagano commune, including Bourgmestre Kamana, Kagano
commune policemen, and conseillers of several sectors in Kagano commune, were
present during or participated in the killing or mistreatment of civilian, mostly Tutsi,
refugees. The Chamber will assess Bagambiki’s superior responsibility for the acts of
each of these perpetrators. However, the Chamber need not assess whether Bagambiki
was a superior to sub-prefects or to Interahamwe. The Chamber lacks sufficient
reliable or credible evidence to determine what role, if any, sub-prefects played in the
1592
Semanza, Judgement (TC), para. 415.
Semanza, Judgement (TC), para. 402.
1594
Semanza, Judgement (TC), para. 402.
1595
Semanza, Judgement (TC), para. 402.
1596
Semanza, Judgement (TC), para. 402.
1597
Semanza, Judgement (TC), para. 405.
1598
Semanza, Judgement (TC), para. 406.
1599
Semanza, Judgement (TC), para. 406.
1600
Bagambiki/Imanishimwe Indictment, paras. 3.8, 3.9, 3.26, 3.27.
1593
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underlying crimes. The Chamber also lacks sufficient reliable or credible evidence to
find that Bagambiki ordered Interahamwe to participate in the killings as alleged in
paragraph 3.26 of the indictment against him.
(i) Gendarmes
633. The Chamber has found that, on 18 April 1994, one of the gendarmes guarding
Mibilizi parish distributed his grenades to attackers. The Chamber has also found that,
on 26 April 1994, gendarmes mistreated refugees from Shangi parish at a gendarmerie
camp.
634. Under Rwandan law, Bagambiki, as prefect, had the ability to requisition
gendarmes to participate in operations for the maintenance and the re-establishment of
order in the prefecture. 1601
635. The Chamber notes that Article 2 of the Rwandan law on the Creation of the
Gendarmerie provides that the gendarmerie falls under the Ministry of Defence and
that its members are subject to military decisions, disciplinary measures, and
jurisdiction. 1602 Article 35 of the Rwandan law on the gendarmerie provides that the
head of the gendarmerie leads the operations necessary to execute a request and
determines the importance and the nature of the means necessary to execute a
request. 1603 Article 28 of the Rwandan law on the gendarmerie states that members of
the gendarmerie are under the exclusive authority of their ranking superiors during the
execution of missions. 1604 Article 39 of the Rwandan law on the gendarmerie states
that, during the execution of a request, the gendarmerie must maintain contact with
the requesting administrative authority and inform him of the means employed to
execute the request and that the administrative authority must transmit to the
gendarmerie all useful information to accomplish the mission. 1605 The Chamber
further notes that Article 10 of the Rwandan Ministerial Instruction on the
Maintenance and Re-establishment of Order states that a civilian authority cannot
1601
See Bagambiki Defence Exhibit 3(ii), Ministerial Instruction No. 01/02, Maintenance and Reestablishment of Order, arts. 15, 16; Bagambiki Defence Exhibit 3(iii), Decree-Law, Creation of the
Gendarmerie, Articles 24, 29-36.
1602
Bagambiki Defence Exhibit 3(iii), Decree-Law, Creation of the Gendarmerie, art. 2 (“Le Corps de
la Gendarmerie Nationale relève du Ministère de la Défense Nationale. Les membres de la
Gendarmerie Nationale sont soumis aux arrêtés, aux règlements de discipline et aux juridictions
militaires.”).
1603
Bagambiki Defence Exhibit 3(iii), Decree-Law, Creation of the Gendarmerie, art. 35 (“Les
opérations nécessaire à l’exécution des réquisitions sont menées par les Chefs de la Gendarmerie
Nationale qui, sous leur responsabilité, déterminent l’importance et la nature des moyens à mettre en
oeuvre.”).
1604
Bagambiki Defence Exhibit 3(iii), Decree-Law, Creation of the Gendarmerie, Art. 28 (“Les
membres de la Gendarmerie Nationale sont placés pour l’exécution de leur mission, sous l’autorité
exclusive de leurs supérieurs hiérarchiques.”).
1605
Bagambiki Defence Exhibit 3(iii), Decree-Law, Creation of the Gendarmerie, art. 39 (“Au cours de
l’exécution d’une réquisition, l’autorité de Gendarmerie doit se maintenir en liaison avec l’autorité
administrative requérante et l’informer, à moins de force majeure, des moyens d’action qu’elle se
propose de mettre en œuvre. De son côté, l’autorité administrative doit transmettre à l’autorité de
Gendarmerie toutes les informations utiles à l’accomplissement de sa mission.”).
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interfere in the command of the unit which that authority has requested. 1606 Article 11
of this ministerial instruction further states that the head of the forces which have been
requested to provide order is responsible for the execution of the request and is the
sole judge of the means necessary to execute the mission, pursuant to the general
instructions of the civilian authority. 1607
636. After reviewing the relevant provisions of Rwandan law, the Chamber is not
convinced that Bagambiki’s ability to requisition gendarmes gave him de jure
authority to give orders to them during the execution of an operation. The law
indicates that, once a request is made, the prefect is required to co-operate with the
officer in charge of the mission rather than to act as his superior. 1608 The law contains
no provision indicating that a prefect had the legal authority as a superior to prevent a
gendarme from committing a crime by giving an order during the execution of an
operation or to punish a gendarme who had committed a crime during the execution
of an operation.
637. The Chamber is also not satisfied that there is sufficient reliable evidence to
indicate that Bagambiki had de facto authority over the gendarmes. While there is
ample evidence that Bagambiki requisitioned gendarmes to provide security at a
number of sites, there is insufficient evidence that he maintained any control over how
these gendarmes carried out their mission upon deployment.
638. As the Prosecutor did not establish the existence of a superior-subordinate
relationship between Bagambiki and the gendarmes in Cyangugu, it is unnecessary
under Article 6(3) of the Statute to consider whether he knew or had reason to know
about the criminal acts of these principal perpetrators or whether he failed to take the
necessary and reasonable measures to prevent such acts or to punish the perpetrators.
639. The Chamber further notes that the absence of a superior-subordinate
relationship between a civilian authority and the gendarmes would not absolve the
civilian authority of criminal liability if he requisitioned gendarmes with full
knowledge and intention that this requisition would result in the commission of a
crime. This form of criminal participation, however, would be better characterized as
aiding and abetting under Article 6(1). In the present case, the Chamber lacks
sufficient evidence to find that Bagambiki requested gendarmes to go to Mibilizi
parish with his knowledge, consent, or intention that one of them would distribute
grenades to attackers. The Chamber also lacks sufficient evidence to find that
Bagambiki or Sub-Prefect Munyangabe requested gendarmes to go to Shangi parish
with the intention that they mistreat refugees.
(ii) Soldiers
1606
Bagambiki Defence Exhibit 3(ii), Ministerial Instruction No. 01/02, Maintenance and Reestablishment of Order, art. 10 ([L’autorité civile] ne peut en aucun cas s’immiscer dans le
commandement des Unités dont elle a sollicité le concours ou qu’elle a requises.”).
1607
Bagambiki Defence Exhibit 3(ii), Ministerial Instruction No. 01/02, Maintenance and Reestablishment of Order, art. 11 (“Les responsables des Forces de l’ordre sont responsables de
l’exécution des réquisitions. Le but à atteindre ayant été fixé sans ambiguïté, ils sont seuls juges des
moyens à mettre en œuvre, tout en se conformant aux instructions générales de l’autorité civile.”).
1608
See Bagilishema, Judgement (TC), para. 182.
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640. The Chamber has found that, on 12 April 1994, soldiers participated in the
attack against the refugees at the Gashirabwoba football field and that, between April
and June 1994, they participated in the arrest, detention, mistreatment, and execution
of civilians at the Karambo military camp.
641. Under Rwandan law, Bagambiki, as prefect, had a measure of authority to
requisition soldiers to participate in operations for the maintenance and reestablishment of order in the prefecture. 1609 However, the Chamber is not convinced
that Bagambiki’s ability to requisition soldiers gave him de jure authority over them.
642. The Chamber is also not satisfied that there is sufficient evidence that
Bagambiki exercised de facto authority over the soldiers from the Karambo camp.
The Chamber recalls that Imanishimwe stated that there was no relationship of
subordination between Karambo camp and the prefecture. 1610 There is no reliable
evidence reflecting that Bagambiki issued orders to or commanded soldiers. In
situations where Bagambiki was seen in the company of soldiers, Imanishimwe was
also generally present.
643. As the Prosecutor did not establish the existence of a superior-subordinate
relationship under Article 6(3) between Bagambiki and the soldiers of the Karambo
camp, it is unnecessary to consider whether Bagambiki knew or had reason to know
about their criminal acts or whether he failed to take the necessary and reasonable
measures to prevent such acts or to punish the perpetrators.
(iii) Kagano Commune Officials
644. On 15 April 1994, Bourgmestre Kamana, Kagano commune policemen, and
several conseillers from Kagano commune participated in the attack on refugees at
Nyamasheke parish.
645. The Chamber recalls that Bagambiki testified that as prefect he was the direct
supervisor of the bourgmestres, that he assessed them on an annual basis, and that he
could sanction them, which is confirmed by the laws on the organisation and function
of the prefecture and the commune. 1611 The Chamber notes that Bagambiki’s effective
control over Kamana is demonstrated by his suspension of Kamana in the aftermath of
1609
Bagambiki Defence Exhibit 3(ii), Ministerial Instruction No. 01/02, Maintenance and Reestablishment of Order, arts. 15, 16. The Chamber notes that Bagambiki Defence Witness
Ndindiliyimana, the former chief of the general staff of the Rwandan gendarmerie, stated that a prefect
cannot requisition the army when gendarmes are available, noting further that where gendarmes are
insufficient, the commander of the gendarmerie, rather than the prefect, requisitions the army for
soldiers. T. 18 February 2003 p. 17. See also Bagambiki Defence Exhibit 3(ii), Ministerial Instruction
No. 01/02, Maintenance and Re-establishment of Order, art. 14 (“ Le maintien de l’ordre est assuré
essentiellement par la Gendarmerie Nationale. L’Armée Rwandaise intervient dans le cas prévu à
l’article 7 du décret-loi portant création de la Gendarmerie.”); Bagambiki Defence Exhibit 3(ii),
Decree-Law, Creation of the Gendarmerie, art. 7 (“Tout Commandant d’unité on de détachement de
Gendarmerie peut, lorsque ses moyens se révèlent insuffisants, requérir l’assistance de détachements
de l’Armée Rwandaise.”).
1610
T. 22 January 2003 p.15.
1611
T. 27 March 2003 p. 22. See also Bagambiki Defence Exhibit 3(i), Law on the Organisation and
Function of the Prefecture, art. 8(4); Bagambiki Defence Exhibit 18, Law on the Organisation of the
Commune, arts. 46, 47, 57, 80, 83, 86, 94.
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the attacks against the refugees at Nyamasheke. The law on the organisation of the
commune provides that commune police are subordinate to the bourgmestre and that
the prefect has the authority to requisition the commune police and place them under
his direct authority. 1612 The Chamber notes that Bagambiki made no attempt to refute
that he had effective control over Kagano commune police. The Chamber therefore
finds that Bagambiki was a superior with effective control over Bourgmestre Kamana
and the Kagano commune police.
646. The Chamber is not convinced, however, that Bagambiki had de jure authority
over the conseillers in Kagano commune. In Bagilishema, the Trial Chamber
described conseillers as members of an elected advisory body of sectoral
representatives. 1613 The Trial Chamber in Bagilishema stated that conseillers were
clearly not de jure subordinates of the bourgmestre in the sense of Article 6(3)
because the applicable legislation indicated that “the bourgmestre is responsible,
generally, for executing the decisions of the Communal Council.”1614 The Chamber
further notes that the Prosecutor has tendered no evidence indicating a superiorsubordinate relationship between a prefect and conseillers and thus agrees with the
conclusion reached on this point in Bagilishema. The Chamber notes that no provision
in the laws on the organisation of the commune or the prefecture indicates that a
different conclusion could be reached concerning the relationship between a prefect
and conseillers. Moreover, pursuant to Rwandan law, neither a bourgmestre nor a
prefect had the authority in 1994 to terminate the mandate of a conseiller or to
autonomously take disciplinary measures against him. 1615 These officials possessed
the authority only to consider whether his mandate should be terminated in a series of
committee meetings provided for by statute and to forward the committees’
recommendations to the Minister of the Interior. 1616 The Chamber also has no reliable
evidence that Bagambiki exercised effective control over the conseillers in Kagano
commune.
647. The Chamber must now determine whether Bagambiki had knowledge or
reason to know that Bourgmestre Kamana and the Kagano commune police were
about to or had committed a criminal act.
648. In determining whether a superior, despite his pleas to the contrary, must have
possessed the requisite knowledge of the offences, the following indicia are relevant:
(a) the number of illegal acts; (b) the type of illegal acts; (c) the scope of illegal acts;
(d) the time during which the illegal acts occurred; (e) the number and type of troops
involved; (f) the logistics involved; (g) the geographical location of the acts; (h) the
widespread occurrence of the acts; (i) the tactical tempo of the operations; (j) the
modus operandi of similar illegal acts; (k) the officers and staff involved; and (l) the
location of the commander at the time. 1617
1612
Bagambiki Defence Exhibit 18, Law on the Organisation of the Commune, arts. 104, 108.
Bagilishema, Judgement (TC), para. 166.
1614
Bagilishema, Judgement (TC), para. 166, quoting Law on the Organisation of the Commune, art.
58. The Chamber notes that the legal provision cited in Bagilishema is also Bagambiki Defence Exhibit
18.
1615
Bagambiki Defence Exhibit 18, Law on the Organisation of the Commune, art. 10bis.
1616
Bagambiki Defence Exhibit 18, Law on the Organisation of the Commune, art. 10bis.
1617
Bagilishema, Judgement (TC), para. 968; Celebici, Judgement (TC), para. 386.
1613
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649. The Chamber recalls that Kagano commune police participated in an attack
against the refugees at Nyamasheke parish on 13 April 1994, which did not result in
casualties. The Chamber also recalls that, on 15 April 1994, Bourgmestre Kamana and
Kagano commune police participated in a large-scale attack against the parish, which
resulted in the massacre of a large number of refugees. During the attack, Bagambiki
was fifty kilometres away, participating in the transfer of refugees from Cyangugu
Cathedral to Kamarampaka Stadium. The Chamber has no evidence that Bagambiki
was informed while Bagambiki visiting Nyamasheke parish with Kamana and others
on 13 April 1994 that Kagano commune police participated in the attack on that date.
There is also no indication in the evidence that Bagambiki was informed of the 15
April 1994 attack at Nyamasheke until after it was completed, which is supported by
the evidence of his involvement in the transfer of refugees from the cathedral to the
stadium. Given that Bourgmestre Kamana and the Kagano commune police did not
participate in a large number of attacks and that there is no other reliable indication
that Bagambiki was informed or aware that they were inclined to participate in such
attacks, the Chamber accepts that Bagambiki did not have advance knowledge of their
involvement in the 15 April 1994 attack, such that he could have prevented it. The
Chamber, however, finds that Bagambiki should have known that Bourgmestre
Kamana participated in this attack, given that items looted from Nyamasheke were
found in Kamana’s possession. The Chamber lacks sufficient reliable evidence to
determine whether Bagambiki should have known about the involvement of Kagano
commune police in the 15 April 1994 attack, given the limited testimony about their
involvement in the attacks against Nyamasheke parish, the limited number of attacks
in which they participated, and the fact that they did not report directly to the prefect
unless specially requisitioned by him.
650. The Chamber finds that the Prosecutor did not prove beyond a reasonable
doubt that Bagambiki failed to take necessary and reasonable measures to punish
Kamana for his role in the massacre. The Chamber notes that Bagambiki suspended
Kamana, which was the extent of the disciplinary measures available to a prefect
under the law on the organisation of the commune. 1618 A bourgmestre’s suspension
involves a disciplinary proceeding allowing the bourgmestre to explain his actions and
appeal to higher authorities. 1619 As such, a suspension is one component of a larger
process involving authorities in addition to and beyond the prefect. The Chamber has
no evidence about what followed the suspension or if Bagambiki took other actions as
well. The Prosecutor submitted no evidence indicating what other possible forms of
punishment were available to Bagambiki, as prefect, and indicating that Bagambiki
failed to take these measures.
b. Imanishimwe
651. The indictment alleges that Imanishimwe’s subordinates included all army
units in Cyangugu. 1620
652. The Chamber finds that Imanishimwe had both de jure authority and effective
control over the soldiers of the Karambo military camp in Cyangugu. The Chamber
1618
Bagambiki Defence Exhibit 18, Law on the Organisation of the Commune, art. 50.
Bagambiki Defence Exhibit 18, Law on the Organisation of the Commune, arts. 47-50.
1620
See Bagambiki/Imanishimwe Indictment, para. 3.10
1619
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recalls that Imanishimwe stated that he was commander of the Karmabo military
camp and that he gave a detailed description of his command structure. He also
testified about numerous instances of issuing orders to and of deploying his soldiers.
The Chamber is also satisfied that he had effective control over his soldiers and the
material ability to prevent or punish offences. Indeed, Imanishimwe attested to
disciplining one of his officers for failing to pay for drinks and also testified about
arresting a number of soldiers suspected of plotting to kill him. The Chamber notes
that there is no evidence indicating that Imanishimwe lacked effective control over
soldiers from the Karambo military camp.
653. The Chamber has found that, on 12 April 1994, soldiers participated in the
attack on the refugees at the Gashirabwoba football field. The Chamber lacks
sufficient reliable evidence to find that Imanishimwe ordered his soldiers to
participate in the attack within the meaning of Article 6(1).
654. The Chamber however finds that Imanishimwe knew or should have known
about the participation of his soldiers in the attack at the Gashirabwoba football field.
In reaching this conclusion, the Chamber recalls that Imanishimwe was present at the
Gashirabwoba football field on 11 April 1994 and thus was fully aware of the
presence of refugees and of their plight. His soldiers returned later that evening to
determine whether the refugees were entirely Tutsi. On 12 April 1994, at least fifteen
soldiers surrounded the refugees and killed them after the refugees asked for peace.
Given the relatively small size of the camp, Imanishimwe’s control over his soldiers,
and the fact that he remained in regular contact with his soldiers stationed away from
the camp, the Chamber cannot accept that fifteen or more soldiers would have
participated in such a systematic, large-scale attack without the knowledge of their
commander. The Chamber notes that there is no evidence that Imanishimwe took any
steps to prevent the attack or to punish any soldier at Karambo camp for participating
in the massacre. Thus, the Chamber finds that Imanishimwe can be held criminally
responsible under Article 6(3) for the actions of his subordinates at the Gashirabwoba
football field.
655. The Chamber has also found that, on 11 April 1994, soldiers participated in
the arrest, detention, and mistreatment of seven civilians, including Prosecution
Witness LI, as well as in the execution of Witness LI’s brother and his classmate.
Given the Chamber’s inference that Imanishimwe issued an order authorizing the
arrest, detention, mistreatment, and execution of individuals having suspected
connections with the RPF, the Chamber finds that Imanishimwe can be held
criminally responsible under Article 6(1) for ordering his subordinates to commit
these acts. 1621 In its factual findings, the Chamber has found that Imanishimwe was
present during a part of this mistreatment, which occurred at the Karambo camp, and
that he did nothing to prevent it. The Chamber notes that Imanishimwe’s presence
during the mistreatment of Witness LI and the six other refugees reflects that he had
full knowledge that his subordinates arrested, detained, and mistreated the seven
civilians. The Chamber has already determined that, given the circumstances
prevailing at the camp, Imanishimwe’s soldiers would not have participated in the
killing of Witness LI’s brother or classmate without Imanishimwe’s knowledge and
1621
See supra para. 410.
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consent or orders. 1622 The Chamber notes that there is no evidence that Imanishimwe
took any steps to prevent these acts or to punish any soldier at the Karambo camp for
committing them. Thus, the Chamber finds that Imanishimwe can be held criminally
responsible under Article 6(3) for the actions of his subordinates in arresting,
detaining, and mistreating the seven refugees, as well as for executing Witness LI’s
brother and his classmate. The Chamber will determine in its subsequent legal
findings which form of criminal responsibility best characterises Imanishimwe’s role
in these crimes.
656. The Chamber has found that, in June 1994, soldiers participated in the arrest
and the detention of Witness MG, his father, and two sisters. The Chamber has found
that soldiers, acting on Imanishimwe’s orders, unsuccessfully attempted to have
Witness MG and his family members killed by Interahamwe at Gatandara. The
Chamber has found that Imanishimwe ordered that these individuals be transferred
from the gendarmerie camp and be incarcerated at the Karambo military camp. At the
military camp, soldiers severely beat Witness MG and another prisoner. Soldiers also
drove a nail into the foot of a detainee, removed the nail, and drove it into the foot of
another detainee. The Chamber has found that Imanishimwe was present during this
mistreatment and did nothing to stop it. The Chamber has also found that soldiers
participated in the killing of Witness MG’s sister and her cellmate Mbembe. Given
the Chamber’s inference that Imanishimwe issued an order authorizing the arrest,
detention, mistreatment, and execution of individuals with suspected connections to
the RPF, the Chamber finds that Imanishimwe can be held criminally responsible
under Article 6(1) for ordering his subordinates to commit these acts. The Chamber
also notes that Imanishimwe’s presence during the mistreatment of Witness MG and
the other refugees reflects that he had full knowledge that his subordinates arrested,
detained, and mistreated civilians. The Chamber has already determined that, given
the circumstances prevailing at the camp, Imanishimwe’s soldiers wo uld not have
participated in the killing of Witness MG’s sister and Mbembe without
Imanishimwe’s knowledge and consent or orders. 1623 There is no evidence that
Imanishimwe took any steps to prevent the arrest, detention, or mistreatment or to
punish any soldier at Karambo camp for these acts. Thus, the Chamber finds that
Imanishimwe can be held criminally responsible under Article 6(3) for the actions of
his subordinates in arresting, detaining, mistreating, and executing these refugees. The
Chamber will determine in its subsequent legal findings which form of criminal
responsibility best characterises Imanishimwe’s role in the crimes.
657. The Chamber has found that, at the end of June 1994, Imanishimwe ordered
the detention of Witness MA at Karambo camp. The Chamber finds that Imanishimwe
can be held criminally responsible under Article 6(1) for ordering his subordinates to
commit this act. The Chamber further notes that Imanishimwe’s personal order to
detain Witness MA reflects that he had full knowledge that his subordinates detained
this civilian at the camp. The Chamber notes that there is no evidence that
Imanishimwe took any steps to prevent the detention of Witness MA or to punish any
soldier at Karambo camp for it. Thus, the Chamber finds that Imanishimwe can be
held criminally responsible under Article 6(3) for the actions of his subordinates in
1622
1623
See para. 410
See para. 410
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detaining Witness MA. The Chamber will determine in its subsequent legal findings
which form of criminal responsibility best characterises Imanishimwe’s role in this
crime.
2. Duty to Ensure Protection
658. Paragraph 3.28 of the Bagambiki/Imanishimwe Indictment asserts that
Bagambiki had the duty to ensure the protection and safety of the civilian population
within his prefecture and that on several occasions he failed or refused to assist those
whose lives were in danger and who requested his help. This paragraph supports a
charge that Bagambiki bears criminal responsibility on the basis of an omission to act.
659. The Chamber finds that, in order to hold an accused criminally responsible for
an omission as a principal perpetrator, the following elements must be established: (a)
the accused must have had a duty to act mandated by a rule of criminal law; (b) the
accused must have had the ability to act; (c) the accused failed to act intending the
criminally sanctioned consequences or with awareness and consent that the
consequences would occur; and (d) the failure to act resulted in the commission of the
crime. 1624
660. The Chamber finds that Bagambiki had a legal duty under Rwandan domestic
law to ensure the protection of individuals within his prefecture. Article 8 of the Law
on the Organisation and Function of the Prefecture provides that a prefect has the
obligation to ensure the tranquillity, public order, and security of people and
property. 1625 In determining whether Bagambiki had the ability to act, the Chamber
notes that Article 11 of this law provides that a prefect can request the intervention of
the armed forces in accordance with the procedure prescribed in the Law on the
Creation of the Gendarmerie. 1626 The Chamber recalls that the law does not give a
prefect the authority to determine or to control how the armed forces execute an
operation. The Chamber notes that the evidence does not indicate what other specific
means were available to a prefect. However, the Chamber observes that this legal duty
was not mandated by a rule of criminal law. Thus, any omission of this legal duty
under Rwandan law, even if proven, does not result in criminal liability under Article
6(1) of the Statute.
1624
Tadic, Judgement (AC), para. 188: (“This provision [Article 7(1) of ICTY Statute, which is
identical to Article 6(1) of the ICTR Statute] covers first and foremost the physical perpetration of a
crime by the offender himself, or the culpable omission of an act that was mandated by a rule of
criminal law.”). For the proposition that international criminal liability must be on the basis of
intentional conduct. See Semanza, Judgement (TC), para. 341; Stakic, Judgement (TC), para. 642;
Statute of the International Criminal Court, 17 July 1998, art. 30, U.N. Doc. A/Conf. 183/9; ILC 1996
Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law
Commission on the work of its 48 th session May 6-July 26, 1996, UNGAOR 51st sess., supp. no. 10
(A/51/10), Commentary to Article 2(3)(a).
1625
Bagambiki Defence Exhibit 3(i), Law on the Organisation and Function of the Prefecture, art.
8(2)(“En tant que principal responsable de l’administration et du développement de la préfecture, le
préfet a, notamment, pour mission de: . . . 4) assurer la tranquilité, l’ordre public et la sécurité des
personnes et des biens”).
1626
Bagambiki Defence Exhibit 3(i), Law on the Organisation and Function of the Prefecture, art. 11.
(discussing this procedure).
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B. Genocide
661. The Prosecutor charged Ntagerura, Bagambiki, and Imanishimwe with
genocide under Article 2 of the Statute.
662. The Chamber explained in the Semanza Judgement that, in order to find an
accused guilty of the crime of genocide, it must be established that the alleged
perpetrator committed any of the enumerated acts in Article 2(2) with the 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. 1627
663. A perpetrator’s mens rea may be inferred from his actions or, in the absence of
a confession or other admission, from other factors such as the scale of the atrocities
committed, their general nature, in a region or a country, or the deliberate and
systematic targeting of victims on account of their membership in a particular group,
while excluding the members of other groups. 1628
664. The indictments charge each of the accused with killing or causing serious
bodily or mental harm to members of the Tutsi group. Killing members of the group
requires a showing that the principal perpetrator intentionally killed one or more
members of the group, without the necessity of premeditation. 1629 The term causing
serious bodily harm refers to serious acts of physical violence falling short of killing
that seriously injure the health, cause disfigurement, or cause any serious injury to the
external or internal organs or senses. 1630 Serious mental harm refers to more than
minor or temporary impairment of mental faculties. 1631 The serious bodily or me ntal
harm, however, need not be an injury that is permanent or irremediable. 1632
1. Ntagerura Indictment
665. The Prosecutor charged Ntagerura with genocide in Counts 1, 3, and 6 of the
indictment against him for killing and causing serious bodily or mental harm to
members of the Tutsi population as stipulated in Article 2(2)(a) and (b) of the Statue.
In alleging that Ntagerura is individually responsible for these crimes, pursuant to
Articles 2(3)(a), 2(3)(e), 6(1), and 6(3) of the Statute, the Prosecutor relied on
paragraphs 9 to 19, and particularly on paragraphs 9, 11, 12.1, 12.2, 14.2, 14.3, 16, 17,
and 18, of the indictment. The Prosecutor also charged Ntagerura with conspiracy to
commit genocide in Count 2 of the indictment against him. However, the Chamber in
its findings on the Ntagerura Indictment has dismissed this count because the
supporting allegations, even if proven, could not constitute the material elements of
the crime of conspiracy. 1633 The Prosecutor also alleged in its closing brief that
Ntagerura sho uld be held criminally responsible for deliberately inflicting on
members of the Tutsi ethnic group conditions of life calculated to bring about their
1627
Semanza, Judgment (TC), para. 311.
Semanza, Judgment (TC), para. 313.
1629
Semanza, Judgment (TC), para. 319.
1630
Semanza, Judgment (TC), para. 320.
1631
Semanza, Judgement (TC), paras. 321, 322.
1632
Semanza, Jugement (TC), para. 320, 322.
1633
See supra para.70.
1628
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178
destruction, which is a crime under Article 2(2)(c) of the Statute. 1634 The Chamber
will not consider this allegation however because it was not charged in the Ntagerura
Indictment.
666. As discussed in section I.E of this Judgement, the Chamber has decided not to
make factual findings in respect of paragraphs 11, 12.1, 13, and 16 of the Ntagerura
Indictment because those paragraphs are impermissibly vague and fail to plead any
identifiable criminal conduct on the part of the accused. The Chamber has decided to
consider paragraph 10 as a general allegation because it refers to background material
and does not mention Ntagerura. The Chamber has also decided not to make findings
on paragraphs 12.2, 14.2, 15.1, and 15.2 of the indictment because the Prosecution
conceded that it had offered no proof in respect of them. Consequently, the Chamber
will not consider the allegations in these paragraphs in reaching its findings on Counts
1, 3, and 6 of the Ntagerura Indictment.
667. Upon considering the evidence related to paragraphs 9.1, 9.2, 9.3, 14.1, 14.3,
and 19 of the Ntagerura Indictment, the Chamber has found that the allegations made
against the accused in those paragraphs were not proven beyond a reasonable doubt.
In connection with paragraph 9.1 of the indictment, the Chamber has found that
Ntagerura attended and addressed a meeting at the Bushenge market on 7 February
1993. The Chamber notes that this meeting occurred outside the temporal scope of the
Tribunal’s jurisdiction and that the Prosecutor did not prove any link between
Ntagerura’s participation in the meeting and any subsequent act giving rise to his
criminal responsibility. While the Chamber has found that the Prosecutor proved the
allegations made in paragraphs 17 and 18 of the indictment, those paragraphs do not
allege any criminal conduct on the part of Ntagerura. Consequently, the Chamber
finds Ntagerura not guilty on Counts 1, 3, and 6 of the indictment against him for
genocide and complicity in genocide.
2. Bagambiki/Imanishimwe Indictment
a. Bagambiki
668. The Prosecutor charged Bagambiki on the basis of the same facts with
genocide in Count 1 and with complicity in genocide in Count 2 for killing and for
causing serious bodily or mental injuries to members of the Tutsi group. In alleging
that Bagambiki is individually responsible for these crimes, pursuant to Articles
2(3)(a), 2(3)(e), 6(1), and 6(3) of the Statute, the Prosecutor relied on paragraphs 3.16,
3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the indictment against
him. The Prosecutor also charged Bagambiki with conspiracy to commit genocide in
Count 19 of the indictment against him. However, the Chamber in its findings on the
Bagambiki/Imanishimwe Indictment has dismissed this count because the supporting
allegations, even if proven, can not constitute the material elements of the crime of
conspiracy. 1635 The Prosecutor asserted in its closing brief that Bagambiki should be
held criminally responsible for deliberately inflicting on members of the Tutsi ethnic
group conditions of life calculated to bring about their destruction, which is a crime
1634
1635
Prosecutor’s Closing Brief, para. 1214.
See supra para. 70.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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under Article 2(2)(c) of the Statute. 1636 The Chamber will not consider this allegation,
however, because it was not charged in the Bagambiki/Imanishimwe Indictment.
669. The Chamber has found that the allegations made against Bagambiki in
paragraph 3.16 of the indictment were not proven beyond a reasonable doub t.
670. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka Stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide. The
Chamber lacks sufficient evidence to determine whether Bagambiki participated in
the preparation of lists of names for the purpose of eliminating the identified
individuals or whether he gave such lists to Interahamwe. The majority of the
Chamber, Judge Williams dissenting, lacks sufficient reliable evidence to determine if
Bagambiki can bear any criminal responsibility for the deaths of these refugees.
671. Paragraphs 3.19 and 3.20 of the indictment do not mention Bagambiki and, in
this section, the Chamber will discuss its findings in respect of these paragraphs only
if necessary.
672. Upon considering the evidence related to paragraph 3.21 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found beyond a reasonable
doubt that, on 15 April 1994, Bagambiki told refugees at Cyangugu Cathedral that
they were to be moved to Kamarampaka Stadium. However, there is no reliable
evidence on the record that the refugees who refused to move to the stadium were
threatened with death.
673. As concerns the allegations made against Bagambiki in paragraph 3.22 of the
indictment, the Chamber has found beyond a reasonable doubt that Bagambiki
escorted the refugees from the cathedral to the stadium and that, once the refugees
were in the stadium, their movement was curtailed. The Chamber has found that it has
not been proven beyond a reasonable doubt that refugees who attempted to leave the
stadium were forced back by gendarmes or that gendarmes or Interahamwe executed
refugees at the stadium.
674. In respect of the allegations made against Bagambiki in paragraph 3.23 of the
indictment, the Chamber has found that, on 16 April 1994, Bagambiki came to the
cathedral, accompanied by Imanishimwe and soldiers, and that they took away four
refugees for questioning regarding their possible financial contributions to the RPF.
Subsequently, Bagambiki, accompanied by Imanishimwe, civilian and military
1636
Prosecutor’s Closing Brief, para. 1311.
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authorities, and soldiers, came to the stadium where he selected twelve Tutsi refugees
and one Hutu to be taken from the stadium for questioning because of their suspected
connections with the RPF. In Bagambiki’s presence, soldiers arrested the selected
refugees and removed them from the stadium. These refugees joined the four other
Tutsi refugees who had just been removed from Cyangugu Cathedral. Sixteen of these
refugees were then killed during the evening or the night of 16 April 1994. A majorit y
of the Chamber, Judge Williams dissenting, has concluded in its factual findings that
it lacks sufficient reliable evidence to determine if Bagambiki can bear any criminal
responsibility for the deaths of the sixteen refugees removed from the stadium and the
cathedral on 16 April 1994. The Chamber finds that it has not been proven that
Bagambiki was involved in any other selection at the stadium.
675. A majority of the Chamber, Judge Williams dissenting, has found that the
allegations made against Bagambiki in paragraph 3.26 of the indictment were not
proven beyond a reasonable doubt.
676. Concerning the allegations made in paragraph 3.27 of the indictment, the
Chamber has found that, on 15 April 1994, Bourgmestre Kamana, commune police,
and conseillers of several sectors in Kagano commune participated in an attack on
refugees at Nyamasheke parish. The Chamber has further found that, on 18 April
1994, one of the gendarmes guarding Mibilizi parish distributed his grenades to the
attackers and that, on 26 April 1994, gendarmes mistreated the refugees taken from
Shangi parish at a gendarmerie camp.
677. The Chamber has determined in its legal findings on criminal responsibility
that Bagambiki can not be held criminally responsible as a superior under Article 6(3)
of the Statute for the acts of soldiers, gendarmes, or conseillers from Kagano
commune because the Prosecutor did not establish the existence of a superiorsubordinate relationship. In its legal findings on criminal responsibility, the Chamber
has also concluded that Bagambiki can not be held criminally responsible for the acts
of Kamana because it lacks sufficient reliable evidence to determine whether
Bagambiki knew or should have known that Kamana would participate in the attack.
In addition, the Chamber lacks sufficient reliable evidence to determine whether
Bagambiki failed to take reasonable measures to punish Kamana for his role in the
massacre. The Chamber has further found that Bagambiki can not be held criminally
responsible for the acts of the Kagano commune police because the Prosecutor failed
to establish that Bagambiki knew or should have known about their participation in
the massacre.
678. In respect of paragraph 3.28 of the indictment, the Chamber concluded in its
legal findings on criminal responsibility that Bagambiki could not be held responsible
under Article 6(1) of the Statute for an omission of his duty to act under the Rwandan
Law on the Organisation and Function of the Prefecture.
(i) Finding: Counts 1 and 2 of the Bagambiki/Imanishimwe Indictment – Killing and
Causing Serious Bodily and Mental Harm
679. Upon considering the evidence related to paragraphs 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the Bagambiki/Imanishimwe
Indictment, a majority of the Chamber, Judge Williams dissenting, finds that it has not
been proven beyond a reasonable doubt that Bagambiki is criminally responsible for
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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the crimes of killing and causing serious bodily or mental harm to members of the
Tutsi ethnic group. The Prosecutor either failed to prove the allegations set forth in
these paragraphs with respect to the material facts of the crimes or failed to
adequately demonstrate that Bagambiki could be held criminally responsible for the
crimes as a principal perpetrator, an accomplice, or a superior.
680. Consequently, a majority of the Chamber, Judge Williams dissenting, finds
Bagambiki not guilty on Count 1 for genocide. The Chamber finds Bagambiki not
guilty on Count 2 of the indictment against him for complicity in genocide.
b. Imanishimwe
681. The Prosecutor charged Imanishimwe on the basis of the same facts with
genocide in Count 7 and with complicity in genocide in Count 8 for killing and
causing serious bodily or mental injuries to members of the Tutsi group. In alleging
that Imanishimwe is individually responsible for these crimes, pursuant to Articles
2(3)(a), 2(3)(e), 6(1), and 6(3) of the Statute, the Prosecutor relied on paragraphs 3.17,
3.18, 3.20, 3.21, 3.22, 3.23, 3.24, 3.25, and 3.30 of the indictment against him. The
Prosecutor also charged Imanishimwe with conspiracy to commit genocide in Count
19 of the indictment against him. Upon a motion by the Defence on 6 March 2002 at
the close of the Prosecution’s case, the Chamber acquitted Imanishimwe of the charge
of conspiracy to commit genocide pursuant to Rule 98bis. 1637 The Prosecutor also
asserted in its closing brief that Imanishimwe should be held criminally responsible
for deliberately inflicting on members of the Tutsi ethnic group conditions of life
calculated to bring about their destruction, which is a crime under Article 2(2)(c) of
the Statute. 1638 The Chamber will not consider this allegation because it was not
charged in the Bagambiki/Imanishimwe Indictment.
682. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka Stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide.
However, the Chamber lacks sufficient evidence to determine whether Imanishimwe
participated in the preparation of lists of names for the purpose of eliminating the
identified individuals or whe ther he gave such lists to Interahamwe. The Chamber has
concluded in its factual findings that it lacks sufficient reliable evidence to determine
if Imanishimwe can bear any criminal responsibility for the deaths of these refugees.
1637
1638
T. 6 March 2002 pp. 54, 68.
Prosecutor’s Closing Brief, para. 1311.
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683. The Chamber has found that, on 11 April 1994, soldiers arrested at least seven
refugees, including Witness LI, near Cyangugu Cathedral and took them to the
Karambo military camp in Cyangugu, as alleged in paragraph 3.20 of the indictment.
Upon arrival at the camp, the soldiers presented the refugees to Imanishimwe as
“Inyenzi-Inkotanyi” whom they had caught in the bush. The soldiers repeatedly kicked
and beat the refugees, including with the butts of their rifles, from the time of their
arrest and through their incarceration at the camp. Imanishimwe was present during a
part of the beatings, but he did not attempt to stop them. During their incarceration at
the camp, soldiers beat the detainees again with wooden sticks and rifle butts while
threatening to beat them to death.
684. In respect of allegations made against Imanishimwe in paragraph 3.21 of the
indictment, the Chamber has found that he participated in making the decision to
move the refugees from Cyangugu Cathedral to Kamarampaka Stadium. However, the
Chamber has not found that Imanishimwe escorted the refugees from the cathedral to
the stadium, as alleged in paragraph 3.22.
685. In connection with paragraph 3.23, the Chamber has found beyond a
reasonable doubt that Imanishimwe was present at the cathedral and the stadium on 16
April 1994 when Bagambiki selected seventeen refugees for arrest and questioning
about their alleged ties to the RPF. Moreover, in respect of paragraph 3.18, the
Chamber has found beyond a reasonable doubt that soldiers participated in the arrest
of the selected refugees at the cathedral and at the stadium on 16 April 1994. The
Chamber has found that Imanishimwe was present during these arrests. Imanishimwe
and his soldiers took the arrested refugees away for questioning concerning their ties
to the RPF. Later that evening or during the night sixteen of the refugees were killed.
The Chamber has concluded in its factual findings that it lacks sufficient reliable
evidence to determine whether Imanishimwe can bear any criminal responsibility for
the death of these sixteen refugees.
686. In connection with the allegations made in paragraphs 3.24 and 3.25 of the
indictment, the Chamber has found that an unknown number of Tutsi and Hutu
civilians were arrested on suspicion of being RPF accomplices and were taken to
Karambo military camp where soldiers mistreated them. In particular, the Chamber
has found beyond a reasonable doubt that, on 6 June 1994, Imanishimwe participated
with his soldiers in the arrest of civilians at Kamembe city market and that he
instructed soldiers to have Witness MG and his family killed at Gatandara, which was
prevented by gendarmes. The gendarmes took Witness MG and his family to the
gendarmerie camp. Subsequently, soldiers, acting on orders from Imanishimwe,
removed Witness MG, his father, and two sisters from the gendarmerie camp and
incarcerated them at Karambo military camp, where in the presence of Imanishimwe,
the soldiers severely beat Witness MG and another detainee and where they
hammered a nail into the foot of one detainee, removed the na il, and then hammered it
into the foot of another detainee. During this mistreatment, the soldiers questioned the
detainees, all of whom were Tutsi civilians, as to whether they were members of the
RPF and accused them of collaborating with the enemy. Imanishimwe did nothing to
stop or restrain the soldiers during their mistreatment of the detainees. As a result of
this mistreatment, Witness MG could not stand up for several days, and the two
detainees who were mistreated with the nail screamed in pain in their cell. Soldiers
later removed the two detainees who were never seen or heard from again.
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687. The Chamber has also found that soldiers from Karambo military camp killed
or facilitated the killing of Witness LI’s brother and a former classmate, as well as
Witness MG’s sister and her cellmate Mbembe, all of whom the soldiers had first
incarcerated at the camp. The Chamber has inferred that Imanishimwe, as the
commander of the camp, issued orders to soldiers authorizing the arrest, detention,
mistreatment, and execution of civilians with suspected ties to the RPF.1639 As such,
the Chamber has found that soldiers killed or facilitated the killing of Witness LI’s
brother and his classmate and Witness MG’s sister and her cellmate Mbembe on the
orders of Imanishimwe. In addition, the Chamber has found that, at the end of June
1994, Imanishimwe ordered the detention of Witness MA.
688. Finally, in connection with paragraphs 3.25 and 3.30, the Chamber has found
beyond a reasonable doubt that soldiers participated in the massacre of mainly Tutsi
civilian refugees at the Gashirabwoba football field on 12 April 1994.
(i) Finding: Counts 7 and 8 of the Bagambiki/Imanishimwe Indictment – Killing and
Causing Serious Bodily and Mental Harm
689. In connection with paragraphs 3.25 and 3.30, the Chamber has found beyond a
reasonable doubt that soldiers participated in the massacre of mainly Tutsi civilian
refugees at the Gashirabwoba football field on 12 April 1994. The Chamber has found
that at least fifteen soldiers arrived at the field, surrounded the mainly Tutsi refugees,
opened fire with their guns, and threw grenades at them for thirty minutes after the
refugees asked for peace. The scale of these killings of the Tutsi refugees and the
length of time required to kill such a large number of victims prove that these killings
were intentional.
690. The Chamber also finds that the soldiers at the Gashirabwoba football field
possessed the requisite genocidal intent during the killings on 12 April 1994, that is,
to destroy, in whole or in part, members of the Tutsi ethnic group. It has not been
disputed that the Tutsi were considered an ethnic group during the events in 1994. The
soldiers’ intention to destroy the Tutsi group, in whole or in part, can be inferred from
the context of the massacre at the Gashirabwoba football field and from the other
events occurring in Cyangugu at that time. The Chamber recalls that soldiers came to
the football field the evening before the massacre and asked the refugees whether they
were all Tutsis. The refugees informed the soldiers that there were some Hutus
amongst them. Thus, the soldiers were aware that the primary ethnic composition of
the refugees at the Gashirabwoba football field was Tutsi. In the Chamber’s view, the
manner in which the soldiers killed the refugees and the resulting large number of
victims reflect the soldiers’ intention to destroy members of the Tutsi ethnic group, in
whole or in part. In reaching this conclusion, the Chamber has also considered the
overwhelming evidence in this case that, at the time of the massacre at the
Gashirabwoba football field, thousands of Tutsis in Cyangugu were being forced to
seek refuge at parishes and schools or to hide in the bush because their Hutu
neighbours and Interahamwe attacked them in their homes.
1639
See supra para. 410.
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691. The Chamber recalls that it has not been established that Imanishimwe was
present during the attack at the Gashirabwoba football field on 12 April 1994. The
Chamber, however, has found in its legal findings on criminal responsibility that the
principal perpetrators of this large-scale attack were soldiers under Imanishimwe’s
effective control and that Imanishimwe knew or should have known that they would
or did participate in the attack. Thus, the Chamber finds that Imanishimwe is
criminally responsible for the acts of his subordinates at the Gashirabwoba football
field pursuant to Article 6(3) of the Statute because he failed to prevent the crime. The
Chamber also recalls that Imanishimwe did not punish any soldier for this attack,
which additionally shows that he acquiesced in the soldiers’ participation in the
massacre.
692. Upon considering the evidence in connection with paragraphs 3.24 and 3.25,
the Chamber finds that soldiers intentionally killed or facilitated the killing of Witness
LI’s brother and former classma te and Witness MG’s sister and her cellmate Mbembe.
The Chamber also finds that soldiers intentionally caused serious bodily injury to
Witness MG and the three other detainees mistreated with him, given that Witness
MG could not stand up for three days aft er the beating and that the detainees
mistreated with the nail screamed in pain after being returned to their cell. The
Chamber does not find that soldiers caused serious bodily injury to Witness LI and the
six refugees arrested with him. Considering the evidence on the record, including the
fact that following their mistreatment two of the victims were in a position to forcibly
escape from detention, the Chamber concludes that the mistreatment was not such as
to cause severe suffering or pain sufficient for a finding of causing serious bodily
injury under Article 2(2)(b) of the Statute.
693. The Chamber lacks sufficient reliable evidence to determine that soldiers
killed and/or caused serious bodily or mental harm to these civilians with the requisite
genocidal intent. The Chamber recalls its finding that Imanishimwe issued an order
authorizing the arrest, detention, mistreatment, and execution of civilians who were
suspected of having ties to the RPF. The Chamber lacks sufficient evidence to
determine whether this order was aimed only at Tutsis, particularly given the arrest of
Witness MA, a Hutu, and the fact that Witnesses MA and MG could not state the
ethnicity of the other detainees who were brought in and out of the cells during their
respective periods of incarceration at the camp. Moreover, Imanishimwe initially
ordered his soldiers to take Witness LI and the six others arrested with him to the
gendarmerie before the soldiers stated that they were “Inyenzi-Inkotanyi” whom they
had found in the bush, a reference to those associated with the RPF. The Chamber
further recalls that soldiers demanded the arrest and detention of Witness MG, his
father, and two sisters because they allegedly were found in possession of RPF
material. The Chamber has also considered that, during the mistreatment of Witness
MG and the other three detainees, soldiers questioned them only about their suspected
connections to the RPF.
694. The Chamber finds beyond a reasonable doubt that Imanishimwe is criminally
responsible under Article 6(3) of the Statute for genocide because he failed to prevent
the killing of members of the Tutsi ethnic group by his subordinates in relation to the
events at the Gashirabwoba football field on 12 April 1994. For the reasons expressed
in his separate opinion, Judge Dolenc is of the opinion that it is impermissible to
convict Imanishimwe on Count 7 because the massacre at Gashirabwoba football field
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is not contained in the indictment. Therefore, the majority finds Imanishimwe guilty
on Count 7 of the indictment against him.
695. As the majority has determined that Imanishimwe is criminally responsible for
genocide as a superior under Article 6(3), the Chamber finds that Imanishimwe is not
guilty on Count 8 of the indictment against him for complicity in genocide, which is
based on the same facts as Count 7 and does not charge Imanishimwe with criminal
responsibility under Article 6(3).
C. Crimes Against Humanity
696. The Prosecutor charged Ntagerura, Bagambiki, and Imanishimwe with crimes
against humanity under Article 3 of the Statute.
697. Pursuant to Article 3 of the Statute, the Tribunal has the power to prosecute
persons responsible for the crimes listed in sub-articles 3(a) to (i), when they are
committed as part of a widespread or systematic attack on discriminatory grounds
against any civilian population. 1640
698. The Chamber explained in the Semanza Judgement that in connection with
crimes against humanity, the Prosecutor must prove: (1) that there was an attack; (2)
that the attack was widespread or systematic; (3) that the attack was directed against
any civilian population; (4) that the attack was committed on national, political,
ethnical, racial or religious grounds; and (5) that the accused acted with knowledge of
the broader context of the attack and with knowledge that his act(s) formed part of the
attack. 1641
699. The indictments charge the three accused with the following crimes against
humanity: murder, extermination, imprisonment, and torture.
700. In the Semanza Judgement, the Chamber found that premeditated murder
constitutes a crime against humanity under Article 3(a) of the Statute. 1642 The
Chamber explained that premeditation requires that the accused held the intention to
murder prior to committing the act causing death. 1643 The Chamber emphasises that
the accused need not have premeditated the murder of a particular individual; it is
sufficient that the accused had a premeditated intention to murder civilians as part of
the widespread or systematic attack on discriminatory grounds. 1644
701. Extermination is mass or large scale killing; it may be differentiated from
murder in that it is directed against a population rather than against individuals. 1645
Responsibility for a single or limited number of killings is insufficient to form the
1640
Semanza, Judgement (TC), paras. 326-332.
Semanza, Judgement (TC), paras. 327-332.
1642
Semanza, Judgement (TC), para. 339. The Chamber notes that Article 3(a) of the French version of
the statute uses the term “assassinat,” which only refers to pre-meditated murder.
1643
Semanza, Judgement (TC), paras. 334-339.
1644
Semanza, Judgement (TC), para. 339.
1645
Semanza, Judgement (TC), para. 340.
1641
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material element of extermination. 1646 The mental element for extermination is the
intent to perpetrate or to participate in mass killing. 1647
702. Imprisonment as a crime against humanity refers to arbitrary or otherwise
unlawful detention or deprivation of liberty. It is not every minor infringement of
liberty that forms the material element of imprisonment as a crime against humanity;
the deprivation of liberty must be of similar gravity and seriousness as the other
crimes enumerated as crimes against humanity enumerated in Article 3 (a) to (i). In
assessing whether the imprisonment constitutes a crime against humanity, the
Chamber may take into account whether the initial arrest was lawful, by considering,
for example, whether it was based on a valid warrant of arrest, whether the detainees
were informed of the reasons for their detention, whether the detainees were ever
formally charged, and whether they were informed of any procedural rights. 1648 The
Chamber may also consider whether the continued detention was lawful. When a
national law is relied upon to justify a deprivatio n of liberty, this national law must
not violate international law. 1649
703. Torture as a crime against humanity is the intentional infliction of severe
physical or mental pain or suffering for prohibited purposes including: obtaining
information or a confession; punishing, intimidating, or coercing the victim or a third
person; or discriminating against the victim or a third person. 1650
1. Ntagerura Indictment
704. The Prosecutor charged Ntagerura with extermination as a crime against
humanity under Article 3(b) of the Statute in Count 4 of the indictment against him. In
alleging that Ntagerura is individually responsible for this crime, pursuant to Article
6(1) of the Statute, the Prosecutor relied on paragraphs 9 to 19, and particularly on
paragraphs 17 and 18, of the indictment.
705. As discussed in section I.E of this Judgement, the Chamber has decided not to
make factual findings in respect of paragraphs 11, 12.1, 13, and 16 of the Ntagerura
Indictment because those paragraphs are impermissibly vague and fail to plead any
identifiable criminal conduct on the part of the accused. The Chamber has decided to
consider paragraph 10 as a general allegation because it refers to background material
and does not mention Ntagerura. The Chamber has also decided not to make findings
on paragraphs 12.2, 14.2, 15.1, and 15.2 of the indictment because the Prosecution
conceded that it had offered no proof in respect of them. Consequently, the Chamber
will not consider allegations made in these paragraphs in making a finding on Count 4
of the Ntagerura Indictment.
706. Upon considering the evidence related to paragraphs 9.1, 9.2, 9.3, 14.1, 14.3,
and 19 of the Ntagerura Indictment, the Chamber has found that the allegations made
against the accused in those paragraphs were not proven beyond a reasonable doubt.
1646
Semanza, Judgement (TC), para. 340.
Semanza, Judgement (TC), para. 341.
1648
Krnojelac, Judgement (TC), para. 119-122; Kordic and Cerkez Judgement (TC), paras. 302-303.
1649
Krnojelac, Judgement (TC), para. 114.
1650
See Semanza, Judgement (TC), para 343.
1647
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In connection with paragraph 9.1 of the indictment, the Chamber has found that
Ntagerura attended and addressed a meeting at the Bushenge market on 7 February
1993. The Chamber notes that this event occurred outside the temporal scope of the
Tribunal’s jurisdiction and that the Prosecutor did not prove any link between
Ntagerura’s participation in the meeting and any subsequent act giving rise to his
criminal responsibility. While the Chamber has found that the Prosecutor proved the
allegations made in paragraphs 17 and 18 of the indictment, those paragraphs do not
allege any criminal conduct on the part of Ntagerura. Consequently, the Chamber
finds Ntagerura not guilty on Count 4 of the indictment against him for extermination
as a crime against humanity under Article 3(b) of the Statute.
2. Bagambiki/Imanishimwe Indictment
a. General Elements
707. Prosecution Expert Witness Guichaoua testified that, subsequent to 6 April
1994, there were widespread attacks against the Tutsi population across Rwanda. 1651
This opinion was amply supported by the evidence presented in this case, particularly
with respect to the various massacre sites. Imanishimwe acknowledged that there was
“inter-ethnic killing” throughout Rwanda in April and May 1994. 1652 Moreover,
Bagambiki does not dispute that there were widespread attacks against the civilian
population in Cyangugu during the events referred to in the indictment. 1653 Having
considered the totality of the evidence, and in particular the evidence concerning the
ethnic composition of the individuals who sought refuge at the various sites in
Cyangugu, the Chamber finds that from April to June 1994 there was a widespread
attack against the civilian Tutsi population of Cyangugu.
708. The Chamber further finds that the evidence reflects that there was a related
systematic attack on political grounds against civilians with suspected ties to the RPF.
For example, the Chamber recalls that assailants demanded the removal of seventeen
people from Kamarampaka Stadium and Cyangugu Cathedral because they were
suspected of financially contributing to or communicating with the RPF. Sixteen of
these refugees were later killed. The Chamber further notes that the assailants
threatening to attack Shangi parish demanded the removal of a number of refugees
whom the assailants thought to be armed and connected with the RPF. Furthermore,
the Chamber’s findings concerning the events at the Karambo military camp indicate
that a number of civilians were arrested, detained, mistreated, and executed because of
suspected ties to the RPF.
709. Given the respective positions of authority of Bagambiki and Imanishimwe
during the relevant period, and considering, in particular, the evidence concerning the
various prefectural security council meetings in which they discussed the ongoing
events, it is inconceivable that Bagambiki or Imanishimwe could have been unaware
of these attacks at the time of the events.
1651
T. 19 September 2001 pp. 53, 56-59.
T. 23 January 2003 pp. 4-5.
1653
Bagambiki’s Closing Brief pp. 46-47.
1652
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710. The Chamber will assess in relation to particular criminal allegations whether
Bagambiki, Imanishimwe, or the principal perpetrators of the particular crimes had
knowledge that their acts formed part of these widespread and systematic attacks.
b. Bagambiki
711. The Prosecutor charged Bagambiki with three counts of crimes against
humanity: murder under Article 3(a) of the Statute in Count 3; extermination under
Article 3(b) in Count 4; and imprisonment under Article 3(e) in Count 5. In alleging
that Bagambiki is individually responsible for these crimes, pursuant to Articles 6(1)
and 6(3) of the Statute, the Prosecutor relied on paragraphs 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the indictment against him.
712. The Chamber has found that the allegations made against Bagambiki in
paragraph 3.16 of the indictment were not proven beyond a reasonable doubt.
713. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide. The
Chamber lacks sufficient evidence to determine whether Bagambiki participated in
the preparation of lists of names for the purpose of eliminating the identified
individuals or whether he gave such lists to Interahamwe. The majority of the
Chamber, Judge Williams dissenting, lacks sufficient reliable evidence to determine if
Bagambiki can bear any criminal responsibility for the deaths of these refugees.
714. Paragraphs 3.19 and 3.20 of the indictment do not mention Bagambiki and, in
this section, the Chamber will discuss its findings in respect of these paragraphs only
if necessary.
715. Upon considering the evidence related to paragraph 3.21 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found beyond a reasonable
doubt that, on 15 April 1994, Bagambiki told refugees at Cyangugu Cathedral that
they were to be moved to Kamarampaka Stadium. However, there is no reliable
evidence on the record that the refugees who refused to move to the stadium were
threatened with death.
716. As concerns the allegations made against Bagambiki in paragraph 3.22 of the
indictment, the Chamber has found beyond a reasonable doubt that Bagambiki
escorted the refugees from the cathedral to the stadium and that, once the refugees
were in the stadium, their movement was curtailed. The Chamber has found that it has
not been proven beyond a reasonable doubt that refugees who attempted to leave the
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stadium were forced back by gendarmes or that gendarmes or Interahamwe executed
refugees at the stadium.
717. In respect of the allegations made against Bagambiki in paragraph 3.23 of the
indictment, the Chamber has found that, on 16 April 1994, Bagambiki came to the
cathedral, accompanied by Imanishimwe and soldiers, and that they took away four
refugees for questioning regarding their possible financial contributions to the RPF.
Subsequently, Bagambiki, accompanied by Imanishimwe, civilian and military
authorities, and soldiers, came to the stadium where he selected twelve Tutsi refugees
and one Hutu to be taken from the stadium for questioning because of their suspected
connections with the RPF. In Bagambiki’s presence, soldiers arrested the selected
refugees and removed them from the stadium. These refugees joined the four other
Tutsi refugees who had just been removed from Cyangugu Cathedral. Sixteen of these
refugees were then killed during the evening or the night of 16 April 1994. A majority
of the Chamber, Judge Williams dissenting, has concluded in its factual findings that
it lacks sufficient reliable evidence to determine if Bagambiki can bear any criminal
responsibility for the deaths of the sixteen refugees removed from the stadium and the
cathedral on 16 April 1994. The Chamber finds that it has not been proven that
Bagambiki was involved in any other selection at the stadium.
718. A majority of the Chamber, Judge Williams dissenting, has found that the
allegations made against Bagambiki in paragraph 3.26 of the indictment were not
proven beyond a reasonable doubt.
719. Concerning the allegations made in paragraph 3.27 of the indictment, the
Chamber has found that, on 15 April 1994, Bourgmestre Kamana, commune police,
and conseillers of several sectors in Kagano commune participated in an attack on
refugees at Nyamasheke parish. The Chamber has further found that, on 18 April
1994, one of the gendarmes guarding Mibilizi parish distributed his grenades to the
attackers and that, on 26 April 1994, gendarmes mistreated the refugees taken from
Shangi parish at a gendarmerie camp.
720. The Chamber has determined in its legal findings on criminal responsibility
that Bagambiki can not be held criminally responsible as a superior under Article 6(3)
of the Statute fo r the acts of soldiers, gendarmes, or conseillers from Kagano
commune because the Prosecutor did not establish the existence of a superiorsubordinate relationship. In its legal findings on criminal responsibility, the Chamber
has also concluded that Bagambiki can not be held criminally responsible for the acts
of Kamana because it lacks sufficient reliable evidence to determine whether
Bagambiki knew or should have known that Kamana would participate in the attack.
In addition, the Chamber lacks sufficient reliable evidence to determine whether
Bagambiki failed to take reasonable measures to punish Kamana for his role in the
massacre. The Chamber has further found that Bagambiki can not be held criminally
responsible for the acts of the Kagano commune police because the Prosecutor failed
to establish that Bagambiki knew or should have known about their participation in
the massacre.
721. In respect of paragraph 3.28 of the indictment, the Chamber has concluded in
its legal findings on criminal responsibility that Bagambiki cannot be held responsible
under Article 6(1) of the Statute for an omission of his duty to act under the Rwandan
Law on the Organisation and Function of the Prefecture.
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(i) Finding: Count 3 of the Bagambiki/Imanishimwe Indictment - Murder
722. Upon cons idering the evidence related to paragraphs 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the Bagambiki/Imanishimwe
Indictment, a majority of the Chamber, Judge Williams dissenting, finds that it has not
been proven beyond a reasonable doubt that Bagambiki is criminally responsible for
the crime of murder. The Prosecutor either failed to prove the allegations set forth in
these paragraphs with respect to the material facts of the crime or failed to adequately
demonstrate that Bagamb iki can be held criminally responsible for the crimes as a
principal perpetrator, accomplice, or superior.
723. Consequently, a majority of the Chamber, Judge Williams dissenting, finds
Bagambiki not guilty on Count 3 of the indictment against him for murder as a crime
against humanity under Article 3(a) of the Statute.
(ii) Finding: Count 4 of the Bagambiki/Imanishimwe Indictment - Extermination
724. Upon considering the evidence related to paragraphs 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the Bagambiki/Imanishimwe
Indictment, a majority of the Chamber, Judge Williams dissenting, finds that it has not
been proven beyond a reasonable doubt that Bagambiki is criminally responsible for
the crime of extermination. The Prosecutor either failed to prove the allegations set
forth in these paragraphs with respect to the material facts of the crime or failed to
adequately demonstrate that Bagambiki could be held criminally responsible for the
crimes as a principal perpetrator, accomplice, or superior.
725. Consequently, a majority of the Chamber, Judge Williams dissenting, finds
Bagambiki not guilty on Count 4 of the indictment against him for extermination as a
crime against humanity under Article 3(b) of the Statute.
(iii)Finding: Count 5 of the Bagambiki/Imanishimwe Indictment - Imprisonment
726. In alleging in Count 5 of the indictment that Bagambiki is individually
responsible for imprisonment as a crime against humanity, pursuant to Articles 6(1)
and 6(3) of the Statute, the Prosecutor relied on paragraphs 3.21 and 3.22 of the
indictment.
727. The Chamber recalls that Tutsis sought refuge at the cathedral without the
insistence of the authorities. After the church authorities requested assistance to
ensure the refugees’ security, Bagambiki discussed the matter with members of the
prefectural security council and then, with the assistance of church authorities,
escorted the refugees to the stadium. The Chamber also recalls the testimony of
Prosecution Witness LY, which it accepted, that at first the refugees were reluctant to
move from the cathedral to the stadium, but agreed to the transfer after church
authorities discussed the matter with them. It was not proven beyond a reasonable
doubt that the refugees were forced to move to the stadium or that they were
threatened with death if they did not obey.
728. Once at the stadium, the refugees were guarded and their movement was
curtailed. However, the Chamber lacks sufficient reliable evidence to determine
whether the refugees were held at the stadium against their will. Moreover, the
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evidence was insufficient to determine whether the refugees’ movement at the
stadium was curtailed to incarcerate them or to ensure their protection. Therefore, the
Chamber is not satisfied that the Prosecutor proved beyond a reasonable doubt that
Bagambiki committed the crime of imprisonment as a crime against humanity.
729. Consequently, the Chamber finds Bagambiki not guilty on Count 5 of the
indictment against him for imprisonment as a crime against humanity under Article
3(e) of the Statute.
c. Imanishimwe
730. The Prosecutor charged Imanishimwe with four counts of crimes against
humanity: murder under Article 3(a) of the Statute in Count 9; extermination under
Article 3(b) in Count 10, imprisonment under Article 3(e) in Count 11; and torture
under Article 3(f) in Count 12. In alleging that Imanishimwe is individually
responsible for these crimes, pursuant to Articles 6(1) and 6(3) of the Statute, the
Prosecutor relied on paragraphs 3.17, 3.18, 3.20, 3.21, 3.22, 3.23, 3.24, 3.25, and 3.30
of the indictment against him.
731. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka Stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide.
However, the Chamber lacks sufficient evidence to determine whether Imanishimwe
participated in the preparation of lists of names for the purpose of eliminating the
identified individuals or whether he gave such lists to Interahamwe. The Chamber has
concluded in its factual findings that it lacks sufficient reliable evidence to determine
if Imanishimwe can bear any criminal responsibility for the deaths of these refugees.
732. The Chamber has found that, on 11 April 1994, soldiers arrested at least seven
refugees, including Witness LI, near Cyangugu Cathedral and took them to the
Karambo military camp in Cyangugu, as alleged in paragraph 3.20 of the indictment.
Upon arrival at the camp, the soldiers presented the refugees to Imanishimwe as
“Inyenzi-Inkotanyi” whom they had caught in the bush. The soldiers repeatedly kicked
and beat the refugees, including with the butts of their rifles, from the time of their
arrest and through their incarceration at the camp. Imanishimwe was present during a
part of the beatings, but he did not attempt to stop them. During their incarceration at
the camp, soldiers beat the detainees again with wooden sticks and rifle butts while
threatening to beat them to death.
733. In respect of allegations made against Imanishimwe in paragraph 3.21 of the
indictment, the Chamber has found that he participated in making the decision to
move the refugees from Cyangugu Cathedral to Kamarampaka Stadium. However, the
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Chamber has not found that Imanishimwe escorted the refugees from the cathedral to
the stadium, as alleged in paragraph 3.22.
734. In connection with paragraph 3.23, the Chamber has found beyond a
reasonable doubt that Imanishimwe was present at the cathedral and the stadium on 16
April 1994 when Bagambiki selected seventeen refugees for arrest and questioning
about their alleged ties to the RPF. Moreover, in respect of paragraph 3.18, the
Chamber has found beyond a reasonable doubt that soldiers participated in the arrest
of selected refugees at the cathedral and at the stadium on 16 April 1994. The
Chamber has found that Imanishimwe was present during these arrests. Imanishimwe
and his soldiers took the arrested refugees away for questioning concerning their ties
to the RPF. Later that evening or during the night sixteen of the refugees were killed.
The Chamber has concluded in its factual findings that it lacks sufficient reliable
evidence to determine whether Imanishimwe can bear any criminal responsibility for
the death of these sixteen refugees.
735. In connection with the allegations made in paragraphs 3.24 and 3.25 of the
indictment, the Chamber has found that an unknown number of Tutsi and Hutu
civilians were arrested on suspicion of being RPF accomplices and were taken to
Karambo military camp where soldiers mistreated them. In particular, the Chamber
has found beyond a reasonable doubt that, on 6 June 1994, Imanishimwe participated
with his soldiers in the arrest of civilians at Kamembe city market and that he
instructed soldiers to have Witness MG and his family killed at Gatandara, which was
prevented by gendarmes. The gendarmes took Witness MG and his family to the
gendarmerie camp. Subsequently, soldiers, acting on orders of Imanishimwe, removed
Witness MG, his father, and two sisters from the gendarmerie camp and incarcerated
them at Karambo military camp, where in the presence of Imanishimwe, the soldiers
severely beat Witness MG and another detainee and where they hammered a nail into
the foot of one detainee, removed the nail, and then hammered it into the foot of
another detainee. During this mistreatment, the soldiers questioned the detainees, all
of whom were Tutsi civilians, as to whether they were members of the RPF and
accused them of collaborating with the enemy. Imanishimwe did nothing to stop or
restrain the soldiers during their mistreatment of the detainees. As a result of this
mistreatment, Witness MG could not stand up for several days, and the two detainees
who were mistreated with the nail screamed in pain in their cell. Soldiers later
removed the two detainees who were never seen or heard from again.
736. The Chamber has also found that soldiers from Karambo military camp killed
or facilitated the killing of Witness LI’s brother and a former classmate, as well as
Witness MG’s sister and her cellmate Mbembe, all of whom the soldiers had first
incarcerated at the camp. The Chamber has inferred that Imanishimwe, as the
commander of the camp, issued orders to soldiers authorizing the arrest, detention,
mistreatment, and execution of civilians with suspected ties to the RPF.1654 As such,
the Chamber has found that soldiers killed or facilitated the killing of Witness LI’s
brother and his classmate and Witness MG’s sister and her cellmate Mbembe on the
orders of Imanishimwe. In addition, the Chamber has found that, at the end of June
1994, Imanishimwe ordered the detention of Witness MA.
1654
See supra para. 410.
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737. Finally, in connection with paragraphs 3.25 and 3.30, the Chamber has found
beyond a reasonable doubt that soldiers participated in the massacre of mainly Tutsi
civilian refugees at the Gashirabwoba football field on 12 April 1994.
(i) Finding: Count 9 of the Bagambiki/Imanishimwe Indictment - Murder
738. In alleging in Count 9 of the indictment that Imanishimwe is individually
responsible for murder as a crime against humanity, pursuant to Articles 6(1) and 6(3)
of the Statute, the Prosecutor relied on paragraphs 3.17, 3.18, 3.20, 3.21, 3.22, 3.23,
3.24, 3.25 and 3.30 of the indictment.
739. In connection with paragraphs 3.24 and 3.25, the Chamber has found that
soldiers killed or facilitated the killing of Witness LI’s brother and former classmate
and Witness MG’s sister and her cellmate Mbembe. The Chamber has inferred that
Imanishimwe, as the commander of the camp, issued orders to soldiers authorizing the
arrest, detention, mistreatment, and execution of civilians with suspected ties to the
RPF. In its findings on criminal responsibility, the Chamber has also found that
Imanishimwe can be held criminally responsible for the acts of the soldiers who were
the principal perpetrators of these killings under Article 6(3) because he knew or
should have known that his soldiers would participate in the killing of these refugees
and because he failed to prevent the crimes. The Chamber also recalls that
Imanishimwe did not punish any soldier in the camp for these killings.
740. In following the orders of Imanishimwe to kill civilians, the principal
perpetrators had the intention to kill prior to the act of killing. The murders can
therefore be described as premeditated. In light of the serious mistreatment and
killings of civilians by soldiers and given the orders issued by Imanishimwe to arrest,
detain, mistreat, and execute civilians with suspected ties to the RPF, the Chamber
finds that the soldiers who acted on Imanishimwe’s orders were aware that their
actions formed part of the systematic attack on political grounds against the civilian
population in Cyangugu. Therefore, the Chamber finds that the soldiers, who were
subordinates of Imanishimwe, acted under Imanishimwe’s orders to commit murder
as a crime against humanity in killing Witness LI’s brother and his classmate and
Witness MG’s sister and her cellmate Mbembe.
741. The Chamber finds that Imanishimwe’s order to kill the detainees substantially
supported the principal perpetrators in their acts of premeditated murder, given his
authority and role as the camp commander.
742. From the totality of the evidence of what occurred at the military camp and in
the region, the only reasonable inference that may be drawn is that Imanishimwe
acted intentionally in ordering civilians to be killed and with an awareness that he was
ordering the principal perpetrators to commit murder as part of the widespread attack
against the civilian population against the civilian population in Cyangugu.
743. Consequently, the Chamber finds that Imanishimwe is criminally responsible
pursuant to Article 6(1) for ordering murder as a crime against humanity in relation to
the deaths of Witness LI’s brother and his classmate and Witness MG’s sister and her
cellmate Mbembe.
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744. In connection with paragraphs 3.25 and 3.30, the Chamber has found beyond a
reasonable doubt that soldiers participated in the massacre of mainly Tutsi civilian
refugees at the Gashirabwoba football field on 12 April 1994. The Chamber has found
that at least fifteen soldiers arrived at the field, surrounded the refugees, opened fire,
and threw grenades at them for thirty minutes after the refuge es asked for peace. The
scale of the killings and the length of time required to kill such large numbers of
victims prove that these murders were premeditated. The Chamber further finds that
the soldiers were aware of the widespread attack on the civilian population and that
their acts formed part of this attack. Accordingly, the Chamber finds that these
soldiers committed murder as a crime against humanity. The Chamber recalls that it
was not established that Imanishimwe was present during the attack at the
Gashirabwoba football field on 12 April 1994. However, the Chamber has found in its
legal findings on criminal responsibility that the principal perpetrators were soldiers
under Imanishimwe’s effective control and that he knew or should have known that
they would participate in the attack. Thus, the Chamber finds that Imanishimwe is
criminally responsible for the acts of his subordinates at the Gashirabwoba football
field pursuant to Article 6(3) of the Statute because he failed to prevent the crime. The
Chamber also recalls that Imanishimwe did not punish any soldier at the camp for this
attack, which further indicates his acquiescence in the attack.
745. The murders committed by soldiers under Imanishimwe’s effective control at
the Gashirabwoba football field are also charged in Count 10 of the indictment as
extermination pursuant to Article 3(b) of the Statute. As the Chamber explained in the
Semanza Judgement, where murder and extermination constitute the same core
offence, and where convicting for both counts would not provide a better or more
complete description of the entire criminal conduct of the accused, a conviction for
both offences on the basis of ideal concurrence of crimes is not justified. 1655
Accordingly, the Chamber will refrain from entering a conviction for murder as a
crime against humanity in relation to the Gashirabwoba massacre because of its
finding, explained below, that Imanishimwe is guilty of extermination in relation to
these events.
746. The Chamber finds beyond a reasonable doubt that Imanishimwe is criminally
responsible under Article 6(1) of the Statute for murder as a crime against humanity
for ordering the killing of civilians by soldiers under his effective control. The
Chamber need not rely on Article 6(3) for its finding of guilt because ordering under
Article 6(1) is a more direct form of responsibility and better characterises
Imanishimwe’s role in the crime. Therefore, the Chamber finds Imanishimwe guilty
on Count 9 of the indictment against him.
(ii) Finding: Count 10 of the Bagambiki/Imanishimwe Indictment - Extermination
747. In alleging in Count 10 of the indictment that Imanishimwe is responsible for
extermination as a crime against humanity, pursuant to Articles 6(1) and 6(3) of the
Statute, the Prosecutor relied on paragraphs 3.17, 3.18, 3.20, 3.21, 3.22, 3.23, 3.24,
3.25, and 3.30 of the indictment.
1655
See Semanza, Judgment (TC), paras. 500-505.
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748. Imanishimwe’s responsibility for the allegations in these paragraphs has been
reviewed in the Chamber’s findings on murder as a crime against humanity. The
Chamber has found that Imanishimwe is responsible for ordering the murders of four
civilians. These four murders are distinct individual murders which do not rise to the
scale necessary for a finding of extermination.
749. The Chamber has also found that Imanishimwe bears superior responsibility
for the acts of subordinate soldiers under his effective control for the murders of
civilians at the Gashirabwoba football field on 12 April 1994. The Chamber has found
that there were approximately 3,000 refugees at the site prior to the attack by soldiers
and other assailants and that the majority of these refugees were killed. Although the
Chamber is not in a position to make a specific finding on the number of deaths at
Gashirabwoba during the attack, the Chamber has found that it was proven beyond a
reasonable doubt that a substantial number of refugees were killed. On the basis of
the reliable and credible evidence in relation to this event, the Chamber finds that the
element of mass killing was proven beyond a reasonable doubt. The Chamber has
found that the soldiers acted intentionally with knowledge that their acts formed part
of a widespread attack against the civilian population. The majority recalls that it has
found in its legal findings on criminal responsibility that Imanishimwe can be held
criminally responsible under Article 6(3) of the Statute for the acts of his soldiers
during the attack at Gashirabwoba football field because he failed to prevent the
crime.
750. Consequently, the Chamber finds that Imanishimwe is criminally responsible
under Article 6(3) of the Statute for extermination as a crime against humanity under
Article 3(b) for failing to prevent his soldiers’ attack on the refugees at the
Gashirabwoba football field on 12 April 1994. For the reasons expressed in his
separate opinion, Judge Dolenc is of the opinion that it is impermissible to convict on
Count 10 because the massacre at Gashirabwoba football field is not contained in the
indictment. Therefore, a majority of the Chamber, Judge Dolenc dissenting, finds
Imanishimwe guilty on Count 10 of the indictment against him.
(iii)Finding: Count 11 of the Bagambiki/Imanishimwe Indictment - Imprisonment
751. In alleging in Count 11 of the indictment that Imanishimwe is responsible for
imprisonment as a crime against humanity, pursuant to Articles 6(1) and 6(3) of the
Statute, the Prosecutor relied on paragraphs 3.17, 3.18, 3.21, 3.22, 3.24 and 3.25 of
the indictment.
752. Upon considering the evidence in paragraphs 3.17 and 3.18, the Chamber
finds that there is insufficient evidence to conclude that Côme Simugomwa and the
seventeen refugees removed from Kamarampaka Stadium and Cyangugu Cathedral
were imprisoned.
753. Upon considering the evidence related to paragraph 3.21, the Chamber finds
that there is insufficient evidence to determine that the refugees at Kamarampaka
Stadium were imprisoned, as discussed in greater detail in connection with the charge
against Bagambiki in Count 5.
754. In connection with the allegations made in paragraphs 3.24 and 3.25, the
Chamber has found that an unknown number of Tutsi and Hutu civilians were arrested
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under suspicion of being RPF accomplices and were taken to Karambo military camp
where soldiers mistreated them. The Chamber has found that the only reasonable
inference to be drawn from the totality of the evidence is that Imanishimwe issued
orders authorizing the arrest and detention of civilians with suspected ties to the RPF.
In particular, the Chamber has found that, on 11 April 1994, soldiers arrested and
detained Witness LI and six other refugees at Karambo camp. The Chamber has also
found that after 6 June 1994 soldiers incarcerated Witness MG, his father, and two
sisters at Karambo military camp. In addition, the Chamber has found that soldiers
incarcerated Witness MA at the end of June 1994. These arrests were not based on
valid warrants, nor were these civilians ever formally charged and informed of their
procedural rights. The Chamber finds that the soldiers acted intentionally in the
execution of Imanishimwe’s orders to incarcerate civilians at Karambo military camp.
The Chamber finds that the principal perpetrators, soldiers who were also involved in
the mistreatment and questioning of these detainees about suspected ties to the RPF,
were aware that their acts formed part of a systematic attack on political grounds
against the civilian population in Cyangugu.
755. The Chamber finds that by issuing orders authorizing the arrest and detention
of civilians with suspected ties to the RPF and by having knowledge that these acts
were carried out, Imanishimwe acted intentio nally and with awareness that he was
encouraging his subordinates to commit crimes against humanity. These orders
substantially contributed to the imprisonment of civilians at the Karambo military
camp, given Imanishimwe’s authority as the camp commander.
756. Consequently, the Chamber finds beyond a reasonable doubt that
Imanishimwe is criminally responsible under Article 6(1) of the Statute for
imprisonment as a crime against humanity under Article 3(e) for ordering the
incarceration of Witness LI and the six refugees arrested with him, Witness MG, his
father, and two sisters, and Witness MA. The Chamber need not rely on Article 6(3)
of the Statute for its finding of guilt because ordering under Article 6(1) is a more
direct form of responsibility and better characterises Imanishimwe’s role in the crime.
The Chamber, therefore, finds Imanishimwe guilty on Count 11 of the indictment
against him.
(iv) Finding: Count 12 of the Bagambiki/Imanishimwe Indictment - Torture
757.
In alleging in Count 12 of the indictment that Ima nishimwe is responsible for
torture as a crime against humanity, pursuant to Articles 6(1) and 6(3) of the Statute,
the Prosecutor relied on paragraphs 3.24 and 3.25 of the indictment.
758. In relation to paragraphs 3.24 and 3.25, the Chamber has found that soldiers
under Imanishimwe’s effective control and partly in his presence mistreated seven
refugees in their custody upon arresting them near Cyangugu Cathedral on 11 April
1994. The mistreatment included the soldiers kicking the detainees and beating them
with the butts of their rifles. Considering the evidence on the record, including the fact
that following their mistreatment, two of the victims were in a position to forcibly
escape from detention, the Chamber concludes that the mistreatment was not such as
to cause severe suffering or pain sufficient for a finding of torture.
759. The Chamber has also found that soldiers under Imanishimwe’s effective
control and in his presence severely beat Witness MG and another detainee and
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hammered a long nail into the foot of one of the other detainees, removed the nail, and
then hammered it into the foot of another detainee while questioning them about their
suspected affiliation with the RPF and accusing them of collaborating with the enemy.
As a result of this treatment, Witness MG could not stand up for several days. In
addition, the two detainees who were injured with the nail screamed in pain in their
cell. Solders later removed the two detainees who were never seen or heard from
again.
760. On the basis of the foregoing, the Chamber finds that, in mistreating Witness
MG and the other three detainees at the Karambo camp, the soldiers were acting
intentionally and with the prohibited purpose of obtaining information or confessions
from the detainees or of punishing them. Additionally, the Chamber finds that the
severe beating as well as the mistreatment with the long nail amounted to infliction of
severe physical pain. The Chamber has found that the soldiers at the camp had
knowledge that their actions formed part of a systematic attack on political grounds.
Thus, the Chamber finds that the soldiers committed torture as a crime against
humanity.
761. The Chamber has found that the only reasonable inference to be drawn from
the totality of the evidence of the mistreatment and killing of civilians at the Karambo
military camp and elsewhere in the region is that Imanishimwe issued orders
authorizing the arrest, detention, mistreatment, and execution of civilians with
suspected ties to the RPF. The Chamber finds that it was proven beyond a reasonable
doubt that by issuing such orders, Imanishimwe acted intentionally and with the
awareness that he was encouraging his subordinates to commit crimes against
humanity. This order substantially contributed to the torture of Witness MG and the
other three detainees with him during the torture, given Imanishimwe’s authority as
camp commander.
762. The Chamber also finds that Imanishimwe aided and abetted in the torture of
Witness MG and the other three detainees with him under Article 6(1) of the Statute,
given Imanishimwe’s presence in the immediate vicinity during the mistreatment. 1656
The Chamber finds that the principal perpetrators would have perceived
Imanishimwe’s presence during the torture as approval of their specific conduct and
methods of torture and that it would have had a substantial effect on their continued
criminal acts, in light of Imanishimwe’s role as camp commander, his failure to stop
the torture, the nature and frequency of unlawful acts occurring at the camp between
April and July 1994, his presence during prior mistreatment, and the Chamber’s
inference that Imanishimwe issued orders authorizing the mistreatment of civilians
with suspected connections to the RPF.
763. Consequently, the Chamber finds beyond a reasonable doubt that
Imanishimwe is criminally responsible under Article 6(1) of the Statute for torture as
a crime against humanity under Article 3(f) for ordering and aiding and abetting in the
torture of civilians. In its findings on criminally responsibility, the Chamber has also
found that Imanishimwe can be held criminal responsible for the actions of his
soldiers for these acts of torture under Article 6(3) of the Statute. The Chamber need
1656
See Semanza, Judgement (TC), paras. 385-386.
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not rely on Article 6(3) for its finding of guilt because ordering and aiding and
abetting under Article 6(1) are more direct forms of responsibility and better
characterise Imanishimwe’s role in the crime. Therefore, the Chamber finds
Imanishimwe guilty on Count 12 of the indictment against him.
D. Article 3 Common to the Geneva Conventions and Additional Protocol II
Thereto
764. The Prosecutor charged Ntagerura, Bagambiki, and Imanishimwe,
respectively, with serious violations of Common Article 3 and Additional Protocol II
under Article 4(a) of the Statute.
765. 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 intentional killing of another which need not be accompanied by a
showing of premeditation. 1657 Torture under Article 4 has the same essential elements
as those set forth for torture as a crime against humanity. 1658 Cruel treatment has been
defined as an intentional act or omission causing serious mental or physical suffering
or injury or constituting a serious attack on human dignity. 1659 The Chamber adopts
this definition. The Chamber notes and accepts that cruel treatment is treatment
causing serious mental or physical suffering, including that which may be short of the
severe suffering required for a finding of torture. 1660
766. The Chamber explained in the Semanza Judgement that in connection with
crimes within the scope of Article 4 of the Statute, the Prosecutor must prove, at the
threshold, the following elements: (1) the existence of a non- international armed
conflict on the territory of the concerned state; (2) the existence of a nexus between
the alleged violation and the armed conflict; and (3) the victims were not directly
taking part in the hostilities at the time of the alleged violation. If these elements are
proven beyond a reasonable doubt, the Chamber will proceed to assess whether the
accused is responsible for a specific violation of Common Article 3 or Additional
Protocol II. 1661
767. In the present case, the Chamber has taken judicial notice that “[b]etween 1st
January 1994 and 17th July 1994, in Rwanda, there was an armed conflict not of an
1657
Semanza, Judgement (TC), para. 373.
See supra para. 703. See also Semanza, Judgement (TC), paras. 374.
1659
See Celebici, Judgement (AC), para. 424. See also Naletilic and Martinovic, Judgement (TC), para.
246; Blaskic, Judgement (TC), para. 186; Jelisic, Judgement (TC), para. 41; Celebici Judgement (TC),
para. 552; Tadic, Judgement (TC), paras. 723-726. Cruel treatment as a violation of Common Article 3
is equivalent to inhuman treatment as a grave breach under the 1949 Geneva Conventions. See
Celebici, Judgement (TC), para. 551.
1660
Naletilic and Martinovic, Judgement (TC), para. 246; Celebici, Judgement (TC), paras. 542, 551.
1661
Semanza, Judgement (TC), paras. 354-371, 512.
1658
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international character.”1662 Accordingly, the first contextual element is established.
The Chamber will consider below, as necessary, whether the other elements have
been established in connection with the alleged violations.
1. Ntagerura Indictment
768. The Prosecutor charged Ntagerura with serious violations of Common Article
3 and Additional Protocol II under Article 4(a) of the Statute in Count 5 of the
indictment against him. In alleging that Ntagerura is individually responsible for this
crime, pursuant to Article 6(1) of the Statute, the Prosecutor relied on paragraphs 9 to
19, and particularly paragraphs 14.2, 16, and 18, of the indictment.
769. As discussed in section I.E of this Judgement, the Chamber has decided not to
make factual findings in respect of paragraphs 11, 12.1, 13, and 16 of the Ntagerura
Indictment because those paragraphs are impermissibly vague and fail to plead any
identifiable criminal conduct on the part of the accused. The Chamber has decided to
consider paragraph 10 as a general allegation because it refers to background material
and does not mention Ntagerura. The Chamber has also decided not to make findings
on paragraphs 12.2, 14.2, 15.1, and 15.2 of the indictment because the Prosecut ion
conceded that it had offered no proof in respect of them. Consequently, the Chamber
will not consider allegations made in these paragraphs in making a finding on Count 5
of the Ntagerura Indictment.
770. Upon considering the evidence related to paragraphs 9.1, 9.2, 9.3, 14.1, 14.3,
and 19 of the Ntagerura Indictment, the Chamber has found that the allegations made
against the accused in those paragraphs were not proven beyond a reasonable doubt.
In connection with paragraph 9.1 of the indictment, the Chamber has found that
Ntagerura attended and addressed a meeting at the Bushenge market on 7 February
1993. The Chamber notes that this meeting occurred outside the temporal scope of the
Tribunal’s jurisdiction and that the Prosecutor did not prove any link between
Ntagerura’s participation in the meeting and any subsequent act giving rise to his
criminal responsibility. While the Chamber has found that the Prosecutor proved the
allegations made in paragraphs 17 and 18 of the indictment, those paragraphs do not
allege any criminal conduct on the part of Ntagerura. Consequently, the Chamber
finds Ntagerura not guilty on Count 5 of the indictment against him for serious
violations of Common Article 3 and Additional Protocol II under Article 4(a) of the
Statute.
2. Bagambiki/Imanishimwe Indictment
a. Bagambiki
771. The Prosecutor charged Bagambiki with serious violations of Common Article
3 and Additional Protocol II under Article 4(a) of the Statute in Count 6 of the
Bagambiki/Imanishimwe Indictment. In alleging that Bagambiki is individually
1662
Prosecutor v. Ntagerura, Bagambiki, and Imanishimwe, ICTR 99-46-T, Oral Decision on the
Proposed Expert Reports and Evidence of Antoine Nyetera, Uwe Friesecke, and Wayne Madsen (TC),
T. 4 July 2002 p. 9.
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responsible for this crime, pursuant to Articles 6(1) and 6(3) of the Statute, the
Prosecutor relied on paragraphs 3.16, 3.17, 3.18, 3.19, 3.20, 3.21, 3.22, 3.23, 3.26,
3.27, and 3.28 of the indictment.
772. The Chamber has found that the allega tions made against Bagambiki in
paragraph 3.16 of the indictment were not proven beyond a reasonable doubt.
773. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka Stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide. The
Chamber lacks sufficient evidence to determine whether Bagambiki participated in
the preparation of lists of names for the purpose of eliminating the identified
individuals or whether he gave such lists to Interahamwe. The majority of the
Chamber, Judge Williams dissenting, lacks sufficient reliable evidence to determine if
Bagambiki can bear any criminal responsibility for the deaths of these refugees.
774. Paragraphs 3.19 and 3.20 of the indictment do not mention Bagambiki and, in
this section, the Chamber will discuss its findings in respect of these paragraphs only
if necessary.
775. Upon considering the evidence related to paragraph 3.21 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found beyond a reasonable
doubt that, on 15 April 1994, Bagambiki told refugees at Cyangugu Cathedral that
they were to be moved to Kamarampaka Stadium. However, there is no reliable
evidence on the record that the refugees who refused to move to the stadium were
threatened with death.
776. As concerns the allegations made against Bagambiki in paragraph 3.22 of the
indictment, the Chamber has found beyond a reasonable doubt that Bagambiki
escorted the refugees from the cathedral to the stadium and that, once the refugees
were in the stadium, their movement was curtailed. The Chamber has found that was
not proven beyond a reasonable doubt that refugees who attempted to leave the
stadium were forced back by gendarmes or that gendarmes or Interahamwe executed
refugees at the stadium.
777. In respect of the allegations made aga inst Bagambiki in paragraph 3.23 of the
indictment, the Chamber has found that, on 16 April 1994, Bagambiki came to the
cathedral accompanied by Imanishimwe and soldiers and that they took away four
refugees for questioning regarding their possible financial contributions to the RPF.
Subsequently, Bagambiki, accompanied by Imanishimwe, civilian and military
authorities, and soldiers, came to the stadium where he selected twelve Tutsi refugees
and one Hutu to be taken from the stadium for questioning because of their suspected
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connections with the RPF. In Bagambiki’s presence, soldiers arrested the selected
refugees and removed them from the stadium. These refugees joined the four other
Tutsi refugees who had just been removed from Cyangugu Cathedral. Sixteen of these
refugees were then killed during the evening or the night of 16 April 1994. A majority
of the Chamber, Judge Williams dissenting, has concluded in its factual findings that
it lacks sufficient reliable evidence to determine if Bagambiki can bear any criminal
responsibility for the deaths of the sixteen refugees removed from the stadium and the
cathedral on 16 April 1994. The Chamber finds that it has not been proven that
Bagambiki was involved in any other selection at the stadium.
778. A majority of the Chamber, Judge Williams dissenting, has found that the
allegations made against Bagambiki in paragraph 3.26 of the indictment were not
proven beyond a reasonable doubt.
779. Concerning the allegations made in paragraph 3.27 of the indictment, the
Chamber ha s found that, on 15 April 1994, Bourgmestre Kamana, commune police,
and conseillers of several sectors in Kagano commune participated in an attack on
refugees at Nyamasheke parish. The Chamber has further found that, on 18 April
1994, one of the gendarmes guarding Mibilizi parish distributed his grenades to the
attackers and that, on 26 April 1994, gendarmes mistreated the refugees taken from
Shangi parish at a gendarmerie camp.
780. The Chamber has determined in its legal findings on criminal responsibility
that Bagambiki can not be held criminally responsible as a superior under Article 6(3)
of the Statute for the acts of soldiers, gendarmes, or conseillers from Kagano
commune because the Prosecutor did not establish the existence of a superiorsubordinate relationship. In its legal findings on criminal responsibility, the Chamber
has also concluded that Bagambiki can not be held criminally responsible for the acts
of Kamana because it lacks sufficient reliable evidence to determine whether
Bagambiki knew or sho uld have known that Kamana would participate in the attack.
In addition, the Chamber lacks sufficient reliable evidence to determine whether
Bagambiki failed to take reasonable measures to punish Kamana for his role in the
massacre. The Chamber has further found that Bagambiki can not be held criminally
responsible for the acts of the Kagano commune police because the Prosecutor failed
to establish that Bagambiki knew or should have known about their participation in
the massacre.
781. In respect of paragraph 3.28 of the indictment, the Chamber has concluded in
its legal findings on criminal responsibility that Bagambiki cannot be held responsible
under Article 6(1) of the Statute for an omission of his duty to act under the Rwandan
Law on the Organisation and Function of the Prefecture.
(i) Finding: Count 6 of the Bagambiki/Imanishimwe Indictment
782. Upon considering the evidence related to paragraphs 3.16, 3.17, 3.18, 3.19,
3.20, 3.21, 3.22, 3.23, 3.26, 3.27, and 3.28 of the Bagambiki/Imanishimwe
Indictment, a majority of the Chamber, Judge Williams dissenting, finds that it was
not proven beyond a reasonable doubt that Bagambiki is criminally responsible for the
serious violations of Common Article 3 and Additional Protocol II set forth under
Article 4(a) of the Statute. The Prosecutor either failed to prove the allegations set
forth in these paragraphs with respect to the material facts of the crime or failed to
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adequately demonstrate that Bagambiki could be held criminally responsible as a
principal perpetrator, accomplice, or superior.
783. Consequently, a majority of the Chamber, Judge Williams dissenting, finds
Bagambiki not guilty on Count 6 of the indictment against him for the serious
violations of Common Article 3 and Additional Protocol II set forth under Article 4(a)
of the Statute.
b. Imanishimwe
784. The Prosecutor charged Imanishimwe with serious violations of Common
Article 3 and Additional Protocol II under Article 4(a) of the Statute in Count 13 of
the Bagambiki/Imanishimwe Indictment. In alleging that Imanishimwe is individually
responsible for this crime, pursuant to Articles 6(1) and 6(3) of the Statute, the
Prosecutor relied on paragraphs 3.17, 3.18, 3.20, 3.21, 3.22, 3.23, 3.24, 3.25, and 3.30
of the indictment.
785. Upon considering the evidence related to paragraphs 3.17 and 3.18 of the
Bagambiki/Imanishimwe Indictment, the Chamber has found that Bagambiki and
Imanishimwe received names of people with suspected ties to the RPF from assailants
who were threatening to attack Kamarampaka Stadium. The Chamber has found that
Bagambiki and Imanishimwe discussed these names with other members of the
prefectural security council and then removed sixteen Tutsis and one Hutu, who was a
local leader of a political opposition party, from Kamarampaka Stadium and
Cyangugu Cathedral on 16 April 1994. A majority of the Chamber, Judge Ostrovsky
dissenting, has found further that Bagambiki and Imanishimwe came to the
Gashirabwoba football field on 11 April 1994 looking for Ephrem and Côme
Simugomwa and that they removed Côme Simugomwa, who was a local leader of a
political opposition party. Côme Simugomwa was found dead after the genocide.
However, the Chamber lacks sufficient evidence to determine whether Imanishimwe
participated in the preparation of lists of names for the purpose of eliminating the
identified individuals or whether he gave such lists to Interahamwe. The Chamber has
concluded in its factual findings that it lacks sufficient reliable evidence to determine
if Imanishimwe can bear any criminal responsibility for the deaths of these refugees.
786. The Chamber has found that, on 11 April 1994, soldiers arrested at least seven
refugees, including Witness LI, near Cyangugu Cathedral and took them to the
Karambo military camp in Cyangugu, as alleged in paragraph 3.20 of the indictment.
Upon arrival at the camp, the soldiers presented the refugees to Imanishimwe as
“Inyenzi-Inkotanyi” whom they had caught in the bush. The soldiers repeatedly kicked
and beat the refugees, including with the butts of their rifles, from the time of their
arrest and through their incarceration at the camp. Imanishimwe was present during a
part of the beatings, but he did not attempt to stop them. During their incarceration at
the camp, soldiers beat the detainees again with wooden sticks and rifle butts while
threatening to beat them to death.
787. In respect of allegations made against Imanishimwe in paragraph 3.21 of the
indictment, the Chamber has found that he participated in making the decision to
move the refugees from Cyangugu Cathedral to Kamarampaka Stadium. However, the
Chamber has not found that Imanishimwe escorted the refugees from the cathedral to
the stadium, as alleged in paragraph 3.22.
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788. In connection with paragraph 3.23, the Chamber has found beyond a
reasonable doubt that Imanishimwe was present at the cathedral and the stadium on 16
April 1994 when Bagambiki selected seventeen refugees for arrest and questioning
about their alleged ties to the RPF. Moreover, in respect of paragraph 3.18, the
Chamber has found beyond a reasonable doubt that soldiers participated in the arrest
of the selected refugees at the cathedral and at the stadium on 16 April 1994. The
Chamber has found that Imanishimwe was present during these arrests. Imanishimwe
and his soldiers took the arrested refugees away for questioning concerning their ties
to the RPF. Later that evening or during the night sixteen of the refugees were killed.
The Chamber has concluded in its factual findings that it lacks sufficient reliable
evidence to determine whether Imanishimwe can bear any criminal responsibility for
the death of these sixteen refugees.
789. In connection with the allegations made in paragraphs 3.24 and 3.25 of the
indictment, the Chamber has found that unknown numbers of Tutsi and Hutu civilians
were arrested on suspicion of being RPF accomplices and were taken to Karambo
military camp where soldiers mistreated them. In particular, the Chamber has found
beyond a reasonable doubt that, on 6 June 1994, Imanishimwe participated with his
soldiers in the arrest of civilians at Kamembe city market and that he instructed
soldiers to have Witness MG and his family killed at Gatandara, which was prevented
by gendarmes. The gendarmes took Witness MG and his family to the gendarmerie
camp. Subsequently, soldiers, acting on orders of Imanishimwe, removed Witness
MG, his father, and two sisters from the gendarmerie camp and incarcerated them at
Karambo military camp, where in the presence of Imanishimwe, the soldiers severely
beat Witness MG and another detainee and hammered a nail into the foot of one
detainee, removed the nail, and then hammered it into the foot of another detainee.
During this mistreatment, the soldiers questioned the detainees, all of whom were
Tutsi civilians, as to whether they were members of the RPF and accused them of
collaborating with the enemy. Imanishimwe did nothing to stop or restrain the soldiers
during their mistreatment of the detainees. As a result of this mistreatment, Witness
MG could not stand up for several days, and the two detainees who were mistreated
with the nail screamed in pain in their cell. Soldiers later removed the two detainees
who were never seen or heard from again.
790. The Chamber has also found that soldiers from Karambo military camp killed
or facilitated the killing of Witness LI’s brother and a former classmate, as well as
Witness MG’s sister and her cellmate Mbembe, all of whom the soldiers had first
incarcerated at the camp. The Chamber has inferred that Imanishimwe, as the
commander of the camp, issued orders to soldiers authorizing the arrest, detention,
mistreatment, and execution of civilians with suspected ties to the RPF.1663 As such,
the Chamber has found that soldiers killed or facilitated the killing of Witness LI’s
brother and his classmate and Witness MG’s sister and her cellmate Mbembe on the
orders of Imanishimwe. In addition, the Chamber has found that, at the end of June
1994, Imanishimwe ordered the detention of Witness MA.
1663
See supra para. 410.
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791. Finally, in connection with paragraphs 3.25 and 3.30, the Chamber has found
beyond a reasonable doubt that soldiers participated in the massacre of mainly Tutsi
civilian refugees at the Gashirabwoba football field on 12 April 1994.
(i) Finding: Count 13 of the Bagambiki/Imanishimwe Indictment
Victims
792. Upon considering the evidence relevant to Count 13 of the indictment aga inst
Imanishimwe, the Chamber finds beyond a reasonable doubt that the victims, mainly
Tutsi refugees gathered at various sites in Cyangugu and other Tutsi civilians in the
prefecture, were not taking a direct part in the non- international armed conflict in
Rwanda at the time they suffered the alleged violations of Article 4(a) of the Statute.
Nexus
793. Recalling its discussion in the Semanza Judgement on determining the
existence of a nexus between the alleged offence and the underlying armed
conflict, 1664 the Chamber finds beyond a reasonable doubt that the said violations had
the requisite nexus with the armed conflict between the Rwandan government forces
and the RPF. The evidence shows that, on 6 June 1994, soldiers arrested Witness MG
and three other members of his family because of their suspected ties to the RPF.
Moreover, when soldiers subsequently beat and otherwise mistreated Witness MG and
his co-detainees at the military camp, they questioned them concerning whether they
were members of the RPF and accused them of collaborating with the enemy.
Similarly, on 11 April 1994, soldiers presented Witness LI and the other refugees
brought to the camp with him to Imanishimwe as “Inyenzi-Inkotanyi”, a reference to
those associated with the RPF. The Chamber finds that the soldiers’ actions were
motivated by their search for enemy combatants and those associated with them or, at
least, that their actions were carried out under the pretext of such a search. As such,
the Chamber considers that the soldiers were acting in furtherance of the armed
conflict or under its guise. Likewise, the Chamber considers that when soldiers took
part in the massacre of refugees at the Gashirabwoba football field on 12 April 1994,
they did so under the guise of the underlying armed conflict. This is sufficient to
establish that the alleged violations of Article 4(a) had the requisite nexus to the
armed conflict. 1665 The Chamber, therefore, finds that the element of nexus between
the crimes and the armed conflict has been satisfied.
Murder
794. The Chamber has found that soldiers under Imanishimwe’s effective control
participated in the killing of refugees at the Gashirabwoba football field. A group of at
least fifteen armed soldiers surrounded the refugees and, after the refugees had raised
their hands and asked for peace, the soldiers fired and threw grenades at them for
about thirty minutes, killing many of the refugees. The Chamber consequently finds
that in doing so the soldiers engaged in intentional killing of the refugees within the
1664
Semanza, Judgement (TC), para. 517.
Semanza, Judgement (TC), para. 517. See also Rutaganda, Judgement (AC), paras. 569, 570, 577579; Kunarac, Judgement (AC), para. 58.
1665
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205
scope of Article 4(a) of the Statute. Though it was not established that Imanishimwe
was present during the attack, the Chamber has found that he knew or should have
known that his subordinates would have participated in the attack. Thus, the Chamber
finds that Imanishimwe is criminally responsible for the acts of his subordinates at the
Gashirabwoba football field pursuant to Article 6(3) of the Statute because he failed to
prevent the crime. The Chamber also recalls that Imanishimwe did not punish any
soldier at the camp for this attack.
795. The Chamber has also found that soldiers under Imanishimwe’s effective
control and acting on Imanishimwe’s orders killed or facilitated the killing of Witness
LI’s brother and his classmate and Witness MG’s sister and her cellmate Mbembe.
The Chamber has no doubt that the soldiers acted with the intention to kill these four
individuals and, consequently, finds that the soldiers’ participation in the murder
constitutes a crime within Article 4(a) of the Statute. The Chamber has inferred that
Imanishimwe as the commander of the camp issued orders to soldiers authorizing the
arrest, detention, mistreatment, and execution of civilians with suspected ties to the
RPF. In its findings on criminal responsibility, the Chamber has also found that
Imanishimwe can be held criminally responsible under Article 6(3) for the acts of the
soldiers who were the principal perpetrators of these killings because he knew or
should have known that his soldiers would participate in the killing of these refugees
and because he failed to prevent the crimes. The Chamber also recalls that
Imanishimwe did not punish any soldier in the camp for these killings, which further
indicates his acquiescence in the attack.
Torture
796. The Chamber has found that soldiers under Imanishimwe’s effective control
and in his presence severely beat Witness MG and another detainee and hammered a
long nail into the foot of one detainee, removed the nail, and hammered it into the foot
of another detainee while questioning them whether they were members of the RPF
and accusing them of collaborating with the enemy. As a result of this mistreatment,
Witness MG could not stand up for several days, and the two detainees who had been
mistreated with the nail screamed in pain in their cell. Later, soldiers removed those
two detainees from the cell, and they were never seen or heard from again.
797. On the basis of the foregoing, the Chamber finds that, in mistreating Witness
MG and the other three detainees, the soldiers were acting intentionally and with the
aim of obtaining information or confessions from the detainees or punishing them.
Additionally, the Chamber finds that the severe beating and mistreatment with the
long nail amounted to infliction of severe physical pain. Consequently, the Chamber
finds beyond a reasonable doubt that this mistreatment constituted torture within the
scope of Article 4(a) of the Statute.
798. The Chamber has inferred that Imanishimwe, as the commander of the camp,
issued orders to soldiers authorizing the arrest, detention, mistreatment, and execution
of civilians with suspected ties to the RPF. The Chamber also finds that Imanishimwe
aided and abetted in the torture of Witness MG and the other three detainees within
the meaning of Article 6(1) of the Statute given Imanis himwe’s presence in the
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immediate vicinity during the mistreatment. 1666 The Chamber finds that the principal
perpetrators would have perceived Imanishimwe’s presence during the torture as
approval of their conduct. The Chamber finds that this presence would have had a
substantial effect on their criminal acts, in light of Imanishimwe’s role as camp
commander, his failure to stop the torture, the nature and frequency of unlawful acts
occurring at the camp between April and July 1994, his presence during prior
mistreatment, and the Chamber’s inference that Imanishimwe issued orders
authorizing the mistreatment of civilians with suspected connections to the RPF. In its
findings on criminal responsibility, the Chamber has also found that Imanishimwe can
be held criminally responsible under Article 6(3) for the acts of the soldiers who were
the principal perpetrators of these acts because he knew or should have known that his
soldiers would participate in the mistreatment of these refugees and because he failed
to prevent the crimes. The Chamber also recalls that Imanishimwe did not punish any
soldier in the camp for these acts.
Cruel Treatment
799. The Chamber has found that soldiers under Imanishimwe’s effective control
and partly in his presence mistreated seven refugees in their custody upon arresting
them near Cyangugu Cathedral on 11 April 1994. The mistreatment included the
soldiers kicking the detainees and beating them, including with the butts of their rifles.
This mistreatment started upon arrest and continued for approximately half a day.
During part of the mistreatment at Karambo military camp, the soldiers told the
detainees that they were going to beat them to death. Eventually, after soldiers took
the other detainees away, Witness LI and another detainee forced their way from their
cell, and Witness LI ran and swam to safety in Zaire.
800. Considering the evidence on the record, including the fact that following their
mistreatment, two of the victims were in a position to forcibly escape from detention,
the Chamber concludes that the mistreatment was not such as to cause severe
suffering or pain sufficient for a finding of torture. The Chamber has no doubt,
however, that the soldiers’ mistreatment of the detained refugees was intentional and
that, because of its long duration and the way it was carried out, it caused serious
physical suffering to the victims. Consequently, the Chamber finds that this
mistreatment constituted cruel treatment within the scope of Article 4(a) of the
Statute.
801. The Chamber has inferred tha t Imanishimwe, as the commander of the camp,
issued orders to soldiers authorizing the arrest, detention, mistreatment, and execution
of civilians with suspected ties to the RPF. The Chamber also finds that Imanishimwe
aided and abetted in the cruel treatment of Witness LI and the other six refugees with
him under Article 6(1) of the Statute, given Imanishimwe’s presence in the immediate
vicinity during part of the mistreatment. 1667 The Chamber finds that the principal
perpetrators would have perceived Imanishimwe’s presence during the cruel treatment
as approval of their specific conduct. The Chamber also finds that his presence would
have had a substantial effect on their continued criminal acts, in light of
Imanishimwe’s role as camp commander, his failure to stop the cruel treatment, the
1666
1667
Semanza, Judgement (TC), paras. 385-386.
Semanza, Judgement (TC), paras. 385-386.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
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nature and frequency of unlawful acts occurring at the camp between April and July
1994, and the Chamber’s inference that Imanishimwe must have issued orders
authorizing the mistreatment of civilians with suspected connectio ns to the RPF. In its
findings on criminal responsibility, the Chamber has also found that Imanishimwe can
be held criminally responsible under Article 6(3) for the acts of the soldiers who were
the principal perpetrators of these acts.
Conclusion
802. Conseque ntly, the Chamber finds beyond a reasonable doubt that
Imanishimwe is criminally responsible under Article 6(1) of the Statute for serious
violations of Common Article 3 pursuant to Article 4(a) of the Statute for ordering the
murder of Witness LI’s brothe r and his former classmate and Witness MG’s sister and
her cellmate Mbembe. The Chamber also finds that Imanishimwe is criminally
responsible under Article 6(1) of the Statute for ordering and aiding and abetting in
the torture of Witness MG and three othe r detainees mistreated with him and the cruel
treatment of Witness LI and six other detainees with him. The Chamber need not rely
on Article 6(3) of the Statute for these crimes because ordering and aiding and
abetting under Article 6(1) are more direct forms of responsibility which better
characterise Imanishimwe’s role in these crimes. The Chamber further finds beyond a
reasonable doubt that Imanishimwe is criminally responsible under Article 6(3) of the
Statute for serious violations of Common Article 3 pursuant to Article 4(a) of the
Statute for failing to prevent the crimes of his subordinates in relation to the events at
Gashirabwoba football field on 12 April 1994.
803. For the reasons expressed in his separate opinion, Judge Dolenc considers that
it would be impermissible to convict on Count 13 of the Bagambiki/Imanishimwe
Indictment because the Gashirabobwa massacre is not contained in the indictment and
because of the apparent ideal concurrence of the crimes charged therein with murder,
extermination, and torture as crimes against humanity charged in Counts 9, 10, and
12. Therefore, a majority of the Chamber, Judge Dolenc dissenting, finds
Imanishimwe guilty on Count 13 of the indictment against him.
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IV. THE VERDICT
804. For the reasons set out in this Judgement, having considered all the evidence
and arguments, the Trial Chamber finds in respect of Ntagerura as follows:
Unanimously:
Count 1:
NOT GUILTY of Genocide
Count 2:
NOT GUILTY of Conspiracy to Commit Genocide
Count 3:
NOT GUILTY of Complicity in Genocide
Count 4:
NOT GUILTY of Crimes Against Humanity (Extermination)
Count 5:
NOT GUILTY of Serious Violations of Article 3 Common to the
Geneva Conventions (Article 4(a) of the Statute)
Count 6:
NOT GUILTY of Complicity in Genocide
805. For the reasons set out in this Judgement, having considered all the evidence
and arguments, the Trial Chamber finds in respect of Bagambiki as follows:
Unanimously:
Count 2:
NOT GUILTY of Complicity in Genocide
Count 5:
NOT GUILTY of Crimes Against Humanity (Imprisonment)
Count 19:
NOT GUILTY of Conspiracy to Commit Genocide
By a majority:
Count 1:
NOT GUILTY of Genocide (Judge Williams dissenting)
Count 3:
NOT GUILTY of Crimes Against Humanity (Murder) (Judge Williams
dissenting)
Count 4:
NOT GUILTY of Crimes Against Humanity (Extermination)(Judge
Williams dissenting)
Count 6:
NOT GUILTY of Serious Violations of Article 3 Common to the
Geneva Conventions (Article 4(a) of the Statute)(Judge Williams
dissenting)
806. For the reasons set out in this Judgement, having considered all the evidence
and arguments, the Trial Chamber finds in respect of Imanishimwe as follows:
Unanimously
Count 8:
NOT GUILTY of Complicity in Genocide
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
Count 9:
GUILTY of Crimes Against Humanity (Murder)
Count 11:
GUILTY of Crimes Against Humanity (Imprisonment)
Count 12:
GUILTY of Crimes Against Humanity (Torture)
209
By a majority:
Count 7:
GUILTY of Genocide (Judge Dolenc dissenting)
Count 10:
GUILTY of Crimes Against Humanity (Extermination)(Judge Dolenc
dissenting)
Count 13:
GUILTY of Serious Violations of Article 3 Common to the
Geneva Conventions (Article 4(a) of the Statute)(Judge Dolenc
dissenting)
807. The Chamber recalls that it has previously found Imanishimwe not guilty on
Count 19 for conspiracy to commit genocide. 1668
1668
T. 6 March 2002 pp. 54, 68.
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210
V. SENTENCING
808. The Chamber has found Imanishimwe guilty on Counts 7, 9, 10, 11, 12, and
13 of the indictment against him for genocide, crimes against humanity, and serious
violations of Common Article 3. Accordingly, the Chamber now addresses the issue
of sentencing Imanishimwe pursuant to Article 22 of the Statute.
809. In accordance with Article 23 of the Statute and Rule 101 of the Rules, the
Chamber will consider the general sentencing practice in Rwanda, the gravity of the
offences, and the individual circumstances of the accused, as well as any other
aggravating or mitigating circumstances.
A. Sentencing Principles and Practices
810. The Chamber has also taken into consideration the sentencing practice in the
Rwandan courts, as evidenced by the penalties for similar crimes prescribed in the
Rwandan Penal Code and the Organic Law, 1669 as well as the sentencing practices of
this Tribunal and of the International Criminal Tribunal for the Former Yugoslavia. In
doing so, the Chamber has not lost sight of its overarching obligation to tailor the
sentence to the gravity of the crime and to the individual circumstances of the
offender. 1670
811. The Rwandan Penal Code provides for fixed term sentences of up to a
maximum of twenty years’ imprisonment or, exceptionally, up to thirty years’
imprisonment in cases of concurrent offences. 1671 The most serious crimes, such as
murder, may be punished by life imprisonment or death. 1672 The Code specifically
provides that accomplices may be subject to the same penalties as the principal
authors of the crime. 1673 The Rwandan Organic Law indicates that, even for genocide
and crimes against humanity, the ordinary Penal Code sentences shall apply with
certain modifications, which include heightened penalties of death and life
imprisonment, respectively, for Categories 1 and 2 perpetrators. 1674
812. The Chamber has also examined the sentencing practice of this Tribunal and
of the International Criminal Tribunal for the Former Yugoslavia. The Chamber notes
1669
Loi Organique n° 08/96 du 30/08/96 Sur L’organisation des poursuites des infractions constitutives
du crime de génocide ou de crimes contre l’humanité, commises a partir du 1er Octobre 1990, Journal
Officiel n° 17 du 1/9/1996 (Rwanda).
1670
Semanza, Judgement (TC), para. 560; Celebici, Judgement (AC), paras. 717, 719 (“[T]he Appeals
Chamber notes that as a general principle such comparison is often of limited assistance. While it does
not disagree with a contention that it is to be expected that two accused convicted of similar crimes in
similar circumstances should not in practice receive very different sentences, often the differences are
more significant than the similarities, and the mitigating and aggravating factors dictate different
results. They are therefore not reliable as the sole basis for sentencing an individual.”).
1671
C. Pén. arts. 35, 93 (Rwanda).
1672
See, e.g., C. Pén. arts. 311-317 (Rwanda).
1673
C. Pén. art. 89 (Rwanda).
1674
Loi Organique n° 08/96 du 30/08/96 Sur L’organisation des poursuites des infractions constitutives
du crime de génocide ou de crimes contre l’humanité, commises a partir du 1er Octobre 1990, Journal
Officiel n° 17 du 1/9/1996, art. 14 (Rwanda).
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211
that the practice of awarding a single sentence for the totality of an accused’s conduct
makes it difficult to determine the range of sentences for each specific crime. 1675
Notwithstanding this difficulty, it is possible to ascertain general ranges of sentences
which may provide useful guidance to the Chamber in determining the appropriate
sentence in this case.
813. Principal perpetrators convicted of either genocide or extermination as a crime
against humanity, or both, have been punished with sentences ranging from fifteen
years’ imprisonment 1676 to life imprisonment. 1677 Secondary or indirect forms of
participation have generally resulted in a lower sentence. For example, Georges
Ruggiu received a twelve year sentence for incitement to commit genocide after a plea
of guilty, 1678 and Elizaphan Ntakirutimana received a ten year sentence for aiding and
abetting genocide, with a special emphasis on his advanced age. 1679
814. While the Chamber has considered the sentencing ranges, it has not lost sight
of its overarching obligation to tailor the sentence to the gravity of the crime and to
the individual circumstances of the offender. 1680
815. The Prosecution has recommended life imprisonment for each count on which
the accused is convicted. 1681 According to Rule 101, an accused, upon conviction,
may be sentenced to imprisonment for a fixed term or for the remainder of his life.
The Chamber considers that life imprisonment, which is the highest penalty
permissible under the ICTR Statute, should be reserved for the most serious offenders,
such as individuals who planned, led, or ordered a particular criminal act, or
individuals who committed crimes with particular cruelty, and underscores the
significance of the principle of gradation in sentencing, which allows the Chamber to
distinguish among crimes, based on their gravity. 1682
816. The Chamber acknowledges that Article 23 of the Statute and Rule 101(A)
endorse the principle of gradated sentencing, insofar as they provide for flexibility in
determining the sentence to be imposed. Accordingly, convictions for genocide,
crimes against humanity, or serious violations of Common Article 3 and Additional
Protocol II, pursuant to Articles 2, 3, and 4 of the Statute, may each engender the
highest sentence if the circumstances of the case, after assessment of any mitigating
and individual factors, are deemed to so require. However, not all individuals who are
1675
See, e.g., Semanza, Judgement (TC), para. 564.
Semanza, Judgement (TC), para. 585; Serushago, Sentence (TC), p. 15.
1677
Musema, Judgement (TC), para. 1008; Rutaganda, Judgement (TC), para. 473; Kayishema and
Ruzindana, Sentence (TC), para. 27; Akayesu , Sentence (TC), p. 13; Kambanda, Judgement (TC), p.
28.
1678
Ruggiu, Judgement (TC), p. 19.
1679
Ntakirutimana, Judgement (TC), paras. 898, 906, 921.
1680
Celebici, Judgement (AC), paras. 717, 719 (“[T]he Appeals Chamber notes that as a general
principle such comparison is often of limited assistance. While it does not disagree with a contention
that it is to be expected that two accused convicted of similar crimes in similar circumstances should
not in practice receive very different sentences, often the differences are more significant than the
similarities, and the mitigating and aggravating factors dictate different results. They are therefore not
reliable as the sole basis for sentencing an individual.”).
1681
T. 11 August 2003 p. 53.
1682
See Semanza, Judgement (TC), para. 560; Ntakirutima, Judgement (TC), para. 884 ; Musema,
Judgement (AC), paras. 381-382; Delalic, Judgement (AC), para. 849.
1676
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212
convicted of one or more of the three enumerated crimes in Articles 2, 3, and 4 will
necessarily be sentenced to serve the most severe punishment. 1683
B. Aggravating Factors
817. The Prosecutor alleged several aggravating factors to be considered in the
Chamber's determination of an appropriate sentence. The Chamber acknowledges,
however, that only those allegations that were proven beyond a reasonable doubt may
be considered in aggravation of Imanishimwe’s sentence. 1684
818. Imanishimwe, as commander of the Karambo military camp in Cyangugu,
abused his position as a trained military officer responsible for the command of his
soldiers. Indeed the Chamber has found that Imanishimwe had or should have had
knowledge of the criminal offences committed by the soldiers under his effective
control but that he failed to prevent or to punish such offences. It has also been
determined that these soldiers would have perceived Imanishimwe’s failure to prevent
or to punish their crimes to signify his approbation. Similarly, the Chamber ha s found
that Imanishimwe's presence during the commission of some of the soldiers' offences,
including the torture and mistreatment of victims at the Karambo military camp, to
represent approval of their criminal conduct. It is particularly egregious that, as a
military officer with the mandate to provide national security, Imanishimwe was
responsible for his subordinates' attacks on and mistreatment of numerous individuals,
primarily of Tutsi ethnicity, as well as for promoting insecurity in the Cyangugu
prefecture.
819. Although Imanishimwe may not have had a significant role in the context of
the wider conflict in Rwanda, his criminal conduct and the nature of the crimes for
which he bears criminal responsibility are of grave significance. He was the
commander of a military camp and responsible for the conduct of all soldiers in the
entire Cyangugu prefecture. As such, he would have been respected by his
subordinates and would have set an example by his behaviour. The Chamber finds
that Imanishimwe was in a position to exert effective control over the soldiers under
his command and that he could have played a significant role in the prevention of
crimes. However, instead of doing so, Imanishimwe ordered, aided and abetted in, or
sanctioned the commission of the crimes in Cyangugu prefecture. Accordingly, the
Chamber finds that the command role played by Imanishimwe in Cyangugu
prefecture to constitute an aggravating factor in sentencing.
C. Mitigating Factors
820. The Imanishimwe Defence made no sentencing submissions. However, it
presented a detailed description of Imanishimwe's professional background prior to
the conflict in Rwanda in 1994. The Chamber notes that Imanishimwe’s background
1683
See Nitakirutima, Judgement (TC), para. 886.
Semanza, Judgement (TC), para. 565; Ntakirutimana, Judgement (TC), para. 893; Delalic,
Judgement (AC), para. 763; Vasiljevic, Judgement (TC), para. 272.
1684
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
213
prior to the 1994 conflict in Rwanda, as submitted by the Defence, 1685 includes work
with several religious and benevolent associations, as well as a university degree in
social sciences and military studies, followed by five years of military command
experience. The Chamber does not consider Imanishimwe’s background, as submitted
by the Defence, to be a factor to mitigate his sentence. The Chamber notes that the
Imanishimwe Defence made no submissions concerning any significant personal,
medical, or other relevant circumstances that could influence sentencing
considerations.
D. Conclusion
1. Genocide and Extermination (Counts 7 and 10)
821. Imanishimwe has been convicted pursuant to Article 6(3) of the Statute for the
killings perpetrated by soldiers under his authority and effective control at the
Gashirabwoba football field on 12 April 1994. For this massacre, the Chamber
entered convictions against Imanishimwe for genocide (Count 7) and extermination as
a crime against humanity (Count 10).
822. Having considered the relevant sentencing practices, Rwandan law, as well as
Imanishimwe’s individual circumstances, the Chamber finds that the appropriate
sentence for the accused for the crime of genocide (Count 7) and crimes against
humanity (Count 10) is two terms of fifteen years’ imprisonment.
823. As these crimes are based on an identical set of facts, the massacre of Tutsi
refugees at the Gashirabwoba football field on 12 April 1994, the sentences for these
two crimes will run concurrently.
2. Murder, Imprisonment, and Torture as Crimes Against Humanity (Counts 9, 11,
and 12) and Murder, Torture, and Cruel Treatment as Serious Violations of
Common Article 3and Additional Protocol II (Count 13)
824. Imanishimwe has been convicted pursuant to Article 6(1) for ordering the
murder of Witness LI’s brother and his former classmate and for the murder of
Witness MG’s sister and her cellmate Mbembe. Imanishimwe has also been convicted
pursuant to Article 6(1) for ordering the imprisonment of civilians at the Karambo
military camp in Cyangugu including Witness LI and the six refugees arrested with
him, Witness MG, his father, his two sisters, and Witness MA. In addition,
Imanishimwe has also been convicted pursuant to Article 6(1) for ordering and aiding
and abetting in the torture of Witness MG and the three detainees tortured with him as
well as the cruel treatment of Witness LI and the six refugees arrested with him.
Imanishimwe has been convicted pursuant to Article 6(3) for failing to prevent his
soldiers participation in the massacre at the Gashirabwoba football field. For the
ordering, aiding and abetting in, or failing to prevent these crimes, the Chamber has
entered convictions against Imanishimwe for murder (Count 9), imprisonment (Count
1685
Imanishimwe Defence Closing Brief, paras. 31, 33.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
214
11), and torture (Count 12) as crimes against humanity and for serious violations of
Common Article 3 (Count 13).
825. Having considered the relevant sentencing practices, Rwandan law, as well as
Imanishimwe’s individual circumstances, the Chamber finds that the appropriate
sentence for the accused for murder as a crime against humanity (Count 9) is ten
years’ imprisonment. The Chamber finds that the appropriate sentence for the accused
for the crime of imprisonment as a crime against humanity (Count 11) is three years’
imprisonment. The Chamber finds that the appropriate sentence for the accused for
torture (Count 12) as a crime against humanity is ten years’ imprisonment. The
Chamber considers that the convictions for crimes against humanity should run
concurrently because they are based on connected events at the military camp and are
based in part on the same orders issued by Imanishimwe authorizing the arrest,
detention, mistreatment, and execution of individuals with suspected ties to the RPF.
826. The conviction for serious violations of Common Article 3 is based, in part, on
the same facts as those for the conviction for crimes against humanity, specifically
murder and torture. With this in mind, the Chamber finds that the conviction on Count
13 should mirror the concurrent sentence accorded for those crimes as well as take
into consideration Imanishimwe’s criminal responsibility for cruel treatment.
Therefore, the Chamber finds that the appropriate sentence for serious violations of
Common Article 3 (Count 13) is twelve years’ imprisonment. The Chamber also
considers that this sentence should run concurrently with the convictions for crimes
against humanity.
3. Conclusion
827. The Chamber finds that the concurrent sentences for Counts 9, 11, 12, and 13
shall be served consecutively to the concurrent sentences for Counts 7 and 10.
Accordingly, Imanishimwe’s total sentence shall be twenty-seven years’
imprisonment.
828. Imanishimwe is entitled to credit for time served to be calculated from the date
of his initial arrest in Kenya on 11 August 1997. Credit for time served has been
calculated as six years, six months, and fourteen days. Therefore, as of 25 February
2004, there will remain twenty years, five months, and sixteen days in Imanishimwe’s
sentence.
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215
VI. CONSEQUENTIAL ORDERS
829. André Ntagerura and Emmanuel Bagambiki are acquitted on all counts in the
indictments against them. Pursuant to Rule 99 (A), the Trial Cha mber orders the
immediate release of André Ntagerura and Emmanuel Bagambiki from the Tribunal’s
detention facilities and directs the Registrar to make the necessary arrangements.
830. This order is without prejudice to any such further order that may be made by
the Trial Chamber pursuant to Rule 99 (B) of the Rules of Procedure and Evidence.
831. In accordance with Rules 102(A) and 103, Samuel Imanishimwe shall remain
in the custody of the Tribunal pending transfer to the State where he will serve his
sentence.
832. Judge Williams, Judge Ostrovsky, and Judge Dolenc append their separate
and/or dissenting opinions to this Judgement.
833.
Done in English and French, the English text being authoritative.
Arusha, 25 February 2004
Lloyd G. Williams, QC
Yakov Ostrovsky
Pavel Do lenc
Presiding Judge
Judge
Judge
[Seal of the Tribunal]
International Criminal Tribunal for Rwanda
Tribunal Pénal International pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER III
Original: English
Before Judges:
Lloyd G. Williams, QC, Presiding
Yakov Ostrovsky
Pavel Dolenc
Registrar:
Adama Dieng
Judgement of:
25 February 2004
THE PROSECUTOR
v.
ANDRÉ NTAGERURA
EMMANUEL BAGAMBIKI
SAMUEL IMANISHIMWE
Case No. ICTR-99-46-T
____________________________________________________________________
DISSENTING OPINION OF JUDGE WILLIAMS
_____________________________________________________________________
Counsel for the Prosecution:
Richard Karegyesa
Holo Makwaia
Andra Mobberley
Counsel for André Ntagerura:
Benoït Henry
Hamuli Rety
Counsel for Emmanuel Bagambiki:
Vincent Lurquin
Seydou Doumbia
Counsel for Samuel Imanishimwe:
Marie Louise Mbida
Jean-Pierre Fofé
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
DISSENTING OPINION OF JUDGE WILLIAMS
A. Introduction
1. The findings on facts and on law in this case have been reached large ly on
unanimous agreement, save in some instances where a majority decision had to be
made. However, based on those very same factual findings it has become necessary
for me to hand down a separate, and dissenting, opinion highlighting inferences,
which I feel must be drawn in the context of the overall circumstances presented in
the evidence, the resultant effects of which stand to have a significant impact on the
verdict in the case as a whole.
2. It is established law that circumstantial evidence, that is, indirect evidence from a
witness who saw or heard something, can be used to draw a reasonable inference on
another fact. The inferences being drawn in this opinion are based on facts which the
Chamber has found to have been proven. Many convictions for various crimes have
rested largely on circumstantial evidence, where the circumstances of the case,
coupled with proven facts, when taken as a whole and in the context of the situation,
provide strong evidence pointing towards the guilt of the accused. In these
circumstances, the Chamber can, in the interest of justice, draw reasonable inferences
so that the final outcome of the case is not determined simply by technicalities and the
lack of direct evidence.
3. The opinion expressed herein concerns only Bagambiki’s involvement in two
events: the situation at the football field in Gashirabwoba on 11 and 12 April 1994,
and his role in the removal of the refugees from Cyangugu Cathedral and
Kamarampaka Stadium on 16 April 1994.
B. Gashirabwoba
4. The Chamber’s findings, show that Bagambiki’s testimony with regard to the
removal of Côme Simugomwe and the massacre at the Gashirabwoba football field
was discredited. 1 He claimed not to have known that Côme Simugomwe had been
removed from the football field, or that refugees had gathered there at all, until after
the massacre. On the evidence presented, however, and contrary to Bagambiki’s
assertions, he must have known that refugees were gathered at the field given the
Chamber’s finding that he was there the day before the attack, on 11 April 1994, when
he removed Côme, purportedly for questioning. Côme Simugomwa was later found
dead.2
5. As stated in paragraph 435 of the Judgement, “Prosecution Witness LAC provided
a convincing fist hand account of what occurred at the Gashirabwoba football field.”
1
2
Cyangugu, Judgement (TC), paras. 435, 437, 441.
See, Cyangugu, Judgement (TC), para. 437.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
The Chamber accordingly found this witness’s testimony to be both “credible and
reliable.”3
6. Witness LAC stated that during the attacks at the Gashirabwoba football field on
12 April 1994, Bagambiki and Nsabimana, the director of the Shagasha tea factory,
came to the field for about thirty minutes and asked the refugees to explain the
situation. 4 After the refugees explained the situation to Bagambiki, he promised to
send soldiers to protect them and then left with Nsabimana. 5 An hour later, the
refugees at the field saw armed soldiers, accompanied by factory guards, climbing to
the summit over the football field. 6 Having surrounded the refugees, ten to fifteen
soldiers fired on them. 7 The refugees asked for peace, but the soldiers told the m to
raise their hands and then began to throw grenades while shooting in all directions.8
This attack went on for about thirty minutes, and was followed by looting of the
refugees’ property, after which the Interahamwe were sent in to finish off the
remaining survivors. 9
7. From this evidence, which was accepted by the Chamber, I am inclined to draw
the only logical inference that can possible be drawn: that is that true to his promise,
Bagambiki did indeed send soldiers to the field. Nsabimana’s presence at the field
with Bagambiki at the time the promise was made explains how the soldiers came to
be accompanied by tea factory guards. It is reasonable to conclude that soldiers would
have been unlikely to engage in such a large scale massacre without the tacit approval
of their commander, for which the Chamber found Imanishimwe criminally
responsible under Article 6(3). 10 Further, the evidence also shows that these soldiers
came heavily armed. Instead of offering the protection that was promised by
Bagambiki and expected by the refugees, a savage attack commenced resulting in the
deaths of many. This evidence, coupled with Bagambiki’s testimony with regard to
his knowledge of the event which has been found to be false by the Chamber, leads
me to conclude that the attack was the result of instructions, either directly or
indirectly given to the soldiers and factory guards by, or with the tacit approval of,
Bagambiki and Nsabimana with the cooperation of Imanishimwe.
8. In its legal findings, the Chamber described the actions of the soldiers during the
massacre at Gashirabwoba as genocide, extermination as a crime against humanity,
and murder as a serious violation of Article 3 Common to the Geneva Conventions.
By giving instructions to soldiers and factory guards to participate in the massacre,
Bagambiki aided and abetted in these crimes and, in my view, is criminally
responsible under Article 6(1) of the Statute. In my opinion, the only reasonable
inference to be drawn from the evidence is that Bagambiki acted intentio nally with
full knowledge and consent that the soldiers and factory guards would participate in
the attack. In addition, given Bagambiki’s role as prefect, his instructions would have
3
Cyangugu, Judgement (TC), para. 435.
T. 9 October 2000 pp. 33, 35, 69; T. 9 October 2000 pp. 35, 36.
5
T. 9 October 2000 pp. 35, 36.
6
T. 9 October 2000 pp. 37, 39.
7
T. 9 October 2000 p. 39.
8
T. 9 October 2000 p. 38.
9
T. 9 October 2000 pp. 39, 40.
10
See Cyangugu, Judgement (TC), paras. 654, 691.
4
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
substantially contributed to the principal perpetrator’s commission of the crime. I
therefore would find Bagambiki guilty on Count 1 for aiding and abetting in genocide,
Count 4 for aiding and abetting in extermination as a crime against humanity, and
Count 6 for aiding and abetting in murder as a serious violation of Article 3 Common
to the Geneva Conventions.
C. Kamarampaka
9. Mindful of several minor differences, the Chamber has found that Prosecution
Witnesses LY, LI, NL, LCJ, LCA, LCH, and NI provided largely consistent, credible
and reliable, first-hand accounts of the chronology of the events at the Cyangugu
Cathedral and Kamarampaka Stadium. 11 The Chamber has found that between 3:00
and 4:00 p.m. on 16 April 1994, Bagambiki, Imanishimwe, Munyarugerero,
Ndolimana, and some soldiers came to the cathedral, searched for, and took away
Jean-Marie Vianney Habimana, Vital, Felicien, and Ananias Gatake, purportedly for
questioning regarding their possible financial contributions to the RPF. 12 These four
people were taken to Kamarampaka Stadium and made to wait outside, under guard,
while Bagambiki, Imanishimwe, and others selected thirteen refugees, twelve Tutsi
and one Hutu, from the stadium using a pre-established list. 13 The Chamber further
found that the twelve Tutsi refugees were executed along with the four other Tutsis
selected and removed from the Cyangugu Cathedral by the same authorities a short
while earlier. 14
10. In light of the Chamber’s finding on the selection and subsequent execution of the
refugees, it is necessary, I believe, to draw attention to the testimony of Witness LCJ.
According to the witness, Bagambiki explained that the people whose names he read
out were disrupting the security of the Hutu population, had weapons and military
uniforms, and were thus being taken away for questioning and to have “their fate
decided.”15 The witness noted that at the end of Bagambiki’s speech some of the
refugees applauded. 16 The witness recalled that some of those whose names had been
read were frightened, but others stepped forward. 17 The witness stated that as Benoît
Sibomana walked past Bagambiki he took out his rosary and said that he would go to
heaven whereas Bagambiki would remain on earth for his deeds. 18 The witness also
recalled hearing Sibomana ask those remaining at the stadium to recite litanies and to
pray for him. 19 The witness testified that the people who stepped forward were lined
up and escorted by soldiers out of the stadium. 20 Witness LCJ testified that she later
learned from a gendarme, named Jean Baptiste Habakurama, that the people on the
list, as well as Jean-Marie Vianney Habimana who had been removed a short while
11
See Cyangugu, Judgement (TC), para. 308.
T. 22 February 2001 pp. 111-113; T. 26 February 2001 pp. 164-170.
13
See Cyangugu, Judgement (TC), para. 318.
14
See Cyangugu, Judgement (TC), para. 337.
15
T. 22 May 2001 pp. 10-11; T. 23 May 2001 p. 94.
16
T. 23 May 2001 p. 95.
17
T. 22 May 2001 p. 11.
18
T. 22 May 2001 p. 12.
19
T. 22 May 2001 p. 12.
20
T. 22 May 2001 p. 11.
12
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
earlier from the Cathedral, had been taken away by Bagambiki and handed over to
Interahamwe who killed them on 16 April 1994. 21
11. In this regard, I would also draw attention to the testimony of Witness LY. The
Witness testified that he followed Bagambiki’s pick-up truck from the cathedral to
Kamarampaka Stadium and parked near the officials’ vehicles which were just outside
the stadium. 22 Witness LY stated that he spoke briefly with Bagambiki inside the
stadium and observed refugees being lined up and Bagambiki, Imanishimwe,
Ndolimana, and Munyarugerero pointing at a black diary held by Munyarugerero. 23
The witness stated that he later learned from the refugees at the stadium that the
authorities selected thirteen people to be taken for questioning. 24 According to the
witness, he heard gunshots after he returned to the parish, so he asked the bishop to
phone Bagambiki to find out if the four people taken from the cathedral had been
shot. 25 The witness recounted that the bishop told him that Bagambiki said that the
Interahamwe had taken the four refugees, and that they were probably the ones who
had been shot. 26 Witness LY received confirmation of this information from refugees
who telephoned from the stadium to say that thirteen refugees from the stadium and
the four refugees from the cathedral were removed and killed, with the exception of
Marianne. 27
12. There is on the record testimony from witnesses accepted as credible and reliable,
that these refugees who were taken away were apparently required for questioning by
the authorities on their suspected links with the RPF. Based on the eye-witness
account of Witness NL, the Chamber found that Imanishimwe, who was with
Bagambiki at the time, and soldiers left the stadium with the thirteen people and
placed twelve of them in the vehicle with the four refugees from the cathedral.
Marianne Baziruwiha, who was the head of the PSD party and a Hutu, was placed in
the car of the gendarmerie commander. Bagambiki left the stadium a few minutes
later. 28 It is significant that the one Hutu in the group of selected refugees did not
suffer the same fate as the Tutsis, having been taken away and kept in safe custody.
One may well ask why was she separated from the Tutsi refugees? Why were not the
Tutsi refugees also sent to a safe place?
13. That Bagambiki was present at the time of this selection, and indeed part of the
exercise, was accepted by the Chamber. He denounced the selected refugees as being
a threat to the Hutu population, and as conspirators with the RPF, in front of soldiers
who were anti- Tutsi and within earshot of Interahamwe. Amidst the political climate
21
T. 22 May 2001 pp. 13-15; T. 23 May 2001 p. 95; T. 24 May 2001 p. 6.
T. 22 February 2001 p. 113; T. 26 February 2001 pp. 170-171.
23
T. 22 February 2001 pp. 113-114; T. 26 February 2001 pp. 172-177; T. 27 February 2001 pp. 6, 1415; T. 28 February 2001 p. 60.
24
T. 22 February 2001 pp. 111, 112. The Chamber noted that the witness in his statement indicated that
he actually saw the thirteen people being removed.
25
T. 22 February 2001 p. 114; T. 27 February 2001 pp. 3, 22. The Chamber noted that the witness
initially stated that he heard the shots only a few minutes after returning to the parish and in crossexamination noted that it was “a good time” after returning to the parish.
26
T. 22 February 2001 p. 115; T. 28 February 2001 pp. 51-52, 65.
27
T. 22 February 2001 p. 114; T. 26 February 2001 pp. 172, 175-177; T. 27 February 2001 pp. 4, 10;
T. 28 February 2001 p. 58.
28
See Cyangugu, Judgement (TC), para. 320.
22
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
at the time, with the pervasive killing of Tutsis in the prefecture, it stands to reason
that such a denouncement by a public figure of such standing put the selected refugees
at greater risk.
14. Further, I find what he said at the time of the selection of these refugees, as stated
in the testimony of Witness LCJ, to be telling. To tell someone that they are being
taken away to have the ir “fate decided”, is significant in that it connotes a life and
death situation. This is particularly significant when drawing a conclusion with regard
to the accused’s intention, who when removing these refugees knew full well, or
ought to have known, what the consequences of such removal might be. Indeed, the
Chamber found that these refugees, excluding Marianne, were killed and buried in a
pit latrine on Jean-Marie Vianney Habimana’s property in Mururu sector, Cyimbogo
commune. The Chamber further found that their death occurred in the evening or
during the night of 16 April 1994. 29
15. In my opinion, Bagambiki aided and abetted in the murder of the sixteen refugees
who were killed after being removed from Kamarampaka Stadium and Cyangugu
Cathedral. Although the evidence is not sufficient to suggest that Bagambiki ordered
or otherwise personally participated in the actual killing of the refugees, Bagambiki
came to the stadium, read aloud the names of these refugees, and then handed them
over to soldiers who only a few days before had massacred Tutsis at the Gashrabwoba
football field. In my opinion, Bagambiki’s acts substantially contributed to the death
of these sixteen refugees. Bagambiki could have easily avoided these murders by
either not removing the refugees from the stadium and the cathedral or by ensuring
that the refugees, once removed, were properly protected and secured, which, in my
opinion, was well within the powers of the prefect and only selectively utilized by
Bagambiki. Bagambiki had full knowledge that assailants, who were threatening to
attack and kill the Tutsi refugees at the stadium, were greatly interested in these
particular refugees. Moreover, Bagambiki was fully aware that the refugees, who
were suspected of having ties to the RPF, le ft in the company of Imanishimwe and
soldiers, who viewed the RPF as a military enemy and who just a few days before
participated in the Gashirabwoba massacre. Given the circumstances surrounding the
selection and removal of the refugees from the cathedral and the stadium, and their
resultant death shortly afterwards on the same day, Bagambiki must have intended or
have been fully aware and consented to the killing of the refugees. I would therefore
find Bagambiki criminally responsible under Article 6(1) of the Statute for aiding and
abetting in the murder of these sixteen refugees. Given that the refugees were
removed primarily because of their suspected ties to the RPF, I would enter a
conviction against Bagambiki on Count 3 for murder as a crime against humanity and
Count 6 for murder as a serious violation of Article 3 Common to the Geneva
Conventions.
D. Conclusion
16. It is on these grounds that I am dissenting from the majority view as expressed in
the judgement, which absolves Bagambiki from criminal responsibility with respect to
matters arising from the two events I have raised herein. I am not suggesting that the
29
Cyangugu, Judgement (TC), para. 320.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
Chamber has evidence with regard to the “circumstances surrounding” the death of
the refugees, indeed I would concede that there is no reliable, direct evidence on what
those circumstances which led to their deaths might have been. However, the
evidence relating to the selection and removal of Côme Simugomwe from the football
field, and the other refugees from the cathedral and stadium, the words that were
spoken at the stadium, Bagambiki’s outright denial of any knowledge with regard to
the goings-on at the Gashirabwoba football field, leads me to hold that he cannot be
absolved of responsibility for his actions, nor for his responsibility as the highest
ranking civil authority in Cyangugu prefecture.
Arusha, 25 February 2003
Lloyd G. Williams, Q.C.
Presiding Judge
[Seal of the Tribunal]
International Criminal Tribunal for Rwanda
Tribunal Pénal International pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER III
Original: English
Before Judges:
Lloyd G. Williams, QC, Presiding
Yakov Ostrovsky
Pavel Dolenc
Registrar:
Adama Dieng
Judgement of:
25 February 2004
THE PROSECUTOR
v.
ANDRÉ NTAGERURA
EMMANUEL BAGAMBIKI
SAMUEL IMANISHIMWE
Case No. ICTR-99-46-T
____________________________________________________________________
SEPARATE OPINION OF JUDGE OSTROVSKY
_____________________________________________________________________
Counsel for the Prosecution:
Richard Karegyesa
Holo Makwaia
Andra Mobberley
Counsel for André Ntagerura:
Benoït Henry
Hamuli Rety
Counsel for Emmanuel Bagambiki:
Vincent Lurquin
Seydou Doumbia
Counsel for Samuel Imanishimwe:
Marie Louise Mbida
Jean-Pierre Fofé
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
SEPARATE OPINION OF JUDGE OSTROVSKY
1. A majority of the Chamber has acquitted Bagambiki on all counts. I fully agree
with that disposition. However, I write separately to clearly articulate the basis for my
doubt that Bagambiki had any role in the massacre of the civilians at the
Gashirabwoba football field on 12 April 1994 or the murder of the sixteen refugees
removed from Kamarampaka Stadium and Cyangugu Cathedral on 16 April 1994
because I do not feel that the majority’s position is adequately explained in the
Judgement.
2. At the outset, I disagree with the majority’s factual findings about Bagambiki’s
presence at the Gashirabwoba football field. 1 Based solely on the testimony of
Prosecution Witness LAC, the majority has found that, on 11 April 1994, Bagambiki
and Imanishimwe came to the Gashirabwoba football field between 2:30 and 3:00
p.m. and removed Côme Simugomwa. In addition, the majority has found that, on 12
April 1994, Bagambiki came to the football field with Callixte Nsabimana, the
director of the Shagasha tea factory and that Bagambiki promised to send soldiers to
protect the refugees.
3. I accept Bagambiki’s testimony that he did not go to Gashirabwoba football field,
where the refugees were amassed, on 11 April 1994, because he was chairing a
prefectural security council meeting. I also accept his testimony that he did not go to
the football field, on 12 April 1994, because he went to Mibilizi parish to assess the
refugee situation. In my opinion, Bagambiki provided a detailed and candid account
of his schedule during the relevant events, an account which is largely corroborated
by Prosecution witnesses. In assessing Bagambiki’s alibi for these two dates, I am
mindful that only the Prosecutor has the obligation to prove facts beyond a reasonable
doubt. In light of the presumption of innocence, the accused need only raise doubt.
4. The Chamber has accepted that Bagambiki chaired a prefectural security council
meeting on 11 April 1994. In my opinion, this meeting raises reasonable doubt about
whether Bagambiki went to the football field between 2:30 and 3:00 p.m. on the same
date. I would accept as reasonable that, on 11 April 1994, the prefectural security
council meeting extended until 4:00 p.m., given that it was interrupted twice for
significant periods of time. I, therefore, also have doubt that Imanishimwe was present
at the Gashirabwoba football field on 11 April 1994, particularly given the inadequate
basis of the pertinent witness's knowledge to identify Imanishimwe at that time. 2
5. I also accept that, on 12 April 1994, Bagambiki did not go to the Gashirabwoba
football field because on that date he visited Mibilizi parish to assess the refugee
situation and to prevent an attack on the refugees. The majority has rejected
Bagambiki’s testimony, on the basis of evidence presented by Prosecution Witnesses
MM and MP, who testified that Bagambiki visited Mibilizi parish on 14 April 1994.
However, in my opinion, Witnesses MM and MP do not definitively establish that
1
Though Judge Dolenc and I form the majority on the verdict of acquittal for Bagambiki, Judge Dolenc
joined Judge Williams to form a majority on the finding of Bagambiki’s presence at Gashirabwoba
football field.
2
My position in no way alters my view on the Chamber’s findings on Gashirabwoba with respect to
Imanishimwe’ criminal responsibility under Article 6(3) of the Statute.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
Bagambiki visited Mibilizi parish on 14 April 1994 rather than on 12 April 1994. In
reaching this conclusion, I recall that the Chamber also has found that, on 14 April
1994, Bagambiki was in Kadasomwa around 11:30 a.m. and that on this date he also
attended another meeting with the bishop at Cyangugu Cathedral in the afternoon. The
Chamber has also found that, on 13 or 14 April 1994, Bagambiki turned back
assailants heading for the cathedral, an incident which likely occurred on 14 April
1994, given Bagambiki’s visit to Nyamasheke on 13 April 1994. The nearly one hour
journey between the prefecture office and Mibilizi parish leaves me with further doubt
that Bagambiki made each of these visits in one day. 3 In consideration of these events
and of the lack of detail in the testimonies of Witnesses MM and MP concerning
when and for how long Bagambiki visited the parish, I have doubt about the
Prosecutor's evidence that Bagambiki was at the Mibilizi parish on 14 April 1994
rather than on 12 April 1994.
6. I am not persuaded by the majority’s justification for not accepting Bagambiki’s
testimony. The majority simply relies on the possibility that, on 11 April 1994,
Bagambiki could have attended a prefectural security council meeting and also gone
to the Gashirabwoba football field as well as the possibility that, on 14 April 1994,
Bagambiki could have stopped an attack at Mibilizi parish, visited Kadasomwa, and
met with the bishop. In my opinion, the majority’s reliance on possibility simply shifts
the burden of proof to the accused.
7. I find that it is particularly unacceptable to rely on possibility where the
Prosecutor’s case is based solely on the evidence of a single eye-witness of
questionable credibility. Indeed, I am mindful of numerous inconsistencies and
implausibilities in Witness LAC’s testimony. For example, Witness LAC first
testified that he saw Bagambiki on 11 and 12 April 1994 but later attested before the
Chamber that he did not see him during the course of the massacres. 4 The witness
stated that soldiers, who visited the Gashirabwoba football field on the evening of 11
April 1994, threatened to kill the refugees but later testified that he was pleased at the
prospect of the soldiers’ arrival to protect the refugees. 5 In addition, the witness gave
conflicting testimony about his departure from Rwanda. 6
3
T. 25 March 2003 pp. 51-52; T. 26 March 2003 pp. 41-42.
T. 9 October 2000 pp. 65-66(“Q. Did you see among the attackers three persons, in other words, Mr.
Ntagerura, Mr. Bagambiki and Mr. Imanishimwe? A. No, I did not see them in the course of those
attacks. . . . I do not have a lot of details concerning their involvement in the massacres”).
5
Cf. T. 9 October 2000 pp. 36-37(“We were pleased to stay because we thought soldiers would be sent
to ensure our security”); T. 9 October 2000 p. 66(“when I saw soldiers arrive, I thought that they were
at the service of the country, that they were there to protect the citizens and that they had not come to
kill us. I was therefore not expecting that the soldiers would come and, instead of protecting us, kill
us.”); T. 9 October 2000 p. 70 (“In fact, they said they were going to consider our problem in the
morning of the following day, and we thought they would be coming to protect us, so we stayed there
waiting for their reply or answer, but when they returned, they killed us. Q. Did they not threaten you
from the evening of the 11th? They did not threaten to kill you from the evening of the 11th? A. They
did not threaten to kill us in the evening of 11th April. And even if they had done so, if we had been
afraid, we did not have any other place to take refuge, and we stayed there because we thought they
were coming back to protect us.”) with T. 9 October 2000 p. 73 (“On the 11th around 8:00 the same
pickup trucks returned with soldiers who asked us whether we were all Tutsi. We told them that
amongst us there were also Hutus. They told us that they would return in the morning the following
day to kill us.”)(quoting witness statement).
6
T. 9 October 2000 pp. 85-87.
4
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
8. Moreover, even if Bagambiki had been at Gashirabwoba football field on 12 April
1994, as the majority has found, in my opinion, there is insufficient reliable evidence
to indicate that he played any role in the deaths of the refugees. The evidence reflects
that the arrival of soldiers and armed factory guards was the decisive factor leading to
the slaughter of the refugees. With this in mind, Bagambiki’s criminal liability would
primarily lie in his awareness that soldiers and factory guards would come to the field
and kill the refugees and his acceptance of this likelihood.
9. I would place minimal weight on Witness LAC’s statement that Bagambiki
promised to send soldiers to protect the refugees gathered at Gashirabwoba football
field.. Throughout the evidence, witnesses often referred to soldiers and gendarmes
interchangeably, with little regard for the differences in the forces. Thus, LAC's
reference to “soldiers”, in and of itself, does not demonstrate that Bagambiki
explicitly referred to or meant that he would send soldiers from Karambo military
camp to ensure the refugees’ protection. I recall that, on the evening of 11 April 1994,
soldiers who visited the football field inquired about the refugees' ethnic identity and
threatened to kill them. According to Witness LAC, however, the refugees were
pleased to hear Bagambiki say that he would send soldiers. If, indeed, Bagambiki’s
reference had been to soldiers from the Karambo camp, I find it difficult to accept that
the refugees would have been pleased by this statement or that they would not have
expressed to Bagambiki serious concern and recounted the threats issued by soldiers
who visited the football field the previous night. In my view, this account undermines
Witness LAC’s credibility, as do the inconsistencies in the witness’s prior written
statement
10. I also recall that the Rwandan Law on the Creation of the Gendarmerie indicates
that a prefect first requests assistance from the gendarmerie and that the gendarmerie
commander, if he deems it necessary, may seek the assistance of the army. 7 Though
Bagambiki certainly could have circumvented the procedure set forth in Rwandan
law, the evidence of his actions with respect to Shangi parish, Mibilizi parish,
Nyamasheke parish, Cyangugu Cathedral, Kamarampaka Stadium, and Nyarushishi
camp clearly indicates that Bagambiki continued to follow legal procedure,
established in the Rwandan Law, in requisitioning gendarmes for the protection of
refugees. As such, in this instance, though it is possible that Bagambiki could have
requisitioned soldiers, this is not the most reasonable inference based on the totality of
the evidence and Bagambiki’s conduct during the events under consideration.
11. Second, even if Bagambiki had made a request for soldiers to come to the
Gashirabwoba football field, I am not satisfied that he would have done so with the
intention or the awareness and consent that the soldiers would kill, rather than protect,
the refugees amassed there. The record reveals little reliable or credible evidence that
Bagambiki would have been aware, prior to 12 April 1994, that soldiers from
Karambo camp would participate in mass killings. Though the Chamber found that,
on 11 April 1994, Bagambiki intervened on behalf of refugees, forced by soldiers to
lie on the ground near the office of the prefecture, in my view, one event, involving
the arrest of some refugees, would not sufficiently indicate Bagambiki’s awareness
7
See Judgement, paras 634, 635, 641.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
that soldiers would also engage in the wholesale slaughter of hundreds or thousands of
civilians.
12. I am also not satisfied that testimony of Bagambiki's being seen at the
Gahirabwobwa football field with Nsabimana, the director of the Shagasha tea
factory, proves that Bagambiki was aware that factory guards would participate in the
killing of the refugees at this site. Though Nsabimana reputedly recruited and trained
Interahamwe at the tea factory, there is no reliable evidence that Bagambiki was
aware of this alleged training. Nor is there any reliable and credible evidence
concerning Bagambiki’s prior or subsequent association with Nsabimana or
explanation relating to his being seen at the football field with Nsabimana. In my
opinion, this lack of reliable evidence also raises further doubt about Bagambiki’s
presence, on 12 April 1994, during the massacre of the refugees.
13. With respect to the selection and removal of refugees from Cyangugu Cathedral
and Kamarampaka Stadium, on 16 April 1994, I am not satisfied that the evidence
adequately demonstrates that Bagambiki intended or was aware that sixteen of the
seventeen refugees would be killed. I recall that there is no reliable or credible
evidence of the circumstances surrounding the deaths of the refugees. Thus, this lack
of evidence allows me only to speculate whether the soldiers killed or facilitated the
killing of the refugees or whe ther armed assailants overran the forces guarding the
refugees. Given the lack of evidence provided, I am not satisfied that Bagambiki
intended or was aware that soldiers would kill or facilitate the killings of the refugees
or that he intended or was aware that assailants would overtake the security forces
guarding them.
14. As discussed in connection with the massacre at the Gashirabwoba football field,
there is little credible or reliable evidence that, at this time, Bagambiki was aware of
the soldiers’ propensity to commit murderous acts. Accordingly, I have doubt whether
Bagambiki was aware that soldiers participated in killing the refugees who were
selected for questioning from Cyangugu Cathedral or Kamarampaka Stadium.
Moreover, even though Bagambiki was aware that members of the local population
were interested in these refugees, I am not satisfied that he should have been aware in
the ordinary course of events that the refugees would be killed by local assailants,
particularly if the refugees were under armed protection. I further recall that the
church authorities, who were aware of the local population's interest in the refugees,
did not protest the removal of the four refugees from the cathedral because they did
not believe that interrogations about political affiliation would be inherently harmful.
15. I acknowledge that the factual findings concerning Bagambiki’s presence at the
Gashirabwoba football field on 12 April 1994 and his role in the selection and
removal of seventeen refugees from the Cyangugu Cathedral and Kamarampaka
Stadium, on 16 April 1994, raise a number of questions about his possible
involvement in, tacit approval of, or indifference to the deaths of these refugees,
particularly when the evidence is viewed in isolation. A lingering suspicion, however,
can never substitute for proof beyond a reasonable doubt which is based on reliable
and credible evidence.
16. In resolving this suspicion, I have considered the totality of Bagambiki’s conduct
during the relevant events. I recall the testimony of Prosecution Witness LY, whom
the Chamber found to be credible and reliable, that in the wake of the violence against
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
Tutsis following the death of Martin Bucyana in February 1994, Bagambiki and the
prefecture administration took the lead in organizing pacification meetings in the
affected areas, along with religious leaders, and even donated a portion of the
prefecture’s budget to rebuild homes that were destroyed. 8 I also recall the significant
evidence that demonstrates Bakambiki's efforts to provide food and security for the
refugees and to restore public order in Cyangugu prefecture during the 1994 events.
The evidence shows that Bagambiki requested the dispatch of gendarmes to protect
the parishes and to escort relief supplies; it further shows that Bagambiki personally
visited a number of parishes to dissuade attacks, to discuss security concerns, and to
assess the refugees' needs. He also dispatched Sub-Prefect Munyangabe on a number
of occasions to do the same. The majority recalls the testimony of Prosecution
Witness MM that, when Bagambiki spoke to a delegation of refugees and members of
the population at Mibilizi parish, he expressed his intention to restore the security
situation in the area.. I also note that when church authorities were concerned about
the refugees’ security at the cathedral, they turned to Bagambiki and that he
transferred the refugees from Cyangugu Cathedral to the Kamarampaka Stadium,
which provided better sanitation and security, as evidenced by the lack of attacks
there. Bagambiki later authorized the transfer of the refugees under armed guard from
the stadium and several of the parishes to Nyarushishi camp, where the living
conditions and security situation were much improved.. This and other evidence
reflect a concern on the part of Bagambiki for the welfare of the refugees and leave
me with reasonable doubt that Bagambiki intended or that he was aware and
consented to the deaths of refugees in Cyangugu prefecture.
17. I am aware of the deplorable conditions at Cyangugu Cathedral and Kamarampaka
Stadium. I am also aware that Prefect Bagambiki, sub-Prefect Munyangabe, and the
gendarmes provided, at times, only minimal protection for the refugees. However, I
bear in mind the chaotic situation prevailing in the prefecture and throughout the
country. I note Witness LY’s testimony that it was nearly impossible to obtain relief
supplies from abroad. I am also mindful of Bagambiki’s uncontested testimony of the
limited number of available gendarmes, who were spread throughout the Cya ngugu
prefecture. In my view, the Prosecutor simply failed to introduce sufficient evidence
concerning what additional resources were available to the prefecture to stem the tide
of violence and to provide greater protection to the refugees. On the basis of the
totality of the reliable and credible evidence presented in this case, I am not convinced
that Bagambiki, with the resources available to him, could do more for the protection
of refugees in Cyangugu prefecture.
Arusha, 25 February 2004
Yakov Ostrovsky
Judge
[Seal of the Tribunal]
8
T. 22 February 2001 pp. 60-64; T. 26 February 2001 pp. 42-46; T. 27 February 2001 p. 156; T. 28
February 2001 p. 2, 5-6.
International Criminal Tribunal for Rwanda
Tribunal Pénal International pour le Rwanda
UNITED NATIONS
NATIONS UNIES
TRIAL CHAMBER III
Original: English
Before Judges:
Lloyd G. Williams, QC, Presiding
Yakov Ostrovsky
Pavel Dolenc
Registrar:
Adama Dieng
Judgement of:
25 February 2004
THE PROSECUTOR
v.
ANDRÉ NTAGERURA
EMMANUEL BAGAMBIKI
SAMUEL IMANISHIMWE
Case No. ICTR-99-46-T
____________________________________________________________________
SEPARATE AND DISSENTING OPINION OF JUDGE DOLENC
_____________________________________________________________________
Counsel for the Prosecution:
Richard Karegyesa
Holo Makwaia
Andra Mobberley
Counsel for André Ntagerura:
Benoït Henry
Hamuli Rety
Counsel for Emmanuel Bagambiki:
Vincent Lurquin
Seydou Doumbia
Counsel for Samuel Imanishimwe:
Marie Louise Mbida
Jean-Pierre Fofé
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
SEPARATE OPINION OF JUDGE PAVEL DOLENC
I. DEFECTS OF INDICTIMENTS
A. Introduction
1. The Judgement has set out the applicable principles for the pleading of criminal
charges in the section entitled Preliminary Matters Relating to the Indictments. 1 The
Trial Chamber accepts that, as a matter of principle, material facts of an offence must
be pleaded with precision in order to ensure that an accused is informed promptly and
in detail of the nature and cause of the charges against him. The Trial Chamber
explains that specificity is required in order to enable the accused to prepare his
Defence pursuant to Article 20(2), 20(4)(a), and 20(4)(b) of the Statute. Applying this
principle, the Trial Chamber has found that paragraphs 11, 12.1, 13, and 16 of the
Ntagerura Indictment and paragraphs 3.12, 3.13, 3.14, and 3.15 of the
Bagambiki/Imanishimwe Indictment are so defective that the Trial Chamber will not
make any factual or legal findings in relation to them.
2. I agree with the statements of principle set out in paragraphs 29 to 39 of the
Judgement, but would have taken this inquiry further. In my view, the Trial
Chamber’s explanation of why precision is required when pleading the material facts
of a crime is insufficient and should be supplemented. As explained below, I am of
the view that the principle of specificity should be applied more rigorously than it is in
this Judgement. In particular, I believe that the scope of vague language in the
Indictments should, for reasons of logic and fairness, be limited to the material facts
submitted during the confirmation process. Therefore, I can not wholly agree with the
view expressed in paragraph 68 of the Judgement that evidence may be considered
and an Accused may be found responsible beyond reasonable doubt for any acts that
could fall within the contours of vague allegations in the Indictment. This approach
allows for a trial based on material facts not known to the Prosecutor at the time of the
confirmation of the Indictment solely on the basis that these allegations could fall
within the linguistic contours of unnecessarily vague and generic allegations.
3. In taking this position, I am aware that the practical result of my opinion is that
many of the charges in the Ntagerura and Bagambiki/Imanishimwe Indictments are so
materially defective that they should be dismissed without any further consideration
of the evidence. One may consider that this result runs contrary to the interests of
international justice. However, I strongly believe that the ultimate interest of
international justice, the universal application of the rule of law, may be achieved only
by respecting the basic rights of an accused to a fair trial and due process. Even when
trying cases involving the most serious crimes, the Tribunal is responsible for
ensuring a fair trial.
4. Even if the Prosecution’s evidence shows that an accused may be guilty of the
most despicable crimes, he must be acquitted if the accused was not given fair and
detailed notice in the indictment of the material facts and of the charges against him.
1
Judgement, paras. 28-70.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
Without such notice in the indictment, the charging instrument which forms the basis
of a trial, an accused is not sufficiently informed of the charges against him and
therefore is prevented from or hindered in preparing his defence. This renders the trial
unfair because we cannot be certain that the accused has been given an opportunity to
investigate and to challenge the evidence presented by the Prosecution. In such
circumstances, a court cannot rely on the evidence presented by the Prosecution to
find that the accused is guilty beyond a reasonable doubt because the accused has not
been given a fair opportunity to raise that doubt. The Chamber thus cannot be
confident of the credibility or reliability of the evidence presented by the Prosecution.
In my view, where there has not been fair notice to the accused, a Chamber should not
consider the evidence of the Prosecution, because this evidence has not necessarily
been tested and challenged by the adversarial methods of well-prepared crossexamination or defence evidence presented in the defence case.
5. In my opinion, the legitimacy and legacy of this Tribunal rests as much on the
fairness of the proceedings as on the substance of the Judgements that we deliver. It is
only through fair and equitable proceedings that international justice is achieved.
Moreover, we cannot lose sight of the effect of the Tribunal’s jurisprudence on
internationa l and national guarantees to a fair trial. If the international tribunals fail to
provide a model of fairness, we send the wrong message to other courts.
6. I understand that the importance of a fair trial may appear pale in comparison to
the gravity of the massive human rights abuses which occurred in Rwanda in 1994.
However, it is only through a fair trial that we can achieve any lasting justice.
Through justice this Tribunal seeks to contribute to reconciliation. As Justice Murphy
of the United States Supreme Court explained nearly sixty years ago:
If we are ever to develop an orderly international community based upon a
recognition of human dignity it is of the utmost importance that the necessary
punishment of those guilty of atrocities be as free as possible from the ugly
stigma of revenge and vindictiveness. Justice must be tempered by compassion
rather than by vengeance. In this, the first case involving this momentous
problem ever to reach this Court, our responsibility is both lofty and difficult.
We must insist, within the confines of our proper jurisdiction, that the highest
standards of justice be applied in this trial of an enemy commander conducted
under the authority of the United States. Otherwise stark retribution will be free
to masquerade in a cloak of false legalism. And the hatred and cynicism
engendered by that retribution will supplant the great ideals to which this nation
is dedicated.2
B. Additional Ground Defining the Scope of an Indictment
7. According to Article 17(4) of the Statute and Rule 47(B) of the Rules, the
Prosecution shall file an indictment when, on the basis of investigations, the
Prosecution determines that a prima facie case exist showing that a suspect committed
a crime within the jurisdiction of the Tribunal. Pursuant to Rule 47(D) and (E), the
2
Application of Yamashita v. Styler, 327 U.S. 1, 29 (U.S. S.Ct. 1946) (per Murphy J. , dissenting).
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
indictment shall be accompanied by materials supporting the allegations in it. These
provisions obviously demand that the Prosecution, when submitting an indictment, is
constrained by the results of its investigation to that date and may only include in the
indictment those material facts of crimes for which the Prosecution has already found
sufficiently detailed information and evidence. 3
8. Logically, an indictment can only contain those allegations of criminal activity
known to the Prosecution at the time of the filing of the indictment. Of course, the
Prosecution may continue to investigate the crimes charged in the confirmed
indictment and may later discover and produce at trial further evidence to support
these crimes. 4 However, if new crimes are discovered, the Prosecution must seek
leave to amend the indictment pursuant to Rule 50. Further allegations, not known to
the Prosecution at the time of confirmation, cannot later be included in an indictment
without the Prosecution being granted leave to amend.
9. Thus, the “contours of the existing indictment” are not merely linguistic. The
limits of an indictment are defined by the crimes for which the Prosecution submitted
a prima facie case to the confirming judge. I would not permit the Prosecution to
include criminal activities discovered after confirmation within the scope of an
indictment by relying on the vagueness and imprecision of the language in the
confirmed indictment. To do so would allow the Prosecution to profit from its own
failure to charge the accused specifically with the crimes it knew about at the time of
confirmation. By using impermissibly generic or vague language in defining material
facts, the Prosecution would thereby gain a margin of flexibility in case new crimes
are discovered that would then fit within the linguistic contours of the already
confirmed indictment. The Prosecution would effectively be amending the indictment
without any judicial oversight.
10. In my opinion, when faced with overly broad language in an indictment, the Trial
Chamber should analyse the supporting materials submitted by the Prosecution during
the confirmation process in order to determine the reason for the vagueness and the
proper interpretation of the charges. Where an indictment uses general language to
describe an event or allegation for which the Prosecution had, at the time of
confirmation, specific and unambiguous information, the Indictment should be
interpreted in light of the supporting material and should be limited to the information
in the hands of the Prosecution at the time of confirmation. The Judgement should
consider evidence only on the particular allegation contained in the supporting
material, in spite of the Prosecution’s use of generic or vague language in the
Indictment. 5 Where the supporting materials do not reveal any further particulars
which would permit the chamber to understand an allegation with sufficient
3
Kupreskic, Judgement (AC), para. 92.
See Rule 66(C) of the Rules.
5
See Stakic, Judgment (TC), para. 772 (“For this reason, the Trial Chamber will not consider any other
denial of fundamental rights not expressly mentioned by the Prosecution in the Indictment. The
Accused is not sufficiently informed of, and therefore unable to defend himself against, any charges
other than those explicitly stated in the Indictment.”); Prosecutor v. Brdanin, ICTY Case No. IT-99-36T, Decision on Motion for Acquittal (TC), 28 November 2003, para. 88 (“ an accused is entitled to
know the case against him and is entitled to assume that any list of alleged acts contained in an
Indictment is exhaustive, regardless of the inclusion of words such as ‘including’, which may imply
that other unidentified acts are being charged as well.”).
4
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
particularly, then the evidence relating to a vague charge should not be considered,
because the fairness of the trial would be compromised.
11. This approach focuses on the supporting materials to the indictment, rather than
on the pre-trial brief or other extraneous documents, which may contain allegations of
material facts that were not included in the indictment or the supporting materials. An
accused is entitled to defend only against accusations in the indictment and not against
Prosecution submissions in any other document. In Kupreskic, the Appeals Chamber
held that, in a limited number of circumstances, “a defective indictment can be cured
if the Prosecution provides the accused with timely, clear and consistent information
detailing the factual basis underpinning the charges against him or her.”6 In the
Ntakirutimana Judgement, Trial Chamber I analysed the pre-trial disclosure of
witness statements to the Defence, the Prosecution’s pre-trial brief, and the evidence
adduced at trial in order to determine whether the accused had been given fair notice
of the charges against them. 7 In my opinion this approach is too wide because the
additional information used to interpret the meaning of the indictment was not limited
to the material facts known to the Prosecution at the time of confirmation. This
approach permits the Prosecution to expand the allegations confirmed by a Judge
without seeking formal leave to amend the indictment.
C. Additional Reasons for Precision of Indictments
12. The Judgement states that the indictment must plead all material facts
underpinning the charges with sufficient detail so that the accused can prepare his
defence. 8 I wish to emphasise that a properly drafted indictment serves the interests of
justice not only by providing the accused with fair notice of the charges, but also by
focussing the Trial Chamber’s attention on the relevant issues. As the Appeals
Chamber has recently observed, detailed factual allegations simplify and expedite
proceedings “by narrowing the scope of allegations, by improving the Accused’s and
the Tribunal’s understanding of the Prosecution’s case, or by averting possible
challenges to the indictment or the evidence presented at trial.”9 By improving the
Chamber’s understanding of the case, a particularised indictment containing precise,
detailed, and unambiguous charging facilitates predictable, efficient, economical, and
expeditious proceedings. In contrast, a vaguely drafted indictment subverts the
express provisions of the Statute and Rules and causes problems for the proper
administration of justice.
13. At the confirmation stage, a precisely pleaded indictment also enables the
confirming judge to establish the jurisdiction of the Tribunal and to assess whether a
prima facie case exists. An indictment which unambiguously identifies a particular
criminal act and the accused’s role in it permits the reviewing judge to compare
allegations in the indictment with the information in the supporting materials. Where
6
Kupreskic, Judgement (AC), para. 114.
Ntakirutimana, Judgement (TC), paras. 58-63.
8
Judgement, para. 30.
9
Prosecutor v. Karemera, 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, para. 15.
7
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
the indictment is pleaded in a vague or overly broad manner, the confirming judge is
faced with the difficult and often confusing task of trying to correlate the charges in
the indictment with the underlying supporting materials.
14. During the pre-trial phase of the proceedings, a precise description of the crimes
in the indictment enables the Accused to enter an informed and unequivocal plea in
accordance with Rule 62(B). A precise description of crimes in the indictment is
crucial at this early phase of the proceedings because, prior to the disclosure of the
supporting materials pursuant to Rule 66, the indictment is the only document in the
accused’s possession.
15. General or vague statements of material facts also interfere with the efficient pretrial preparation of the parties and the Chamber. For example, without a clear and
precise indictment, it is difficult to effectively apply Rule 73bis, which concerns the
admission of facts not in dispute, the indication of facts on which each witness will
testify, and the reduction of witness duplication. A precise description of the crime in
the indictment is also necessary before a Chamber can properly determine whether
there is a common transaction, a precondition for joint trials pursuant to Rules 2, 48,
48bis, and 49. A precise indictment also permits the Chamber to analyse the possible
effects of a proposed amended indictment pursuant to Rule 50, by making it possible
to draw a clear distinction between already pleaded material facts and new facts
introduced by the proposed amendments.
16. During the trial, the Chamber requires a precise indictment in order to determine
whether evidence is relevant, and therefore admissible, pursuant to Rule 89(C). Vague
or broadly worded indictments lead to lengthy proceedings by inhibiting the Trial
Chamber’s ability to restrict the scope of evidence to the crimes pleaded in the
indictment.
17. In reaching judgment, only precisely pleaded indictments permit the chamber to
determine objective identity between the indictment and the judgment. Objective
identity is a fundamental principle of international and domestic criminal law which
requires that the Judgement does not exceed the indictment. 10 An application of the
principle non bis in idem in Article 9 of the Statute depends on the precise and
specific particulars which clearly and unambiguously identify the crime and the
accused’s participation in it. Similarly, a precise indictment is also essential to
establishing responsibility for crimes included in a joint criminal enterprise.
1. Details of Material Facts
18. The Judgement states that the Prosecution has an obligation to plead all material
facts underpinning the charges against an accused in the indictment with sufficient
detail so that the accused can prepare his defence. 11 The Judgement then explains that
10
See (Rome) Statute of the International Criminal Court, 17 July 1998, UN Doc. A/CONF.183/9, art.
74(2); Kupreskic, Judgement (AC), para. 88.
11
Judgement, para. 30.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
the materiality of facts depends on the mode and extent of an accused’s participation.
I wish to supplement this analysis.
19. Rule 47(C) provides that “the indictment shall set forth the name and particulars
of the suspect and a concise statement of the facts of the case and of the crime with
which the suspect is charged”. The phrase “a concise statement of the facts of the
crime” relates to the ma terial facts constituting elements of a crime within the subject
matter jurisdiction of the Tribunal. As explained in the Judgement at paragraph 29,
this corresponds with the requirement in Article 20(4)(a) of the Statute to promptly
inform the accused of the “cause of the charge” against him.
20. The phrase “a concise statement of facts of the case” refers to other important
information that offers a more complete picture of the surrounding circumstances of
the crime including: historical, contextual, or background facts; or facts relating to
sentencing. Because “facts of the case” do not directly constitute any elements of a
crime, they do not need to be described with the same degree of specificity as the
“facts of a crime”. 12 However, it must be stressed that the Ntagerura and
Bagambiki/Imanishimwe Indictments do not distinguish between the facts of the case
and the facts of the crime. In pleading the counts in the Indictments, the Prosecution
also refers to paragraphs which do not relate directly to the alleged criminal conduct
of the Accused.
21. In practical terms, the material facts of the crime answer the following seven
questions, which guide any criminal investigation, prosecution, and judgment: Who
(is alleged perpetrator); Where; When; What (was committed or omitted); Whom to
(victim); What means; and Why (motive). 13 Answers to these seven questions are
necessary in order to individualize the accused, the alleged crime, the mode of the
Accused’s participation, and the form of his criminal responsibility. Although each
case must be considered on its merits, it is possible to generalize that an indictment
which does not provide sufficient and precise information to answer each of these
questions is more likely to be defective. 14
22. These seven questions are applicable regardless of the form (conspiracy, planning,
preparation, attempt), mode (act or omission), or type (principal perpetrator,
accomplice, joint criminal enterprise, superior responsibility) of participation. When a
crime is allegedly committed by omission then the answer to the question ‘What’ shall
set forth a description of the omitted act and a specific indication of the legal basis for
a duty to act. The concise statement of facts of a charge for superior responsibility
pursuant to Article 6(3) of the Statute should clearly and precisely allege, in case of
failure to prevent a crime: (i) sufficient particulars of the underlying crime so that it
may be identified without any ambiguity; (ii) particulars of the subordinate
perpetrator(s); (iii) the legal or factual basis for establishing a superior-subordinate
12
See, e.g., Prosecutor v. Mrksic et al., ICTY Case No. IT-95-13/1-PT, Decision on Form of
Consolidated Amended Indictment and on Prosecution Application to Amend (TC), 23 January 2004,
paras. 27-28; Prosecutor v. Krnojelac, ICTY Case No. IT-97-25-PT, Decision on the Defence
Preliminary Motion on the Form of the Indictment, 24 February 1999, para. 24.
13
Generally, motive is not a constituent element of criminal responsibility for the crimes within the
jurisdiction of the Tribunal, but motive may overlap with the motivated intent (dolus coloratus)
required for genocide and some other crimes.
14
Kupreskic, Judgement (AC), para 92.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
relationship between the accused and the principal perpetrators; (iv) a description of
the necessary and reasonable measures, within the accused’s authority, duty, and
disposal which the accused failed to take; (v) a statement that the accused had
knowledge, or sufficient information to conclude, that his subordinates were about to
commit a crime; and (vi) an allegation that these measures, if applied, may have
prevented the subordinate from committing the crime. 15 In case of failure to punish a
subordinate perpetrator, an indictment charging Article 6(3) liability should also set
forth the necessary, reasonable, and available measures within the accused’s authority
that it is alleged he failed to take. 16
23. The application of the principle of precision should not be unreasonably rigid. The
Prosecution may charge the accused with a crime even when it can not precisely
determine all of the particulars necessary to answer the seven questions. The
jurisprudence of this Tribunal and of the International Criminal Tribunal for the
Former Yugoslavia recognizes that, given the nature of the crimes under our
jurisdiction, it will sometimes be impossible or unreasonably difficult for the
Prosecution to give precise details of every material fact. Where, for example, the
nature or scale of the crimes, fallibility of witness recollections, witness protection
concerns, or other reasons for confidentiality prevent the Prosecution from giving
exact details, then the Prosecution should give the best information available and
should specify that this information is the most complete available at the time. 17 In a
case of mass killings committed by a group of attackers, it may be impracticable to
require a high degree of specificity regarding the identities of individual victims or the
exact time and location of each specific murder. 18 If the victims can not be
individually identified, then the indictment should describe the category of victims as
a group. 19 In other instances it may be reasonably to plead a range of dates where a
precise date can not be specified because of the nature of a recurring event or because
of vagueness in the recollection of a key witness. 20 Although a degree of imprecision
may be justified, the indictment must always clearly and unambiguously identify the
charged crime, the accused’s participation in it, and the form of his responsibility.
24. These exceptions to the general principle requiring precise charges should not be
interpreted as an invitation for the Prosecution to plead the material facts in a vague
manner. The Prosecution is not permitted to dress specific evidence in generic or
vague language with the purpose of moulding the case depending on what new facts
and evidence it may discover during the post- indictment investigation or on how the
evidence unfolds during the trial. 21 Where the Prosecution has specific information in
its possession at the time of submission of the indictment, then those particulars
15
See, e.g., Prosecutor v. Deronjic, ICTY Case No. IT-02-61-PT, Decis ion on Form of the Indictment,
25 October 2002, para. 7.
16
See, e.g., Prosecutor v. Mejakic et al., ICTY Case No. IT-02-65-PT, Decision on Dusan Fustar’s
Preliminary Motion on the Form of the Indictment (TC), 4 April 2003, p. 4; Prosecutor v.
Hadzihasanovic, ICTY Case No. IT-01-47-PT, Decision on the Form of the Indictment, 7 December
2001, para. 11.
17
Semanza, Judgement (TC), paras. 55, 57-58; Kupreskic, Judgement (AC), para 89.
18
Kupreskic, Judgement (AC), paras. 89-90.
19
Id.
20
Prosecutor v. Brdanin, ICT Y Case no. IT-99-36-PT, Decision on Objections of Momir Talic to the
Form of the Amended Indictment (TC), 20 February 2001, para 22.
21
Kupreskic, Judgement (AC), para. 92.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
should be specifically pleaded. 22 Where the indictment is vague about essential details
then “doubt must arise as to whether it is fair to the accused for the trial to proceed”. 23
In such a case the Prosecution should either complete its investigations before seeking
confirmation of the indictment or drop the charge. Moreover, this degree of flexibility
in pleading may not be manipulated by the Prosecution in order to gain tactical
advantages or to inhibit the preparation of the defence. 24 Unjustifiably vague charging
cannot be used as a mechanism for avoiding the formal process of amending the
indictment.
D. Reasons for Defects of the Indictment and Remedies
25. In my view, many of the allegations in the concise statements of the facts of the
crimes in both the Ntagerura and Bagambiki/Imanishimwe Indictments violate the
principle that an indictment shall provide a detailed and precise description of the
material facts of the crimes on the basis of information known to the Prosecution at
the time of the confirmation of the indictment (or any amendment). Most of the
material facts in the two Indictments are described in general and vague language and
do not sufficiently individualise the crimes, the role of each of the Accused in the
alleged crimes, or the circumstances necessary to establish a specific form of
responsibility for each of the Accused. The reasons for such defects may be twofold:
either the Prosecution was not in possession of better information at the time of
confirmation, or the Prosecution chose to set forth unacceptably generalised and
vague allegations despite having more precise and detailed information available. I
attempt to define the scope of both of the Indictments on the basis of the material facts
in the possession of the Prosecution at the time when the Indictments were submitted
for confirmation. For this analysis, I have used the supporting materials
accompanying the Indictments and the redacted statements of the informants, 25 the
potential witnesses who gave statements to the Prosecution during its investigation,
whose statements were excerpted in the supporting materials.
26. Of course, this analysis is not intended to be a re-examination of the validity of the
Indictments, which are the final charging instruments and which have already been
confirmed by a judge and upheld by a Trial Chamber after preliminary motions. The
only objective is to define, to the extent possible, the correct scope of the Indictments
on the basis of the information in the supporting materials. 26
22
Id.
Id.
24
See Prosecutor v. Brdanin, ICTY Case no. IT-99-36-PT, Decision on Objections of Momir Talic to
the Form of the Amended Indictment (TC), 20 February 2001, para 26 (“…despite the impression
conveyed by some sections of the Office of the Prosecution that it is the prosecution policy to avoid
disclosing what the real nature of its case is until as late as a stage as possible…”) (emphasis added).
25
Informants are identified by the pseudonyms used by the Prosecution for the protection of their
identities.
26
See, e.g. Ntakirutimana, Judgement (TC), paras. 58-63 referring to the view of the ICTY Appeal
Chamber in Kupreskic Judgement (AC) at para. 114 that “in some instances, a defective indictment can
be cured if the Prosecution provides the accused with timely, clear and consistent information detailing
the factual basis underpinning the charges against him or her”, analysed disclosed witnesses statements,
the Prosecution’s pre-trial brief, and the evidence adduced at Trial in order to determine whether the
accused were on notice of the charges against them. In my opinion this approach is too wide because it
23
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
27. Depending on the reasons for vagueness three situations may be distinguished:
(a) Where the Indictments generalise a specific event (i.e. an event that is
individualised in the supporting materials with sufficient details, providing
prima facie evidence of the criminal event, the accused’s participation in it, or
grounds for his superior responsibility) the Judgement should narrow its
analysis of the evidence to the particular material facts of the specific event
only. Exceptionally, a certain degree of generalisation may be justified where
the necessary reasons for generalisation are clearly demonstrated.
(b) Where the Indictments generalises an event but the supporting materials do not
provide additional particulars of material facts which could serve to
supplement the charges (including vague allegations concerning the accused’s
personal participation as a principal, (co)perpetrator, or an accomplice, so that
the precise legal qualification of his participation is not possible) the charge
should be dismissed due to this material defect. Such a defective charge does
not allow the defence to adequately prepare for the trial. 27 A defective
indictment that cannot be made more specific through reference to the
supporting materials also impairs the application of the principles of objective
identity between the indictment and judgeme nt and of non bis in idem. Such
allegations may, however, be considered as background circumstances, if they
are relevant to the case.
(c) Where supporting materials fail to provide additional detailed information to
supplement generic or vague charges of superior responsibility (which impair
a clear identification of the criminal event, perpetrators, superior–subordinate
relationship, knowledge of the accused of the commission or imminent
commission of a crime by his subordinates, or the necessary and reasonable
measures available to the accused to prevent the crime or to punish the
perpetrators), the charge should be dismissed due to the material defect
without consideration of evidence for the reasons advanced in the previous
paragraph.
28. In light of this approach I will first analyse the description of material facts in the
Ntagerura Indictment and then the Bagambiki/Imanishimwe Indictment.
29. My analysis does not include the allegations in paragraphs 11, 12.1, 13, and 16 of
the Ntagerura Indictment, or in paragraphs 3.12 to 3.15 of the
Bagambiki/Imanishimwe Indictment, which the Trial Chamber has found so
materially defective that it does not make further factual or legal findings. 28 The
analysis also does not discuss paragraphs 3.29 of the Bagambiki/Imanishimwe
Indictment or paragraphs 12.2, 14.2, 15.1 and 15.2 of the Ntagerura Indictment
because the Prosecution conceded that it has not submitted any evidence in support of
them. 29 Finally, I note that paragraph 3.31 of the Bagambiki/Imanishimwe Indictment
facilitates the consideration of allegations based on information obtained after the indictment was filed
without following the procedure for amendment of an indictment.
27
An accused defends against the accusations in the indictment and not against the submissions or
statements in any other document, e.g. pre -trial brief or any appendices. An accused challenges
Prosecutorial evidence in order to disprove the related accusations in the indictment and not to disprove
the “accusations” in a witness’s testimony or other type evidence itself.
28
Judgement, para. 69.
29
Judgement, para. 69.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
is not included in any count and thus the allegations provide background information
only.
30. Neither Indictment alleges the material facts which, as discussed above at
paragraph 22 of this Separate Opinion, are required to substantiate the superior
responsibility of any of the Accused pursuant Article 6(3) of the Statute. In my view,
the charges against all three Accused based on superior responsibility should be
dismissed without any further discussion or assessment of the evidence presented at
trial.
31. I also note that the Bagambiki/Imanishimwe Indictment generalises the same
event in more than one paragraph. 30 In my view, this type of multiplication of
allegations is not permissible because it inflates the Prosecution’s charges without the
support of further underlying facts.
1. Ntagerura Indictment
32. As already noted above, I will not analyse paragraphs 11, 12.1, 12.2, 13, 14.2,
15.1, 15.2, and 16 of the Ntagerura Indictment. 31 Additionally, I will not examine
paragraph 10 of the Ntagerura Indictment, which only alleges background information
concerning the Interahamwe. I also reemphasise that I would dismiss the charges
against Ntagerura based on superior responsibility without any further assessment of
the evidence adduced at trial because the Ntagerura Indictment fails to allege the
material facts which are necessary to substantiate an allegation of superior
responsibility pursuant to Article 6(3) of the Statute. 32
33. At confirmation, the Ntagerura Indictment was supported by excerpts of
statements of seven Prosecution informants, the Report on the Situation of Human
Rights in Rwanda submitted by Mr. René Degni-Ségui, Special Rapporteur, under
paragraph 20 of resolution S-3/1 of 25 May 1994, U.N. Doc. E/CN.4/1996/7 (1994);
Final Report of the Commission of Experts Established Pursuant to Security Council
Resolution 935, U.N. Doc. S/1994/1405 (1994), and United Nations Peacekeeping
Notes, United Nations Assistance Mission in Rwanda, December 1994.
34. At trial, however, only one of the informants (T848/K96) testified for the
Prosecution and neither of the two reports was tendered into evidence.
30
The selection of refugees from a list in the Cyangugu stadium on 16 April 1994 is used for paragraph
3.17 and 3.23; the attempted arrest of informant T13’s husband is generalised in paragraphs 3.17 and
3.18; the transfer of the refugees from the Cathedral to the stadium on 15 April 1994, the refugees’
imprisonment at the stadium, and the refugees attempt to escape in late April 1994 are generalis ed in
paragraphs 3.21 and 3.22; the selection and killing of refugees from Cyangugu stadium is generalised
in paragraphs 3.17, 3.18, and 3.23; the arrest of a group of refugees at the Jesuits’ home on 18 April
1994 is generalised in paragraphs 3.20 and 3.24; the raid in Kanombe and the detention and killing of
certain people at the military camp is generalised in paragraphs 3.24 and 3.25; the massacres at the
football field in Gisuma on 14 April 1994 and at Kadasomwa are generalised in paragraphs 3.26 and
3.27.
31
See supra para. 29.
32
See supra para. 30.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
a. Paragraphs 9.1, 9.2 and 9.3
35. The Judgement characterised paragraphs 9.1, 9.2, and 9.3 of the Ntagerura
Indictment, which may be summarised as alleging that prior to and from 1 January to
31 July 1994 Ntagerura attended or conducted meetings in Cyangugu, as
“problematic” because of the broad date ranges, the lack of particulars about the
alleged meetings or Ntagerura’s participation, and the failure to allege a criminal
purpose. 33 Nevertheless, the Chamber decided to consider all Prosecution evidence
concerning meetings attended by Ntagerura, including meetings that fall outside of the
temporal jurisdiction of the Tribunal.
36. An examination of the supporting materials submitted at confirmation reveals that
the allegations in paragraphs 9.1, 9.2, and 9.3 were drawn from the statements of
informants T836/K96, T197/96, and 863/K96. The only specifically identifiable event
is alleged by informant T836/K96, who stated that Ntagerura chaired a meeting in
Cyangugu on 11 April 1994. However, the informant does not indicate that the
meeting had a criminal purpose, nor does he provide a list of other participants or any
other relevant material fact. The other two informants provided only general
statements tha t Ntagerura was the principal leader of events in Cyangugu, that most of
the communal meetings were held at Ntagerura’s residence, and that Ntagerura visited
Michele Busunyu, who led killings in Karengera commune. On the basis of these
statements, the Prosecution has formulated three broad paragraphs concerning
Ntagerura’s participation in meetings in Cyangugu, which the Prosecution alleges in
support of six counts in the Indictment.
37. In my opinion, the supporting materials demonstrate that the Prosecution did not
have sufficiently specific information at the time of confirmation about any particular
meeting attended by Ntagerura. I would therefore have considered evidence of
meetings only as background information or “facts of the case” and not as material
facts directly supporting any of the counts of the Indictment.
b. Paragraphs 14.1 and 14.3
38. In the Judgement, the Trial Chamber has found that paragraphs 14.1 and 14.3 fail
to identify the nature of Ntagerura’s alleged criminal participation and fail to
particularise any incident by date, location, or other circumstances during a seven
month period. 34 An examination of the supporting materials provides no further
details which would enable the Chamber to more precisely define the scope of these
allegations. Paragraphs 14.1 and 14.3 of the Ntagerura Indictment are purportedly
supported by the statements of informants T197/96, T838/K96, and T863/K96.
However, none of these statements alleges any specific activities of the Accused
which could be considered as monitoring the Interahamwe or verifying that the orders
to kill the Tutsi and political opponents had been carried out. Where the Indictment is
vague and the supporting materials provide no further insight, then these allegations
should not be considered as directly supporting any crime.
33
34
Judgement, para 41.
Judgement, para 45.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
c. Paragraphs 17, 18, and 19
39. The Trial Chamber has found that the generic allegations in paragraphs 17 and 18
do not sufficiently particularise any of the underlying alleged criminal events. 35 These
allegations were supported at confirmation by the statement of T197/96 that
massacres started in Cyangugu in February 1994. Informant T838/K96 provides the
only identifiable instance of particular killings: that on 16 April 1994 Bagambiki and
others removed several refugees from Cyangugu stadium, among whom only one
survived. However, this allegation does not involve any link with Ntagerura and
cannot support any charge against him. In my view, the general allegations in
paragraphs 17 and 18, even if proven, could only serve as background information of
the case.
40. Paragraph 19 is supported by T838/K96 who stated that the Accused was in
Cyangugu prefecture as a supervisor of massacres. However, neither the allegation in
the Indictment nor the informant’s statement gives any information concerning a
specific event of supervision or any description of the supervisory activities of the
Accused. The allegation that Ntagerura attended a meeting chaired by Sindikubwabo
on an unspecified date after April 1994 is supported by the same informant in the
same general way, so that it gives no additional information concerning the relevance
or importance of the meeting or of the Accused’s presence at it.
d. Conclusion
41. The supporting materials to the Ntagerura Indictment provide no additional
information which would permit the Chamber to distinguish any specific criminal
event. Moreover, the supporting materials fail to describe either the participation of
the Accused in the alleged events or the other circumstances which are necessary to
establish a specific form of his responsibility. Although counts 1 to 5 charge
Ntagerura as a principal perpetrator or an accomplice, the supporting materials
describe no specific acts or omissions of the Accused which could be considered as
falling within the scope of Article 6(1) of the Statute. Nor do the supporting materials
provide any more specific information to define Ntagerura’s alleged superior
responsibility.
42. In my opinion, the Ntagerura Indictment should be dismissed for incurable
material defects in addition to the concession of the Prosecution that it has not
adduced evidence for certain allegations.
2. Bagambiki /Imanishimwe Indictment
43. For reasons set out above, I will not analyse paragraphs 3.12, 3.13, 3.14, 3.15,
3.29, or 3.31.36
35
36
Judgement, para. 47.
See supra para. 29.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
44. The Bagambiki/Imanishimwe Indictment was supported at confirmation by
excerpts from the statements of thirty-eight informants, ten of whom testified at trial.
The Indictment was further supported by reference to André Guichaoua’s Les crises
politiques au Burundi et au Rwanda (1993 – 1994), several reports of the general staff
of the Rwandan Armed Forces, a report of Special Rapporteur of Commission for
Human Rights, and several provisions of Rwandan law.
a. Paragraph 3.16
45. Paragraph 3.16 of the Bagambiki/Imanishimwe Indictment alleges that Ba gambiki
participated in training, instructing, and distributing weapons to the Interahamwe,
who later committed massacres of the Tutsi population. The Trial Chamber has found
that the allegations contained therein are imprecise and fail to provide material facts.37
None of the statements of the eight informants (T18, T36, T1, T37, T11, T6, T32 and
T10) included in the Prosecution’s supporting materials implicates Bagambiki in such
activities or provide any further details which could serve to add precision to these
broad allegations. Of these informants, only T32 (and perhaps T37 38 ) testified at trial.
The precise scope of the allegation in paragraph 3.16 is impossible to define and I
would not consider this paragraph as alleging the material facts of any crime.
b. Paragraphs 3.17 and 3.18
46. The Trial Chamber has found that paragraph 3.17 fails to particularise any
incident or to provide other relevant material facts. 39 However, an examination of the
supporting material demonstrates that the Prosecution was contemp lating two distinct
events. Paragraph 3.17 is supported by the statements of informants T13 and T15:
(a) Informant T13 stated that on an unknown day in late April 1994 at 5:00
a.m., four soldiers came to her residence to arrest her husband, whose
name was amongst those contained on a list of persons to be
eliminated. According to T13, the list was formulated by Bagambiki,
Imanishimwe, the Commander of the Gendarmerie, and others. The
statement sufficiently identifies a particular event during which a list of
victims, allegedly prepared by both Accused, was employed.
(b) Informant T15 describes the selection of seventeen persons, eleven of
whom he identified, on 16 April 1994 from amongst the refugees at the
Cyangugu stadium. The statement clearly defines the date, the location,
the event, the role of Bagambiki, and the identity of many of the
victims.
47. Based on the supporting materials, the meaning of paragraph 3.17 can be
narrowed to these two specific incidents. The Prosecution should have pleaded these
two incidents with precision in the Indictment. Other incidents involving lists should
not be considered by the Chamber, as this would be beyond the scope of the
Bagambiki/Imanishimwe Indictment as confirmed.
37
Judgement, para. 53.
It was not possible to establish the altered pseudonym of this informant.
39
Judgement, para. 54.
38
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
48. Paragraph 3.18 does not allege that either Bagambiki or Imanishimwe participated
in giving lists to soldiers or Interahamwe.40 The vague allegations were supported at
confirmation by informants T13 and T36. However, neither informant implicates
Bagambiki or Imanishimwe or gives any additional particulars which could serve to
identify a particular event. Moreover, neither of these two informants testified at trial.
In my view these allegations should not be used to support any charge. The only
instances of the use of lists of victims allegedly prepared by Bagambiki and
Imanishimwe are included in paragraphs 3.17 and 3.23. Accordingly, I would not
consider the evidence in support of this paragraph.
c. Paragraph 3.19 and 3.20
49. Paragrah 3.19 does not allege that Bagambiki or Imanishimwe participated in any
attack by Interahamwe against refugees at Cyangugu Cathedral. 41 These allegations
were supported at confirmation by informants T25, T9, T15, T13, and T21. None of
them implicates Bagambiki or Imanishimwe in any attack at the Cathedral; rather,
they describe other events beyond the scope of this paragraph which might support
some other allegations. In my view the allegations contained in this paragraph can
only serve as background information of the case.
50. Paragraph 3.20 was supported at confirmation by informant T25, who stated that
on 11 April 1994, immediately after the first attack on the refugees at the Cathedral,
six refugees were arrested by soldiers and taken to the military camp where five were
killed. Informant T8 gave a similar version of the same event. Some of the victims
were identified. The statements of these informants provide additional details which
clearly identify a particular event. These material facts should have been included in
the Indictment at the time of confirmation and the Indictment should therefore be
limited to these allegations.
d. Paragraphs 3.21 to 3.23
51. In the Judgement, the Trial Chamber has found that paragraph 3.21 fails to specify
who threatened the refugees with death if they refused to obey the order to be
transferred to the stadium, or whether the Accused knew of such threats. 42 The
supporting materials, namely T13’s statement, indicate that Imanishimwe ordered the
soldiers to shoot every person who attempted to leave the group. The supporting
materials therefore provide specific details about this event, which the Prosecution
omitted to include in the Indictment. This allegation therefore may be considered in
the Judgement.
52. Paragraph 3.22 does not allege any involvement of Bagambiki or Imanishimwe in
either the acts of the gendarmes in forcing back the refugees to the stadium or the acts
of the gendarmes or Interahamwe in executing refugees. The paragraph is supported
by informant T28, who stated that in April 1994, when refugees escaped from the
stadium with the intention of fleeing to Zaire, they were stopped at Rusizi by soldiers
40
Judgement, para. 54.
Judgement, para. 55.
42
Judgement, para. 56.
41
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
and forced back to the stadium. According to the informant, approximately 600 of the
refugees were killed by Interahamwe. More specific details of this particularised
event should have been included in the Indictment. I am of the view that this event,
known to the Prosecution at the time of confirmation, may be considered in the factual
and legal findings, but that other events should not be considered even if they might
fall within the language of the Indictment.
53. The Trial Chamber has found that paragraph 3.22 fails to allege a connection
between the allegations and any act of criminal participation of either of the
Accused. 43 The allegation in paragraph 3.22 that Interahamwe entered the stadium,
abducted refugees, and executed them is not particularised by any informant. No
statement describes the role of Bagambiki or Imanishimwe in the alleged killings of
refugees in the stadium. These allegations should be dismissed as impermissibly
vague and no factual findings should be made on evidence relating to them.
54. The Chamber has found that paragraph 3.23 fails to adequately particularise the
victims or times when the alleged events occurred. 44 This paragraph was supported at
confirmation by the statements of eight informants (T13, T15, T9, T25, T21, T20, T2
and T28) who describe the selection of victims from the stadium on 16 April 1994 in
detail. The informants also mention selections of victims on other dates. For example:
(a) Informant T9 stated that a few days after 16 April 1994, soldiers took
approximately thirty refugees from the stadium to Gatandara, where all
but two were killed.
(b) Informant T2 described two selections of approximately forty refugees
by Bagambiki, Ntagerura, and sous-prefet Kamonyo in April 1994 at 9
and 11 a.m. According to the informant, the refugees were taken to
Gatandara and killed.
(c) Informant T28 stated that the day after the transfer of the refugees from
the Cathedral to the stadium, 16 April 1994, Bagambiki read seventy
names from a list but nobody responded. The next day Bagambiki
returned with soldiers, separated men from women, and took away
around forty men for interrogation. According to the informant, these
refugees were taken to Gatandara and killed, save one who escaped.
The account of informant T28 differs from the other informant’s
statements, but probably relates to the 16 April 1994 selection.
55. The statements of T2 and T28 are vague concerning selections of refugees after 16
April 1994 and it is therefore impossible to establish whether they refer to the same or
different events. The statement of informant T21, which purportedly also supports this
paragraph, cannot be considered because it only describes Ntagerura’s acts. In light of
what was known to the Prosecution at the time of confirmation, the Indictment should
have been pleaded more specifically. Nevertheless, it is possible to narrow the scope
of the broad language of the Indictment by reference to the supporting materials. In
assessing the evidence in relation to this paragraph, I would only consider evidence
relating to the specific events set out in the supporting materials.
43
44
Judgement, para. 56.
Judgement, para 56.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
56. Paragraph 3.24, which fails to adequately set out material facts, was supported at
confirmation by informants T7, T8, and T14:45
(a) Informant T7 described the selection and arrest of approximately eight
persons, some of whom are named, on 6 June 1994 at Kamembe
market. According to the informant, they were taken by bus to the
Gendarmerie camp near the Hotel Des Chutes and later to the military
camp where the informant and other detainees stayed for several days.
Every night, the soldiers selected three or four persons from lists of
those to be killed. The informant identifies six persons, among them a
woman called Mbembe, who were taken from the cells and presumably
killed because they were not seen alive again. The raid on 6 June 1994
in Kamembe, and the selection, arrest, detention, ill treatment, and
disappearance of certain identified persons are sufficiently detailed.
(b) Informant T8 stated that on 11 April 1994, at around 1:00 p.m., a group
of soldiers arrested him and six others at the Jesuits’ house near
Cyangugu Cathedral. They were taken to the military camp, where
they were badly beaten and detained on the order of Imanishimwe. The
informant provides the names of other members of his group, all of
whom were killed in the camp. The event and Imanishimwe’s role in it
are sufficiently individualised in the supporting materials.
(c) Informant T14 stated that two named soldiers were detained in the
military camp because they were perceived to be Tutsi. Further, the
informant stated that two identified soldiers were killed on the orders
of Imanishimwe and that the accused beat up an unidentified lieutenant
after the guard refused to obey his order to shoot at the victim.
57. Although paragraph 3.24 omitted to plead certain material facts, the supporting
materials reveal that this information was in the hands of the Prosecution at the time
of confirmation. The locations of the events, particulars of victims, and some other
material facts should have been included in the Indictment and the scope of the
allegations in the paragraph should therefore be restricted to these events.
e. Paragraph 3.25
58. Paragraph 3.25 contains two allegations, namely that Tutsi and moderate Hutu
were arrested and taken to the military camp where they were tortured and executed
and, secondly, that soldiers participated in the massacres of the Tutsi population. The
Trial Chamber has found that the first sentence failed to plead material facts. 46 At
confirmation, these allegations were based on informants T7, T30 and T33, who
referred to the arrests of 6 June 1994 in Kamembe market and to people being tortured
and killed at the military camp. Informant T33 provided sufficient details of the
torture of three men and of the killing of his sister who were suspected of being
accomplices of the RPA. Informant T27 also mentioned arrests and killings in the
military camp, but failed to provide any further details. This allegation should be
45
46
Judgement, para. 57.
Judgement, para. 58.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
limited to those incidents mentioned in the supporting materials. The allegation that
soldiers participated in massacres should not have been considered at all because the
allegation does not contain any of the necessary material facts and no informant
supported this allegation at confirmation
f. Paragraph 3.26
59. The Trial Chamber has found that paragraph 3.26 fails to plead necessary material
facts. 47 Paragraph 3.26 was supported at confirmation by the statement of informant
T2, who said that on 14 April 1994 Bagambiki ordered a group of thirty-eight to fiftytwo soldiers to attack and kill a few hundred refugees gathered at the hill near the
football field in Gisuma. Soldiers using big automatic weapons and Interahamwe
using grenades killed all but approximately ten refugees. This event and Bagambiki’s
role in it is sufficiently individualised. Informant T28 stated that on 9 April 1994 at
Kadasomwa, Bagambiki ordered a group of forty soldiers to shoot into a crowd of
about 10,000 refugees. The informant stated that soldiers shot in the air, dispersing the
refugees. The Interahamwe killed about 2,000 refugees while others escaped to
Cyangugu parish. This event could therefore have been pleaded with precision on the
basis of the material available to the Prosecution at the time of confirmation. The
evidence should be limited to these two events found in the supporting materials.
g. Paragraph 3.27
60. The Trial Chamber has found that Paragraph 3.27, which alleges that Bagambiki’s
subordinates participated in massacres of Tutsi civilians, fails to plead material facts. 48
I note that the allegations implicitly refer to the superior responsibility of Bagambiki
pursuant to Article 6(3) of the Statute for the massacres in which his subordinates
participated. However, this paragraph is included in counts 1, 3, 4, 6, and 19, which
also charge Bagambiki under Article 6(1) of the Statute. This contradiction raises a
measure of confusion regarding the relationship between the allegations in this
paragraph and Bagambiki’s alleged superior responsibility for massacres in other
paragraphs of the Indictment. Paragraph 3.27 was supported at confirmation by the
statements of informants T17, T22-H-D, T1, T2, T36 and T16:
(a) Informant T36’s statement does not assist in defining the scope of
these allegations. He stated that he saw sous prefet Nsengimana and
bourgmestre Kamanzi of Bugarama among the Interahamwe, but it is
not clear when this occurred or whether the Interahamwe participated
in any crime related to this meeting.
(b) Informants T16 and T17 stated that on 16 April 1994 the bourgmestre
of Gatare commune distributed rifles to former soldiers and then led
the Interahamwe from bugarama in the attack against Tutsi refugees at
Bizinga, Kibuye prefecture. The particulars concerning the location,
the time, the identification of the subordinate bourgmestre, and the
description of his participation in the attack permit the event to be
47
48
Judgment, para. 59.
Judgement, para. 60.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
identified with precision. However, the identification of victims and
other details of the massacre are not pleaded, nor are the facts
necessary to establish superior responsibility In addition, the alleged
massacre was carried out in Kibuye Prefecture, but the Indictment
charges responsibility for massacres in Cyangugu Prefecture.
(c) Informant T22-H-D stated that Bandeste, Kwitonda, and Ngagi
participated in the attack against about 800 refugees on 18 April 1994
at Mibilizi Parish. The statement is sufficiently detailed and identifies
the massacre. However, it gives no information with which to establish
Bagambiki’s superior-subordinate relationship, knowledge of an
imminent massacre, or available measures to prevent the attack or to
punish the subordinates.
(d) Informant T2 stated that on 14 April 1994, sous prefet Kamonyo and
bourgmestre Gakwaya along with thirty-eight to fifty-two soldiers and
Interahamwe attacked a few hundred refugees at the football field in
Gisuma, and that only ten refugees survived the massacre. This event is
sufficiently individualised by location, time, identity of subordinates,
and their activities in the attack. However, no further information
alleges the facts necessary to establish the mode of superior
responsibility.
(e) Informant T1 stated that on 10 April 1994 sous prefet Terebura along
with the brigadier of Kagano commune and two gendarmes arrived in
Karengera commune and started killing opposition leaders. The
statement lacks any information about the victims, location, or time of
these killings. It is impossible to identify any particular instance of
killing. This statement gives no useful additional information which
could add precision to the Indictment.
61. The Prosecution had evidence at the time of confirmation which could have been
used to plead the material facts of crimes committed by subordinates in the
Indictment. The vague language employed in paragraph 3.27 of the Ind ictment should
therefore be interpreted in light of the specific information available in the supporting
materials. However, the supporting materials do not provide the information
necessary to establish superior responsibility, such as the Accused’s knowledge, the
available measures of preventing the crimes of subordinates, or the available measures
of punishment. Allegations in this paragraph therefore cannot support a charge of
superior responsibility.
h. Paragraph 3.28
62. The Chamber has found that paragraph 3.28 fails to plead material facts, and that
this is a serious omission because it alleges an affirmative act of refusal to provide
assistance to those in need. 49 This paragraph was supported at confirmation by the
statements of informants T17, T31, and T22-H-D.
49
Judgement, para. 61.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
(a) Informant T17 stated that in Gatare commune, during the night of 7
April 1994, one person was killed and a house of the president of the
Liberal Party was set on fire. People requested the bourgmestre to
assure their security and nocturnal patrols were organised in Hanika
region. At midday on 11 April 1994, the informant told Bagambiki that
refugees were in danger and requested gendarmes for protection.
Bagambiki responded that he could not help. During attacks on the
same day and the following day, approximately 2,000 refugees were
killed. The request of T17 for assistance, the refusal of Bagambiki to
protect the refugees, and the consequences of his refusal are
sufficiently particularised to enable an identification of the alleged
events.
(b) Informant T31 provided a detailed account of the events of 7 April
1994 in Gatare commune starting at 6:00 a.m. when he was informed
that a Tutsi had been killed and that two houses had been burned. The
informant met with the local population, organised patrols consisting
of both Hutu and Tutsi, and informed Bagambiki and sous prefet
Terebura about the situation. On the following day, another person was
killed in Gatare commune and the informant asked Bagambiki and the
sous prefet for gendarmes, but was denied. According to the informant,
Tutsi refugees at Hanika Parish were attacked and some were killed. At
midday on 11 April 1994, during the prefectural Security Council
meeting, the informant told Bagambiki that refugees at Hanika Parish
were under attack.
(c) Informant T22-H-D, who testified at trial as a defence witness, stated
that on 18 April 1994 during the prefectural conference, Bagambiki
and others were informed that approximately 8,000 refugees at Mibilizi
Parish were under attack by the Interahamwe. After Bagambiki stated
that he was not in a position to repulse the attack, the participants of
the meeting decided to send an envoy to negotiate with the attackers
and the refugees.
63. In conclusion, the instances of Bagambiki’s refusal to secure the protection of the
Tutsi population in Gatare commune and of the refugees at Mibilizi parish are
sufficiently identified and may be considered as part of paragraph 3.28 of the
Indictment.
i.
Paragraph 3.30
64. The allegations against Imanishimwe in paragraph 3.30 of the
Bagambiki/Imanishimwe Indictment are supported by Informants T21, T36, and T23:
(a) Informant T36 stated that on 16 April 1994 soldiers, Interahamwe, and
Hutu refugees from Burundi encircled the houses of selected Tutsi and
Hutu in Bugarama and started killing, pillaging, and destroying
property. The locality, identity of victims and perpetrators, number of
victims, and other details of the material facts are not very precise, but
it is possible to particularise the event.
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
(b) Informant T21 stated that on 13 April 1994 many people in his
neighbourhood, including his father, were killed by the Interahamwe.
The description of the murder of his father is detailed by location, date,
mode of execution, and the identity of some of the attackers including
the murderer. Nevertheless, the statement does not mention that
soldiers participated in this event.
(c) Informant T23’s statement does not support the allegation that
Interahamwe and soldiers participated in massacres of the Tutsi
population and Hutu political opponents in Cyangugu.
65. Consequently, the events described by T36 and T23 should be considered as part
of the Indictment.
3. Conclusion
66. In conclusion, it is my considered opinion that the Judgement should focus only
on the specific and detailed allegations in the Indictment. Where allegations are
broadly framed, I would consult the supporting materials in order to determine
whether the supporting material can narrow the charges by providing the material
facts underpinning them. A few of the broad allegations in the
Bagambiki/Imanis himwe Indictment are substantiated by identifiable events contained
in the supporting materials, namely:
(i) Bagambiki’s and Imanishimwe’s participation in the preparation of a list of a
dozen victims which was used in late April 1994 during the attempted arrest of
T13’s husband, as generalised in paragraphs 3.17 and 3.18;
(ii) Bagambiki’s and Imanishimwe’s respective roles in the transfer of the refugees
from the Cathedral to the Cyangugu stadium on 15 April 1994, the imprisonment
of the refugees at the Cyangugu stadium, and the attempt of the refugees to leave
the stadium later in April 1994, when about 600 of them were killed, as
generalised in paragraphs 3.21 and 3.22;
(iii)Bagambiki’s and Imanishimwe’s respective roles in the selection and killing of a
group of refugees from the Cyangugu stadium on 16 April 1994 and some other
instances of selections and killings of refugees from the stadium, as generalised in
paragraphs 3.17, 3.18, and 3.23;
(iv) The arrest of six refugees, including informant T25, at the Jesuits’ house on 11
April 1994 and the subsequent detention, mistreatment, and killing of all but one
of the refugees at the military camp, as generalised in paragraphs 3.20 and 3.24;
(v) The raid in Kanombe on 6 June 1994, and the subsequent selection, detention,
torture of three men and killing of Mbembe at the Cyangugu military camp, as
generalised in paragraph 3.24 and the first sentence of paragraph 3.25;
(vi) Massacres on the order of Bagambiki at the hill near the football field in Gisuma
on 14 April 1994 and at Kadasomwa on unknown day in April 1994, as
generalised in paragraphs 3.26 and 3.27; and
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
(vii) Bagambiki’s refusal to protect the Tutsi population in Gatare commune
between 7 and 11 April 1994 as well as refugees at Hanika Parish and Mibilizi
Parish, as generalised in paragraph 3.28.
67. The Judgement acquitted Ntagerura and Bagambiki of all the charges against
them. I agree with the verdict although the grounds for acquittal for a number of the
allegations in the Indictments would differ if my approach were followed. The
Prosecution produced no evidence at trial to prove the allegations summarised in
paragraph 65(i) and (vii) above. Also, no evidence was adduced relating to the
allegation that Bagambiki ordered a massacre at a football field in Gisuma on 14 April
1994, as is mentioned in paragraph 70(vi) above. For these crimes the Judgement has
no findings at all.
68. In the Judgement, a majority of the Trial Chamber found that there was
insufficient evidence to establish that Bagambiki participated in a massacre at
Gashirabwoba football field. In my opinion the Trial Chamber should have
disregarded this allegations and the evidence adduced during the trial concerning this
massacre because the Indictment does not charge Bagambiki for this event.
69. The Judgement found Imanishimwe responsible for ordering his subordinate
soldiers to participate in a massacre on 12 April 1994 at Gashirabwoba football field.
The Prosecution had no information about this massacre at the time of filing the
Indictment. Witnesses LAC, LAB, and LAH, who testified about this event, were first
interviewed on 9 July 1999, 24 June 1999, and 22 June 1999 respectively: all three
statements were taken after 9 October 1997 when the Indictment was filed. Thus, the
Judgement in this instance exceeds the Indictment. In my opinion, these allegations
should be disregarded and should not be used to support any count because they were
not contained in the Indictment.
II. CUMULATIVE CONVICTIONS
70. The Judgement found Imanishimwe guilty of genocide under count 1,
extermination as crime against humanity under count 10, and murder as violation of
Article 3 common to the Geneva Conventions under count 13 for the massacre at the
Gashirabwoba football field. Imanishimwe was also found guilty of the murder of
four identified persons at the Karambo Military camp as a crime against humanity
under count 9 and as violation of Article 3 common to the Geneva Conventions under
count 13. He was also convicted of the torture of three persons at Karambo military
camp as crime against humanity under count 12 and a violation of Article 3 common
to the Geneva Conventions under count 13. Finally, the Judgment found Imanishimwe
guilty of the cruel treatment of witness LI and those arrested with him on 11 April
1994 at Cyangugu Cathedral as violation of Article 3 common to the Geneva
Conventions under count 13. 50
50
The Prosecution charged Imanishimwe for this event with torture as crime against humanity under
Article 3(f) of the Statute and as violation of Article 3 common to the Geneva Conventions under
Article 4(a) of the Statute. The Judgment acquitted Imanishimwe for torture as crime against humanity
because the mistreatment was not shown to have caused the severe pain or suffering required for
torture, but found him guilty of cruel treatment as a violation of common Article 3 to the Geneva
The Prosecutor v. André Ntagerura, Emmanuel Bagambiki, and Samuel Imanishimwe, Case No. ICTR-99-46-T
71. For the reasons which are explained in my separate opinion in the Semanza
Judgement, 51 in a case of inter-article ideal concurrence of crimes, genocide consumes
extermination as a crime against humanity and murder as a violation of Article 3
common to the Geneva Conventions. In ideal concurrence of crimes based on the
same facts, crimes against humanity consume violations of Article 3 common to the
Geneva Conventions. Therefore, leaving aside my concerns about the Gashirabwoba
massacre being outside the scope of the Indictment as explained above, 52 I would find
Imanishimwe guilty only of genocide for the massacre at Gashirabwoba football
field 53 on 12 April 1994, and for murder, imprisonment, and torture at the Karambo
military camp as crimes against humanity under counts 9, 11, and 12.
Arusha, 25 February 2004
Pavel Dolenc
Judge
[Seal of the Tribunal]
Conventions pursuant to Article 4 of the Statute. In my view this verdict appears inconsistent because
such mistreatment could be characterized as an inhumane act as a crime against humanity pursuant to
Article 3(i) of the Statute. The fact that Article 4(a) of the Statute enumerates crimes against life and
wellbeing of persons, such as murder, torture, mutilation, and other forms of cruel treatment in one
subsection while in Article 3 of the Statute they are enumerated in several subsections does not justify
such a different verdict.
51
Semanza, Judgement (TC) (Separate and Dissenting Opinion of Judge Pavel Dolenc).
52
Supra para. 68.
53
This is provided that the indictment indeed properly charged the accused for this event, which was
not the case.
ANNEX I.A
(Certified Copy of Ntagerura Indictment)
ANNEX I.B
(Certified Copy of Bagambiki/Imanishimwe Indictment)
The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T
ANNEX II: LIST OF CITED JUDGEMENTS AND SENTENCES
Akayesu (ICTR)
The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Sentence, ICTR TC, 2 October
1998.
Aleksovski (ICTY)
The Prosecutor v. Aleksovski, Case No. IT-95-14/1-A, Judgement, ICTY AC, 24
March 2000.
Bagilishema (ICTR)
The Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, Judgement, ICTR TC, 7
June 2001.
Blaskic (ICTY)
The Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, ICTY TC, 3 March
2000.
Celebici (ICTY)
The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, Judgement,
ICTY TC, 16 November 1998.
The Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-A, Judgement,
ICTY AC, 20 February 2001.
Jelisic (ICTY)
The Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgement, ICTY TC, 14 December
1999.
Kambanda (ICTR)
The Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence,
ICTR TC, 4 September 1998.
Kayishema and Ruzindana (ICTR)
The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Judgement,
ICTR TC, 21 May 1999.
The Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T, Sentence,
ICTR TC, 21 May 1999.
Kordic and Cerkez (ICTY)
The Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-T, Judgement, ICTY TC,
26 February 2001.
The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T
Krnojelac (ICTY)
The Prosecutor v. Krnojelac, Case No. IT-97-25-T, Judgement, ICTY TC, 15 March
2002.
The Prosecutor v. Krnojelac, Case No. IT-97-25-A, Judgement, ICTY AC, 17
September 2003.
Kunarac (ICTY)
The Prosecutor v. Kunarac et al., Case No. IT-96-23-T & IT-96-23/1-T, Judgement,
ICTY AC, 12 Juen 2002.
Kupreskic (ICTY)
The Prosecutor v. Kupreskic et al., Case No. IT-95-16-A, Judgement, ICTY AC, 23
October 2001.
Musema (ICTR)
The Prosecutor v. Musema, Case No. ICTR-96-13-T, Judgement and Sentence, IC TR
TC, 27 January 2000.
Musema v. The Prosecutor, Case No. ICTR-96-13-A, Judgement, ICTR AC, 16
November 2001.
Naletilic and Martinovic
The Prosecutor v. Naletilic and Martinovic, Case No. ICTY-98-34-T, Judgement,
ICTY TC, 31 March 2003.
Ntakirutimana (ICTR)
The Prosecutor v. Elizaphan and Gerard Ntakirutimana, Case No. ICTR-96-10-T &
ICTR-96-17-T, Judgement and Sentence, ICTR TC, 21 February 2003.
Niyitegeka
The Prosecutor v. Niyitegeka, Case No. ICTR-96-14-T, Judgement and Sentence,
ICTR TC, 16 May 2003.
Ruggiu (ICTR)
The Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, Judgement and Sentence, ICTR
TC, 1 June 2000.
Rutaganda (ICTR)
The Prosecutor v. Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence,
ICTR TC, 6 December 1999.
The Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, Judgement, ICTR TC, 26 May
2003.
The Prosecutor v. Laurent Semanza, Case No. ICTR-97-20-T
Semanza (ICTR)
The Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement and Sentence, ICTR
TC, 15 May 2003.
Serushago (ICTR)
The Prosecutor v. Serushago, Case No. ICTR-98-39-S, Sentence, ICTR TC, 5
February 1999.
Sikirica (ICTY)
The Prosecutor v. Sikirica et al., Case No. IT-95-8-S, Sentencing Judgement, ICTY
TC, 13 November 2001.
Stakic (ICTY)
The Prosecutor v. Stakic, Case No. IT-97-24-T, Judgement, ICTY TC, 31 July 2003.
Tadic (ICTY)
The Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgement, ICTY TC, 7
May 1997.
The Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, ICTY AC, 15 July 1999.
Vasiljevic (ICTY)
The Prosecutor v. Vasiljevic, Case No. IT-98-32-T, Judgement, ICTY TC, 29
November 2002.
